The Power of Perspectives

The Canadian Bar Association

CBA/ABC National

Climate litigation

Norway's turn to face a climate lawsuit

By CBA/ABC National October 19, 2016 19 October 2016

In June, Norway became the first developed country to ratify the Paris Agreement. Now environmental groups are suing its government for violating the climate treaty by forging ahead on oil exploration plans in the Barents Sea. The fight centers on Norway’s decision in May 2016 to award 10 new drilling licenses to oil companies. That decision, the plaintiffs say, goes against Article 112 of Norway’s Constitution, which reads:

Every person has the right to an environment that is conducive to health and to a natural environment whose productivity and diversity are maintained. Natural resources shall be managed on the basis of comprehensive long-term considerations which will safeguard this right for future generations as well.

The legal writ, published online, acknowledges that there is little precedent in the Norway for invalidating decisions under Article 112.  Nonetheless, here’s how the plaintiffs intend to argue their case:

The presumption principle, which calls for Norwegian law to be interpreted in accordance with international law, makes international law rules and fundamental principles of international law a part of our national legal system. This means that the Climate Convention, the Paris Agreement and international human rights and environmental principles are relevant sources of law when the limitations in Article 112 of the Constitution are to be determined.

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The Supreme Court

Malcolm Rowe nominated to the Supreme Court of Canada

By CBA/ABC National October 17, 2016 17 October 2016

In a move that maintains the regional representation on the top court, Justin Trudeau has nominated Justice Malcolm Rowe, a first for Newfoundland & Labrador, to the Supreme Court of Canada to replace retiring Justice Thomas Cromwell.

Justice Rowe comes from the Supreme Court of Newfoundland and Labrador (Court of Appeal). As a practitioner before that, he focused primarily on constitutional matters, foreign relations, and the arbitration of maritime boundaries.  He participated in the negotiations that led to the end of the ''turbot war'' and the agreement at the UN for a new convention on high seas fisheries

The appointment leaves the gender balance of the court unchanged at five men to four women. This is the first nomination by the federal government under its new Supreme Court open application process.  For further insight into Justice's Rowe's background and ideas, you can read his application questionnaire here:

 

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UK

Legal challenges to triggering Brexit

By CBA/ABC National October 13, 2016 13 October 2016

Does it take Parliament’s approval to trigger article 50 to notify Britain’s withdrawal from the Treaty on European Union (TEU)?  According to Theresa May’s government, lawmakers need not vote on the matter.  But opponents to Brexit have filed a legal challenge arguing that it should have a say in determining the future of Britain’s relationship with the EU. The UK High Court begins hearings this week:

From the Guardian:

The case could open deep rifts in the consensus over the UK’s unwritten constitution. If the judges concluded that MPs should decide, the majority might not be in favour of leaving.

The government maintains that the decision to depart has been taken by the referendum on 23 June and that its executive powers, under the royal prerogative, are sufficient for David Davis, the Brexit secretary, to give notice on behalf of the cabinet.

At stake is whether the government can skip introducing legislation on formally leaving the EU.  Though the British Prime Minister recently took a hard stance on Brexit, a parliamentary vote would allow lawmakers the opportunity to shape the country’s withdrawal from Europe and replace membership in the EU with something more palatable to Remainers.

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The profession

Don’t axe the LPP program yet

By CBA/ABC National October 11, 2016 11 October 2016

Ian Holloway writes that it’s too early to give up on Ontario’s Legal Practice Program, calling it among the most innovative program to train lawyers in the last 70 years, citing Ryerson’s Legal Innovation Zone as one of the main beneficiaries:

What, then, was the problem? Why the recommendation to can the LPP? If, as the PD & C Committee said, the LPP might actually be a better educational product than articling, then why on earth should we want to get rid of it?

The answer, in a word, is brand. PD & C’s report noted that the majority of LPP students “appear to consider the LPP alternative as a second choice or, indeed, no choice at all.” And the fact is they were right. It’s true that today’s law students, if given a choice, would article rather than enrol in the LPP. Of course, they would, for that is the system by which almost every lawyer in Canada was trained. So it’s what seems reflexively “normal” to us. Moreover, the legal employment market is, to a significant degree, built on the idea of a year-long job interview.

Given this, how could anyone imagine that a set of professional biases as deeply ingrained as these could be undone in three years? For Heaven’s sake, that is less time than it takes many lawsuits to get to trial!

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CBA influence

CBA: Privacy Act should should require government to protect personal information

By CBA/ABC National October 11, 2016 11 October 2016

The Privacy Act and the Access to Information Act are two pieces of federal legislation whose time has come – to be amended.

The federal Privacy Commissioner sent the government a letter outlining 16 changes that he believes need to be made to the Privacy Act. The CBA’s Privacy and Access Law Section agrees with most of those changes – in fact it has made many of the same recommendations over the past decade or more. And it doubles down by saying the Access to Information Act – which, like the Privacy Act, has not been substantially changed in 34 years – must be amended at the same time. “Both statues have been treated as a package since they were enacted and there are compelling reasons to continue doing so,” the Section says.

In its submission, presented to the Standing Committee on Access to Information, Privacy and Ethics in late September, the Section notes that the review must also address the “supporting infrastructure.”

(Hear more from Gary Dickson, who appeared before the Committee for the CBA.)

“More than 30 years of experience with access and privacy laws in Canada dictate that we cannot achieve a truly robust set of information rights if we focus exclusively on the enabling statute,” the submission says. “The access and privacy infrastructure includes the role and work of the Treasury Board, the role and work of ATIP Coordinators, the Open Government initiative and a host of administrative and procedural matters that directly and indirectly affect individuals asserting their information rights under either or both statutes.”

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