Sustainability
P.S. Elder*
To protect the future of the planet, political and
economic leaders, as well as environmental
groups, have endorsed the concept of sustain-
able development. The practical application of
this vision will require profound changes in
institutions and in the decision-making process
of industrialized countries. The author exam-
ines the legal innovations in many areas that
could promote sustainability, emphasizing the
complexity of the issue and the diversity of
opinion on the meaning of “sustainability” and
on methods of implementation. Law is mainly
a goal-implementing mechanism requiring
ethical, political and economic consensus as a
foundation. He concludes that even with social
consensus, the law’s role is limited, and will
remain one of many social mechanisms. How-
ever, legal specialists should consider what
their fields can contribute to sustainability,
because of the need to integrate knowledge
into coherent political, economic and social
programs.
Des leaders politiques et 6conomiques, tout
comme certains groupes environnementaux,
ont appuy6 la concept du d6veloppement dura-
ble pour prot6ger l’avenir de la plan~te. L’ap-
plication concrete de ce concept exigera de
nombreux changements, notamment sur le
plan des institutions et du processus d6cision-
nel des pays industrialis6s. L’auteur examine
les innovations juridiques qui seraient suscep-
tibles de promouvoir le d6veloppement dura-
ble, question ainsi que les divergences d’opi-
nions en 6gard i l’interpr6tation de l’expres-
sion durabilit6 > et aux m6thodes de mise en
oeuvre. Le droit est un m6canisme vou6 A Ia
mise en oeuvre d’objectifs, si bien qu’il exige
un consensus 6thique social et politique
comme fondement. L’auteur conclue en pr6ci-
sant que meme si un tel consensus est atteint,
le r6le du droit est limit6, et ne demeurera
qu’un m6canisme social parmi d’autres. Les
sp6cialistes du droit doivent n6anmoins songer
ce que leur domaine peut apporter ii ]a dura-
bilit6, compte tenu au besoin d’int6grer leur
connaissance A des programmes politiques,
6conomiques et sociaux cohrents.
* Professor of Law, Faculty of Environmental Design, University of Calgary. With thanks to
Janet Keeping for her comments on the draft and to Professor Peter Jones, Director of the Institute
for Advanced Studies in the Humanities, University of Edinburgh, where this paper was written.
McGill Law Journal 1991
Revue de droit de McGill
McGILL LAW JOURNAL
[Vol. 36
Synopsis
Introduction
I.
Understanding “Sustainability”
A.
In Search of a Definition
B. Working Hypotheses
II. The Role of Law
A. Authoritative Decision-Making Mechanisms
B. Providing Framework-Institutions for the Economic System
C. Proscribing Behaviour
D. Regulatory and Economic Ways to Influence Behaviour
E. Modifying the Legal Rights of Citizens
F. Adjudicating Disputes
Conclusion
Introduction
Since the World Commission on Environment and Development (the
Brundtland Commission) presented its report in 1987, politicians, industrial
leaders and environmental groups around the world have endorsed sustainable
development –
“[meeting] the needs of the present without compromising the
ability of future generations to meet their own needs”‘ –
as a guiding principle
for the future of their countries.2 Overwhelming public concern about our
‘Our Common Future: The World Commission on Environment and Development (Chair: G.H.
Brundtland) (Oxford: Oxford University Press, 1987) at 43 [hereinafter Brundtland Report]. For
a history of the concept, see W.M. Adams, Green Development (London: Routledge, 1990) c. 2.
2E.g., the leaders of the Group of Seven (Canada, France, Italy, Japan, the United Kingdom, the
United States and West Germany) endorsed the concept at the Toronto summit in 1988. Sustaina-
bility herein must be understood to imply an indefinite or very long timespan, not literally eternal
sustainability.
19911
SUSTAINABILITY
endangered environment appears to have resulted in a significant shift in peo-
ple’s perspectives 3 and, to some extent, their actions. “Green consumerism” and
recycling are “in.” The environment is re-asserting itself on the public policy
agenda: pressure is mounting on governments to do something about energy
conservation and the greenhouse effect. In the private sector, business and many
environmental groups have better relations and no longer automatically see each
other as opponents.
There are “signs of hope,”4 even if they should have occurred twenty years
ago and if their depth is suspect.
This overview, using both Canadian and global examples, will suggest that
the issue of sustainability is both more complicated and more fundamental than
may first appear. It will also be proposed that law’s contribution depends on
prior social consensus on profound questions of political economy. However,
although law offers only a partial answer, technical innovation in many legal
areas may help us toward a sustainable future.
I. Understanding “Sustainability”
A.
In Search of a Definition
An uncritical embracing of the concept of sustainable development ignores
many important questions. For example, what does the term mean to each of its
supporting constituencies? Ostensible agreement masks many old conflicts.
Western industrialists seem to think it means only more efficient resource use
accompanied by sustainable material growth, with huge economic opportunities
as Third World countries industrialize. Third World elites tend to agree, but are
sceptical about we “First Worlders” telling them to learn from our mistakes and
to avoid destroying their forests or generating more greenhouse gases. Third
World countries also wonder why it is so important that they implement
population-control measures, when most resources are consumed by wealthy
3K. Neuman, “Public Opinion on the Environment: Trends and Implications for Law and Public
Policy in the 1990’s” in D. Tingley, ed., Into the Future: Environmental Law and Policy for the
1990’s (Edmonton: Environmental Law Centre, 1990) 3.
4L. Starke, Signs of Hope: Working Towards Our Common Future (Oxford: Oxford University
Press, 1990).
A well-known American commentator, however, speaking of the many international develop-
ments, is more sceptical:
Do we have conventions, agreements, treaties? Yes, we have many indeed. Do we have
institutions, large and small, to carry out their mandate? Yes, we most certainly do. Do
we have a global environment which is getting healthier? No! In fact, quite the con-
trary. … [L]et us not delude ourselves … that … the destruction of the planet has stopped
or even slowed … (See J.E. Carroll, International Environmental Diplomacy (Cam-
bridge: Cambridge University Press, 1988) at 277-78).
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nations that have few population-limiting policies apart from immigration
controls.
Many schools of thought contend that the environmental crisis is one of
values, politics and power and that sustainability needs more than clean-up,
materially efficient processes and nature conservation. Socialists believe only
socialism can achieve sustainable development. Libertarians and quasi-
anarchists, left and right, tell us that centralized authoritarian systems are
responsible for our plight and that decentralized, directly democratic small com-
munities are our only hope. Eco-feminists implicate male psychological drives
for competition and domination. Many environmentalists and ethicists believe
that the ideologies of materialism, growth and scientism5 are the problem. They
claim that industrialized countries must reduce production and their material
standard of living and prepare for a massive redistribution of the world’s
income. Eco-philosophers argue that we must stop being so anthropocentric and
admit that humans are just one species among many, and are nourished both
spiritually and physically by intimate contact with the natural environment.
Some of them argue that the crisis has its roots in our world view, and that the
world views of indigenous peoples or of Eastern philosophies, such as Bud-
dhism or Taoism, are preferable to the Western mechanistic, scientific, exploit-
ative one that they see as psychologically immature.6 These philosophical posi-
tions presumably imply major reductions in human population, mechanized
technology and material throughput, although the policies necessary to achieve
this are no more specific here than in the other radical prescriptions.
Clearly sustainable development is a flag under which many armies are
marching. Numerous definitions of sustainable development have been offered.7
However, partly because of confusion about the meaning of development,’ it has
been suggested that we use the term “sustainable society” instead.’ For present
5Scientism means “an exaggerated trust in the efficacy of the methods of natural science to
explain social or psychological phenomenon, to solve pressing human problems, or to provide a
comprehensive unified picture of the meaning of the cosmos” (H.B. Woolf, ed., Webster’s New
Collegiate Dictionary (Springfield, Mass.: G. & C. Merriam Co., 1981) at 1027).
6A.R. Drengson, “The Ecostery Foundation of North America (TEFNA): Statement of Philos-
ophy” (1990) 7:1 The Trumpeter 12 at 13.
7E.g., W.E. Rees, “The Ecological Meaning of Environment-Economy Integration” (Address to
the 9th Commonwealth Conference on Human Ecology, Edinburgh, 1989) [unpublished] [herein-
after “Economic Integration”]; W.E. Rees, “The Ecology of Sustainable Development” (1990) 20:1
The Ecologist 18; World Conservation Union (I.U.C.N.), “Caring for the World: A Strategy for
Sustainability” [unpublished] at 10 [hereinafter I.U.C.N.].
8E.g., the tendency to equate development with growth (I.U.C.N., ibid.).
91bid. Dr. John Robinson of the University of Waterloo heads up a team researching the Sustain-
able Society Project, with support from the Social Sciences and Humanities Research Council of
Canada. See J. Robinson, Defining a Sustainable Society: Valtes, Principles and Definitions Sins-
tainable Society (Working Paper No. 1) (Waterloo: University of Waterloo, Department of Envi-
ronment and Resource Studies, January, 1990).
1991)
SUSTAINABILITY
purposes, I see the notion of physical sustainability as involving the use of
resources at a rate that does not imply a reduction of real incomes in the futureI”
and that does not reduce the ecological diversity of natural systems or their
regenerative capacity.” Although the intrinsic value of the biosphere is
acknowledged, this approach does not imply that all existing ecosystems must
be maintained as is, nor that present social institutions continue unchanged,
because sustainability also has social aspects. Evolution is not precluded.
Indeed, sustainable “development” seems to admit this as well. It is assumed,
however, that sustainability of human society is not an end in itself, but a means
for the achievement of human goals chosen through democratic processes; a
thousand-year Reich may still be subject to criticism. Further, if the present gen-
eration left both natural and created capital unimpaired for future generations,
we could accept the legitimacy of its material consumption and avoid agonizing
over which “needs of the present” are merely “wants.” Given continued envi-
ronmental deterioration, however, it is highly unlikely that this issue can con-
tinue to be ignored in the approval process. Finally, the notion implies concern
for global sustainability, not just for that of one country: global ecological and
social systems are too interconnected for isolationism. The Brundtland Report’s
notion that sustainability requires equitable distribution should, therefore, be
retained, although what this entails will be contentious. One possibility might
be for the developed nations, which have virtually exhausted the environment’s
assimilative capacity, to compensate developing countries for refraining from
undertaking cheap and dirty industrial development.
The notion of sustainability resembles that of “carrying capacity,” but sig-
nificantly differs from it in some formulations. Carrying capacity for humanity
could be defined as the maximum sustainable population on a globe completely
transformed by technology into one huge human life-support system, on the
assumption that other species are valueless. In this discussion, however, carry-
ing capacity is constrained by the need to maintain the viability of the existing
range of natural environments, not as remnant museum pieces, but as vital parts
of the world in which all species live. It also assumes the need for a significant
reserve capacity in case of error or natural changes.
Given the considerable disagreement about both the physical extent and
social causes of our environmental problem, prescriptions differ radically. Will
it suffice to ensure that market prices reflect the true social costs of materials
and products? Or is the market itself the problem? Is industrialism, acquisitive
materialism or the maldistribution of power the enemy? Or is it simply the scale
10A. Markanda & D. Pearce, “Natural Environments and the Social Rate of Discount” (1988)
3 Project Appraisal 1.
“H.E. Daly & J.B. Cobb, jr., For the Common Good. Redirecting the Economy toward Com-
munity, the Environment, and a Sustainable Future (Boston: Beacon Press, 1989).
McGILL LAW JOURNAL
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of population and economic activity? Will it suffice if “business as usual” sim-
ply shifts to a long-term –
perspective in all decisions?
say, fifty year –
B. Working Hypotheses
Plausible arguments can be made in favour of each of the possibilities
listed above. But in order to set a context for our legal discussion, I shall list
some tentative working hypotheses. In the first hypothesis, short of thermo-
nuclear war, the survival of humanity or civilization is not yet at imminent risk.
Environmental collapse will probably not be complete and immediate. 2 Rather,
it will manifest itself more regionally, and gradually, through two types of
events. There will be enormous privation and casualties in the poorer countries,
beginning with agricultural failures and so-called natural disasters, which are
exacerbated by human stress on the environment. As well, toxic spills or indus-
trial accidents 3 will cause increasing environmental and social stress. Depletion
of non-renewable resources, including energy, will also hit the poor through
higher prices. However, this will not constitute the first physical limit. The main
limit appears to be overuse of the environment as a “sink”‘4 and for short-term,
unsustainable production in agriculture, fishing and forestry.
The second hypothesis is that business as usual is not possible. This is the
case even if we achieve significant improvements in resource-use efficiency and
stress economic growth in service or tertiary activity. We are all ultimately
dependent on living systems. Recent environmental indicators”5 show that sus-
tainable growth is an oxymoron, if not in principle, at least in the medium term.
The Brundtland Report seems unduly optimistic in assuming sustainable growth
rates of 4% per year, 6 which yield a doubling time of 18 years. Between
12Two important arguments to the contrary should, however, be noted. Some claim that the
greenhouse debate about global warming obscures the fact that two different global climatic
changes can be attributed to greenhouse gases: winters are longer and colder, while summers are
hotter. The two changes tend to cancel each other out in terms of average global temperature, but
both could combine to cause world-wide agricultural catastrophies in the next several years (see
L. Ephron, “We Are On the Edge of Starvation: the Importance of Forests to Civilization and Agri-
culture” (1990) 7:2 The Trumpeter 85).
The other misgiving is that by the time some damage, such as acid rain, is measurable, it can
be irreversible. This is another manifestation of step-function ecological changes, as opposed to
observable gradual decline, and it means that we could be in worse trouble than is assumed in this
article.
‘3E.g., the Exxon Valdez oil spill in Prince William Sound, the Three Mile Island and Chernobyl
nuclear accidents and the tire and P.C.B.-impregnated waste fires at Hagersville and
St.-Basile-le-Grand.
141n ecological terms, a “sink” is where wastes end up. The term is the converse of “source.”
15L.R. Brown, State of the World 1990: A Worldwatch Institute Report on Progress Toward a
Sustainable Society (New York: Norton and Co., 1990) [hereinafter Worldwatch Institute Report].
16Supra, note I at 51.
1991]
SUSTAINABILITY
increases in population and per capita material consumption, two more dou-
blings of demand could exceed the capacity of the world’s ecosystem. 7
In the third hypothesis, because physical resource limits absolutely pre-
clude people in the Third World from achieving North American standards of
a prerequisite for sustainable develop-
material affluence,” economic justice –
ment according to the Brundtland Report –
requires significant redistribution
of present world income to the developing countries. This must imply a signif-
icant reduction in the income and consumption of wealthy individuals, although
not necessarily in their quality of life. 9 If this is correct, sustainability is radical
indeed.
The above suppositions imply that profound changes in institutions and
decision-making processes will be required, at least in industrialized countries;
it is not only Eastern Europe that needs institutional reform. Accomplishing this
poses the greatest legal challenges. The apparent public demand for decentral-
ized institutions and participatory decision-making may necessitate a devolution
of some power. Nevertheless, strong common standards will be needed to
remove competitive advantages to jurisdictions that wish to attract industry with
lower environmental requirements.
The fourth hypothesis is that voluntary action is at least as important as
governmental decree. We have little hope of maintaining peace in a resource-
short or ecologically deteriorating world, or perhaps in our own country, unless
a social consensus develops around a set of propositions, such as those just
listed. One author writes:
There is no chance whatsoever of establishing the conserver society or making it
work until we have generated widespread public acceptance of conserver society
perspectives and values. 20
171n a much-cited paper, P.M. Vitousek et al. claim that “nearly 40% of potential terrestrial net
primary productivity is used directly, co-opted, or foregone because of human activities” (“Human
Appropriation of the Products of Photosynthesis” (1986) 36:6 BioScience 368). Because this
would, even in principle, preclude much more than one more doubling of our take, we may be
approaching the ultimate limit to growth far more quickly than other measures have indicated.
Another measure is the number of humans (3) per hectare of arable land. Assuming an average
growing season of 180 days, Bryson (cited in “Economic Integration,” supra, note 7 at 8) claims
a limit of about 5.5 persons per hectare.
‘t Daly & Cobb, supra, note 11 at 1-4.
19This is partly because a clean environment adds substantially to one’s perceived quality of life.
Without environmental amenities, one spends much more on surrogates, such as travel, ion gen-
erators and bottled water. In addition, many people have noted that the consumption of goods does
not ensure a person’s or society’s wellbeing. As noted by L.R. Brown, “materialism simply cannot
survive the transition to a sustainable world” (“Picturing a Sustainable Society” in supra, note 15
at 190).
20T. Trainer, Developed to Death: Rethinking Third World Development (London: Green Print,
1989) at 193.
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Many specific policies are implied by this kind of approach to sustainability,
even if it is difficult to visualize the type of society that will evolve. The myriad
policy details should be left to others,2 but it would not be misleading to focus
on shifting from non-renewable to renewable energy sources and rigorous con-
servation measures. Nor should we forget that just because an activity is sustain-
able, does not necessarily mean we have to undertake it; impact analyses may
show that activities, although sustainable, will have negative social effects and
should be rejected. Perhaps environmentalists will still have a useful role in a
sustainable society!’
II. The Role of Law
With this foundation to build on, we can now speculate on how law can
contribute to sustainability. But we must not exaggerate law’s potential either to
derive goals or, even with the necessary social consensus, to realize them.
Although law may have an “internal morality” centring on notions of procedural
fairness, its contribution to solving social problems usually awaits political
agreement on ethical, political and economic policy. Law is largely a goal-
implementing, not a goal-deriving set of techniques, even if one of its strengths
is the ability to provide structures for decisions on goals. Being embedded in the
status quo, law supports it. That is why some social, policy-oriented context was
needed before we investigate where legal tools can help.’ And it bears repeti-
tion that the law is only one of the many social mechanisms, including family,
school, church, peer groups, elites and the media, whose convergence is neces-
sary to shape conduct.
This article will discuss six areas where the law offers expertise:
21E.g., F.R. Thibodeau & R. Fields, eds, Sustaining Tomorrow (Hanover: University Press of
New England, 1984); P. Jacobs & D. Monroe, Conservation and Equity: Strategies for Sustainable
Development (Ottawa: Environment Canada, 1987); W.C. Clark & R.E. Munn, Sustainable Devel-
opment of the Biosphere (New Rochelle, N.Y.: Cambridge University Press, 1986); Daly & Cobb,
supra, note 11; L.W. Milbrath, Envisioning a Sustainable Society: Learning Our Way Out (New
York: State University of New York Press, 1989); D.W. Pearce, A. Markandya & E.B. Barbier,
Blueprint for a Green Economy (London: Earthscan Publications, 1989) [hereinafter Blueprint];
G.B. Doem, The Environmental Imperative Market Approaches to the Greening of Canada
(Toronto: C.D. Howe Institute, 1990) [hereinafter Imperative Market]; I.U.C.N., supra, note 7.
22See N. Evemden, “The Environmentalist’s Dilemma” (1988) 5:1 The Trumpeter 2.
231. Jenkins, Social Order and the Limits of Law (Princeton: Princeton University Press, 1980)
at ix:
All of the contents that law deals with and all of the ends that it serves have both their
original and their eventual loci in extralegal sources: they issue from and refer to
things, forces, situations, needs, and purposes that are independent of and prior to law
itself.
For a good overview of the topic of the present article, see N. Robinson, “A Legal Perspective
on Sustainable Development” in 0. Saunders, ed., The Legal Challenge of Sustainable Develop-
ment (Calgary: Canadian Institute of Resources Law, 1990).
1991]
SUSTAINABILITY
a) designing authoritative decision-making mechanisms (for example, through
the use of international, constitutional, municipal and administrative law);
b) providing framework-institutions for a society’s economic system (such as
contract, property, corporate and labour law, as well as dispute settlement
(dealt with in item f below));
c) proscribing action (for example, through the use of criminal sanctions);
d) giving legislative form to political attempts to influence behaviour in other
ways, often through the use of command-penalty or economic incentive
schemes;
e) modifying the legal rights of private citizens;
f) dispute settlement.
Law has other important functions, such as providing stability of expecta-
tions –
it allows people to plan ahead and undertake binding future commit-
ments – while providing a modest degree of flexibility to respond to new sit-
uations. Also crucial for sustainability is law’s role in helping to educate and
influence people about the boundaries of acceptable behaviour, “to domicile
change within the settled framework of … practices and purposes and so to make
the new seem both familiar and desirable.”‘ But the six categories listed above
help us to focus on possible legal reforms, always remembering that without
political will, the legal system is virtually helpless to deal with the environmen-
tal crisis that present institutions have allowed to arise.
A. Authoritative Decision-Making Mechanisms
What may formerly have been seen as national environmental issues are
increasingly understood to have international implications. Some environmental
problems, and hence solutions, are clearly global in extent, for example, acid
rain, the depletion of the ozone layer and the greenhouse effect. The Experts
Group on Environmental Law, convened to assist the World Commission on
Environment and Development, offered 22 Principles that it felt should be
implemented by the year 2000.’ These principles are characterized by the affir-
mation set out in the first principle:
[AIll human beings have the fundamental right to an environment adequate for
their health and well-being.26
The principles that follow suggest certain correlative obligations that states
should accept, not just in areas beyond their national jurisdiction, or in trans-
24Jenkins, ibid. at 123.
25Experts Group on Environmental Law of the World Commission on Environment and Devel-
opment (Chair: R. Munro), Environmental Protection and Sustainable Development (Boston: Gra-
ham and Trotman, 1987) [hereinafter Experts’ Report].
261bid. at 9.
McGILL LAW JOURNAL
[Vol. 36
boundary situations, but in their domestic domain as well.27 In his foreword to
the Experts’ Report, H.E. Judge N. Singh, President of the International Court
of Justice, suggests:
The crucial problem is to bring about … enforceable [international] law –
an
aspect calling for a great deal more than efforts solely directed towards the formu-
lation of new laws or rights without any method or machinery to enforce them.
Surely this aspect … should be given priority over any other consideration. 28
Thus, a procedure to create binding international arrangements will be needed
in matters of environmental urgency. Quite probably, because the rhetoric of
sustainable development requires that environment and economy be linked, the
new institutions or mandates will also cover significant areas of international
trade and aid. Matters of war and peace can also be seen as relevant in this con-
text because of the historical temptation to use force to gain access to
resources,29 the environmental impact of war and the sinful misallocation of des-
perately needed resources to the arms race.
International legal scholars and practitioners have their work cut out for
them. Are we merely to favour more rapid means for the adoption of specific
multilateral agreements, subject by subject (building on the experience of the
Montreal Protocol on Substances That Deplete the Ozone Laye20)? Or would
the development of more regional groupings with their own parliaments be pref-
erable, such as the European Economic Community? Do we need a new stand-
ing international environmental conference to create new standards or proce-
dures, subject to ratification, or should we confront the issue and constitute the
United Nations as a binding legislator?3 Perhaps all of these ideas should be
explored. Surely the notion of national sovereignty needs re-examination.32
As one aspect of this re-examination, binding dispute settlement should be
available at the request of any state. As well, perhaps at least formally consti-
27H.E. Judge N. Singh, “Foreward” in ibid. at xi.
2’Ibid. at xv.
29E.g., the Romans, the Vldngs, European imperialism, Hitler’s “lebensraum” policy and Sad-
dam Hussein’s recent invasion of Kuwait.
30(1987) 26 I.L.M. 1550 [entered into force Jan. 1, 1989]. The U.N. Environmental Programme
(U.N.E.P.) brought 24 governments and the European Community Commission together in Mon-
treal to consider the Protocol. It came into effect in 1989 after being ratified by countries repre-
senting two thirds of global use. The Protocol was negotiated quickly (as international agreements
go) and, according to Starke, “is significant for two steps governments agreed to take: protect the
environmental before all the evidence was in on how bad damage could or would be, and make
industry change its ways before alternative processes were known” (supra, note 4 at 17-18).
31M.J. Adler, The Common Sense of Politics (New York: Holt, Rinehart & Winston, 1971) at
176.32E.g., is the call by the former President of the World Court for enforceable international law
(supra, note 27), at the necessary pace of development, attainable without a significant derogation
from the traditional notion of sovereignty?
1991]
SUSTAINABELITY
tuted non-government organizations (N.G.O.s) –
should be able to invoke international principles where relevant. This could be
done either by allowing them to have standing to sue states in international
courts, or less drastically, through a convention ensuring the reciprocal recog-
nition and enforcement of these principles in domestic courts, regardless of the
defence of statutory authority.33
and even individuals –
Constitutional lawyers also have some interesting matters to consider. Eco-
logical sustainability implies much more rigorous management of resources and
the environment on the basis, not of present somewhat arbitrary political bound-
aries, but of bio-regions, such as drainage basins or ecosystems. How the pres-
ent Canadian federation can respond to this is puzzling. The legal authority for,
and status of, interjurisdictional agreements is not entirely clear, especially
where integrated multi-departmental initiatives would be required.34 Some
examples of interjurisdictional cooperation include British Columbia’s estuar-
ies,35 fisheries management and environmental impact assessment procedures,36
but significant federal-provincial friction has accompanied federal attempts to
intervene in environmental management.37
Because recent years have seen such dramatic constitutional developments
in Eastern and Western Europe, as well as in Canada,38 it may be time to ask
some basic questions about how to increase government responsiveness. There
are strong demands, which must be reconciled, for more local and democratic
control and at the same time for stronger international action. One possibility is
to move the power of setting strong standards to central authorities –
such as
the United Nations or the Canadian parliament – but to devolve management
and implementation to the regional and local levels.39 This might involve a
redistribution of constitutional powers within the present federation, or provide
additional arguments for a federation of regions that could allow Quebec the
constitutional space it appears to want. Perhaps too, the notion of proportional
representation should be examined for Canadian legislatures. It is interesting to
33See A. Rosencranz, “The Uniform Transboundary Pollution Reciprocal Access Act” (1985) 15
Env. Pol. L. 105.
Alta. L. Rev. 205.
34The Canadian Institute of Resources Law is presently doing research on this topic.
35p.S. Elder, “Estuary Protection in British Columbia” (1989) 4 Int. J. Est. & Coastal L. 117.
36p.S. Elder, “Environmental Impact Assessment in Canada: the Slave River Project” (1986) 24
37A.R. Lucas, “The New Environmental Law” in R.L. Watts & D.M. Brown, eds, Canada: the
State of the Federation, 1989 (Kingston: Queen’s University, Institute of Intergovernmental Rela-
tions, 1989) 167 at 182.
38The Canadian developments are the entrenchment of the Canadian Charter of Rights and
Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.),
1982, c. 11 [hereinafter Charter], the failed Meech Lake proposals, as well as the ongoing search
for a constitutional formula to hold the country together.
39This technique is used in the U.S.: see M.S. McMahon, “Balancing the Interests: an Essay on
the Canadian-American Acid Rain Debate” in Carroll, supra, note 4 at 147.
REVUE DE DROIT DE McGILL
(Vol. 36
speculate whether this technique would have resulted in a stronger voice for
environmental values by putting Green Party members in our legislatures over
the past decade. In any event, when strong value-conflicts exist, it seems unde-
mocratic for the present “first past the post” electoral system to exclude signif-
icant minority viewpoints from being represented in Parliament. Political scien-
tists and constitutional lawyers may also wish to consider mechanisms for
greater direct democracy. The level of detail and kinds of questions suitable for
plebiscites or direct references would require careful thought. Open, participa-
tory policy reviews could be regularly required in major policy fields.
Another possible constitutional amendment is an environmental “Bill of
Rights.” In assessing this option, Canada can look to its experience with the
Charter. An article by Elder and Ross4″ has recently concluded that private law-
suits can be useful, but not as a central strategy. Although the article did not
comprehensively examine the advantages of constitutionalizing such a bill of
rights, it did recommend an administrative law approach. In other words, the
authors saw a role for courts in reviewing governmental actions, not in granting
direct and specific remedies to protect a general right to a clean or healthy envi-
ronment. Under this scheme, the prime duty would be placed upon all govem-
ment decision-makers, and not just those involved in environmental impact
assessment and project approval, to apply legislated criteria designed to foster
sustainability. For example, this criteria would provide that government policies
could not, in the aggregate, deplete the jurisdiction’s natural capital. Discon-
tented citizens would be entitled to reasoned explanation from decision-makers
as to how and whether proposals contributed to sustainability. If the response
seemed unsatisfactory, recourse could be had to the courts. However, more
work, including elaboration of possible criteria 1 and a critical examination of
the recent experience of American states, is needed before proposing an
entrenched environmental bill of rights.42 It would also be important to think
more carefully about whether any non-human beings should be included within
the community of rights-holders.43
in Saunders, ed., supra, note 23, 124.
40P.S. Elder & W.A. Ross, “How to Ensure that Developments are Environmentally Sustainable”
41Ibid. at 131 & 135. Constance D. Hunt, Dean of the Faculty of Law, University of Calgary,
believes that provisions in the Canadian Environmental Protection Act, R.S.C. 1985, 4th Supp.,
c. 16 [hereinafter C.E.P.A.] similar to those just described, and other sections that expand oppor-
tunities for public involvement in enforcement of environmental standards, constitute a significant
step toward an environmental bill of rights (C.D. Hunt, “Legal Issues Arising From the Principle
of Sustainable Development” (Address to the International Bar Association Section on Business
Law and General Practice, Strasbourg, October 1989) [unpublished] at 8.
42Several American states have created such a right: see J. Swaigen & R.E. Woods, “A Substan-
tive Right to Environmental Quality” in J. Swaigen, ed., EnvironmentalRights in Canada (Toronto:
Butterworths, 1981) 195 at 213.
43See C.P. Stone, “Should Trees Have Standing? – Toward Legal Rights for Natural Objects”
(1972) 45 S. Cal. L. Rev. 450. But see P.S. Elder, “Legal Rights for Nature: the Wrong Answer
to the Right(s) Question” (1984) 22 Osgoode Hall L.J. 285.
1991]
SUSTAINABILITY
Municipal lawyers could no doubt generate many new ways to empower,
or even require, municipal governments to maximize sustainability in their
sphere. For the most part, the changes could be implemented through amend-
ments to existing planning or municipal government acts, although any separate
legislation regarding municipally-owned energy distribution networks would
also be a useful place to begin. Provinces might intensify efforts to provide a
policy framework for land-use decisions to ensure maximum preservation of
good agricultural land, consideration of energy and environmental aspects of
plans and development approvals. For example, useful goals include subdivi-
sion layout and other techniques to maximize solar gain, energy conservation
and increase the efficiency of public transport. At the same time, sustainability
probably implies minimization of the need for private automobiles. Perhaps we
should re-introduce denser, mixed-use, commercial-residential areas. Much
more vigorous and sophisticated measures are also needed to reduce solid-waste
production and the amounts needing final disposal, although not all of this bur-
den belongs at the municipal level. However, in all efforts by senior govern-
ments to encourage or direct municipal reform, care should be taken to preserve
the chance for municipal innovation and autonomy.
Environmental impact assessment (E.I.A.), as part of planning and
approval processes at all levels of government, also deserves careful examina-
tion. Its flaws are well-known. For example, the scope of the process often
applies only to projects, not policies, programs, new products or new technol-
ogies; it only applies to new activities, not existing ones; its science may be poor
or inadequate; there exists a lack of opportunities for public involvement; there
are weak links between the E.I.A. process and the decision taken about the pro-
posal; and there is inadequate post-project analysis.’ Better social control of all
proposed actions with significant environmental impacts is crucial. But this
does not necessarily imply that we can adequately control impacts. Perhaps we
“should not desperately seek prediction and control, but rather should settle …
on the acceptance of, and adaptation to, surprise effects,”’45 including the closing
down of activities that are imposing unsustainable environmental burdens. If
sustainability assessments are to be melded into this process, an operational def-
inition of sustainability would be needed and any project that might provide
unacceptable surprises would have to be rejected, in spite of its economic ben-
efits; it is sustainability that makes our long-term economic well-being possible.
44Elder & Ross, supra, note 40 at 128-29. It should be noted that some environmentalists distrust
the very idea of E.I.A.: Livingston goes so far as to call it “a grandiloquent fraud” (J.A. Livingston,
The Fallacy of Wildlife Conservation (Toronto: McClelland & Stewart, 1981) at 33). He claims it
is part of a whole world view of instrumental rationality that sees the environment merely in terms
of resource values. The alternatives of rejecting all development or of allowing it without study,
however, appear even less desirable.
45F. di Castri, “Commentary” in Clark & Munn, supra, note 21, 318.
McGILL LAW JOURNAL
[Vol. 36
Further, perhaps governments could develop accounting techniques to
monitor the cumulative environmental impact of all existing economic activity.
It may be asked how any project using non-renewable resources could ever
meet sustainability criteria. One partial answer is to require proponents to dem-
onstrate the ability to recover, re-use or recycle the materials involved, although
inevitably exploitation of virgin resources would continue.
Energy is a more intractable problem. One possibility is for non-renewable
energy sources to be dedicated to “bridging the gap” until a sustainable energy
future is achieved. This could be done by banning certain end-uses and by
taxing others. Another approach is suggested by El Serafy.46 He would divide
receipts from a non-renewable resource project into capital and income compo-
nents. Enough capital must be invested in a sustainable substitute such that at
the end of the non-renewable project’s economic life, the renewable twin project
can yield as much income as the “income” portion of the non-renewable project.
Finally, the Brundtland Report challenges us to develop new institutions to
ensure that environmental and sustainability considerations are as central to all
decisions as economics.47 Various ideas need to be explored. Each agency or
department could have an environmental section, possibly composed of officials
seconded from Environment Canada (similar to the way the federal Justice
Department has legal units in all federal government departments and agen-
cies).48 A central unit may be an answer, one located in the cabinet secretariat
with access to priorities and planning committees of Cabinet, or possibly in
Treasury Board. It is believed that the unit would need veto power over non-
sustainable proposals.49 The New Zealand success with an environmental
ombudsman also could be assessed. Another possibility would be for the Prime
Minister to assume the Environmental portfolio, perhaps with a junior minister
to assist in the detailed direction of the officials.
B. Providing Framework-Institutions for the Economic System
Our economic system is obviously at the heart of the environmental crisis.
I do not know whether the market is as potent a means of bringing about
socially desirable goals like sustainability as mainstream economists believe,”0
46As described in Daly & Cobb, supra, note 11 at 73-74.
47E.g., supra, note 1 at 311-12. The “chief institutional challenge of the 1990s” is to ensure that
ecological and economic factors are considered at the same time and in the same institutions (supra
at 313).
48These “environment” officials would have mixed loyalties in serving both Environment Can-
ada, as well as the client department.
49See I.U.C.N., supra, note 7 at 40-41.
50See, e.g., Blueprint, supra, note 21; Imperative Market, supra, note 21.
1991]
SUSTAINABILITY
but even its critics such as Brooks and Paehlke or Daly and Cobb prescribe sig-
nificant doses.”
No one is naive enough to believe that free markets alone will bring the
necessary transformation. The difficulties of creating markets in all relevant
uses of the environment are formidable, but governments can give powerful
market-like signals through various regulations, taxes and fees. For our pur-
poses, we may accept that a mixed economy, using markets, but with greater
democratic and social control of the means of production, will be necessary for
the transformation. The social challenge is to blend planning, democracy and
the market place. 2
Economists argue that if the full social costs of resource exploitation and
of effluent emissions were incorporated into prices, the desired level of environ-
mental quality might be achieved. Setting the right prices may present greater
empirical than legal challenges, given the long delays possible between human
action and environmental reaction, as well as the global and complex nature of
issues such as climate change. For example, what is the social cost of CO2 emis-
sions from particular sources? Nevertheless, constitutional, commercial and
public-utility regulatory lawyers will be involved in decisions on pricing or on
creating markets for very limited rights to pollute.
Our economy’s framework-institutions need examination in this context.
Property rights have been significantly limited by planning legislation, but we
must ask ourselves whether uses that do not currently require development-
approval need to be limited further by a stewardship principle; various efforts
are being made to establish “land stewardship trusts,”53 although the present
51D.B. Brooks & R. Paehlke, “Environmental Issues and Democratic Socialism in Canada or
Seeing Green Through Pink-Tinted Glasses” in P. Findley & S. Rosenblum, eds, Debating the
Future of Socialism in Canada (Toronto: Lorrimer [forthcoming]); Daly & Cobb, supra, note 11.
But perhaps a reminder from Adam Smith is timely. According to Daly & Cobb, he believed that
“the market is a system so dangerous that it presupposes the moral force of shared community val-
ues as its necessary restraining context” (supra at 140). The reference is to Smith’s Theory of
Moral Sentiments (1759). Professor David Pearce, former economic advisor to the Thatcher
government’s Environment Department in the United Kingdom, believes that “[u]nfettered free
markets will not solve environmental problems. They will make them worse” (D. Pearce, “Sustain-
able Development and Environmental Impact Appraisal” (Address to the Tenth International Sem-
inar on Environmental Impact Assessment and Management, Centre for Environmental Manage-
ment and Planning, University of Aberdeen, 9-22 July 1989) [unpublished] at 7).
520ntario Premier Bob Rae, “A Socialist’s Manifesto” The [Toronto] Globe & Mail (1 October
53Usually they involve setting up non-profit societies that acquire and manage the land according
to conservancy and stewardship principles in a trust agreement. Also, various kinds of easements
may be acquired. See B. Didcoct, “Land Trusts and True Wealth: An Introduction” (1990) 7:1 The
Trumpeter 3; J.T. Banighen, “Intentional Communities & Land Stewardship Trusts” (1990) 7:1 The
Trumpeter 4; R. Harvey & E. Lee, “Forming a Land Trust” (1990) 7:1 The Trumpeter 7; Drengson,
1990) A13.
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[Vol. 36
strategy depends on voluntarism and seems limited to saving remnants. Further,
can the old doctrine of waste be reinvigorated? Because the impact of land use
is so central to sustainability, perhaps we should consider converting present fee
simple estates to 99-year leases from the Crown,’ or nationalizing development
rights. The English experience since the Second World War with nationalizing
development rights may not seem too positive, but there was little social con-
sensus and the frequent changes of government resulted in great policy confu-
sion. Such ideas would also arouse fierce debate in Canada today.
Intuitively, there seems little reason to believe that non-renewable
resources will be exploited at the socially optimal rate by private calculations
of advantage and that the terms of tenure for these resources need to be
re-examined. It is arguable that the best way to ensure at least the sustainability
of renewable resources such as forests is to convert them to private ownership
so that the long-term success of owners depend on their own management prac-
tices. 5 But serious soil degradation in Canada56 has not been avoided by having
farms in private ownership. Another obvious problem to environmentalists is
that forests are not just tree farms for private profit, but complex ecosystems
with other socially vital functions, such as water retention and habitat for many
species. Some of the flora and fauna are dependent on an ecosystem that may
take longer to develop than the optimal cutting cycle allows. Similar issues
could arise with other renewable resources, such as fisheries and agriculture.
Property lawyers could examine ways whereby new “property” rights to
environmental quality and sustainability could be created in everyone. The
supra, note 6; and J.T. Banighen, “Citizen Involvement in Forest Stewardship: Using the Land
Stewardship Trust Model” (1990) 7:2 The Trumpeter 80.
The discussion draft of proposed environmental legislation in Alberta contemplates interests in
land being purchased by the government that would limit the uses to which private land could be
put (Alberta Environment, A Guide to the Proposed Alberta Environmental Protection and
Enhancement legislation: for Public Discussion and Response (Edmonton: Alberta Environment,
1990) s. 34).
54If ownership of the ground remained in the Crown, long-range control would allow govern-
ment to react to unexpected economic and physical changes and ensure future maximization of
benefits and minimization of costs when leases come up for renewal.
55G. Hardin, “The Tragedy of the Commons” (1968) 162 Science 1243. As well as being a com-
mon property problem, it may be in one’s self-interest to devastate a resource if by investing the
proceeds one can earn more than by husbanding the resource.
56Report of the Standing Committee on Agriculture, Fisheries, and Forestry to the Senate of
Canada: Soil at Risk (Ottawa: Senate of Canada, 1984) (Chair: Hon. H.D. Sparrow).
57These claims were made by people opposed to pulp and timber projects planned in Alberta,
where a certain kind of lichen eaten by woodland caribou needed forests more than a century old,
considerably longer than the planned cutting cycles. Cavity nesters face the same problem (E.A.
Bailey, “Good Forest Management: for the Future” (1989) 12 Env. Views (Alberta Environment)
11 at 13).
1991]
SUSTAINABILITY
“public trust” doctrine might also be re-examined. 5Finally on property law,
what if the native peoples of Canada succeed in their contention that they have
aboriginal title to all land not conquered by force of arms or ceded by treaty?
Ownership of most of the country would return to them. If claims about their
reverence for the land and their stewardship approach are true, and if these atti-
tudes have genuinely survived the onslaught of technological European culture,
sustainability would be considerably enhanced by this change in ownership!
Corporate law has already seen increased legal responsibility imposed on
directors and officers for environmental harm.59 Empirical research has con-
firmed an intuitive belief in the efficacy of such an approach.’ If the scale of
corporate enterprises is part of our problem, corporate lawyers could examine
ways whereby corporate concentration and oligopolistic power might be
reduced. Past “trust-busting” in Canada has not been notably successful, but the
perpetual succession of corporations could be re-examined. Some people favour
limiting a corporation’s life to a term-certain, such as 40 years, after which full
distribution of corporate assets would occur.6′ Indeed, commentators such as
Stillman believe that the break between ownership and control in modem
widely-held corporations undernines the original justification for private own-
ership of the means of production,62 as well as of ecologically important ecosys-
tems. Modem managers feel strong pressure to show short-term “bottom line”
results and this is inconsistent with sustainability.
C. Proscribing Behaviour
There is substantial agreement that classical criminal law has an important
but limited role to play in environmental law.63 It is too blunt an instrument to
151.
58See, e.g., C.D. Hunt, “The Public Trust Doctrine in Canada” in Swaigen, ed., supra, note 42,
59See, e.g., Ontario’s Environment Enforcement Statute Law Amendment Act, S.O. 1986, c. 68,
amending the Environmental Protection Act, R.S.O. 1980, c. 141, s. 146(a) [hereinafter E.P.A.]; the
Ontario Water Resources Act, R.S.O. 1980, c. 361, s. 75; and the Pesticides Act, R.S.O. 1980, c.
376, s. 34g.
shareholder to decide what share of her profit is to be distributed each year.
6Dianne Saxe’s empirical research shows that the threat of personal prosecution of corporate
directors or executives would have significant deterrent effect upon their conduct (D. Saxe, “The
Impact of Prosecutions of Corporations and Their Officers and Directors upon Regulatory Com-
pliance by Corporation” (1990) 1 J. Env. L. & Practice 91).
61Conversation between I. Spry and the author (1984). A milder alternative is to allow each
62P.G. Stillman, “Property Rights, Ecological Limits and the Steady State Society” in D.C. Pira-
63Law Reform Commission of Canada, Crimes Against the Environment (Working Paper 44)
(Ottawa: Law Reform Commission of Canada, 1985); Law Reform Commission of Canada, Pol-
lution Control in Canada: the Regulatory Approach in the 1980s (Study Paper) by K. Webb
(Ottawa: Law Reform Commission of Canada, 1988); K. Webb, “On the Periphery: The Limited
ges, ed., The Sustainable Society (New York: Preager Publishers, 1977) 220.
McGILL LAW JOURNAL
[Vol. 36
use when most environmental harm is related to process pollution that accom-
panies socially desired production of goods and services. Further, even spills,
not to mention exceeding of emission limits, may occur without moral culpabil-
ity, as the due diligence defence in strict liability regulatory offenses64 recog-
nizes. Where the criminal law is needed is for deliberate breaches of the law or
actions that recklessly disregard the risk of environmental harm. It may be
acceptable to impose absolute civil liability for clean-up costs, but there is con-
siderable resistance to doing so in criminal cases, not least by the Supreme
Court of Canada.65
It is possible that governments will someday decide to prohibit any mea-
surable emission of toxic substances. While such a strict “virtual zero” rule may
seem desirable to environmentalists, some grandfather provision will no doubt
have to accompany it. Many examples of newly discovered toxins in already
approved effluent (for example, mercury and more recently dioxins from pulp
mills) show once again that the “quick fix” of absolute prohibition is tenuous.
Yet the idea of individually proscribing dangerous chemicals may not prove fea-
sible either. Experience from administering the toxic substances provisions of
the Canadian Environmental Protection Act66 will, one hopes, show more prog-
ress than achieved under its predecessor Environmental Contaminants Act.67 It
will also be instructive to see if successful prosecutions under C.E.PA.’s new
criminal offences6″ contribute to better environmental quality and hence to sus-
Role for Criminal Offences in Environmental Protection” in Tingley, ed, supra, note 3, 58 [here-
inafter “On the Periphery”]. But see, supra, notes 58-59 and accompanying text.
64Classical criminal law offences require proof of subjective mens rea, whereas for regulatory
or public welfare offences, only the actus reus must be proven, subject to a possible defence of
due diligence if liability is strict and not absolute (R. v. City of Sault Ste. Marie, [1978] 2 S.C.R.
1299, 3 C.R. (3d) 30. See also discussion in D. Stuart, Canadian Criminal Law: A Treatise, 2d ed.
(Toronto: Carswell, 1987) at 157-80).
65Reference Re: s. 94(2) of the Motor Vehicles Act, [1985] 2 S.C.R. 486,48 C.R. (3d) 289, where
the Court found a constitutional imperative that if there is a risk of imprisonment, a defence of due
diligence must be available.
66Supra, note 41, Part II.
67S.C. 1974-75-76, c. 72. See R.D. Lindgren, “Toxic Substances in Canada: The Regulatory
6
Role of the Federal Government” in Tingley, ed., supra, note 3, 37.
8See, in particular, C.E.P.A., s. 115(1):
Every person, who in contravention of this Act,
(a) intentionally or recklessly causes a disaster that results in a loss of the use of the
environment, or
(b) shows wanton or reckless disregard for the lives or safety of other persons and
thereby causes a risk of death or harm to another person, is guilty of an offence and
liable on conviction or indictment to a fine or to imprisonment for a term not exceeding
five years, or to both.
A.R. Lucas points out that the C.E.PA. offence provisions are best seen as regulatory and not
criminal (“Jurisdictional Disputes: Is ‘Equivalency’ a Workable Solution?” in Tingley, ed., supra,
note 3, 30).
1991]
SUSTAINABILITY
tainability. Perhaps more experience will lead to a re-opening of the debate
about the role of criminal law.
The trend toward heavier penalties summarized by Webb69 may also
encourage fuller compliance, although he also notes possible Charter difficul-
ties for regulatory offenses. 0
D. Regulatory and Economic Ways to Influence Behaviour
Eloquent criticism of the command-penalty approach of using quasi-
criminal regulatory offences to back up licensing requirements has been made
by scholars, such as Barton and Thompson.7′ Using the criminal law, they argue,
is neither certain, fair nor rational and, economists add, not efficient either.
Compliance is negotiated privately, in spite of quasi-criminal sanctions that are
used largely as threats. This school of thought (which has been subject to some
learned criticism72) recommends the open use of negotiation and financial pen-
alties instead of punishment and public opprobrium. However, the main objec-
tive is clear: emissions must be minimized and as cheaply as possible.
If the command-penalty model is to continue, it may be desirable to create
standards that evolve with knowledge and do not depend on frequent legislative
amendment to remain current. Specifically, jurisdictions determined to imple-
ment sustainability should consider whether a “Best Available Technology”
requirement should be built into basic laws. This may seem to raise the spectre
of economic inefficiency and to ignore the legitimate use of the assimilative
capacity of the air and water, but economic “achievability” could be built into
the test. Environmentalists would, in any case, be eager to remind us that using
air and water as a dump, even for biodegradable effluent, can have significant
negative effects and can exclude various other uses.
Finally, tax experts will be able to suggest how the tax system could play
a major role in encouraging sustainability.73 For example, increases in taxes
could be more acceptable if the revenue were seen to be dedicated to specific
environmental programs. And, because an enormous amount of effort is spent
nonproductively in foreign exchange machinations (the world’s daily volume of
foreign exchange transactions is 100 times greater than Canada’s annual Gross
Rough Road Ahead” (1989) 21 Ottawa L. Rev. 419.
69″On the Periphery,” supra, note 63 at 61.
70Jbid. at 62. See also K.R. Webb, “Regulatory Offences, the Mental Element and the Charter:
71B.J. Barton, R.T. Franson & A.R. Thompson, A Contract Model for Pollution Control (Van-
72See, e.g., M. Rankin & P. Finkle, “The Enforcement of Environmental Law: Taking the Envi-
ronment Seriously” (1983) 17 U.B.C. L. Rev. 35. As well, Saxe’s research shows that the possi-
bility of prosecution has a significant effect upon corporate officers (supra, note 60).
couver: Westwater Research Centre, University of British Columbia, 1984).
73See, e.g., J.A. Cassels, “Structuring the Tax System for Sustainable Development” in Saunders,
ed., supra, note 23, 141.
REVUE DE DROIT DE McGILL
[Vol. 36
Domestic Product74), perhaps financial experts can consider how to achieve a
single world currency. They might also reflect on whether, in our parliamentary
system, legal techniques could be developed to restrain the universal tendency
of governments
to run perpetual deficits, which are the epitome of
non-sustainability.
E. Modifying the Legal Rights of Citizens
The environmental “Bill of Rights” has already been mentioned, but other
frequently proposed additions to the citizen’s legal armoury include increased
access to decision-making bodies through liberalized rules of standing, the right
to bring environmental class actions and improved access to information and to
the financial resources needed to pursue an interest through lengthy proceed-
ings.75 There are signs in various quarters that these reforms are on the way,76
as well as the creation of additional statutory causes of action,77 protection for
“whistle-blowers” ‘ and increased use of strict liability.79 Another possibility is
to allow public interest groups to engage in lobbying or other political activity
without losing their charitable or philanthropic status which allows donors an
income tax credit for monies donated. Or, if public nuisance suits will serve any
purpose when we have an environmental bill of rights, private citizens could be
permitted to sue if the attorney general will not. And, if litigation is deemed by
the court to have raised important public interest issues, unsuccessful plaintiffs
could be excused from the payment of costs. It may be expected that inventive
lawyers will expand this list of ideas.
F. Adjudicating Disputes
The rules for adjudicating disputes could stand reappraisal. Questions of
onus of proof and decision-making in the face of scientific uncertainty are very
74M.J. Frankman, “A Vision of the New Order” (1990) 7:3 The Trumpeter 127.
75See A.J. Roman, “Locus Standi: A Cure in Search of a Disease?” in Swaigen, ed., supra, note
42, 11; S. Chester, “Class Actions to Protect the Environment: A Real Weapon or Another
Lawyer’s Word Game” in Swaigen, ed., supra, note 42, 60; and M. Rankin, “Information and the
Environment: The Struggle for Access” in Swaigen, ed., supra, note 42, 285.
76E.g., for standing, see Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607, [1987]
1 W.W.R. 603; for class actions, see Bill 28, Class Proceedings Act, 1990, 1st Sess., 35th Leg. Ont.,
1990 (first reading on December 17, 1990), introduced by the Liberal Attorney General in June,
shortly before the General Election; for access to resources, see parallel provisions in Alberta’s
Energy Resources Conservation Act, R.S.A. 1980, c. E-1 1, s. 36(1) and Bill 52, Natural Resources
Conservation Board Act, 2d Sess., 22d Leg. Alta., 1990 (second reading), s. 10. So far as I am
aware, adequate access to information has not yet been achieved in any jurisdiction in Canada.
77For example, Ontario’s E.P.A., s. 87, and C.E.P.A., s. 136.
78E.PA., s. 134(b).
79D. Tingley, “Responding to the Challenge: An Overview of Significant Trends in Government
Regulation” in Tingley, ed., supra, note 3, 20.
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SUSTAINABILITY
important. In traditional quia timet actions, where the plaintiff is suing to pre-
vent apprehended harm, the burden of proof has been heavy: either a high prob-
ability of irreparable damage or virtual certainty of the unlawful harm, as for
example in a nuisance action. If the common law has not been able to deal more
successfully with scientific uncertainty than in the famous case of Palmer v.
Nova Scotia Forest Industries,s0 then statutory reform is needed. In Palmer,
after an exhaustive canvassing of volumes of scientific evidence, the court
rejected a quia timet application for an injunction against aerial herbicide spray-
ing of a Nova Scotia forest. Nunn J. did however hold that the action had been
suitably framed as a representative one.”‘ We may wish to have a rule such as
that in the American case of Reserve Mining Co. v. Environmental Protection
Agency, 2 where, although the probability of harm was not proven on a balance
of probabilities, a reasonable medical concern for public health was held to jus-
tify requiring precautionary abatement measures.
At least in civil cases, lawyers and scientists talk a different language about
probability: lawyers operate on a balance of probabilities, scientists require a
95% confidence level. Lawyers want simple yes or no answers, scientists insist
on carefully qualifying their responses. A great deal of work is needed to
develop an appropriate legal response to scientific uncertainty, risk analysis,
epidemiological and other statistical inference. New rules about shifting the bur-
den of proof in such areas could be considered.
Conclusion
Much more could be written about the potential contribution of various
legal specialties to sustainability. Trade law, including the Free Trade Agree-
ment with the United States, the practices of Canadian agencies, such as the
Canadian International Development Agency (C.I.D.A.), occupational health,
labour law, general education and many other fields have been ignored. So has
the question of revamping the education of lawyers and judges, or the role of
the common law or statute law, for example, in expanding the ambit of strict or
statutory liability in the environmental field. But what was intended was more
modest. The objective of this article has been to remind lawyers of the breadth
and complexity of issues concerning the environment and sustainability, to sug-
gest that the main tasks facing would-be sustainers are more in policy than law 3
80(1984), 2 D.L.R. (4th) 397, 60 N.S.R. (2d) 271 (N.S. S.C.T.D.) [hereinafter Palmer]. See also
E.L. Hughes, “Government Response to Environmental Issues: Institutional Inadequacies and
Capacity for Change” (1990) 1 J. Env. L. & Practice 51 at 57-59. For some American views on
this subject, see, for example, the articles in (1986) 2 Nat. Res. & Env. at 3-38 & 51-68.
8 1It may also be recalled that several of the plaintiffs could have gone bankrupt if the defendant
had insisted on collecting the awarded costs.
82514 F. 2d 492 (8th Cir. 1975).
83The reformist nature of most of the suggestions implicitly underlines this point.
852
McGILL LAW JOURNAL
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and to encourage legal specialists to consider what their own fields could con-
tribute. Knowledge from many fields needs to be integrated into coherent polit-
ical, economic and social programs.
Major, perhaps radical, change lies ahead, whether we seek it self-
consciously or whether it is forced upon us in a messier fashion. Achieving a
sustainable, convivial, democratic and just Canada is our task, because postmo-
dern society will not be sustainable simply because ecosystems are. Green shop-
ping is relatively easy, social control of the industrial complex and voluntary
reduction of income are far more difficult. Past conflicts over distribution have
been simpler because the growing economy improved the lot of the poor with-
out sacrifice by the rich. But when the pie is no longer growing, only significant
redistribution will work. Individual and social transformation will both be
needed. Today, I would not bet on the outcome.
