BarTalk | August 2016 by The Canadian Bar Association, BC Branch

INTERPROVINCIAL PIPELINES | LNG | GROUNDWATER LICENSING

AUGUST 2016 | bartalkonline.org

Natural Resources and Environmental Law

news BARTALK EDITOR

Deborah Carfrae EDITORIAL BOARD CHAIR

Candice Alderson

EDITORIAL BOARD MEMBERS

Marie Burgoyne Laura Cundari Richard Fyfe, QC Brandon Hastings David Madani Kirsten McGhee Gurminder Sandhu Dierk Ullrich Vanessa Werden

Cover photo: Spirit Bear, Gribbell Island, BC

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STAFF CONTRIBUTORS

Judy Cave Travis Dudfield Tanya Galic Kent Hurl Stuart Rennie Karen St. Aubin Jennifer Weber Judy Yen

The BC Branch of the Canadian Bar Association, 10th Floor, 845 Cambie St. Vancouver, BC V6B 5T3 Tel: 604-687-3404 Toll-free (in BC): 1-888-687-3404 bartalk@cbabc.org

BarTalk is published six times per year by the British Columbia Branch of the Canadian Bar Association and is available online at bartalkonline.org. © Copyright the British Columbia Branch of the Canadian Bar Association 2016. This publication is intended for information purposes only and the information herein should not be applied to specific fact circumstances without the advice of counsel. The British Columbia Branch of the Canadian Bar Association represents more than 7,000 BC members and is dedicated to improving and promoting access to justice, reviewing legislation, initiating law reform measures and advancing and improving the administration of justice.

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AUGUST 2016

VOLUME 28 / NUMBER 4

Contents

Departments

FROM THE PRESIDENT Thanks for the Great Presidential Year! by Jennifer Chow

PRACTICE TALK What’s Your Plan? by David J. Bilinsky

DAVE’S TECH TIPS

NOTHING OFFICIAL The March of Folly by Tony Wilson

SECTION UPDATE Family Law – Vancouver Natural Resources Law Elder Law Charities and Not-for-Profit Law

SECTION NEWS

Sections

Features 12 INTERPROVINCIAL PIPELINES by Christopher Jones 13 SAY HELLO TO GROUNDWATER LICENSING by Deborah Curran 14 A NEW DEAL by Krista Robertson 15 AMBIGUITY AND UNCERTAINTY IN BC’S LNG INDUSTRY by Vivek Warrier 18 RECRUITING AND ENGAGING INDIGENOUS LAWYERS by Yun Li-Reilly and Dana-Lyn Mackenzie 19 REBUILDING FEDERAL ENVIRONMENTAL ASSESSMENT by Chris Tollefson 20 LEGISLATION AND ENFORCEMENT NEEDED by Lesley Fox 21 UPDATE ON THE NORTHERN GATEWAY PIPELINE by Tim Dickson 9

Natural Resources and Environmental Law = Change. Each field of law has and will continue to evolve to address new data, conservation, Indigenous ecological knowledge and the ever dynamic environmental landscape. Change is apparent in this issue, be it the implications of recent decisions on interprovincial pipeline projects, the new Water Sustainability Act regulating groundwater and water use conflicts or the regulatory uncertainty that is, in part, impacting LNG projects in BC, not to mention the Trudeau government’s review of the Canadian Environmental Assessment Act, which may be the most fundamental transformation of federal environmental law in a generation!

News and Events

Guest

Inside This Issue

TRIAL BY AMBUSH IN BC by Brandon Hastings

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Discover the Advantage with CBABC Membership Battle of the Bar Bands Recap Whitecaps & CBABC Recap Immigration: Designated Representatives What Are Your Top Five’s? 2016 Provincial Council Awards BC’s Legal History Series by Hamar Foster, QC CBABC WLF News The Pitch: Where Startups State Their Case CLEBC Update BC Legislative Update Branch & Bar Calendar Georges A. Goyer, QC Memorial Award Calling All Lawyers: Be a Mentor Tips from Courthouse Libraries BC Children’s Lawyer Initiative 2016 Check out these articles from the National magazine

16 27 28 29 30 31

MEMBER SAVINGS LAW FOUNDATION OF BRITISH COLUMBIA PROFESSIONAL DEVELOPMENT DISPLAY ADS BAR MOVES NEW MEMBERS

Also In This Issue

Click here for LEGAL OPPORTUNITIES and ads AUGUST 2016 / BARTALK 3

FROM THE PRESIDENT JENNIFER CHOW

Thanks for the Great Presidential Year! It’s been like kitesurfing in 40 knot winds

s my presidential year draws to an end, let me simply say thank you. Thank you to all who took time out of your valuable day to email, phone or speak with me about your concerns, your views and your ideas. Your feedback is always important. You raised great points about Branch autonomy and ReThink; the importance of Provincial Council; the need for diversity in the legal profession and the judiciary; the continuing challenges in access to justice; the need for student loan forgiveness; the significance of Truth and Reconciliation and many other important issues. We truly are a passionate and devoted community of lawyers. Throughout this year, I was fortunate to hang out with old friends, meet new ones, attend local Bar association events and travel to many wonderful BC communities, including Masset, Prince Rupert, Kelowna, Kamloops, Victoria, Nanaimo and Smithers. I was also glad to hang out with old and new “national” friends, including fellow Branch presidents and CBA national board members throughout Canada. This past year felt a little like kitesurfing in 30 knot winds (okay, sometimes more like 40 knots with shore breaks, waves and obstacles). It’s been challenging, sometimes intimidating, but mostly fun. National CBA’s ReThink, or proposed governance re-organization, occupied a large part of my time this year. Members of our Provincial Council voiced concerns over the initial proposed loss of Provincial Council. Many of us, including fellow Branch presidents, became united on the importance of Branch autonomy (rather than centralization) and geographical representation on any new national board. I am grateful that the new proposed governance structure reflects both Branch autonomy and Canada’s geography.

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Some of the key moments that stand out for me include: speaking on a diversity panel at the University of Victoria; visiting all three law schools to hand out scholarship funds; working with the three law school Deans; working with our young lawyers on student loans and the Young Lawyers Advisory Task Force; snowboarding with attendees at our Whistler Branch Conference; hosting four Provincial Council meetings and all our wonderful guests, speakers, chief judges, leaders and politicians; speaking at judicial ceremonies at all levels of court; contributing at various Access to Justice events and to the QC Advisory committee and Judicial Council; presenting awards, including the President’s Award and the Georges A. Goyer QC Memorial Award; doing a “funny walk” at the medieval-themed Yale County Bench and Bar Dinner (while people thought I was walking normally!);

attending Law Week events, including a great open house event at the Masset courthouse and the Barry Sullivan Law Cup debate; and of course, walking into a light fixture at the Whistler Branch Conference in front of two Chiefs. I could go on, but I have a 600-word limit. I started the presidential year with a commitment to three specific goals: revamping Provincial Council meetings; promoting equality and diversity; and advocating for student loan forgiveness for new lawyers committed to working in rural British Columbia. These goals were in addition to the Branch’s ongoing commitments to access to justice, interventions and other advocacy goals. I am very pleased to report that these goals have been met. However, much more work needs to be done. As soon-to-be Past President, I look forward to continuing to advocate for a student loan forgiveness program with the provincial government. All this to say, it has truly been my honour to be your Branch President. This invaluable experience has changed my perspective and strengthened my voice. I am a better person for it. For all that, I am grateful. Thank you.

Jennifer Chow

president@cbabc.org

AUGUST 2016 / BARTALK 5

practicetalk DAVID J. BILINSKY

What’s Your Plan?

Time to get a little strategic And I’m hangin’ on best as I can Cause I know this whole crazy ride’s in your hands It’s your plan... r r

– Music, Lyrics and recorded by: Dustin Lynch.

here has been a quiet change in how law has been practised in the last little while. The biggest firms have taken a lesson from the major accounting firms and structured their business processes to adopt formal business planning. Rather than being an aggregation of lawyers within a larger costsharing structure, the revamped organizations have formal goals that go far beyond just billing and client acquisition targets. Law firms now make business moves strategically; they look for markets that they can not only enter but where they can create a sizable presence and apply their specialized expertise. Technology is being adopted not just for back-office systems; rather cutting-edge technology such as Artificial or Augmented Intelligence (AI) is being adopted to assist lawyers in their deepest work. For example, The Impact of Technology, a report by LegalFutures of the UK, states: “There is little doubt that the use of legal AI is on the rise among large and growing law firms. Among other developments, global law firm Dentons has invested in the IBM Watsonbased start-up ROSS Intelligence; Riverview Law has partnered with Liverpool University to benefit from its computing department’s AI expertise and bought a US knowledge automation business, CliXLEX; and Clifford Chance is reportedly evaluating a range of AI technologies.”

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Of course it isn’t just lawyers and law firms that are making strategic moves. Indeed, BC is front and centre in the application of technology to dispute resolution: Shannon Salter, Chair of the Civil Resolution Tribunal (“CRT”), based in Victoria, said that when it opens... the CRT will be “the first online tribunal in Canada and one of the first in the world.” The CRT will deal with small claims and what Canadians call “strata disputes” – disputes over the common parts in shared blocks of flats. The front-end of the CRT is a “Solution Explorer,” described as “the tool that will deliver expert justice and dispute resolution guidance” directly to the public. PwC is building both the Explorer and the CRT dispute resolution software. Since the CRT’s website was launched last year, it has generated close to 17,000 hits and hundreds of email queries. The CRT is an example of governments looking to strategically use

technology to provide greater access to justice in new and efficient ways. This is an appropriate time for all firms to be asking themselves: where are we going? What is our approach to the market? Where do we see ourselves in five years? Are there new ways that we could be providing services? Have we captured specialized expertise that we can now apply to the market in ways that our competition has not? How can we apply business planning to ensure the future of our lawyers and law firms? According to Geoff Wild, the pioneering solicitor who is director of governance and law at Kent County Council: “... lawyers must wake up to the fact that they need to rapidly become digital businesses that happen to do law, rather than legal businesses that use technology,” or “they will very soon face extinction.” For firms of all sizes this whole crazy ride is in your hands: what’s your plan?

The views expressed herein are strictly those of David Bilinsky and do not reflect the opinions of the Law Society of British Columbia, CBABC, or their respective members.

David J. Bilinsky is the Practice Management Advisor for the Law Society of British Columbia. Email: daveb@lsbc.org Blog: thoughtfullaw.com

GO ONLINE FOR MORE INFORMATION

dave’s techtips How does one start to think strategically as a law firm? HERE IS A LIST OF RESOURCES AVAILABLE ONLINE: The CBA has published HOW TO DEVELOP AND IMPLEMENT A STRATEGIC PLAN FOR YOUR FIRM Ann Macaulay states: “A strong strategic plan identifies your firm’s goals and objectives and sets out a clear vision for its future. It assesses the external and internal factors that have an impact on the business of the firm. It offers members of the firm an opportunity to sit back and take a good hard look at the state of their current practices and work together on where they should be headed. Lawyers tend to look at their own practices and specific clients, but they don’t look at the law firm as a whole enterprise – this gives them a good opportunity to do just that.” ALM Legal Intelligence has published THINKING LIKE YOUR CLIENT: STRATEGIC PLANNING IN LAW FIRMS They state: “Lawyers and legal professionals are being forced to

become more active business managers and to go beyond simply servicing clients. There is a need to not only understand the clients’ legal needs but to also understand their businesses and industries at a deeper level. Firms are drawing upon marketing, business development, market insights that come from business intelligence and metrics, and customer relationship management tools to retain and grow business with existing clients more effectively, while also attracting new ones. They’re paying more attention to practice group and individual performances. In short, they are beginning to run the firm like a business – not as a collection of billable legal experts.” The ARC Group has published the book: STRATEGIC PLANNING FOR LAW FIRMS: A PRACTICAL ROADMAP Written by John Sterling, this book provides a comprehensive

roadmap, guidance, checklists, tools and steps on all phases of a strategic planning process. They state that this book features real-life case studies from a range of firms varying from mid-sized practices to large boutique and global firms, including Clarke Hill, Bryan Cave and Sterne, Kessler, Goldstein & Fox. By following this guide all firms will be able to craft and implement strategic plans to gain competitive advantage, improve firm sustainability and foster greater growth. One of the most comprehensive and free resources on the web is the FREE MANAGEMENT LIBRARY This website is stuffed with an unbelievable amount of resources to assist any business in going to the next level, including business planning.

For those seeking a more interactive experience, there is LIVEPLAN This website will help you build your plan and incorporate funding, cash flow projections, analytics as well as a financial dashboard to help you measure your results. It has more than 500 sample plans to review for inspiration as well.

AUGUST 2016 / BARTALK 7

nothingofficial TONY WILSON

The March of Folly

Brexit and the Disunited Kingdom

here’s something about the books by the late great Barbara Tuchman that have stayed with me, years after I’ve read them. The start of the First World War was a page turner in The Guns of August. A Distant Mirror-the Calamitous 14th Century described a medieval world that straddled Game of Thrones (without the dragons) and Monty Python and the Holy Grail (without the funny bits). I glanced through The March of Folly shortly after the Brexit Vote to recall how she defined the word folly: “A phenomenon noticeable throughout history regardless of place or period is the pursuit by governments of policies contrary to their own interests.” Surely, that’s what happened June 23 in the former United Kingdom. To misquote the Pythons: “The Referendum went largely as I predicted… except that the Silly Party won.” The New Yorker expressed it perfectly on its cover: A “silly-walk” off a cliff. An unnecessary and divisive referendum, the “Leave” side won largely as a result of older voters from mid and northern England. I imagine more than a few of them were “Boaty McBoatface” supporters. They voted against the European Union (EU) as much as they voted against Oxbridge elites, government regulation, the professional class, London bankers, David Cameron, Europeans, and of course, immigrants. It’s puzzling how a country that colonized more than half the world could complain so much about immigration. It now seems that many of them were hoodwinked by outright lies about how much the UK sends to the EU each week; a claim UKIP Leader Nigel Farage immediately backed away from. After the vote, of course. Scottish voters favoured staying in the EU by a whopping 62.2% to 38.8%. Yet the 2014 referendum on

8 BARTALK / AUGUST 2016

Scottish independence resulted in Scotland voting to stay in the UK by a margin of 55% to 44%; largely because of the UK’s membership in the EU. Scotland’s First Minister Nicola Sturgeon said that Scotland’s future was with the EU even if England’s wasn’t, and that a new referendum on Scottish independence was all but certain. Northern Ireland is also reconsidering its future; its Deputy First Minister stating that “English voters were pulling Northern Ireland out of Europe against the wishes of the people of Northern Ireland.” Unless the Scots can somehow veto the Brexit, Little England may well have destroyed the United Kingdom. But it’s not just the Scots and the Northern Irish who feel hijacked by the English. It’s those under 40 whose futures in Europe have been hijacked by an older generation who couldn’t care less about them. Moreover, lawyers, accountants and others who have integrated their personal and professional

lives into a United Europe may find their skills are obsolete in a new Disunited Kingdom. Obviously, UK businesses who have counted on the open markets of the EU for more than a generation may well fire their English workers and move their enterprises to the continent. (Or Scotland.) The EU, arguably fed up with the UK, now wants the UK out ASAP. (Somehow I hear the voice of Peter O’Toole screaming “No Prisoners” in “Lawrence of Arabia.”) One of my colleagues, (with more than a touch of schadenfreude) hopes the EU treats the Brits twice as “nicely” as the EU treated Greece a few years back. Brexit ringleader Nigel Farage has now quit politics, leaving it to others to clean up the mess he created (giving credence to the old saying: “arsonists never bring water to the fires they set.”). Political scientists will be studying this referendum for years. It may trigger the departure of other countries from the EU, reinvigorate separatists in Québec, and conceivably rekindle independence movements in the United States. No one, including Hillary Clinton, should underestimate voters who hate government, the financial sector, political elites, lawyers, the educated, and of course, immigrants. The views expressed herein are strictly those of Tony Wilson and do not reflect the opinions of the Law Society of British Columbia, CBABC, or their respective members.

guest BRANDON HASTINGS

Trial by Ambush in BC Just when you thought it was safe to go back into the courtroom...

party engaged in litigation in BC is generally required to disclose all materials in its possession, power, or control, which may prove or disprove a material fact. The existence of privileged items must be disclosed per Supreme Court Civil Rules 7-1(7) and Supreme Court Family Rules 9-1(4). Although their contents can be kept secret, privilege may be waived at any time, which can create some sticky issues. In Stone v Ellerman, 2009 BCCA 294 (“Stone”), the plaintiff sought to rely on a “pain journal” to refresh her memory during direct examination. Plaintiff’s counsel argued the journal was properly listed as privileged, as it was included under a listing of “Notes and documents, correspondence, minutes of evidence, memoranda being the work product of plaintiff’s legal advisors.” The journal was found to be improperly disclosed, but the trial judge allowed its use, saying (essentially) that in a motor vehicle case, the existence of a pain journal should be anticipated, and it was therefore in the interests of justice to allow the use of the journal. One might consider Stone to be trial by ambush. The BC Court of Appeal (“BCCA”) would agree, and overturned the trial judge’s decision in a 2-to-1 decision. All three justices agreed that it was within

the trial judge’s discretion to allow the use of improperly listed evidence at trial. The use of discretion is governed by four factors (Stone at paras 3031; see also Houston v Kine, 2011 BCCA 358 at para 12): whether the plaintiff would suffer prejudice if the use of the document was permitted; whether there was a reasonable explanation for the failure to disclose the document; whether excluding the use of the document would prevent the determination of the relevant issue on its merits; and whether, in the circumstances of the case, the ends of justice require that the use of the document be permitted.

Although their contents can be kept secret, privilege may be waived at any time, which can create some sticky issues. In Cahoon v Brideaux, 2010 BCCA 228 (“Cahoon”), the defence sought to use a copy of mortgage documents to impeach the plaintiff. The documents were obtained after trial began, and were duly listed as privileged. The trial judge allowed

the use of the mortgage documents on cross-examination, even though they had not been available before the direct examination was concluded. The BCCA agreed with the trial judge, stating that the prejudice to the plaintiff was minimized because the document had been discovered close to the time it was used, and because the plaintiff knew or ought to have known the contents of the plaintiff’s own mortgage documents (at para 39). Dykeman v Porohowski, 2010 BCCA 36 was, as with Stone, a motor vehicle case. The plaintiff was cross-examined on her own Internet postings, which indicated her post-collision mobility. Like Stone, the postings were improperly listed; like Cahoon, the plaintiff ought to have been familiar with the contents of the documents; and unlike Cahoon, the defence discovered the documents well before trial. Cross-examination on the postings was allowed at trial, but the BCCA overturned that decision because (1) the postings were improperly listed, and (2) no sufficient excuse was given as to why the documents were improperly disclosed (at paras 41, 42). How can we conclude? First, it seems that trial by ambush in BC isn’t quite as dead as one might have assumed. Second, even where discretion may allow the use of privileged documents, a failure to list documents in accordance with the Rules could be fatal. Brandon Hastings (bhastings.com) is a lawyer, collaborative divorce practitioner, and civil roster mediator at MacLean Family Law. AUGUST 2016 / BARTALK 9

sections SECTION UPDATE

Keep Current A review of provincial Section meetings Family Law Vancouver Meeting in Review: May 12, 2016 Speakers: Lisa J. Hamilton, Hamilton Fabbro, Jeffrey A. Rose, QC, Mortimer & Rose and Scott Booth, Jenkins Marzban Logan LLP Topic: A discussion of the recent Court of Appeal decision in V. J. F. v S.K.W., 2016 BCCA 186, and the impact on property division under the FLA

Natural Resources Law Meeting in Review: May 19, 2016 Speaker: Mark S. Oulton, Hunter Litigation Chambers Topic: Best Practices in Preparing your Client for an Opportunity to be Heard

Elder Law Meeting in Review: June 22, 2016 Speakers: Josh Paterson, Executive Director, BC Civil Liberties Association; Kimberly J. Jakeman, Harper Grey LLP; and Emily L. Clough, Alexander Holburn Beaudin & Lang LLP Topic: Assisted Dying – New Legislation

Charities and Not-for-Profit Law Meeting in Review: June 23, 2016 Speakers: Kate Bake-Paterson, DLA Piper (Canada) LLP; Michael Blatchford, Bull, Housser & Tupper LLP; and Sarah Fitzpatrick, Miller Thomson LLP, Martha Rans Topic: Select Topics on the New Societies Act

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Family Law Vancouver meeting was a discussion uThis by counsel for both parties in the matter of V.J.F. v S.K.W., 2016 BCCA 186, Lisa Hamilton and Jeff Rose, QC, moderated by Scott Booth, on the impact of this decision on property division under the Family Law Act (“FLA”). The main question addressed by the speakers was whether and to what extent intention matters in characterizing excluded property. The balance of the discussion addressed the fact that the Court of Appeal has now confirmed that it is possible to lose your exclusion in a division of property pursuant to the FLA. There was discussion and debate as to what extent property placed in joint names or a spouse’s sole name during a relationship might be considered to have lost the characterization of “excluded” and what counsel should consider in drafting pleadings going forward to address this.

Natural Resources Law On May 19, 2016, Mark

uOulton of Hunter Litigation

Chambers gave a presentation to the Natural Resources Law Section on “Best Practices in Preparing your Client for an Opportunity to be Heard.” Mark engaged the group in a relatively informal discussion regarding the nature and function of the “opportunity to be heard” process under British Columbia’s forestry regime. Mark used anecdotes and examples from his practice to illustrate some of the challenges and opportunities presented by this somewhat unusual process which serves an important enforcement

function in British Columbia’s forests. Mark also discussed why your client should participate in the process, the various roles and functions of counsel throughout and how best to manage the client and their expectations as they navigate the process, including how to best position your client for any potential appeal.

Elder Law On June 22, 2016, more than

u80 participants attended

either in person or online for a session on Medical Assistance in Dying (“MAID”) hosted by the Elder Law Section. The lively and informative panel discussion was moderated by Katherine Reilly of McMillan LLP, and featured three panelists: Kim Jakeman of Harper Grey LLP; Josh Paterson, Executive Director of the BC Civil Liberties Association; and Emily Clough of Alexander, Holburn, Beaudin & Lang LLP. Much of the discussion centred on the panelists’ critiques of the federal government’s Bill C-14, which had been passed into law only days earlier. Concerns about the constitutionality of the new legislation were expressed – in particular, regarding the limitations and restrictions imported into the test for accessing MAID that were not found in the SCC’s enunciation of the eligibility requirements in the Carter v Canada decision. Ms. Jakeman is Chair of the CBA’s National End of Life Working Group, and testified before the Senate Standing Committee on Legal and Constitutional Affairs regarding Bill C-14. She spoke about the CBA’s position and the arguments made to Senate on suggested amendments to the Bill. Mr.

Paterson likewise testified before the Senate Standing Committee, and provided his insights into the issues from his unique perspective as Executive Director of the institutional plaintiff from the Carter case. Ms. Clough gave some thought-provoking and useful comments on issues that practitioners can expect to face when attempting to apply the new legislation. All agreed that the court’s interpretation of the legislation will be helpful to shed some light on the practical operation of the new law.

Charities and Not-for-Profit Law

how to become member funded, both before and after transition; and disclosure requirements. Michael Blatchford next briefly presented on the topic of director qualifications and liabilities under the Act, before the meeting was adjourned due to time considerations. Michael also shared correspondence received from the BC Corporate Registry confirming the administrative process in development to transition preexisting societies under the new Societies Act, a copy of which is posted on the Section’s web page. For CBABC members, more detailed information and available minutes

On June 23, 2016, Martha

uRans and Sarah Fitzpatrick

compared the model bylaws in the new Societies Act (the “Act”) against the previous model bylaws under prior legislation. The general consensus was that the new model bylaws may lead many societies who blindly adopt them to run into problems. Kate Bake-Paterson next presented on Member Funded Societies under the Act. There was much discussion on the complex procedure for determining whether a society can be member funded;

from the Section meetings are online at cbabc.org under CBABC Sections & Forums.

UPCOMING SECTION MEETINGS Looking for upcoming Section meetings? Check the online Sections Calendar or the CBA PD Resource site regularly as new meetings are added daily. Enrolled members automatically receive notice of their Section’s meetings by email. Enjoy the benefits of membership and enrol in Sections today. CBA members are reminded to keep their profiles up-to-date with the Branch to ensure they receive notices.

SECTION NEWS

Get Ready for the 2016/17 Section Term! NEW to Sections? CBABC members receive unlimited access to all 77 BC and 41 National Sections and Forums. There are no additional costs to enroll in Sections!

NEW for RETURNING Section Members

This year, CBA members will automatically be re-enrolled to their previous year’s preferred Sections upon renewing their membership. Email sections@cbabc.org for further Information.

AUGUST 2016 / BARTALK 11

feature CHRISTOPHER JONES

Interprovincial Pipelines Coastal First Nations v British Columbia (Environment), 2016 BCSC 34

recent decision of the BC Supreme Court has significant implications for the environmental assessment of federally regulated projects, notably pipelines regulated by the National Energy Board (“NEB”). In 2010, under section 27 of the BC Environmental Assessment Act (“BC EAA”), the provincial Minister of Environment (through her delegate) entered into an agreement with the NEB respecting the environmental assessment of projects that require both NEB approval and an environmental assessment certificate (“EAC”) from the province. Under the agreement, the Minister accepted that NEB project assessments were equivalent to provincial environmental assessments. The agreement also eliminated the requirement for the projects covered by it to go through a provincial environmental assessment, or obtain an EAC. Pursuant to section 28 of the BC EAA, that Act was varied to the extent necessary to give effect to the agreement. Coastal First Nations challenged the agreement in part, based on an interpretation of the BC EAA, and also on the basis that the province had failed to consult with First Nations before entering into it. Northern Gateway Pipelines argued that section 17 of the BC EAA, under which

12 BARTALK / AUGUST 2016

provincial ministers decide whether or not to grant an EAC, was constitutionally inapplicable to interprovincial pipelines, such as the one it has proposed between Alberta and Kitimat, BC. In her judgment released in January, Madam Justice Koenigsberg held that section 27 did not allow the Minister to remove the need for an EAC. While eliminating the requirement for projects covered by the agreement to go through a provincial environmental assessment was valid, they would still require a decision by provincial ministers on whether or not they should be issued an EAC. Koenigsberg J. made important statements with respect to the

Until the province imposes an EAC condition, a determination of its constitutional validity would be premature. provincial authority to conduct environmental assessments of interprovincial pipelines. She held that as regulation of the environment is a matter of shared jurisdiction, the BC EAA is valid even where it applies to interprovincial undertakings. While a refusal to issue an

EAC for an interprovincial project could be unconstitutional, no decision had yet been made, so a determination in this regard would be premature. Further, while the province may face constitutional limitations in imposing EAC conditions on an interprovincial undertaking, conditions that advance environmental protection would be consistent with federal environmental protection legislation. Again, until the province imposes an EAC condition, a determination of its constitutional validity would be premature. This judgment has implications for a number of projects, including two that have been the subject of extensive public discussion. The certificates issued for the Northern Gateway project, the subject of the decision, were recently quashed by the Federal Court. In addition to federal approval it will now also require a provincial EAC in order to proceed. The same goes for Kinder Morgan’s TransMountain Expansion project (“TMX”), a proposal to significantly increase the capacity of an existing oil pipeline from Alberta to Burnaby, BC. The NEB recommended approval of TMX in May, and the federal government is expected to make a decision on it later this year. In keeping with Koenigsberg J.’s judgment, both projects could be required to meet additional provincial conditions in any EAC granted for them. Christopher Jones is Senior Legal Counsel with the Resource, Environment and Land Law Group of the Ministry of Justice.

feature DEBORAH CURRAN

Say Hello to Groundwater Licensing

BC water law flows into the 21st century

ith drought levels on Vancouver Island already hovering at Level 3 in May this year and the provincial government restricting any future water use on some 5,000 water sources, water is fast becoming an important issue in BC. Conflicts between water users and environmental flow needs (the volume and timing of water flow required for the proper functioning of an aquatic ecosystem), as well as access to water, are becoming prevalent legal issues that lawyers are called upon to address. As is well-established in the western US, we will see the emergence of a water law Bar in BC in the next decade. In response to water use conflicts and the need for water for the environment, the BC government brought the new Water Sustainability Act, SBC 2014 c 15 into force on February 29, 2016 with a leap into groundwater regulation. With the dubious honour of being among the last, if not the last, jurisdiction in North America to regulate the entire hydrological cycle of connected surface and groundwater, the Water Sustainability Regulation, BC Reg 36/2016 requires the existing 20,000 nondomestic groundwater users to apply for an authorization to divert and use groundwater from an aquifer by March 1, 2019 (with those applying before March 1,

2017 exempted from paying the application fee). Applicants are required to provide evidence of date of first use of groundwater. Licences will impose the priority of the licence based on that date, as well as other conditions of use such as maximum diversion volume per year and seasonal restrictions. This means that groundwater licences will be backdated and fit into the existing firstin-time, first-in-right surface water licence priority system where older licences take precedence over newer licences when water is scarce. Existing groundwater users who apply after March 1, 2019 will lose their seniority and be treated as an applicant applying for a new use of water. Most groundwater licences are subject to the same fees and rentals as surface water licences, and accrue for existing groundwater users from March 1, 2016. Domestic groundwater users can register their wells to create a record of water use in anticipation of requirements to obtain a licence in the future. Undoubtedly, implementing groundwater regulation is a mammoth task and well overdue in BC. Many legal questions remain about assigning priority for groundwater licences over a threeyear period in light of unknown

total aquifer capacity for water extractions when all diversions will not be known until February 28, 2019. This approach also makes it challenging for First Nations to assess impacts on their aboriginal rights. Most startling is the late 2015 Environmental Appeal Board decision of Chief Sharleen Gale and Fort Nelson First Nation v Assistant Regional Water Manager 2012-WAT013(c) that criticized the methodology and information used by provincial staff in issuing a water licence on a shallow lake system. The panel members concluded that the licence permitted water diversion that was not “… supported in scientific precedent, appropriate modeling or adequate field data” (at para 337). Although judging a surface water licence, there is similar lack of data for many aquifers in BC, which creates additional uncertainty in the groundwater licencing process. For lawyers advising clients about water issues, other regulations in force under the WSA are the Water Sustainability Fees, Rentals and Charges Tariffs Regulation (doubling most annual water rents), the Groundwater Protection Regulation (regulating the drilling, operating and decommissioning of wells), and the Dam Safety Regulation (mandating the classification and monitoring of dams based on the severity of consequence of dam failure).

Deborah Curran is a Hakai Professor in Environmental Law and Sustainability and Acting Executive Director, Environmental Law Centre, Faculty of Law University of Victoria. AUGUST 2016 / BARTALK 13

feature KRISTA ROBERSTON

A New Deal

First Nation Accommodation Agreements and Environmental Protection

or at least the past decade, accommodation agreements between First Nations and natural resource project proponents have become standard. While their terms are typically confidential, many people are aware that they feature project benefit sharing mechanisms such as revenue sharing, priority employment and contract opportunities for First Nations affected by a project. However, they also commonly feature a broad range of enhanced environmental protection measures. Because of their progressive and creative environmental terms, this body of private agreements constitutes a new level of environmental management beyond provincial and federal regulatory regimes. Many accommodation agreements directly integrate indigenous ecological knowledge into day-today project management. Often this is achieved by conducting traditional knowledge studies at the outset of a project, which establish a baseline for protection of key environmental values and the sustainability of traditional activities such as hunting, fishing, trapping and plant harvesting. Many agreements also provide First Nation representatives with ongoing access to project sites and project information, facilitating their input into operational decisions and ensuring that projects do not cause impacts beyond those that are expected and permitted. Terms establishing First Nation

14 BARTALK / AUGUST 2016

environmental monitors for the life of a project are common as a means to reduce the environmental uncertainties of resource development. Establishing forums for sharing both project information and indigenous ecological knowledge allow the parties to develop more effective environmental mitigation measures. Accommodation agreements may include an environmental management committee as a formal mechanism for First Nation participation in environmental decision making and a more holistic approach to environmental protection. A good agreement will also include tailored dispute resolution provisions. For example, some agreements provide for independent scientific studies of potential project impacts that may become the subject of concern or disagreement. Agreement terms may stipulate that the parties will abide by the recommendations of such studies within a reasonable cost range. Other unique environmental provisions in accommodation agreements include those establishing that compliance with environmental regulations is a contractually enforceable term. This feature provides First Nations who have a significant stake in environmental protection with additional recourse beyond federal and

provincial regulatory compliance regimes if project operators fail to meet legislated standards. In addition, some agreements contain special provisions for compensating First Nation members who are adversely impacted by unforeseen environmental impacts or accidents; for example, establishing a harvesting compensation board empowered to award damages to individual harvesters for lost hunting or trapping income due to project operations or accidents. Many agreements contain terms that project operations will exceed regulatory standards to ensure that traditional ecological and cultural values are not compromised by development. Examples include enhanced water quality standards in sensitive areas, or special protections for plant and animal species of particular importance to a First Nation, such as medicinal plants that are not otherwise subject to regulation. In this way, accommodation agreements offer a more localized and refined layer of environmental management. Environmental protection measures common to many accommodation agreements benefit not only First Nations whose rights and interests are affected by a project. They contribute to better environmental management, the protection of biodiversity and the sustainability of natural resource development for the benefit of all. Krista Robertson practises Aboriginal Law at JFK Law Corporation in Victoria. She advises First Nation governments on natural resources matters.

feature VIVEK WARRIER

Ambiguity and Uncertainty in BC’s LNG Industry Proponents face numerous challenges

nce heralded as a boon to British Columbia’s economy, the future of the province’s nascent Liquefied Natural Gas (“LNG”) industry is now far from certain. While there has been incremental progress, lengthy and ambiguous regulatory processes as well as prevailing market forces and stakeholder opposition have delayed final investment decisions. One of the main factors discouraging investment in LNG is its price. In Japan, LNG prices dropped from more than US $18 per thousand cubic feet in March 2014 to US $7.50 per thousand cubic feet at the end of 2015.1 Low spot prices pose the biggest threat to the negotiation of long-term offtake agreements essential for the construction of export facilities.2 Demand for LNG has also weakened amidst a global supply glut. Exports to key markets in Asia are falling at a time when 140 million tonnes per annum of new LNG capacity is being built on top of the 250 million tonnes per annum already on stream.3 Development of half of North America’s planned export capacity may keep the Asian market oversupplied through 2025.4 Furthermore, the International Energy Agency recently lowered its global demand forecast for heating and power plant fuel by 5%.5

As a result of these unfavourable market conditions, Altagas Ltd. announced in February 2016 that it was halting further development of its Douglas Channel LNG project.6 Similarly, Royal Dutch Shell PLC recently postponed a final investment decision on its LNG Canada project until the end of 2016, effectively signaling a shift away from investment in LNG.7 Regulatory uncertainty has also delayed LNG investment. In January 2016, the federal government announced a new interim regulatory approach for energy projects guided by, most notably, the consultation of Indigenous peoples and assessment of upstream greenhouse gas emissions.8 While further details have not been forthcoming, additional regulatory hurdles are expected to be put in place outside of current quasi-judicial processes. The Liberal government has since commenced a comprehensive review of several key regulatory regimes, with Panel Recommendation Reports for the Canadian Environmental Assessment Act, 2012 and National Energy Board not expected until January 2017.9 Amidst this uncertainty, the Canadian Environmental Assessment Agency began a final 90-day review of the Pacific Northwest

LNG project in June 2016 with a decision anticipated in September 2016.10 The Trudeau government has faced increasing pressure from environmentalists and Indigenous groups concerned about threats to juvenile salmon populations and Canada’s international emissions obligations.11 It is unclear if or how these interim regulatory measures will be used to address these concerns and arrive at a final decision on this project. Despite this turbulent economic and regulatory environment, the federal government approved Woodfibre LNG in March 2016, effectively concluding the project’s environmental assessment process.12 The Squamish First Nation has also conditionally approved the project.13 The Woodfibre consortium plans to make a final investment decision by the end of 2016 and has secured a long-term LNG offtake agreement with Guangzhou Gas Group Co.14 In light of prevailing market forces, an uncertain regulatory environment, and continued stakeholder opposition, it is likely that final investment decisions for many BC LNG projects will continue to be delayed. However, Woodfibre LNG demonstrates that success is possible. The pace of development may increase with changes in the international market or regulatory conditions going forward. Vivek Warrier, Partner, Head of Oil & Gas, Bennett Jones LLP. Click on footnote numbers above for more information.

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AUGUST 2016 / BARTALK 15

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feature YUN LI-REILLY AND DANA-LYN MACKENZIE

Recruiting and Engaging Indigenous Lawyers In mainstream legal careers

his issue of BarTalk focuses on natural resources and environmental law. It is impossible to discuss these topics in BC without considering their impact on Indigenous peoples. In the foreseeable future, Aboriginal law will play an increasingly substantial role in shaping the milieu of our legal community. Yet our profession sees few Indigenous leaders and legal advocates. Why? One reason for this is the challenge of recruiting and retaining Indigenous lawyers in mainstream law firm positions. So how can we promote the inclusion of Indigenous and other underrepresented groups? RECRUITMENT

Many Canadian law schools have special recruitment and admission programs for Indigenous students. For example, the Peter A. Allard School of Law at UBC sets aside twenty Indigenous seats annually, and is thought to have the largest Indigenous law student body in Canada. While some employers have established policies guaranteeing positions for Indigenous law graduates, there still appears to be incongruence between the number of Indigenous law graduates and their representation in traditional law jobs. These individuals’ life experiences and ability to connect with particular client groups are tremendously valuable to employers. Therefore, recruitment events held at law schools and 18 BARTALK / AUGUST 2016

in the offices of potential employers should incorporate the consideration of these values. ONGOING INCLUSION

The recruitment of Indigenous individuals is only half the story when it comes to the engagement and retention of these groups in law schools and mainstream law jobs. In many law schools in New Zealand, a major part of the mandatory first-year law curriculum is dedicated to Indigenous legal issues. Canadian law schools should look to the New Zealand example to engage both Indigenous and general population students in Aboriginal law. Since 2012, Allard Law has incorporated a Section 35 foundational course focused on Aboriginal rights and treaty cases into the first year Constitutional Law curriculum. To expose more future lawyers to Indigenous legal issues, law professors and lecturers in all areas should attempt to include in their coursework the consideration of the impact of their area of law on First Nations, Métis and Inuit individuals or groups. Similarly, law firms that run internal continued legal education series should include modules regarding Aboriginal law and clients, as well as other minority groups whose interests are often debated

before our courts. Indigenous legal issues are not limited to constitutional law. Matrimonial property on reserve, First Nations wills and estates, criminal sentencing, aboriginal taxation issues and child protection issues are just a few of the practice areas where lawyers are required to have a broader understanding of Indigenous communities. Resource and energy sectors are already recognizing the importance of Indigenous knowledge and cultural competencies, and making changes accordingly. The legal profession would do well to follow.

Finally, we need to adapt our schema of the Indigenous lawyer. Law schools and employers can do much to involve more Indigenous individuals in management and senior roles in their organizations. Fostering partner-level minority lawyers – Indigenous and otherwise – would enrich firm diversity and culture. In addition, those entities that connect us as a community – such as legal societies, associations and publications – should endeavour to serve as messengers of inclusion, enablers of change, and conduits of opportunity. Yun Li-Reilly is a litigation associate at Farris, Vaughan Wills & Murphy LLP and a law lecturer at SFU. Dana-Lyn Mackenzie is a lawyer, a Hwlitsum First Nation member and the Associate Director for the Indigenous Legal Studies Program at Allard School of Law, UBC.

feature CHRIS TOLLEFSON

Rebuilding Federal Environmental Assessment

Why CEAA, 2012 is a tear-down not a reno

he Trudeau government has recently announced a sweeping review process that could culminate in what has been described as “the most fundamental transformation of federal environmental law in a generation.” This review, among other things, will determine the fate of the controversial law that currently governs federal environmental assessments, known as the Canadian Environmental Assessment Act, 2012 (“CEAA, 2012”). Environmental assessment (EA) laws are intended to generate information about proposed future projects in order to support prudent decision-making by elected officials. EA laws are also an important way for the public to be heard, and for proposed projects to earn social licence. CEAA, 2012 has few friends. Designed by the Harper government to expedite the approval of major new resource development projects, even key industry insiders admit it has been a spectacular failure. Instead of making our assessment process more efficient and effective, it has done the opposite. A key reason for this is that CEAA, 2012 has lost the trust of Canadians, and its capacity to generate social licence. It is also a regime that has failed to articulate, let alone discharge, the constitutional duty of the Crown to deal honourably with Indigenous peoples.

But the reasons that CEAA, 2012 is a tear-down not a renovation project go much deeper. Regulatory independence and expertise. CEAA, 2012 gave exclusive jurisdiction to the National Energy Board (NEB) to conduct EAs of pipelines and other major energy projects. This is a daunting task for which the NEB was neither designed nor equipped. There is also a strong and growing appetite to wean federal EAs off the heavy reliance they place on the science provided by project proponents. Confirming the right of cross-examination where the science is conflicting, and creating an independent federal science officer would be steps in the right direction. The need for a new approach to EA. Our current EA system is primarily focused on identifying whether proposed projects will cause “significant” adverse environmental effects. This approach is misguided. Large, controversial projects should not be able to secure approval simply because the proponent’s scientists manage to persuade federal regulators that the predicted effects of their project satisfy this ill-defined significance test. Future assessments should instead ask: will this project make a net contribution to our sustainability as a nation?

The need for a federal and provincial leadership. A defining feature of CEAA, 2012 was how it enabled both the feds and provinces to “sub in” for each other, ostensibly to harmonize overlapping assessment processes. When it comes to major projects, such substitutions raise serious trust and transparency issues; and, as the BC Supreme Court has recently held, they can also be unlawful. A next generation EA regime should encourage mutual cooperation and integration, and eschew delegation of key environmental assessment duties. Paris. Perhaps the biggest single reason why CEAA, 2012 is now completely outmoded is Canada’s new international commitments under the Paris climate agreement. If we are to chart a realistic path toward complying with our Paris commitments, credible and independent climate analyses must become a central feature of a next generation federal EA process. There are many more reasons why it is both prudent and necessary to scrap CEAA, 2012. Canada needs to make room for new ideas, perspectives and processes that can bring us together. CEAA, 2012 did the opposite. Paradoxically, the discontent and appetite for change that it has generated may have created precisely the right conditions for the once-in-a-generation lawmaking opportunity that lies ahead. Professor Tollefson has extensive experience in federal EA and is Executive Director of Canada’s newest public interest environmental law organization: the Pacific Centre for Environmental Law and Litigation (“CELL”): pacificcell.ca. AUGUST 2016 / BARTALK 19

feature LESLEY FOX

Legislation and Enforcement Needed For Canada’s Fur Trade

egulations give a society a sense of security: the government is watching out for their best interests with a group of rules that protect them. But sometimes regulations just give a false sense of security – and that’s certainly the case with the modern fur industry and the more than 3,000,000 animals they kill each year in Canada. Whether it’s the archaic use of traps or industrialized fur farms, profit and ease for workers comes long before animal welfare. Fur trapping is provincially regulated, focused primarily on maintaining a population large enough to act as a sustainable resource, rather than the treatment or quality of life for the individual animals used. Methods of trapping have changed little in the last century, and only when public outrage pushes governments into perfunctory policy changes, or out of convenience for trappers. Even an apparent increase in companion animals like dogs or cats being trapped regularly has not resulted in significant changes to these regulations. Since most trapping occurs in areas not frequented by people, enforcement or even ensuring that regulations are followed, is near impossible. So-called “humane trapping standards” were born out of a trade agreement, and still allow for

20 BARTALK / AUGUST 2016

catastrophic failure rates of 20% – including gouged eyes, fractured bones, organ damage, or severe infection in one out of every five trapped animals. Fur farms are also regulated provincially, but fail to protect

individual animals. Some laws do exist, and a voluntary code of practices has been written, but enforcement of laws and the testing of them in court is virtually unheard of. Additionally, the animals raised for fur are predatory animals, not long-domesticated prey species, making their confinement particularly difficult for their psyche and physiology. Mink, the most heavily farmed fur-bearer, would spend more than 60% of their time in the wild in water, hunting and playing. In a fur farm, they only have access to drinking water – typically from a small pipe or shallow bowl. Footage obtained from within Canadian fur farms has shown deplorable conditions, with mink

and fox trapped in their own waste, showing signs of physical and psychological trauma, and even consuming their deceased cage mates. Despite clear, documented cases of neglect, law enforcement officials have limited power to inspect fur farms – and few tested cases to show that prosecution is possible. Unlike American, European or Australian industries, the Canadian fur industry has, in the past, blocked the passage of legislation prohibiting the import of dog and cat fur from Asian countries. Addi-

tionally, Canadian fur promoters have successfully used terms like “green” or “humane” – those that sound legal, but are simply marketing terms – without intervention from oversight bodies, who in other nations have prevented such terms from being applied to fur products. The world is showing that fur isn’t a commodity they’re willing to ignore cruelty for, as pelt prices continue to fall in a decreasing market. But the animals suffering in Canada still need support – and the time has never been better for the legal community to step up.

Lesley Fox, Executive Director for The Association for the Protection of Fur-Bearing Animals.

feature TIM DICKSON

Update on the Northern Gateway Pipeline First Nations sparked litigation

he controversial Northern Gateway pipeline project – which would carry diluted bitumen from Alberta to Kitimat, BC, from where it would be shipped through coastal waters and out into the Pacific – sparked litigation by a number of First Nations and environmental groups. In two important recent cases, First Nations have succeeded in their arguments that the provincial and federal governments could not so extensively rely on the National Energy Board (“NEB”) to satisfy the Crown’s duty to consult and accommodate affected First Nations. In Coastal First Nations v British Columbia (Environment), 2016 BCSC 34, the petitioners challenged the Province of British Columbia’s (the “Province”) abandonment of its powers under the Environmental Assessment Act (the “EAA”) to regulate aspects of the pipeline project – a project the province later vigorously opposed before the Joint Review Panel (“JRP”), which included the NEB. The provincial Environment Minister and the NEB had signed an “equivalency agreement” to the effect that, where the NEB would conduct an environmental assessment of a project within its jurisdiction, the Province would not make its own decision as to the terms and conditions on which the project could proceed.

Accepting the arguments of the First Nations petitioners, the court held that the Province did not have the statutory authority to give up its decision-making function and that the Province breached the honour of the Crown when it later failed to consult with First Nations on whether it should terminate the agreement and regain its regulatory powers. The court rejected Northern Gateway’s argument that, because the project is an interprovincial pipeline, it is an exclusive federal enclave over which the Province has no regulatory powers at all. The court held instead that, while the Province could not constitutionally block the project from proceeding, it could legitimately add regulatory requirements to mitigate the pipeline’s risks to the environment and First Nations. In the second recent decision – Gitxaala Nation v Canada, 2016 FCA 187 – the Federal Court of Appeal set aside the federal approval for the project on the basis that the federal Crown had failed to satisfy its constitutional duty to consult and accommodate. That approval was made on the basis of a long adversarial hearing before the JRP, followed by a brief period of direct consultation by the Crown. The court did

not find serious defects in the JRP process, but it did hold that the Crown too greatly relied on that quasi-judicial process in making its decision and did not sufficiently engage in direct consultation with affected First Nations. The court quashed the federal approval as a result. These judgments will obviously have direct impacts on the Northern Gateway project. The Province has already announced its own review process, and the federal government will need to reconsider whether the project should be approved. The prospects of Northern Gateway proceeding now appear considerably dimmer, as both the federal Liberals and the BC Liberals have opposed the project. The judgments will also affect another proposed interprovincial oil pipeline – the Trans Mountain Expansion Project. The Province will need to make its own environmental assessment decision with respect to that project, and the federal government will need to engage in far more direct consultation with First Nations than it did regarding Northern Gateway. Narrowly, these judgments reveal limits on the Crown’s ability to rely on independent regulatory processes to satisfy its duty to consult. But more broadly, they further demonstrate the centrality of First Nations in decision making over their territories.

Tim Dickson is a partner at Farris LLP. He was co-counsel for the petitioners in the Coastal First Nations case. AUGUST 2016 / BARTALK 21

news&events NATIONAL NEWS

Immigration: Making Better Use of Designated Representatives The CBA is in the midst of ongoing discussions with the Immigration and Refugee Board of Canada (“IRB”) regarding suggested changes in use of Designated Representatives for children and vulnerable persons under the Immigration and Refugee Protection Act. The CBA states that the IRB is headed in the right direction to improve the protection of children and others with disabilities, who are unable to appreciate the nature of the proceedings. EVENT RECAP

Battle of the Bar Bands The 15th Annual Battle of the Bar Bands took place in front of a packed house at the Commodore Ballroom on June 10 and raised almost $130,000 for the CBABC Benevolent Society. Standard of Hair walked away victorious at the end of the night, followed by Still Living at Home and Sidebar.

EVENT RECAP

Whitecaps & CBABC A small but enthusiastic group of CBABC members and friends kicked off the first Whitecaps partnership event on May 11. The evening’s fun started in the BC Sports Hall of Fame with a private reception. The group took to their seats to cheer on the Whitecaps FC Pre-match reception at the BC Sports Hall in a thrilling 2-1 victory over of Fame. Chicago Fire, including a highlight reel goal that had the crowd roaring in delight. Stay tuned for the next CBABC/Whitecaps evening! Thank you to sponsors: Quidni Estate Winery and Off the Rail Brewery.

22 BARTALK / AUGUST 2016

WHAT ARE YOUR TOP FIVE’S? Tom Do chimes in with his top five:

TOM’S TOP FIVE LAW T.V. SERIES: 1. The Paper Chase (not the movie) 2. L.A. Law 3. Street Legal 4. The Good Wife 5. Law & Order Send bartalk@cbabc.org your top five list(s) e.g. top five authors, law songs, productivity apps, management apps, etc. and we will publish them in an upcoming issue.

2016 PROVINCIAL COUNCIL AWARDS President’s Medal

L-R: CBABC President Jennifer Chow with President’s Medal winner Aleem Bharmal, Sandi Johnson, and The Honourable Suzanne Anton, QC.

Innovative Workplace Award

R-L: CBABC President Jennifer Chow presents the Innovative Workplace Award to Thomas Spraggs of Spraggs & Co., Coquitlam.

BC’s LEGAL HISTORY

by Hamar Foster, QC

LOOKING BACK I: LAW BEFORE THE LAWYERS As this is supposed to be the first of a series of short columns on BC’s legal history, it seems only right to start with how the legal regimes already in place allocated resources and resolved disputes. On the coast, fur traders found societies in which the attitude toward land was not unlike English law before it was transformed by market pressures. It was not a commodity to be bought and sold but an inheritance that descended through the generations. As for resources generally, Captain Cook got it right. He said that he had never seen people “who had such high notions of everything the Country produced being their exclusive property.” As for dispute resolution, Judge Begbie once remarked, quite rightly, that it had much in common with Anglo-Saxon procedures. English and European law came to distinguish between civil and criminal liability, with the latter based upon intent, individual responsibility and punishment. But Indigenous law, like that of the Anglo-Saxons, did not distinguish liability, and retained the more ancient focus upon causation, collective responsibility and compensation. Thus, for example, whereas the common law abandoned the notion of liability for accidental death centuries ago, insisting on either intention or negligence, in Indigenous law causation is what mattered. And if adequate compensation for the accident was not forthcoming – which it usually was – the kin of the deceased could insist that the killer’s life, or that of a member of his kin group, be forfeit. As a prominent lawyer, speaking of Indigenous law, reported to the government in 1873: “Indians in their tribal condition have established almost universally a system of recompense for… offences.” Further reading: “The Queen’s Law is Better than Yours,” in Vol. V of Essays in the History of Canadian Law (Toronto 1994) @ 41-111 and “One Good Thing” in The Advocates’ Quarterly, Vol. 37, No.1 (2010) @ 66-86.

Harry Rankin, QC Pro Bono Award

L-R: CBABC President Jennifer Chow presents the Harry Rankin, QC Pro Bono Award to Sheila Tucker.

Community Service Award

Equality & Diversity Award

L-R: CBABC President Jennifer Chow presents the Community Service Award to Kevin MacDonald.

L-R: CBABC President Jennifer Chow presents the Equality & Diversity Award to The Honourable Donna Martinson, QC. AUGUST 2016 / BARTALK 23

news&events NEWS

CBABC Women Lawyers Forum News Come be a part of the CBABC WLF’s Ovarian Cancer Canada Walk of Hope team. The Vancouver Walk of Hope will be held at Queen Elizabeth Park on SEPTEMBER 11, 2016. Funds raised will help Ovarian Cancer Canada carry out initiatives, including research funding, awareness and education, and support for families affected by ovarian cancer. Joining our team is simple – all you have to do is follow this link: Team “BC Women Lawyers Forum” and click “Join Team.” If you are unable to participate in the walk, you may also use this link to become a virtual walker or donate to support the CBABC WLF team. We hope you will support the CBABC WLF in these efforts. Please share this message with your colleagues and friends – together we can make a difference!

NEWS

CLEBC Update CLEBC ONLINE SUBSCRIPTIONS CLEBC Webinar Archive A repository of video or audio recordings from most of CLEBC’s past courses, CLEBC’s Webinar Archive provides easy access to the individual topics from hundreds of courses covering more than 30 practice areas. Each module contains many PowerPoint slides and provides access to downloadable course materials and handouts.

24 BARTALK / AUGUST 2016

NATIONAL NEWS

The Pitch: Where Startups State Their Case Where: 2016 CBA Legal Conference, Ottawa When: Friday, August 12, 3:15 p.m. At The Pitch, the first-ever legal innovation startup competition hosted by the Canadian Bar Association and LegalX, each startup will get 12 minutes to seal the deal: seven minutes to present their ideas, plus five minutes of questions from the panel of judges. And it will all take place in front of a live audience of professionals from the legal and startup industries – as well as potential partners and investors. The five finalists chosen will be guaranteed an interview with the Chinese Angels Mentor Program (CAMP) where, if selected (and pending due diligence), they will receive an equity investment of no less than $200,000. Participation in LegalX comes with mentorship and introductions to the kind of people startups need to know. Find out more

More than 300 new modules are added each year! Case Digest Connection Timely, convenient, and easy to use, the Case Digest Connection (“CDC”) service provides digests of cases from the BC superior courts, selected Provincial Court decisions, and Supreme Court of Canada cases that originated in BC. In the CDC Archive, you can search or browse through all cases digested since January 1996. You also get access to our CDC Email Service, which provides the most recently digested cases electronically in a weekly or, in some practice areas, monthly issue.

Online Precedent Collection Benefit from hundreds of CLEBC forms and precedents covering a broad range of practice areas. Find a form or precedent quickly and easily through keyword searching or browsing. Each form and precedent contains a short description to provide guidance on using the form or precedent and is easily downloadable and regularly updated. For more information, contact CLEBC Customer Service at cle.bc.ca.

BC LEGISLATIVE UPDATE

ACTS IN FORCE

Current from May 7, 2016 up to and including June 21, 2016 The full version of Legislative Update is now only published online and is available exclusively to CBA members at cbabc.org. BUDGET MEASURES IMPLEMENTATION ACT, 2016, S.B.C. 2016, C. 3 (BILL 10) Section 56 is in force June 10, 2016 BUILDING ACT, S.B.C. 2015, C. 2 (BILL 3) Sections 31 to 34 are in force June 10, 2016 INFORMATION MANAGEMENT ACT, S.B.C. 2015, C. 27 (BILL 5) Act, except sections 9, 19(4)(a) and 23, is in force May 10, 2016 PRIVATE TRAINING ACT, S.B.C. 2015, C. 5 (BILL 7) Act, except sections 83 and 86 to 89, is in force September 1, 2016 TOBACCO CONTROL AMENDMENT ACT, 2015, S.B.C. 2015, C. 11 (BILL 14) Act is in force Sept. 1, 2016

survey

BRANCH & BAR

Calendar

JULY

31 ”Lawyers with Pride” – 2016 Pride Parade — Vancouver

AUGUST

12-14 CBA Legal Conference — Ottawa, ON 30 CBABC PD Webinar: New Law, New Issues: End of Life Planning in a Changing Legal Landscape

SEPTEMBER 17 Provincial Council Meeting — Richmond 21 CBABC PD Webinar: Section 5 of the Building Act: Building A Better BC – Don’t Miss the Deadlines! AWARD NOMINATIONS

CBABC MENTORSHIP PROGRAM

Georges A. Goyer, QC Memorial Award for Distinguished Service

Calling All Lawyers: Be a Mentor

Nominations are currently being accepted for the 2016 Georges A. Goyer, QC Memorial Award for Distinguished Service. This CBABC award recognizes the exceptional contributions and/or achievements by any resident of BC to the legal profession in British Columbia.

This is your chance to shape the future. Your feedback. Your BarTalk. Click here to begin

Deadline is 4:30 p.m. Friday, September 30, 2016 For details visit cbabc.org

CBABC is actively recruiting enthusiastic lawyers to join an exceptional roster of colleagues to lead new law students, as well as women and Aboriginal lawyers through the maze of legal life. Give the gift of your experience and sign up to get involved in one of these rewarding programs. Volunteers are needed now for the student mentorship programs this fall at Peter A. Allard School of Law, UBC and the Faculties of Law at UVic and TRU. Check out other opportunities with the CBABC Women Lawyers Forum and the CBABC Aboriginal Lawyers Forum. Sign up today at cbabc.org/mentorship

AUGUST 2016 / BARTALK 25

news&events CBA NATIONAL

Check out these articles from the National magazine: The Legal Implications of Brexit Arbitration in the Aftermath of the Brexit Vote A Basic Right: A once radical idea to guarantee citizens an income has practically gone mainstream Escaping the Golden Handcuffs: How to curb lifestyle inflation

TIPS FROM

For this issue, Courthouse Libraries BC consulted the expertise of West Coast Environmental Law (WCEL) to highlight and identify noteworthy resources for practitioners working in natural resource and environmental law.

ALPHEUS GROUP’S DAILY WATCH Managed by Alpheus Group, the Daily Watch is an excellent and concise resource for staying on top of federal Parliamentary affairs. Practitioners can subscribe to the blog and get daily email summaries of the day’s legislative agenda and snapshot of what’s to come in the week ahead. The blog covers matters debated and considered in the House, across committees, and any Bill activity. The tool is invaluable for tracking a committee’s progress on a Bill moving through Parliament, and for staying current with developments in committees. More importantly, it covers all federal Parliamentary matters, which means it is an invaluable resource to more than just environmental lawyers. (alpheusgroup.ca)

MAJOR CHANGES TO ENVIRONMENTAL ASSESSMENT LANDSCAPE IN CANADA Earlier this year, the federal government announced it would be begin major review of various pieces of federal environmental legislation. The multi-pronged initiative to revise environmental legislation and processes will include reviews of the Canadian Environmental Assessment Act, 2012 (CEAA), the National Energy Board (NEB), the Fisheries Act and the Navigable Waters Protection Act. Practitioners will want to be watching closely and staying informed either by subscribing to the Canadian Environmental Assessment Agency’s weekly email bulletin or WCEL’s monthly e-briefs or blog alerts. Look out for upcoming event and training opportunities offered through Courthouse Libraries BC and their partner organizations as they monitor and track the review process.

26 BARTALK / AUGUST 2016

LFBC ANNOUNCEMENT

Children’s Lawyer Initiative 2016: Funding Available The Law Foundation of BC (“LFBC”) has designated funds of up to $600,000 for the creation of a Children’s Lawyer’s Office for British Columbia. This fund has been made possible by grants from the: Law Foundation Strategic Initiatives Fund; Law Foundation Child Welfare Fund (from a cy-près award); Representative for Children and Youth; and the Law Society of BC Access to Justice Fund. The initiative is to support a onetime, two-year pilot project to establish a Children’s Lawyer’s Office for British Columbia. The Children’s Lawyer will provide direct legal services to children and youth in BC in the areas of family law and child protection law, with other possible areas, including mental health law, housing, youth criminal justice, employment law, school law, bullying, policing, and other areas of need. Any non-profit organization in BC that can demonstrate they have the background, interests, and capacity to carry out the project in a manner that will meet the stated purpose of this initiative is welcome to apply. The deadline for applications is September 15, 2016 at 5:00 p.m. For more information on the initiative and how to apply, go to the Law Foundation website at lawfoundationbc.org or contact Wayne Robertson or Veenu Saini at 604-688-2337.

grantsapproved LAW FOUNDATION LAW FOUNDATIONOF OFBRITISH BRITISH COLUMBIA COLUMBIA

Outlined below is a list of grants adjudicated at the June 25, 2016 Board of Governors’ meeting. $2,642,000 was approved for 24 continuing programs: $295,000 GREATER VANCOUVER LAW STUDENTS’ LEGAL ADVICE SOCIETY Law Students’ Legal Advice Program $250,000 DISABILITY ALLIANCE BC SOCIETY Advocacy Access Appeals Program & CPP Disability Advocacy Program $230,000 BC BRANCH OF THE CANADIAN BAR ASSOCIATION Dial-A-Law / Lawyer Referral Service / Law Week $175,000 ECOJUSTICE CANADA SOCIETY BC Litigation Program ABBOTSFORD COMMUNITY SERVICES SOCIETY $150,000 – Regional Community Legal Advocacy Program $100,000 – Legal Advocacy Program $150,000 KETTLE FRIENDSHIP SOCIETY Mental Health Legal Advocacy Program $150,000 TOGETHER AGAINST POVERTY SOCIETY Legal Advocacy Programs $110,000 MPA – MOTIVATION, POWER & ACHIEVEMENT SOCIETY Court Services Program $80,000 NELSON CARES SOCIETY Legal Advocacy Program $75,000 for advocacy services at each of the following groups: ACTIVE SUPPORT AGAINST POVERTY CHIMO COMMUNITY SERVICES SOCIETY CONTACT WOMEN’S GROUP SOCIETY FAMILY SERVICES OF GREATER VICTORIA SOCIETY FORT ST. JOHN WOMEN’S RESOURCE SOCIETY KAMLOOPS AND DISTRICT ELIZABETH FRY SOCIETY KI-LOW-NA FRIENDSHIP SOCIETY

MOSAIC NICOLA VALLEY COMMUNITY JUSTICE SERVICES SOCIETY PENTICTON AND AREA ACCESS SOCIETY PORT ALBERNI FRIENDSHIP CENTER $65,000 SOUTH PEACE COMMUNITY RESOURCES SOCIETY Outreach Legal Advocacy $42,000 SOCIAL HEALTH & ECONOMIC DEVELOPMENT SOCIETY OF BELLA COOLA Bella Coola Legal Advocacy Program $20,000 PROVINCIAL COURT OF BRITISH COLUMBIA Judicial Intern Circuit Court Program

$500,000 was approved for 17 projects: $50,000 BC ACCESS TO JUSTICE COMMITTEE Family Initiatives JUSTICE EDUCATION SOCIETY OF BC $50,000 – Schools Curriculum Resources $38,000 – Expanding Schools Programming $45,000 WEST COAST PRISON JUSTICE SOCIETY Prison Mental Health Project $40,000 BC LAW INSTITUTE Medication, Restraints, Informed Consent and Older Adults with Dementia $40,000 PLAN INSTITUTE FOR CITIZENSHIP AND DISABILITY (PLAN INSTITUTE) Wills Trusts and Estate Planning Course $35,000 NICOLA VALLEY COMMUNITY JUSTICE SERVICES SOCIETY Aboriginal Justice Court Training $35,000 FRASER THOMPSON INDIAN SERVICES SOCIETY: NLAKA’PAMUX NATION TRIBAL COUNCIL Involving Indigenous Communities in Child Welfare Matters $30,000 COMMUNITY LEGAL ASSISTANCE SOCIETY Rights Violations in Mental Health Act Detentions $30,000 CRIMINAL DEFENCE ADVOCACY SOCIETY The Effect of Innocence Claims $30,000 PIVOT LEGAL SOCIETY Education for SRO Residents and Advocates $20,000 POVNET SOCIETY Poverty Law Training

$13,000 FORT NELSON COMMUNITY LITERACY SOCIETY Public Legal Education $11,000 PARENT SUPPORT SERVICES OF BC Workshops Kinship Care and Family Law $10,000 PACIFIC LEGAL EDUCATION AND OUTREACH SOCIETY Societies Act Transition $8,000 NIDUS PERSONAL PLANNING RESOURCE CENTRE ASSOCIATION Statutory Property Guardianship

$220,000 was approved for three other grants: $75,000 BC BRANCH OF THE CANADIAN BAR ASSOCIATION Rural Education and Access to Lawyers (REAL) Initiative $75,000 OPPORTUNITIES CAREER SERVICES SOCIETY Poverty Law Advocacy Society $70,000 JUSTICE EDUCATION SOCIETY OF BC Legal Help Phone Services

Legal Research Fund The Law Foundation of British Columbia has established a fund of $100,000 per year to support legal research in British Columbia. The purpose of the fund is to support legal research projects that “advance the knowledge of law, social policy, and the administration of justice.” The maximum amount available for each project is $20,000. To be considered, please submit a Letter of Intent by September 9, 2016 for consideration at the November Law Foundation meeting, by mail, courier, fax or email. For more information about the Fund, please refer to the Law Foundation of BC website at lawfoundationbc.org.

$15,000 UNIVERSITY OF BRITISH COLUMBIA Expanding the LSLAP for Credit Program

AUGUST 2016 / BARTALK 27

professionaldevelopment

WEBSITE: CBAPD.ORG \\EMAIL: PD@CBABC.ORG \\

CBABC Professional Development courses are designed to meet the needs of lawyers while still maintaining the opportunity to network, and advance one’s career, practice and business. We pride ourselves on bringing courses to lawyers that will provide the required professional responsibility and ethics, client care and relations, and practice management components for 2016 Law Society reporting.

Upcoming Webinars

Section 5 of the Building Act: Building A Better BC – Don’t Miss the Deadlines!

New Law, New Issues: End of Life Planning in a Changing Legal Landscape

Date: August 30, 2016 Speakers: Emily Clough, Alexander Holburn Beaudin + Lang LLP; Penny Washington, Bull, Housser & Tupper LLP; Geoffrey White, Clark Wilson LLP Moderator: Meghan Maddigan, Law Society of BC

Date: September 21, 2016 Speakers: Bill Buholzer, Young Anderson, Barristers and Solicitors; and Amber Hieb, Building and Safety Standards Branch, Office of Housing and Construction Standards, Ministry of Natural Gas Development and Minister Responsible for Housing Moderator: Stuart Rennie, Legislation and Law Reform Officer, CBABC

RECAP OF THIS YEAR’S PROFESSIONAL DEVELOPMENT & SECTIONS PARTNERSHIPS Solicitors General Practice – Central Vancouver Island Section – PD Joint Conference February 18, 2016 | Tigh-Na-Mara Resort & Conference Centre, Parksville What our participants say: “Variety of topics with quick practical approach.” “Chance to meet solicitors who practise outside Greater Victoria.” Family Law – Okanagan & Alternative Dispute Resolution – Okanagan Joint Conference February 24-25, 2016 | Big White Ski Resort, Kelowna What our participants say: “Unbelievably expert quality materials and presentation!” “Speakers knowledge of the cases and legislation was extraordinary.” 5th Annual CBABC Aboriginal Lawyers Forum Retreat April 29-30, 2016 | Tigh-Na-Mara Resort & Conference Centre, Parksville

Keynote Speaker: The Honourable Judge Alexander M. D. Wolf, Office of the Chief Judge, Provincial Court of BC

What our participants say: “Wonderful and inspiring day overall.” “Ability to hear different perspectives was most valuable to me.”

Freedom of Information & Privacy Law Professional Development Conference June 2, 2016 | TELUS Garden, Vancouver

Keynote Speaker: Elizabeth Denham, Office of the Information and Privacy Commissioner for BC

What our participants say: “Great content and a great opportunity to ask questions of experts I might not otherwise meet.” “All topics were valuable.” Criminal Justice-Vancouver Section Annual Dinner Event June 15, 2016 | The Law Courts Inn, Vancouver

Keynote Speaker: Adam Foss, Suffolk County District Attorney’s Office (Boston, Massachusetts)

What our participants say: “Most valuable aspects of this event: Networking and honouring retired judges.” “It is an annual event well worth attending.”

28 BARTALK / AUGUST 2016

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info@onpointlaw.com AUGUST 2016 / BARTALK 29

barmoves SPACE IS AT A PREMIUM AND AVAILABLE ON A FIRST-COME FIRST-SERVED BASIS SO SEND YOUR BAR MOVE (MAX. 30 WORDS) AND A HIGH-RESOLUTION PHOTO TO BARTALK@CBABC.ORG NOW.

Who’s Moving Where and When

TO VIEW ALL BAR MOVES GO TO CBABC.ORG/BT/BM_1608.

The Honourable KerryLynne D. Findlay, PC, QC Former Federal Cabinet Minister joins Lindsay Kenney LLP. Ms. Findlay will be a senior advisor in the firm’s Business Law and Litigation groups.

Daniel Bertrand has established a general practice and the office of Central Coast Law Corporation in beautiful Bella Bella on the Central Coast of British Columbia.

Elaine Choi

Natalia V. Tzemis

has joined Synergy Business Lawyers with a focus on Corporate and Commercial Law.

joined Eyford Macaulay Shaw & Padmanabhan LLP as associate counsel. Natalia will be practising in securities litigation, commercial litigation, insurance defence, employment law and administrative law.

Dana F. Hooker

Gerry H. Li

has joined DLA Piper (Canada) LLP’s Vancouver office as associate counsel in the Employment as well as Litigation, Arbitration and Investigations groups.

has joined Koffman Kalef LLP’s Corporate and Commercial group. Gerry articled at Koffman Kalef LLP and was called to the BC Bar on May 24, 2016.

Help create a better future for everyone touched by cancer.

When your client remembers the BC Cancer Foundation in their will, they’ll be supporting world-renowned research in BC that is shaping the future of cancer care. Please be sure to use the full legal name of our organization: BC Cancer Foundation Registration Number: 11881 8434 RR0001 For more information, please contact 604.877.6040 or legacy@bccancer.bc.ca. 1.888.906.2873 I www.bccancerfoundation.com

30 BARTALK / AUGUST 2016

newmembers May & June 2016 Associate Tamara L. Dewar

Victoria

Lawyers Lauren M. Akin

Blake, Cassels & Graydon LLP Vancouver Laura S. Allan

MacLean Law Surrey Rose Chen

Fasken Martineau DuMoulin LLP Vancouver Kaila A. Dotten

Richter Trial Lawyers Vancouver Sean Galloway

Farris, Vaughan, Wills & Murphy LLP Vancouver Sameera Ismail

Vancouver

Helen Kotsaboikidis

ICBC-Claims Legal Services Department Vancouver Kyla M. Lee

Acumen Law Corporation Vancouver Robert J. Logue

Koskie Glavin Gordon Vancouver

Siobhan McConnell

Gowling WLG (Canada) LLP Vancouver

Ryan R. McCracken

Farris, Vaughan, Wills & Murphy LLP Vancouver Alison McMeans

Merrill, Long & Co Nanaimo Rory McMullan

ICBC-Claims Legal Services Department Vancouver Katherine M. McNeill

Articling Students

Law Students

Patrick R. Bobyn

Coquitlam

Pushor Mitchell LLP Kelowna Tommy Chan

Richards Buell Sutton LLP Vancouver Justin A. Dalton

Port Coquitlam Sukhbeer S. Gill

Surrey

Brooke E. Haberstock

Dentons Canada LLP Vancouver

Vernon

Borden Ladner Gervais LLP Vancouver

Nazanin Kohan

Mark Iyengar

North Vancouver

Toronto

Arif S. Nuraney

Granville Law Group Vancouver

Nojan Kamoosi

Alexander G. W. Smith

DLA Piper (Canada) LLP Vancouver Michael M. Stewart

Sabrina Sandhu

Surrey

Blake, Cassels & Graydon LLP Vancouver

J.R. Quin Sheppard

James Suderman

Dentons Canada LLP Vancouver

Fasken Martineau Dumoulin LLP Vancouver

Vancouver

Gabrielle Trahan

Emma C. Vallance

Patrick R. Tucker

Victoria

Farris, Vaughan, Wills & Murphy LLP Vancouver

Jake T. Van Allen

Elizabeth Vranjkovi

Rush Ihas Hardwick LLP Kelowna

Richards Buell Sutton LLP Vancouver

Sharon Wishnowsky

Clark Wilson LLP Vancouver

Ian C. Davis

Mollie Deyong

Rajdeep Malhi Kelsey Marshall

Richmond

Nikita Gush

Jing Ling Wang Slater

Vancouver

Keith Chow

Pushor Mitchell LLP Kelowna

Madelaine M. MacKenzie

Juristes Power Law Vancouver

Amanda Binnie

North Vancouver Stephanie H. Lee

Surrey

Christopher R. Mottershead

Vancouver

Nausheen N. Rayani

Vancouver

Aman Sara

Burnaby

Natalia Sudeyko

Victoria

Braeden Wiens

Vancouver

Elena E. Zubrilova

Vecchio LLP Vancouver

Richards Buell Sutton LLP Vancouver

AUGUST 2016 / BARTALK 31

RETURN REQUESTED TO: The Canadian Bar Association, BC Branch, 10th Floor, 845 Cambie Street, Vancouver, BC V6B 5T3