Legal Submissions in 140

By: Omar Ha-Redeye · December 14, 2011 · Filed Under Aboriginal Law, Environmental Law · Comment 

I’ve been invited to participate in the first moot to be held entirely on Twitter.  The Twitter Moot will cover environmental law and First Nations rights, and is already attracting international attention.  I’ve written a little more about this on Slaw.

The student competitors this year are:

  • Team Dalhousie: Michele Charles and Kristen Balcom from the University of Dalhousie in Halifax, Nova Scotia.
  • Team Osgoode: Nikki Peterson and Emelia Baack from York University, in Toronto, Ontario;
  • Team Ottawa: Yana Banzen and Kowlasar Misir from Ottawa, Ontario;
  • Team UBC: Meghan Trepanier and Matthew Kalkman from Vancouver, British Columbia;
  • Team UVic: Matthew Nefstead and Julie DeWolf from Victoria, British Columbia;

Press release by WCEL below.

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Trigger-Happy Plaintiff Feels the Blowback for Initiating Legal Action

By: Contributor · October 21, 2011 · Filed Under Environmental Law, Legal Reform · Comment 

A recent decision by the Supreme Court of British Columbia in relation to a costs application provides a cautionary tale for eager plaintiffs that hope to use the courtroom to wage their own private war on citizens exercising their right to free speech. In Scory v. Krannitz, 2011 BCSC 1344 , Bruce J. awarded special costs and double costs against a trigger-happy plaintiff that sued an environmental society and some of its members individually for merely speaking out against his application for a permit, even though his application had not yet been denied by the relevant municipality.

Although Bruce J. was hesitant to characterize the plaintiff’s actions as a SLAPP, her decision reflects the courts’ capacity to appropriately address meritless litigation that abuses the court system and harasses citizens exercising their lawful right to free speech. After acknowledging that free speech is essential to democracy, Bruce J. stated that special costs can be used as a “deterrent to litigants whose purpose is to interfere with the democratic process.” In comparison, the courts have traditionally been reluctant to use the existing tools at their disposal (e.g. the Rules of Civil Procedure) to deal with plaintiffs that commence SLAPP actions on the basis that such an application of those tools would be unprecedented or outside the purpose that the legislature intended for them. Given the provincial legislatures’ slow pace in developing anti-SLAPP legislation, it is necessary for judges to use the tools at their disposal to compensate the legislative vacuum. Read more

Renewing the Debate on Anti-SLAPP Legislation in Ontario

By: Contributor · October 6, 2011 · Filed Under Civil Procedure, Environmental Law, Torts · 1 Comment 

October 28th of this month will mark the one year anniversary of the publication of the Anti-SLAPP Panel’s Report to the Attorney General on anti-SLAPP legislation. Since then, the chatter on the issue of strategic litigation against public participation (SLAPP) appears to have died down. With the intent of renewing the debate on this issue, the following article, although long overdue, will summarize and discuss the Advisory Panel’s report.  It is hoped that the new provincial government will address the issue of SLAPPs during its four year term.

Introduction

In June 2010 the Attorney General of Ontario created the Advisory Panel to advise him on potential anti-SLAPP legislation. Arguably, this move was in response to what has been described as the “most down-and-dirty development fight in Ontario’s recent memory”.[1] After gaining approval from the Ontario Municipal Board (OMB) to build a resort and marina on the shores of Big Bay Point, a developer made a costs application for $3.2 million against a community group and its lawyers that had opposed its plans.[2] Although the OMB declined to award the developer its costs, the latter did not come away from the proceedings empty-handed. The notion of suing the lawyers of defendants to a SLAPP lawsuit sent shockwaves throughout the Ontario legal community. While the Advisory Panel was still in the process of developing its recommendations the insurer for Ontario lawyers warned its members that representing public interest groups was risky because those groups may become the target of a SLAPP lawsuit that involves great unanticipated cost consequences.[3]

Having reached that critical point, it was not a great surprise that the final report released by Advisory Panel to the public in December 2010 recommended that anti-SLAPP legislation should be created. Instead of endorsing the creation of new statutory rights to public participation and to “SLAPPback,” the Advisory Panel opted for a procedure-based approach for filtering out SLAPP lawsuits and made recommendations on the different types of provisions that should be included in the legislation. Read more

Take-Back Laws…

By: Yasar Saffie · November 23, 2010 · Filed Under Corporate Law, Environmental Law, Legal Reform, Regulatory Law, Uncategorized · Comment 

Are you aware of “Take-Back Laws”?

Well, view the video below, and then you’ll understand why we need them!

Ha-Redeye and Yap — Piedra v. Copper Mesa Mining Corp

By: Law is Cool · September 7, 2010 · Filed Under Civil Procedure, Civil Rights, Environmental Law, International Law, Securities Law · 1 Comment 

In the spirit of increased collegiality and collaboration within the Canadian legal blogging community, LawisCool.com and TheCourt.ca have set aside their heated rivalry to bring you their first ever joint posting. What follows is a commentary on the interesting case of Piedra v. Copper Mesa Mining Corporation, 2010 ONSC 2421.

Commentator for LawisCool.com: Omar Ha-Redeye, Juris Doctor, University of Western Ontario; founding contributor of LawisCool.com

Commetator for TheCourt.ca: James Yap, Juris Doctor, Osgoode Hall Law School, York University; former Senior Contributing Editor, TheCourt.ca.

The Facts

Copper Mesa Mining Corporation is a Canadian company based in British Columbia who planned through one of its subsidiaries to build an open pit copper mine in the Intag cloud forest just south-west of The Cotacachi Cayapas Ecological Reserve, an area of the Andes Mountains of Ecuador. The company is listed on the Toronto Stock Exchange (TSX), but it does not have significant assets or operations in the province of Ontario aside from two of its non-management directors residing in the province.

The Plaintiffs in the case are local activists in Ecuador who have opposed the mine, on the grounds that it will create major deforestation and desertification in the area and threaten more than a dozen animals with extinction. They allege that Copper Mesa through its agents used armed assaults and death threats to intimidate the local activists. Due to a perceived inability to hold Copper Mesa accountable in their country, the Plaintiffs brought a suit in Ontario against Copper Mesa, its directors, and the TSX.

The most novel aspect of the suit is the claim against the TSX for approving and listing Copper Mesa on the exchange, resulting in an influx of capital that would allegedly be used for further intimidation and violence against opponents. Local politicians in Ecuador and environmental supporters in Canada had brought the human rights allegations to the attention of the TSX before its listing. Further, the final prospectus filed by Copper Mesa’s subsidiary to the TSX acknowledge the existence of the conflict,

“[t]ensions surrounding potential exploration and mining work on the Junin property have risen, creating the potential of further escalating violence unless steps are taken to diffuse the situation,” and goes on to report a specific incident in which members of an “anti-mining group” felt “threatened”;

The liability, according to the Plaintiffs, flows from the failure to take any steps to avoid the violence, and that the Defendants knew or ought to have known that violence would ensue if the Copper Mesa subsidiary was financed through the TSX, and should have taken measures to ensure funds raised were not used for improper purposes.  The project was highly dependent on funding from the TSX, with over 80% of the US$26.7 million raised by the Copper Mesa subsidiary raised on the TSX alone. According to the Plaintiffs, it was a brokered private placement of shares approved by the TSX that raised US$4.5 million that allowed Copper Mesa to hire the private security forces allegedly responsible for the armed assaults that form the basis of the claim.

The TSX is considered a specialized exchange for mining, and over 60% of the world’s mining companies are listed on the TSX and related exchanges.

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The Solution to Climate Change is Texting

By: Law is Cool · April 8, 2010 · Filed Under Environmental Law, Humour · Comment 

US EPA issues endangerment finding for GHGs

By: Amelio The · December 8, 2009 · Filed Under Administrative Law, Environmental Law, International Law · Comment 

0902122_vehicle_emissions

Yesterday, the US EPA finally issued administrative findings with respect to greenhouse gases (GHGs) such as carbon dioxide. While coinciding with the commencement of the climate conference in Copenhagen, this finding has been anticipated since the 2007 U.S. Supreme Court decision in Massachusetts v EPA – in which the U.S. Supreme Court ruled that the EPA did in fact have the authority to regulate GHGs under the U.S. Clean Air Act.
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Do CRU emails show FOIA wrong-doing?

By: Amelio The · November 23, 2009 · Filed Under Administrative Law, Environmental Law, Ethics, Intellectual Property, International Law, Privacy Law · 2 Comments 

There’s been a lot of hype in the past few days about a batch of emails that were either hacked or leaked from the University of East Anglia’s Climate Research Unit (CRU). In the view of some opponents to climate change legislation, these emails depict collusion and conspiracy among leading climate change scientists. Other contrarians accuse at least one scientist of outright illegal conduct: violations of UK’s Freedom of Information Act (FOIA).

CRU

Hundreds of emails spanning well over a decade were released, but the ones important for allegations of illegal conduct are those where some of the scientists discuss the implications of the newly (in the UK) enacted FOIA, those that discuss how to deal with FOIA requests, and one that directs the deletion of certain emails.

I’ve learned a little bit about the US’s version of FOIA, so I thought that it would be interesting to examine this accusation of illegal conduct – at least, to the extent that a Canadian studying law at an American law school can explore British information and privacy law. Read more

A Legal Obligation to Assist Iran

By: Contributor · November 22, 2009 · Filed Under Environmental Law, International Law, Politics · 10 Comments 

Earlier today Iran began large-scale war games to simulate a response to attacks on its nuclear sites.  But these games are hardly for fun, as the country intends to showcase its capability of defending against a strike from Israel.

Although in Canada we normally think of countries like Iran as the aggressor, the country is not without fear of Israel initiating military action against them.  Israeli officials have not ruled out the possibility, and there is a history of attacking Iraq in 1981 and more recently, Syria in 2007.

In response to the strikes against Iraq, the United Nations Security Council issued Resolution 487, stating,

Considering that, under the terms of Article 2, paragraph 4, of the Charter of the United Nations: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations”,

1. Strongly condemns the military attack by Israel in clear violation of the Charter of the United Nations and the norms of international conduct;

2. Calls upon Israel to refrain in the future from any such acts or threats thereof;

3. Further considers that the said attack constitutes a serious threat to the entire IAEA safeguards regime which is the foundation of the non-proliferation Treaty;

4. Fully recognises the inalienable sovereign right of Iraq, and all other States, especially the developing countries, to establish programmes of technological and nuclear development to develop their economy and industry for peaceful purposes in accordance with their present and future needs and consistent with the internationally accepted objectives of preventing nuclear-weapons proliferation;

5. Calls upon Israel urgently to place its nuclear facilities under IAEA safeguards;

6. Considers that Iraq is entitled to appropriate redress for the destruction it has suffered, responsibility for which has been acknowledged by Israel;

7. Requests the Secretary-General to keep the Security Council regularly informed of the implementation of this resolution.

Iraq’s new government is seeking reparations from the 1981 attack.  Sadr MP, Nasser al-Rubaie, recently stated,

According to the international law Iraq has the right to receive compensation from Israel. We have called for a legislation to be passed in the parliament to oblige the Iraqi government to follow up the issue.

But it’s the attack against Syria that really raised the interest of the international law community. The reason is that both attacks were justified by Israel as necessary measures of self-defence, which although questionable by international law, were given limited credence by the Bush doctrine.

The 2002 National Security Strategy of the United States of America (NSS) states,

A. Summary of National Security Strategy 2002
… the first duty of the United States Government remains
what it always has been: to protect the American people and American interests … this duty obligates the government to anticipate and counter threats, using all elements of national power, before the threats can do grave damage. The greater the threat, the greater is the risk of inaction – and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. There are few greater threats than a terrorist attack with WMD.

To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively in exercising our inherent right of self-defense. The United States will not resort to force in all cases to preempt emerging threats. Our preference is that nonmilitary actions succeed. And no country should ever use preemption as a pretext for aggression.

The 2006 revision retains the ability to act preemptively.  But there is one important distinction between the U.S. and Israel that differentiates these policies.  The NSS is based on Article 51 of the U.N. Charter,

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

The obvious distinction is that while the U.S. is a permanent member of the Security Council, Israel is not.  Israel cannot legitimately claim to be acting in self-defence when attacking pre-emptively, especially in light of Article 2(4),

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

Additionally, the effectiveness of either of these strikes are highly disputed by analysts, who are still frustrated by refusals by Israelis to provide information about them. After the Iraq invasion on the premise of WMDs, skepticism about pre-emptive strikes, especially after claims by Israeli military intelligence officer Shlomo Brom and Israeli MPs that Israel deliberately exaggerated reports about Iraqi capabilities in order to encourage an invasion.

The Nuremberg International Military Tribunal addressed the issue of pre-emptive strikes in United States v. Goering, 6 F.R.D. 69, 100-01 (1946).  The court rejected the Nazi claim that they had to invade Norway to avoid an Allied invasion, because there was no such threat imminent.

Mark A. Drumbl of the Washington and Lee University – School of Law points out in Self-Defense, Preemption, Fear: Iraq, and Beyond that the military response by Austria-Hungary to the assassination by the Serbian terrorist organization Black Hand of the Crown Prince Ferdinand and his wife was uniformly condemned by the international community.  It is also largely acknowledged as the primary cause of WWI.

Nicole Deller and John Burroughs explain in Jus ad Bellum: Law Regulating Resort to Force,

The right to anticipatory self-defense under customary law has never been unlimited. One generally recognized formulation dating from the mid-nineteenth century is that set forth in a letter from U.S. Secretary of State Daniel Webster to British Minister Lord Ashburton, that the necessity for action must be “instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” Since then, and especially since World War II, capabilities to launch devastating attacks with little advance warning have improved dramatically. Nonetheless, scholars have continued to affirm Webster’s restraints on legitimate self-defense, recognizing their value in inhibiting resort to war. A recent edition of a leading treatise states that self-defense may justify use of force under the following conditions: an attack is immediately threatened; there is an urgent necessity for defensive action; there is no practicable alternative, particularly when another state or authority that legally could stop or prevent the infringement does not or cannot do so; and the use of force is limited to what is needed to prevent the infringement. Oppenheim’s International Law, 9th ed., 412.

But it’s a paper by Amin Ghanbari Amirhandeh, an LLM student at the University of Tehran, that gives the greatest pause.  He claims in Preemptive Attacks on Iran’s Nuclear Facilities?, that the Security Council would actually be required to assist Iran if attacked by Israel.

As Iran is a non-nuclear state, a military strike on a nuclear facility could still be considered a nuclear attack, given the resulting environmental damage.  He states,

In resolution 984, the Security Council “takes note with appreciation of the statements made by each of the nuclear-weapon States (S119951261, S119951262, S119951263, S119951264, S/19951265), in which they give security assurances against the use of nuclear weapons to non-nuclear-weapon States that are Parties to the Treaty on the Non-Proliferation of Nuclear Weapons”, and further “[w]elcomes the intention expressed by certain States that they will provide or support immediate assistance, in accordance with the Charter, to any nonnuclear- weapon State Party to the Treaty on the Non-Proliferation of Nuclear Weapons that is a victim of an act of, or an object of a threat of, aggression in which nuclear weapons are used”.

As the ICJ stressed in its historic opinion on legality of nuclear weapons
(1996), the Security Council, in unanimously adopting resolution 984 (1995) of 11 April 1995, cited above, took note of those statements with appreciation. It also recognized “that the nuclear-weapon State permanent members of the Security Council will bring the matter immediately to the attention of the Council and seek Council action to provide, in accordance with the Charter, the necessary assistance to the State victim”; and welcomed the fact that “The intention expressed by certain States that they will provide or support immediate assistance, in accordance with the Charter, to any non-nuclear-weapon State Party to the Treaty on the Non- Proliferation of Nuclear Weapons that is a victim of an act of, or an object of a threat of, aggression in which nuclear weapons are used”.

Gesturing the concept of threat is enough for the Security Council in the present case, even if it is obvious that the five nuclear weapon states are
individually responsible for taking appropriate measures in order to assist Iran, to condemn any direct threat from Israel against Iranian nuclear installations.

Now that’s a consequence that would make Sarkozy’s description of an Israeli strike on Iran as an “absolute catastrophe” the understatement of the year.

No “necessity” defence for environmental activist in Utah case

By: Amelio The · November 17, 2009 · Filed Under Criminal Law, Environmental Law · Comment 

A Utah District Court judge ruled yesterday that environmental activist, Tim DeChristopher, would not be able to present a defence of necessity at the trial where he faces charges for fraud and for violating the Federal Onshore Oil and Gas Leasing Reform Act.

Tim_DeChristopher1231394118Tim DeChristopher

On December 19, 2008, DeChristopher participated in an oil and gas lease auction, where it is alleged he made bids not only to raise lease prices, but also to win leases he had no intention of paying. In that auction, DeChristopher won fourteen leases covering 22,000 acres, and totaling $1.7 million USD.

His actions were an attempt to prevent what some groups saw as a midnight pass by the outgoing Bush administration for the exploitation hundreds of thousands of acres of pristine land in Utah. When charged, DeChristopher attempted to argue necessity to defend his actions. To head off the media circus that surely would have sprouted had he been able to bring global warming in the courtroom, government attorneys filed a motion to prevent DeChristopher from presenting the defence.

In her ruling yesterday, Judge Dee Benson granted the government’s motion, holding that DeChristopher’s offers of proof did not meet any of the requirements for necessity.

In the U.S. Court of Appeals for the Tenth Circuit – of which Utah is a part – the defence of necessity has four elements. The defendant must have:

(1) chosen the lesser of two evils,
(2) acted to prevent imminent harm,
(3) reasonably anticipated a direct causal relationship between his conduct and the harm to be averted, and
(4) had no legal alternatives to violating the law.

Judge Benson found that (1) the “greater harm” DeChristopher feared was too speculative, (2) the harm was not imminent, (3) there was an insufficient causal relationship between DeChristopher’s actions and the harm to be averted, and (4) that a legal alternative did and does in fact exist (the leases in question are also currently the subject of an ongoing lawsuit (Southern Utah Wilderness Alliance v Allred, No. 08-2187, 2009 WL 765882 – for those with Westlaw access).)

This Utah District Court ruling stands in contrast to a UK case last year, where jurors accepted the analogous “lawful excuse” defence asserted by six Greenpeace activists. The activists were cleared of charges stemming from £35,000 worth of damage they caused to a coal-fired power station.

NY Times article
DeChristopher bidding at auction
Judge Benson’s ruling

EPA lawyers who criticize cap-and-trade cautioned by EPA over professional ethics

By: Amelio The · November 11, 2009 · Filed Under Constitutional Law, Environmental Law, Ethics, Politics · 2 Comments 

As the controversy over impeding U.S. climate legislation continues to simmer, one interesting recent development is the spotlight on two California EPA attorneys: Laurie Williams and Allan Zabel.

The N.Y. Times reported that the U.S. EPA has directed the pair to remove or to make changes to a YouTube video they posted which is critical of the cap-and-trade bills currently being tossed around in the legislative houses. (The video, apparently made in September, critiques the U.S. House of Representatives’ Waxman-Markey Bill [H.R. 2454 American Clean Energy and Security Act of 2009]. Currently, the U.S. Senate is debating its own version [S.1733 Clean Energy Jobs and American Power Act].)

According to the EPA, Williams and Zabel violated EPA ethical guidelines when they substantiated their views with their “20 years each working as attorneys at the U.S. Environmental Protection Agency” – thereby accenting the credibility of their “personal opinion” with their office.

For some, this issue is censorship thinly veiled in professional ethics. The American Bar Association (ABA) Model Rules of Professional Conduct, for instance, doesn’t prohibit political expression by lawyers. Rule 1.2(b) specifically states that representation doesn’t constitute an endorsement of political views. The ABA Code of Judicial Conduct does restrict a judge’s capacity for political expression under Rule 4.1(A)(2), in order to maintain the impartiality of the position. But should government attorneys shed their capacity for political expression? On the other hand, for government attorneys, the government is their client. You don’t see many lawyers publishing videos where they criticize their client.

In either case, Williams and Zabel’s criticisms of cap-and-trade will no doubt be capitalized on by opponents of climate legislation. This is unfortunate, because their criticisms – which are just the media’s latest recognition of the carbon tax vs cap-and-trade debate (“carbon fees with rebates”… does anyone still fondly remember the Liberal Green Shift Plan?) – do voice very legitimate concerns.

I take Williams and Zabel’s criticisms to be essentially: 1) carbon offsets provide a run-around hard cap-targets; 2) carbon offsets often have unintended consequences; 3) the price instability associated with implementing a cap-and-trade scheme prevents the promotion of the desired innovation. Obviously, where the goal of the legislation is to curb carbon emissions and to shift to alternative energy, these are bad.

But, are their criticisms of the Waxman-Markey cap-and-trade scheme, say… equally applicable to that of Kerry-Boxer? With respect to at least one point – offsets – yes, they are a potential problem. But are they an intractable one? Both bills provide mechanisms that attempt to limit the potential unintended consequences of offsets. (i.e. – regulatory bodies to administer, and the ability to reverse offsets). This may or may not completely obviate the point, but it does address it. With respect to price instability and innovation – that’s an economic argument that’s beyond my purview.

But I do know this: any hope of success at Copenhagen rests largely on the ability of the U.S. to pass strong climate legislation, and to thereby commit to hard targets. Most signs seem to indicate Kerry-Boxer will pass. Even if cap-and-trade wouldn’t achieve everything some think it needs to, at the very least it seems to be the first viable step.

Belief in global warming protected from discrimination in UK labour law

By: Amelio The · November 7, 2009 · Filed Under Administrative Law, Environmental Law, Labour & Employment Law · Comment 

saint_goreImage From National Post via WattUpWithThat?

In the public policy debates over climate change, critics of strong action to mitigate global warming have often described proponents as “religious zealots”, and vice-versa. Moreover, since the concern over global warming has entered the mainstream consciousness, religious groups have been increasingly drawn to the discussion. Now, in the UK, a recent decision by an employment tribunal has actually equivocated belief in global warming with religious belief, for the purposes of workplace discrimination.

The case centers around Tim Nicholson, whose position as Head of Sustainability at Grainger, plc was terminated over what he claims was “contempt” for his beliefs about anthropogenic global warming. Nicholson alleged that his termination was due to his beliefs – which he argued should be protected from discrimination by the UK’s Employment Equality (Religion or Belief) Regulations of 2003.

In its decision this week, the employment tribunal ruled Nicholson would be allowed to bring his discrimination claim because Nicholson’s beliefs in global warming passed the tests formulated for “philosophical belief” for the purposes of the regulations:

From the tribunal’s ruling:

• The belief must be genuinely held.
• It must be a belief and not an opinion or view based on the present state of information available.
• It must be a belief as to a weighty and substantial aspect of human life.
• It must attain a certain level of cogency, seriousness, cohesion and importance.
• It must be worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.

Grainger Plc & Ors v. Nicholson [2009] UKEAT 0219_09_0311 (3 November 2009)

In no way could this ever be taken out of context by anybody on either side of the larger debate…

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