Law Matters I Summer 2018



On August 30, 2018 — the day before this publication “went to the presses” (so to speak, as our annual summer edition is only published online) — the Federal Court of Appeal released its much-awaited decision regarding the Trans Mountain pipeline. In it, the Court of Appeal quashed the Order in Council permitting the expansion of the pipeline and remitted the matter to the Governor in Council for “prompt redetermination” (at para. 774). Canada’s response was divided. Some called the decision a “political disaster”, leaving Canada’s resource industry “closed for business”. Others hailed the decision as triumph for Indigenous consultation and environmental protection. No matter what side you take, one thing is certain: Canadian federalism is as topical now, as it ever was. Indeed, Alberta’s premier, Rachel Notley, immediately responded to the Trans Mountain decision by pulling Alberta out of Canada’s national climate change plan, another space in which federal collaboration between Canada and its provinces is unavoidable.

Federalism is not an issue of importance in current Canadian politics; it is the issue. For this reason, we have devoted our Summer 2018 edition to contemporary issues in federalism. We’re delighted with the contributions we’ve received in this edition, which cover a wide range of contemporary federalism issues.

The edition is introduced by none other than Peter Hogg — Canada’s long-standing leading constitutional law scholar — who notes that “[t]he doctrine of federalism if enjoying a renaissance” with so many heated federalism debates occupying our court dockets and political conversations. Next, Chris Nyberg and Alyssa Moses discuss the federalism implications of Cannabis legalization, and illustrate the consequences of lacking intergovernmental coordination. Further, Professor Fenner Stewart provides his perspective on the upcoming Supreme Court decision in the Redwater appeal concerning Alberta’s “orphan wells”; a highly divisive issue, as illustrated by the majority and dissenting opinions at the Alberta Court of Appeal. As each of these pieces show, the tough compromises required of Canadian federalism are an ongoing battle, and will not be resolved any time soon.

We also take this opportunity to profile an up and coming legal scholar, already making waves in Canadian federalism conversations. Malcolm Lavoie is a Professor at the University of Alberta who, despite his vintage, has already appeared as counsel before the Supreme Court of Canada, and featured prominently in submissions before that Court in the Comeau appeal. Clearly, while Canadian federalism is divided, it remains in good hands.

And with that, we welcome you to enjoy the fine pieces included in our latest edition, and to reflect not only on what it means to compromise, but what it means to be Canadian. Indeed, our complex national identity is the subtext of so many federalism disputes, making this conversation all the more worthwhile. Happy reading!

Joshua Sealy-Harrington
August 31, 2018

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