Author: Martin Olszynski Page 2 of 13

B.Sc. in Biology (Saskatchewan), LL.B. (Saskatchewan), LL.M. Specialization in Environmental Law (University of California at Berkeley).
Assistant Professor.
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Building a Reclamation Security Regime for Electricity Generation: Transparent, Constrained, Fair, and Credible

By Martin Olszynski

On November 27, 2023

In Energy

By: Martin Olszynski

Matter commented on: Proceeding: 28501 – Inquiry into the ongoing economic, orderly, and efficient development of electricity generation in Alberta – Module A

PDF Version: Building a Reclamation Security Regime for Electricity Generation: Transparent, Constrained, Fair, and Credible

On August 3, 2023, the Alberta Utilities Commission (AUC) initiated an inquiry into the ongoing economic, orderly, and efficient development of electricity generation. As has been my practice in such matters (see e.g. here), what follows is my own submission to the AUC, dated December November 20, 2023, modified only for formatting purposes.

Wait, What!? What the Supreme Court Actually Said in the IAA Reference

By Martin Olszynski

On October 16, 2023

In Constitutional, Environmental, Supreme Court of Canada

By: Martin Olszynski, Nigel Bankes, and David Wright

Case Commented On: Reference re Impact Assessment Act, 2023 SCC 23 (CanLII)

PDF Version: Wait, What!? What the Supreme Court Actually Said in the IAA Reference

This past Friday, October 13, the Supreme Court of Canada released its opinion in Reference re Impact Assessment Act, 2023 SCC 23 (CanLII) (IAA Reference). Writing for a 5:2 majority (Justices Mahmud Jamal and Andromache Karakatsanis dissenting), Chief Justice Richard Wagner held that what is known as the “designated project” (or “major project” in colloquial terms) review scheme of the Impact Assessment Act, SC 2019, c 28, s 1 (“IAA”) is unconstitutional. This post sets out what is, and is not, constitutional about the IAA regime. We begin by first clarifying the Act’s current legal status. We then set out the principles – post-IAA Reference – of federal and provincial jurisdiction over the environment generally, and then with respect to impact assessment specifically. This is followed by a discussion of the IAA’s specific constitutional defects as found by the majority, the implications of those defects, and their potential remedies. We conclude with some observations regarding the IAA Reference’s relevance to future constitutional battles over federal clean electricity regulations and an oil and gas greenhouse gas emissions cap.

Counting Straws: Yahey v British Columbia and the Future of Cumulative Effects Management in Canada

By Martin Olszynski

On July 13, 2023

In Aboriginal, Environmental, Indigenous, Land Use

By: Martin Olszynski

Case Commented On: Yahey v British Columbia, 2021 BCSC 1287 (CanLII)

PDF Version: Counting Straws: Yahey v British Columbia and the Future of Cumulative Effects Management in Canada

Much has already been written about the British Columbia Supreme Court’s ground-breaking decision in Yahey v British Columbia, 2021 BCSC 1287 (CanLII) (also referred to as Blueberry River First Nation, BRFN, or simply Blueberry throughout). In Yahey, the Court agreed with the BRFN that, in the context of BFRN’s traditional territory in Northeastern British Columbia, “the cumulative effects of industrial development authorized by [British Columbia] have significantly diminished the ability of Blueberry members to exercise their rights to hunt, fish and trap in their territory as part of their way of life and therefore constitute an infringement of their treaty rights” (at para 3). My colleague Professor Robert Hamilton and former UCalgary Law JD student (now alumnus) Nick Ettinger wrote two outstanding blogs on the decision when it first came out: a first post summarized the decision, while a second focused on Yahey’s standard for treaty infringement, i.e., “meaningful diminishment”. They also published a law review article on the decision: Robert Hamilton and Nicholas P. Ettinger, “The Future of Treaty Interpretation in Yahey v British Columbia: Clarification on Cumulative Effects, Common Intentions, and Treaty Infringement,” 2023 54-1 Ottawa L Rev 109. In this (very) belated post spurred on by a presentation that I gave at an environmental law conference last month, I focus on the Court’s findings with respect to British Columbia’s approach to resource development, and specifically its failure to effectively manage the cumulative effects associated with oil and gas and forestry. In my view, and as further set out below, these findings and analysis are relevant to every level of government in Canada: federal, provincial, territorial, Indigenous, and municipal.

The Amendments to Bill 1

By Martin Olszynski

On December 12, 2022

In Constitutional, Law Reform

By: Martin Olszynski and Nigel Bankes

Matter commented on: The Government Amendments to Bill 1, Alberta Sovereignty within a United Canada Act

PDF Version: The Amendments to Bill 1

As anticipated at the time that we posted our original critique of Bill 1, the Smith administration tabled a set of amendments to Bill 1 that were adopted in the Committee of the Whole and included in the version adopted on third reading early in the morning of December 8, 2022. The amendments were tabled in the form of a single document and included two main changes: (1) a change to the harm trigger; and (2) the removal of the Henry VIII provisions.

Running Afoul the Separation, Division, and Delegation of Powers: The Alberta Sovereignty Within a United Canada Act

By Martin Olszynski

On December 6, 2022

In Constitutional, Law Reform, Statutory Interpretation

By: Martin Olszynski and Nigel Bankes

Legislation Commented on: Bill 1 – Alberta Sovereignty Within a United Canada Act

PDF Version: Running Afoul the Separation, Division, and Delegation of Powers: The Alberta Sovereignty Within a United Canada Act

On Tuesday, November 29, 2022, the provincial government unveiled its highly anticipated and controversial “Alberta Sovereignty Within a United Canada Act” (Bill 1). The promise to introduce some form of sovereignty legislation was the key plank of Premier Danielle Smith’s UCP leadership campaign this past summer and fall. An initial ABlawg post that drew from the general contours of the legislation, as found in a 2021 policy document called the “Free Alberta Strategy,” expressed concerns that “the clearest and most immediate effects of such ideas is not sovereignty, nor changes to the confederation bargain, but rather a damaging blow to the rule of law and the basic building blocks of democratic governance.”