In Pausing Taseko’s New Prosperity Mine Exploration Program BCCA Recognizes Unsettled Questions Relating to the Duty to Consult; Consent and Justification Analysis and Proven Aboriginal Rights

By: Sharon Mascher

PDF Version: In Pausing Taseko’s New Prosperity Mine Exploration Program BCCA Recognizes Unsettled Questions Relating to the Duty to Consult; Consent and Justification Analysis and Proven Aboriginal Rights

Case Commented On: William v British Columbia (Attorney General), 2019 BCCA 112 (CanLII)

On April 1, 2019, the British Columbia Court of Appeal (BCCA), in William v British Columbia (Attorney General) granted Chief Roger William, on his own behalf and on behalf of all other members of the Xeni Gwet’in First Nations Government and the Tsilhqot’in Nation (the Applicants), a stay of an order allowing an exploratory drilling program in relation to the New Prosperity Mine Project to proceed pending the outcome of an application for leave to appeal to the Supreme Court of Canada (SCC). The application for leave to appeal relates to a petition for the judicial review of a Notice of Work Approval granted to Taseko Mines Limited (TML) by the Province of British Columbia on July 17, 2017 allowing the exploratory drilling work to proceed. Chief William’s petition for judicial review of the Approval was dismissed by a chambers judge (William v British Columbia, 2018 BCSC 1425 (CanLII)) who found that the Province’s decision was reasonable and that the Province’s consultation process and degree of accommodation had maintained the honour of the Crown. On March 1, 2019, the BCCA (William v British Columbia (Attorney General), 2019 BCCA 74 (CanLII)) agreed with the findings of the chambers judge and dismissed Chief William’s appeal.

In reaching a decision that the stay should be granted, and specifically that the Applicants have met the merits test, Justice Bruce Butler rejects TML’s argument that this is just another duty to consult case applying a long line of settled law. In so doing, Butler JA recognizes that the law relating to sufficiency of consultation and accommodation, the role of consent, and the justification analysis from Tsilhqot’in Nation v British Columbia, 2014 SCC 44 (CanLII) is unsettled when proven s 35 Aboriginal rights are at issue. Continue reading →

Turning a Blind Eye? The Scope of the Charter Right to a Representative Jury

By: Amy Matychuk

PDF Version: Turning a Blind Eye? The Scope of the Charter Right to a Representative Jury

Case Commented On: R v Newborn, 2019 ABCA 123 (CanLII)

In R v Newborn, Justices Frans Slatter, Ritu Khullar, and Barbara Lea Veldhuis of the Alberta Court of Appeal (ABCA) dismissed an argument from the appellant (the accused) that “the array from which his jury was selected was constitutionally flawed because it disproportionately excluded [A]boriginal citizens” (Newborn ABCA, at para 1). It also dismissed his argument that inadmissible expert evidence was allowed at the trial. However, this post will focus on the right to a representative jury as defined in the Supreme Court’s decision in R v Kokopenace, 2015 SCC 28 (CanLII), R v Newborn’s application of Kokopenace, and the appropriate scope of the state’s obligations under Charter s 11. Continue reading →

Bill 12: a reprise

By: Nigel Bankes

PDF Version: Bill 12: a reprise

Legislation Commented On: Preserving Canada’s Economic Prosperity Act, SA 2018, c P-21.5

Case Commented On: British Columbia (Attorney General) v Alberta (Attorney General), 2019 ABQB 121 (CanLII)

I commented on Preserving Canada’s Economic Prosperity Act (PCEPA) when it was first introduced in the spring of 2018: see “A Bill to Restrict the Interprovincial Movement of Hydrocarbons: a.k.a. Preserving Canada’s Economic Prosperity [Act]” (18 April, 2018). At that time, I expressed doubts as to the constitutional validity of elements of Bill 12 as it then was, especially those provisions pertaining to refined products as well as any implementation measures that might involve discrimination by destination with respect to any exports. I remain of that opinion.

What has changed since then is that PCEPA has now been proclaimed (April 30, 2019); that is to say, it now has the force of law in Alberta. Prior to proclamation, PCEPA was of no legal significance. It was that absence of legal significance that led Justice Hall in his judgment in British Columbia (Attorney General) v Alberta (Attorney General) in February of this year to dismiss British Columbia’s challenge to the legislation. Justice Hall concluded that any such attack, at least by way of a declaration as to invalidity, was premature: Continue reading →

(Final?) Brief re: Bill C-69 to the Senate Committee on Energy, Environment and Natural Resources

By: Martin Olszynski

Legislation Commented On:Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts

PDF Version: (Final?) Brief re: Bill C-69 to the Senate Committee on Energy, Environment and Natural Resources

The Senate Committee on Energy, Environment, and Natural Resources (the Committee) is in the final stages of its hearings into Bill C-69, which if passed will replace the current federal environmental assessment regime pursuant to the Canadian Environmental Assessment Act 2012, SC 2012 c 19 s 52 (CEAA, 2012). What follows is a slightly edited version of the brief that I submitted to the Committee last week, following my appearance before it on April 9, 2019, here in Calgary.

I am pleased to submit this brief to the Committee as part of your review of Bill C-69 – and the proposed Impact Assessment Act (IAA) in particular. Much has been said and written about Bill C-69. In addition to this brief, I myself have written or co-written the following articles/blogs since Bill C-69 was passed in the House of Commons:

My own contributions have been spurred less by a desire to defend the Bill and more to simply set the record straight. That is the spirit that animated my remarks to the Committee on April 9, 2019 and that is at the core of this brief, which is organized as follows: Continue reading →

Inter-Provincial Recognition of Substitute Decision-Making Documents: Personal Directives

By: Katherine MacKenzie

PDF Version: Inter-Provincial Recognition of Substitute Decision-Making Documents: Personal Directives

Report Commented On: Alberta Law Reform Institute, Inter-Provincial Recognition of Substitute Decision-Making Documents: Personal Directives, Final Report 113

A little over a year ago, I wrote a post about the Alberta Law Reform Institute’s (ALRI) project on the inter-provincial recognition of substitute decision-making documents. This was an implementation project, which means that it looked at whether sample, uniform legislation already researched and drafted by the Uniform Law Conference of Canada (ULCC) was suitable for enactment in Alberta.

At the time of that post, ALRI recommended that the ULCC’s uniform legislation should be implemented in Alberta, with some minor amendments. We also sought feedback on our preliminary recommendations for reform. Unfortunately, the consultation results did not support our preliminary recommendations and, as a result, ALRI is not in a position to make any final proposals. Instead, Final Report 113 summarizes the project’s consultation process and results, and highlights any policy alternatives or additional issues that may deserve further exploration and analysis.

Continue reading →