Volume 18: Issue 2 (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.
Erin Dobbelsteyn
The Government of Canada recently amended the Federal Sustainable Development Act (FSDA), the statute governing the design and implementation of Canada’s approach to sustainable development. Among the numerous changes is the explicit inclusion of the principle of intergenerational equity and the requirement for it to be considered in the development of federal sustainable development strategies. In this paper, I review these amendments to the FSDA and consider the practical effect they may have in giving a voice to the interests of future generations. Specifically, I examine the extent to which these amendments comply with the principle of intergenerational equity, a legal framework which balances the needs of present and future generations while taking into account our planet’s ecological limits. In conducting this analysis, I identify and critique two particular shortcomings: the weak definition of intergenerational equity and the absence of effective representation for the interests of future generations. I conclude that the principle of intergenerational equity has been only nominally incorporated into the FSDA and, without further legal or policy mechanisms, due consideration of the interests of future generations will remain elusive under Canada’s approach to sustainable development.
Decolonization, Feminism and Climate Change: A commentary on Misdzi Yikh v Canada
Verity Thomson
This paper explores the intersection of climate change, feminism and colonialism through a critical analysis of the Statement of Claim and Federal Court decision in Misdzi Yikh v Canada, 2020 FC 1059. Misdzi Yikh is a climate change class action argued on the basis of human rights which was filed on behalf of two houses of the Wet’suwet’en Nation. This paper focuses primarily on the plaintiff’s Statement of Claim to demonstrate the importance of this claim in the Canadian legal context and the complex history which underlies it. I use three theoretical lenses, Indigenous constitutionalism, feminist constitutionalism, and intersectionality, to demonstrate that Misdzi Yikh is an important step in bringing Indigenous constitutionalism to Canadian courts but fails to empower Indigenous women. The final part of this paper analyses the Federal Court’s decision to strike the Statement of Claim and evaluates the plaintiff’s arguments in their appeal.
Brandon Stewart
In Sharma ex rel Sister Brigid Arthur v Australia (Minister for the Environment), [2021] FCA 560, the Federal Court of Australia imposed a duty on the Minister for the Environment to take reasonable care, when exercising her statutory powers to approve (or not approve) a mine extension project, to avoid causing personal injury or death to Australian children arising from greenhouse gas emissions. This is the first time a common law jurisdiction had imposed a climate change–related duty of care on a public authority under negligence law. Before the decision was overturned, Australian legal scholars and the environmental community were hopeful that the decision would create pathways to recovery for climate change victims elsewhere. This article provides the first in-depth examination of Sharma and its application in Canada. It focuses on proximity at step one of the Anns/Cooper duty test and draws from Professor Bruce Feldthusen’s scholarship on unique public duties and the Canadian duty case law. The author argues a Sharma-type duty to avoid or protect against climate change–related physical harms would likely not be recognized under Canadian negligence law because it lacks sufficient private party proximity. The Federal Court of Australia had actually created a unique public duty of care based on a questionable assessment of double foreseeability. It is unique because it is based on a relationship that would not be sufficiently proximate to impose a duty of care on a private party defendant in the same situation. The author further argues Canadian courts would not recognize a Sharma-type unique public duty because it would be distinguishable from the existing and rare unique public duty precedents in Canada. It also does not align with the Supreme Court of Canada’s recent emphasis on proximity and its shift towards a corrective justice or rights-based approach to the duty of care analysis since Cooper. So long as this approach prevails over instrumentalist goals and social policy, common law negligence will not be the tool for regulating Canadian public authorities and their climate change–related discretionary decisions.
Katherine Wang and Malaïka Bacon-Dussault
This article examines Canada’s shark fin trade ban in the context of international trade obligations. The Fisheries Act promotes the conservation of sharks as exhaustible natural resources and protects their wellbeing as sentient beings. However, in allowing the trade of all shark fin derivatives, the Fisheries Act does not comply with the GATT obligations. This article proposes that the measures prohibiting shark fin trade should apply equally to the prohibition of its derivative products. This would increase the protection afforded to sharks and improve Canada’s GATT compliance. Thus, international trade obligations and environmental objectives can be mutually supportive.
