On July 26, 2017, the Supreme Court of Canada rendered two much awaited decisions respecting the duty of the National Energy Board to consult and accommodate the aboriginal rights of two distinct Indigenous peoples for two distinct projects. In one, Clyde River (Hamlet) v. Petroleum Geoservices Inc., 2017 SCC 40, a tiny Inuit community from Nunavut convinced the Court that it had not been deeply and meaningfully consulted or reasonably accommodated and therefore, the National Energy Board’s approval of the petroleum-testing project was overturned and quashed. In the other, Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41, the Court held that the NEB had appropriately and sufficiently consulted and then accommodated the southwest Ontarian Indigenous nation and upheld the NEB’s approval of Enbridge’s project. Of note, the Court ordered that the Chippewas of the Thames pay Enbridge’s costs.
The headline on today’s CBC News website says “Indigenous leaders to boycott Monday’s meeting with premiers”. The article outlines how three Indigenous groups, namely, the Assembly of First Nations, the Metis National Council and Tapirit Kanatami, have decided to withdraw from the Council of the Federation meeting where the leaders of the provinces and territories will be meeting because they (the indigenous leaders) are not being recognized as full and equal participants. In my opinion, this article demonstrates the pressing need for Canada’s reconciliation process to recognize the governments of Indigenous peoples in a more formal and constitutional manner.
A recent decision of the Supreme Court of Canada regarding the Internet giant, Google, has delivered some very important lessons for future litigants in the field of cyber-speech. In Google Inc. v. Equustek Solutions Inc., 2017 SCC 34, the Court has delivered two two principal lessons:
1. If you are going to allege constitutional values or arguments, such as the importance of freedom of expression, ensure that you develop a full evidentiary record in support of your position;
2. The Court may well understand that there is a distinction between those who provide technology such as search engines and those who use it for the purposes of breaking the law.
Today marks the 150th anniversary of the date that Canada’s constitution came into effect. While many are saying that today is Canada’s 150t birthday, it is more accurate to say that it is the “150th birthday” of Canada’s written federal constitution. On July 1, 1867, the British North America Act, now named the Constitution Act, 1867, came into force and the fledgling federation known as Canada was created. But Canada and her constitution existed long before that, Even in the political and legal sense of the word, “Canada” was a concept or an entity in one form or another well before 1867. There was the united Province of Canada, Upper and Lower Canada, and, of course, the indigenous nations that spanned the territories of what is now Caanda for long before 1867. But today, I would like to commemorate the 150th anniversary of Canada’s BNA Act (let’s use the former name today for old time’s sake). I would also like to take notice of what transpired recently in British Columbia to underscore that Canada and her constitution are much, much older than 150 years.
Today, the new Minister of Democratic Institutions, Karina Gould, announced that the Liberal government has officially abandoning the objective of electoral reform. Thus, notwithstanding the promise that 2015 would be the “last federal election conducted under the first-past-the-post system” made during the 2015 electoral campaign, Canada will be faced with more elections which permit very small percentages of the voting public to put in place electoral majorities.
Today, in an 8:3 split ruling in R. v. Secretary of State for Exiting the European Union, 2017 UKSC 5, the United Kingdom Supreme Court held that Parliament must first authorize the exercise of Article 50’s triggering of the notice for exiting the European Union. While this blog focuses on Canadian constitutional law, what I found of interest was the discussion by the majority on the role of royal prerogative under the Constitution. Much of that discussion is applicable in the Canadian context.
In its first decision of the year, Ernst v. Alberta Energy Regulator, 2017 SCC 1, the Court released its reasons for dismissing the appeal of Jessica Ernst, an Albertan who was suing, amongst others, the Alberta Energy Regulator for breaching her Charter-protected freedom of expression and seeking Charter damages for that alleged breach. At issue before the Supreme Court was whether the immunity clause in s. 43 of the Alberta Energy Resources Conservation Act had the effect of barring her claim for Charter damages. In a strange 4:1:4 split, a majority of the Court held that it did.
As 2016 fades into the distance, I thought that it might be useful to look back and see what were some of the biggest constitutional developments in the Old Year. There were many but I think that a few stand out for me. A number do not involve constitutional judicial determinations but they are major Canadian constitutional developments nonetheless.
Only rarely will the Supreme Court rule on a Charter issue of importance from the bench. And that is what has happened today. The Court has overturned the British Columbia Court of Appeal’s ruling, and reinstated the determination of the trial judge. In a previous post, I had commented on the Court of Appeal decision.
The case will no doubt be appealed to the Supreme Court where yet another discussion about the refurbished freedom of association will ensue. The careful discussion by the Chief Justice and Justice Harris (as well as by the dissenting judgment of Justice Donald), dissecting the importance of good faith consultation and discussions with collective representatives from the equally important legislative capacity to impose one or more labour provisions for the sake of public policies, including fiscal prudence, will be of great assistance to that Court when considering just how far the Charter value for associational freedom should go when faced by a government making decisions about such things as educational policy (size of classes and curriculum as examples) and the public purse.
Well, I sure was wrong: the Supreme Court evidently had enough careful discussion and wanted direct action. I will report more on this when a copy of the oral ruling becomes available.
Yesterday, I did two things of note. First, I listened with interest to a webinar sponsored by our Constitutional and Human Rights Law Section of the Canadian Bar Association entitled “Access to Information at a Crossroads: Implications of the Long-gun Registry Case”. Second, I watched the televised returns of the American election.
Notwithstanding its title, the webinar was about rule of law and how access to information is inextricably interwoven with that concept. Its speakers were Suzanne Legault, Information Commissioner of Canada, and Dr. Vincent Kazmierski, Department of Law and Legal Studies of Carleton University. Using the Long-gun Registry case as an example, the speakers illustrated how the rule of law was involved and perhaps even imperilled from various perspectives. Dr. Kazmierski presented a thesis that postulated that the government of the day abused its powers to overwhelm legitimate rights to access to information and that, in so doing, disrespected essential elements of the principle of rule of law. (You can probably still listen to the excellent webinar by contacting the CBA Professional Development at firstname.lastname@example.org.)