fbpx
  • Latest News
  • Trending News
  • All
  • Latest News
  • Featured
  • Industry News
  • Legal Governance
  • Constitutional Law
  • Op-Ed
  • News Archives
  • Alternative Dispute Resolution
  • Analysis
  • Bankruptcy Law
  • Consumer Protection Law
  • Cyber Security Law
  • Family Law
  • Disability Law
  • Employment Law
  • Environmental Law
  • Estate Law
  • Housing Law
  • Human Rights Code
  • Immigration Law
  • Insurance Law
  • Intellectual Property Law
  • Privacy Law
  • Tax Law
  • Workers Compensation Board
Advisory opining

Advisory opining

June 11, 2022
More than 10,000 Canadians received a medically-assisted death in 2021: report

More than 10,000 Canadians received a medically-assisted death in 2021: report

August 13, 2022
Quebec Superior Court suspends Bill 96’s translation requirement until constitutionality determined

Quebec Superior Court suspends Bill 96’s translation requirement until constitutionality determined

August 12, 2022
The Ontario government has given Maggie an ultimatum: the disabled teen can lose her funding or her independence

The Ontario government has given Maggie an ultimatum: the disabled teen can lose her funding or her independence

August 12, 2022
FBI took 11 sets of classified material from Trump’s Mar-a-Lago home while investigating possible Espionage Act violations (US)

FBI took 11 sets of classified material from Trump’s Mar-a-Lago home while investigating possible Espionage Act violations (US)

August 12, 2022
Ontario class action settlement reclassifies volunteers as employees, setting new precedent

Ontario class action settlement reclassifies volunteers as employees, setting new precedent

August 11, 2022
Availability of Judicial Review in SABS Disputes

Availability of Judicial Review in SABS Disputes

August 10, 2022
Are masking policies still valid?

Are masking policies still valid?

August 10, 2022
Justice Canada releases commission report on impact of lack of legal aid in family law disputes

Justice Canada releases commission report on impact of lack of legal aid in family law disputes

August 9, 2022
Harmonized sales tax part of maximum amount of attendant care benefits owed by insurer: court

Harmonized sales tax part of maximum amount of attendant care benefits owed by insurer: court

August 8, 2022
New rules coming next month to help Canadians with cancelled and delayed flights

New rules coming next month to help Canadians with cancelled and delayed flights

August 3, 2022
Stephen King set to testify for govt in books merger trial (US)

Stephen King set to testify for govt in books merger trial (US)

August 2, 2022
New law program in Quebec to begin next fall, a first in 50 years

New law program in Quebec to begin next fall, a first in 50 years

August 2, 2022

Defence lawyers threaten job action over Legal Aid Alberta funding

August 1, 2022
The Impact of the Lack of Legal Aid in Family Law Cases

The Impact of the Lack of Legal Aid in Family Law Cases

July 29, 2022
SCC rules that when someone is required by their partner to wear a condom but do not, they could be guilty of sexual assault.

SCC rules that when someone is required by their partner to wear a condom but do not, they could be guilty of sexual assault.

July 29, 2022
Big Plastic suing feds over single-use ban — again

Big Plastic suing feds over single-use ban — again

July 29, 2022
Tim Hortons offers coffee and doughnut as proposed settlement in class action lawsuit

Tim Hortons offers coffee and doughnut as proposed settlement in class action lawsuit

July 29, 2022

NBA investigating Philadelphia 76ers for possible tampering

July 29, 2022

#MeToo didn’t end sexual harassment in the workplace and vigilance remains a must

July 29, 2022
The SCC has refused to hear the appeal to declare the renewal of the state of health emergency by the Quebec government invalid

The SCC has refused to hear the appeal to declare the renewal of the state of health emergency by the Quebec government invalid

July 28, 2022
Federal privacy commissioner investigating controversial ArriveCAN app

Federal privacy commissioner investigating controversial ArriveCAN app

July 28, 2022
Kraken, a U.S. Crypto Exchange, Is Suspected of Violating Sanctions (US)

Kraken, a U.S. Crypto Exchange, Is Suspected of Violating Sanctions (US)

July 26, 2022
Ontario court certifies class action on former patients’ anxiety from notice of risk of infection

Ontario court certifies class action on former patients’ anxiety from notice of risk of infection

July 26, 2022
The stakes couldn’t be higher as Canada’s top court decides whether to hear climate class action lawsuit

The stakes couldn’t be higher as Canada’s top court decides whether to hear climate class action lawsuit

July 26, 2022
Professor Barnali Choudhury selected by EU as trade and sustainable development expert

Professor Barnali Choudhury selected by EU as trade and sustainable development expert

July 25, 2022

Abuse and harassment survivors ‘silenced’ by non-disclosure agreements fight for change to B.C. law

July 23, 2022
The Supreme Court decision on the ‘Ghomeshi’ amendments will help sexual assault victims access justice

The Supreme Court decision on the ‘Ghomeshi’ amendments will help sexual assault victims access justice

July 5, 2022
AFN Reaches $20 B Final Settlement Agreement to Compensate First Nations Children and Families

AFN Reaches $20 B Final Settlement Agreement to Compensate First Nations Children and Families

July 4, 2022

Why your options may be limited if your employer wants you back in the workplace

July 4, 2022

City directs contractors to reinstate Sikh security guards who lost work due to clean-shaven rule

July 4, 2022
  • ABOUT LITN
  • SUPPORT LITN
  • LEGAL, PRIVACY & POLICY
  • PUBLIC EDUCATION & RESOURCE LINKS
Thursday, February 9, 2023
  • Login
  • Register for a FREE LITN account
⚖ Law in the News .com (LITN) Media 📃
  • Latest News
  • Industry News
  • Categories
    • A to C
      • Aboriginal Law
      • Access to Justice (A2J)
      • Administrative Law
      • Alternative Dispute Resolution
      • Analysis
      • Animal Law
      • Anti-Corruption Law
      • Antitrust Law
      • Arbitration Law
      • Banking and Securities Law
      • Bankruptcy Law
      • Cannibis Law
      • Civil Litigation
      • Class Action
      • Commercial Law
      • Constitutional Law
      • Construction Law
      • Consumer Protection Law
      • Contract Law
      • Criminal Law
      • Cyber Security Law
    • D to H
      • Disability Law
      • Editor’s Choice
      • Elder Law
      • Employment Law
      • Environmental Law
      • Entertainment Law
      • Estate Law
      • Family Law
      • Highway Traffic Law
      • Housing Law
      • Human Rights Code
    • I to L
      • Immigration Law
      • Industry News
      • Insurance Law
      • Intellectual Property Law
      • International Law
      • Labour Law
      • Latest News
      • Legal Governance
    • M to Z
      • Medical Law
      • Municipal Law
      • Op-Ed
      • Personal Injury Law
      • Privacy Law
      • Real Estate Law
      • Regulatory Law
      • Tax Law
      • Telecommunications Law
      • Transportation Law
      • Workers Compensation Board
  • Archives
    • 2022
      • July 2022
      • June 2022
      • May 2022
      • April 2022
      • March 2022
      • February 2022
      • January 2022
    • 2021
      • December 2021
      • November 2021
      • October 2021
      • September 2021
      • August 2021
  • About LITN
    • Who We Are
    • What We Do
    • Our Mission
    • Our Goal
    • Contact Us
    • Support LITN
      • Contribute to LITN Operations
      • Place YOUR Custom Ad on LITN
      • Engage with LITN Sponsored Ads
      • Create a FREE LITN Account
      • Subscribe to the LITN Newsletter
      • Connect, Follow, Like, Retweet and Repost LITN
    • Legal, Privacy and Policy
      • Cookie Policy (CA)
      • Privacy Policy
      • Terms and Conditions
  • Public Education and Resource Links
No Result
View All Result
⚖ Law in the News .com (LITN) Media 📃
  • Latest News
  • Industry News
  • Categories
    • A to C
      • Aboriginal Law
      • Access to Justice (A2J)
      • Administrative Law
      • Alternative Dispute Resolution
      • Analysis
      • Animal Law
      • Anti-Corruption Law
      • Antitrust Law
      • Arbitration Law
      • Banking and Securities Law
      • Bankruptcy Law
      • Cannibis Law
      • Civil Litigation
      • Class Action
      • Commercial Law
      • Constitutional Law
      • Construction Law
      • Consumer Protection Law
      • Contract Law
      • Criminal Law
      • Cyber Security Law
    • D to H
      • Disability Law
      • Editor’s Choice
      • Elder Law
      • Employment Law
      • Environmental Law
      • Entertainment Law
      • Estate Law
      • Family Law
      • Highway Traffic Law
      • Housing Law
      • Human Rights Code
    • I to L
      • Immigration Law
      • Industry News
      • Insurance Law
      • Intellectual Property Law
      • International Law
      • Labour Law
      • Latest News
      • Legal Governance
    • M to Z
      • Medical Law
      • Municipal Law
      • Op-Ed
      • Personal Injury Law
      • Privacy Law
      • Real Estate Law
      • Regulatory Law
      • Tax Law
      • Telecommunications Law
      • Transportation Law
      • Workers Compensation Board
  • Archives
    • 2022
      • July 2022
      • June 2022
      • May 2022
      • April 2022
      • March 2022
      • February 2022
      • January 2022
    • 2021
      • December 2021
      • November 2021
      • October 2021
      • September 2021
      • August 2021
  • About LITN
    • Who We Are
    • What We Do
    • Our Mission
    • Our Goal
    • Contact Us
    • Support LITN
      • Contribute to LITN Operations
      • Place YOUR Custom Ad on LITN
      • Engage with LITN Sponsored Ads
      • Create a FREE LITN Account
      • Subscribe to the LITN Newsletter
      • Connect, Follow, Like, Retweet and Repost LITN
    • Legal, Privacy and Policy
      • Cookie Policy (CA)
      • Privacy Policy
      • Terms and Conditions
  • Public Education and Resource Links
No Result
View All Result
⚖ Law in the News .com (LITN) Media 📃
No Result
View All Result
Home Environmental Law

Advisory opining

The Alberta Court of Appeal offers some extrajudicial commentary in its reference decision on federal assessments.

June 11, 2022
Reading Time: 6 mins read
0
A A
0
Advisory opining
Share on FacebookShare on TwitterShare on LinkedInShare by Email
 
PHOTO: Stock
 
  • Dale Smith ⁞ CBA National
  • June 11, 2022
 
We expect judges to be careful in their choice of words, lest they make their rulings weak. It’s what makes the recent decision by Alberta’s Court of Appeal, that the federal Impact Assessment Act is ultra vires so unusual, say critics.

In that ruling, the majority held that the federal law exceeds Ottawa’s authority, particularly around natural resource projects. The federal government has promised to appeal the decision to the Supreme Court of Canada. 

Richard Lindgren, a staff lawyer with the Canadian Environmental Law Association, acted as co-council before the Court of Appeal for Environmental Defence and MiningWatch Canada. The three organizations argued that the federal regime is constitutionally sound. According to Lindgren, the federal legislation can be upheld under several federal heads of power, including fisheries, treaty-making authority, relationships with Indigenous peoples, trade and commerce and criminal law power.

“Some of those submissions obviously found some traction with the dissenting justice, but it’s pretty clear that the majority preferred the submissions of Alberta and its aligned intervenors,” Lindgren says.

Lindgren says his clients are disappointed and somewhat puzzled by the findings of the majority opinion. Mainly at issue was the suggestion that Section 92A of the Constitution Act 1867 is a kind of immunity shield that prevents any meaningful federal role when it comes to designated projects involving natural resource projects or extraction.

“I find that to be quite an interesting proposition,” Lindgren says. “It will be very revealing to see what the Supreme Court of Canada does with that.”

Martin Olszynski, a law professor at the University of Calgary, says the decision contains basic doctrinal errors. When dissecting the path to their conclusions, it’s something of a straw-person that the dissenting justice neatly, clearly and coherently tears down.

“She points out that you can talk about a veto and social forces, but what we’re really talking about is cooperative federalism and equal sovereigns in their own spheres,” Olszynski.

“The provinces are not the children of the federal government, but neither is the federal government the child of the provinces,” Olszynski says. “And yet the necessary implication of the majority’s reasoning is that somehow the federal government is always subservient to provincial policies and preferences when exercising its own legislative authority. That doesn’t make sense.”

While the majority reasoning focuses heavily on natural resources, an area of provincial jurisdiction, there are plenty of items on the federal assessment list that don’t touch natural resources.

“They did the same thing with the Greenhouse Gas Pollution Pricing Act reference,” Olszynski explains, adding that the GGPA applies to several areas unrelated to natural resources development. “But it’s the narrative and the frame that the Court of Appeal has adopted in both cases now, that this is somehow all designed to undermine Section 92A when in both cases, the scope of the federal legislation is considerably larger and encompasses many more things.”

Olszynski says you can’t interpret the scope of federal authority through existing legislation because it’s not the same thing. Legislation can fill the jurisdictional space, or it can be less than. In the end, what matters is that Parliament has the jurisdictional space to legislate.

“Yet again, we see this Court of Appeal suggest that somehow because the IAA was broader in scope than the prohibition against harms to fish, then somehow that’s off-side constitutionally,” Olszynski says.

Interestingly, observers note similar use of injudicious language in the IAA decision and the same court’s decision regarding the federal carbon price, which the Supreme Court overturned last year. 

Lindgren is stuck by the amount of extrajudicial commentary in the decision, particularly in the first few paragraphs, on various political, social, and economic issues that fall outside of the constitutional questions put to the court, echoing the judgment in the carbon price decision.

“It’s not the first time we’ve seen this kind of language from this court in terms of adjudicating the constitutionality of federal statutes,” Lindgren adds. “It will be interesting to see how the Supreme Court of Canada responds, if at all, to that kind of rhetoric.”

Andrew Bernstein, a partner at Torys LLP in Toronto, believes that this appeal to the SCC will be harder for Ottawa to litigate than in the GPPA reference. It’s unclear what they will do, particularly as there will be a new member of the top court by the time this arrives.

As for the unusual tone of the Court of Appeal decision, Bernstein suspects that the majority’s use of language was deliberate, knowing that Supreme Court will have the final say.

“They want the Supreme Court to understand just how emotionally fraught the topic is to people in the West,” Bernstein says. “Their message is that we feel incredibly strong about this, and before you reverse us, you should understand just how high emotions run.”

Olszynski says that in the GPPA reference, the Supreme Court reminded the Court of Appeal that courts are neutral arbiters and directly overruled certain findings. So why persist with problematic rhetoric?

“I don’t know that it’s a signal to the Supreme Court, but it’s speaking to Albertans of a conservative political orientation,” says Olszynski. “It’s congenial to their interests. If it goes to the Supreme Court, and if the Supreme Court overrules them again, it’s a further undermining of the Supreme Court’s legitimacy in this province, and that is very deliberate.”

Olszynski says that the Supreme Court will be aware that there is a narrative being fostered that they are unsympathetic to Alberta’s interests—and it’s not correct. Read the decisions, and see which one is torqued with problematic reasoning and which one isn’t.

“Once, you can sort of ignore it—the GPPA decision was full of political rhetoric,” says Olszynski. “But when you see it twice, and all of the similarities, at some point, you do need to say something.”

Olszynski says it becomes the role of academics to call this sort of behaviour by the Court of Appeal out when they see it.

According to Lindgren, the majority tried to characterize the pith and substance of the Impact Assessment Act, believing that they have mischaracterized the dominant purpose of the Act in their belief that it gives the federal government a virtual veto over all resource projects.

“Overall, it’s aimed at safeguarding areas of federal jurisdiction from adverse impacts arising from designated projects, so I’m not entirely clear from the majority reasons why they characterized the pith and substance so broadly,” Lindgren says. “That is going to be one of the key issues for the Supreme Court of Canada to adjudicate—what is the true nature of the Act, and which heads of power does it fall under?”

Lindgren says the Supreme Court of Canada’s decision in this appeal could be the most significant environmental law decision since Oldman River in 1992, which held that federal environmental assessment guidelines were binding on the federal government and extended to projects sponsored by provincial governments.

Lindgren also flags the majority’s suggestion that the Act is unconstitutional because it doesn’t resemble the former environmental assessment regime that the SCC upheld in Oldman River. The dissenting justice pointed out that there is no constitutional pre-requisite that the assessment process must be tied to an affirmative regulatory duty, as the majority claims.

Lindgren points out that the current Impact Assessment Act is far narrower in scope than the original 1992 federal assessment regime — another reason why the majority’s belief that it is too broad is questionable.

While three judges signed the majority decision, a fourth concurred with most of their reasons, save one section describing the Act as de facto expropriation of natural resources, for whom the concurring judge said she had no opinion.

“I read it as that judge having some concerns about the legal analysis there, and I think that’s fine,” Bernstein says. “You don’t need to get to de facto expropriation to get to the conclusion that the Court of Appeal reached.”

Bernstein says that he was disappointed in the ruling because it did not further explore the issues around interjurisdictional immunity.

“It’s incredibly un-trodden ground,” Bernstein says. “Every single case involves provincial laws not applying to the core of federal jurisdiction. There are no cases and there has been no careful examination in the court about the circumstances in which the federal laws don’t apply to the core of provincial jurisdiction, and that’s a really interesting question.”

Bernstein expects this is an issue that will get more play at the Supreme Court, especially if the majority believes that the Act is within federal jurisdiction, at which point there is a secondary question about what it applies to.

Dale Smith is a contributor based in Ottawa.


 
GOOGLE ADVERTISEMENT

Want direct access to the latest LITN content?

Stay in the loop ➞ Subscribe to LITN instant notifications.
Receive the latest content delivered directly to your device.
Unsubscribe at anytime.

Unsubscribe from LITN instant notifications
Previous Post

Are you or someone you know concerned about elder abuse?

Next Post

‘A body check’: Kids restrained over 2000 times in one year in Ontario’s child-welfare system

Latest News

More than 10,000 Canadians received a medically-assisted death in 2021: report
Medical Law

More than 10,000 Canadians received a medically-assisted death in 2021: report

August 13, 2022
7
Quebec Superior Court suspends Bill 96’s translation requirement until constitutionality determined
Constitutional Law

Quebec Superior Court suspends Bill 96’s translation requirement until constitutionality determined

August 12, 2022
7
The Ontario government has given Maggie an ultimatum: the disabled teen can lose her funding or her independence
Disability Law

The Ontario government has given Maggie an ultimatum: the disabled teen can lose her funding or her independence

August 12, 2022
7

Subscribe

Join the LITN Newsletter ➞ the latest news delivered to your inbox. Unsubscribe at any time.


GOOGLE ADVERTISEMENT

Instagram Feed

  • How #MoonMining could work ... https://www.jpl.nasa.gov/infographics/the-lunar-gold-rush-how-moon-mining-could-work ...
#spacelaw #spacelawyers #spaceeconomy #spacematters
  • 📜 Facts #FutureOfWork #RemoteWork #connectivity #wellbeing #working ... https://lawinthenews.com/
  • #LegalTechWoes #legaltech #legaltechpainpoints #legalinnovation  #legalops #legaloperations #legal
#legalgeek #legaltechs #legaltechnology | https://instagram.com/lawinthenews
Courtesy Mat Jakubowski ...silvertownlegal.com | @matjakubowski ... https://www.linkedin.com/in/mat-jakubowski | https://lawinthenews.com/

Facebook Feed

Facebook Feed

Twitter Feed

Join the Conversation

Personal selections from a Canadian perspective. #Law in the #News #LITN @Law_In_The_News

News Categories

Latest Headlines

More than 10,000 Canadians received a medically-assisted death in 2021: report

More than 10,000 Canadians received a medically-assisted death in 2021: report

August 13, 2022
7
Quebec Superior Court suspends Bill 96’s translation requirement until constitutionality determined

Quebec Superior Court suspends Bill 96’s translation requirement until constitutionality determined

August 12, 2022
7
The Ontario government has given Maggie an ultimatum: the disabled teen can lose her funding or her independence

The Ontario government has given Maggie an ultimatum: the disabled teen can lose her funding or her independence

August 12, 2022
7

Subscribe to the LITN Newsletter

Join the LITN Newsletter ➞ the latest news delivered to your inbox. Unsubscribe at any time.

Website Powered By

DJT Design Studios logo

© 2022 Law in the News Media (LITN)

  • About LITN
  • Contact LITN
  • Support LITN
  • Legal, Privacy and Policy
  • Public Education & Resource Links
No Result
View All Result
  • Login
  • Sign Up
  • Latest News
  • Industry News
  • Categories
    • A to C
      • Aboriginal Law
      • Access to Justice (A2J)
      • Administrative Law
      • Alternative Dispute Resolution
      • Analysis
      • Animal Law
      • Arbitration Law
      • Anti-Corruption Law
      • Antitrust Law
      • Banking and Securities Law
      • Bankruptcy Law
      • Cannibis Law
      • Criminal Law
      • Civil Litigation
      • Class Action
      • Commercial Law
      • Constitutional Law
      • Construction Law
      • Consumer Protection Law
      • Contract Law
      • Criminal Law
      • Cyber Security Law
    • D to H
      • Disability Law
      • Editor’s Choice
      • Elder Law
      • Employment Law
      • Environmental Law
      • Estate Law
      • Family Law
      • Highway Traffic Law
      • Housing Law
      • Human Rights Code
    • I to L
      • Immigration Law
      • Industry News
      • Insurance Law
      • Intellectual Property Law
      • International Law
      • Labour Law
      • Latest News
      • Legal Governance
    • M to Z
      • Medical Law
      • Municipal Law
      • Op-Ed
      • Personal Injury Law
      • Privacy Law
      • Real Estate Law
      • Regulatory Law
      • Tax Law
      • Telecommunications Law
      • Transportation Law
      • Workers Compensation Board
  • News Archives
    • 2022
      • July 2022
      • June 2022
      • May 2022
      • April 2022
      • March 2022
      • February 2022
      • January 2022
    • 2021
      • December 2021
      • November 2021
      • October 2021
      • September 2021
      • August 2021
  • Public Education & Resource Links
  • About LITN
    • Who We Are
    • What We Do
    • Our Mission
    • Our Goal
    • Contact LITN
    • Support LITN
    • Legal, Privacy and Policy
      • Home
      • Cookie Policy
      • Privacy Policy
      • Terms of Use Policy

© 2022 Law in the News Media (LITN)

Welcome Back to LITN!

Sign In with Facebook
Sign In with Google
Sign In with Linked In
OR

Login to your LITN account below.

Forgot your password? Sign Up

Create a FREE LITN Account!

Sign Up with Facebook
Sign Up with Google
Sign Up with Linked In
OR

Please complete your registration below.

*By registering into the website, you agree to LITN's Terms & Conditions.
All fields are required. Log In

Retrieve your password

Please enter your username or email address to reset your password.

Log In
⚖ Law in the News .com (LITN) Media 📃
Manage Cookie Consent
LITN uses technologies like cookies to store and/or access device information to provide the best user experience. Consenting to these technologies will allow us to process data such as browsing behavior or unique IDs on this site. Not consenting or withdrawing consent, may adversely affect certain features and functions.
Functional Always active
The technical storage or access is strictly necessary for the legitimate purpose of enabling the use of a specific service explicitly requested by the subscriber or user, or for the sole purpose of carrying out the transmission of a communication over an electronic communications network.
Preferences
The technical storage or access is necessary for the legitimate purpose of storing preferences that are not requested by the subscriber or user.
Statistics
The technical storage or access that is used exclusively for statistical purposes. The technical storage or access that is used exclusively for anonymous statistical purposes. Without a subpoena, voluntary compliance on the part of your Internet Service Provider, or additional records from a third party, information stored or retrieved for this purpose alone cannot usually be used to identify you.
Marketing
The technical storage or access is required to create user profiles to send advertising, or to track the user on a website or across several websites for similar marketing purposes.
Manage options Manage services Manage vendors Read more about these purposes
View preferences
{title} {title} {title}
Go to mobile version