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Law and Public Policy

D12 - Environmental and Climate Change Policy

Date: Jun 5 | Time: 02:00pm to 03:30pm | Location: SWING 210

Chair/Président/Présidente : Elizabeth Schwartz (University of Saskatchewan)

Discussant/Commentateur/Commentatrice : George Hoberg (University of British Columbia)

Motivated Reasoning and the Site Selection Process for a Permanent Deep Geological Repository for Nuclear Waste: Duane Bratt (Mount Royal University)
Abstract: This paper focuses on the risk assessment and management of the site selection process for Canada’s permanent deep geological repository (DGR) for high-level used nuclear fuel waste. This paper identifies the different types of risks (ie., technological, environmental, human health, political, security, financial, and doing nothing) and risk mitigation strategies (using the REACT framework: regulatory, economic, advisory, community, and technology) associated with a DGR. However, the focus is determining the extent to which different groups have different risk perceptions of a DGR. Do experts, stakeholders, the lay public, and risk managers assess risk, risk mitigation strategies, evidence, and degree of democratization differently? It do this, it utilizes the concept of motivated reasoning (ie., the tendency to arrive at conclusions we want to arrive at). The extent of motivated reasoning will be determined through a series of focus groups in January-February 2019. The focus groups will include potential site communities for a DGR (Ignace, Horne-Payne, and Manitouwadge; all in NW Ontario), nuclear regulators (Nuclear Waste Management Organization), and environmental groups.


3 Types of Legitimacy and the Crown’s Duty to Consult: Minh Do (University of Toronto)
Abstract: The duty to consult is a constitutional obligation whereby the Crown must consult, and if necessary, accommodate Indigenous peoples if a proposed Crown conduct adversely impacts Aboriginal rights or rights claims. This Aboriginal right is under greater scrutiny now that major resource extraction projects have stalled due to inadequate consultation with affected Indigenous nations. An aspect of the duty that has gained less attention is whether the duty upholds the legitimacy of the Crown from the perspective of Indigenous peoples. This paper seeks to evaluate whether the process of consultation and the final decisions following consultation uphold three types of legitimacy: input legitimacy, output legitimacy, and what Vivien Schmidt (2013) coins “throughput” legitimacy. Input legitimacy refers to the participatory quality of decision-making, throughput legitimacy evaluates the quality of interactions between actors throughout decision-making, and output legitimacy assesses the problem-solving nature of decision-making outputs. I conduct a textual analysis of B.C. Environmental Assessment reports from 2000 to the present to evaluate whether the duty upholds these three types of legitimacy. Environmental Assessments are useful for analyzing the quality of consultation and accommodation as they provide a more complete written record of Crown-Indigenous interactions. Moreover, assessments in BC engage with Indigenous peoples with asserted rights, which is precisely the situation the duty is meant to address. I hypothesize that consultation overall does not adequately uphold input, throughput or output legitimacy, presenting a deeply troubling evaluation of the duty’s purpose to advance reconciliation.


Assessing the Climate Impacts of Pipelines – Implementing the Paris Agreement in Canadian Environmental Regulation: Russell Williams (Memorial University of Newfoundland), John Stadelmayer (Memorial University of Newfoundland)
Abstract: Abstract: This paper examines the impact of Canada Paris Agreement commitments on the regulatory politics surrounding pipeline approvals in Canada.  Canadian Climate policy operates across three arenas. The Canadian Government has committed to 1) fixed national targets in emission reductions as part of international climate change mitigation strategies, 2) a mixed federal/provincial framework of market-based mechanisms to achieve those targets, and 3) adherence to “science” and evidence based policymaking in the approval of new fossil fuel infrastructure projects. However, the tangled story of the Trans Mountain Expansion Project illustrates considerable challenges to policy making across these three arena’s. This paper illustrates the extent to which resource dependency and the challenges of fiscal federalism have resulted in siloed approach to climate policy in which developments in each of these arenas undermines and contradicts developments in the others. While Canada is in a period of intense activity on climate policy, failure to integrate these arenas undermines the broad goals of the Paris Agreement. Moreover this case offers important insights into the challenges the government faces in the creation of Bill C-69, which will establish a new system for assessing large energy infrastructure projects like oil and gas pipelines.