Legal pluralism and environmental governance: the regulatory design potential of Bhutan’s gross national happiness and Canada’s reconciliation approaches

Abstract

As humans exceed global ecological limits nation state-based environmental governance attracts persistent criticism. Historically, the focus of regulatory design for environmental law has been to provide access to natural resources or the environment but without ecosystem-based standards at any scale or cumulative effects assessment by which state governments evaluate whether they are achieving ecosystem health. Illuminated within these nation state regimes are two examples where legal pluralism has or is mandating environmental regulatory design that more explicitly elevates ecological function as a key outcome. Bhutan’s relatively recent state environmental laws are part of its broader development approach of Gross National Happiness (GNH), an expression of state, Buddhist, and other customary laws. This ‘internal legal pluralism’ in state policy is expressed through multiple layers of plans and project review by administrative agencies and a GNH screening tool. By contrast, Canada is reforming its environmental laws to account for cumulative impacts and Indigenous rights. In particular, state governments have committed to aligning their laws with the United Nations Declaration on the Rights of Indigenous Peoples, and plural legal agreements establish unique collaborative governance bodies. The purpose of this article is to examine how legal pluralism is influencing the evolution of regulatory design for environmental governance in Bhutan and Canada. While the plural legal aspects of their regimes have resulted in the prioritization of ecological health, that focus in both regimes is vulnerable without further regulatory scaffolding to establish ecological limits that engage with multiple legal orders at various temporal and spatial scales.