Environment in the Courtroom

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Environment in the Courtroom

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With contributions by: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , and

Language: English

Published/Copyright: 2019

About this book

Canadian environmental law is a dynamic and exciting area that is playing an increasingly important role in furthering sustainable development policy. Environmental law has distinctive relevant principles, operating procedures, implications, and importance in comparison with other areas of law, and these distinctions must be appreciated both within the legal community and by all those who are concerned with the way that courts handle environmental cases. Environment in the Courtroom provides extensive insight into Canadian environmental law. Covering key environmental concepts and the unique nature of environmental damage, environmental prosecutions, sentencing and environmental offences, evidentiary issues in environmental processes and hearings, issues associated with site inspections, investigations, and enforcement, and more, this collection has the potential to make make a significant difference at the level of understanding and practice. Containing perspective and insight from experienced and prominence Canadian legal practitioners and scholars, Environment in the Courtroom addresses the Canadian provinces and territories and provides context by comparison to the United States and Australia. No other collection covers these topics so comprehensively. This is an essential reference for all those interested in Canadian environmental law.

Author / Editor information

Ingleson Alan :

Allan Ingelson is an associate professor in the Faculty of Law, University of Calgary. His research focuses on regulation of the Canadian and international energy and mining sectors.

Topics

Law Law, other

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Front Matter
i

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Table of Contents
v

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Preface
xi

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Key Environmental Concepts and the Unique Nature of Environmental Damage
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Sustainable Development under Canadian Law
1
Paule Halley and Pierre-Olivier Desmarchais

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A Precautionary Tale: Trials and Tribulations of the Precautionary Principle
17
Chris Tollefson

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Ecosystem Management: It’s Imperative … Whatever It Is
39
Michael M. Wenig

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Public Nuisance: Public Wrongs and Civil Rights of Action
52
Alastair R. Lucas

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The Incorporation of an Environmental Ethic in the Courtroom
61
Heather McLeod-Kilmurray

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The Intersection of Human Rights Law and Environmental Law
72
Nickie Nikolaou

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Practical Engagement with Indigenous Legal Traditions on Environmental Issues: Some Questions
82
Hadley Friedland

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The Legal Concept of Sustainability
92
Natasha Affolder

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How Legal Design May Constrain the Power of Law to Implement Environmental Norms: The Case of Ecological Integrity in Canada’s National Parks
131
Shaun Fluker

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Applying International Law to Canadian Environmental Law
142
Charles-Emmanuel Côté

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The Role of International Environmental Law in Canadian Courts
152
Phillip M. Saunders

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Assessing Environmental Damages: How Much Is Beauty Worth in Dollars?
163
Giorilyn Bruno

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Environmental Prosecutions
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The Exercise of Prosecutorial Discretion: Challenges to Environmental Prosecutions
175
Alex Ikejiani

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Regulatory Negligence in Environmental Law
187
Lynda Collins and Jasmine Van Schouwen

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Strategic Decisions in Environmental Prosecutions
197
Paul McCulloch and Danielle Meuleman

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Federal vs. Provincial Crowning
207
Susan Mcrory

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Who Should Prosecute: Intragovernmental Aspects
218
Martin Z.P. Olszynski

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Science and Advocacy
230
Heather McLeod-Kilmurray

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Private Prosecutions Revisited: The Continuing Importance of Private Prosecutions in Protecting the Environment
240
John Swaigen, Albert Koehl and Charles Hatt

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Due Diligence in Environmental Offences
262
Ronda M. Vanderhoek

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Certain Defences in Criminal Law of the Environment
272
Jean Piette

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Aboriginal Law in the Context of Regulatory Prosecutions
285
Cheryl Sharvit

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Sentencing and Environmental Offences
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Environmental Sentencing: Making the Best of a Blunt Instrument
309
Barry Stuart

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Holding Directors and Officers Liable for Environmental Problems: Sentencing and Regulatory Orders
325
Dianne Saxe and Meredith James

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The Enforcement of Environmental Law through the Use of Administrative Penalties
338
Jean Piette

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Creative Sentencing in Environmental Prosecutions, The Canadian Experience: An Overview
364
John D. Cliffe

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Creative Sentencing: The Experience “Down-Under”
377
Sharon Mascher

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Creative Environmental Sentences: The Corporate Perspective
391
Allan E. Ingelson

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Environmental Non-Governmental Organizations and Creative Sentencing: Perspectives and Roles
413
Cindy Chiasson

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Negotiating Sentences
425
Peter J. Craig

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Creative Sentence Negotiation: Looking Beyond Deterrence
436
Paul Adams

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The Law and Economics of Environmental Harm: A Primer and Update for Environmental Sentencing (PARTS I and II)
443
Martin Olszynski and Peter Boxall

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The Law and Economics of Environmental Harm: A Primer and Update for Environmental Sentencing (PARTS III, IV and V)
457
Peter Boxall and Martin Olszynski

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Evidentiary Issues in Environmental Prosecutions and Hearings
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Proving Proving Causation: Causation: Scientific Scientific Certainty Certainty vs. vs. Legal Legal Burden Burden of of Proof Proof
473
Danielle Meuleman

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Experts in Environmental Litigation
481
Marc Mcaree, Robert Woon and Anand Srivastava

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Communication Between Lawyers and Experts
494
Marc Mcaree, Robert Woon and Anand Srivastava

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Reporting Obligations to Third Parties
505
Marc Mcaree, Robert Woon and Anand Srivastava

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Admissibility of Expert Evidence and Costs
516
Marc Mcaree, Robert Woon and Anand Srivastava

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Experts Only
532
Jim Bunting, Terri-Lee Oleniuk and Sarah Powell

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An Overview of Expert Evidence in Canada
551
Gary A. Letcher and Andrea C. Akelaitis

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Issues Respecting Expert Advisors, Expert Witnesses, and Retaining Counsel
561
Nicholas R. Hughes and Monika A. Sawicka

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Continuity of Evidence and Remediation Advice for Investigators: Some Brief Comments
574
John D. Cliffe and John S.G. Clark

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Proving the Right to Be Heard: Evidentiary Barriers to Standing in Environmental Matters
582
Adam Driedzic

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The Challenges of Gathering Expert Evidence by Private Individuals
597
Asha James

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The Challenges in Using Aboriginal Traditional Knowledge in the Courts
606
David Laidlaw

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Privilege in Environmental Enforcement
634
Erin Eacott

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Judicial Notice of Climate Change
646
Brenda Heelan Powell

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Inspections and Enforcement Issues: On-site and in Court
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The Art of Responsive Regulation: How Agencies Can Motivate Regulated Firms to Become Virtuous
665
James Flagal

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Regulatory Inspections: A Private Practitioner’s Perspective
690
Katia Opalka

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Anatomy of a Compliance Regime: Initiation Of Action—A Regulator’s Perspective
708
Fred Maefs

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Collecting Essential Evidence for Environmental Investigations and Prosecutions: Approaches to Legal Strategy and Associated Issues
718
Jack D. Coop

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Environmental Investigations: A Government Perspective
742
Paul McCulloch

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Recapitulation and Alternatives: Lessons Learned from a Hypothetical Case Study
752
Jennifer Fairfax

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Anatomy of a Compliance Regime: Recapitulation and Alternative Lessons from the United States
776
Jonathan Leo

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Contributors
779

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Index
803

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Publishing information

Pages and Images/Illustrations in book

eBook published on:

January 21, 2019

eBook ISBN:

9781552389874

Pages and Images/Illustrations in book

Main content:

824

Illustrations:

15

Other:

tables, figures, bibliography

https://doi.org/10.1515/9781552389874

eBook ISBN: 9781552389874

Keywords for this book

environmental law; sustainability law; ecosystem management law; environmental ethics; Indigenous environmental legal traditions; Aboriginal traditional knowledge and the courts; international environmental law; Canadian environmental law; environmental sentencing; sentencing in environmental law; enforcing environmental law; environmental law enforcement; environmental prosecutions; corporate environmental law; expert evidence in environmental law; evidence and environmental law; environental tribunals; case studies in environmental law

Audience(s) for this book

Professional and scholarly;

University of Calgary Press

Environment in the Courtroom

Overview

About this book

Author / Editor information

Topics

Table of contents

Front Matter

Table of Contents

Preface

Sustainable Development under Canadian Law

A Precautionary Tale: Trials and Tribulations of the Precautionary Principle

Ecosystem Management: It’s Imperative … Whatever It Is

Public Nuisance: Public Wrongs and Civil Rights of Action

The Incorporation of an Environmental Ethic in the Courtroom

The Intersection of Human Rights Law and Environmental Law

Practical Engagement with Indigenous Legal Traditions on Environmental Issues: Some Questions

The Legal Concept of Sustainability

How Legal Design May Constrain the Power of Law to Implement Environmental Norms: The Case of Ecological Integrity in Canada’s National Parks

Applying International Law to Canadian Environmental Law

The Role of International Environmental Law in Canadian Courts

Assessing Environmental Damages: How Much Is Beauty Worth in Dollars?

The Exercise of Prosecutorial Discretion: Challenges to Environmental Prosecutions

Regulatory Negligence in Environmental Law

Strategic Decisions in Environmental Prosecutions

Federal vs. Provincial Crowning

Who Should Prosecute: Intragovernmental Aspects

Science and Advocacy

Private Prosecutions Revisited: The Continuing Importance of Private Prosecutions in Protecting the Environment

Due Diligence in Environmental Offences

Certain Defences in Criminal Law of the Environment

Aboriginal Law in the Context of Regulatory Prosecutions

Environmental Sentencing: Making the Best of a Blunt Instrument

Holding Directors and Officers Liable for Environmental Problems: Sentencing and Regulatory Orders

The Enforcement of Environmental Law through the Use of Administrative Penalties

Creative Sentencing in Environmental Prosecutions, The Canadian Experience: An Overview

Creative Sentencing: The Experience “Down-Under”

Creative Environmental Sentences: The Corporate Perspective

Environmental Non-Governmental Organizations and Creative Sentencing: Perspectives and Roles

Negotiating Sentences

Creative Sentence Negotiation: Looking Beyond Deterrence

The Law and Economics of Environmental Harm: A Primer and Update for Environmental Sentencing (PARTS I and II)

The Law and Economics of Environmental Harm: A Primer and Update for Environmental Sentencing (PARTS III, IV and V)

Proving Proving Causation: Causation: Scientific Scientific Certainty Certainty vs. vs. Legal Legal Burden Burden of of Proof Proof

Experts in Environmental Litigation

Communication Between Lawyers and Experts

Reporting Obligations to Third Parties

Admissibility of Expert Evidence and Costs

Experts Only

An Overview of Expert Evidence in Canada

Issues Respecting Expert Advisors, Expert Witnesses, and Retaining Counsel

Continuity of Evidence and Remediation Advice for Investigators: Some Brief Comments

Proving the Right to Be Heard: Evidentiary Barriers to Standing in Environmental Matters

The Challenges of Gathering Expert Evidence by Private Individuals

The Challenges in Using Aboriginal Traditional Knowledge in the Courts

Privilege in Environmental Enforcement

Judicial Notice of Climate Change

The Art of Responsive Regulation: How Agencies Can Motivate Regulated Firms to Become Virtuous

Regulatory Inspections: A Private Practitioner’s Perspective

Anatomy of a Compliance Regime: Initiation Of Action—A Regulator’s Perspective

Collecting Essential Evidence for Environmental Investigations and Prosecutions: Approaches to Legal Strategy and Associated Issues

Environmental Investigations: A Government Perspective

Recapitulation and Alternatives: Lessons Learned from a Hypothetical Case Study

Anatomy of a Compliance Regime: Recapitulation and Alternative Lessons from the United States

Contributors

Index

Bibliographic data