Indigenous Law, the Common Law, and Pipelines

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Matter Commented On: Coastal GasLink Pipeline Ltd. v Huson, 2019 BCSC 2264 (CanLII)

The extent to which Indigenous law is part of Canadian law along with the common law and civil law has become a major issue over the past two decades. Judges have been reluctantly wading into the matter, expressing somewhat inconsistent opinions. A recent example is in Coastal GasLink Pipeline Ltd. v Huson, 2019 BCSC 2264 (CanLII), involving an application by a pipeline company for an interlocutory injunction.

Members of the Wet’suwet’en Nation in British Columbia oppose construction through their territory of a natural gas pipeline that would terminate at Kitimat on the West Coast (Shiri Pasternak, “No, those who defend Wet’suwet’en territory are not criminals”, The Globe and Mail (12 February 2020)). They set up blockades on service roads to prevent the project from proceeding, leading to the injunction application, which Justice Marguerite Church of the BC Supreme Court granted.

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Stakeholders Expected Consultation on the Coal Policy Rescission: Was There a Legal Duty?

By: Aimee Huntington, Niall Fink & Peter Shyba

PDF Version: Stakeholders Expected Consultation on the Coal Policy Rescission: Was There a Legal Duty?

Cases Commented On: Blades et al v Alberta; TransAlta Generation Partnership v Regina, 2021 ABQB 37 (CanLII)

This is the sixth ABlawg post on Alberta Energy’s decision to rescind the 1976 Coal Development Policy for Alberta (the “Coal Policy”) in May of 2020 (the “Rescission”). Much has happened since May. At the time of writing, Energy Minister Sonya Savage has temporarily reinstated the Coal Policy with a commitment to “engage with Albertans in the first half of 2021 about the long-term approach to coal development in Alberta.” A Coal Policy Committee has been established, although details on public consultation remain unclear. It is also unclear whether the reinstatement renders moot the case of Blades et al v Alberta, an application for judicial review by two cattle ranchers initiated in July of 2020 (the “Blades Application”). Finally, it is still unclear how the reinstatement will affect approvals for coal exploration granted between rescission and reinstatement (on this point, see Nigel Bankes’ previous post). What is clear is that the government’s duty to consult stakeholders on changes to the Coal Policy will remain contentious in the foreseeable future.

The Blades Application highlighted multiple potential sources of an obligation to consult stakeholders, including provisions in the Alberta Land Stewardship Act, SA 2009, c A-26.8 (ALSA), the common law, and constitutional claims raised by Indigenous intervenors. This post considers one particular source for this obligation: the legitimate expectations of stakeholders in the South Saskatchewan Region. We do so in light of the recent treatment of the doctrine of legitimate expectations in TransAlta Generation Partnership v Regina, 2021 ABQB 37 (CanLII). Continue reading →

Lost in Precedent: Preserving “the Rule of Law” Through the Minimization of Identity

By: Emma Arnold-Fyfe

PDF Version: Lost in Precedent: Preserving “the Rule of Law” Through the Minimization of Identity

Case Commented On: R v Blackplume, 2021 ABCA 2 (CanLII)

Editor’s Note

During Equity, Diversity and Inclusion (EDI) Week at the University of Calgary in February 2021, the Faculty of Law’s EDI Committee held a research-a-thon where students undertook research on the law’s treatment of equity, diversity and inclusion issues. We are publishing a series of ABlawg posts that are the product of this initiative. This post is the second in the series.

Introduction

The case of R v Blackplume, 2021 ABCA 2 (CanLII) involved consideration of whether the accused should be declared a dangerous offender and consequently subjected to an indeterminate sentence. The accused, Lucy Blackplume, survived a severely traumatic childhood, often witnessing domestic violence and drug and alcohol abuse. She was “repeatedly sexually assaulted by various relatives and others from a young age” (at para 8). In addition to having cognitive functions at the level of a 9- or 10-year-old, Ms. Blackplume suffers from various personality disorders, psychopathy, and Fetal Alcohol Spectrum Disorder. It is not possible for her to appreciate the consequences of her actions, “exercise self-control, or filter impulses” (at para 7).

The criminal record of Ms. Blackplume began in 2008 with a conviction for sexual assault, and she has spent almost 12 years in institutions. While institutionalized, she has spent “notable periods of time in segregation, isolation or observation,” and over that time has been the target of threats because of, among other things, her gender expression (at para 11). Previous efforts to treat Blackplume’s conditions, including through a fifteen-month high-intensity sex-offender treatment program, have been unsuccessful (at para 12).

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Bill C-7 Amends Medical Assistance in Dying Laws in Canada

By: Fiona Balaton and Lorian Hardcastle

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Legislation Commented On: Bill C-7, An Act to amend the Criminal Code (medical assistance in dying), 2nd Sess, 43rd Parl, 2021 (assented to 17 March 2021)

On March 17, 2021, changes to Canada’s Criminal Code provisions on Medical Assistance in Dying (MAiD) under Bill C-7 received Royal Assent and are now in effect. These changes mark a significant milestone in Canada’s MAiD laws, which have been under constant debate and criticism since the Supreme Court of Canada held in Carter v Canada (Attorney General), 2015 SCC 5 (CanLII), that in certain circumstances, the criminal laws prohibiting assistance in dying limited the rights to life, liberty and security of the person under section 7 of the Canadian Charter of Rights and Freedoms in a manner that was not demonstrably justified under section 1 of the Charter. This blog post reviews the judicial and legislative history of MAiD in Canada, outlines the major new changes, and discusses some ongoing concerns with the MAiD laws. Continue reading →

Federal Government Declines Emergency Order for Southern Mountain Caribou

By: Shaun Fluker

PDF Version: Federal Government Declines Emergency Order for Southern Mountain Caribou

Matter Commented On: Government of Canada, Statement: Government of Canada’s approach to addressing the imminent threats to the recovery of Southern Mountain Caribou (18 March 2021)

The federal government recently added a Statement on Southern Mountain Caribou to the species at risk public registry announcing that the Governor in Council has declined to issue an emergency protection order under section 80 of the Species at Risk Act, SC 2002, c 29. This statement was a response to the recommendation for the order made by the federal Minister of the Environment following her finding in March 2018 that the southern mountain caribou face an imminent threat to their recovery. I wasn’t planning to comment on this announcement because it is fully consistent with the federal strategy of deference to the provinces on the woodland caribou file, a strategy which I debunked recently in Canada and Alberta Agree to More Pie-In-The-Sky on Woodland Caribou. Accordingly, this announcement was not surprising, or particularly newsworthy in Alberta. However, I changed my tune last Friday afternoon while perusing my inbox looking for a weekly fix of Alberta government spin, and Jason Nixon, the Alberta Minister of Environment and Parks, did not disappoint with his comments in Federal recognition of Alberta’s caribou recovery efforts: Minister Nixon, expressing that the federal Statement is a recognition of Alberta’s strong caribou recovery efforts to date.

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