Author: David V Wright Page 3 of 6

M.A. (Dalhousie), J.D. (Dalhousie), LL.M. (Stanford).
Associate Professor.
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Duty to Consult, Honour of the Crown, Project Assessment, and Land-Use Planning in a Modern Treaty Context: More Clarity from the Supreme Court of the Yukon

On May 25, 2023

In Aboriginal, Energy, Indigenous, Natural Resources

By: David Wright

Matter Commented On: First Nation of Na-Cho Nyäk Dun v Yukon (Government of), 2023 YKSC 5 (CanLII) (Metallic Minerals)

PDF Version: Duty to Consult, Honour of the Crown, Project Assessment, and Land-Use Planning in a Modern Treaty Context: More Clarity from the Supreme Court of the Yukon

The duty to consult and accommodate is now a mature area of jurisprudence, including case law that is “replete with indicia” (Coldwater First Nation v Canada (Attorney General), 2020 FCA 34 (CanLII) at para 41) of what constitutes meaningful consultation. One area that continues to evolve, however, is Crown consultation obligations and the honour of the Crown in modern treaty contexts. The landmark Supreme Court of Canada cases of Beckman v Little Salmon/Carmacks First Nation (2010 SCC 53 (CanLII)) and First Nation of Na-Cho Nyäk Dun v Yukon (2017 SCC 58 (CanLII)), both originating from lower courts in the Yukon, set out the contours of this legal landscape, but some uncertainty remains. In First Nation of Na-Cho Nyäk Dun v Yukon (Government of), 2023 YKSC 5 (CanLII) (Metallic Minerals), the Supreme Court of Yukon (YKSC) provides helpful judicial interpretation and observations in this area. In particular, Chief Justice Suzanne M. Duncan clarifies the law with respect to the Honour of the Crown and the duty to consult and accommodate in context of project-level assessment and land-use planning in the Yukon. This short post provides an overview of the case, as well as brief commentary regarding key points.

BC Climate Accountability Law is Justiciable (But Weak Climate Plan is Reasonable)

By David V Wright

On January 27, 2023

In Environmental

By: David V. Wright

Case Commented On: Sierra Club of British Columbia Foundation v British Columbia (Minister of Environment and Climate Change Strategy), 2023 BCSC 74

PDF Version: BC Climate Accountability Law is Justiciable (But Weak Climate Plan is Reasonable)

In a judgement released last week, the Supreme Court of British Columbia (BCSC) ruled that requirements to report on progress toward climate change targets under the Climate Change Accountability Act, SBC 2007, c 42 (CCAA) are justiciable. This short post provides context for the decision in Sierra Club of British Columbia Foundation v British Columbia (Minister of Environment and Climate Change Strategy), 2023 BCSC 74 (Sierra Club), summarizes key points, and reflects on potential implications. Overall, this BCSC judgement is a welcome development in the climate change litigation context where justiciability is typically a live and uncertain issue.

Just Transition Friction Needs Interest-Based Negotiation

By David V Wright

On January 25, 2023

In Energy, Legal Education, Negotiation

By: David V. Wright

Matter Commented On: Proposed federal just transition legislation

PDF Version: Just Transition Friction Needs Interest-Based Negotiation

For three weeks every January, I teach the University of Calgary Faculty of Law intensive block course on negotiations. This is a mandatory course for all second-year law students, and it’s a key part of the Calgary Curriculum. Each year I look for contemporary topics and events to use as examples that bring to life the approaches and concepts that we cover in the course. Like any good negotiations course, a core part of the curriculum is focused on interest-based negotiations, the approach long advocated by dispute resolution and negotiation experts around the world. This feeds one of the course’s key learning points: begin negotiations with an interest-based approach and then shift to more competitive, distributive stances later in the process if necessary. An obvious example for this year is the current friction between the federal government and the Alberta government with respect to a proposed federal just transition initiative. This short post examines what is painfully obvious and disconcerting in the present context: both levels of government contributing to this current tension are flouting even the most basic best practises in negotiations. They are adopting positional bargaining instead of an interest-based, problem-solving approach. While Alberta has been particularly aggressive, showing signs that it is more interested in short-term political gains than constructive resolution, no one is doing it right.

Rigs in a Parlour: The Freedom Convoy and the Law of Private Nuisance

By David V Wright

On February 9, 2022

In Torts

By: David V Wright and Martin Olszynski

PDF Version: Rig in a Parlour: The Freedom Convoy and the Law of Private Nuisance

Matter Commented On: Li v Barber et al, Court File No CV-22-00088514-00CP

After more than a week of disruptive, and at times highly offensive, protesting in the nation’s capital, private law has been engaged. Specifically, residents of the inner downtown area applied to the Ontario Superior Court for injunctive relief (essentially, a temporary ban on certain conduct) and for damages under the tort of private nuisance. This post discusses the basic elements and principles of private nuisance as they relate to the present context (we do not comment on procedural aspects – e.g., certification of the proceeding as a class action). Our preliminary assessment is that the prospects for success on the question of private nuisance are very good. Early indications from the Court are consistent with this assessment, as Justice Hugh McLean of the Ontario Superior Court granted an interim injunction on Monday (copy of the Court order here). In doing so, Justice McLean indicated that the right of citizens to peace and quiet was the overriding right (see this detailed thread on Twitter summarizing the Court proceedings).

Preliminary Reflections on COP26 and the Glasgow Climate Pact, Part 2

By David V Wright

On November 17, 2021

In Climate Change, Environmental

By: David V. Wright

PDF Version: Preliminary Reflections on COP26 and the Glasgow Climate Pact, Part 2

Matter Commented On: COP26 (Twenty-sixth Conference of the Parties to the United Nations Framework Convention on Climate Change) and the Glasgow Climate Pact (Decision -/CMA.3)

Developments in UNFCCC & Paris Agreement Implementation

This post is Part 2 of two posts presenting preliminary reflections soon after the conclusion of COP26 in Glasgow. In this part, I present and briefly discuss notable developments (or lack of) within the formal negotiations process with respect to the implementation of the Paris Agreement and United Nations Framework Convention on Climate Change (UNFCC).

A key objective for this particular conference was to finalize the rulebook for implementation of the Paris Agreement (see this helpful background document on the Paris Agreement and rulebook). This did indeed happen, and most would agree that this constitutes a success even if there is discontent with some of the final features. It is a particularly significant step forward as there was a risk that Parties would not reach an agreement on the rulebook entirely, resulting in further delay in implementation (on top of losing a year due to a pandemic-induced postponement last year) and loss of confidence in the basic structure and approach of the Paris Agreement. The following discusses several of the notable developments on the rulebook front, as well as several other (but not all) matters.