Category Archives: International Law

Implementing UNDRIP: some reflections on Bill C-262

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Bill Commented On: Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples

This post comments on Bill C-262 adopted by the House of Commons on May 30, 2018. The Bill is currently in the Senate awaiting debate in a very packed fall sitting. The post is based on a presentation that I made to the Conference on Indigenous Solutions to Environmental Problems held at the Banff Centre, Banff Alberta, November 9 – 12^th 2018 on the Treaty 7 territory of the Stoney Nakoda First Nation.

Part I offers some preliminary comments on the United Nations Declaration on the Rights of Indigenous Peoples (Declaration or UNDRIP). Part II describes Canada’s bumpy road to the endorsement of the Declaration. Part III examines the subject of latest step in that endorsement, namely the government’s support of MP Romeo Saganash’s private member’s bill, Bill C-262.

My main conclusion is that the Bill strikes a judicious balance between affording the Declaration some immediate “application” in the laws of Canada, and the creation of a process that will, over time, give greater effect to the Declaration within the Canadian legal system and in doing so slowly decolonize Canadian law and the Canadian legal mind. My perception of the balanced nature of the Bill means that I do not share the views expressed by some (see, for example, Dwight Newman and Ken Coates here) to the effect that the Bill is overly simplistic and will shift a lot more power to the courts.

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Canada’s interpretation of the Hague Convention on the Civil Aspects of International Child Abduction – the influence of the new hybrid approach on a child’s objection to return

By: Rudiger Tscherning

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Cases Comment On: Office of the Children’s Lawyer v Balev, 2018 SCC 16; Erhardt v Meyer, 2018 ABQB 333; Husnik v Barbero Salas, 2018 ONSC 2627

Introduction

On November 9, 2017, the Supreme Court of Canada (SCC) heard the appeal in Office of the Children’s Lawyer v JPB and CRB (Supreme Court of Canada, Leave to Appeal (37250)) (Balev), a case which raises important issues about the interpretation of the Hague Convention on the Civil Aspects of International Child Abduction. For an overview of the background and issues arising from the Balev litigation, see my earlier posts at here, here, and here. The SCC rendered its decision in Balev on April 20, 2018.

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Anticipating the SCC’s Direction in Balev: The ABCA in Thompson v Thompson Emphasizes a ‘Child-centered’ Approach to the Hague Convention

By: Rudiger Tscherning

PDF Version: Anticipating the SCC’s Direction in Balev: The ABCA in Thompson v Thompson Emphasizes a ‘Child-centered’ Approach to the Hague Convention

Case Commented On: Thompson v Thompson, 2017 ABCA 299 (CanLII)

On November 9, 2017, the Supreme Court of Canada (SCC) will hear an appeal in Office of the Children’s Lawyer v JPB and CRB (Supreme Court of Canada, Leave to Appeal (37250)) (Balev), a case which raises important issues about the Hague Convention on the Civil Aspects of International Child Abduction. For an overview of the background and issues arising from the Balev litigation, see my earlier posts here and here.

The appeal in Balev involves the key issue of whether the habitual residence of a child can change for purposes of the Hague Convention during the period of a father’s time-limited consent (which permitted the children to attend school in Canada). If so, the mother in that case would not have wrongfully retained the children in Ontario within the Hague Convention’s prompt return mechanism. The appeal is likely to engage questions around how best to determine the habitual residence of a child. Should it be through a “child-centered” approach, a “parental intentions only” approach, or both? Continue reading →

Does a US Entity Have a Cause of Action (Cognizable by the Federal Court) where a Downstream Road/Dyke in Canada Serves to Prevent Dispersion of the Natural Flow of a Transboundary Stream? Answer: No

By: Nigel Bankes

PDF Version: Does a US Entity Have a Cause of Action (Cognizable by the Federal Court) where a Downstream Road/Dyke in Canada Serves to Prevent Dispersion of the Natural Flow of a Transboundary Stream? Answer: No

Case Commented On: Pembina County Water Resource District v Manitoba (Government), 2017 FCA 92 (CanLII)

The Pembina River is transboundary stream. Its geography is as follows (at para 6 of the judgement):

The Pembina River originates in Manitoba and crosses into North Dakota. It then flows eastwards through North Dakota before joining the Red River, which flows northward back into Canada. Within North Dakota, part of the river is “perched” meaning that it is elevated above the level of the surrounding prairie. When the river overflows these elevated banks, as the appellants allege happens “virtually every year,” the water should naturally disperse.

The gravamen of the plaintiffs’ claim was that (at paras 5 and 6):

…. in the relevant areas of southern Manitoba, there is a 99 foot wide road allowance running parallel to the international border. In or around 1940, a raised road was constructed within this allowance. The road [blocks] the flood waters of the Pembina River from crossing into Canada. Continue reading →

Update: SCC Grants Appeal on ‘Prompt Return’ Mechanism of the Hague Convention on International Child Abduction

By: Rudiger Tscherning

PDF Version: Update: SCC Grants Appeal on ‘Prompt Return’ Mechanism of the Hague Convention on International Child Abduction

Case Commented On: Office of the Children’s Lawyer v John Paul Balev and Catherine-Rose Bagott, Supreme Court of Canada, Leave to Appeal (37250)

Background

In an earlier post, I discussed the decision of Balev v Bagott, 2016 ONCA 680 (CanLII) and concluded that the ONCA was correct in its strict application of the ‘prompt return’ mechanism of the Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980. This meant that a ‘time-limited’ consent by one parent to relocate a child (on the facts, from Germany to Canada) could not amount to a unilateral change of the child’s ‘habitual residence’ during the consent period. As a result, the retention of a child after the expiration of a consent period constituted a wrongful removal or retention in breach of the Convention mechanism.

Update

On April 27, 2017, the Supreme Court of Canada (SCC) granted leave to appeal from the judgment of the Ontario Court of Appeal (ONCA) without reasons. It also granted a motion to admit fresh evidence. Significantly, the SCC ordered the appeal to be expedited. It further directed the parties to advise in writing of any changes that might affect the record, in particular with respect to the current circumstances of the children and the custody proceedings in the courts in Germany. Continue reading →