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The Rule of Law in Canada 150 Years After Confederation: Re-Imagining the Rule of Law and Recognizing Indigenous Peoples as Founders of Canada

On March 29, 2017

By: Kathleen Mahoney

PDF Version: The Rule of Law in Canada 150 Years After Confederation: Re-Imagining the Rule of Law and Recognizing Indigenous Peoples as Founders of Canada

The 150^th anniversary of Confederation is upon us. The starting point for nation-wide celebrations will be Canada’s origin story, namely, that we are a nation founded by 2 peoples, the British and the French. Their concept of a nation, British North America Act, is held up as a monumental achievement forming the constitutional bedrock of our Canadian identity as well as the foundation for the rule of law and the free and democratic nation we believe ourselves to be.

But here’s the problem: our origin story is incomplete and misleading. In 1996, the Royal Commission on Aboriginal Peoples wrote, “A country cannot be built on a living lie.” (Vol II, at 1) My argument is that Canada’s origin story must be corrected through legislation that will recognize Canada as a country of three founding peoples, the British, the French, and the Indigenous. The rule of law is at the very root of Confederation but its application to indigenous peoples for the past 150 years has been dysfunctional, mired in racism and inequality. It must be re-imagined.

Tolling Methodologies On Federally Regulated Pipelines In Northeast British Columbia

By Admin

On March 27, 2017

In Administrative Law, Energy, Oil & Gas

By: Nigel Bankes

PDF Version: Tolling Methodologies On Federally Regulated Pipelines In Northeast British Columbia

Matters Commented On: (1) National Energy Board (NEB), Letter decision on the Application of Westcoast Energy Inc for Review of the Decision of Members Ballem and Lytle, in Report GH-003-2015 (Towerbirch Report), Respecting the Toll Treatment of the Tower Lake Section (TLS), and (2) NEB letter to NOVA Gas Transmission Ltd (NGTL), Westcoast Energy Inc (Westcoast) and Alliance Pipeline Ltd (Alliance), re Examination to Determine Whether to Undertake an Inquiry of the Tolling Methodologies, Tariff Provisions and Competition in Northeast BC, 16 March 2017 (the Tolling Methodology Process Letter).

Northeast British Columbia is an area of expanding natural gas production due to a number of significant shale gas plays in the area including Horn River, Liard, and Montney.

Historically this area of the province was first served for conventional sour gas production by Westcoast Transmission. Westcoast offered producers a bundled service including sour gas processing as well as mainline transmission down to the lower mainland and on to serve markets in the Pacific Northwest. This entire system has long been federally regulated by the National Energy Board (NEB), a practice that was legally and constitutionally confirmed by the majority judgement of the Supreme Court of Canada in Westcoast Energy Inc. v. Canada (National Energy Board), [1998] 1 SCR 322, 1998 CanLII 813 (SCC). More recently the area has also come to be served by Alliance’s “bullet pipeline” and by extension of the NGTL system from Alberta into BC. The Alliance Pipeline is a point-to-point pipeline which transports liquids rich gas from this area and northwest Alberta to the Chicago market hub. Alliance came on stream in 2000. Its construction was backed by 15 year contracts. Few shippers elected to renew and “accordingly, Alliance developed its New Services Offering (NSO), which incorporated new services and tolling methodologies on the pipeline. Alliance applied for Board approval of the NSO in 2014.” The Board’s Reasons for Decision on that matter (RH-002-2014) are available here. The NGTL system is the old NOVA intraprovincial transmission system which began life in the 1950s under the name Alberta Gas Trunk Line (AGTL) and subsequently morphed into NOVA before merging with TransCanada PipeLines (TCPL) in 1998. Historically, AGTL and NOVA were provincially regulated until brought under federal regulation in 2009: see ABlawg post here. The AGTL\NOVA business model was quite different from that of Westcoast. NOVA focused its attention on the transmission system and left the producers to assume responsibility for owning and constructing in-field processing facilities to produce pipeline quality gas for delivery to the AGTL\NOVA system.

The result of these developments is that the natural gas transmission scene in northeast BC no longer looks like a natural monopoly, and has not for some long time. Instead, there is competition for natural gas production and competition to fill transmission systems with gas. No pipeline system feels this more acutely than the NGTL system and its sister, the TCPL mainline, which needs additional volumes of gas to make up for the declines in conventional gas production in the western Canadian Sedimentary Basin (WCSB).

Judgmental Judges

By Alice Woolley

On March 23, 2017

In Ethics and the Legal Profession

By: Alice Woolley

PDF Version: Judgmental Judges

Case Commented On: Abdulaali v Salih, 2017 ONSC 1609 (CanLII)

Introduction

Judges exercise considerable power, and discharge a crucial public function. They identify, interpret and even create the rules that govern us. They decide what happened. And they determine the legal consequences of what happened.

But judges also exercise a defined and limited public function, and in doing so they are human, not superhuman. Judges determine and apply the law, but they do not decide questions of morality outside the law; they do not decide what it means to be a good person except as the law defines goodness. They do not – except in the specific ways the law asks them to – decide matters of public policy. Nor do they have any particular qualification to do those things. Judges know what happened only through the evidence in their courtroom. Even though some judges may be men or women of moral wisdom, there is no particular correlation between having that wisdom and holding judicial office. Judges have no democratic mandate to decide questions of public policy.

Yet obviously the lines between these things can be hard to draw. The law deals with – and decides – questions of morality. It deals with – and decides – questions of public policy. Deciding a case can require a judge to make a moral or policy determination. And even when it doesn’t, sometimes only judges can see problems of policy or morality clearly, and may be uniquely positioned to raise awareness of problems that society ought to address.

So at what point, if any, does a judge’s pronouncements on matters of morality or policy exceed his office? Does a judge have an ethical obligation to try and restrain his decision to the legal matter before him, addressing questions of morality or policy only as necessary for adjudicating the case? And can a judge commit misconduct if he exceeds his mandate in that respect?

These questions were raised for me by a March 13, 2017 written endorsement of a consent order by Justice Alex Pazaratz, in which he castigated the parties and Legal Aid Ontario for “squandering scarce judicial and community resources” (at para 26).

Order In the Skyways: A Comment on the Regulation of Drones

By Lisa Silver

On March 22, 2017

In Criminal

By: Lisa Silver

PDF Version: Order In the Skyways: A Comment on the Regulation of Drones

Case Commented On: R v Shah, 2017 ABQB 144 (CanLII)

The increasing popularity of drones is attracting the attention of the regulatory process as municipalities, such as Calgary, attempt to control the use of drones in public areas through the bylaw process (see section 24(c) of the City of Calgary Parks and Pathways Bylaw 20M2003). In fact, the issue has become so pressing that the federal government recently announced immediate action through the Interim Order Respecting the Use of Model Aircraft by amending the Aeronautics Act RSC 1985, c. A-2 to more specifically address the “significant risk” the operation of drones have “to aviation safety or the safety of the public.” However, regulation in this nascent area of recreation has not been without difficulties. The extent to which the regulatory regime can effectively and fairly maintain order in the skyways may appear a simple task but as with any statutory process, “the proof is in the pudding” or as in the recent summary conviction appeal against conviction in R v Shah, 2017 ABQB 144 the “proof,” involving the appropriate application of the standard of proof, was lacking.

The Appellant in this case, ably represented both at trial and on appeal by our very own Student Legal Assistance, was flying a recreational remote controlled drone during the evening hours of January 16, 2016 when he was charged under section 602.45 of the Canadian Aviation Regulations SOR 96/433 enacted under the Aeronautics Act. The section states that: “No person shall fly a model aircraft or a kite or launch a model rocket or a rocket of a type used in a fireworks display into cloud or in a manner that is or is likely to be hazardous to aviation safety.”

Alberta Law Reform Institute Recommends Reform to Trustee Act with Clear, Simple, and Comprehensible Legislation

By Robyn Mitchell

On March 20, 2017

In Uncategorized

By: Robyn Mitchell

PDF Version: Alberta Law Reform Institute Recommends Reform to Trustee Act with Clear, Simple, and Comprehensible Legislation

Matter Commented On: Alberta Law Reform Institute, Final Report No. 109, A New Trustee Act for Alberta

The Alberta Law Reform Institute has just released Final Report No. 109, A New Trustee Act for Alberta. The Report sets out ALRI’s final recommendations for new trustee legislation in Alberta. Using the Uniform Law Conference of Canada’s Uniform Trustee Act 2012 as a starting point, ALRI then tailored its recommendations to reflect Alberta’s trusts law and practice.

The current Trustee Act is out of date. While there have been some changes over the years, some provisions of the Act remain unchanged since trustee legislation was first enacted in 1893 in what is now Alberta. There has never been a complete review of the entire Trustee Act.