The Power of Perspectives

The Canadian Bar Association
Perspectives from abroad

Ethical mining: A South African perspective

By Mariam Awan May 24, 2017 24 May 2017

Ethical mining: A South African perspective

 

The mining industry in South Africa has seen a push for economic liberalization aimed at attracting foreign investment. However, foreign investment and economic growth do not automatically lead to a higher standard of living and can even contribute to gross human rights and environmental violations. As there no are binding minimum standards for mining operations within the international community, foreign governments can play only a limited role in encouraging ethical behaviour of mining companies abroad. What’s more, victims of environmental damage and human rights violations have little success gaining access to foreign courts.

It’s up to South Africa’s government to regulate the licensing and monitoring of the industry by providing a predictable regulatory framework that is consistently enforced.

South Africa is a leading source of platinum, chromium, manganese and other minerals. Under South African common law, a landowner owned all the minerals underneath the soil. However, under the Apartheid regime, non-whites were precluded from acquiring roughly 80 percent of the land in South Africa, which explains the enduring poverty among black South Africans today.

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Legal innovation

Connecting hearts and minds in your law firm's data strategy

By Yves Faguy May 23, 2017 23 May 2017

Connecting hearts and minds in your law firm's data strategy

 

Scott Mozarsky of Bloomberg BNA shares his views on big data and analytics disrupting the legal sector in a recent Forbes interview.  Here he discusses how data helps guide GCs in retaining external firms:

Selecting and retaining outside counsel used to be a lot more about art than science. Pre-existing relationships and referrals often drove decisions regarding representation by outside counsel. Data and technology have changed the selection process and made it much more scientific. Analytical tools allow clients to see which firms have represented clients in different jurisdictions and in front of different judges as well as the type of transactions and cases they have worked on.

As a general counsel, when my company was sued in a jurisdiction outside of the norm or if we were working on a deal involving a unique type of target or state or local law issues, I would call my contacts and ask for referrals. Now, in a matter of minutes, I can figure out the two or three most experienced choices to fit my fact pattern. Also, with significant budget pressure on in-house teams, transparency driven by data and technology often enable outside counsel to save fees by identifying experienced and effective outside counsel from mid-sized firms or from firms that are not based in large cities.

Indeed, law is becoming digitized, Mark Cohen writes, though law firms have so far failed in keeping up with the dramatic changes occurring in the marketplace:

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Litigation privilege

Does litigation privilege always apply to internal investigations?

By Alexander Gay May 19, 2017 19 May 2017

Does litigation privilege always apply to internal investigations?

 

Lawyers are often asked whether a given communication is subject to litigation privilege. In answering this question, lawyers have to assess the facts and objectively determine whether the dominant purpose of a communication is in respect of litigation that is contemplated, anticipated or ongoing.

The issue is far more tenuous, however, in criminal matters.   The question is whether all internal investigations in respect of a contemplated, anticipated or ongoing criminal investigation are privileged.  Determining when litigation is being contemplated calls for different considerations that have yet to be fully considered by the courts in Canada.  But a recent decision from England’s High Court recent may come as a surprise to in-house counsel who assume that litigation privilege is more encompassing than it may really be.  

The basic rule is that litigation privilege applies to communications between a lawyer and third parties or a client and third parties, or to communications generated by the lawyer or client for the dominant purpose of litigation when litigation is contemplated, anticipated or ongoing.

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Immigration

Why the Preclearance Act needs to be be significantly changed

By Yves Faguy May 18, 2017 18 May 2017

 

Calgary lawyer Michael Greene from the CBA’s Immigration Law Section appeared this week before the House Standing Committee on Public Safety and National Security to give recommendations on Bill C-23 on  the preclearance of persons and goods in Canada and the United States.  The submission is here, and CBA National reported on it last month. We caught up with Greene and asked him to explain why the CBA Sections do not support Bill C-23 in its current form.  He also shares his views on some of the challenges involved in changing the legislation.

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CBA Influence

CBA submission on the environmental review process

By Kim Covert May 18, 2017 18 May 2017


In the tennis match that is the government’s review of its environmental assessment process, the ball is back in the CBA’s court – and the Association is calling a fault on the play.

In December, the CBA’s National Aboriginal Law Section and the National Environmental, Energy and Resources Law Section made a joint submission to the expert panel in Vancouver, and followed up with a letter in response to questions asked by the panel.

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Children's rights

CBA rolls out child rights toolkit

By CBA/ABC National May 17, 2017 17 May 2017

 

The CBA has launched an online toolkit packed with information and resources to help lawyers, judges and other professionals make better decisions for children.

The CBA Child Rights Toolkit provides checklists, key cases, precedents and sample facta plus basic information on overarching principles of children’s rights, constitutional considerations, legal representation, the role of independent human rights institutions and child rights impact assessments.

It is designed to help identify breaches of legal rights and provide remedies across a broad range of practice areas from family law and child protection to immigration and education law.

The resource is a collaborative effort of 13 CBA sections led by the UN Convention on the Rights of the Child subcommittee of the Children’s Law Committee. It was funded by the CBA Law for the Future Fund, and inspired by the need to improve access to justice for children in Canada.

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Human rights

CBA appearance on transgender bill

By Yves Faguy May 15, 2017 15 May 2017

CBA appearance on transgender bill

 

Last week, Marie Laure Leclercq, lawyer with De Grandpré Chait, and Siobhan O’Brien, associate with Hicks Morley, appeared on behalf of the CBA before the Senate Legal and Constitutional Affairs Committee. The CBA believes the bill will advance equality in Canada, and provide tangible protections for transgender people from discrimination and hate crimes. 

It encouraged Senators to pass Bill C-16, An Act to Amend the Canadian Human Rights Act and the Criminal Code, without further amendment. CBA National reported in March on how the Senate has been delaying and frustrating passage of the act. The CBA’s submission reads:

Bill C-16 represents a long overdue step to include these protections expressly in areas of federal jurisdiction. This is not a bold move, nor should it be controversial. The Canadian Human Rights Commission takes the position that the Commission, the Tribunal and the courts view gender identity and gender expression as protected by the Canadian Human Rights Act. Statutory protections on one or both of these grounds are already available in all but one territory (Yukon). In all jurisdictions, protections for transgender persons are implicit in the law.

It’s worth noting that the Yukon government introduced a trans rights bill in its legislature last month.  Two bills in New Brunswick aimed at expanding trans rights passed final reading last month.

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Environmental law

Carta de Foresta: A guide for protecting the commons and individual rights

By Yves Faguy May 15, 2017 15 May 2017

Carta de Foresta: A guide for protecting the commons and individual rights

 

As far as medieval English Charters go, Magna Carta, famous for curbing royal authority and arbitrary use of power, is unquestionably the most celebrated. Lesser known today, but no less successful in its own time, is the Great Charter’s younger cousin, Carta de Foresta.

Also known as the Charter of the Forest of 1217, it was radically in its impact, in that it returned to private ownership vast areas of forest that had been expropriated by England’s kings, all the way back to William the Conqueror.  It also gave a right of common access to royal private lands.

It was issued by the nine-year old King Henry III in 1217, and reaffirmed many times thereafter over the next eight centuries, often in tandem with Magna Carta.  Carta de Foresta remained in force as a statute in England until it was replaced by the superbly named Wild Creatures and Forest Laws Act in 1971.

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Immigration

Key parts of citizenship revocation process struck down

By Justin Ling May 11, 2017 11 May 2017

Key parts of citizenship revocation process struck down

 

The Federal Court just beat Justin Trudeau to the punch.

In a ruling yesterday, the court found that three provisions in the Citizenship Act were unconstitutional and denied Canadian citizens the right to due process afforded to them under the Canadian Bill of Rights.

Justice Jocelyne Gagné ruled that Ottawa’s powers to strip citizenship from dual citizens, in cases where they believe the citizenship was obtained through fraud or misrepresentation, lacked safeguards.

Thanks to changes brought in under the Strengthening Canadian Citizenship Act, people facing revocation were only afforded a trial if the Minister of Citizenship and Immigration deemed it necessary. Otherwise, their representations would be made only in writing.

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Securities

Quebec Court of Appeal: The national securities regulator project is unconstitutional

By Yves Faguy May 10, 2017 10 May 2017

Quebec Court of Appeal: The national securities regulator project is unconstitutional

 

The Court of Appeal of Quebec has ruled that the plan for a new national securities regulator is unconstitutional.  The plan called for a new regulatory regime for capital markets, including a national regulator, a uniform act  that each participating province and territory would adopt, and a federal act aimed at ensuring the stability of capital markets.

The court ruled that the proposed mechanism for amending the Uniform Act violates the parliamentary sovereignty of the provinces. That's because the provinces' power to legislate in this area would require  the approval of an external body, the Council of Ministers, which is prohibited. Also problematic is the Council’s voting mechanisms for adopting regulations under the federal law, as they would essentially grant the an effective veto to the provinces over federal initiatives targeting systemic risks that could pose a serious risk to Canada's financial system.

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Trade

Beer pressure

By Justin Ling May 10, 2017 10 May 2017

Beer pressure

 

When the Supreme Court granted leave last week to hear the appeal in R. v. Comeau, there was elation in all sorts of different corners of the country.

Free marketeers are hoping the top court will finally pave the way for legal challenges to enforce the sort of free-trading union that (they suspect) the framers of the constitution always wanted.

Wine aficionados are anticipating the pleasure sipping B.C. wine in Nova Scotia, and Nova Scotia wine in B.C.

For provincial governments, the hope is that a ruling will reinforce their long-held power to regulate and manage certain domestic industries at their province’s borders.

Caught in the middle of it all are the provincial liquor boards, whose very existence might be on the line.

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Access to justice

Newfoundland’s new small claims legal aid clinic

By Mariane Gravelle May 9, 2017 9 May 2017

Newfoundland’s new small claims legal aid clinic

 

Even getting through small claims can be a nightmare for litigants who represent themselves. Thankfully there is help in St. John’s.  The Newfoundland and Labrador Small Claims Legal Assistance Clinic. This clinic is born of a partnership between the CBA Newfoundland & Labrador branch and the Public Legal Information Network of NL (PLIAN) and is helmed by Joe J. Thorne (CBA-NL Pro Bono Chair), Ashley Woodford (Executive Director of the CBA-NL branch), and Kevin O’Shea (Executive Director of PLIAN).

The clinic, which also includes ties to the provincial court and the Newfoundland and Labrador Law Society, was set up to fill an existing gap in the institutional pro bono sector of the profession. Says Joe J. Thorne, “$25000 [the maximum claim amount allowed in small claims court] is a lot of money for people, but maybe not enough to retain a lawyer.” Clinic officials hope their services will help those clients who would benefit from legal advice but may not be in a position to pay for them.

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