Volume 18: Issue 1 (2022)
Volume 18 Introductory Material
Emma Sitland
Here, readers can find useful information concerning the McGill Journal of Sustainable Development Law, including its Editorial, Management, and Advisory Boards. The MJSDL is a student-run, peer-reviewed, bi-annual academic journal mandated to provide a forum for critical analysis on the intersecting themes of economics, society, human rights, and the environment, and the resulting implications for sustainable development law. The MJSDL is affiliated with the Faculty of Law at McGill University and is fully bilingual. Our 2021-2022 Editor in Chief, Emma Sitland, provides an introductory note introducing this volume.
Daniel Dylan & Erin Chochla
Federal and provincial governments have developed legislation governing the management, disposal, and recycling of various forms of waste, and, for the most part, the regimes created by this legislation have contributed to a reduced national environmental footprint. Yet, Canada remains one of the highest producers of waste among industrialized nations. While regulations respecting the packaging of various products in specific types of containers as well as regulations related to the disposal of that packaging exist, there is currently no federal or provincial legislation respecting limitations on the quantity or size of packaging relative to a consumer product’s particular quantity or size. In our view, any legislative attempt to reduce the waste produced by Canadians that does not restrict or limit the production and use of packaging commensurate to the product it holds is missing a valuable opportunity to achieve the goals of a cleaner environment and a smaller environmental footprint for all of Canada. We argue that the inclusion of statutory provisions restricting permissible packaging to the minimum of what is required to serve the packaging’s functions would strengthen Canada’s environmental legislation, reduce strain on our waste-disposal systems, and lessen our national environmental footprint. Thus, this article identifies and canvasses the problem of excessive packaging and proposes provisions that underlie a normative statutory framework/regime in Canada.
All that Glitters Isn’t: Gold Mining, Sustainable Development, and the Loulo Mine
Patrick Leisure
A complex balancing act of the interests of the various stakeholders involved in international mining projects determines whether these ventures spur inclusive economic development and improve the lives of the people in the communities surrounding the mine. This article evaluates that complex dynamic via an in-depth study of the Loulo mine in Mali. Extrapolating from the experience of the Loulo mine, the article recommends that future mining projects include community-level stakeholders at the table early on, increase transparency and accountability for companies and governments alike, and involve development finance institutions from the outset in order to unlock mineral wealth and spur on sustainable development. This is especially true where corruption levels are high and the corporate incentive to benefit the local communities is comparatively low. While the article expresses words of caution relating to each of these recommendations, a more inclusive approach will make such ventures more likely to turn mineral resource wealth into a golden ticket that benefits all stakeholders rather than only a select few.
Julia Chen
In a global economy characterized by the proliferation of multinational corporations (MNCs), state-based legal systems continue to grapple with governance gaps in oversight over corporate activities abroad. Relatedly, the past year saw multiple governments, including Canada, pledging to reach net-zero carbon emissions and increasingly focused on the UN Sustainable Development Goals (SDGs), which carries with it promises of international accountability and inclusive development. However, as illustrated by Yaiguaje v. Chevron, there is an accountability gap where subsidiaries of Western MNCs may commit legal violations abroad without facing liability, on technicalities rather than on the merits. This article proposes that a solution to such a gap can be found in Canadian courts’ power to pierce the corporate veil to hold MNCs accountable for such harms, and it takes the position that there is room in Canadian corporate veil piercing doctrine to do so. Corporate veil piercing refers to the equitable doctrine whereby courts set aside limited liability in defined circumstances, such as to attach Canadian parent company assets when its subsidiaries have committed tort violations abroad. As human rights and climate litigation rises in Canada and globally, this article explores how current cracks in Canadian corporate veil piercing doctrine present an opportunity for modernization that aligns with Canada’s commitments towards sustainable development and international promises of access to justice.
From a Top-Down Perspective to Collaborative Management: The Kawésqar People’s Role in their National Park and Reserve
Sebastián Luengo Troncoso
This article analyzes the case of the Kawésqar National Park and Reserve, both protected areas in Chile that also coincide with Indigenous territories of the last Kawésqar Indigenous communities. This Chilean case is relevant for community conservation analysis because of the collision of interests between administrative agencies, Indigenous communities, and aquaculture industries, from which broader lessons are distilled to enhance co-management approaches toward conservation. In this sense, the article identifies the Chilean government’s flawed administrative decisions on the protection mechanisms of the area, where interests range from aquaculture projects pushing for less environmental restrictions for their execution to the Indigenous communities and biodiversity that have been adversely affected by these projects. Indigenous communities are pushing back to assert effective participation in the co-management of the Kawésqar Reserve and its conservation, while the Chilean government has partially decided to grant them certain recognition over the management of the Kawésqar Park. This article argues that for an effective protection of the land and sea, Indigenous communities must have a stronger position in decision-making regarding land and marine use in protected areas. To accomplish this, the article offers a critical analysis of the public policies developed by the Chilean government about the management of the protected areas regarding Indigenous communities and proposes moving from a top-down approach to a collaborative governance and management approach. This analysis builds upon the vast literature on community conservation approaches, and specifically on collaborative conservation through Indigenous collaborative governance. Through this lens I distill proposals for an effective community conservation approach, and specifically for a collaborative management with the Kawésqar people, such as their recognition and inclusion in the co-management of the protected areas and hybrid forms of environmental governance, among others recommendations.
