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Author: Martin Olszynski Page 8 of 18

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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Alberta Court of Appeal Opines That Federal Carbon Pricing Legislation Unconstitutional

By: Martin Olszynski, Nigel Bankes and Andrew Leach

PDF Version: Alberta Court of Appeal Opines That Federal Carbon Pricing Legislation Unconstitutional

Decision Commented On: Reference re Greenhouse Gas Pollution Pricing Act, 2020 ABCA 74

Last month, the Alberta Court of Appeal released its decision in Reference re Greenhouse Gas Pollution Pricing Act, 2020 ABCA 74, Alberta’s challenge to the constitutionality of the federal government’s Greenhouse Gas Pollution Pricing Act, SC 2018, c 12 (GGPPA). Writing for a majority of three judges, Chief Justice Catherine Fraser concluded that the GGPPAcould not be upheld on the basis of Parliament’s residual power over matters of “peace, order, and good government” (POGG), nor any other potentially relevant federal head of power. Concurring in the result but not the analysis, Justice Wakeling also held that the GGPPA was unconstitutional. Justice Feehan, dissenting, would have upheld the law on the basis of POGG, and the “national concern” branch of that power in particular. The Alberta Court of Appeal’s decision thus stands in contrast to the earlier decisions of the Courts of Appeal of both Saskatchewan (Reference re Greenhouse Gas Pollution Pricing Act 2019 SKCA 40) (Saskatchewan Reference) and Ontario (Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 544) (Ontario Reference), where a majority of judges in each court upheld the law as a valid exercise of the national concern branch of the POGG power.

Clearing the Air on Teck Frontier (Extended ABlawg Edition)

By: Andrew Leach and Martin Olszynski

PDF Version: Clearing the Air on Teck Frontier (Extended ABlawg Edition)

Decision Commented On: Teck Resources Limited, Frontier Oil Sands Mine Project, Fort McMurray Area, 2019 ABAER 008/CEAA Reference No. 65505

A lot of ink is currently being spilled over the federal government’s upcoming decision to approve – or not – Teck Resources’ Frontier oil sands mine project. Premier Jason Kenney and members of his Cabinet insist that the Frontier project is critical to Alberta’s economic prosperity. The Mining Association of Canada’s Pierre Graton stresses that Teck completed a “world-class, independent and rigorous assessment” and that the project was determined to be in the public interest by the joint review panel (JRP) that reviewed it. Environmental groups argue that approval is fundamentally inconsistent with Canada’s climate change commitments. The project is being framed as both a test of Prime Minister Trudeau’s resolve to combat climate change and a referendum on the federal government’s support for Alberta’s economic interests and its commitment to national unity.

Our purpose here is not to take sides but rather to lay out the facts and relevant legal context as clearly as possible so that Albertans and indeed all Canadians can come to their own informed views about the desirability, or not, of this project and what, if any, larger importance to attach to the federal Cabinet’s eventual decision.

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).

Everything You Wish You Didn’t Need to Know About the Alberta Inquiry into Anti-Alberta Energy Campaigns

By: Martin Olszynski

PDF Version: Everything You Wish You Didn’t Need to Know About the Alberta Inquiry into Anti-Alberta Energy Campaigns

Matter Commented On: The Alberta Inquiry, OC 125/2019

“Good faith” in this context…means carrying out the statute according to its intent and for its purpose; it means good faith in acting with a rational appreciation of that intent and purpose and not with an improper intent and for an alien purpose; it does not mean for the purposes of punishing a person for exercising an unchal­lengeable right; it does not mean arbitrarily and illegally attempting to divest a citizen of an incident of his civil status.

Roncarelli v Duplessis, [1959] SCR 121, 1959 CanLII 50 (SCC) at 143 (per Rand J)

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 OnIgnace 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.

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