Environmental damages after the federal Environmental Enforcement Act: Bringing ecosystem services to Canadian environmental law?

• Published in: Osgoode Hall law journal (1960) 2012-07, Vol.50 (1), p.129-176
• Main Author: Olsynski, Martin Z. P.
• Format: Article
• Language: English
• Subjects: Common law; Ecosystems; Environmental impact; Environmental law; Environmental risk assessment; Fines & penalties; Liability for environmental damages
• ISSN: 0030-6185; 2817-5069; 2817-5069
• DOI: 10.60082/2817-5069.1034

The Canadian Environmental Enforcement Act [EEA] directs judges to consider actual environmental damage, or risk thereof, when setting fines for environmental offences. The EEA defi nes damage as including the loss of use and non-use values. While these terms are not unprecedented in Canadian environmental law, their use in environmental damage assessment is. Bearing in mind recent developments in environmental valuation in the United States and internationally, and considering the emergence of the "ecosystem services" paradigm in particular, this article explores the opportunities and challenges for ecosystem services based environmental damages assessment in the Canadian environmental sentencing context. The ecosystem services concept, much written about in American legal literature, provides a framework for identifying and organizing the numerous direct and indirect contributions that ecosystems make to human well-being, the value of which can then be expressed in economic terms. Although novel and ambitious in some respects, this approach would be consistent with both Parliament's intention in passing the EEA and with the pre-existing common law framework for environmental sentencing in Canada.