Author: Martin Olszynski Page 3 of 13

B.Sc. in Biology (Saskatchewan), LL.B. (Saskatchewan), LL.M. Specialization in Environmental Law (University of California at Berkeley).
Assistant Professor.
Please click here for more information.

By: Martin Olszynski, Jonnette Watson Hamilton, and Shaun Fluker

Matter Commented On: The Alberta Sovereignty Act and the Free Alberta Strategy

PDF Version: The Alberta Sovereignty Act and the Rule of Law

Last week, United Conservative Party (UCP) leadership hopeful Danielle Smith announced that, upon her election as Premier, she would introduce the Alberta Sovereignty Act, legislation described as the “cornerstone” of the Free Alberta Strategy (Strategy), published back in the fall of 2021 (see story here). Briefly, this law would purport to grant the Alberta Legislature the power “to refuse enforcement of any specific Act of Parliament or federal court ruling that Alberta’s elected body deemed to be a federal intrusion into an area of provincial jurisdiction” (Strategy at 22). Legal academics have dismissed the idea as one that would clearly offend Canada’s constitutional order, but to date mainstream media commentary has failed to acknowledge the fundamentally unlawful and undemocratic nature of this proposal.

Carbon Tax Redux: A Majority of the Alberta Court of Appeal Opines that the Impact Assessment Act is Unconstitutional

By Martin Olszynski

On May 24, 2022

In Constitutional, Energy, Environmental

By: Martin Olszynski

Opinion Commented on: Reference re Impact Assessment Act, 2022 ABCA 165 (CanLII)

PDF Version: Carbon Tax Redux: A Majority of the Alberta Court of Appeal Opines that the Impact Assessment Act is Unconstitutional

On May 10, 2022, the Alberta Court of Appeal released its lengthy and long-awaited opinion in Reference re Impact Assessment Act, 2022 ABCA 165 (CanLII). A majority of the Court of Appeal (Chief Justice Fraser, Justice Watson, and Justice MacDonald) concluded that the Impact Assessment Act, SC 2019, c 28, s 1 (IAA), Part 1 of Bill C-69, was ultra vires (i.e. beyond) Parliament’s legislative authority pursuant to section 91 of the Constitution Act, 1867. Justice Strekaf concurred in the result. Justice Greckol dissented, concluding that the IAA was indeed constitutional. In my view, Justice Greckol’s dissent is both clearer and more consistent with current Canadian constitutional and environmental law doctrine. The majority’s opinion, on the other hand, is relatively difficult to follow, includes basic doctrinal errors in some parts, and ignores or strays far from precedent in others. In this and other ways, the majority’s approach is strongly reminiscent of its earlier opinion in Reference re Greenhouse Gas Pollution Pricing Act, 2020 ABCA 74 (CanLII) (GGPPA Reference ABCA) (see post here), which was overturned by the Supreme Court of Canada in References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 (CanLII) (GGPPA References SCC) (see posts here, here, and here). The federal government has already confirmed that it will appeal the majority’s opinion to the Supreme Court, pending which the IAA regime will remain in force (reference opinions not being strictly binding the same way that judgments are).

Are Regional (and other) Assessments pursuant to the Impact Assessment Act Justiciable? Ecology Action Centre v Canada (Part 1)

By Martin Olszynski

On December 22, 2021

In Administrative Law, Environmental

By: Martin Olszynski

PDF Version: Are Regional (and other) Assessments pursuant to the Impact Assessment Act Justiciable? Ecology Action Centre v Canada (Part 1)

Case Commented On: Ecology Action Centre v Canada (Environment and Climate Change), 2021 FC 1367 (CanLII)

The applicants sought judicial review in Federal Court of the “Regional Assessment of Offshore Oil and Gas Exploratory Drilling East of Newfoundland and Labrador” (the Offshore Exploratory Regional Assessment), initiated as a “regional study” under the previous Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52 (CEAA, 2012) but converted into a “regional assessment” under the current Impact Assessment Act, SC 2019, c 28, s 1 (IAA) when the latter came into force in 2019. The Offshore Exploratory Regional Assessment and Report were prepared by a committee established by both the federal and provincial governments and submitted to the Minister of Environment and Climate Change Canada (the Minister). The applicants also sought judicial review of the subsequently promulgated Regulations Respecting Excluded Physical Activities (Newfoundland and Labrador Offshore Exploratory Wells) (the Offshore Exploratory Regulations) pursuant to paragraph 112(1)(a.2) of the IAA, the effect of which was to exclude offshore exploratory drilling from undergoing individual impact assessments on a go-forward basis. Both applications were dismissed.

Beyond Carbon Pricing: An Assessment of the Major Parties’ Other Environmental Policies

By Martin Olszynski

On September 15, 2021

In Environmental

By: Martin Olszynski and Sharon Mascher

PDF Version: Beyond Carbon Pricing: An Assessment of the Major Parties’ Other Environmental Policies

Matter Commented On: Secure the Future (Conservative Party of Canada); Forward, For Everyone (Liberal Party of Canada); Ready For Better (New Democratic Party); Be Daring (Green Party of Canada)

Climate change is widely recognized as the most important environmental problem facing humanity. Indeed, in its recent opinion upholding the constitutionality of the federal Liberals’ carbon pricing regime, the Supreme Court of Canada acknowledged not only that climate change is real and caused by human activity, but also that “it poses a grave threat to humanity’s future” (References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 (CanLII) at para 2). The unsurprising result is that climate change now dominates environmental law and policy discourse. Indeed, at times – such as the current election period – it feels like climate policy has displaced all other environmental policy entirely. As one manifestation of this, Canadian voters have access to several independent and expert assessments of the parties’ climate policies (see here, here, here, and here), but very little with respect to the parties’ remaining environmental commitments. This post is intended to help remedy that situation by focusing on the non-climate aspects of each of the major federal parties’ environmental policies. We do also provide some relatively minor commentary on those aspects of the parties’ climate policies that we feel haven’t been sufficiently addressed.

Conflating Dissent with Disloyalty, Allan Inquiry sets a Dangerous Precedent

By Martin Olszynski

On July 30, 2021

In Energy, Environmental

By: Martin Z. Olszynski

PDF Version: Conflating Dissent with Disloyalty, Allan Inquiry sets a Dangerous Precedent

Matter Commented On: The Public Inquiry into Anti-Alberta Energy Campaigns

It’s late fall 2022. A popular mayor of a southern Alberta town wakes up to a peculiar email: the Second Public Inquiry into Anti-Alberta Energy Campaigns has reviewed several news reports from 2020 and 2021, as well as his social media account, and has determined that he engaged in an “anti-Alberta energy campaign.”

Just a bit down the highway, a popular Alberta country singer finds a similar email. They’ve each been given two weeks to respond. Confused, each writes back to the Inquiry to insist that they’re absolutely not anti-Alberta: they’re proud Albertans who care deeply about its lands and waters, especially the eastern slopes of the Rockies and the vital headwaters found there.