Strengths and weaknesses of trying to protect the environment using the law of torts

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Strengthsand weaknesses of trying to protect the environment using the law oftorts

Strengthsand weaknesses of trying to protect the environment using the law oftorts

Thelaw of torts is applied so as to provide compensation for a givenform of injury that could have been caused to a group of people or anindividual. The law could also be applied to stop a negative activityfrom taking place through having an injunction placed by a court oflaw. In the Nova Scotia province of Canada, the law may be wellapplied in ensuring that the environment is well protected and allactions that seem to pose a given form of harm to it halted. The useof tort law ends up being most preferred in the instance ofcontravention of environmental provisions by entities because ittouches on the basic fact that harm is done on people, either as agroup or individually (Benidickson,2013, pg101). In regards to the application of this law to enforceenvironmental protection, it s bound to have some strengths as wellas a given share of challenges that relate to the same.

Thestrengths of using the law lie in the fact that there are welloutlined structures that help to show that a given wrong has beendone. Given that proper proof has been provided by the plaintiff thata wrong has been done by the defendant, there is bound to be properaction by the court to rule in favour of the plaintiff. The use ofthe law is also influenced by a number of causes. One of them isoutright negligence on the part of a contravening party. This couldalso be caused by the fact that a given entity has chosen to engagein a given of either private or public nuisance (Boyd,2004).The entity could also have had chosen to defy its statutoryobligations, thereby making it easy for the plaintiff to raise a caseedged on the tort law so as to bring a legal action towards the same.

Agreat advantage lies in this stance in that when a case is brought upon a given organization that has been involved in either of thementioned claims, there is a chance that they shall be brought tobook and be made to take the responsibility of the action that theyhave done. Environmental provisions, especially those of Nova Scotiaprovince are so specific and do provide a clear indication of wherelack of compliance with environmental provision is. The instances ofthe laws that have clearly indicated the measures that are supposedto be taken so as to effectively protect the environment are such asthe Oceans Act, the Fisheries Act, the Canadian EnvironmentAssessment Act, the Canada Shipping Act as well as the CanadianEnvironmental Protection Act (Boyd,2004).All these Acts do provide proper information in regards to howvarious organs and entities need to go about their duties whileensuring that the environment is well protected. In cases where agiven party has a view that some of the provisions outlined are notbeing followed by another entity, then such a person is free to usethe tort law to ensure that the same is enforced accordingly.

Theuse of the tort law in the protection of the environment also hasvarious challenges. One of them is that the burden of proof liesentirely on the part of the one bringing the case. This law acts onthe basic element of the accused is always innocent until provenguilty (Mushkat pg 116). In cases of where the case is filed by aprivate individual who lacks financial capability, then the personmay find it quite challenging to prove that the contravention of agiven environmental law actually took place. This is especially, incases where the individual is bringing up a case against anorganization that does enjoy a huge financial capability andtherefore, able to acquire a highly competent legal representation.

Anotherchallenge that does lie in the use of tort law to protect theenvironment is that sometimes a ruling provided by the court couldresult in the accused party paying a much less compensation comparedto the extent of the damage done. Judicial process are usually verycomplicated and they, at times, end up causing a situation wherecalculations of the damage caused by the accuse party are made andthe results show that they are liable for a very small amount ofcompensation (Boyd,2004).This is especially, in cases where the plaintiff failed to provide aproper indication of the severity of given form of nuisance that wasdone by the accused party.

Inconclusion, it is important to put in mind that the use of tort lawhas both its advantages as well as its challenges. The law is,however, quite important in ensuring that the environment is wellprotected as it has proven to be effective while used in variousinstances.

References

BoydD B (2004). Unnatural law rethinking Canadian environmental law andpolicy. Vancouver Univ. of British Columbia&nbsp

Benidickson,J (2013). Chapter 5: Civil Liability for Environmental Harm, 101

Mushkat(). Chapter 6 The Common Law and the environment