Author Archives: Arlene Kwasniak

About Arlene Kwasniak

Professor Emerita of Law. Member of the Alberta Bar. Please click here for more information.

The Alberta Emergency Statutes Amendment Act, 2024 Surges Executive Powers under the Water Act

By: Brenda Heelan Powell, Arlene Kwasniak, Braum Barber, and Ruiping Luo

Statute Commented On: The Alberta Emergency Statutes Amendment Act, 2024, SA 2024, c 9

PDF Version: The Alberta Emergency Statutes Amendment Act, 2024 Surges Executive Powers under the Water Act

Emergency Legislation and the Rule of Law

Since the 1215 Magna Carta, democratic society has been based on the tenet that the Executive in power is not above the rule of law. The United Nations has described the core values underlying the rule of law as follows:

… the rule of law is a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires measures to ensure adherence to the principles of supremacy of the law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness, and procedural and legal transparency. (United Nations and the Rule of Law).

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Coal Development Consultation Terms of Reference Revisited

By: Arlene Kwasniak

PDF Version: Coal Development Consultation Terms of Reference Revisited

Matter Commented on: Terms of Reference for the Coal Policy Consultation Committee, dated March 29, 2021

This is the seventh instalment in the ABlawg series on coal law. See Part One: the Coal Policy and Its Legal Status, the special edition: What Are the Implications of Reinstating the 1976 Coal Development Policy?, Part Two: The Rules for Acquiring Coal Rights and the Royalty Regime, Part Three: Was the Public Rationale for Rescinding the Coal Policy Ever Convincing?, Part Four: The Regulation of Coal Exploration, Part Five: What is the Role of the Federal Government in Relation to Alberta Coal Mines?, and Part Six: Coal Consultation Terms of Reference.

Nigel Bankes’ post “Part Six: Coal Consultation Terms of Reference” concerns the Terms of Reference (ToR) for the Coal Policy Consultation Committee (CPCC). The CPCC is responsible for consulting with Albertans as part of the process leading to the provincial government’s development of a “modern coal development policy” to replace the 1976 A Coal Development Policy for Alberta (the 1976 Coal Policy). In his post on the ToR, Professor Bankes, like most commentators, construed the ToR as being very narrow and precluding meaningful discussion of coal development, environmental and water matters, and land-use planning. Professor Bankes observes:

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Multi-Jurisdictional Assessment and Bill C-69 – The Further Fading Federal Presence in Environmental Assessment

By: Arlene Kwasniak

PDF Version: Multi-Jurisdictional Assessment and Bill C-69 – The Further Fading Federal Presence in Environmental Assessment

Bill Commented On: Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and make consequential amendments to other Acts

This is a continuation of the series of ABlawg posts on Bill C-69. The Impact Assessment Act (IAA) part of Bill C-69 is intended to replace the Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52 (CEAA 2012). This post concerns how the proposed IAA addresses the situation where more than one jurisdiction has decision-making authority over a project and each jurisdiction requires an impact assessment (IA). A key question for federal legislators is should there be two (or more) assessments or one assessment? And if one, what is the nature of that process, and what roles must the respective jurisdictions play in the assessment? Continue reading →

Minister Sharpens the Wetland Policy’s Teeth, and Beaver Pond is Spared

By: Arlene Kwasniak

PDF Version: Minister Sharpens the Wetland Policy’s Teeth, and Beaver Pond is Spared

Decisions Commented On: Brookman and Tulick v Director, South Saskatchewan Region, Alberta Environment and Parks, re: KGL Constructors, A Partnership (24 November 2017), Appeal Nos. 17-047 and 17-050-R (AEAB), EAB Report, Minister`s Order, and Minister’s Reasons)

The physical setting relating to the 111 page EAB Report (ER), Minister’s Order (MO), and Minister’s Reasons (MR), includes the geologically and ecologically unique Weaselhead Flats Natural Environment Park in south Calgary (containing the only delta in the City), the Tsuut’ina First Nation Reserve, a series of wetlands that drain into the Park and the Glenmore Reservoir, and the long-time materializing Calgary Ring Road. The complex and sometimes intense fact situation may be summarized as follows: Continue reading →

Filling the Gaps in the Federal Government Discussion Paper to Regain Public Trust in Federal Assessment

By: Arlene Kwasniak

PDF Version: Filling the Gaps in the Federal Government Discussion Paper to Regain Public Trust in Federal Assessment

Document Commented On: Environmental and Regulatory Reviews, Discussion Paper, Government of Canada, June 29, 2017

As explained in Professor Mascher’s July 13th ABlawg post the Government of Canada’s Discussion Paper outlines a series of “system-wide changes” the Government “is considering to strengthen Canada’s environmental assessment and regulatory processes”. The Discussion Paper remarks that the changes reflect the Government’s commitment to “deliver environmental assessment and regulatory processes that regain public trust, protect the environment, introduce modern safeguards, advance reconciliation with Indigenous peoples, ensure good projects go ahead, and resources get to market” (at 3). The Government seeks comments on the Discussion Paper up to August 28, 2017. Comments may be provided on canada.ca/environmentalreviews. The Government also continues to consult on the law reform initiatives. It promises to table its legislative changes in fall 2017. Continue reading →