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The IAA Reference: A Missed Opportunity for Guidance on Important Issues Pertaining to Indigenous Peoples

On October 25, 2023

In Aboriginal, Indigenous, International Law, Supreme Court of Canada

By: Robert Hamilton

Case Commented on: Reference re Impact Assessment Act, 2023 SCC 23 (CanLII)

PDF Version: The IAA Reference: A Missed Opportunity for Guidance on Important Issues Pertaining to Indigenous Peoples

In the Reference re Impact Assessment Act, 2023 SCC 23 (CanLII) (IAA Ref), the Supreme Court of Canada considered the constitutionality of the federal environmental impact assessment regime. For analysis of what precise aspects of the Impact Assessment Act, SC 2019, c 28, s 1 (IAA) the majority found unconstitutional (and which it held were unproblematic), see the post by my colleagues Martin Olszynski, Nigel Bankes, and David V. Wright here.

John v Edmonton Police Service: Guilty of Being a Black Man

By Amy Matychuk

On October 19, 2023

In Human Rights, Police

By: Amy Matychuk

Case commented on: John v Edmonton Police Service, 2023 AHRC 87 (CanLII)

PDF Version: John v Edmonton Police Service: Guilty of Being a Black Man

This is a comment on a decision on a complaint made under s 4 of the Alberta Human Rights Act, RSA 2000, c A-25.5, that the Edmonton Police Service discriminated against the complainants on the basis of race, colour, ancestry, or place of origin.

The Black complainants, Yousef John and Caesar Judianga, were roommates who chased a White woman they witnessed smash a car window. Their other roommate, also a Black man, restrained the woman while one of the complainants called the police. When the police officer arrived at the chaotic scene, he believed the complainants were possibly engaged in criminal behavior and used force to gain control of the situation. The police officer directed most of the force he used against the Black complainants rather than the White woman. Tribunal Member Erika Ringseis of the Alberta Human Rights Commission (AHRC) found that the complaint was made out against the Edmonton Police Service.

British Columbia Free Entry Mining System Triggers Duty to Consult and Must Change: Gitxaala v British Columbia (Chief Gold Commissioner)

By David V Wright

On October 18, 2023

In Aboriginal, Indigenous, Provincial Court

By: David V. Wright

Case Commented On: Gitxaala v British Columbia (Chief Gold Commissioner), 2023 BCSC 1680 (CanLII)

PDF Version: British Columbia Free Entry Mining System Triggers Duty to Consult and Must Change: Gitxaala v British Columbia (Chief Gold Commissioner)

The Supreme Court of British Columbia (BCSC) recently ruled that the existing mineral tenure system in the province triggers provincial Crown obligations to consult First Nations. While the duty to consult is now a relatively mature area of law in Canada that is “replete with indicia for what constitutes meaningful consultation” (Coldwater First Nation v Canada (Attorney General), 2020 FCA 34 (CanLII) at para 41), some areas of uncertainty remain. This case dealt with one such long-standing question: does British Columbia’s “free entry” mineral tenure regime trigger the Crown’s duty to consult? This post discusses the findings of the court and briefly comments on implications of the decision for BC and the rest of Canada. My colleague Nigel Bankes recently wrote a post on the aspect of this decision pertaining to the United Nations Declaration on the Rights of Indigenous Peoples (here), and my other colleague, Dr. Elizabeth Steyn, will soon publish a post on the sacred sites dimension of the decision.

The Next Chapter in the Role of Alberta’s Chief Medical Officer of Health

By Lorian Hardcastle

On October 17, 2023

In COVID-19, Statutory Interpretation

By: Lorian Hardcastle

Legislation and Cases Commented on: Public Health Act, RSA 2000, c P-37; CM v Alberta, 2022 ABKB 716 (CanLII); Ingram v Alberta (Chief Medical Officer of Health), 2023 ABKB 453 (CanLII)

PDF Version: The Next Chapter in the Role of Alberta’s Chief Medical Officer of Health

At the start of the COVID-19 pandemic, provincial public health officials were thrust into the spotlight as trusted figures who would guide the public through the unknowns of a novel virus. However, as the pandemic raged on and tensions emerged regarding the appropriate restrictiveness of public health measures, cracks formed in the relationships between the public, politicians, and public health officials. At times, Alberta’s then Premier Jason Kenney and then Minister of Health Tyler Shandro seemed content to take credit for effectively balancing “lives and livelihoods”. However, when things were not going well, they would credit then Chief Medical Officer of Health (CMOH) Deena Hinshaw. For example, when the government’s disastrous “Open for Summer” plan contributed to severe hospital capacity problems and prompted discussions of sending people out of province for care and rationing essential health services, Shandro was quick to note that the plan “came from Dr. Hinshaw” and that he was “deferential to [her] independence.”

Wait, What!? What the Supreme Court Actually Said in the IAA Reference

By Martin Olszynski

On October 16, 2023

In Constitutional, Environmental, Supreme Court of Canada

By: Martin Olszynski, Nigel Bankes, and David Wright

Case Commented On: Reference re Impact Assessment Act, 2023 SCC 23 (CanLII)

PDF Version: Wait, What!? What the Supreme Court Actually Said in the IAA Reference

This past Friday, October 13, the Supreme Court of Canada released its opinion in Reference re Impact Assessment Act, 2023 SCC 23 (CanLII) (IAA Reference). Writing for a 5:2 majority (Justices Mahmud Jamal and Andromache Karakatsanis dissenting), Chief Justice Richard Wagner held that what is known as the “designated project” (or “major project” in colloquial terms) review scheme of the Impact Assessment Act, SC 2019, c 28, s 1 (“IAA”) is unconstitutional. This post sets out what is, and is not, constitutional about the IAA regime. We begin by first clarifying the Act’s current legal status. We then set out the principles – post-IAA Reference – of federal and provincial jurisdiction over the environment generally, and then with respect to impact assessment specifically. This is followed by a discussion of the IAA’s specific constitutional defects as found by the majority, the implications of those defects, and their potential remedies. We conclude with some observations regarding the IAA Reference’s relevance to future constitutional battles over federal clean electricity regulations and an oil and gas greenhouse gas emissions cap.