ABLawg

By: Kirk N. Lambrecht Q.C.

PDF Version: The Alberta Utilities Commission Rules on Its Jurisdiction to Assess Crown Aboriginal Consultation

Decisions Commented On:

AUC Ruling on jurisdiction to determine Questions stated in Notices of Questions of Constitutional Law, October 7, 2016, and Sent to Parties Currently Registered in Proceeding 21030 Fort McMurray West 500-kV Transmission Project Proceeding 21030 Applications 21030-A001 to 21030-A015 (Appendix J); and

AUC Decision 21030-D02-2017, Alberta PowerLine General Partner Ltd. Fort McMurray West 500-Kilovolt Transmission Project, February 10, 2017

Introduction

This post offers critical analysis of the first Ruling of the Alberta Utilities Commission (AUC) to grapple with the issue of whether the AUC has jurisdiction to consider the adequacy of Crown Aboriginal consultation in the course of AUC proceedings (the Preliminary AUC Ruling). The Preliminary AUC Ruling was issued on October 7, 2016. It was followed on February 10, 2017, with a ruling on the merits of the Application (the AUC Ruling on the Merits). Both are discussed here. The Preliminary AUC Ruling is attached as Appendix J to the AUC Ruling on the Merits.

The AUC is a quasi-judicial regulatory tribunal with power to determine all questions of law and constitutional law which arise in the course of its regulatory functions. It exercises a final approval function in relation to the construction of the Fort McMurray West 500-kV transmission line Project. The Project is generally described here. Appendix A to the current Alberta policy on Aboriginal consultation suggests that large-scale regional transmission line projects have high impact and require extensive consultation (see The Government of Alberta’s Guidelines on Consultation with First Nations on Land and Natural Resource Management, July 28, 2014). A deep consultation requirement of this kind is consistent with the description of the Project as critical in nature. It is also consistent with the finding of the AUC, described below, that the Project would introduce industrial development which would adversely impact Aboriginal groups in way which is not easily mitigated.

The AUC has not been at the center of Alberta’s policy development in relation to Aboriginal consultation. That development has tended to focus on the Alberta Energy Regulator, rather than the AUC. In this proceeding, absent guidance from Provincial policy, the AUC concluded that it had no jurisdiction in relation to Crown consultation and accommodation.

Legal Innovation, Access to Justice, and the University of Calgary’s Family Law Incubator

By Kyle Gardiner

On March 6, 2017

In Access to Justice, Ethics and the Legal Profession, Family

By: Kyle Gardiner

PDF Version: Legal Innovation, Access to Justice, and the University of Calgary’s Family Law Incubator

Matter Commented on: The University of Calgary’s Family Law Incubator

Family law litigants are increasingly experiencing difficulty with access to justice that compounds the nature of their legal problems. This post reviews the potential of the University of Calgary’s Family Law Incubator to meet the growing demand for legal services from Canadian families, and considers some regulatory issues surrounding its operation. Before discussing the specific contours of family law practice that would benefit most from this kind of legal innovation, I must first describe the problem that the Incubator is properly aimed at addressing. That problem is the lack of access to justice for family law litigants, as illustrated by the increasing frequency of self-represented litigants in family law matters at all levels of court in Alberta.

Reasons, Respect and Reconciliation

By Nigel Bankes

On March 3, 2017

In Aboriginal, Administrative Law, Property

By: Nigel Bankes

PDF Version: Reasons, Respect and Reconciliation

Case Commented On: Kainaiwa/Blood Tribe v Alberta (Energy), 2017 ABQB 107 (CanLII)

Reconciliation between Canada’s settler society and First Nations and other indigenous communities certainly requires mutual respect but it should also require reasons in appropriate cases according to Justice Paul Jeffrey, at least where the Crown dismisses an application for the exercise of a statutory discretion which is closely linked to efforts to right an historic grievance. This is an important decision which should be required reading for every Minister of the Crown with a responsibility for the relationship between Her Majesty and Canada’s first peoples, and for all senior civil servants responsible for advising those Ministers.

An Update on The Right to Trial Within a Reasonable Time

By Drew Yewchuk

On March 2, 2017

In Constitutional, Criminal

By: Drew Yewchuk

PDF Version: An Update on The Right to Trial Within a Reasonable Time

Cases Commented On: R v Lam, 2016 ABQB 489 (CanLII); R v Regan, 2016 ABQB 561 (CanLII); R v Lavoie, 2017 ABQB 66 (CanLII)

It has been about 8 months since the Supreme Court released R v Jordan, 2016 SCC 27 (CanLII) and overhauled how courts deal with applications under section 11(b) of the Charter, the right “to be tried within a reasonable time”. I described the new framework in an earlier post. In short, Jordan established presumptive ceilings for unreasonable delay (minus defence delays and exceptional circumstances) between charges being laid and the end of trial. The ceilings are 18 months for charges going to trial in provincial court and 30 months for charges going to superior court, subject to a flexible transitional approach for cases that were already in the system when Jordan was decided. Since the release of Jordan there have been 11 reported decisions in Alberta posted to CanLII for applications for stays under the new framework. This post discusses three of those decisions that addressed interesting aspects of the new framework.

Supreme Court of Canada Protects Freedom of Expression of Individuals During Election Campaigns

By Linda McKay-Panos

On March 1, 2017

In Constitutional, Supreme Court of Canada

By: Linda McKay-Panos

PDF Version: Supreme Court of Canada Protects Freedom of Expression of Individuals During Election Campaigns

Case Commented On: BC Freedom of Information and Privacy Association v British Columbia (Attorney General) 2017 SCC 6 (CanLII)

In this case, which involves political speech that is at the very core of protected expression in Canada, the Supreme Court of Canada’s (SCC) ruling doesn’t turn on lofty values as much as it relies on statutory interpretation. It also provides some interesting discussion on the amount of evidence the government must provide in order to defend a violation of Charter section 2(b) under Charter section 1 in the election context.

The British Columbia Freedom of Information and Privacy Association (Association) challenged British Columbia’s Election Act, RSBC 1996, c 106, section 239, which requires registration with the Chief Electoral Officer by individuals or organizations who wish to “sponsor election advertising.” The SCC had previously upheld similar election registration legislation applying to third parties who spent at least $500 on election advertising (see, for example Harper v Canada (Attorney General), 2004 SCC 33, [2004] 1 SCR 827 (CanLII)(Harper)).