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The Application of the Charter to a Protest on the Siksika Nation

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On November 22, 2016

In Aboriginal, Constitutional

By: Linda McKay-Panos

PDF Version: The Application of the Charter to a Protest on the Siksika Nation

Case Commented On: Siksika Nation v Crowchief, 2016 ABQB 596 (CanLII)

Recently there have been several cases involving the issue of whether the Charter of Rights and Freedoms (Charter) applies in a context where there is some government or public nexus but the action may be characterized as one involving private parties. See for example, my previous post on the application of the Charter to Universities.

This case presents yet another situation where the court is asked to address whether the Charter applies. Most of the decision involves whether the Court should grant an interlocutory injunction to the Siksika Nation. The Siksika Nation, represented by its Chief and Council (Applicant), filed a Statement of Claim seeking an injunction and damages against Ben Crowchief and “Unknown Defendants” (Respondents). A number of band members, including Crowchief, blockaded the reconstruction of Siksika Nation homes being built to address damages from flooding of the Bow River in 2013. The blockade was intended to protest the lack of accountability and transparency by the council and chief (at para 18).

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Avoiding the “Tyranny of Small Decisions”: A Canadian Environmental Assessment Regime for the 21st Century

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On November 21, 2016

In Climate Change, Environmental

By: Martin Olszynski

PDF Version: Avoiding the “Tyranny of Small Decisions”: A Canadian Environmental Assessment Regime for the 21st Century

Matter Commented On: Expert Panel Review of Environmental Assessment Processes

The Expert Panel charged with reviewing Canada’s environmental assessment regime lands in Calgary this week. Professor Emeritus Arlene Kwasniak and I are presenting to the Panel later today, while Professor Shaun Fluker and students from University of Calgary’s Public Interest Law Clinic will be presenting on Wednesday. In this post, I step back a bit from the nuts and bolts of environmental assessment and consider the nature of modern environmental law – and environmental assessment law in particular – as primarily a decision-making process and whether this is sufficient going forward. My full submission – indeed all submissions to the Panel – can be found on its website.

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Comments on the Proposed Species at Risk Act Permitting Policy

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On November 18, 2016

In Environmental, Protection of Spaces, Protection of Species

By: Shaun Fluker and Drew Yewchuk

PDF Version: Comments on the Proposed Species at Risk Act Permitting Policy

Proposed Policy Commented On: Government of Canada. Species at Risk Act Permitting Policy [Proposed]

Environment and Climate Change Canada has released a series of proposed new guidelines for interpreting various portions of the Species at Risk Act, SC 2002, c 29 (SARA). One of these new proposals is policy guidance on how section 73 of SARA will be interpreted and applied – the Species at Risk Act Permitting Policy. Section 73 is the provision in SARA which allows for the authorization of harm to listed endangered or threatened species or their critical habitat. In the absence of a section 73 permit, such harm constitutes an offence under SARA. The Public Interest Law Clinic was retained by the Alberta Wilderness Association and the Timberwolf Wilderness Society to assist them in formulating a submission to Environment and Climate Change Canada on this proposed new policy guidance for section 73, and this post reproduces the essence of that submission below.

This submission begins by setting out principles which should guide the interpretation of the Species at Risk Act, SC 2002, c 29 [SARA]. This submission then provides the relevant portions of section 73 along with judicial consideration thereof. This submission then proceeds by providing our comments on the proposed policy guidance.

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The Enhanced Protection for Farm and Ranch Workers Act One Year Later

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On November 17, 2016

In Labour/Employment

By: Jennifer Koshan

PDF Version: The Enhanced Protection for Farm and Ranch Workers Act One Year Later

Legislation Commented on: Bill 6, Enhanced Protection for Farm and Ranch Workers Act, 29th Legislature, 1st Session (2015-2016)

It has been exactly one year since the government introduced Bill 6, the Enhanced Protection for Farm and Ranch Workers Act, in the Alberta Legislature. The Bill made amendments removing the exclusion of farm and ranch workers from Alberta’s labour and employment legislation, and eventually passed in December 2015 after heated debate (for an earlier post on Bill 6 see here). The Bill went through some amendments during legislative debates, notably exempting family members and unpaid farm and ranch workers from inclusion in the Occupational Health and Safety Act, RSA 2000, c O-2 and Workers’ Compensation Act, RSA 2000, c W-15. The government also constituted broad-based working groups to make recommendations on implementing Bill 6, and the inclusion of farm and ranch workers in employment standards, labour relations and occupational health and safety legislation was suspended pending these consultations. In spite of these concessions, the Wildrose party – which vociferously argued against the Bill – reiterated its intent to “kill Bill 6” at its convention in Red Deer in late October.

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Selim v Alberta: Reasonableness is Not Always Fairness

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On November 15, 2016

In Administrative Law, Privacy

By: Geea Atanase

PDF Version: Selim v Alberta: Reasonableness is Not Always Fairness

Case Commented On: Selim v Alberta (Information and Privacy Commissioner), 2016 ABQB 562 (CanLII)

Summary

This case involves a judicial review, on a standard of reasonableness, of a refusal by the Information and Privacy Commissioner to conduct an inquiry stemming from a decision by the Calgary Police Service (CPS) to close an access to information request file. The decision of Alberta Court of Queen’s Bench Justice J.B. Veit hinges on the legislative intent behind the Freedom of Information and Protection of Privacy Act (FOIPPA), RSA 2000 c F-25, and the authority of the Commissioner to refuse to conduct an inquiry, as well as on the reliability of the evidence on which the Commissioner relied in making the decision. However, the decision in this case has wider implications that fall outside of the scope of judicial review, and points to a striking lack of accountability on the part of CPS when it comes to the conduct of one of its own. Rather than address the magnitude of the injustice to which the appellant was subjected in this case, Justice Veit focuses almost exclusively on applying a standard of reasonableness in reviewing the decision of the Commissioner.

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