Looking at the future of environmental law to start the year

In a very engaging article published in the first volume of the Lakehead Law Journal, Jason MacLean, Meinhard Doelle and Chris Tollefson, three experts in Canadian environmental law, discuss « The Past, Present and Future of Canadian Environmental Law » (2015-2016) Lakehead Law Journal Vol.1 p.1.

The article is well worth a read for both its focus on five crucial questions in environmental law as well as its intriguing discursive format.

One of the main questions discussed by the authors is « what’s next in canadian environmental law scholarship? ». Some of the comments that stand out on this issue are as follows.

Professor MacLean identifies the motive for the involvement of many students, practitioners and researchers in environmental law: « some environment scholars argue against advocating in favour of particular policies, while others view policy advocacy as a natural extension of, and moral obligation flowing from, their research. What role—if any—would environmental activism play in your research agenda for Canadian environmental law? »

I believe this tension between the two positions might be impossible to assuage. Environmental law initially developed as a procedural area of law relying mostly on the general framework of administrative law. Substance and form are intertwined.

For Professor Tollefson there is a need for more hands-on and practical environmental law scholarship:

There remains a dearth of black-letter environmental law scholarship that analyzes and critiques how courts and tribunals grapple both with substantive environmental law concepts (cumulative effects, the precautionary principle, and so forth) as well as due process concerns (standing, reasons for decision, disclosure, etc.). This kind of scholarship lends enormous assistance to the practising bar, and hopefully will translate into opportunities for the next generation of environmental law scholars to get their hands dirty by advising clients, and developing and litigating cases. There are also untapped opportunities for environmental law scholars to become more involved in policy development and in the adjudication of environmental cases. This cross-fertilization between the worlds of academe and legal practice is sorely needed. One tangible way that this is happening already is through the work of environmental law clinics like those at the UVic ELC, the University of Ottawa, and more recently the University of Calgary.

This is clearly a central issue in environmental law, because the evolution of environmental law remains largely dependent on litigation and plaintiffs generally have little means and face disproportionate resources in defence. Could the UofMtl Law Faculty open an environmental law clinic?

Finally, Professor Doelle highlights two principal needs that are simultaneously very ambitious and absolutely essential:

First, environmental law research needs to develop more clear goals for environmental law, and to achieve this, it has to rethink or at least significantly refine the meaning of sustainable development. (…)Second, environmental law research needs to find effective ways to engage a broad range of state and non-state actors in decision-making

Ce contenu a été mis à jour le 4 janvier 2016 à 15 h 52 min.

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