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Appendix a of the Twitter Moot Problem

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Appendix a of the Twitter Moot Problem 200 - 2006 West 10th Avenue Vancouver, BC V6J 2B3 www.wcel.org tel: 604.684.7378 fax: 604.684.1312 toll free: 1.800.330.WCEL (in BC) email: [email protected] MEMO TO: Twitter Moot Participants and Judges FROM: Andrew Gage, Twitter Moot Administrator DATE: 23 Oct 2012 RE: Twitter Moot Problem and Assignments Congratulations on being selected to participate in the world’s second ever Twitter Moot. The Twitter Moot, to be scheduled for November 20th, 2012, will focus on a reference made to the Supreme Twitter Court of Canada (STCC) by the government of Canada concerning its obligations to the public in relation to greenhouse gas emissions (“GHGs”) and Climate Change. The purpose of this memo is to define the scope of the issues to be argued in the Moot and identify the parties that the Twitter Moot Participants will be representing. Scope of the Appeal Please refer to the Twitter Moot Rules for information on how the Twitter Moot will be conducted. The Twitter Moot Rules will uploaded to the Twitter Moot web pages at the same time as this memo. Under Canada’s Supreme Court Act, the government of Canada may pose a reference question to the Supreme Court of Canada. This question may relate to “any important matters of law or fact concerning any matter.” For the purposes of the Twitter Moot, assume that the Government of Canada has posed the following two reference questions to the Supreme Twitter Court of Canada: 1. Does the common law of Canada recognize the existence of a public right to a healthy global atmosphere? Counsel should limit themselves to submissions related to this issue and not address issues falling outside the scope of these two questions. A brief summary of some key arguments in favour of the existence of such a right may be found at Appendix A of these rules. Participants are encouraged to do additional legal research to support or oppose the existence of the public right, but we presume that the legal arguments advanced in the Appendix will be central to the Twitter Moot. The existence of a public right to a healthy atmosphere raises broad public policy implications about the role of the law and courts in constraining GHGs. Counsel are encouraged to discuss the broader public policy issues in their submissions. To the extent that the Participants wish to make factual assertions about climate change and the global atmosphere, they may assume that the parties have adopted the 2007 Fourth Synthesis Report of the Intergovernmental Panel on Climate Change (IPCC) as an agreed statements of facts. The Synthesis Report is available at http://www.ipcc.ch/publications_and_data/publications_ipcc_fourth_assessment_report_syn thesis_report.htm. The Parties In a Supreme Court reference, the court generally hears from a range of interested interveners. The Twitter Moot Teams have been assigned to represent the various parties at random. The parties in the Atmospheric Right Reference, and the order of appearance, will be: The Government of British Columbia – The Government of British Columbia, a party to the reference, will argue that there is a public right to a healthy atmosphere, but that its implications are largely political, rather than legal. The Government of British Columbia will be represented by @TheRyborg and @canadajon from York University (Osgoode Hall Law School). The Government of Canada – The Canadian government, a party to the reference, will be taking the position that there is no legally recognized public right to a healthy global atmosphere. The Government of Canada will be represented by @jaymichi and @cjalbinati from Thompson Rivers University Law School. The Centre for Indigenous Environmental Resources (CIER) – CIER – a national, First Nation-directed environmental non-profit organization – is intervening in the reference. CIER will provide the Team representing it with direction as to specific issues it wishes raised in relation to the Reference. West Coast Environmental Law thanks CIER for providing that direction and for its involvement in the Twitter Moot. CIER will be represented by @tankersnothanks and @orangepipsies of the University of Alberta Law School. The Canadian Institute of Petroleum Companies (CIPC) – CIPC, an intervenor in the reference, will argue that there is no common law right to a health atmosphere. CIPC will be represented by @Baaarbora and @Willhorne of Dalhousie University (Schulich Law School). The Environmental Coalition – The Environmental Coalition, a Coalition of a number of prominent environmental groups, is intervening in the reference to argue that there is a common law right to a healthy atmosphere, and that recognition of such a right is an important piece of the legal response to climate change. The Coalition will be represented by @adamharris09 and @Gradsen of the University of Ottawa Law School. Twitter Moot Problem and Parties … p. 2 Appendix A – Summary of Arguments in favour of a public right to a healthy atmosphere By Andrew Gage, West Coast Environmental Law Staff Lawyer Public rights in respect of the environment The term “public right” refers to legally recognized rights that are held not by the government, but by the public at large. G.V. La Forest explains: By public rights is not meant rights owned by government, whether federal, provincial or municipal. These bodies may own land and water rights … in the same way as private individuals, in which case they are, in a manner of speaking, public rights. But what is here called public rights are those vested in the public generally, rights that any member of the public may enjoy.1 The Supreme Court of Canada in 2004 affirmed the existence of such rights in respect of the environment in the ground-breaking decision in Canadian Forest Products v. BC. The case concerned whether the province of British Columbia could recover damages for non-financial environmental harm suffered as a result of a forest fire negligently caused by Canadian Forest Products. The Supreme Court, after a discussion of the law of public nuisance, pointed out: The notion that there are public rights in the environment that reside in the Crown has deep roots in the common law. … Indeed, the notion of ‘public rights’ existed in Roman law…: By the law of nature these things are common to mankind — the air, running water, the sea . (T. C. Sandars, The Institutes of Justinian (1876), Book II, Title I, at p. 158) A similar notion persisted in European legal systems. According to the French Civil Code, art. 538, there was common property in navigable rivers and streams, beaches, ports, and harbours. A similar set of ideas was put forward by H. de Bracton in his treatise on English law in the mid-13th century (Bracton on the Laws and Customs of England (1968), vol. 2, at pp. 39-40): By natural law these are common to all: running water, air, the sea and the shores of the sea . No one therefore is forbidden access to the seashore . All rivers and ports are public, so that the right to fish therein is common to all persons. The use of river banks, as of the river itself, is also public by the jus gentium . 1 G. La Forest, Water Law in Canada- The Atlantic Provinces (Ottawa: Information Canada, 1973) at 178. Although written in the context of public rights arising from navigable waters, the definition is more generally applicable. Twitter Moot Problem and Parties … p. 3 By legal convention, ownership of such public rights was vested in the Crown, as too did authority to enforce public rights of use. According to de Bracton, supra, at pp. 166-67: (It is the lord king) himself who has ordinary jurisdiction and power over all who are within his realm. He also has, in preference to all others in his realm, privileges by virtue of the jus gentium. (By the jus gentium) things are his . which by natural law ought to be common to all . Those concerned with jurisdiction and the peace . belong to no one save the crown alone and the royal dignity, nor can they be separated from the crown, since they constitute the crown. Since the time of de Bracton it has been the case that public rights and jurisdiction over these cannot be separated from the Crown. This notion of the Crown as holder of inalienable “public rights” in the environment and certain common resources was accompanied by the procedural right of the Attorney General to sue for their protection representing the Crown as parens patriae. This is an important jurisdiction that should not be attenuated by a narrow judicial construction.2 On the basis of these rights, the Supreme Court affirmed that the Crown has an ability, at common law, to claim for environmental damages – independent of any financial or other more conventional damages suffered. It seems obvious that climate change damages include both property/financial damages and this type of environmental damage. A public right to a healthy atmosphere? While the Supreme Court may have endorsed the idea of public environmental rights in general, and the recovery of damages arising from a violation of those rights, we must consider whether the right to a healthy atmosphere is one which is, or could be, recognized by the courts. Needless to say, there is little case law directly on point, as the ability of the atmosphere to appropriately absorb and reflect solar radiation has been taken for granted until comparatively recently. However, there are three strong arguments to support the recognition that the public has rights in relation to the health of what has been described as the atmospheric commons.3 First, such a right might be viewed as an extension of the public rights in respect of air.
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