Domesticating the Exotic Species:
International Biodiversity Law in Canada
Natasha Affolder*
now
addresses
agreements
While a significant body of international and
regional
habitat
preservation, wildlife protection, and biological
diversity, these advances on the international level often
fail to be effectively translated into domestic law. In this
article, the author argues that international biodiversity
law is being treated in Canada as exotic. It is
peppered into parties submissions without a principled
explanation of its role in Canadian law, receives little
consideration from the courts, and must ultimately rely
on non-legal means of enforcement.
The author examines jurisprudence dealing with
four major biodiversity treaties. She notes that the
judicial treatment of these conventions ranges from
silence, to declarations of inapplicability, to limited
usage in statutory interpretation. This impoverished
view of international biodiversity law in Canadian
courtrooms is contrasted with the richer understanding
of the relevance of this body of law demonstrated by its
usage in environmental advocacy campaigns.
The author focuses on two case studies: the 1992-
2002 campaign
federal endangered species
legislation, and the ongoing Cheviot mine campaign. In
these campaigns, compliance with
international
biodiversity law is pursued through various shaming
strategies. The author concludes that both the judiciary
and environmental advocacy groups have an important
role to play in identifying where Canada fails to give
domestic effect to the obligations it assumes under
ratified biodiversity treaties, and in addressing this
failure.
for
important de
Mme si un nombre
internationaux ont pour objet
traits
rgionaux et
la
prservation de lhabitat, la protection de la nature et de
la diversit biologique, ces avances lchelle
internationale ne sont pas effectivement retranscrites
dans le droit domestique. Dans cet article lauteur
soutient que le droit international sur la biodiversit est
considr comme exotique au Canada. Ce droit est
parsem dans
les soumissions des parties sans
quaucune explication de principe ne soit donne quant
son rle dans le droit canadien. Les tribunaux portent
par consquent peu dattention ce droit, ce dernier ne
dpendant ultimement que de mesures non lgales pour
son excution.
Lauteur examine la jurisprudence lie a quatre
traits majeurs sur la biodiversit et remarque que le
traitement judiciaire accord ces conventions varie du
silence, lusage limit de l interprtation statutaire,
des dclarations d inapplicabilit. Cette approche
rductrice des tribunaux canadiens lgard du droit
international sur la biodiversit est contraste par une
comprhension plus profonde de la pertinence de ce
droit par les milieux environnementaux, ce qui ressort
clairement de lutilisation qui en est faite dans les
campagnes de lutte pour la dfense de lenvironnent.
Lauteur se penche ensuite sur deux tudes de
cas : la campagne fdrale de 1992-2002 sur la loi sur
les espces en voie de disparition et la campagne
Cheviot sur les mines. Dans ces campagnes, le respect
du droit international sur la biodiversit est obtenu par
diffrentes stratgies instrumentalisant le sentiment de
honte. Lauteur conclut que le milieu judiciaire et les
groupes de lutte pour la dfense de lenvironnement ont
un double rle jouer pour dterminer pourquoi le
Canada ne parvient pas se conformer lchelon
domestique aux obligations quil a contract en ratifiant
les diffrents traits sur la biodiversit et comment
remdier cette situation au niveau national.
* Assistant Professor, University of British Columbia Faculty of Law. The author would like to
thank Gib van Ert and the anonymous reviewers for helpful comments. She acknowledges the superb
research assistance of Laura Track and Stephanie Case.
Natasha Affolder 2006
To be cited as: (2006) 51 McGill L.J. 217
Mode de rfrence : (2006) 51 R.D. McGill 217
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Introduction
219
220
220
222
224
225
227
229
231
232
235
239
240
241
243
243
244
245
246
248
249
250
250
I.
II.
International Biodiversity Law in the Courtroom
A. The Application of International Law in Canadian Courts
B. MethodologyCase Selection Criteria
C. The Cases
1. Judicial Silence
2. International Law Is Not Applicable As It Is Not
Implemented in Canadian Law
3. Judicial Uncertainty
4.
International Law As An Interpretive Aid in Statutory
Interpretation
D. The Practice of Environmental Appeal Boards
E. The Role of Environmental Advocacy Groups in Arguing
International Law
International Law Arguments Outside the Courtroom
A. The Campaign for Federal Endangered Species Legislation
(1992-2002)
1. Public Opinion and the Media
2. Transnational Litigation and Foreign Appeals
a. North American Agreement on Environmental
Cooperation
b. Appeals Under the Pelly Amendment
3. Market Pressure
B. The Cheviot Mine Campaign
1. Public Opinion and the Media
2. Appeal to the World Heritage Committee
3. Market Pressure
Conclusion
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219
Introduction
International biodiversity law is easily viewed in Canada as an exotic species of
law: not only does it advance the protection of endangered species such as the hairy-
eared dwarf lemur in Madagascar, the maned three-toed sloth in Brazil, and the
sandbar shark in Equatorial Guinea, but treaty negotiations occur in Ramsar and Rio.
But the consequence of treating this branch of law as exotic is perilous. It allows
international biodiversity law to be regarded in Canada as something other than law,
something to be avoided if at all possible,1 something to be peppered into
submissions and judgments without a principled explanation of its role in Canadian
law. Indicted as being interesting rather than binding law in Canada,2 international
biodiversity law receives only limited consideration in recent Canadian judgments.
The lack of engagement with international biodiversity law in Canadian judicial
decisions contrasts with the proliferation of international biodiversity treaties. While a
significant body of international and regional agreements now addresses habitat
preservation, wildlife protection, and biological diversity, these advances on the
international level often fail to be effectively translated into national law. Where
international biodiversity norms fail to be implemented in Canadian law through
statutes or incorporated as customary international law, internationally-minded
lawyers optimistically look to domestic courts as the vehicles through which
international treaty and customary norms may enter the Canadian legal system.3
This article suggests that, in the case of international biodiversity law, such
optimism may be misplaced. An analysis of Canadian judicial decisions between
1990-2005 reveals an extremely limited role of the courts in internalizing
international biodiversity law norms. Analysis of these judicial decisions also reveals
1 Rosalyn Higgins, Problems and Process: International Law and How We Use It (Oxford: Oxford
University Press, 1994) at 206. Higgins describes the treatment of international law by judges and
counsel in some courts of the United Kingdom as some exotic branch of the law, to be avoided if at
all possible, and to be looked upon as if it is unreal, of no practical application in the real world
(ibid.).
2 See e.g. MacMillan Bloedel v. Simpson, [1993] B.C.J. No. 3143 (S.C.) (QL) [MacMillan Bloedel
(S.C.)] leave to appeal refused, [1994] B.C.J. No. 3349 (C.A.) (QL) [Macmillan Bloedel (C.A.)]. The
trial court said: In these circumstances, there is no point in dealing with the extensive submissions of
the applicants, interesting as they were … [T]he argument relating to international agreements and
resolutions, these not being expressed in Canadian law, are not relevant to this inquiry (Macmillan
Bloedel (S.C.), ibid. at para. 7 [emphasis added]). See also Repap New Brunswick, Woodlands
Division v. Pictou, [1996] N.B.J. No. 495 (Q.B. (T.D.)) (QL) [Repap], where the court said There is
no question that there are matters of great concern at issue. There is no question that maybe they
should be addressed in other forums (Repap, ibid. at para. 12).
3 See Anne-Marie Slaughter, Judicial Globalization (2000) 40 Va. J. Intl L. 1103:
National courts are the vehicles through which international treaties and customary law
that have not been independently incorporated into domestic statutes enter domestic
legal systems (ibid. at 1103).
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that the majority of arguments involving international biodiversity law before
Canadian courts originate in the submissions of environmental advocacy groups.
Given the limited role of courts in giving effect to international biodiversity norms in
domestic litigation, environmental advocacy groups attempt to foster compliance with
these norms through wider campaign strategies.
In elucidating the role of Canadian environmental advocacy groups in fostering
compliance with international biodiversity law, I explore how these advocacy groups
use international law both inside and outside the courtroom. The first section of this
article discusses the use of international biodiversity law in domestic litigation and
disaggregates judicial responses to these arguments. This analysis reveals an
impoverished view of international biodiversity law in Canadian courtrooms. A richer
understanding of the relevance of international law is gained by examining this
litigation in the context of environmental advocacy campaigns. In these campaigns,
Canadas failure to give effect to its international law obligations is articulated in a
manner that uses shame to foster compliance. Canadas reputation both as a law-
abiding member of the international community and as an environmental leader is
attacked. The second section of this article examines the use of international
biodiversity law in advocacy campaigns. In these campaigns, international law
arguments are deployed in shaming strategies that include media and public relations
campaigns, transnational litigation, and market-based campaigns. This analysis
reveals that Canadian advocates and the judiciary have a greater role to play in
engaging with international biodiversity law sources in a principled manner, ensuring
that Canada lives up to its international law commitments.
I.
International Biodiversity Law in the Courtroom
A. The Application of International Law in Canadian Courts
Understanding the potential role for international biodiversity law in Canadian
courtrooms demands an appreciation of how public international law is applied in
Canadian courts. This area is not uncontested and remains ripe with nuance and
uncertainty, much of which is usefully explored in detail elsewhere.4 A few central
4 For a primer on the application of international law in Canadian courts, see Jutta Brunne &
Stephen J. Toope, A Hesitant Embrace: The Application of International Law by Canadian Courts
(2002) 40 Can. Y.B. Intl Law 3 at 9; Gibran Van Ert, Using International Law in Canadian Courts
(The Hague: Kluwer Law International, 2002); Mark Freeman & Gibran Van Ert, International
Human Rights Law (Toronto: Irwin Law, 2004) c. 8. Examples of the growing body of academic
commentary on the role of international law in Canadian courts include Anne Warner La Forest,
Domestic Application of International Law in Charter Cases: Are We There Yet? (2004) 37 U.B.C.
L. Rev. 157; Stephen J. Toope, The Uses of Metaphor: International Law and the Supreme Court of
Canada (2001) 80 Can. Bar Rev. 534; Karen Knop, Here and There: International Law in Domestic
Courts (2000) 32 N.Y.U. J. Intl L. & Pol. 501; Stphane Beaulac, National Application of
International Law: The Statutory Interpretation Perspective (2003) 41 Can. Y.B. Intl Law 225. In the
221
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tenets of reception law require elucidation to appreciate the case discussions below.
First, with respect to treaties, international treaties must be implemented in Canadian
domestic law to be binding.5 Further, the federal nature of the Canadian state requires
that treaties that concern matters of provincial jurisdiction may only be implemented
by provincial legislatures.6 As treaties may be implemented in multiple ways,
questions arise as to what counts as transformation.7 Moreover, what is the status of a
treaty that has been signed and ratified by Canada but not implemented by domestic
statute? How does it differ from the status of a treaty that has not been ratified by
Canada?
The Supreme Court has taken some steps in addressing these questions in recent
cases outside
this
jurisprudence, a role for ratified (but not implemented) treaties exists where the
values reflected in the international convention may help inform the interpretation of
the domestic statute.8 This role is not uncontested.9 Central to the approach of
Canadian courts to international law sources is the presumption of legislative
conformity with international law. This presumption demands that judges interpret
statutes in a manner consistent with international laws that are binding on Canada.
The presumption was recently articulated by Justices Iacobucci and Major in Ordon
Estate v. Grail:
international environmental
law context. Following
the
Although international law is not binding upon Parliament or the provincial
legislatures, a court must presume that legislation is intended to comply with
Canadas obligations under international instruments and as a member of the
international community. In choosing among possible interpretations of a
statute, the court should avoid interpretations that would put Canada in breach
of such obligations …10
With respect to custom, Canadian courts largely appear to have accepted the view
that customary international law automatically forms part of the law of Canada
environmental law area, see Jutta Brunne, A Long and Winding Road: Bringing International
Environmental Law into Canadian Courts in Michael Anderson & Paolo Galizzi, eds., International
Environmental Law in National Courts (London: British Institute of International and Comparative
Law, 2002) 45.
5 For a recent enunciation of this requirement see Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 [Baker cited to S.C.R.]. LHeureux-Dub J.
makes this point at para. 69 and Iacobucci J. at para. 79.
6 Reference Re Weekly Rest in Industrial Undertakings Act, [1937] 1 D.L.R. 673, [1937] 1 W.W.R.
299 (P.C.) [Labour Conventions cited to D.L.R.].
7 This uncertainty leads courts (and commentators) to disagree as to whether certain treaties or
specific treaty obligations are implemented or not. The view of the Supreme Court in Baker, supra
note 5, that the Convention on the Rights of the Child is not implemented in Canada is contested. For a
discussion of what counts as treaty transformation, see Brunne & Toope, supra note 4 at 22.
8 Hon. Claire LHeureux-Dub, From Many Different Stones: A House of Justice (2003) 41 Alta.
L. Rev. 659 at 664. See also Baker, ibid. at para. 70.
9 See Baker, ibid. at paras. 79-80, Iacobucci J.
10 Ordon Estate v. Grail, [1998] 3 S.C.R. 437 at para. 137, 166 D.L.R. (4th) 193.
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without the need for an explicit act of transformation.11 This was the position of the
Ontario Court of Appeal in the recent case of Bouzari v. Iran.12
These tenets of reception law frame a discussion of the limited role of
international biodiversity law in Canadian courts. They also highlight the challenges
for both counsel and judges in precisely clarifying the significance of an international
source in Canadian law. Many treaties in the biodiversity field are not implemented
by easily identifiable legislation. The absence of a Biodiversity Convention Act does
not mean that the provisions of the Biodiversity Convention13 have not been at least
partially implemented in Canadian law. Explicit implementation is not always
necessary as treaty obligations can be implemented through other means, such as
conformity with prior legislation.14 Further, not all treaty provisions require
implementation by statute as some operate purely at the international level (for
example, provisions respecting
international environmental
institutions). The vital question is a results-based one. Canada, as a contracting party,
has certain obligations under the Biodiversity Convention. Has Canada given effect to
these obligations in Canadian law?
the operation of
B. MethodologyCase Selection Criteria
Effective implementation of an international treaty offers one explanation of why
a treaty might not receive judicial mention. If the Migratory Birds Convention Act,15
for example, so effectively conveys the meaning, purpose, and content of the
Migratory Birds Convention16 into Canadian law, little recourse would be needed to
the treaty itself. One might suggest, optimistically, that the sparsity of references to
international treaties in Canadian judicial decisions evidences the fact that Canada is
doing such an excellent job of fully implementing its international biodiversity
obligations that there is little need for Canadian judges to consider these obligations.
11 I qualify this statement, as the lack of clear affirmation of this approach by the Supreme Court of
Canada leaves room for doubt in the wake of dicta suggesting that customary law, like treaty law,
requires explicit transformation. For a discussion of the conflicting authorities on this point see Toope,
supra note 4 at 537-39; Van Ert, supra note 4 at 149.
12 (2004), 71 O.R. (3d) 675 at para. 65, 243 D.L.R. (4th) 406 (C.A.). See also Re Regina and
Palacios (1984), 45 O.R. (2d) 269, 7 D.L.R. (4th) 112 (C.A.).
13 Convention on Biological Diversity, 5 June 1992, 1760 U.N.T.S. 79, Can. T.S. 1993 No. 24, 31
I.L.M. 818 [Biodiversity Convention].
14 Irit Weiser suggests that human rights treaties are often ratified on the basis that no new
legislation is required. See Irit Weiser, Effect in Domestic Law of International Human Rights
Treaties Ratified Without Implementing Legislation in Canadian Council on International Law, The
Impact of International Law on the Practice of Law in Canada: Proceedings of the 27th Annual
Conference of the Canadian Council on International Law, Ottawa, October 15-17, 1998 (The Hague:
Kluwer Law International, 1999) at 132.
15 S.C. 1994, c. 22.
16 Convention Between the United States and Great Britain for the Protection of Migratory Birds, 16
August 1916, 39 U.S. Stat. 1702, T.I.A.S. No. 628 [Migratory Birds Convention].
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Canadas record of implementing its biodiversity treaty obligations is not this
rigorous, however, and the limited judicial discussion of these treaties is not likely a
result of watertight treaty implementation.17 The issue of treaty implementation
informs the methodology of this research as it suggests that the quantity of judicial
comment on a treaty is not necessarily significant. What matters is the quality of the
engagement with an international source. This study thus offers a qualitative
assessment of the judicial decisions between 1990 and 200518 where judicial mention
is made of one of four major biodiversity treaties: the Biodiversity Convention,19 the
Ramsar Convention,20 the World Heritage Convention,21 and the Migratory Birds
Convention.22
While Canada has ratified other biodiversity treaties, I have excluded from
consideration here those treaties that only receive judicial mention in the context of
an analysis of their implementing legislation, where there is no independent
engagement with the international source. For example, this study does not consider
the Agreement on the Conservation of Polar Bears,23 because the sole relevant case
that mentions it is R. v. Martin,24 where the court accepted that the Agreement was
implemented pursuant to a general implementing power in the Export and Import
Permits Act.25 The court made no independent consideration of the Agreement.
Similarly, although seven Canadian cases since 1990 mention the Convention on
International Trade in Endangered Species of Wild Fauna and Flora,26 none address
the Convention itself. Rather, the Convention is only peripherally mentioned in the
context of discussion of its implementing legislation, both the Wild Animal and Plant
17 See e.g. the discussion of the decade-long battle to give effect to Canadas legal obligation to
introduce federal endangered species law, at text accompanying notes 101-22 below.
18 This analysis is based on the authors review of the record from cases known to the author and
Quicklaw searches. It is current to 15 May 2005. The searches include the Quicklaw electronic
databases covering federal and provincial judgments (CJ) as well as electronic databases of
environmental appeal board decisions in Ontario, British Columbia, Alberta, and Quebec (OEAB,
BCEA, AEAB, and ENVQ).
19 Supra note 13.
20 Convention on Wetlands of International Importance Especially as Waterfowl Habitat, 2 February
1971, 996 U.N.T.S. 245, Can. T.S. 1981 No. 9 [Ramsar Convention].
21 Convention for the Protection of the World Cultural and Natural Heritage, 23 November 1972,
1037 U.N.T.S. 151, 27 U.S.T. 37 [World Heritage Convention].
22 Supra note 16.
23 15 November 1973, Can. T.S. 1976 No. 24.
24 (1994), 72 O.A.C. 316.
25 R.S.C. 1970, c. E-17.
26 3 March 1973, Can. T.S. 1975 No. 32, 8249 T.I.A.S. 1087.
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Protection and Regulation of International and Interprovincial Trade Act,27 and the
Export and Import Permits Act.28
I also do not consider those cases where one of the four treaties that form the
subject of this inquiry is mentioned only to note the source of the domestic law
obligation and there is no independent discussion of the treaty. This eliminates from
consideration many of the cases where the Migratory Birds Convention Act is applied
(including a number of aboriginal hunting cases) as there is no distinct consideration
of the international treaty regime.
I justify these exclusions on the grounds that the goal of this research is not to
measure how often the names of treaties are invoked by the courts, but the extent to
which the courts are willing to discuss (even if only to reject) the use of an
international instrument. With these limitations in place, a search of the case law
yields nineteen references to the Biodiversity Convention, the Ramsar Convention,
the World Heritage Convention, or the Migratory Birds Convention. What is
significant about this result is not this number, but the limited and often superficial
nature of the engagement with international law in these cases.
C. The Cases
The earlier doctrinal discussion of the relationship between international and
Canadian law identifies some of the ambiguities, conflicts, and novel areas currently
explored by Canadian courts and commentators. It does little to prepare one for the
murkiness surrounding the treatment of international biodiversity law in these cases,
and the absence of rigorous discussion of how international biodiversity treaties are
applied in Canadian law. Of the six cases where judicial mention is made of the
Biodiversity Convention, for example, not a single case deals with the legal status in
Canada of this international treaty. Is the Biodiversity Convention implemented in
Canadian law? Has it only partially been implemented? To what degree does it
require implementation in Canadian law? Should domestic laws be interpreted to
conform as far as possible with Canadas commitments under the Biodiversity
Convention based on the presumption of conformity, even if it has not been wholly
implemented? A rigorous engagement with these questions eludes these cases.
Attempting to disaggregate this body of nineteen cases, I divide them into four
categories of judicial response: judicial silence; explicit rejection of international law
as it is not implemented in Canadian law; judicial uncertainty; and acceptance of
international law as a useful source in interpreting domestic legislation. Common to
each of these categories are examples of significant judicial unease with international
27 S.C. 1992, c. 52. See R. v. Deslisle (2003), 181 B.C.A.C. 55, 2003 BCCA 196; R. v. Kwok Shing
Enterprises Ltd. (2001), 41 C.E.L.R. (N.S.) 288, 2001 BCPC 305.
28 Supra note 25. See Re African Lion Safari & Game Farm Ltd. v. Kerrio (1987), 59 O.R. (2d) 65,
37 D.L.R. (4th) 80 (C.A.); Lechner Estate v. Canada (M.N.R.), [1992] 2 C.T.C. 2615, 46 D.T.C. 2285
(T.C.C.).
2006] N. AFFOLDER INTERNATIONAL BIODIVERSITY LAW IN CANADA
law sources and a reticence to apply international law as anything other than an
interpretive aid for domestic statutes.
225
1. Judicial Silence
International biodiversity law arguments are frequently met by judicial silence.
Judges may not address these arguments at all or they may expressly acknowledge
that international law arguments will not be considered. Often, this refusal to consider
international law is not explained.
A recent example of this lack of engagement with international biodiversity law
is the 2005 decision of the Federal Court in Pembina Institute for Appropriate
Development v. Canada (Minister of Fisheries and Oceans).29 This case is one of
several challenging the regulatory approvals granted to Cardinal River Coals Ltd. for
an open pit coal mine project within a few kilometres of Jasper National Park. The
Pembina Institute, along with other regional, provincial, and national conservation
groups represented by the Sierra Legal Defence Fund (together, the Conservation
Groups), sought an order to quash the project authorization and to compel the
Department of Fisheries and Oceans to prepare an environmental assessment of
project modifications. In their submissions, the Conservation Groups argued that the
Federal Governments 2004 authorization of the first part of the mine should be
quashed because of the mines potential to destroy sensitive migratory bird habitat in
violation of the Migratory Birds Convention Act. Their argument advanced a
purposive interpretation of the Migratory Birds Convention Act reflective of Canadas
commitments under the Migratory Birds Convention to not only protect species, but
also the lands and waters on which they depend.30
The Conservation Groups argued that the Migratory Birds Convention Act should
be interpreted in a manner consistent with Canadas international obligations, and an
interpretation that fulfills Canadas treaty commitments should be preferred over one
that does not.31 In support of this argument, they referred to Canadas obligation under
article 8 of the Biodiversity Convention to [p]romote the protection of ecosystems,
natural habitats and the maintenance of viable populations of species in natural
surroundings32 and,
to [p]romote environmentally sound and sustainable
development in areas adjacent to protected areas with a view to furthering protection
of these areas.33 The Conservation Groups interpreted subsection 35(1) of the
Migratory Birds Regulations34 as prohibiting the deposit of a substance harmful to
29 (2005), 16 C.E.L.R. (3d), 2005 FC 1123 [Pembina Institute].
30 Ibid. (Memorandum of Argument of the Applicants at para. 106 [Pembina Institute (MAA)]).
31 Pembina Institute (MAA), ibid. at paras. 112-13. For support on this point, the applicants referred
to 114957 Canada Lte (Spraytech, Socit darrosage) v. Hudson (Town of), [2001] 2 S.C.R. 241 at
paras. 30-31, 200 D.L.R. (4th) 419, 2001 SCC 40, LHeureux-Dub J. [Spraytech cited to S.C.R.].
32 Biodiversity Convention, supra note 13, art. 8(d).
33 Ibid., art. 8(e).
34 C.R.C., c. 1035.
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migratory birds in any waters of areas frequented by migratory birds or the
authorization of such a deposit.35 They argued that their interpretation of the provision
is preferable in light of Canadas obligations under the Biodiversity Convention. In
rejecting the Conservation Groups applications, the Federal Court was entirely silent
on these points of international law and the presumption of legislative conformity.36
In Repap,37 the validity of an injunction preventing certain defendants from
blockading a roadway and impeding REPAPs logging operations was challenged. In
their arguments requesting a rescission of the injunction, a group of the defendants,
the Friends of Christmas Mountain, argued that the injunction against them should be
rescinded, as there were inaccuracies in the affidavit on the basis of which it was
granted and as:
there has been disregard of the Convention on Biological Diversity concluded
in June of 1992 at Rio de Janeiro between Canada and many other countries. As
a result … there is a significant breach of international law being committed in
the operations that are being carried on and therefore the court should not grant
injunctive relief.38
Although not directly articulated in the case, the legal test for rescinding an
injunction demands the court to look anew at the evidence provided in support of the
injunctive order and to determine whether the test for an interlocutory injunction is
satisfied.39 The test involves the tripartite considerations of a serious question to be
tried, the suffering by the applicant of irreparable injury, and finally a
consideration of the balance of convenience.40 The Friends of Christmas Mountain
argued that in weighing the balance of convenience, the judiciary should not favour
an approach that shows disregard for international law.
The court rejected this argument without discussion and rejected the application
to rescind the injunction. In the words of Justice Riordon, [t]here is no question that
there are matters of great concern at issue. There is no question that maybe they
should be addressed in other forums.41 Even putting aside the strange juxtaposition
of no question and maybe in this statement, this case is unsatisfactory in its lack
of precision on the international law points. What section of the Biodiversity
Convention was claimed to be violated? Was this section implemented in Canadian
35 Pembina Institute (MAA), supra note 30 at paras. 106-109.
36 Pembina Institute, supra note 29.
37 Supra note 2.
38 Ibid. at para. 9.
39 Yaghi v. WMS Gaming Inc. (2003), 18 Alta. L.R. (4th) 280 at para. 23, [2004] 2 W.W.R. 657, 2003
40 American Cyanamid v. Ethicon Ltd., [1975] A.C. 396 at 399-402 (H.L.); RJR-MacDonald v.
Canada (A.G.), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385.
41 Repap, supra note 2 at para. 12.
ABQB 680.
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law? The Biodiversity Convention was ratified by Canada in 1992, and at the time of
the Repap litigation was at least partially implemented in Canada.42
Wellington Centre and Malpeque Bay Concerned Citizens Committee Inc. v.
Prince Edward Island (Minister of Environmental Resources)43 offers another
example of a case where an international treaty was invoked in argument, yet its
relevance rejected without explanation. The case involves an application for judicial
review of a decision approving a new waste management facility by a group of
citizens living near the proposed site. The citizens group argued that the
environmental assessment and Ministers report approving the disputed site were both
insufficient, one of the deficiencies being a failure to mention the Ramsar
Convention. Specifically, the applicant (Wellington Centre and Malpeque Bay
Concerned Citizens Committee Inc.) asserted that the Ministers approval was
without jurisdiction as it was based on an environmental impact assessment
invalidated by arbitrary prior constraints and exclusions.44 One such exclusion was
the failure to mention the significance of the Ramsar Convention.45 In dismissing the
application, Justice Jenkins of the Prince Edward Island Supreme Court held that the
Ministers decision was not patently unreasonable, that appropriate considerations
were addressed, and that [t]he consultant and the Minister had no duty to make
special mention regarding the Ramsar Convention.46
This statement was not explained further. As in the case of Repap, a treaty was
invoked with no precise reference to which section of the treaty was of concern, and
whether the relevant section has been implemented in Canadian law. Whether the
Ramsar Convention is incorporated in Canadian law was not explored in this case.47
2.
International Law Is Not Applicable As It Is Not Implemented in
Canadian Law
Moving beyond those judgments where the rejection of international law sources
goes unexplained, the cases in this section reveal a greater clarity in rejecting
international treaty obligations on the basis that these obligations are not transformed
into Canadian law. In MacMillan Bloedel,48 Justice Drake of the British Columbia
42 This implementation was not by statute, but through a range of non-statutory instruments
including the Canadian Biodiversity Strategy (1995), online: Environment Canada: Canadian
Biodiversity Information Network
43 (1996), 148 Nfld. & P.E.I.R. 41, 22 C.E.L.R. (N.S.) 252 (P.E.I. S.C. (T.D.)) [Wellington Centre
cited to Nfld. & P.E.I.R.].
44 Ibid. at para. 43.
45 Supra note 20.
46 Ibid. at para. 46.
47 For a discussion of the passive incorporation of the Ramsar Convention in Canadian law, see
Elizabeth Brandon, Does International Law Mean Anything in Canadian Courts? (2001) 11 J. Envtl.
L. & Prac. 399 at 418-19.
48 MacMillan Bloedel (S.C.), supra note 2.
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Supreme Court heard an application to rescind an injunction prohibiting the
defendants from interfering with MacMillan Bloedels logging operations in
Clayoquot Sound. The test for rescinding an injunction was not considered by the
court here, as the motion was rejected on jurisdictional grounds. In the short oral
dismissal of the motion, Justice Drake addressed the defendants arguments relating
to international agreements and resolutions.49 He dismissed these arguments,
observing:
[Vol. 51
In these circumstances, there is no point in dealing with the extensive
submissions of the applicants, interesting as they were. However, I will simply
say, as far as their merits are concerned, that the argument relating to
international agreements and resolutions, these not being expressed in Canadian
law, are not relevant to this inquiry.50
This sweeping rejection of the international law arguments of the defendants,
based on the classic incantation that treaties must be implemented by statute to alter
domestic law, is made absent any detailed discussion of the international agreements
at issue. In appealing this decision, the applicants asserted that Mr. Justice Drake
erred in his assessment of international law …51 in his reliance on the Labour
Conventions case52 to find the international treaties inapplicable. Ms. Russow
(unrepresented by counsel in these arguments) attempted to distinguish the Labour
Conventions case, arguing that the provincial court has an obligation not to defeat a
ratified treaty. She argued that by granting and extending the injunction, the court
violated this obligation by contributing to non-compliance with Canadas obligations
under the Biodiversity Convention.
The British Columbia Court of Appeal rejected Russows argument and held that
British Columbia courts have no jurisdiction to apply international law. Justice
Carrothers judgment is revealing in a number of respects. He states:
I have not been shown and I have been quite unable to discern or identify any
pertinent or applicable principle of international law, whether developed by
custom and usage, treaty or convention, or legislative or judicial determination,
which falls within the judicial capacity and function of the courts of this
province.53
This statement is clearly an invitation for advocates to argue points of
international law with greater clarity and precision. Justice Carrothers documented his
consideration of the applicants extensive submissions which she herself called a
49 Ibid. at para. 7.
50 Ibid.
51 MacMillan Bloedel (C.A.), supra note 2 at para. 6.
52 Supra note 6.
53 MacMillan Bloedel (C.A.), supra note 2 at para. 7 [emphasis added].
229
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lecture rather than an argument54 as well as the assemblage of material contained in
the applicants leave book, which cannot be summarized.55
Kohl v. Canada (Minister of Agriculture)56 is a case where the Biodiversity
Convention appears to have been included in the argument as a last resort. In this
case, a breeder argued that an order to destroy a Highland bull contravened Canadas
international obligations under the Biodiversity Convention with respect to
preservation and conservation of rare genetic resources.57 The respondent countered
with the argument that the applicant did not have standing to represent the interest of
the Highland breed and that the Biodiversity Convention only came into force on 22
December 1993, after the date of the decision to destroy the cattle.58
Rather than accept or reject these arguments as to the legal effect of the
Biodiversity Convention in Canada, the Federal Court stated: The legislature has
specifically provided for the protection of the health of animals and, in that context,
this portion of the applicants argument is not convincing.59 This precluded any
further discussion of the Biodiversity Convention and whether it is incorporated in
Canadian law.
3. Judicial Uncertainty
Judicial discomfort in defining the precise legal status of an international law
source is not limited to treaties that Canada has ratified, such as the Biodiversity
Convention. This unease can also be seen in cases where the principles argued may
amount to customary international law. In the wake of Justice LHeureux-Dubs
decision in Spraytech,60 Canadian environmental groups are repeatedly calling on the
courts to apply the principle of precaution as customary international law binding on
Canada.
In Western Canada Wilderness Committee v. British Columbia (Ministry of
Forests, South Island Forest District),61 an environmental group sought to quash a
determination by Cindy Stern, the District Manager of the Ministry of Forests, under
54 Ibid. at para. 6.
55 Ibid. at para. 7.
56 (1994), 81 F.T.R. 35, 28 Admin. L.R. (2d) 38 (T.D.) [Kohl cited to F.T.R.], revd on other grounds
(1995), 99 F.T.R. 319, 185 N.R. 149 (C.A.).
57 Ibid. at para. 99.
58 Ibid. at para. 100.
59 Ibid. at para. 101.
60 Spraytech, supra note 31. The decision quotes authorities stating that there may be sufficient state
practice to allow a good argument that the precautionary principle is a principle of customary
international law … (ibid. at para. 32).
61 (2002), 50 C.E.L.R. (N.S.) 56, 45 Admin. L.R. (3d) 161, 2002 BCSC 1260 [WCWC (S.C.) cited
to C.E.L.R.], affd (2003), 15 B.C.L.R. (4th) 229, 1 C.E.L.R. (3d) 185, 2003 BCCA 403 [WCWC
(C.A.) cited to B.C.L.R.].
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in a manner consistent with
international
law, specifically
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subsection 41(1) of the Forest Practices Code of British Columbia Act,62 approving
timber harvesting of a block of forest that was home to the Northern spotted owl, a
species at risk of extinction. In its submissions, the Western Canada Wilderness
Committee (WCWC) argued that subsection 41(1) of the Code should be
interpreted
the
precautionary principle and Canadas obligations under the Biodiversity Convention.63
It submitted that Ms. Sterns failure to interpret subsection 41(1) of the Code in a
manner consistent with these international obligations was an error of statutory
interpretation.64 Justice Shabbits, the trial judge, found no such error.
WCWC appealed the decision. The British Columbia Court of Appeal considered
whether Ms. Sterns decision was patently unreasonable for failing to give effect to
the precautionary principle, rendering the decision of the chambers judge incorrect.
Justice Prowse, writing for the appeal court, rejected WCWCs argument that a
standard of review of correctness applied since the question was one of statutory
interpretation. Instead, she found the critical question in the case to be whether the
substance of her [Ms. Sterns] decision was patently unreasonable.65 Justice Prowse
observed that [w]hile the applicability of the precautionary principle was raised
before Ms. Stern, she does not state whether she took it into account in reaching her
decision. The chambers judge was of the view that she did not and that her failure to
do so did not constitute error.66
Justice Prowse noted that the precautionary principle was not incorporated in the
Code.67 She observed that Ms. Stern did not specifically refer to the precautionary
principle in her analysis, that she may not have given full effect to the
precautionary principle, but that her decision reflects a degree of caution akin to
that reflected in the precautionary principle.68
This decision is capable of several contradictory interpretations and leaves many
questions unanswered. What is the significance of the fact that Ms. Sterns decision
exhibited a degree of caution akin to the precautionary principle? Did Ms. Stern
have a legal obligation to interpret the relevant legislation in a manner consistent with
precautionary principle? Is this a suggestion that the precautionary principle has some
legal status under Canadian law? Or is this statement simply a way of explaining the
absence of a more thorough engagement with the meaning of the precautionary
principle in Canadian and international law?
62 R.S.B.C. 1996, c. 159 [Code].
63 WCWC (S.C.), supra note 61 at para. 70.
64 Ibid. at para. 71.
65 WCWC (C.A.), ibid. at para. 33.
66 Ibid. at para. 74.
67 Ibid. at para. 80.
68 Ibid. at paras. 79-80.
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231
4.
International Law As An Interpretive Aid in Statutory Interpretation
Courts appeal to international biodiversity law as an aid in domestic statutory
interpretation in different ways. First, a number of Canadian cases reveal that the
courts are willing to consider substantive provisions of an international treaty in the
interpretation of its enabling domestic statutes. A second, more expansive, use of
international law sources is emerging in biodiversity cases following the approach of
the Supreme Court in Baker and Spraytech, where international law sources are seen
as useful interpretive aids outside the limited context of enabling legislation.
In a number of biodiversity cases, judges use the Migratory Birds Convention
with admirable clarity to interpret the Migratory Birds Convention Act. In Animal
Alliance of Canada v. Canada (A.G.),69 Justice Gibson considered both the
Convention and the Act in an application for judicial review of the Regulations
Amending the Migratory Birds Regulations.70 The regulations create a special hunting
season, during which hunters can kill overabundant species of snow geese and
species not easily distinguishable from snow geese, including Ross geese. The
applicants (a coalition of the Animal Alliance of Canada, the Animal Protection
Institute, the Canadian Environmental Defence Fund, the Dene Nation, and Zoocheck
Canada Inc.) argued that the Regulations violate the Migratory Birds Convention and
are thus ultra vires the implementing legislation, the stated purpose of which is to
implement the Convention.71 This argument was successful before the Federal
Court, and the Regulations were found to be ultra vires insofar as they authorize the
killing of Ross geese and other species not easily distinguishable from snow geese. In
arriving at this determination, Justice Gibson discussed the relevant principles of
statutory interpretation with clarity and precision. He considered the substantive
language of the Convention in detail, noting the authority of courts to look at the
international convention underlying implementing legislation to assist interpretation,
even in the absence of ambiguity on the face of the legislation.72 In interpreting
Canadian statutes such as the Migratory Birds Convention Act, he acknowledged the
presumption of conformity with international law.73
Justice Gibsons decision in Animal Alliance stands as a rare example of a
considered and clear use of international law sources in statutory interpretation. A
much more limited role for the Convention arises in R. v. Blackbird.74 This case
concerned the relationship between a local band bylaw governing migratory bird
hunting on a reserve and the Migratory Birds Convention Act. Blackbird, who had
been charged with fifty-three counts of illegal hunting practices contrary to the Act,
69 [1999] 4 F.C. 72, 168 F.T.R. 114 (T.D.) [Animal Alliance cited to F.C.].
70 S.O.R./99-147 [Regulations].
71 Animal Alliance, supra note 69 at para. 32.
72 Ruth Sullivan, Driedger on the Construction of Statutes, 3d ed. (Toronto: Butterworths, 1994) at
73 Animal Alliance, supra note 69 at para. 34.
74 (2005), 74 O.R. (3d) 241, 248 D.L.R. (4th) 201 (C.A.).
397.
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argued that the local bylaw ousts the jurisdiction of the Act, as the bylaw constitutes a
complete code regulating the hunt of migratory birds on the reserve. In rejecting
this submission, Justice Laskin observed that the two regimes are overlapping, but not
conflicting. Dual compliance is possible and the appellant could be charged under
either regime. He found it particularly significant in arriving at this finding that the
regulatory regime underlying the Act is
[Vol. 51
… derived from a Convention and a Protocol, [and] was designed to redress a
serious environmental concern in North America. I do not think that a local by-
law could oust this international regime unless, at a minimum, the by-law
contained clear language expressing this ouster …75
It is difficult to ascertain here what particular legal significance, if any, attaches
to the fact that the statute in question implements an international obligation, as a
bylaw will be displaced by a statute regardless of whether it is implementing
legislation or not.
A further example of reliance on the Migratory Birds Convention is Justice
Campbells 1999 decision in Alberta Wilderness Association v. Cardinal River Coals
Ltd.,76 an early decision in the litigation around the Cheviot Coal Mine. In this case,
Justice Campbell used the preamble to the Convention to justify a broad
interpretation of the words any other substance in the impugned statute: the
Migratory Birds Convention Act. The case involved a challenge to a decision by the
federal Minister of the Environment and the Alberta Energy and Utilities Board
authorizing the construction of the mine. Based on a reading of the purpose of the Act
and the Convention, Justice Campbell found a clear intention expressed to provide
wide protection to migratory birds.77 He therefore concluded that a similarly wide
interpretation should be given to the phrase any substance under the Act and that
any substance, including oil and oil wastes, is capable of being prohibited if it is
harmful.78
D. The Practice of Environmental Appeal Boards
Despite the absence of clear authority for the proposition that environmental
appeal boards can take official notice of international law, the practice of
environmental appeal boards is beginning to reflect some willingness to engage with
international law sources in interpreting Canadian law.79 Two cases of the British
75 Ibid. at para. 22.
76 Alberta Wilderness Association v. Cardinal River Coals Ltd., [1999] 3 F.C. 425, 165 F.T.R. 1
(T.D.) [AWA v. Cardinal River Coals cited to F.C.].
77 Ibid. at para.103.
78 Ibid. at para.103 [emphasis in original].
79 For a discussion of the doctrine of official notice as it applies to administrative tribunals see
Brown and Evans, Judicial Review of Administrative Action in Canada, looseleaf (Toronto:
Canvasback, 2004) at 10:8000. Van Ert, supra note 4 at 37-39, discusses the practice of Canadian
233
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Columbia Environmental Appeal Board reflect this practice. Resident Advisory Board
v. British Columbia (Ministry of Environment, Lands and Parks)80 is a 1998 decision
of the British Columbia Environmental Appeal Board in which both parties argued
the relevance of substantive provisions of the Biodiversity Convention. The appellants
attempted to appeal a pesticide use permit issued to the Canadian Food Inspection
Agency (CFIA) that authorized the use of a particular pesticide to eradicate gypsy
moth populations. In support of their arguments, they submitted that the spray
program contravened the Biodiversity Convention because it failed to respect a
precautionary approach and because an environmental assessment had not been
conducted, as required by article 14 of the Biodiversity Convention for projects likely
to have an adverse impact on biological diversity.
The appellants also argued that the precautionary principle applies in Canada as
customary international law and at the very least, the precautionary principle would
require CFIA and the respondent to show that they carefully assessed the risks to
health and biodiversity and chose the least destructive alternative measure to deal
with the risk.81 One of the appellants specifically referred the panel to article 14 of
the Biodiversity Convention, which provides that the contracting parties, as far as
possible and as appropriate, shall introduce appropriate procedures requiring
environmental impact assessment of its proposed projects that are likely to have
significant adverse effects on biological diversity.82
The response of the CFIA was to refer the panel to article 8(h) of the Convention,
stating the obligation of contracting parties to prevent the introduction of alien
species and to control or eradicate those alien species which threaten ecosystems,
habitats or species.83 The panel neither addressed the question of the legal status of
the Biodiversity Convention in Canada nor offered an analysis of the substantive
arguments made by the parties concerning the Biodiversity Convention. Without
saying that it has an obligation to do so, the panel attempted to adopt an approach
consistent with the Biodiversity Convention. The panel stated that its very task
under domestic law is analogous to that demanded by the Convention, namely
determining whether there is an unreasonable adverse impact in issuing a permit.84
The panel found that the Convention provides general principles that the contracting
parties should adhere to in the conservation and sustainable use of biological
tribunals (although not specifically referencing environmental appeal boards) taking judicial notice
of international law.
80 [1998] B.C.E.A. No. 19 (QL) [Resident Advisory Board]. The appellants included the Resident
Advisory Board, Sierra Club-Victoria Group, the Ecological Health Alliance, the B.C. Branch of the
Allergy and Environmental Health Association, Stop Overhead Spraying, the Unitarian Church of
Victoria, and Fernwood Community Association.
81 Ibid. at para. 52.
82 Supra note 13, art. 14.
83 Ibid., art. 8(h).
84 Resident Advisory Board, supra note 80 at para. 54.
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diversity … 85 The panel did not address the argument that the precautionary
principle is to be applied as it reflects customary international law.
The decision in Resident Advisory Board is applied and further explained in a
second case before the British Columbia Environmental Appeal Board challenging
the validity of a pesticide permit to eradicate gypsy moths. In Fitzmaurice v. British
Columbia (Ministry of Environment, Lands & Parks),86 the environmental health
organization appellants argued that the permit itself (and the spraying program it
authorized) failed to comply with the precautionary approach of the Biodiversity
Convention. This argument is different from that in Resident Advisory Board, where it
was argued that the problem was the process by which the permit was issued. In
response, the panel stated that it agreed with and adopted
the reasoning of the Board in the 1998 Resident Advisory Board decision that
the Convention provides general principles for the conservation and sustainable
use of biological diversity, and that weighing of risks and benefits is the very
kind of analysis contemplated by the Convention, and undertaken in
determining whether there is an unreasonable adverse impact in issuing a
permit.87
The panel noted that it had very little evidence properly before it to undertake this
task of weighing risks and benefits, and based on the limited evidence available
arrived at the following equation: Likely non-permanent significant decrease in
non-target Lepidoptera versus threat of trade restrictions on some forest products and
nursery stock, and subsequent economic harm.88 The panel found that there was
evidence that the use of the pesticide authorized by the permit would have an adverse
effect on the environment, but to conclude that this adverse effect is unreasonable,
it must find that the intended benefit of the proposed spray program [would]
outweigh the adverse effect in the proposed spray site.89 Noting the constraints of
this possible analysis, the panel concluded that the adverse effect is not unreasonable
in the circumstances of this permit, given the limited evidence before it, and confined
as it is by legislation and case law to site specific considerations.90 The panel
acknowledged that this leads to less than satisfactory results and urged the permit
holder to seriously reconsider the requirement for eradication, and contemplate an
approach to the gypsy moth that uses alternative methods for control.91
85 Ibid.
86 [2000] B.C.E.A. No. 22 at para. 48 (QL) [Fitzmaurice].
87 Ibid. at para. 49. The appellants included representatives of the Ecological Health Alliance, the
Sierra Club (Victoria Group), Stop Overhead Spraying Coalition, Green Party of Canada, Society
Targeting Overuse of Pesticides, Society Promoting Environmental Conservation, and various
individuals.
88 Ibid. at para. 50. Lepidoptera is defined as a large order of insects comprised of butterflies, moths
and skippers that as adults have four broad wings and that as larvae are caterpillars (ibid. at n. 1).
89 Ibid. at para. 41 [emphasis added].
90 Ibid. at para. 51.
91 Ibid. at para. 52.
235
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In these two cases, the British Columbia Environmental Appeal Board advanced
an approach consistent with the general principles of the Biodiversity Convention.
This approach is articulated without any doctrinal discussion of the legal status of this
treaty in Canada, nor any discussion of the common law presumption of legislative
conformity with international law obligations. Environmental appeal boards are
tasked with interpreting and applying Canadian law, including statutes that include
principles of
law origin, such as precaution and sustainable
development.92 Even absent explicit articulation of their authority to do so, these
tribunals consider submissions founded in international law, take official notice of
international law, and are likely to continue doing so.
international
E. The Role of Environmental Advocacy Groups
International Law
in Arguing
law. How do
international biodiversity
The above disaggregation of judicial decisions reveals a limited engagement of
Canadian courts with
international
biodiversity law arguments reach the court in the cases where they feature? More
often than not, international biodiversity law reaches a Canadian court because it is
argued by an environmental advocacy group, acting either as a plaintiff, defendant, or
intervenor. In well over fifty per cent of the cases where these international treaties
are cited, their mention can be traced back to the argument of an environmental
advocacy group.
Of the six cases that explicitly refer to the Migratory Birds Convention, three
involve environmental advocacy groups: in two cases the advocacy groups were
plaintiffs advancing international law arguments,93 and in the third, the group was an
intervenor.94 Of the six cases to specifically address the Biodiversity Convention, four
involve environmental advocacy groups, three as plaintiffs,95 and one as a
defendant.96 In each instance, arguments based on the Biodiversity Convention
originated in the submissions of these environmental group litigants. Two cases
explicitly refer to the Ramsar Convention. In one of these cases, consideration of the
Ramsar Convention was argued by the citizens group plaintiff.97 In the second case,
92 See e.g. Environmental Protection and Enhancement Act, R.S.A. 2000, c. E-12 (ss. 2 and 40 refer
to sustainable development). The Alberta Environmental Appeal Board has considered international
law sources in defining sustainable development and the precautionary principle. See Re Mountain
View Regional Water Services Commission, [2004] A.E.A.B.D. No. 9 at para. 195 (QL) (referring to
the Bruntland Report); Re Imperial Oil Ltd., [2002] A.E.A.B.D. No. 48 at para. 142 (QL) (referring to
the Bergen Ministerial Declaration on Sustainable Development).
93 Animal Alliance, supra note 69; AWA v. Cardinal River Coals, supra note 76.
94 Hamilton-Wentworth (Regional Municipality of) v. Canada (Minister of the Environment) (2001),
204 F.T.R. 161, 2001 FCT 381, affd (2001), 213 F.T.R. 57, 284 N.R. 248, 2001 FCA 347.
95 Resident Advisory Board, supra note 80; WCWC (S.C.), supra note 60; Fitzmaurice, supra note
96 Repap, supra note 2.
97 Wellington Centre, supra note 43.
86.
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the initial mention of the Ramsar Convention is found in a report of the towns
department of planning services, a department lobbied by numerous conservation
groups including one of the respondents in this case, the Boundary Bay Conservation
Committee.98 Of the five cases to specifically address World Heritage status under the
World Heritage Convention, one case was brought by the Bow Valley Naturalists
Society,99 and another two by the Canadian Parks and Wilderness Society.100 In each
of these cases, World Heritage status was raised in argument by the environmental
group litigants.
The significant role of environmental advocacy groups in bringing international
law sources to the attention of Canadian courts is not restricted to biodiversity
treaties. It exists across the field of international environmental law. In four of the six
recent cases where the Supreme Court of Canada has addressed international
environmental law sources, the international law arguments were brought to the
Courts attention by environmental group intervenors.101 A recent study documents the
Supreme Courts reliance on authorities cited by public interest intervenors in its
environmental law jurisprudence.102 The significant role of environmental advocacy
groups in bringing international law arguments to the attention of Canadian courts
may be unique to the environmental law area. In other fields where courts have cited
international law with a greater frequency, such as in human rights law, Canadian
judges and counsel may be more familiar with the relevant international law,
especially the major international human rights treaties.
Despite their significant role in domestic environmental litigation, little academic
analysis of Canadian environmental advocacy groups exists.103 The few Canadian
98 Jones v. Delta (District) (1992), 92 D.L.R. (4th) 714, 69 B.C.L.R. (2d) 239 (C.A.), leave to appeal
to S.C.C. refused, [1993] 2 S.C.R. viii.
99 Bow Valley Naturalists Society v. Canada (Minister of Canadian Heritage) (1999), 175 F.T.R.
122, 32 C.E.L.R. (N.S.) 84 (T.D.), affd [2001] 2 F.C. 461, 266 N.R. 169 (C.A.).
100 Canadian Parks and Wilderness Society v. Banff National Park (Superintendent) (1996), 202
N.R. 132, 20 C.E.L.R. (N.S.) 171 (F.C.A.), leave to appeal to S.C.C. refused, [1997] 1 S.C.R. vi;
Canadian Parks and Wilderness Society v. Canada (Minister of Heritage), [2003] 4 F.C. 672, 1
Admin. L.R. (4th) 103, 2003 FCA 197.
101 Jerry V. DeMarco & Michelle L. Campbell, The Supreme Court of Canadas Progressive Use of
International Environmental Law and Policy in Interpreting Domestic Legislation (2004) 13 Review
of European Community and International Environmental Law 320 at 330. The six Supreme Court
cases examined by the authors are R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401, 49
D.L.R. (4th) 161; Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1
S.C.R. 3, 88 D.L.R. (4th) 1; Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, 125 D.L.R. (4th)
385; R. v. Hydro-Qubec, [1997] 3 S.C.R. 213, 151 D.L.R. (4th) 32; Spraytech, supra note 31;
Imperial Oil Ltd v. Quebec (A.G.) ex rel. Minister of the Environment, [2003] 2 S.C.R. 624, 231
D.L.R. (4th) 577, 2003 SCC 58.
102 Jerry V. DeMarco, Assessing the Impact of Public Interest Interventions on the Environmental
Law Jurisprudence of the Supreme Court of Canada: A Quantitative and Qualitative Analysis 30 Sup.
Ct. L. Rev. 299.
103 For a rare discussion of the impact of Canadian environmental groups on Canadian litigation see
Stewart A.G. Elgie, Environmental Groups and the Courts: 1970-1992 in Geoffrey Thompson,
237
relations.104 Details of
2006] N. AFFOLDER INTERNATIONAL BIODIVERSITY LAW IN CANADA
studies that examine the role of domestic environmental groups in Canadian
processes appear primarily in management literature, focusing on multi-stakeholder
their constituencies,
initiatives and corporate-NGO
membership, sources of support, and international law expertise are all largely
unknown. In the United States, theoretical interest in civil society has translated into
early attempts to analyze and catalogue environmental advocacy groups. Business
school cases on environmental groups are emerging,105 critical analysis of their
strategic campaigns beginning,106 and attempts to create taxonomies by which to
classify non-profits are materializing.107 Where the international-local nexus is
examined, however, it is the role of local and national non-profit groups in
contributing to global legal processes that attracts attention.108 In contrast, this article
examines the process by which these international legal agreements are internalized
in Canada.
One of the challenges of analyzing the work of Canadian environmental
advocacy groups is the erroneous assumption of these groups homogeneity.
Moira L. McConnell & Lynne B. Huestis, eds., Environmental Law and Business in Canada (Aurora,
Ont.: Canada Law Book Inc., 1993) 185. For other analysis of Canadian environmental groups, see
Jeremy Wilson, Green Lobbies: Pressure Groups and Environmental Policy in Robert Boardman,
ed., Canadian Environmental Policy: Ecosystems, Politics, and Process (Toronto: Oxford University
Press, 1992) 109; Jerry V. DeMarco & Anne C. Bell, The Role of Non-Government Organizations in
Biodiversity Conservation in Stephen Bocking, ed., Biodiversity in Canada: Ecology, Ideas, and
Action (Peterborough, Ont.: Broadview Press, 2000) 347; Alison Van Rooy, The Frontiers of
Influence: NGO Lobbying at the 1974 World Food Conference, The 1992 Earth Summit and Beyond
(1997) 25 World Development 93; Andrew Fenton Cooper & J.-Stefan Fritz, Bringing the NGOs in:
UNCED and Canadas International Environmental Policy (1992) 47 Intl J. 796.
104 Sanjay Sharma & Irene Henriques, Stakeholder Influences on Sustainability Practices in the
Canadian Forest Products Industry (2005) 26 Strategic Management Journal 159; Mae Burrows,
Allied Forces: Unions and Environmentalists Can Work Together for Jobs and Ecological
Sustainability (1998) 24:4 Alt. J. 18; Frances Westley & Harrie Vredenburg, Strategic Bridging: The
Collaboration Between Environmentalists and Business in the Marketing of Green Products (1991)
27 Journal of Applied Behavioral Science 65; Patrick C. Fafard, Groups, Governments and the
Environment: Some Evidence from the Harmonization Initiative in Patrick C. Fafard & Kathryn
Harrison, eds., Managing the Environmental Union: Intergovernmental Relations and Environmental
Policy in Canada (Kingston, Ont.: Institute of Intergovernmental Affairs: Saskatchewan Institute of
Public Policy, 2000) 81.
105 See e.g. Forest Reinhardt, Environmental Defense (2003), online: Harvard Business School
Press
International Rivers Network and the Bujagali Dam Projet (A) (2004), online: Harvard Business
School Press
106 Debora L. Spar & Lane T. La Mure, The Power of Activism: Assessing the Impact of NGOs on
Global Business (2003) 45:3 California Management Review 78.
107 See e.g. P.J. Simmons, Learning to Live with NGOs (1998) 112 Foreign Policy 82 at 85.
108 See Margaret E. Keck & Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks in
International Politics (Ithaca, N.Y.: Cornell University Press, 1998). See also Bas Arts, The Political
Influence of Global NGOs: Case Studies on the Climate and Biodiversity Conventions (The
Netherlands: International Books, 1998); Rupert Taylor, ed., Creating a Better World: Interpreting
Global Civil Society (Bloomfield, Conn.: Kumarian Press, Inc., 2004).
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Significant differences exist between environmental advocacy groups in terms of
purpose, principal activities, acceptable means of financial support, and willingness to
form alliances. Significant conflict can also exist within and between these groups,
and treating such organizations, and the coalitions that emerge between them, as sites
of uncontested opinion oversimplifies the challenges these campaigns face.
Differences of opinion thus emerge both within and between advocacy groups over
the importance to attach to international law arguments in specific campaigns or
litigation.
Several public interest organizations now exist in Canada that specialize in legal
issues including litigation, law reform, and legal advice. These organizations, which
include the Sierra Legal Defence Fund and the Canadian Environmental Law
Association, appear frequently in the cases that are the subject of this study. The
regular and consistent involvement of these groups allows them to build a fluency in
arguing international biodiversity sources unmatched by other counsel. In this way, a
handful of international environmental law experts within the Canadian public
interest environmental community are able to have a considerable impact on the
international law arguments heard by Canadian courts. West Coast Environmental
Law, another law-focused public interest organization, has produced an accessible
guide explaining international environmental law treaties to non-experts.109 This
publication evidences another powerful way in which environmental groups
contribute to the wider understanding of international biodiversity law in Canada.
A significant aspect of the work of several Canadian environmental groups is that
they are active both internationally and domestically. The transnational process of
forging connections between the international and local spheres is a unique
contribution of environmental advocacy groups to effective biodiversity protection,
but again, little analysis of this work exists. The day-to-day use of international law
arguments by environmental groups in domestic litigation or campaign strategies, in
Canada or elsewhere, has yet to be examined by scholars.110 Canadian environmental
groups are active in transnational public litigation and inform international trade
dispute resolution through the submission of amicus curiae briefs.111 In recent years,
Canadian environmental groups have participated in international treaty negotiations
as members of official Canadian delegations. The nature of the relationship between
109 Linda Nowlan & Chris Rolfe, Kyoto, POPs and Straddling Stocks: Understanding
Environmental Treaties (Vancouver: West Coast Environmental Law, 2003).
110 One book-length study of the techniques used by environmental NGOs to protect biodiversity
makes no mention at all of using international law in domestic courts as a possible strategy. See
Michael M. Gunter, Jr., Building the Next Ark: How NGOs Work to Protect Biodiversity (Hanover,
N.H.: Dartmouth College Press, 2004).
111 See International Institute for Sustainable Development, Amicus Curiae Submissions, In the
Arbitration Under Chapter 11 of the North American Free Trade Agreement and the UNCITRAL
Arbitration Rules Between Methanex Corporation and United States of America (9 March 2004),
online: International Institute for Sustainable Development
239
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this participation and the domestic litigation employed to enforce these treaties
remains to be elucidated.
A critical challenge arising from a reliance on environmental advocacy groups to
bring forward international law arguments is the limited support these groups receive
for this work. Fundraising for international law issues proves challenging for law-
focused public interest environmental groups. These groups also suffer from the
absence of a Canadian institution dedicated to promoting international environmental
law domestically. Such institutions exist in the United States112 and Britain113 and can
provide crucial support for domestic efforts to give effect to international
environmental law.
II. International Law Arguments Outside the Courtroom
International law arguments are employed by environmental advocacy groups in
campaign strategies extending beyond the courtroom. In the wider campaigns that
surround the litigation explored in the first section of this article, Canadas reputation
as both a law-abiding nation and as an international leader in issues of environmental
protection is attacked. Unhampered by the doctrinal restrictions on how international
law is received by Canadian courts, environmental advocacy groups use international
law arguments as a tool in these campaigns. International law is strategically used to
shame Canada, through media and public opinion campaigns, transnational litigation,
and market tools. Analysis of how these strategies are used in two campaigns, the
campaign for endangered species legislation in Canada and the campaign against the
Cheviot Mine, reveals how environmental advocacy groups attempt to foster
compliance with Canadas international legal obligations through the deployment of
shame.
Shame can be a potent tool in fostering compliance with international law. A
growing body of international legal theory attempts to elucidate the role of
reputational concerns in explaining why nations comply with international law even
absent enforcement mechanisms.114 The following analysis of the use of shame in
campaign strategies acknowledges the value of reputation in advocacy campaigns.
International theorists such as Andrew Guzman focus on the external audiences
affected by a countrys reputation:
112 Centre for International Environmental Law (CIEL) in Washington, D.C.
113 Foundation for International Environmental Law and Development (FIELD) in London, U.K.
114 See Andrew T. Guzman, A Compliance-Based Theory of International Law (2002) 90 Cal. L.
Rev. 1825; George W. Downs & Michael A. Jones, Reputation, Compliance, and International Law
(2002) 31 J. Legal Stud. 95. See also Abram Chayes & Antonia Handler Chayes, The New
Sovereignty: Compliance with International Regulatory Agreements (Cambridge, Mass.: Harvard
University Press, 1995) at 27; Harold Hongju Koh, Why Do Nations Obey International Law?
(1997) 106 Yale L.J. 2599.
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Because a countrys reputation has value and provides that country with
benefits, a country will hesitate before compromising that reputation. A country
that develops a reputation for compliance with international obligations signals
to other countries that it is cooperative. This allows the state to enjoy long-term
relationships with other cooperative states, provides a greater ability to make
binding promises, and reduces the perceived need for monitoring and
verification. On the other hand, failure to live up to ones commitments harms
ones reputation and makes future commitments less credible. As a result,
potential partners are less willing to offer concessions in exchange for a
promised course of action.115
The environmental advocacy campaigns discussed below also reveal how
domestic audiences are targeted in reputational attacks on Canada. Underlying these
approaches are assumptions that Canada is concerned about its reputation, and that
Canadians care whether Canada is perceived to be violating international law.
A. The Campaign for Federal Endangered Species Legislation
(1992-2002)
The call for strong federal endangered species legislation emerged prior to the
1992 UNCED Conference in Rio de Janeiro and continued beyond the eventual 2002
enactment of the Species at Risk Act.116 A focus on the campaign between the years
1992 and 2002 allows a detailed look at the argument advanced by environmental
groups that Canada had an international legal obligation to enact federal endangered
species legislation based on its Rio commitments. Specifically, once Canada ratified
the 1992 Biodiversity Convention, Canadian environmental groups narrowed in on
the obligation of contracting parties under article 8(k) to pass endangered species
legislation. This international legal obligation occupied a central place in the
environmental advocacy groups domestic campaign, and these groups never allowed
the international legal sources of Canadas responsibility to protect endangered
species to move off the agenda.
The influence of Canadian environmental groups in the political struggle to enact
federal endangered species legislation waxed and waned over the course of the
decade.117 One factor contributing to the strength of the environmentalist voice was
the ability of a number of considerably diverse environmental groups to unite and
form the Canadian Endangered Species Coalition (the Coalition). The Coalition
was directed by six of the major environmental groups and supported by a hundred
more.
115 Guzman, ibid. at 1849-50 [footnotes omitted].
116 S.C. 2002, c. 29.
117 For a discussion of the politics surrounding this legislation, see William Amos, Kathryn Harrison
& George Hoberg, In Search of a Minimum Winning Coalition: The Politics of Species-at-Risk
Legislation in Canada in Karen Beazley & Robert Boardman, eds., Politics of the Wild: Canada and
Endangered Species (Don Mills, Ont.: Oxford University Press, 2001) 137 at 145.
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The strategies adopted by the Coalition were wide-rangingfrom litigation, to
media campaigns, to public pressure techniques, to international appeals, to consumer
boycotts, to government lobbying. International law occupied a prominent place in
the campaign, although its centrality differed between the litigation and non-litigation
elements of the campaign. In the court cases, international law arguments played a
peripheral role, and were ultimately unsuccessful.118 In the public, media, and
government lobbying campaigns, however, international law and Canadas violation
of its international obligations were central and immoveable aspects of the campaign.
241
1. Public Opinion and the Media
International law arguments played a central role in efforts to shame Canada into
introducing federal endangered species legislation. Coalition campaign materials
routinely focused on the discrepancy between Canadas place as the first
industrialized country to sign and ratify the Biodiversity Convention and Canadas
reluctance to implement its treaty obligations in Canadian law. Specific references to
Canadas failure to enact federal legislation to protect species at risk despite an
obligation under the Biodiversity Convention to do so appeared in headlines, as well
as in the opening sentences of reports, campaign materials, and submissions to Senate
committees.119 Headlines and environmental group-sponsored ads emotively
presented Canadas failure to give effect to the Biodiversity Convention as a
deception or a lie: Canada Lies, Endangered Species Die.120
Canadas internationalist reputation was repeatedly the target of attack. Sierra
Legal Defence Fund criticized Canadas reputation as a world leader in biodiversity
as false through a newspaper ad in the International Herald Tribune emblazoned with
the headline: Think Canada is naturally a world leader in wildlife protection? Think
again. For 10 years the Canadian Government has failed to honour its 1992
Biodiversity Convention promise to enact effective endangered species legislation.121
An article by David Suzuki emphasized the same message:
118 See e.g. WCWC (S.C.), supra note 61; WCWC (C.A.), ibid. WCWC was unsuccessful in an
application for judicial review of a determination made under the Forest Practices Code of British
Columbia Act (supra note 62) approving timber harvesting in a block of forest home to a species of
owl, the Northern spotted owl, at risk of extinction.
119 See e.g. Gwen Barlee, Presentation to the Senate Standing Committee on Energy, the
Environment and Natural Resources on Bill C-5, the Species at Risk Act (21 November 2002),
online: Western Canada Wilderness Committee:
Endangered Species (September 2001), online: Greenpeace
120 Greenpeace Canada, Press Release, Canada Lies, Endangered Species Die (8 November
2001), online: Greenpeace Canada,
121 See Sierra Legal Defence Fund, Media Release, Canada Guilty of Decade of Inaction After
Being First Industrialized Nation to Ratify Global Conservation Pact (10 April 2002), online: Sierra
Legal Defence Fund
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Internationally, Canada still has something of a Boy Scout reputation when it
comes to the environment … But our reputation far exceeds our track record and
it has begun to fray, badly. … Canadas lack of federal legislation protecting
endangered species … should be a national embarrassment.122
These two excerpts from the Globe and Mail and International Herald Tribune
reveal how both domestic and international audiences were targeted in these
reputational attacks on Canada. Exploiting the fact that Canadians hate to be seen as
less environmentally conscious than their neighbours to the South, campaigners
routinely contrasted Canadas lack of federal legislation with the Endangered Species
Act123 in the United States. As one Greenpeace campaigner commented, If I were an
endangered species Id rather be living in the U.S.124
The Coalition also introduced a report card that measured the federal government
and each province against the international commitment to introduce endangered
species legislation. The D grade that the federal government received in 1997 for
failing to pass Bill C-65, the Endangered Species Act,125 was widely reported in
Canadian newspapers.126 Such use of the Canadian media was essential to the
campaign as the public was largely unaware of the absence of federal legislation. One
Pollara poll commissioned by the International Fund for Animal Welfare in May 1999
found that sixty-six per cent of respondents thought the federal government already
had a law to protect endangered species, and another twenty-one per cent did not
know whether such a law existed.127
Media and public awareness campaigns extended beyond Canadas borders to put
international shame on Canada. At a meeting in Guadalajara, Mexico, in 2000 where
conservation organizations from across North America gathered
to discuss
endangered species protection in the three countries, the Canadian director of
Defenders of Wildlife characterized Canadas situation as an international
embarrassment. On the subject of wildlife protection, he further lamented, we were
once world leaders in environmental protection but now we trail far behind the
United States and Mexico 128
Reports documenting Canadas failure to uphold its obligations under the
Biodiversity Convention also circulated at the Ancient Forest Summit meeting of 180
122 David Suzuki, Our Environmental Shame The Globe and Mail (22 March 2001) A17.
123 Endangered Species Act of 1973, 16 U.S.C. 1531-1544 (2000).
124 Tzeporah Berman, quoted in Malcolm Curtis, Endangered Species Law Toothless [Victoria]
A6.
Times-Colonist (13 December 1995) 1.
125 Bill C-65, Canada Endangered Species Protection Act, 2d Sess., 35th Parl., 1997.
126 Allan Thompson, Ottawa Called Flop at Saving Species The Toronto Star (30 September 1997)
127 The results of this 1999 poll are quoted in Amos, Harrison & Hoberg, supra note 117 at 145.
128 Defenders of Wildlife, Press Release, Canadas Endangered Species at Risk (23 March 2000),
online: Defenders of Wildlife
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countries in the Hague in April 2002.129 The campaign did not stop at shaming
techniques. The environmental groups leading the campaign made formal appeals to
bodies outside Canada to attempt to force Canadas hand through international
pressure.
243
2. Transnational Litigation and Foreign Appeals
a. North American Agreement on Environmental Cooperation
Canadian environmental advocacy groups are among the most committed users
of the citizen enforcement process under articles 14 and 15 of the North American
Agreement on Environmental Cooperation,130 so it is not surprising that this process
was used in the campaign to secure endangered species legislation. The Biodiversity
submission is a claim brought by the Animal Alliance of Canada, Greenpeace
Canada, and the Council of Canadians.131 The threshold requirement for claims under
the citizen enforcement process is a failure to enforce domestic law. Shame was thus
cast on Canada by the very suggestion that it was unwilling to enforce its
environmental law. The applicants faced an uphill challenge in proving that Canadas
failure to enact endangered species legislation was a breach of domestic law. The
Commission for Economic Cooperation Secretariat (the Secretariat) had faced the
question of defining domestic law in a number of previous submissions brought by
Canadian environmental groups, each time rejecting international law arguments as
outside the scope of its jurisdiction.
In AAA Packaging,132 the Secretariat refused to request a response from Canada
on the basis that the international obligation in question, namely the prohibition on
exporting pesticides and toxic substances under article 2(3) of NAAEC, had not been
imported into Canadian domestic law. The B.C. Logging submission133 involved a
challenge brought by Canadian environmental groups including the David Suzuki
Foundation, Greenpeace Canada, the Sierra Club, and the B.C. Northwest Ecosystem
Alliance. These groups argued that the Canadian governments practice of staying
private prosecutions against logging companies brought under the Fisheries Act134 is a
violation of the obligation under article 6 of NAAEC to ensure access to judicial
proceedings. The Secretariat dismissed this portion of the submission request on the
129 See Sierra Legal Defence Fund, The Lost Decade: Canadas Conservation Track Record Since
Signing the 1992 Rio Convention on Biological Diversity (10 April 2002), online: Sierra Legal
Defence Fund
130 12 and 14 September 1993, 32 I.L.M. 1480 [NAAEC].
131 Biodiversity (21 July 1997), SEM-97-005, (Citizen Submission) [Biodiversity Submission],
online: North American Commission for Environmental Cooperation
132 AAA Packaging (12 April 2001), SEM-01-002 (Citizen Submission), online: CEC, ibid.
133 BC Logging (15 March 2000), SEM-00-004 (Citizen Submission), online: CEC, ibid.
134 R.S.C. 1985, c. F-14.
[Vol. 51
the protection of
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basis that NAEEC is not part of Canadas domestic law. The Great Lakes
submission135 involved a group of eight Canadian and American NGOs alleging that
the United States was failing to enforce its domestic law and two binational
agreements, the Great Lakes Water Quality Agreement136 and the Agreement
Concerning the Transboundary Movement of Hazardous Wastes.137 The Secretariat
rejected the argument that these binational agreements represent law of the nation
as they are not incorporated into the domestic law of the United States.
Attempting to steer around this discouraging body of jurisprudence, the
environmental group applicants in the Biodiversity Submission argued that Canadas
failure to enact endangered species legislation violated its obligation under the
Biodiversity Convention to [d]evelop or maintain the necessary legislation and/or
other regulatory provisions for
threatened species and
populations.138 In an attempt to satisfy the requirement that there be a breach of
Canadian domestic law, the groups focused not on the breach of the Biodiversity
Convention itself, but the breach of the instrument of ratification. According to this
argument, the instrument of ratification binds Canada under domestic law to uphold
treaty obligations. The Secretariat did not accept this distinction and responded that
the purpose and effect of the instrument of ratification is to confirm Canadas
international commitments regarding the Convention. It does not import those
obligations into domestic law. While the argument was unsuccessful in this case, the
Secretariat left open the possibility of success in future cases with the statement that
[i]n making this determination, [it] does not wish to exclude the possibility that
future submissions may raise issues in respect of a Partys international obligations
that would meet the criteria of Article 14(1).139
b. Appeals Under the Pelly Amendment
In 1999, a coalition of environmental groups led by the American environmental
group Earthjustice sent a detailed letter to the Secretary of the Interior in the United
States requesting certification of Canada pursuant to the Pelly Amendment to the
Fishermans Protective Act of 1967140 for its failure to adopt endangered species
legislation.141 The letter recommended a prohibition on the importation of Canadian
135 Great Lakes (28 May 1998), SEM-98-003 (Citizen Submission), online: CEC, supra note 131.
136 15 April 1972, Can. T.S. 1972 No. 12, 7312 T.I.A.S. 301.
137 28 October 1986, Can. T.S. 1986 No. 39, 11099 T.I.A.S.
138 Biodiversity Convention, supra note 13 at art. 8(k).
139 Biodiversity Submission, supra note 131.
140 Fishermens Protective Act (Pelly Amendment) 22 U.S.C. 1978 (2000).
141 Earthjustice, Petition for Certification of Canada Pursuant to 22 U.S.C. 1978 for Failing to
Adopt Endangered Species Legislation (22 March 1999), online: Earthjustice
authorizes the President to prohibit the importation of products from countries that allow fishing
operations that diminish the effectiveness of an international fishery conservation program or from
countries that engage in trade or taking that diminishes the effectiveness of an international program
2006] N. AFFOLDER INTERNATIONAL BIODIVERSITY LAW IN CANADA
products into the United States until Canada passed a federal law to protect
endangered species and their habitats. The letter stated that Canada was violating its
commitment under the Biodiversity Convention and called on the United States
government to pressure Canada into enacting legislation. The letter was intended as
an international appeal for action, but was also aimed at shaming Canada. It was
reported in a front page story in The Globe and Mail:
245
U.S. environmentalists will ask their government tomorrow to enact trade
sanctions against Canada because of Ottawas failure to pass endangered-
species legislation …
At the very least, the legal petition will embarrass Canada, once seen as an
international leader on environmental issues, but now increasingly viewed as a
laggard.142
Appeals under the Pelly Amendment also focused more specifically on the
protection of individual endangered species. Following an unsuccessful attempt to
secure protection for the spotted owl through litigation in Canadian courts,
environmental groups turned to the Pelly certification process to request a US ban on
the importation of British Columbia wood products originating from critical spotted
owl habitats. This request was a response to the failure of the environmental groups to
secure adequate protection for the species through litigation in Canadian courts. In
their appeal to the United States, the environmental groups cited Canadas failure to
enforce its obligations under the Biodiversity Convention. They specifically referred
to the British Columbia Supreme Courts decision in WCWC143 as absolute authority
for the proposition that laws do not exist in Canada which protect the species from
extirpation caused by logging in its habitat.144
3. Market Pressure
Trade sanctions and consumer boycotts both feature as market tools adopted by
Canadian environmental groups in campaigns to protect endangered species. In the
case of campaigns to protect British Columbia rainforests in 1995, the Friends of
Clayoquot Sound petitioned American publishers to ban British Columbias paper
supplies.145 The Western Canada Wilderness Committee used radio advertisements
advising consumers to only buy lumber from secondgrowth trees in order to save the
for endangered or threatened species. For a more detailed analysis of the Pelly Amendment, see Steve
Charnovitz, Environmental Trade Sanctions and the GATT: An Analysis of the Pelly Amendment on
Foreign Environmental Practices (1994) 9 Am. U.J. Intl L. & Poly 751.
142 Anne McIlroy, Animal Activists Push U.S. to Punish Canada: Trade Sanctions Sought Over
Endangered Species The Globe and Mail (17 March 1999) A1.
143 WCWC (S.C.), supra note 61.
144 Canada Wilderness Committee & The Northwest Ecosystem Alliance, Petition for Certification
of Canada, Pursuant to the Pelly Amendment (24 October 2002), online: Western Canada Wilderness
Committee
145 A Yellow Environmental Campaign: U.S. Publishers Refuse to Boycott B.C.s Paper Suppliers
Western Report 10:44 (20 November 1995) 16.
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habitat of Canadas endangered species.146 These strategies used both the market and
the power of shame to put pressure on British Columbia and Canada. They reflect the
complex, multi-faceted agenda of many environmental groups who are able to utilize
a variety of economic tools in their campaigns alongside more classic strategies of
litigation, media campaigns, and government lobbying.
[Vol. 51
B. The Cheviot Mine Campaign
The campaign mounted against the proposed development of an open pit coal
mine a few kilometres from Jasper National Park differs from the campaign for
federal endangered species legislation in a number of respects, including the
involvement of a private-sector project developer. This means that the relative
importance of government lobbying, transnational and domestic litigation, and public
awareness strategies differs between these two campaigns. As private companies were
involved in the project, conservation groups attempted to stigmatize the companies
involved as well as shaming the Canadian and Alberta governments for the approval
of the project.
The projects history has been turbulent since the decision of the federal
government to approve it in 1997. A long series of court battles surrounded the
project from 1997 to 2005, initiated by a coalition of local and national environmental
groups actively campaigning to stop the mines development, including the Pembina
Institute for Appropriate Development, the Sierra Club, Nature Canada, Jasper
Environmental Association, and
(the
Conservation Groups). The project was briefly abandoned in 2000, yet re-emerged
in a revised form.
International law has featured in the campaign both in litigation and in the wider
strategies that the Conservation Groups have adopted to shame the Canadian and
Alberta governments and the companies involved. Cardinal River Coals Ltd.
(CRC), which owns the mine, put forward a project design for environmental
assessment by a joint Alberta-federal process initially in 1996. In 1997, the joint
review panel issued its report and recommendations, recommending that the Minister
of Fisheries and Oceans approve the project by providing CRC with the necessary
regulatory approvals under the Fisheries Act. In October 1997, the Conservation
Groups filed an application for judicial review of the joint review panels report,
which was dismissed.147 On appeal, the Appeal Division of the Federal Court set aside
that ruling and ordered that the proceeding be referred back to the Trial Division for
hearing on the merits.148 The new hearing of the case was joined with a hearing of an
the Alberta Wilderness Association
146 See Western Canada Wilderness Committee, News Release, Wilderness Committees Newest
Radio Ad (9 December 2004), online: Western Canada Wilderness Committee
147 Alberta Wilderness Association v. Canada (Minister of Fisheries and Oceans) (1998), 152 F.T.R.
49 (T.D), revd (1998), [1999] 1 F.C. 483, 238 N.R. 88 (C.A.) [AWA v. Canada (C.A.)].
148 AWA v. Canada (C.A.), ibid.
In
that
the
247
this case, Justice Campbell found
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application filed by the Conservation Groups for judicial review of the Ministers first
project authorization pursuant to subsection 35(2) of the Fisheries Act.149
joint federal-provincial
environmental review did not comply with the Canadian Environmental Assessment
Act.150 He struck down the federal authorization for the mine under the Fisheries Act,
ruling that the Minister could not issue a Fisheries Act approval that contravened the
Migratory Birds Convention Act Regulations.
Justice Campbell determined that the permanent dumping of millions of tonnes of
waste rock on migratory bird habitat does fall under the Migratory Birds Convention
Act, based on a broad reading of the phrase any other substance harmful to migratory
birds.151 He considered the broad purposive language in the Migratory Birds
Convention as justification for giving a broad interpretation to language in the
Migratory Birds Convention Act.
In 2000, CRC presented new proposals for the mine, which were approved by the
joint review panel and accepted by the federal government. CRC modified its design
again in 2002 and moved ahead with a revised project involving new undertakings
and works not previously examined through the prior assessment process. The
Conservation Groups, represented by Sierra Legal Defence Fund, filed two new
challenges to the federal environmental assessment and authorization of the project in
November 2004, which were heard by the Federal Court in Edmonton in June 2005.
The Conservation Groups called for an environmental assessment of the project
modifications and a determination that the federal governments 2004 authorization
of the first part of the mine be quashed because of the mines potential to destroy
sensitive migratory bird habitat in violation of the Migratory Birds Convention Act. In
their submissions, the groups advanced the argument that subsection 35(1) of the
Migratory Bird Regulations and the Migratory Birds Convention Act generally should
be interpreted in a manner consistent with Canadas international obligations and that
an interpretation that fulfills Canadas treaty commitments should be preferred over
one that does not.152 None of these international instruments and arguments were
discussed by the Federal Court in its rejection of the Conservation Groups
applications.153
In the wake of the dismissal of their applications for judicial review, the
Conservation Groups issued a media release on 30 September 2005 announcing their
decision to shift their campaign focus from the federal courts to the regulatory and
enforcement agencies overseeing the mine, the federal and provincial endangered
149 AWA v. Cardinal River Coals, supra note 76.
150 S.C. 1992, c. 37.
151 Migratory Birds Regulations, supra note 34, s. 35(1).
152 See text accompanying notes 29-36 below for a discussion of this case.
153 Pembina Institute, supra note 29.
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species provisions and the mines parent companies.154 In the words of Dianne
Pachal of the Sierra Club of Canada:
[Vol. 51
Even though the approval was issued despite unresolved concerns of
federal government officials, the glaringly obvious environmental harm from
Cheviot likely wouldnt be rectified by pursuing it further through the courts …
Our interest in seeing that the project doesnt go past the first phase thats been
approved, about one-fifth of the mine, wouldnt be addressed by the Courts.155
1. Public Opinion and the Media
Shaming continues to be an important weapon in the battle against the proposed
mine. The Conservation Groups target tourists entering Jasper National Park,
presenting them with brochures outlining the threats the mine poses to the park.156
They argue that the Alberta governments approval of the mine amounts to a breach
of Canadas obligations under the Biodiversity Convention and the World Heritage
Convention, as Jasper National Park is a World Heritage Site.157 These groups also
capitalize on the support of the scientific community in making their arguments based
on international biodiversity law.158
The Sierra Clubs 1997 Rio Report Card gave the Alberta government an F in
biodiversity for considering approval of the mine in close proximity to a World
Heritage Site, noting that its development would place Canada in clear violation of
the Biodiversity Convention. This grade was downgraded to an F- in the following
years Rio Report.159 The Sierra Club also drew public attention to testimony by Parks
154 Sierra Legal Defence Fund, Media Release, Conservation Groups Shift Focus in Tackling Mine
Next-Door to Jasper National Park (30 September 2005), online: Sierra Legal Defence Fund
155 Ibid.
156 Ashley Geddes, Coalition to Lobby Tourists in Battle Against Coalmine Edmonton Journal (5
July 1997) A8.
157 See Dennis Hryciuk, Mine Foes Vow to Fight Back; Environmentalists Eye International Focus
to Protest Cheviot Edmonton Journal (19 June 1997) B5; Ed Struzik, Sierra Club Opposes Cheviot
Mine Project Edmonton Journal (10 September 1997) B5 [Struzik, Sierra Club]; Alberta
Wilderness Association, Press Release, Stop the Cheviot Mine! Legal Action Launched Over
Proposed Cheviot Mine (December 1997), online: Environmental Research and Studies Centre
158 A letter by a group of respected Canadian scientists, quoted in a press release of the Alberta
Wilderness Association, refers to the fact that the protection of the Cheviot area falls directly under
Canadas commitment to the Network of Protected Areas and the Canadian Biodiversity Strategy,
supra note 42, which emerged as part of the Biodiversity Convention. See Alberta Wilderness
Association Press Release, Scientists Call for Protection Instead of Mine (April 1998), online:
Environmental Research and Studies Centre
159 See Sierra Club of Canada, Rio Report Card (1998), online: Sierra Club of Canada Rio Report
249
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Canada before the Cheviot review panel, stating the mine could jeopardize Canadas
ability to meet its international obligations under the World Heritage Convention.160
The shaming strategy is closely linked to the World Heritage status of the national
park. The World Heritage Convention states that each participating member country
has an affirmative duty to protect World Heritage Sites within its jurisdiction.161 If a
site is considered endangered by the World Heritage Committee, it may be included
on the List of World Heritage Sites in Danger. Prompt listing of sites in danger
ensures international attention for the sites, and embarrasses the governments unable
(or unwilling) to protect their world heritage. Danger listing of Jasper National Park
as a result of an approval of the Cheviot Mine would be a black eye for Canadas
image abroad.162 As in other environmental shaming campaigns, Canadas
international reputation as a world leader has also been invoked in the efforts to stop
the Cheviot mine. Sam Gunsch, a director with the Canadian Parks and Wilderness
Society, has observed, [t]he prime minister has portrayed his government as a leader
in environmental issues. Now the eyes of the world are on him.163
2. Appeal to the World Heritage Committee
The fact that Jasper National Park is a UNESCO World Heritage Site allows the
network of conservation groups to raise what might otherwise have been a purely
local land use issue to the international stage, placing additional international pressure
on both the Canadian and Alberta governments involved in the mine approval
process.
In March 1998, the director of the UNESCO World Heritage Committee
requested that Canadas ambassador to UNESCO arrange for Canada to consult with
Alberta about reconsidering its Cheviot Mine approval. In the request, the UNESCO
director noted the challenges by the environmental groups in court.164 Political
responses to this international pressure varied from reassurance on the federal level
that Ottawa is taking the UNESCO request seriously165 to outrage on the provincial
level, expressed by Alberta Environment Minister Ty Lund in the media: It really
bothers me when people from some other part of the world start telling the people of
Alberta how to operate in the province of Alberta.166
160 See Making Mountain Park a Reality, online: Sierra Club of Canada
161 Supra note 21, art. IV.
162 Ed Struzik, UN Agency Asks Ottawa to Revoke OK for Cheviot Edmonton Journal (19 March
1998) A1 [Struzik, UN Agency].
163 Struzik, Sierra Club, supra note 157.
164 Struzik, UN Agency, supra note 162.
165 See Ed Struzik, Feds to Co-operate with UN Request for Data on Project Edmonton Journal
(20 March 1998) A6.
166 See Les Sillars, This Land is Their Land: UNESCO Asks Ottawa to Revoke Approval of
Albertas Cheviot Mine British Columbia Report 9:31 (6 April 1998) 22.
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[Vol. 51
3. Market Pressure
It is difficult to isolate the influence of Jasper National Parks World Heritage Site
designation on the development of the Cheviot mine project. On 24 October 2000, the
President and CEO of Luscar (one of the co-owners of Cardinal River Coals Ltd.)
was quoted in the media as saying that the environmental approval process for the
mine played a role in the companys decision to abandon the project, as concerns
were raised that the mine would threaten wildlife in a World Heritage Site.167 When
pressed on the issue the next day at a press conference, however, he admitted that the
environmental approval process was not the reason for indefinitely postponing the
mine.168 This contradiction suggests that in crafting their initial explanation of the
project postponement to the media, the project sponsors were aware of the importance
of appearing to be influenced by the World Heritage Site designation of the park.
Recognizing the influence of the market, environmental groups targeted the
money behind Cheviot when plans for a revised Cheviot mine materialized. In March
2004, environmental groups sent letters to the mining companies responsible for the
project, detailing the history of opposition to the mine and Canadas international
obligation to protect Jasper as a World Heritage Site. The campaign also targets
Ontario teachers, as the Ontario Teachers Pension Plan has a significant financial
stake in the mine.
Conclusion
Environmental advocacy groups have a role to play both in identifying where
Canada fails to give domestic effect to the obligations it assumes under ratified
biodiversity treaties, and in addressing this failure. This article shows that despite the
limited role of Canadian courts in giving effect to international biodiversity law, an
important role exists for environmental advocacy groups both within and beyond the
courtroom in fostering compliance with Canadas international legal commitments.
Further and more profound engagement with international law sources by the
Canadian judiciary can be encouraged by the clear and principled articulation of the
relevance of international law in arguments before the courts.
At the same time, developments in international legal theory reveal the role of
reputation in explaining why nations comply with international law. Strategies
focusing on shaming Canada, challenging its reputation before both international and
domestic audiences, are important components of campaigns highlighting Canadas
failure to live up to its international law obligations. Opportunities for further
engagement with international biodiversity law are not lacking. The challenge lies in
promoting greater engagement with international biodiversity law sources on the part
167 Mining: Coal Project Postponed Indefinitely [Victoria] Times-Colonist (25 October 2000) D2.
168 Alberta Wilderness Association et al., News Release, Indefinite Postponement of Cheviot
Mine (25 October 2000), online: Alberta Wilderness Association
2006] N. AFFOLDER INTERNATIONAL BIODIVERSITY LAW IN CANADA
of both counsel and the judiciary in Canada.169 This engagement will foster familiarity
with international biodiversity law, making this body of law not less interesting, but
perhaps less exotic.
251
169 One step in this direction comes in the form of the new curriculum at UBC Faculty of Law
where Transnational Law is a mandatory course for all first year students.
