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Bill 1: Criminalizing Protests and Encroaching on Aboriginal and Treaty Rights

By: Alexandra Heine and Kelly Twa

PDF Version: Bill 1: Criminalizing Protests and Encroaching on Aboriginal and Treaty Rights

Bill Commented On: Bill 1, the Critical Infrastructure Defence Act, 2nd Sess, 30th Leg, Alberta, 2020

This is the second part of a two-part series on Bill 1, the Critical Infrastructure Defence Act, 2nd Sess, 30th Leg, Alberta, 2020. Professors Jennifer Koshan, Lisa Silver, and Jonnette Watson Hamilton authored the first post, Protests Matter: A Charter Critique of Alberta’s Bill 1, which explores Bill 1’s lack of compliance with sections 2(b), 2(c), 2(d), 7, and 15 of the Canadian Charter of Rights and Freedoms. The first post also offers an overview of Bill 1 and importantly, it offers examples of the type of activities that appear to contravene Bill 1:

  • A vigil for Regis Korchinski-Paquet is held in Olympic Plaza—a square in downtown Calgary—in conjunction with Black Lives Matters protests across the country. The vigil spills onto Stephen Avenue Mall, where bicycles are permitted.
  • Indigenous persons and their allies hold a protest against construction of a pipeline on-site in northern Alberta.
  • Workers rally in a parking lot outside a meat packing plant to bring attention to the gendered and racialized impact of the Alberta government’s response to COVID-19.
  • Persons with disabilities and their allies protest cuts to AISH on the sidewalk adjacent to the High Level Bridge in Edmonton.
  • LGBTQ2S+ groups hold a sit-in under a flagpole on the grounds of the Alberta Legislature after the Pride flag is taken down only one day into Pride month.

As noted in the first post, these peaceful protesters could be subject to immediate arrest by the police, increasing the potential for further conflict between law enforcement and the public.

This second post examines how Bill 1 treads on the federal government’s criminal law powers under section 91(27) of The Constitution Act, 1867 and provides commentary on how the Bill threatens Aboriginal rights under section 35 of The Constitution Act, 1982.

Oil Sands Approvals and Bill 22, the Red Tape Reduction Implementation Act, 2020

By: Nigel Bankes

PDF Version: Oil Sands Approvals and Bill 22, the Red Tape Reduction Implementation Act, 2020

Bill Commented On: Bill 22, Red Tape Reduction Implementation Act, 2020

This post deals with one aspect of this large omnibus bill, namely the proposed amendment to the Oil Sands Conservation Act, RSA 2000, c O-7 (OSCA). This amendment will remove the need to seek Cabinet authorization for the approval of new oil sands projects and related processing facilities. More specifically, this post assesses whether the amendment will have any implications for the Crown’s duty to consult First Nations and Métis communities, and to observe the honour of the Crown in its dealings with those communities. The main conclusion is that these proposed changes will not simplify or shorten the steps that the Crown needs to take to discharge its constitutional responsibilities. None of these responsibilities constitute “red tape.” Any shortening in project review timelines as a result of removing the opportunity for Cabinet review will be no more than a few months (a drop in the bucket in the time frame for characterizing and developing a new oil sands prospect), a steep price to pay for the loss of an opportunity to hit pause, or to impose additional terms and conditions to protect the public interest.

Protests Matter: A Charter Critique of Alberta’s Bill 1

By: Jennifer Koshan, Lisa Silver, and Jonnette Watson Hamilton

 PDF Version: Protests Matter: A Charter Critique of Alberta’s Bill 1

Bill Commented On: Bill 1, the Critical Infrastructure Defence Act, 2nd Sess, 30th Leg, Alberta, 2020

The last few weeks have emphasized the crucial role of public protests. The Alberta Energy Minister’s statement about the COVID-19 pandemic being a great time to build pipelines without protestors went viral (and not in a good way), and demonstrations in the United States and Canada are stark reminders that direct and systemic racism and colonialism are present in Canadian society today. In the midst of these events, the Alberta government passed Bill 1, the Critical Infrastructure Defence Act. Bill 1 was initially tabled in February 2020 during the blockades of rail lines in support of Wet’suwet’en hereditary chiefs. Only five sections long, it contains a number of prohibitions and offences relating to activities involving “essential infrastructure.” This post reviews Bill 1’s compliance with the Canadian Charter of Rights and Freedoms, concluding that it is an unjustifiable violation of at least five different fundamental rights and freedoms. A second post will examine how Bill 1 also treads on the federal government’s criminal law powers under The Constitution Act, 1867 and Aboriginal rights under section 35 of The Constitution Act, 1982.

The Implementing Regulation for Bill 12: The Liabilities Management Statutes Amendments Act, 2020

By: Nigel Bankes

PDF Version: The Implementing Regulation for Bill 12: The Liabilities Management Statutes Amendments Act, 2020

Matter Commented On: Orphan Fund Delegated Administration Amendment Regulation, OC 174/2020

Bill 12, the Liabilities Management Statutes Amendments Act, 2020, amongst other things, authorized the delegation of additional responsibilities to the Orphan Well Association (OWA). I provided commentary on Bill 12 in a previous post here. The entry into force of Bill 12 is set for June 15, 2020, and this amendment to the Orphan Fund Delegated Administration Regulation, Alta Reg 45/2001 (Delegation Regulation), effective the same day, implements that incremental delegation and clarifies some additional issues.

This post draws attention to four elements of the amendment: (1) the definitions of “holder of the mineral rights” and of “person who has the right to win, work and recover a mineral”; (2) the limitation of liability provisions of the Delegation Regulation; (3) the applicability of the audit and inspection provisions of the Government Organization Act, RSA 2000 c G-10 (GOA); and (4) the enhanced authority of the OWA to enter into and expend funds pursuant to “agreements” with other parties.

Lawyer Ethics in the Virtual Courtroom

By: Gideon Christian

PDF Version: Lawyer Ethics in the Virtual Courtroom

The COVID-19 pandemic has radically altered the way we live, work, and play. As will be examined below, it has altered the way lawyers conduct litigation. By mid-March 2020, the justice system in Canada (and in most other jurisdictions around the world) was scrambling to change its default ways of doing business – from the service of court documents to hearing of matters before the courts. Within a very short timeline, the courts and the legal profession quickly became open to doing things in a way they have long resisted.

Practice directions emerged overnight permitting parties to electronically file and serve documents. Virtual hearing became the default mode of court hearings in many jurisdictions during the early stage of the pandemic. On March 19, 2020, the Lord Chief Justice of England and Wales issued a directive that, “[t]he default position now in all jurisdictions must be that hearings should be conducted with one, more than one or all participants attending remotely.”

Soon, in-person hearings gave way to e-person hearings using innovative videoconferencing technologies like Zoom, WebEx, Teams, Skype, GoToMeeting, BlueJeans, CourtCall, etc. For many in the legal profession who were previously familiar with these technologies, the transition was very smooth. For the Luddites who were forced to embrace the change, the transition turned out to be (to their amazement), not as difficult as they had previously thought. They have discovered that legal technology is no rocket science after all.

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