Volume 9: Issue 1 (2013)
Protecting Taxpayers and the Environment Through Reform of Canada’s Offshore Liability Regime
William Amos & Ian Miron
Abstract: A recent series of major oil pollution incidents has generated serious concern about the adequacy of Canada’s oil pollution liability regimes. In Canada, distinct liability regimes govern different aspects of hydrocarbon resource development. This article assesses the statutory civil liability regime governing the exploration and production of offshore oil and gas resources. The existence of an adequate offshore liability regime is an issue of importance to all Canadians. Appropriate allocation of risks will ensure that taxpayers are protected from the financial consequences of a spill, which may amount to tens of billions of dollars in the offshore context. Appropriate allocation will also promote improved industry safety practices, thus reducing the likelihood of pollution incidents.This article assesses the strengths and weaknesses of the various legislative components that combine to form the overarching “patchwork” civil liability regime for oil and gas activities in the Canadian offshore. It concludes that the existing liability regime fails to adequately implement the polluter-pays principle and provides a wholly inadequate measure of protection to Canadians and the Crown against offshore-related environmental liabilities. At the same time, the existing regime fails to promote an appropriate industry safety culture, creating a moral hazard that increases the risk of a worst-case scenario oil pollution incident.The article proposes legislative reforms to correct these flaws, including, among others, the elimination of or a substantial increase to the existing cap on an operator’s absolute liability, and the explicit recognition of the availability of compensation for natural resource damages. These reforms are necessary to establish a modern liability regime that provides Canadians and the environment with an appropriate level of protection in the event of an offshore pollution incident.
Carol Liao
Abstract: The period when corporate social responsibil-ity (“CSR”) only referred to corporate philanthropic donations has passed. Contemporary CSR is intimately intertwined with sustainable development, and its growth in the last several decades has been evident in Canada. The recent appearance of “hybrid” corporate legal structures on the international stage marks a growing trend toward enabling the dual pursuit of economic and social mandates for businesses. This suggests that the next significant stage in the CSR movement will be in the reformation and creation of corporate legal models that not only enable, but require, CSR concepts to be embodied within corporate governance practices. This article borrows the term “transformational” from the business sector to help identify a tangible goal for corporate governance reform in Canada. Highlights include having a sustainable purpose, long term vision, and multi-stakeholder collaboration. While the US shareholder primacy model is often presumed to be the model that is dominant in modern Canadian corporations, this presumption is flawed. This article identifies some of the fundamental legal features that set Canada apart from US shareholder primacy, and attempts to demarcate a path for Canada to attain transformational corporate governance through its laws. Canada is poised to become a leader in corporate governance reform on two fronts: (1) the reformation of its existing laws regulating mainstream corporate governance practices, and (2) the creation of hybrid laws that can meet growing demands to legally house and govern social enterprises. There has been much fanfare surrounding the possible implementation of a hybrid model similar to the US benefit corporation in Canada in order to address the for-profit sector’s growing needs to pursue social value in addition to profit-making. However, some of the fundamental legal characteristics within the benefit corporation actually parallel existing common laws in Canada regarding mainstream corporate governance practices. Canada does not need to adopt American solutions to American problems. During these formative years of Canada’s corporate legal development, the nation’s progressive legal stance must be properly understood and taken into account when establishing hybrid laws so as not to confuse and/or jeopardize that stance. An ongoing stream of thoughtful and intelligent commentary is needed to address and advance Canadian corporate legal needs for social progress, as well as the establishment of innovative new hybrid laws that can bridge the gap between for-profit and non-profit sectors.
Benoît Mayer
Abstract: In recent years, the literature on climate change and migration has developed rapidly and somewhat anarchically. This essay is a critical overview of seven of the most significant books and reports published on this topic between 2009 and 2012. This survey reveals significant tensions in the conceptualisation of climate migration in the empirical, conceptual and normative literature. Many empirical works support a prudent conceptualisation of climate migration. They demonstrate that climate change is only one of many causes of displacement, making it virtually impossible to single out individual “climate migrants.” They also show that climate change exacerbates heterogeneous forms of migration, and that these migratory scenarios occur mostly within the borders of states. Some analyses by non-legal scholars have suggested a fragmented governance approach for addressing specific scenarios of displacement. Yet, most contributions to the normative debate continue to rely heavily on a concept of climate migration that is founded in sensationalism rather than observation. Arguing for protection of climate migrants, several authors overlook empirical evidence on the large predominance of internal migrants, thus overlooking the bulk of the issue they intend to address. They address neither the complex causality of migration nor the impossibility of isolating “climate migrants.” Overall, they seem unable to develop a sound rationale for specific protection of climate migrants. This essay concludes that the highly successful discourse on climate migration is adrift and thus highly vulnerable to re-appropriation by different actors to justify practically any “solution.”
Kivalina v. Exxonmobil: A Comparative Case Comment
Karine Péloffy
Abstract: This article analyzes the recent appellate decision in the American case of Native Village of Kivalina v. ExxonMobil Corp., where an Inuk village sued the largest greenhouse gas emitters in the country for contributing to the public nuisance of climate change which is endangering their village. It also explores the treatment of a similar hypothetical Canadian case in relation to the jurisprudence of the Supreme Courts of both countries. It comparatively focuses on the ability of climate change litigants to rely on the common law to access the courts and how jurisprudential trends have and can evolve to enable climate change governance in the face of political inaction. The article has two main propositions. First, Kivalina’s recent defeat, now confirmed by the Supreme Court of the United States, could herald the end of environmental common law in the United States despite the absence of legislative damages remedies for climate change victims. Second, Kivalina-type claims are prime to migrate north due to recent political and legislative changes at the federal level in Canada. There, the differences in judicial treatment will likely have to do with the absence of applicable pre-existing legislation, the inexistence of federal common law over interprovincial pollution, obstacles to access to justice and additional constitutional grounds for such a lawsuit.
Case Comment: Commentaire sur Anvil Mining
Geneviève Saumier
