Author Archives: Sharon Mascher

About Sharon Mascher

B.Ed. (McGill), LL.B. (Calgary), LL.M. (Calgary). Professor. Member of the British Columbia Bar. Please click here for more information.

Note to Canada on the Northern Gateway Project: This is NOT What Deep Consultation With Aboriginal People Looks Like

By: Sharon Mascher

PDF Version: Note to Canada on the Northern Gateway Project: This is NOT What Deep Consultation With Aboriginal People Looks Like

Case Commented On: Gitxaala Nation v. Canada, 2016 FCA 187 (CanLII)

On June 20, 2016, the majority of the Federal Court of Appeal (FCA) quashed Order in Council P.C. 2014-809 requiring the National Energy Board (NEB) to issue Certificates of Public Convenience and Necessity to Northern Gateway on the basis that Canada had not fulfilled the duty to consult it owed to Aboriginal peoples affected by the Project. Concluding that “Canada offered only a brief, hurried, and inadequate opportunity in Phase IV – a critical part of Canada’s consultation framework – to exchange and discuss information and dialogue” (at para 325), the Court identifies several ways in which the consultation process fell “well short of the mark”. Marking a crucial step in the “Northern Gateway legal saga” (for a list of previous ABlawg posts, going as far back as 2012, see here), the FCA has remitted the matter to the Governor in Council for redetermination. While entitled to make a fresh decision, the FCA has made clear that should it decide to do so the Governor in Council may only issue Certificates for the Project after Canada has fulfilled its duty to consult with Aboriginal peoples (at para 335).

Needless to say, the substantive guidance provided by the majority’s decision will be important whenever the duty to consult is engaged going forward. In the immediate future, attention will be focused on what this means for the Northern Gateway Project and the Trans Mountain Expansion Project consultations currently underway in accordance with the Federal Government’s interim measures. Continue reading →

Prime Minister Trudeau You’ve Got the Power (the Criminal Law Power): Syncrude Canada Ltd v Canada and Greenhouse Gas Regulation

By: Sharon Mascher

PDF Version: Prime Minister Trudeau You’ve Got the Power (the Criminal Law Power): Syncrude Canada Ltd v Canada and Greenhouse Gas Regulation

Case Commented on: Syncrude Canada Ltd. v. Canada (Attorney General), 2016 FCA 160 (CanLII)

On May 30^th Justice Rennie delivered the Federal Court of Appeal’s unanimous judgment in Syncrude Canada Ltd v Canada (Attorney General). At issue in this case was the validity of s 5(2) of the federal Renewable Fuels Regulations, SOR/2010-189 (RFRs) which requires that all diesel fuel produced, imported, or sold in Canada contains at least 2% renewable fuel. While the FCA held that the RFRs are valid, from a climate change perspective this conclusion is not the reason this decision is important. As my colleague Nigel Bankes has noted here, the RFRs represent only “a tiny, tiny step” towards reducing Canada’s greenhouse gas (GHG) emissions. Rather, coming as it does on the heels of Canada signing the Paris Agreement and in the midst of talks aimed at developing a pan-Canadian climate change framework, the Syncrude decision is important because the FCA confirms that the federal government can use the criminal law power to regulate GHG emissions. More specifically, given that the RFRs at issue in this case create a flexible scheme that allows for the buying and selling of compliance units to achieve the 2% renewable fuel requirement, the Syncrude decision endorses the use of the criminal law power to support market-based emissions trading schemes or other pricing mechanisms. In short, provided federal regulations are directed at the purpose of reducing GHG emissions, this FCA decision tells the federal government that it has the constitutional power to take action on climate change. Continue reading →

The “Historic” Paris Climate Agreement: What It Means “At Home” for Canada and the Alberta Oil Sands

By: Sharon Mascher

PDF Version: The “Historic” Paris Climate Agreement: What It Means “At Home” for Canada and the Alberta Oil Sands

Matter Commented On: Paris Agreement under the United Nations Framework Convention on Climate Change

On Saturday December 12, 2015, French Foreign Minister Laurent Fabius declared consensus and gavelled the Paris Agreement. While far from perfect, the Agreement is being hailed by many around the world as historic (see for example here, here and here). Canadian Prime Minister Justin Trudeau is no exception, labeling the agreement “historic, ambitious and balanced” in a Statement issued following the conclusion of the Paris climate conference. The Statement goes on to say “[t]ogether with our international partners, we agreed to strengthen the global response to limit global average temperature rise to well below 2 degrees Celsius as well as pursue efforts to limit the increase to 1.5 degrees”. This is indeed historic as, in so doing, the international community agreed for the first time to increase the level of ambition beyond the 2°C maximum that has prevailed to date (see COP 16 Decision 1/CP.16). There is now a clear commitment within the Paris Agreement to hold temperatures to well below 2°C, and a more aspirational target to pursue a limit of 1.5 °C.

Continue reading →

Today’s Word on the Street – “Consent”, Brought to You by the Supreme Court of Canada

By: Sharon Mascher

PDF Version: Today’s Word on the Street – “Consent”, Brought to You by the Supreme Court of Canada

Case commented on: Tsilhqot’in Nation v British Columbia, 2014 SCC 44

On June 26, 2014, the Supreme Court of Canada (SCC) granted the Tsilhqot’in Nation a declaration of Aboriginal title over 1,750 square kilometres of its territory. That the SCC has granted the first ever declaration of Aboriginal title in Canada, in and of itself, makes this a decision of great significance (see Jonnette Watson Hamilton’s post on that issue here). However, through its unanimous decision, the SCC has done much more than this – it has refocused the discussion around the infringement of Aboriginal title away from its current pre-occupation with consultation towards consent. In this respect the decision is momentous – not only for Aboriginal title holders but for all Canadians. For this reason, this decision may indeed mark, in the words of Tsilhqot’in Nation Tribal Chair Joe Alphonse, the beginning of a “new Canada” (see here). Continue reading →

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University of Calgary Faculty of Law Blog