ABLawg - - Page 64

Matter Commented On: Terms of Reference for the Coal Policy Consultation Committee, dated March 29, 2021

This is the sixth instalment in the ABlawg series on coal law. See Part One: the Coal Policy and Its Legal Status, the special edition: What Are the Implications of Reinstating the 1976 Coal Development Policy?, Part Two: The Rules for Acquiring Coal Rights and the Royalty Regime, Part Three: Was the Public Rationale for Rescinding the Coal Policy Ever Convincing?, Part Four: The Regulation of Coal Exploration, and Part Five: What is the Role of the Federal Government in Relation to Alberta Coal Mines?

These previous posts have traced recent developments in coal law and policy in Alberta, including the revocation of the Coal Development Policy of 1976 effective June 1, 2020, the limited reinstatement of that Policy on February 8, 2021 following broad opposition from civil society, and the promise by the Minister of Energy, Sonya Savage to engage in “widespread consultations on a new coal policy.”

Following that last announcement (which was also accompanied by a Ministerial Directive to the Alberta Energy Regulator, available as an appendix to Department of Energy, Information Letter IL 2021-07) and a second (February 23, 2021) news release promising “a comprehensive consultation plan”, the Minister went on most recently to establish (March 29, 2021, Engaging with Albertans on a modern coal policy) the Coal Policy Consultation Committee (CPCC). The Committee is to be chaired by Ron Wallace, a former member of the National Energy Board. The four other members are Fred Bradley, a former conservative MLA and former Alberta minister of the environment, Natalie Charlton, the executive director of the Hinton and District Chamber of Commerce, Bill Trafford, the president of the Livingstone Landowners’ Group, and Eric North Peigan, who is a small business owner and a member of Piikani Nation.

Proposed Amendments to the Public Health Act Confirm (Retroactively?) the Validity of the Chief Medical Officer of Health’s COVID-19 Legislation

By Shaun Fluker

On April 16, 2021

In COVID-19, Health Law

By: Shaun Fluker and Lorian Hardcastle

PDF Version: Proposed Amendments to the Public Health Act Confirm (Retroactively?) the Validity of the Chief Medical Officer of Health’s COVID-19 Legislation

Bill Commented On: Bill 66, Public Health Amendment Act, 2021, 2nd Sess, 30th Leg, Alberta, 2021 (first reading 12 April 2021)

On April 12, the Minister of Health tabled Bill 66, the Public Health Amendment Act, 2021, in the Legislative Assembly for first reading. This Bill proposes amendments to the Public Health Act, RSA 2000, c P-37, on matters such as the qualifications for public health officials, developing plans to address chronic disease and injury prevention, the privacy of certain public health records, and decriminalizing the inhalation of intoxicants. As we discuss in this post, the Bill also proposes to address governance issues associated with the exercise of legislative powers by medical officers of health and Ministers under the Act, issues that have previously been identified on ABlawg (see e.g. here, here, and here). These amendments are a step in the right direction, but far more needs to be done to preserve the rule of law during exceptional times where executive rule by fiat has been uncomfortably normalized within a democracy.

Indigenous Law, the Common Law, and Pipelines

By Kent McNeil

On April 8, 2021

In Aboriginal, Energy, Environmental

By: Kent McNeil

PDF Version: Indigenous Law, the Common Law, and Pipelines

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.

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

By Aimee Huntington

On April 7, 2021

In Administrative Law, Energy, Environmental

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).

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

By Emma Arnold-Fyfe

On April 6, 2021

In Criminal, Equity, Diversity, and Inclusion, Sentencing

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).

Coal Law and Policy Part Six: Coal Consultation Terms of Reference

Proposed Amendments to the Public Health Act Confirm (Retroactively?) the Validity of the Chief Medical Officer of Health’s COVID-19 Legislation

Indigenous Law, the Common Law, and Pipelines

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

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