Author Archives: David V Wright

About David V Wright

M.A. (Dalhousie), J.D. (Dalhousie), LL.M. (Stanford). Associate Professor. Please click here for more information.

Federal Court of Appeal Rejects Another Attempted Appeal of the TMX Leave Decision

By: David V. Wright, Martin Olszynski, and Nigel Bankes

PDF Version: Federal Court of Appeal Rejects Another Attempted Appeal of the TMX Leave Decision

Case Commented On: Raincoast Conservation Foundation v Canada (Attorney General), 2019 FCA 259

The FCA has released another ruling in relation to its earlier leave decision on the consolidated TMX legal challenges (Raincoast Conservation Foundation v Canada (Attorney General), 2019 FCA 224 (Can LII); for our post on that decision see here). In this latest ruling the panel (including Justice David Stratas – who had authored the original decision) dismissed an attempted appeal (at para 4) brought by two NGOs. The panel reiterated Justice Stratas’ previous conclusion in Ignace v Canada (Attorney General), 2019 FCA 239 (for our post on that decision see here) that “appeals cannot be brought from this Court to this Court” and again pointing to the lack of any statutory basis for the FCA to hear such an appeal (at paras 7-9). Continue reading →

Crown Consultation Obligations and a National Infrastructure Corridor: Simple Meets Complex

By: David V. Wright

PDF Version: Crown Consultation Obligations and a National Infrastructure Corridor: Simple Meets Complex

Matter Commented On: National Infrastructure Corridor

Renewed interest in a cross-Canada infrastructure corridor has surfaced in recent months and weeks, including as a federal election issue. Details were thin in the recent Conservative campaign announcement, but a substantial amount of information about a similar concept can be found in a 2017 report from the Senate Committee on Banking Trade and Commerce (the focus of the former is on an ‘energy corridor’ while the focus of the latter and the below-cited article by Sulzenko and Fellows is on a multi-modal infrastructure corridor). That report rightly acknowledges that “such a major undertaking – which would require the accommodation of a multitude of varying interests and priorities – would undoubtedly be difficult to complete, and a number of complex issues – including in relation [to] Indigenous peoples, financing and the environment – would need to be addressed” (p 12). In this post, I provide a brief overview and initial comments in relation to a fundamental “complexity” pertaining to the corridor concept: Crown consultation and accommodation duties with respect to the Indigenous peoples of Canada. Continue reading →

TMX Litigation Takes an Unusual Turn at the Federal Court of Appeal

By: David V. Wright, Martin Olszynski, and Nigel Bankes

PDF Version: TMX Litigation Takes an Unusual Turn at the Federal Court of Appeal

Case Commented On: Ignace v Canada (Attorney General), 2019 FCA 239 (CanLII)

Last week, the Federal Court of Appeal (FCA) issued another ruling in the TMX saga dealing with the consolidated challenges to the Trans Mountain pipeline expansion (TMX) project. This decision comes just three weeks after Raincoast Conservation Foundation v Canada (Attorney General), 2019 FCA 224 (Can LII) (Raincoast), where the FCA granted leave to six parties to commence judicial reviews challenging the Governor in Council’s decision to re-approve the Trans Mountain Expansion (TMX) project. In this most recent decision, Justice David Stratas concluded that two of those six parties, Tsleil Waututh Nation (TWN) and Squamish Nation (Squamish), had filed applications that went beyond the narrow parameters set out in the September 4thcourt order granting leave. Accordingly, the Court issued an order allowing both parties to file amended notices of application that comply with the restrictions in the initial order. In this post, we briefly summarize this latest and fairly unusual development and conclude with a brief comment on what might have led counsel to push the boundaries in this matter. Continue reading →

Federal Court of Appeal Provides Reasons in TMX Leave Applications

By: Nigel Bankes, Martin Olszynski and David Wright

PDF Version: Federal Court of Appeal Provides Reasons in TMX Leave Applications

Decision Commented On: Raincoast Conservation Foundation v Canada (Attorney General), 2019 FCA 224.

On September 4, 2019, the Federal Court of Appeal (FCA) granted leave to six of the twelve parties who had applied for judicial review of Cabinet’s decision to re-approve the Trans Mountain Expansion (TMX) project. This post situates this most recent development in the broader TMX context and examines this rare instance of the FCA providing reasons in a leave decision. Continue reading →

A Comment on the Strategically Narrowed Strategic Assessment of Climate Change

By: David V. Wright

PDF Version: A Comment on the Strategically Narrowed Strategic Assessment of Climate Change 

Document Commented On: Terms of Reference for the Federal Strategic Assessment of Climate Change

 Earlier this month, Environment and Climate Change Canada (ECCC) released the terms of reference (TOR) for the Strategic Assessment of Climate Change (SA). This post briefly provides commentary on the context behind this development, offers several initial impressions of the TOR, and notes a number of ways to make the most of the process as now prescribed. Overall, the TOR charts a relatively narrow path that misses a critical opportunity to improve coherence across climate law, policy and programs in Canada, including with respect to carbon pricing and provincial climate measures such as those in Alberta.

For those following federal developments on the climate law and policy front, the wait for the TOR was a long one. This is the first development since the discussion paper released last summer. Why it took so long is unclear, though the federal government has obviously had a number of matters to contend with on the climate front, including the Ontario and Saskatchewan carbon price reference cases (the latter discussed in a recent post by my colleague, Martin Olszynski) and the relatively contentious Bill C-69.

Continue reading →