Comments on: Access to Justice, the Charter and Administrative Tribunals in Alberta: Who holds the Holy Grail? http://ablawg.ca/2010/06/15/access-to-justice-the-charter-and-administrative-tribunals-in-alberta-who-holds-the-holy-grail/ Tue, 22 May 2012 09:44:33 +0000 http://wordpress.org/?v=2.3.3 By: Shaun http://ablawg.ca/2010/06/15/access-to-justice-the-charter-and-administrative-tribunals-in-alberta-who-holds-the-holy-grail/#comment-99603 Shaun Wed, 23 Jun 2010 00:56:15 +0000 http://ablawg.ca/2010/06/15/access-to-justice-the-charter-and-administrative-tribunals-in-alberta-who-holds-the-holy-grail/#comment-99603 Is it unique to Alberta? I wouldn't think so - but haven't checked. The legislator has the power as a sovereign lawmaker to dictate what sorts of questions its delegates can decide - including constitutional questions as this line of jurisprudence confirms. I personally don't see constitutional vulnerability. Is it unique to Alberta? I wouldn’t think so - but haven’t checked. The legislator has the power as a sovereign lawmaker to dictate what sorts of questions its delegates can decide - including constitutional questions as this line of jurisprudence confirms. I personally don’t see constitutional vulnerability.

]]> By: Blair Mitchell http://ablawg.ca/2010/06/15/access-to-justice-the-charter-and-administrative-tribunals-in-alberta-who-holds-the-holy-grail/#comment-99119 Blair Mitchell Sat, 19 Jun 2010 11:19:26 +0000 http://ablawg.ca/2010/06/15/access-to-justice-the-charter-and-administrative-tribunals-in-alberta-who-holds-the-holy-grail/#comment-99119 Is s. 11 of the Administrative Powers...Act unique to Alberta? By presumptively barring charter jurisdiction, is s. 11 constitutionally vulnerable itself ? in conflict with Charter values? Is s. 11 of the Administrative Powers…Act unique to Alberta?

By presumptively barring charter jurisdiction, is s. 11 constitutionally vulnerable itself ? in conflict with Charter values?

]]> By: Linda McKay-Panos http://ablawg.ca/2010/06/15/access-to-justice-the-charter-and-administrative-tribunals-in-alberta-who-holds-the-holy-grail/#comment-98929 Linda McKay-Panos Fri, 18 Jun 2010 01:58:41 +0000 http://ablawg.ca/2010/06/15/access-to-justice-the-charter-and-administrative-tribunals-in-alberta-who-holds-the-holy-grail/#comment-98929 Ironically, since under the Designation of Constitutional Decision Makers Regulation, the Alberta Human Rights Tribunal does not have jurisdiction to adjudicate Charter matters, it seems rather arbitrary that this power is granted to the ERCB (hardly known as the paragon of knowledge on civil liberties and human rights). A cynic might argue that it was a deliberate distinction based on the impression that the ERCB wouldn't get "out of hand" and the human rights types might actually apply the Charter properly. Ironically, since under the Designation of Constitutional Decision Makers Regulation, the Alberta Human Rights Tribunal does not have jurisdiction to adjudicate Charter matters, it seems rather arbitrary that this power is granted to the ERCB (hardly known as the paragon of knowledge on civil liberties and human rights). A cynic might argue that it was a deliberate distinction based on the impression that the ERCB wouldn’t get “out of hand” and the human rights types might actually apply the Charter properly.

]]> By: Shaun Fluker http://ablawg.ca/2010/06/15/access-to-justice-the-charter-and-administrative-tribunals-in-alberta-who-holds-the-holy-grail/#comment-98742 Shaun Fluker Wed, 16 Jun 2010 16:31:44 +0000 http://ablawg.ca/2010/06/15/access-to-justice-the-charter-and-administrative-tribunals-in-alberta-who-holds-the-holy-grail/#comment-98742 Yes, and whether the ERCB should have its hands on the Charter grail is another question. Take the recent Sullivan Field decision for example (ERCB Decision 2010-022, online: ). The Stoney Nakoda Nation presented constitutional arguments against the PetroCanada sour gas project along the foothills near Longview Alberta. The Board's decision makes it apparent that the Alberta Attorney General appeared at the hearing to contest the validity of the Stoney constitutional claims. Hmmm. The chances of the Board panel disagreeing with the submissions of the Attorney General on constitutional matters seems very slim to me. While the panel may have a lawyer on it as was the case here, there is no requirement for this AND no certainty that lawyer will be versed in constitutional matters. Predictably here, the panel agreed with the Attorney General. And one of the constitutional issues was thrown out because of time limitation in the APAJ; on another, the Board (with the AG endorsement) bluntly stated it has no duty to consider whether the Crown met its duty to consult in relation to this project. OK that's one position - but this business over whether an administrative tribunal has the obligation to consider the duty to consult in its proceedings is the subject of the Carrier Sekani appeal to the SCC this year. I don't think the argument should be so readily dismissed. This is hardly access to justice - making arguments in front of a decision-maker that does not have expertise in constitutional affairs AND having to face the weight of the State arguing against you. Yikes. Arguably this is an impediment to justice since parties seeking the constitutional remedy will then have to go to the Court of Appeal on these issues - arguably the ERCB process just adds time and expense to accessing Charter remedies. Yes, and whether the ERCB should have its hands on the Charter grail is another question. Take the recent Sullivan Field decision for example (ERCB Decision 2010-022, online: ). The Stoney Nakoda Nation presented constitutional arguments against the PetroCanada sour gas project along the foothills near Longview Alberta. The Board’s decision makes it apparent that the Alberta Attorney General appeared at the hearing to contest the validity of the Stoney constitutional claims. Hmmm. The chances of the Board panel disagreeing with the submissions of the Attorney General on constitutional matters seems very slim to me. While the panel may have a lawyer on it as was the case here, there is no requirement for this AND no certainty that lawyer will be versed in constitutional matters. Predictably here, the panel agreed with the Attorney General. And one of the constitutional issues was thrown out because of time limitation in the APAJ; on another, the Board (with the AG endorsement) bluntly stated it has no duty to consider whether the Crown met its duty to consult in relation to this project. OK that’s one position - but this business over whether an administrative tribunal has the obligation to consider the duty to consult in its proceedings is the subject of the Carrier Sekani appeal to the SCC this year. I don’t think the argument should be so readily dismissed.

This is hardly access to justice - making arguments in front of a decision-maker that does not have expertise in constitutional affairs AND having to face the weight of the State arguing against you. Yikes. Arguably this is an impediment to justice since parties seeking the constitutional remedy will then have to go to the Court of Appeal on these issues - arguably the ERCB process just adds time and expense to accessing Charter remedies.

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