Category: Constitutional Page 2 of 71

Constitutional Caution, Correction, and Abdication: The Proposed Amendments to the Impact Assessment Act

On May 10, 2024

By: David V. Wright

Matter Commented On: Proposed Amendments to the Federal Impact Assessment Act following Reference re Impact Assessment Act, 2023 SCC 23 (CanLII)

PDF Version: Constitutional Caution, Correction, and Abdication: The Proposed Amendments to the Impact Assessment Act

Last week, the federal government released proposed amendments (beginning at 557) to the Impact Assessment Act (SC 2019, c 28, s 1) (IAA). These come in the wake of Reference re Impact Assessment Act, 2023 SCC 23 (CanLII) (Re IAA), where a 5:2 majority of the Supreme Court of Canada (SCC) found the federal impact assessment regime unconstitutional in part. This post briefly sets out the legal backdrop for the proposed amendments, discusses key proposed changes, and then concludes with commentary on implications going forward. For detailed commentary on Re IAA, see here, here, here, here, here, and here. Overall, this package of proposed amendments represents a constitutionally cautious approach to correcting constitutional problems, including one excessive over-correction where caution is tantamount to abdication (interprovincial effects of greenhouse gas emissions).

Bill 18 Provincial Priorities Act: Alberta Strikes Again

By Shaun Fluker

On April 25, 2024

In Constitutional

By: Shaun Fluker

Matter commented on: Bill 18, Provincial Priorities Act, 1^st Sess, 31^st Leg, Alberta, 2024 (first reading 10 April 2024)

PDF Version: Bill 18 Provincial Priorities Act: Alberta Strikes Again

On April 10, Alberta Premier Danielle Smith introduced Bill 18 for first reading in the current session of the Legislature, and second reading began on April 17. If Bill 18 passes through the legislative process in its current form, it will be enacted as the Provincial Priorities Act and require designated entities to obtain prior approval before entering into, amending, extending, or renewing an agreement with the federal government. The purpose and consequences of Bill 18 have been questioned by those who will be directly affected, including municipalities and post-secondary institutions. The Premier has also spoken to the media about the Bill – see e.g. here. The commentary thus far makes one thing very clear: Bill 18 is a sequel to the Alberta Sovereignty within a United Canada Act, SA 2022, c A-33.8 (Sovereignty Act) in its attempt to implement the Free Alberta Strategy and block what are seen as federal intrusions into provincial jurisdiction. Less clear is whether there are also some ideological motivations for the Bill. This post examines the content of Bill 18 and, to further understand the purpose of this proposed statute, reflects on the opening statements made by the Premier during first and second reading in the Legislature.

Original Powers: Reviving the Federal Disallowance Power to Combat Anti-Trans Legislation

By Charlotte Dalwood

On April 23, 2024

In Constitutional, Legal Research

By: Charlotte Dalwood

Matters Commented On: Government of New Brunswick, Policy 713 Sexual Orientation and Gender Identity, (Fredricton: Government of New Brunswick, 2023); Government of Saskatchewan, Use of Preferred First Name and Pronouns by Students, (Regina: Government of Saskatchewan, 2023); Government of Alberta, News Release, “Preserving choice for children and youth” (1 February 2024).

PDF Version: Original Powers: Reviving the Federal Disallowance Power to Combat Anti-Trans Legislation

A specter haunts Canada: the specter of legislated transphobia.

It began in New Brunswick. In Summer 2023, the province’s Minister of Education and Early Childhood Education changed Policy 713—the provincial education policy pertaining to sexual orientation and gender—to limit gender diverse students’ ability to use their chosen names and pronouns at school (see New Brunswick, Department of Education and Early Childhood Education, Policy 713 Sexual Orientation and Gender Identity (Fredericton: Government of New Brunswick, 2023)).

The Dickson Decision, UNDRIP, and the Federal UNDRIP Act

By Nigel Bankes

On April 18, 2024

In Aboriginal, Constitutional, Indigenous

By: Nigel Bankes and Jennifer Koshan

Decision Commented On: Dickson v Vuntut Gwitchin First Nation, 2024 SCC 10 (CanLII)

PDF Version: The Dickson Decision, UNDRIP, and the Federal UNDRIP Act

This post is part of continuing ABlawg commentary on the approach of the courts to legislation implementing the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). That commentary includes the decision of the Supreme Court of British Columbia in Gitxaala v British Columbia (Chief Gold Commissioner), 2023 BCSC 1680 (CanLII) (ABlawg post here) and, most importantly, the Supreme Court of Canada’s decision in Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 (CanLII) (FNIM Reference) (ABlawg post here). This post is also the first of multiple posts that ABlawg anticipates on the Dickson decision.

Preliminary Thoughts on the Implications of the Children, Youth and Families Reference for the Lands Reserved Head of Section 91(24)

By Nigel Bankes

On March 5, 2024

In Aboriginal, Constitutional, Indigenous

By: Nigel Bankes

Case Commented on: Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 (CanLII).

PDF Version: Preliminary Thoughts on the Implications of the Children, Youth and Families Reference for the Lands Reserved Head of Section 91(24)

The Children, Youth and Families Reference is a decision on the “Indians” head of section 91(24), a head that the Supreme Court of Canada has reframed as “Indigeneity, that is, Indigenous peoples as Indigenous peoples” (Reference at para 94). The Court takes a broad view of the scope of this head of federal power. It also reminds us that the double aspect doctrine means that so long as federal legislation is firmly connected to a federal head of power it can compete with and trump provincial legislation grounded on provincial heads of power addressing the same subject area (e.g. child and family welfare), so long as the federal legislation is addressed to the federal aspect of that subject matter. Furthermore, the Reference makes it clear that Parliament may accord the laws of Indigenous Nations the authority of federal law while the Nations await judicial confirmation that section 35 of the Constitution Act, 1982 protects a broad inherent power of Indigenous self-government. This implies that, provided that the federal government has the necessary legal or political motivation, it has the means to back-out provincial laws and create space for Indigenous self-government on a broad range of matters that can be connected to Indigenous peoples as Indigenous peoples.