Category: Law

Posts about law-making, the courts, and legal concepts in general

Hale on why climate stability advocates are often confounded

The combination of uncertainty and low salience, in turn, enables obstructionism, the ability of interests tied to the status quo to maintain their interests. Consider the hurdles of a policy entrepreneur would have to overcome to create and implement a policy addressing a problem with distant effects like climate change. First, that policy entrepreneur would have to herself see value in pursuing an obscure issue, one that is unlikely to garner her a quick win and the associated political benefits. Few will have incentives to pursue such causes. Second, she would have to mobilize a sufficient coalition of interests to be able to influence policy. This would require each of those interests choosing to focus on a distant topic over their more urgent priorities. Third, this interest coalition would need to force the issue onto the broader political agenda, competing for limited space with numerous immediate priorities. Fourth, the coalition would need to somehow overcome, compensate, or neutralize political opponents.

To the extent those opponents are worried about the short-term costs of action, everything that is hard for the long-sighted policy entrepreneur will be easy for them. Opposing long-sighted policy—that is, promoting short-term outcomes—will give them the opportunity for quick wins on issues that are relatively easy to mobilize interests around. And even if the long-term-oriented policy entrepreneur wins a battle, she must preserve and maintain those gains permanently, as opponents will seek to reverse any defeats they face. A one-off victory may be important, but long problems often require sustained policies over time, while it only takes one victory by opponents to block them. The longer a problem’s effects reach into the future, the more friction the policy entrepreneur will face at every stage, and, should she get a win, the more enduring her victories will need to be.

Hale, Thomas. Long Problems: Climate Change and the Challenge of Governing Across Time. Princeton University Press, 2024.

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Peter Russell tributes

In January, my friend and mentor Peter Russell died. His son Alex invited me to give remarks at his funeral reception: Remarks at the funeral of Peter Russell

Yesterday, I spoke at Innis College’s memorial event: Remarks about Peter Russell at Innis College

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Canada’s origin in fraud

Over the next few years, as I got to know the Dene better, I learned about how emissaries of the Canadian government had first entered the Dene lands and the conditions under which they negotiated Treaty Eight in 1899 as the queen’s representatives and Treaty Eleven as the king’s representatives in 1921. These treaties had about as much to do with the queen or king as they did with your great grandma or grandpa. The mission of the Canadian treaty party in 1899 was to secure a safe shortcut for Canadians on their way to the Klondike goldfields, and in 1921 to prepare access for the oil industry to the petroleum discovered at Norman Wells, a way down the Mackenzie River.

These treaties, like the other numbered treaties before and between them, were designed to gain access for settler industries to resources in areas that had been Indigenous nations’ homelands for centuries and in which Native peoples were still by far the dominant if not the only population…

Sovereignty is not mentioned in these treaties, nor is the queen or king referred to as sovereign. But the text of the treaties, written in Ottawa, in English, in advance of “negotiations” and not translated into the Native people’s language, contained some killer language. In return from some up-front money and small annual payments of a few dollars to every man, woman, and child, flags, medals, suits for the chiefs, sometimes fishnets and farming equipment, plus some small parcels of their former homeland to be assigned to them by the queen or king as “reserves,” the Native owners are purported “to cede, release, surrender and yield up” all rights and priveleges to all of their territory. This language is in all the numbered treaties. It is what the lawyers call “boilerplate.” At the so-called treaty negotiations, the Crown’s representatives did not use those killer words at all. Instead, the Indigenous signatories (who may have lacked authorization to sign anything on behalf of their nation) were assured that they would have access to their traditional hunting grounds as long as the sun rises and the rivers flow.

When you read the treaty texts and think about the actual treaty process, the most apt word that comes to mind in answering the Dene’s question about how the Queen got sovereignty over them is surely trickery. And that is a polite way of answering the question. Fraud is closer to what actually occurred. The First Nations had not been conquered, and while there was a strong interest in establishing a peaceful relationship and getting some tangible benefits, no Native people was so desperate that it would knowingly sign away its rights and make itself totally dependent on the largesse of the white man.

Russell, Peter. H. Sovereignty: The Biography of a Claim. University of Toronto Press, 2021. p. 4-5 (italics in original)

How should we feel about Canada now, if we acknowledge that its origins were fundamentally illegitimate?

In practical terms, does sovereignty mean anything other than armed control over a population?

Reform bankruptcy to keep fossil fuels in the ground

One of the many challenges on the road to fossil fuel abolition is the US-style of bankruptcy, where any valuable assets of a bankrupt corporation or individual are sold to help compensate their creditors.

With fossil fuels, this risks setting up a perverse circumstance where coal, oil, and gas which we should not burn keeps getting shuffled to new owners whose only reason for buying it is to burn it:

Financing more digging at existing mines—the second link in the supply chain—is no problem either. Last year coal production hit a record 8bn tonnes. It is not quite business as usual. Since 2018 many mining “majors” (large, diversified groups listed on public markets) have sold some or all of their coal assets. Yet rather than being decommissioned, disposed assets have been picked up by private miners, emerging-market rivals and private-equity firms. New owners have no qualms about making full use of mines. In 2021 Anglo American, a London-based major, spun off its South African mines into a new firm that instantly pledged to crank up output.

If humanity is to have a safe and prosperous future, fossil fuels need to be abolished before we produce catastrophic climate change. This is a social objective far more important than refunding the creditors of bankrupt firms.

Trudeau knocks a hole in the carbon price

I know they are hurting in terms of popularity, but offering one group an exemption to Canada’s carbon price predictably led to calls for equivalent ‘favours’ (if freedom to wreck the planet is a favour) from everyone.

It’s worth remembering how bad Canada’s total historical climate change record has been:

Liberal government set to miss 2030 emissions targets, says environment commissioner audit

Trudeau’s halt on carbon tax could undo years of his tentpole climate policy

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Some documents from the history of fossil fuel divestment at the University of Toronto

Back in 2015, during the Toronto350.org / UofT350.org fossil fuel divestment campaign, I set up UofTFacultyDivest.com as a copy of what the Harvard campaign had up at harvardfacultydivest.com/.

The purposes of the site were to collect the attestations we needed for the formal university divestment policy, to have a repository of campaign-related documents, and to provide information about the campaign to anyone looking for it online.

The site was built with free WordPress software and plugins which have ceased to be compatible with modern web hosting, so I will re-list the important content here for the benefit of anyone seeking to learn about the campus fossil fuel divestment movement in the future:

Of course, U of T announced in 2021 that they would divest. Since then, the Climate Justice U of T group which developed out of the Leap Manifesto group which organized the second fossil fuel divestment campaign at U of T (after Toronto350 / UofT350) has succeeded in pressuring the federated colleges of St. Michael’s, Trinity, and Victoria University to divest as well.

Critical Mass Vancouver, July 2023

Milan Ilnyckyj at July 2023 Critical Mass in Vancouver, by @jordanvegbike

By happenstance or grace I ran into the best Vancouver Critical Mass in years when the library ushered me out at 6pm. It was my first bike ride in 11 years, and my first e-bike ride ever, on a rental e-bike available right beside the mustering area north of the old art gallery.

Critical Mass is one of the most brilliant forms of non-violent direct action ever devised. Today’s Vancouver ride showed me the city like I never saw it in 22 years growing up, and felt like the safest bike ride I ever took. Safe in the middle, I never worried about a single car. There were pairs of kids on the back of long e-bikes; dogs in carriers wearing goggles; several audio mixes from portable speakers in different parts of the mass; and a lot of good grace and patience — as well as a great deal of overt support — from pedestrians as well as drivers.

Open thread: The worldwide crisis for renters

When people hear about my miserable 4-month search for an afforadle, available, and non-awful room to rent in Toronto, the glib answer is often that I should leave the city. After all, Toronto’s housing market is notoriously punishing.

I call the answer glib because it doesn’t reflect much awareness of what is also happening in potential alternative cities. Vancouver is about 10% more expensive, and cities with far fewer employment options like Guelph, Hamilton, and Barrie are only marginally cheaper. The crisis for renters is both multi-causal and global.

For instance: The UK housing crisis isn’t just about mortgages – private renters desperately need help too (“Three-fifths of private renters cannot afford a decent standard of living”)

Why aren’t the NDP climate and environmental champions?

It is generally held that the existence of this socialist tradition allows governments in Canada to play a larger role than in the United States. As noted above, however, pollution regulation in this country has imposed costs on industry that are only one-third of those imposed by American governments. Despite their much more vocal commitment to the virtues of free enterprise, Americans have been much more willing to see governments intervene to protect the environment than have Canadians.

Perhaps of more significance is the fact that this socialist tradition led to creation of the CCF in 1932 and the New Democratic Party in 1961. Environmentalism has always been seen as part of the progressive agenda and therefore it might be assumed that environmentalists form a natural constituency for the NDP.

In fact, however, the NDP has been no more successful than either of the other two parties in articulating environmental policy and NDP governments have not been particularly noted for action on the issue. It would be difficult to argue that British Columbia, Saskatchewan, and Manitoba, in which NDP governments have held power, have introduced more stringent pollution control measures than Ontario, where, until 1990, the NDP had not formed a government. A 1985 review of the record of NDP governments in Manitoba since it assumed power in 1982 reached this conclusion: “Changes in [environmental] legal arrangements and institutions have also been minimal; not one change seems to strike environmentalists as having great significance.”

The question is not whether the socialist foundations of the NDP will lead that party automatically to environmentalism, since they will not, but whether environmentalists can draw on that party’s concern for fairness and social justice as they work to put in place policies based on fairness and justice for the natural world.

Macdonald, Doug. The Politics of Pollution. McClelland & Steward; Toronto. 1991. p. 50–1

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Prohibiting eviction through fraud

One of the reasons why Toronto’s housing market is such a disaster is that landlords are basically immune from any mechanism for punishing them for misconduct.

They can abuse the ambiguity of the Residential Tenancy Act to baselessly refuse to assign someone new to a lease, as a way of forcing existing residents to leave or accept an illegal rent increase.

There is also widespread reporting on abuse of mechanisms that let a landlord evict a tenant for their own use of the space or similar reasons. I have personally — and had friends — threatened with eviction for a wide range of trivial or invented reasons, all as a pressure tactic to add stress and try to illegally force people from their homes.

The Landlord and Tenant Board system is completely jammed up, with even the most urgent hearings taking 8-9 months to happen (and then they may be inconclusive, leaving everyone waiting again).

One remedy that could improve things would be a criminal offence for evicting a tenant through fraud or abuse of process. Theoretically a mistreated tenant could sue for damages, but it’s hardly likely that someone scrambling for a place to survive would accept those legal fees and risks. Having a criminal offence would create a real stick to discourage and prevent landlord misconduct, slightly rebalancing power relations in order to make the law work more as written and less as words to be ignored and misused by those driven only be the desire to collect as much rent as possible.

Creating a criminal offence is justified for at least three reasons. Even good tenants who follow the law and pay their rent may face daily and severe stress from the knowledge their landlords are trying to get rid of them illegally. I have been personally and seriously stressed about housing, often to the point of losing sleep, almost every day since the crisis with my flatmate at my old place began years ago. Even with the extreme stress of a PhD program to compare with, Toronto’s housing market is worse.

Taking away someone’s home is a very serious matter, which is why we regulate housing so much in the first place. If the existing system cannot contain landlord misconduct, there must be one with more coercive power against them. Secondly, there is extensive evidence that this misconduct is widespread, if not routine. A significant change is needed to disrupt a rotten status quo. Finally, the potential monetary rewards for landlord misconduct are huge, especially when it has become normalized throughout the system. Only a strong counterbalance has a chance of blunting the incentive for landlords to profit through illegality and misconduct.