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Reconciling the Application of the Interjurisdictional Immunity Doctrine to Aboriginal Title and Lands Reserved

On October 17, 2017

By: Jennifer Koshan

PDF Version: Reconciling the Application of the Interjurisdictional Immunity Doctrine to Aboriginal Title and Lands Reserved

Case Commented On: McCaleb v Rose, 2017 BCCA 318 (CanLII)

It is a challenge to teach the interjurisdictional immunity (IJI) doctrine these days, in part because the Supreme Court of Canada has been sending mixed, incomplete, and frankly off the cuff messages about the use of this doctrine. IJI has predominantly been applied so as to render provincial laws inapplicable to federal works, undertakings and other federally regulated persons and entities when they impair the core of the federal power over those entities (although the Supreme Court of Canada left the door open for IJI to apply to federal laws that impair provincial entities in Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44 (CanLII)). The Court signalled in Canadian Western Bank v Alberta, 2007 SCC 22 (CanLII), that generally the use of the doctrine should be minimized since it is redolent of more rigid approaches to constitutional law that favour “watertight compartments” rather than the more modern cooperative federalism approach. Canadian Western Bank tells us that IJI issues are to be analysed only if the case can’t be resolved on the basis of validity or paramountcy, although the Court has often neglected that progression in cases subsequent to Canadian Western Bank (see e.g. Quebec (Attorney General) v Canadian Owners and Pilots Association, 2010 SCC 39 (CanLII)).

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

On October 16, 2017

In Family, International Law

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?

In the Growing Wave of Climate Litigation, Could the Automobile Industry be Next?

By Martin Olszynski

On October 13, 2017

In Climate Change, Torts

By: Martin Olszynski

PDF Version: In the Growing Wave of Climate Litigation, Could the Automobile Industry be Next?

Litigation Commented On: County of San Mateo v Chevron Corp., Docket number(s): 3:17-cv-04929-MEJ; County of Marin v Chevron Corp., Docket number(s): 3:17-cv-04935; City of Imperial Beach v Chevron Corp., Docket number(s): 4:17-cv-04934; People of State of California v BP p.l.c., No CGC-17-561370 (Cal Super Ct, filed Sept 19, 2017); People of State of California v BP p.l.c., No RG17875889 (Cal Super Ct, filed Sept 19, 2017)

Over the course of the summer, five California municipalities (San Mateo County, Marin County, and the City of Imperial Beach as a first group, San Francisco and Oakland as a second) filed statements of claim against many of the world’s largest oil and gas companies – including Exxon Mobil, Chevron, BP, Shell, and Canada’s own Encana – claiming that these companies should be liable for the current and future costs incurred by these municipalities as a result of climate change, and especially those associated with rising sea levels. In this post, I consider whether the world’s top automobile manufacturers could be next in the defendant line. I’ve been thinking about automobile manufacturers’ potential liability for a while now, having first considered the issue in a recent article co-authored with Professors Sharon Mascher and Meinhard Doelle (which we blogged about here). This post’s focus on car manufacturers has been motivated by two separate but related developments in particular: (i) the automobile manufacturers’ December 2016 letter to Scott Pruitt, the then-new head of the United States’ Environmental Protection Agency (EPA), requesting that he reconsider the “strict” fuel efficiency standards for cars and light trucks established by the Obama administration; and (ii) the industry’s response to a potential zero emission vehicle (ZEV) mandate currently being considered here in Canada, and especially the industry’s suggestion that it “can’t control consumer tastes”.

Green Regs and Ham: Some Thoughts on Contaminated Sites, the Redwater Decision and the Principle of Intergenerational Equity

By Nigel Bankes

On October 5, 2017

In Bankruptcy and Insolvency, Environmental, Oil & Gas

By: Nigel Bankes

PDF Version: Green Regs and Ham: Some Thoughts on Contaminated Sites, the Redwater Decision and the Principle of Intergenerational Equity

Note: This post is a revised version of remarks presented at the Fifth Green Regs and Ham Breakfast convened by the Environmental Law Centre, Edmonton on October 3, 2017. The session was entitled “Municipal Environmental Jurisdiction: Contaminated sites and hockey fights” but my remarks principally addressed liability for abandonment and reclamation of oil and gas wells and facilities.

Good morning. I acknowledge that we meet on the traditional territory of Treaty 7 First Nations, the Blackfoot, Tsuu T’ina, and Stoney First Nations. It is particularly important to acknowledge that connection given that we are talking today about our stewardship and custodial responsibilities for the land (and perhaps more specifically our failings).

There are three parts to the presentation: first, I will offer some remarks on the Court of Appeal’s decision in Redwater; second, some comments on a recent paper from the CD Howe Institute dealing with oil wells (see, Benjamin Dachis, Blake Shaffer and Vincent Thivierge, “All’s Well that Ends Well: Addressing End-of-Life Liabilities for Oil and Gas Wells”) and third, I will conclude with some more philosophical observations on the importance of the principle of intergenerational equity.

A Proposal for Effective Legal Protection for Endangered Species in Alberta: Introducing the Wildlife Species Protection and Recovery Act (Alberta)

By Shaun Fluker

On October 4, 2017

In Protection of Species

By: Shaun Fluker

PDF Version: A Proposal for Effective Legal Protection for Endangered Species in Alberta: Introducing the Wildlife Species Protection and Recovery Act (Alberta)

Case Commented On: Wildlife Species Protection and Recovery Act, SA 2017, c W-?

I have followed law and policy on endangered species protection for nearly a decade, focusing primarily on Canada’s federal Species at Risk Act, SC 2002 c 29 [SARA] and Alberta’s Wildlife Act, RSA 2000 c W-10 and the policies enacted thereunder. From time to time, I have glanced into the Ontario Endangered Species Act, 2007, SO 2007, c 6 [Ontario ESA] and observed a selection of decisions by the Ontario Environmental Review Tribunal – for example its decisions concerning the threatened blanding’s turtle. There are many who are working hard on the endangered species file, and some have enjoyed success in Federal Court obtaining rulings under SARA which are favourable towards protecting endangered species in Alberta and elsewhere. There is also an impressive amount of empirical research being conducted by scientists that sheds important light on the application of SARA. All of this is encouraging, but nevertheless I keep returning to an ABlawg post I wrote 7 years ago entitled Endangered species under Alberta’s Wildlife Act: Effective legal protection? In that piece I noted meaningful and effective legal protection for endangered species is largely a provincial matter in Canada and Alberta’s Wildlife Act does not provide effective legal protection for endangered species in this province. Nothing here has really changed since then. Enter the proposed Wildlife Species Protection and Recovery Act (Alberta).