Hydraulic Fracturing in the Peace PAGE 12

ENVIRONMENTAL LAW | WATER SUSTAINABILITY ACT | SPECIES AT RISK

FEBRUARY 2014 | cbabc.org

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2 BARTALK / FEBRUARY 2014

BARTALK EDITOR Deborah Carfrae

EDITORIAL BOARD CHAIR Michael Welsh

EDITORIAL BOARD MEMBERS Candice Alderson

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David Madani Sarah Nelligan Rose Shawlee

BARTALK SENIOR EDITOR Maureen Cameron

STAFF CONTRIBUTORS

Simon Bursell Judy Cave

Zameena Dadani Tanya Galic Paula LaBrie Stuart Rennie

Karen St. Aubin Jennifer Weber

Judy Yen

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NEWSNEWS

CBABC Staff Give a Helping Hand in the Phillippines

After the typhoon in the Philippines, CBABC staff held a small fundrais-ing drive in the office in support of their colleague Juvy Self’s family. The above photo is of the re-opening of Juvy’s former elementary school on December 2, which benefited from supplies purchased from the contri-butions, and the assistance of re-building efforts by Canadian Forces Disaster Assistance members and local volunteers.

CBABC WLF NEWS

cba.org/cbr

Further information about upcoming CBABC Women Lawyers Forum programs and events

FEBRUARY 2014 / BARTALK 3

ContentsVOLUME 26 / NUMBER 1FEBRUARY 2014

Departments4 FROM THE PRESIDENT Advocacy on Your Behalf by Dean Crawford

5 EXECUTIVE DIRECTOR Is it Getting Hot in Here? by Caroline Nevin

6 PRACTICE TALK Toxic Workplaces by David J. Bilinsky

7 DAVE’S TECH TIPS

8 NOTHING OFFICIAL Welcome to the “Stop the Pipelines” FAQ Page by Tony Wilson

Sections 10 SECTION UPDATE Environmental Law Maritime Law Commercial and Real Estate – Vancouver Island

11 SECTION NEWS Chatter with Chairs – Alison Oxtoby

Features9 LAWYERS WITHOUT BORDERS CANADA by Pierre Rousseau

12 HYDRAULIC FRACTURING IN THE PEACE by Ellen S. Hong and Leslie J. Mackoff

13 B.C.’S NEW WATER SUSTAINABILITY ACT by Andrew Gage

14 LAWYERS SHOULD DEFEND FREEDOM OF INFORMATION by Calvin Sandborn

15 STAND-ALONE SPECIES AT RISK LEGISLATION by Morgan Blakley and Susan Pinkus

16 SAFETY BY DESIGN by Selina Lee-Andersen

17 TROUBLING TRENDS FOR FIRST NATIONS by Karey Brooks and Jeff Langlois

Inside This IssueThis month, BarTalk celebrates its 25th year and two faithful scribes, David and Tony, celebrate 20 and 10 years of columns. It is fitting that this is also the point at which we take a new direction with our online edition. This month’s theme is environmental law, always a topic of interest and controversy, and includes oil transportation, replacing the Water Act, “fracking,” species at risk and concerns about muzzling of scientific freedom of expression. News and Events2 CBABC Staff Give a Helping Hand in the Phillippines CBABC WLF News 18 CBA Mid-Winter Meeting of Council February 22-23, 2014 in Ottawa Conflict of Interest Act Amendments The Whistleblower 19 Labour and Employment Law Amendments Immigration and Refugee Protection Act Amendments Proposed Amendments to Testamentary Trusts Snowden’s Canadian Lawyer Tech Resolutions for 2014 20 Upcoming Professional Development in Your Community CLEBC Update 21 Legislative Update Branch & Bar Calendar BarTalk – Looking Back and Moving Forward 22 Call for Nominations B.C. Law Week is April 2014! Courthouse Libraries BC Tips Also In This Issue11 MEMBER SERVICES23 LAW FOUNDATION OF BRITISH COLUMBIA24 PROFESSIONAL DEVELOPMENT25 DISPLAY ADS26 BAR MOVES27 NEW MEMBERS

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4 BARTALK / FEBRUARY 2014

not have gone to trial had legal aid been available to the lay liti-gant, or in trials that were twice as long as necessary because of the unavailability of a legal aid lawyer.

In respect of the Court Services Branch, Chief Justice Bauman of the Court of Appeal, while he was the Chief Justice of the Supreme Court, noted that the Supreme Court has had courtrooms that cannot proceed because no clerk is available. Also, fewer registry staff are available and there has been a shortage of sheriffs to provide se-curity. This leads to delays for all litigants in a timely resolution of disputes, whether your client is an individual or a corporation wait-ing for court time.

In mid-November, the Standing Committee issued its report. We were delighted that the Commit-tee adopted the CBABC’s submis-sion and recommended that the provincial government:1. Commit to long-term and stable

funding of the Court Services Branch.

2. Incrementally in-crease legal aid funding.An important step,

to be sure, but not the end of the process. As I write this article, the Executive Branch of government is putting the fin-ishing touches on the 2014-2015 budget, which will be introduced on February 18, 2014. At the CBABC, we have been in discus-sions with both the Ministry of Fi-nance and the Ministry of Justice about the budget to try to secure commitments on adequate fund-ing of the justice system. We will all learn on February 18 what the government has decided.

I highlight these activities be-cause, first, it is important that you, our members, are aware that the CBABC is working hard on your behalf to ensure proper fund-ing of the justice system. Second, this is a good example of the ad-vocacy work that the CBABC does on behalf of the profession throughout the year.

Space does not permit me to re-view in detail all of the CBABC’s advocacy initiatives, but I will mention a few.

The Branch continues to engage with government to initiate sev-eral pieces of law reform, as ar-ticulated in the Agenda for Justice

that we published in advance of last year’s provincial election.

Our Legislation and Law Reform Commit-tee reviews legislation already proposed by the provincial gov-ernment and provides substantive comment.

Through our Court Services Commit-

tee, we are reviewing the alloca-tion of judicial resources at the Supreme Court level in rural and remote communities to assess the effect this may be having on access to justice.

If you are interested in learning more about the Branch’s advo-cacy initiatives, I encourage you to visit our website at cbabc.org or to contact me directly. We are a member-driven organization and your feedback and sugges-tions for advocacy initiatives is always appreciated.

Dean Crawford president@cbabc.org

Twitter: @deancrawfordvan

FROM THE PRESIDENTDEAN CRAWFORD

Advocacy on Your Behalf Standing Committee adopted CBABC’s recommendations

Last September, on behalf of the CBABC, I made a presen-tation to the Select Standing Committee on Finance and Government Services as part of its annual budget consulta-tions. (Click here for the full presentation.)

In our submission, the CBABC called for incremental in-creases in legal aid funding as well as a government com-mitment to long-term, stable funding of the Court Services

Branch of the Ministry of Justice.There are several sound reasons for these recommenda-

tions. I am sure many of you can relate to them in your own practices. How many family lawyers have been involved with matters where the other party was an unrepresented litigant ineligible for legal aid? I would venture that most family law-yers in the province have been involved in matters that may

FEBRUARY 2014 / BARTALK 5

EXECUTIVE DIRECTORCAROLINE NEVIN

Is it Getting Hot in Here? A profession and practice in transition

Many things we all know instinct-ively: the profession is aging, the proportion of women has in-creased, and more people are choosing careers outside of private practice. Other facts were more surprising: for example, the pro-portion of lawyers in rural versus urban areas has barely changed over the last ten years.

Here are a few highlights:�� The number of lawyers in B.C. who are 60 or older has almost tripled since 2003. The numbers on the younger end of the spec-trum have remained stagnant or declined in each age category.�� The proportion of lawyers aged 65 or older in Kootenay County has grown from 2.5 per cent to 19.7 per cent since 2003. Na-naimo and Cariboo aren’t far behind, at 15.3 per cent and 14.8 per cent. Considering 65 used to be considered retire-ment age, this is extraordinary. �� The proportion of lawyers choos-ing government or corporate pos-itions over private practice has

more than doubled since 1986. Only 78 per cent of the pro-fession is working in private practice now. �� Since 1986, the proportion of the profession that is female has doubled, from 18 per cent to 36 per cent.�� In 2010, half of all B.C. lawyers earned an income of under $107K.On the economic side of things

(and here’s where we start tak-ing the temperature in the pot), growth in the profession in B.C. has more or less kept pace with growth in the general population; 1.8 per cent vs. 1.6 per cent aver-age over the last ten years. So, contrary to some people’s views, we are not actually “over-law-yered” in terms of the number of lawyers per 1000 adults. Growth in the profession has also gener-ally kept pace with growth in our economy (1.8 per cent vs. 1.9 per cent). However, it turns out that neither number is truly relevant to the question of why the economic

temperature is so much “hotter” now. The real number that matters is the dollar value of legal services accounted for in Gross Domestic Product (GDP) – in the last five years, not only has it not kept up with growth in either the profes-sion or the general population, in

B.C. it actually shrunk from $1.69 billion in 2008 to $1.475 bil-lion in 2012. To com-plete our analogy, everything feels hot-ter right now because there are more frogs in a smaller pot.

At a recent meet-ing of law associa-tion executives from

around the world, these facts were consistent across presentations from South Africa, Germany and Washington State, and I saw many nodding heads in the room. There is no question that the CBA and our international sister organiza-tions are challenged to “step up” and be the best possible source of information and support to our members who are working hard to respond to the realities and challenges of practising law today. That is our goal, and I look for-ward to hearing from you at any time about your ideas for how we can help.

When you are in the middle of a relatively slow evolution, it is sometimes difficult to see what’s changing – it takes a clear look back and an unbiased look around to understand what’s really been going on. In the case of the legal profession, demo-graphic, social and economic changes have

occurred that have affected the practice of law and the needs of those within it. Like the proverbial pot of boiling frogs, we don’t know that the water temperature has changed to any signifi-cant degree, we just know that the pot isn’t quite as com-fortable as it was before.

At a recent meeting of the Law Society Benchers, staff pre-sented current statistics on the demographics of the profession.

Caroline Nevin cnevin@cbabc.org

6 BARTALK / FEBRUARY 2014

GO ONLINE FOR MORE INFORMATION

DAVID J. BILINSKY

practicetalkToxic Workplaces Avoiding burnout while staying positive

and certainly on their home life. After a time, some people reach the breaking point and leave their workplace. Others are not so for-tunate and are looking for tips on how to cope with being in such a situation.

The first thing to remember if you are caught in such an office is that you cannot control other people’s behaviour; you can only control how you respond. Passive-aggressiveness, destructive and negative comments, conniving politics, terrible leadership, part-ners that are insensitive to per-sonal boundaries or worse – these are not things that are a reflection of who you are; you are simply caught in the toxic vortex. Here is a collection of tips for coping in a toxic environment:�� You need to stay positive and upbeat. The person you are most able to influence is your-self so don’t allow the toxicity to drag you down.�� Learn from the experience. Every bad situation allows you to grow

as an individual and take home lessons – even if those are about things that you would never repeat. Learn how to apply The Golden Rule – i.e. how to treat

others as you yourself would wish to be treated – as it is a powerful guide to help you grow when you are in such a situation.�� Do the best that you can do. You want to preserve your in-tegrity and your good name. It is no surprise that word gets around in the legal commun-ity and being able to cope in a

bad environment only enhances your reputation, your work eth-ic and your character. �� Create a “thank you” file. While it may perhaps be the thinnest file in the office, a collection of letters and cards that endorse the value of your work could

be the most valuable file in the office. It will grow over time and leafing through the physical embodiment of good wishes and thanks is a personal validation of your own self-worth and assistance to others.�� Get a supportive

network outside of the office. Having someone to talk to about the situation certainly helps and their advice and sup-port can get you through some dark days. Continue to search for a bet-

ter workplace while keeping your shoulders squared and your spirit up. Keep looking for a more posi-tive situation. Remember that no matter what, continue to hold your head high.

r And if it’s badDon’t let it get you down, you can take it...

Hold your head up, oh hold your head high.… r

– Music and Lyrics by R. Argent and C. White, recorded by Steppenwolf

When one thinks of toxic environments, one doesn’t tend to think of law offices as falling into that category. Yet I get calls from partners, associates and staff alike who are having to cope with working in such situations. In some offices matters are dire;

the stress of working in these environments is taking its toll on the person’s health and well-being, on their careers

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

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

Learn how to apply The Golden Rule – i.e. how to treat others as you yourself

would wish to be treated.

FEBRUARY 2014 / BARTALK 7

What online resources are available if you find yourself in a toxic environment?

Here are a selection:

WORKPLACE BULLYING INSTITUTE (WBI) workplacebullying.org “WBI is the first and only U.S. or-ganization dedicated to the eradi-cation of workplace bullying that combines help for individuals, research, books, public educa-tion, training for professionals-unions-employers, legislative advocacy, and consulting solutions for organizations.” It was founded by Drs. Gary & Ruth Namie. They state:

“Workplace Bullying is repeated, health-harming mistreatment of one or more persons (the targets) by one or more perpetra-tors that takes one or more of the following forms:�� Verbal abuse�� Offensive conduct/

behaviors (including nonverbal) which are threatening, humiliating or intimidating.”

This site has wonderful resour-ces for people caught in these situations, including an “action plan,” which includes the great piece of advice: “Have your es-cape route planned….”

THE WORLD OF PSYCHOLOGY bit.ly/1gqacsu The article entitled “When Your Workplace is Toxic” has this bit of advice regarding having a personal renewal program in place. They state:

“We must have a self-care protocol in place that we can employ as a daily guide, while being alert to rational-izations and excuses for not doing it. Not to have such a personal renewal program may court disaster for both our personal and profes-sional lives. It is also, at its core, an act of profound disrespect for the gift of life we have been given.”

THE FUTURE OF CIO bit.ly/19iHavDThe article entitled “Five Characteristics of a Toxic Workplace” states:

“One of the most toxic char-acteristics of workplace, is that of management making

decisions without the con-sideration of the people.”

It goes on and states:“A lack of real support for employees can be an issue: Who do you go to if there’s a problem with your boss or someone in a senior role? Often, there’s an ‘elephant in the room’ that no-one wants to address until the problem begins to spiral. Unhelpful behavior that leads to gen-eral gossip, can very quickly create a toxic environment.”

If you are a leader in a firm that is starting to show signs of toxicity, this website has another good article that speaks about a four step methodology for ana-

lyzing, assessing, and redesigning the culture of an organization in a consistent manner (bit.ly/1d8jjhF).

FORBES MAGAZINE onforb.es/1lZeicqLastly, when it comes time to craft your exit strategy from the toxic workplace, Forbes magazine has an arti-cle online entitled “Five Critical Steps to Finding a Job Fast!” (onforb.es/1lZeicq). It lists such things to consider as

fine tuning your LinkedIn profile as well as checking any publi-cally available information about yourself that may turn up on a Google search.

© 2013 David J. Bilinsky

dave’s techtips

8 BARTALK / FEBRUARY 2014

nothingofficialTONY WILSON

Welcome to the “Stop the Pipelines” FAQ Page The anti-pipeline advocate’s guide to dealing with the media

ture products without oil, blame the government, then mention wind-mills, and hope the interview ends.

You might be asked this question: “Given the horrible safety record of shipping oil by rail, aren’t pipelines much safer?” Say no, and immedi-ately bring up the BP and the Exx-on Valdez spills, which have noth-ing whatsoever to do with pipe-lines, but may use up your valuable interview time. If your time isn’t up yet, bring up windmills and powering cars with garbage using “Mr. Fusion.”

Some interviewers may use “Gotcha Journalism,” asking “do you drive your kids to hockey prac-tice,” “how do you get to work today” or “you look so tanned… where did you just fly in from… Hawaii?” These are tricks so you admit that you still regularly use fossil fuels to drive your car and that you are personally adding to greenhouse gasses. So channel your inner Basil Faulty: “Don’t mention the war.” Tell them you bicycled to the interview, and you bicycle your

kids to hockey prac-tice at 4.30 a.m. in the snow. Tell them you’d gladly take the kids to hockey at 4:30 a.m. using transit, but shift blame to the local and provincial governments for not running electric busses that early or having Skytrain stations that go nonstop from your front door directly to the rink.

You might also be put on the spot by interviewers who have read Ezra Levant’s book “Ethical Oil,” where Levant says that oil from democrat-ic, “Rule of Law” abiding Canada, is more ethical than oil from despot-ic theocracies that torture and mur-der their citizens, oppress women, discriminate against minorities, have non-existent environment-al standards, support terrorism, and don’t follow the Rule of Law. This is an excellent argument, so throw some non-sequiturs around as countermeasures and quick-ly change the topic. Remember when Al Gore spoke in in Toronto and was asked the same question?

He said there is no ethical oil, just dirty and dirtier oil, which is a bogus answer given that he flies everywhere adding to greenhouse gasses, but it’s the only answer we have right now. So stick to that sound bite, or say Canadian oil is worse, and hope the interview ends.

Someone is bound to say that pipeline expan-sion and the sale of tar sands oil to China will lead to more jobs and tax revenue in Canada that will help support healthcare and educa-tion and will give job opportunities to cit-izens of northern B.C. Tell them, with right-

eous indignation, that “China can buy its oil from someone else,” “we don’t need dirty oil money” and that “citizens of Kitimat and Prince Ru-pert are solidly behind us.” “Solid” is a useful, squishy word that can mean anything. Use it a lot.

We all know oil is dirty, so you might be asked about the benefits of Hydro. Under no circumstances should you support the Site C Dam in your interview, so move the topic away from how many TVs, lap-tops, iPhones, microwaves, Xbox’s, toasters and other electronic devices you have in your home. Discuss the damage to fish and wildlife habitat. Bring up windmills again, speak glowingly about “Mr. Fusion,” and hope the interview ends.

Thank you for being “citizen advocates” and lending your voice to help stop the construction of more pipelines to ship Alberta oil to the B.C. coast. We need all of you to be available for radio and TV interviews to challenge the erroneous belief that oil pipelines will protect our stan-dard of living, give badly needed jobs to northerners, help pay for our social services and allow us to keep driv-

ing to work. Here are some helpful hints to help you “stay on message.” Most of you are not engineers or scientists. So what? Even

though you may not have known there’s been a pipeline under your feet since the 1950’s shipping Alberta oil to Burnaby, re-member to stay on message: all pipelines are bad. All oil is bad. All fossil fuels are bad. If the interviewer asks how Canadians will fuel their cars to get to work, or harvest crops, or manufac-

The views expressed herein are strictly those of Tony Wilson and do not reflect the opin-ions of the Law Society of British Columbia, CBABC, or their respective members.

FEBRUARY 2014 / BARTALK 9

guest

Lawyers Without Borders Canada also known under its French acro-nym “Avocats sans frontières” (LWBC –

asfcanada.ca) brings togeth-er hundreds of Canadian lawyers and is supported by provincial and federal gov-ernments, the Quebec Law Society1 and several other institutions of the legal com-munity. Its goal is to foster the rule of law and support human rights lawyers and vulnerable communities in countries where they face enormous challenges.

LWBC is involved with the most vulnerable communities, mostly indigenous, in Colombia, Guate-mala and Haiti. Trial observation is one of the roles played by vol-unteers. As a LWBC volunteer, I participated in two trial observa-tions, one in Colombia (six week trial) and one in Guatemala City (two week trial). In this article I will deal with the Colombia trial observation in Popayán (Cauca).

Edwin Legarda was the hus-band of an important leader of the Nasa people, Aida Quilcué, and while he was driving toward the airport to pick her up in the early morning of December 16, 2008, he was shot and killed at a roadblock set by the Colombian army. Fortunately, the Indigen-ous Guards were first on the scene and the soldiers were corralled

and compelled to wait for the in-vestigators. The Nasa authorities feared that the investigation would be botched and, as is gen-erally the case in Colombia, there

would be no prosecution since impunity is rampant. Yet, seven soldiers were eventually charged with murder and the Nasa and their lawyers (members of the “José Alvear Restrepo” Lawyers’ Collective2) asked us to attend the trial so that the Colombian authorities would be mindful that the international commun-ity was interested in this matter and that due process, particular-ly for the victim’s family, would be followed.

The trial spanned more than six weeks, in two parts, the first in January, continuing in May and June 2010. At times I was by my-self, at other times we were two or three international observers and it was a difficult task since we had to follow proceedings in a language that was for all of us a second language. Fortunately, Colombia

(like Guatemala) switched from a civil law system, inherited from Spanish colonial days in criminal matters, to an oral, adversarial system that is similar to the Can-adian criminal law system and the proceedings were following rules that were very familiar to us. The most striking difference was the presence of the victim’s family as a party, an integral part of the pro-ceedings, along with the prosecu-tor who had the latitude of calling its own witnesses.

Six of the seven soldiers were found guilty of the murder and sentenced to 40 years incarcera-tion and a stiff fine, while one was acquitted. We were not only satis-fied that due process had been fol-lowed but also that the victims’ rights were respected. A report3

was released after the trial, with numerous observations and rec-ommendations. New volunteers are welcome, whether here at home or abroad.

PIERRE ROUSSEAU

Trial observations

Lawyers Without Borders Canada

Pierre Rousseau LL.L., M.A., re-tired lawyer and LWBC volunteer (left front in Popayán), is standing beside Adonia Simpson who was also an international observer for Rights & Democracy Canada with the Indigenous Guards (Guardia Indígena) of the Nasa people, the nation of the victim’s family.

1 Originally founded in Quebec City, most of its members are from that province, hence the involvement of the Quebec Law Society but LWBC wishes to extend its membership across Canada.2 Known in Spanish as “Corporación Colectivo de Abogados José Alvear Restrepo – CCAJAR,” this human rights law firm is a long time partner of LWBC.3 View this report online in French and in Spanish.

10 BARTALK / FEBRUARY 2014

sectionsEnvironmental Law

uOn September 26, 2013, the Environmental Law Section

welcomed John Ward, PhD, a Manager in the Land Remedi-ation Section in the Ministry of Environment. Dr. Ward’s topic focused on possible changes to the contaminated sites legal regime in B.C. The changes would either be in the form of amendments to Parts 4 and 5 of the existing Environmental Management Act (EMA) or the introduction of a new statute to be called the Site Remediation Act, which would replace Parts 4 and 5 of the EMA. Changes being contemplated could include creating the ability for owners to transfer liability for contaminated sites remediation under the EMA to purchasers; removing rarely used provisions such as those for allocation panels and minor contributor liability; streamlining the way site profiles work; simplifying the Contaminat-ed Soil Relocation Agreement re-gime; and clarifying wide area site provisions. For more details on Dr. Ward’s presentation, Section members are encouraged to view the webinar recording (available to members of the Environmental Law Section) which is included with the minutes posted online.

Those interested in making sug-gestions for change to the Con-taminated Site regime in B.C. are encouraged to forward their sug-gestion to Dr. Ward at the B.C. Ministry of Environment.

Maritime Law

u The Maritime Section held its Annual General Meeting and

Dinner at Hy’s Steakhouse on Nov-ember 27, 2013 in Vancouver, B.C.

Commercial and Real Estate Vancouver Island

Meeting in Review: December 5, 2013 Speaker: Jack Basey, QC, DeSouza Arnold LLP Topic: Land Use and Development on B.C. First Nations Land

Environmental Law

Meeting in Review: September 26, 2013 Speaker: John Ward, PhD, Manager, Land Remediation Section, Ministry of Environment Topic: Possible Amendments to the B.C. Contaminated Sites Legal Regime

SECTION UPDATE

Keep Current A review of provincial Section meetings.

Maritime Law

Meeting in Review: November 27, 2013 Speaker: Thomas F. Beasley, Bernard LLP Topic: The Receiver of Wrecks v. Underwater Archeology

FEBRUARY 2014 / BARTALK 11

The Section was honoured to have Federal Court Registry staff and justices from the Federal Court, Court of Appeal, and the British Columbia Court of Appeal attend as their guests.

Guest speaker Thomas F. Beas-ley, Bernard LLP, presented the “Receiver of Wrecks v. Under-water Archaeology – An Ex-ploration of the Murky World of Shipwreck Law and Underwater Archaeology in our ‘Emerald Seas’.” This meeting was very in-formative and well received.

The Section looks forward to hosting the next installment of this fun and informative annual event in November 2014.

Commercial and Real Estate Vancouver Island

u The guest speaker Jack Basey, QC, who served more than 35

years as in-house counsel for lo-cal governments in B.C., Alberta and Ontario, explored the past, present and future of land use and development of B.C. First Nations Land.

Mr. Basey provided a legal background of First Nations Land Governance and Rights, reviewing the Federal Indian Act. He dis-cussed the evolving land govern-ance regimes in B.C. that permit Bands to enjoy more local man-agement over land use and de-velopment. Mr Basey also spoke in detail about the implications for developers, First Nations, and local governments, as First Na-tions lands in B.C. are developed for industrial, commercial and residential uses. Mr. Basey’s pres-entation provided Section mem-bers with an insight to B.C. First Nations Land and concluded with examples and recommendations.

Commercial and Real Estate – Vancouver Island Section aims to provide remote accessibility for future meetings via webinar, encouraging members across the province to attend.

NOT YET ENROLLED IN SECTIONS? Visit the Branch website at cbabc.org and use our online enrolment form!

CHATTER WITH CHAIRS

Alison OxtobyWILLS & TRUSTS OKANAGAN

This year the Vancouver, Victoria and Okanagan Wills & Trusts Sections will be joining together for a relax-ing and informative retreat at the Sparkling Hill Resort in Vernon, B.C. on May 2-4, 2014. Offering CPD hours with more than 10 experienced guest speakers, we plan on mak-ing this a weekend you won’t want to miss. Come prepared for an estates law trivia game and then unwind in the resort’s unique aromather-apy sauna and steam rooms and spa pools (included with your stay). Optional activities will include spa treatments, golf at neighboring Preda-tor Ridge Resort, a tour of local Okanagan wineries, and dinner at one of the winer-ies. Join us for a fun relaxing weekend connecting with other Wills & Trusts practition-ers from across the province. Further details can be found online at cbabc.org!

EMAIL: MEMBERS@CBABC.ORG

memberservices

GO ONLINE FOR MORE INFORMATION

Visit cbabc.org for all activities and promotions. Check the CBABC News & Jobs weekly e-newsletter for seasonal promotions and special offers.

\ Exclusive offer from MERCEDES-BENZ CANADA! Mercedes-Benz Canada is now pleased to offer members of the B.C. Branch of the Canadian Bar Association discounts on the purchase or lease of new Mercedes-Benz and smart vehicles!

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Call 1-888-687-3404 and get information on how to partner with CBABC!

12 BARTALK / FEBRUARY 2014

Over the past decade, the Montney forma-tion in the northeast region of B.C. has established itself as a

hotbed of oil and gas activity and is now home to one of the largest hy-draulic fracturing regions in North America. These activities nega-tively affect private landownership and are one of the issues of gravest concern to First Nations, notwith-standing the government’s consti-tutional duty to consult.

Oil and gas activities on private land in B.C. are governed by the Oil and Gas Activities Act (“OGAA”) and the Petroleum and Natural Gas Act (“PNGA”). The British Col-umbia Oil and Gas Commission (“B.C. OGC”) oversees oil and gas operations, while the Surface Rights Board governs right of entry onto private land. Once an operator ob-tains approval by the B.C. OGC, it can either negotiate a surface rights lease with the landowner or, failing that, apply to the Surface Rights Board for a right of entry order. Right of entry is rarely denied.

The OGAA and PNGA create a quasi-expropriation model that favours industry at the expense of landowners and fails to adequate-ly compensate affected parties for the changes wrought to the land. Landowners are presented with a right of entry order as a fait accom-pli and then are expected to mar-shall evidence to prove the negative financial effects to their lands

and operations. Understandably, they are not in a position of per-petual readiness for a compensation claim. They often lack the financial resources to obtain legal assistance and have difficulty locating appro-priate experts to assist in quantifying their case. As such, the approaches to compen-sation over the years have remained fairly static. The PNGA in-cludes provisions which assist landowners by creating a somewhat more level playing field – the oil and gas oper-ator may be required to pay the landowner’s costs and landowners may be en-titled to advance costs where right of entry has been granted. In cases where landowners have won an ad-vance costs award, the companies have demonstrated their willingness to abandon the right of entry and simply access the deposit by horizon-tally drilling from a neighbouring property whose owner is less aware of or concerned with the effects of gas exploration on their land. The Surface Rights Board rarely awards advance costs and, in fact, to effect-ively obtain such an order may re-quire a substantial expenditure of money simply to prove entitlement.

The current scheme of compen-sation remains inadequate both by reason of the absolute numbers and the restrictive approach to compensation that has thus far

been followed. In the rush to cap-italize on shale gas, productive agricultural lands, millennia-old ways of living, not to mention bil-lions of litres of water, are being sacrificed to heavy industry. More fundamentally, the legislative land-scape fails to address the poten-tially devastating and permanent changes to the air, soil, and water and the as-yet-unknown implica-tions for the health of the residents who call northeastern B.C. home.

In a recent Cabinet Decision Summary Sheet, the recommen-dation was made to subsume the

Agricultural Land Commission into the B.C. OGC. Such a change would devalue large agricultural holdings and pave the way for ex-ploitation of lands previously set aside for the food security of British Columbians. This short-term out-look raises incalculable risks to the environment and human health.

Without a stronger legal frame-work to protect the environment and the peoples of the region from the effects of oil and gas activities, all British Columbians remain vulnerable to profound, funda-mental, and long-term changes to the environment.

ELLEN S. HONG AND LESLIE J. MACKOFF

Ellen S. Hong, Associate, and Leslie J. Mackoff, Senior Partner, repre-sent parties affected by oil and gas operations in the Peace Region.

Hydraulic Fracturing in the Peace Region

features

Who speaks for those affected?

FEBRUARY 2014 / BARTALK 13

British Columbia’s 104-year old Water Act is about to get a long-overdue overhaul. After several rounds

of public consultation, spanning years, the B.C. government has pledged to introduce a new Water Sustainability Act in the spring session of the Legislature. But while the Act has been many years in the making, there are concerns that it does not live up to its name.

While details of the new Act won’t be known until the Bill is introduced, based on the government’s most re-cent consultations, the Act is not ex-pected to fundamentally change the water licensing scheme found in the current Act. Instead, the proposal seeks to address some of the short-comings of the current Act, by:�� extending the licensing scheme to groundwater use (i.e. to wells – currently unregulated). This will be done by retroactively giving licenses to current well owners, based on the date and amount of their historic use of water (except for domestic well users, who will be exempt from the license requirement);�� requiring environmental impact of water use to be considered in new government water alloca-tion decisions; �� making water use subject to min-imum water efficiency standards; �� expanding the ability of the gov-ernment to create, and delegate powers to, local water governance

bodies (the details of which will be developed in future regulations); �� giving government expanded powers to regulate in problem areas through “Water Sustain-ability Plans,” area-based regu-lations and emergency powers for addressing droughts; and�� providing for new enforcement powers in the form of adminis-trative monetary penalties.The proposed Act, by entrenching

and expanding the current “First In Time, First In Right” licensing system, which gives priority to historic uses of water over new uses or environ-mental flows, raises concerns in light of the need to be flexible in address-ing environmental needs, changing public values and changes in water availability due to climate change. Earlier government commitments

had included clear commitments related to sustainability, and West Coast Environmental Law (WCEL) and other environmental organ-izations had hoped that water sus-tainability and the public values as-sociated with water would be more central to the new Act.

In addition, the gov-ernment’s consultations with First Nations to date have been surpris-ingly sparse, and in WCEL’s view a failure to address First Na-tions’ concerns before

the legislation is brought into force could give rise to legal challenges to the Act and decisions made under the Act.

The advances being made here – in terms of regulating ground-water and considering environmental im-pacts – are important ones, but they are modest and long overdue. They bring B.C.’s water laws into line with what are minimum requirements in most other jurisdictions. Unless the final version of the Bill, once un-veiled, includes new and strong addi-tional provisions, it is our view that the Water Sustainability Act will not live up to the promise of its name.

ANDREW GAGE

Andrew Gage, staff lawyer, West Coast Environmental Law. Follow West Coast at @WCELaw or face-book.com/wcelaw.

B.C.’s New Water Sustainability ActWill it be sustainable?

14 BARTALK / FEBRUARY 2014

CALVIN SANDBORN

features

“This is more than an attack on academic freedom. It is an attempt to guarantee public ignorance.” — New York Times editorial on Canada muzzling scientists

“A democracy cannot be both ignor-ant and free.” — Thomas Jefferson

In recent years, Canada has turned its back on the principle that the free flow of informa-tion is the lifeblood of democ-racy. Canada’s access to infor-

mation laws now rank 55th out of 93 countries – well below Yemen and Uganda. Worse, Ottawa is sys-tematically concealing scientific in-formation from the public.

Citizens cannot make wise choices about critical issues like climate change if we are not fully informed about the facts. Yet, re-search by the UVic Environmental Law Clinic demonstrates that Ot-tawa is systematically depriving the public of information about government scientific research – especially when the research raises questions about government poli-cies on oil sands, environmental protection and climate change.

In sharp contrast to past practice, Ottawa has recently made concerted efforts to prevent media from speak-ing frankly to government scientists.

New federal policies routinely re-quire political approval before sci-entists can speak to the media about their scientific findings. For ex-ample, Environment Canada policy

specifically bars scientists from speaking to the public on climate change or protection of polar bear and caribou without Privy Council Office approval.

Government scientists are rou-tinely instructed to not speak public-ly – or to respond with pre-scripted “approved media lines” crafted by PR specialists.

For example, En-vironment Canada scientists at a climate change conference were ordered to not answer journalists’ questions – as was a scientist who published research in Nature about the decline of sock-eye salmon. Similarly, government scientists presenting tar sands pol-lution research at an international conference were instructed to follow a script from the Minister’s office.

A survey of federal scientists recently revealed that nearly half of those surveyed knew of cases where government has suppressed scientific information. And 86 per cent believed that they would face censure or retaliation if they pub-licly shared their concerns about a government decision or action that could harm public health, safety or the environment.

US policies are diametrically dif-ferent. There, government scientists are told it is their duty to inform the public of their research. In Can-ada, scientists doing so can be fired.

The contrast between countries is instructive. A journalist writing about a US-Canada study on snow got all the information he needed from the NASA scientist in a 15 minute call. In Canada, he was shunted to Communications staff who delayed him past his dead-line – and then responded with bizarre “approved media lines” that didn’t address his questions. Most disturbingly, a subsequent access to information request re-vealed that 11 Canadian officials exchanged 50 emails figuring out how to respond – and vetting the

question of whether he was a “positive” reporter or not.

The new policies to muzzle science are troubling. The Su-preme Court of Can-ada has emphasized the importance of ac-cess to information:

“Parliament and the public cannot hope to

call the government to account without an adequate knowledge of what is going on, nor can they hope to participate in the deci-sion-making process and contrib-ute their talents to the formation of policy and legislation if that process is hidden from view.”

Increasingly, Canadian gov-ernments are hiding information from citizens behind a wall of spin doctors, “approved media lines” and rules that muzzle government scientists. As historic defenders of democratic process, lawyers need to address this critical issue.

Calvin Sandborn is the Legal Director of the UVic Environmental Law Clinic. The Clinic’s submission to the federal Information Commissioner on these issues is at elc.uvic.ca.

Lawyers Should Defend Freedom of InformationGovernment scientists muzzled

FEBRUARY 2014 / BARTALK 15

Scientists believe that the planet is experiencing the sixth mass species ex-tinction event to occur in the last half billion years.

This extinction event is being caused by the effects of humans, particularly by habitat destruction and unsustain-able levels of animal harvesting.

Stand-alone species at risk legis-lation is the most focused legal approach to preventing extinction and providing for species recov-ery. Decades of implementation in other jurisdictions show that these laws work. Successful species protection legislation regulates threats to species and their habitat with the goal of achieving species’ survival and recovery.

Canada’s Species at Risk Act (“SARA”) has the structure to enable meaningful protection for species at risk. However, for most species, it provides no mandatory protections on provincial land. In-stead, SARA is designed to work in conjunction with provincial or territorial species at risk legisla-tion, as envisioned in the national Accord for the Protection of Spe-cies at Risk signed in 1996 by the provinces, territories and federal government. Nearly twenty years later, British Columbia is one of the few provinces that still lacks stand-alone species at risk legisla-tion, despite being Canada’s most biologically rich province.

Due to its ecological diversity, British Columbia has an important

responsibility for protecting and re-covering species at risk. It is home to 76 per cent of Canada’s bird species, 70 per cent of Canada’s freshwater fish species, and thousands of other plant and animal species. Unlike many North American jurisdictions, British Columbia still has most large mam-mal species that were present at the time of European colonization.

Yet in contrast to species-specific legisla-tion such as SARA, the United States’ Endan-gered Species Act, or Ontario’s Endangered Species Act, British Columbia relies on a patchwork of legislative provisions in various stat-utes such as the Forest and Range Practices Act (“FRPA”) to manage species at risk. The ineffectiveness of this patchwork is manifest; the B.C. government’s data show that 43 per cent of B.C.’s species are at risk – in total, more than 1900 species and populations are at risk – primarily due to habitat destruction.

FRPA is sometimes claimed to provide protection for species at risk, but it does not, on its own or in conjunction with other provin-cial legislation, meet the require-ments for effective species at risk legislation. Effective species at risk legislation has five essential com-ponents, it must: 1) scientifically assess and identify species at risk, 2) prohibit killing and harassing in-

dividuals of these species, 3) protect the habitat these species need for survival and recovery, 4) plan and implement species recovery, and 5) transparently distinguish species’ scientifically determined biological needs for survival and recovery from political decisions about pro-tection. The FRPA provides only limited habitat protection (this is interpreted in government policy to mean that habitat protection can-not reduce timber supply by more than one per cent) and has none of the other essential components of effective species at risk legislation.

Even accounting for species part-ly “protected” by FRPA, currently, 88 per cent of British Columbia’s known threatened and endangered species are not protected under British Columbia’s laws or SARA. Worse, almost no species at risk in British Columbia have the legal protection needed to enable their recovery, because British Colum-bia has no stand-alone species pro-tection legislation. The biodivers-ity we are losing is the engine of B.C.’s economy and culture, and of British Columbians’ wellbeing. There ought to be a law!

L-R: Morgan Blakley (staff lawyer) and Susan Pinkus (senior scientist) work at Ecojustice Canada, a char-ity providing free services to the public on environmental issues.

Stand-Alone Species at Risk LegislationThere ought to be a law!

MORGAN BLAKLEY AND SUSAN PINKUS

16 BARTALK / FEBRUARY 2014

In the 2013 Fall Report of the Auditor General of Canada, the Auditor General examined whether Transport Canada has adequately overseen the man-

agement of rail safety risks by fed-eral railways. The report conclud-ed that “Transport Canada needs to address significant weaknesses in its oversight of safety manage-ment systems implemented by fed-eral railway companies to manage safety risks on a day-to-day basis.” Following the derailment of a train carrying crude oil tankers at Lac-Mégantic, Québec in July 2013, which killed 47 people and deci-mated the town’s centre, the safety of shipping crude oil by rail has come under intense scrutiny.

In November 2013, Transport Canada established three working groups to recommend actions for (i) classifying crude oil as a highly dan-gerous substance, (ii) developing emergency response assistance plans specifically for shipping crude oil, and (iii) tightening safety and testing procedures. Recommenda-tions from the working groups are due at the end of January 2014 and proposed draft regulations are ex-pected shortly thereafter. On Janu-ary 10, 2014, Transport Canada also proposed new safety standards for certain rail tank cars.

The call for recommendations comes as the Transportation and Safety Board of Canada (TSB) con-tinues its investigation into the Lac-Mégantic accident. In September

2013, the TSB issued a safety advis-ory calling on regulators to review the processes for companies trans-porting or importing dangerous goods to ensure that goods are ac-curately classified and documented for safe transportation. Currently, petroleum crude oil is classified as a Class 3 Dangerous Good (flam-mable liquid), which is further divided into packing groups (PG), with PG I being most hazardous and PG III being least hazardous. TSB test results indi-cated that the oil being transported in the Lac-Mégantic tank cars (which origin-ated from the Bakken region strad-dling North Dakota and parts of Manitoba and Saskatchewan) was more flammable than identified by

its shipper. Specifically, the oil was identified by TSB as having the char-acteristics of a Class 3, PG II product; however the oil was transported as a Class 3, PG III product, which rep-resents a less volatile good. On Janu-ary 2, 2014, US regulators issued a safety advisory reinforcing the

requirement to properly test and classify hazardous materials prior to and during transportation. This announcement came several days after a train carrying Bakken oil de-railed in North Dakota, causing ex-plosions and forcing evacuations.

The Lac-Mégantic accident and subsequent investigation have re-vealed regulatory weaknesses in the oil-by-rail sector, which has grown significantly in recent years. This sector’s rapid growth is attributed to: (i) increasing development of non-conventional crude, (ii) trans-mission pipelines that are operat-

ing at or near capacity with rail being used as an option for moving crude oil, and (iii) abil-ity of rail to reach re-fineries that are either not served or under-served by pipelines.

As new transmission pipeline capacity is be-ing developed to ac-commodate increasing

oil production, the transportation of oil by rail will continue to grow and help fill the capacity void. For B.C., stringent safety standards are import-ant as Alberta bitumen is transported across B.C. en route to export mar-kets. According to reports, Transport Canada has estimated that approxi-mately 1,200 rail carloads of crude oil and petroleum products were sent to B.C. in 2012, up from fewer than 50 in 2011. This number is expected to grow significantly, especially in the absence of new pipeline infrastruc-ture. Whether transporting crude oil by rail, tanker or pipeline, the need for best-in-class spill prevention and emergency response systems has never been more imperative.

SELINA LEE-ANDERSEN

Safety by Design Transport Canada to introduce new regulations for oil-by-rail sector

Selina Lee-Andersen, Counsel, McCarthy Tétrault LLP.

features

The need for best- in-class spill preven-tion and emergency response systems

has never been more imperative.

Participation in environ-mental assessments and other regulatory pro-ceedings has long been recognized as a means

for aboriginal people to voice their concerns about potential adverse effects to their aboriginal and treaty rights arising from de-velopment. Environmental assess-ments have also been found to be a means through which the gov-ernment can fulfill its duty to con-sult aboriginal people.1 While it is a matter of debate whether these regulatory processes are effective for meaningful aboriginal partici-pation in natural resource decision making, recent legislative changes have left many First Nations won-dering where to raise their con-cerns and where the adequacy of any consultation will be assessed.

Options for raising concerns about natural resource develop-ment decisions for First Nations are dwindling. Recently, Parliament overhauled the federal environment-al assessment processes through Bill C-38 and replaced them with the Canadian Environmental As-sessment Act, 2012 (CEAA 2012). Among the many changes potential-ly detrimental to Aboriginal partici-pation in environmental assessments are that minor projects (formerly “screenings”) now no longer need federal environmental impact assess-ments. In addition, recent changes to the Regulations Designating Physic-al Activities under CEAA 2012

exclude a number of significant projects from automatic federal environmental review, including heavy oil and oil sands processing facilities, certain pipelines, and a raft of industrial facilities.

Moreover, recent developments have limited the ability of some regulatory tri-bunals to assess wheth-er First Nations have been adequately con-sulted before issuing regulatory approvals. For example, as of June 17, 2013, the new Al-berta Energy Regulator (AER) was created by the Responsible Energy Development Act. Section 21 of that Act deprives the AER of the jurisdic-tion to assess the adequacy of Crown consultation, despite the AER hav-ing the ability to issue regulatory permits which may be detrimental to aboriginal interests and rights. This limitation has been challenged by a number of First Nations, including a challenge by the Athabasca Chipe-wyan First Nation in relation to the Jackpine Mine Expansion Project (which was dismissed by the Alberta Court of Appeal2 , leave to appeal to the Supreme Court of Canada de-nied). Further, the terms of reference provided to certain federal/prov-incial joint review panels have ex-pressly deprived those panels of the ability to make findings on whether consultation has been adequate in relation to the proposed project

(see, for example, the Joint Re-view Panel Terms of Reference for the Site C Clean Energy Project).

Despite the clawback in admin-istrative tribunals both carrying out consultation through environ-mental impact assessments and as-sessing the adequacy of Crown consultation, the law is clear that the duty to consult is a consti-tutional one and that the assess-ment of adequacy in fulfilling that duty cannot preclude Court super-vision.3 However, the trend of gov-ernments excluding consultation issues from administrative processes

is troubling. It adds additional un-certainty, expense, time and other barriers for First Nations to have their constitutional rights ad-dressed. It is also contrary to the courts’ preference that specialized administrative bodies are in the best position to resolve constitutional issues related to their mandates.4

Troubling Trends for First NationsCrown constraining duty to consult

KAREY BROOKS AND JEFF LANGLOIS

L-R: Karey Brooks and Jeff Langlois, Janes Freedman Kyle Law Corporation

1 Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 at para 53; Taku River Tlingit First Nation v British Columbia (Project Assessment Director), 2004 SCC 74, para 2 2 Métis Nation of Alberta Region 1 v Joint Review Panel, 2012 ABCA 353 Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 , paras 62 and 634 R. v. Conway, 2010 SCC 22, para 6

FEBRUARY 2014 / BARTALK 17

18 BARTALK / FEBRUARY 2014

news&events

THE PUCK STOPS HERE!National Council, the CBA’s gov-erning body, meets twice a year to hear reports and to debate and vote on resolutions on cur-rent legal issues, public policy and CBA governance. The CBA welcomes participation from all members of Council, and observ-ers. Non-voting Council members are invited to attend, and are en-couraged to seek appointment as alternate voting members from their Branch.

At this year’s Mid-winter Meet-ing of Council, while voices are heard and decisions are made, the puck will also drop for the Win-ter Olympic Hockey finals. Join us for the business while celebrating Team Canada and our Nation’s favourite past time – hockey!

And the game doesn’t end there; be sure to participate in the CBA East vs. West shinny hockey game on Friday and wear your favourite team’s jersey at the hockey-themed Council Dinner on Saturday.

A CAPITAL EXPERIENCE AWAITS YOUThe allure of world class sites and the charm of national and lo-cal landmarks steeped in history await you in Canada’s vibrant na-tional capital. Discover the home of the Parliament of Canada and the Supreme Court of Canada. Take in the bustling Byward Mar-ket and skate the Rideau Canal – a UNESCO World Heritage site – just steps away from the hotel. Immerse yourself in the city’s many cultural attractions, including the National Gallery of Canada, the Canadian Museum of Civilization, the Can-adian War Museum, the Royal Canadian Mint, and many more.

HEADQUARTERS HOTELLocated next door to the Parlia-ment Buildings, Ottawa’s land-mark Fairmont Château Laurier hotel is a magnificent limestone edifice with turrets and masonry reminiscent of a French château.

CBA NATIONAL NEWS

CBA Mid-Winter Meeting of Council February 22-23, 2014 in Ottawa

CBA’s National Administrative Law Section says proposed amendments to the Conflict of Interest Act contained in Bill C-4 would allow Cabinet to designate a person or class of persons subject to the Act with an open-ended and virtu-ally unreviewable exercise of discretion. This goes against governmental transparency and accountability. The CBA Section makes specific recom-mendations to uphold integrity in public office and improve the administration of justice.

CBA NATIONAL NEWS

Conflict of Interest Act Amendments

When Edgar Schmidt sued his own ministry over its process for vetting legislation, he exposed one of the ethical conundrums faced by govern-ment lawyers.

NATIONAL MAGAZINE

The Whistleblower

Photo of Edgar Schmidt taken by Mike Pinder.

For more info

Read the article

Read the letter

FEBRUARY 2014 / BARTALK 19

In a letter addressed to the Senate Committee on National Finance and House of Commons Finance Committee, the CBA National Labour and Employ-ment Law Section expressed concerns about the process for legislative amendments to the Canada Labour Code and the Public Service Labour Relations Act contained in Bill C-4. Re-peating its objections to omnibus legislation such as Bill C-4, the CBA noted that labour amend-ments were conceived and draft-ed without adhering to tripartite custom, placing all parties at a disadvantage when reviewing changes to the Bill.

Handling a case shrouded in mystery, Robert Tibbo played a major role in getting Edward Snowden out of Hong Kong.

NATIONAL MAGAZINE

Snowden’s Canadian Lawyer

The CBA opposes regulatory amendments to the Immigration and Refugee Protection Act (IRPA) in Part 3, Division 16 of Bill C-4, arguing that important changes in diverse and unrelated subject areas in a single Bill precludes meaningful comment and debate. While the CBA National Immigration Law Sec-tion supports modernizing the selection system for economic class immigrants, it objects to the use of framework legisla-tion to give the Minister unilateral authority to change pro-grams through Ministerial Instructions, without Parliamentary oversight or need for public consultation.

The Department of Finance proposed draft legislation that would eliminate graduated rate taxation of trusts and certain estates. Drawing from their experience in estate planning and tax, both the CBA National Wills, Trusts and Estates Law Section and the Joint Committee on Taxation of the Canadian Bar Association and Char-tered Professional Accountants of Canada seek to keep the status quo in their recent submissions. While the proposed amendments appear to mitigate the perceived abuse of creating testamentary trusts upon death, the CBA states the Income Tax Act already has effective means to deal with abuse through existing anti-avoid-ance regimes applicable to trusts and their beneficiaries.

CBA NATIONAL NEWS

Immigration and Refugee Protection Act Amendments

CBA NATIONAL NEWS

Proposed Amendments to Testamentary Trusts

The new year can be an opportunity for solo and small practitioners to make technological advances in their practi-ces – to improve productivity, reduce costs, and maybe catch up with the 21st century. Here are five great candidates for New Year’s tech resolution. �� Get a password manager.�� Get a tablet and network-connect-ed storage device.�� Make everyone compatible with each other, everywhere.�� Master social media.�� Say goodbye to Windows XP.

CBA NATIONAL NEWS

Tech Resolutions for 2014

Photo of Robert Tibbo in Hong Kong taken by Pierre-Louis Mongeau.

Senator Raynell Andreychuk and Mario Bellissimo

CBA NATIONAL NEWS

Labour and Employment Law Amendments

For more info

Read moreRead the

article

Read the article

20 BARTALK / FEBRUARY 2014

news&events

KEEP UP-TO-DATE WITH CLEBC’S ANNUAL REVIEW Every year, lawyers and other readers around B.C. turn to CLEBC’s Annual Review of Law & Practice to learn about key developments and trends in British Columbia law. Now in its 23rd annual edition, the An-nual Review provides an easy, affordable, and reliable way

to keep on top of pivotal issues and trends.

This year’s edition promises to be bigger and better than ever before. The book includes 34 chapters packed with ac-cessible commentary about the main legislative, case law, and practice changes in British Col-umbia. The Annual Review is the essential updating tool for the busy practitioner.

Chapters are written by B.C. lawyers who have recognized interests and knowledge in particular areas of law. The many contributors have enthusiastic-ally embraced the concept of the book and have reduced the latest developments in law into

readable articles (no easy task). We’re grateful to our loyal vol-unteers for their commitment to CLEBC and the Annual Review.

We hope that the Annual Review becomes an established part of the self-education process for all B.C. lawyers and those interested in monitoring substantive chan-ges in legal practice each year.

To order your copy of the Annual Review, or for more information, visit the CLEBC website.

NEWS

CLEBC Update

PD NEWS

Upcoming Professional Development in Your Community To register: Contact Professional Development Department at pd@cbabc.org or telephone 1-888-687-3404 ext. 329

NELSONCBABC Full Day Professional Development in Nelson (5 CPD Hours)

Date: February 28, 2014

Location: Prestige Lakeside Resort & Convention Centre, Nelson

SMITHERSCBABC Full Day Professional Development in Smithers (6 CPD Hours)

Date: March 1, 2014

Location: Hudson Bay Lodge, 3251 E Hwy 16, Smithers

VERNON IN PARTNERSHIP WITH THE CBABC WILLS & TRUSTS SECTIONSRetreat & Full Day Professional Development Event in Vernon (6 CPD Hours)

Date: May 2-3, 2014

Location: Sparkling Hills Resort, Vernon

FEBRUARY 2014 / BARTALK 21

FEBRUARY 8 Nanaimo Battle of the Bar Bands — Nanaimo

18 CBABC PD: Primer on Canada’s New Anti-Spam Law (CASL) — Webinar

20 CBABC PD: Managing for Results – Working with Your Staff Effectively — Vancouver

28 CBABC PD: Full Day Professional Development — Nelson

MARCH 1 CBABC PD: Full Day Professional Development — Smithers

4 West Coast LEAF 27th Annual Equality Breakfast — Vancouver

8 Provincial Council Meeting — Richmond

BRANCH & BAR

CalendarCurrent from October 16 to December 24, 2013 Legislative Update is provided as part of the CBABC legislative and law reform program. It is a service funded by CBA membership fees, and is, therefore, provided as a benefit of CBA membership. The full version of Legislative Update is now only published online and available to CBA members exclu-sively at cbabc.org.

�� CIVIL RESOLUTION TRIBUNAL ACT, S.B.C. 2012, C. 25 Section 110 is in force December 12, 2013�� CRIMINAL RECORDS REVIEW AMENDMENT ACT, 2013, S.B.C. 2013, C. 8 Sections 1 to 44 and 52 to 59 are in force November 30, 2013�� MISCELLANEOUS STATUTES AMENDMENT ACT, 2004, S.B.C. 2004, C. 23 Section 21 is in force November 12, 2013�� MISCELLANEOUS STATUTES AMENDMENT ACT, 2013, S.B.C. 2013, C.12 Sections 11 to 16 are in force November 22, 2013�� MOTOR VEHICLE AMENDMENT ACT, 2010, S.B.C. 2010, C. 14 Section 20 is in force February 26, 2014�� STRATA PROPERTY AMENDMENT

ACT, 2009, S.B.C. 2009, C. 17 Section 25 is in force

December 12, 2013

B.C. LEGISLATIVE UPDATE

ACTS IN FORCE

Looking Back and Moving Forward

Congratulations Linda Thomas

of Thomas Law in

Kamloops... you are

the winner of an

iPad mini !

BARTALK’S

Introducing new features to BarTalk Online�� 25 years of back issues are now available at cbabc.org�� Plus tons of added content exclusively online – check out

New Members, Bar Moves and Kudos

Our thanks to the dozens of contributors and columnists who contribute to BarTalk. We are especially grateful to David Bilinsky and Tony Wilson who marked their 20 and 10 year anniversaries with BarTalk this year.

We welcome new authors, contributors and content suggestions simply send your request to bartalk@cbabc.org.

22 BARTALK / FEBRUARY 2014

news&events

This issue of BarTalk is dedicated to environmental law: an ever changing area with constitutional and international implications, com-plex data and a constant need to continue learning. If you don’t practice environmental law, we suspect this may still sound familiar. This gives us a perfect opportunity to highlight a great tool available to B.C. lawyers: the Lawyers’ Reading Room. In this tip, we’ll highlight three great ways to use the Reading Room for the environmental lawyer and beyond.

1. FIND A GREAT BOOK ON POINT: The Irwin online collection brings you more than 160 Canadian legal texts, including an excellent 2013 edition of the Environmental Law text by Jamie Benidickson. These ebooks are fully searchable and available on computers, tablets and e-readers. You can even highlight, save notes and come back later.

2. FIND A LEADING LEGAL JOURNAL: Whether you need to better understand the evolution of the laws relating to oil spills or you are interested in reading how the UK is handling similar issues, Hein Online offers access to 1000s of journal articles from Canada and beyond.

3. FIND A SENTENCING QUANTUM: Need to see a customized sentencing range on say, obstructing the police? You can select an offence from the Criminal Code and then layer on relevant factors for an efficient senten-cing quantum from RangeFindr.

All of this is available to you through the Lawyers’ Reading Room through anywhere you have Internet. The best part? It’s free for Law Society members in B.C.! All of these products have an array of possibilities that we’d love to tell you more about. For more information and links to video tutorials, please visit the Courthouse Libraries BC’s blog, The Stream.

TIPS FROM

Law Day, in Canada, is April 10, 2014. Events will be held in various communities throughout B.C. in April, including open houses, law classes, a high school forum with the three Chiefs, the Barry Sullivan Law Cup and Dial-A-Lawyer Day on April 12. This year’s theme is Access to Justice: What does it mean to YOU?

EVENT REMINDER

B.C. Law WeekYou are encouraged to honour a colleague and fellow CBABC member through their nom-ination for one of the following prestigious awards:

The Community Service Award recognizes the valuable contributions of CBABC mem-bers serving the communities in our province. The CBABC sponsors the Community Service Awards in each county biennially.

The Equality and Diversity Award celebrates the accom-plishments of a CBABC member who has succeeded in advancing equality in the legal profession or generally in B.C.

The Harry Rankin, QC Pro Bono Award was established in

recognition of the immense con-tribution of Harry Rankin, QC in supporting access to justice for the poor. The Award recognizes outstanding contributions by a member of the CBABC in the area of pro bono work.

The Work Life Balance Award recognizes lawyers, law firms or organizations who demonstrate leadership in promoting work life balance within the practice of law.

Nominations for all awards must be submitted before 4:30 p.m. on April 25, 2014. Additional informa-tion on these awards and nomina-tion forms are available on the home page at cbabc.org under “Call for Nominations.”

AWARD NOMINATIONS

Call for Nominations

For more information on 2014 Law Week activities and ways to get involved

FEBRUARY 2014 / BARTALK 23

LAW FOUNDATION OF BRITISH COLUMBIALAW FOUNDATION OF BRITISH COLUMBIA

grantsapproved

Outlined below is a list of grants ad-judicated at the November 23, 2013 Board of Governors’ meeting.

Funding totalling $7,946,280 was approved for the following 23 continuing programs:

$3,599,750LEGAL SERVICES SOCIETYProgram Grant

$2,737,750B.C. COURTHOUSE LIBRARY SOCIETYProgram Grant

$313,600B.C. CIVIL LIBERTIES ASSOCIATIONMajor Programs

LAW SOCIETY OF B.C.$257,180 Professional Legal Training Course$71,500 CanLII Virtual Library

UNIVERSITY OF BRITISH COLUMBIA$210,000 Indigenous Community Legal Clinic (formerly: First Nations Legal Clinic)$60,000 Graduate Fellowships$45,000 Public Interest Work Placements$29,000 Undergraduate Scholarships$13,500 Entrance Awards

$75,000HAIDA GWAII LEGAL PROJECT SOCIETYLegal Education/Advocacy Program

$75,000NANAIMO CITIZEN ADVOCACY ASSOCIATIONLegal Advocacy Program

$75,000POWELL RIVER COMMUNITY SERVICES ASSOCIATIONPoverty Law Advocacy Program

$70,000B.C. FREEDOM OF INFORMATION AND PRIVACY ASSOCIATIONLaw Reform & Public Legal Education Program

UNIVERSITY OF VICTORIA$65,000 Public Interest Work Placements$30,000 Graduate Scholarships$29,000 Entrance Scholarships

$55,000MULTIPLE SCLEROSIS SOCIETY, B.C. & YUKON DIVISIONVolunteer Legal Advocacy Program $45,000PRINCE RUPERT UNEMPLOYED CENTRE SOCIETYAdvocacy Program

$35,000PRO BONO STUDENTS CANADA – UBCCommunity Placement Program

$30,000PRO BONO STUDENTS CANADA – UVICStudent Placement Program

$20,000DEBATE AND SPEECH ASSOCIATION OF B.C.Law Foundation Cup

$5,000QUESNEL TILLICUM SOCIETYLegal Advocacy Program

Funding totalling $495,000 was ap-proved for the following six grants:

$175,000FIRST UNITED CHURCH COMMUNITY MINISTRY SOCIETYPoverty Law Advocacy Program

THOMPSON RIVERS UNIVERSITY$150,000 Entrance Scholarships (over 5 years)$75,000 Legal Education and Research Projects (over 5 years)

$50,000UNIVERSITY OF BRITISH COLUMBIALaw Foundation Awards

$25,000UNIVERSITY OF VICTORIALaw Foundation Awards

$20,000FOUNDATION FOR LEGAL RESEARCHLegal Research Program

Funding totalling $1,230,000 was approved for the following 12 grants that were approved for funding in June 2013 with their specific amounts set at the November 2013 meeting:

B.C. COALITION OF PEOPLE WITH DISABILITIES$175,000 Advocacy Access Appeals Program$75,000 CPP Disability Program

ABBOTSFORD COMMUNITY SERVICES SOCIETY$150,000 Regional Community Legal Advocacy Program$100,000 Legal Advocacy Program

$150,000KETTLE FRIENDSHIP SOCIETYMental Health Legal Advocacy Program

$110,000MPA – MOTIVATION, POWER & ACHIEVEMENT SOCIETYCourt Services Program $90,000B.C. FAMILIES IN TRANSITIONLegal Support Services Program

$85,000COMMUNITY CONNECTIONS SOCIETY OF SOUTHEAST B.C.Traveling Poverty Law Advocate Program

$80,000NELSON CARES SOCIETYLegal Advocacy Program

$75,000KI-LOW-NA FRIENDSHIP SOCIETYAboriginal Legal Advocacy Program

$75,000MOSAICLegal Advocacy Program $65,000SOUTH PEACE COMMUNITY RESOURCES SOCIETYSouth Peace Outreach Legal Advocacy Program

Funding totalling $108,000 was approved for the following three Strategic Initiative Fund grants:

$75,000LEGAL SERVICES SOCIETYSelf Represented Litigants Family Law Resources

$19,000DENICE BARRIE LAW CORPORATIONModel for Specialized Family Law Advocacy Programs in B.C. $14,000ERIN SHAWExploring Early Neutral Evaluation in Family Law

Funding totalling $100,000 for six Legal Research grants was approved by the Fellowships and Research Committee.

For details of all programs and projects that received funding

24 BARTALK / FEBRUARY 2014

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

professionaldevelopmentCBABC 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 in bringing courses to lawyers that will provide the required professional responsibility and ethics, client care and relations, and practice management component for 2014 Law Society of British Columbia reporting.

Upcoming Webinar Primer on Canada’s New Anti-Spam Law (CASL) Date: February 18, 2014 Speakers: Jennifer A. Marles, Oyen Wiggs Green & Mutala LLP and Barry B. Sookman, McCarthy Tétrault LLP Moderator: Stuart Rennie, Legislation & Law Reform Officer, CBABC

Upcoming In-person Seminars

Managing for Results – Working with Your Staff Effectively Date: February 20, 2014 Speaker: Dennis Hilton – Facilitator, Trainer,

Consultant and Speaker Location: The Law Courts

Inn, Vancouver

Some of the feedback from our past participants:

“Effective communicator and dynamic presentation. Three hours is a long time to keep interest and attention of an audience, but Dennis was organized and interesting throughout.”

“I was expecting generalizations and esoteric pseudo-science, and was pleasantly surprised at the grounded and practical approach taken.”

IN PARTNERSHIP WITH THE KOOTENAY BAR ASSOCIATION

CBABC Full Day Professional Development in Nelson Attendance at this event will provide you with 5 CPD hours Date: February 28, 2014 Time: 11:00 a.m. – 4:45 p.m. Location: Prestige Lakeside Re-sort & Convention Centre, Nelson

CBABC Full Day Professional Development in Smithers Attendance at this event will provide you with 6 CPD hours Date: March 1, 2014 Time: 10:00 a.m. – 4:45 p.m. Location: Hudson Bay Lodge, Smithers IN PARTNERSHIP WITH THE CBABC WILLS & TRUSTS SECTIONS Retreat & Full Day Professional Development Event in Vernon Attendance at this event will provide you with 6 CPD hours Date: May 2-3, 2014 Location: Sparkling Hills Resort, Vernon

E-learning On Demand

Earn your CPD credits easily and conveniently, at the time that suits you best. \ Our online courses incorporate reading materials, quizzes, audio and video \ Available 24/7 \ Requires Internet connection

Course Title: Introduction to Ethics and Professional Responsibility in British Columbia \ Module 1 – Canons of Legal Ethics, Client Care (1 CPD hour) \ Module 2 – Administration of Justice, Supervision, The Profession (1 CPD hour)

To register, visit www.cbapd.org (Search by keyword: E-Learning On Demand)

FEBRUARY 2014 / BARTALK 25

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26 BARTALK / FEBRUARY 2014

barmovesSPACE 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

Dale Wilcox of Wilcox & Company Law Corporation has moved his practice to Synergy Business Lawyers. His practice focuses on real estate, real estate development, financing and corporate and commercial law.

Kora Paciorekhas joined Harper Grey LLP as an associate with the Insurance Law group. Kora practises in the areas of subrogated property damage, personal injury and professional negligence.

Zara Sulemanhas recently launched her own law firm, Suleman Family Law. Previously Zara practised family law at North Shore Law LLP.

Brian Vick joined Miller Titerle LLP where he will focus on complex commercial transactions, securities law and executive compensation plans.

Drew Lawrensonjoined Miller Titerle LLP in their Gastown offices where he will focus on corporate and edu-cation law. Drew most recently worked as General Counsel to the Eminata Group.

Sam Liang formerly of Thorsteinssons LLP Tax Lawyers, joined Legacy Tax & Trust Lawyers at the beginning of Sep-tember. He is practising in the area of corporate and personal tax planning, estate planning and trusts.

Jason Z. Murray joined Eyford Macaulay Shaw & Padmanabhan LLP as an associate. He will be practising in the areas of commercial, insurance and product liability litigation and aboriginal law.

Graeme Nunn has joined Rockies Law Corpora-tion in Fernie. Graeme’s practice areas include real estate and development law, wills and estates, corporate and business law and commercial litigation.

Karen Tse has joined Rockies Law Corpor-ation in Fernie. Karen practises in the areas of family, wills and estates, bankruptcy and general civil litigation.

Jennifer Wriley has recently commenced arti-cles at Koffman Kalef LLP. She completed her J.D. and LL.M. at UBC and will be called to the B.C. Bar in late 2015.

FEBRUARY 2014 / BARTALK 27

Regular Member

Cheri Dawn CareyVancouver

Maria KourelisHeenan Blaikie LLP VancouverMonica F. McParlandPushor Mitchell LLP KelownaJefferey B. MeyersCox, Taylor VictoriaMary E. MurrayDepartment of Justice Canada Vancouver

Sarah-Dawn NorrisDepartment of Justice Canada Vancouver

Oliver R. PulleyblankDepartment of Justice Canada VancouverEric SherbineDentons Canada LLP Vancouver

Articling Students

Kristen BalcolmBorden Ladner Gervais LLP Vancouver

Jesse BernhardtPushor Mitchell LLP Kelowna

Robin DeanLidstone & Company Vancouver

Jamie DoddFarris, Vaughan, Wills & Murphy LLP Vancouver

Cassandra FlorioBorden Ladner Gervais LLP Vancouver

Valerie Frank Bull Housser Vancouver

Layne M. HellrungDavies Ward Phillips & Vineberg LLP Montréal

Scott HowieBorden Ladner Gervais LLP Vancouver

Maya InuzukaLegal Aid Ontario LAO Law Toronto

Josh JamesBorden Ladner Gervais LLP Vancouver

Ian Kennedy Koskie Glavin Gordon Vancouver

Diana KlassenAlexander Holburn Beaudin + Lang LLP Vancouver

Lauren KristjansonBorden Ladner Gervais LLP Vancouver

Alice Lin McMillan LLP Vancouver

Dustin PaulBull Housser Vancouver

Tim PritchardBorden Ladner Gervais LLP Vancouver

Amandeep RaiMcMillan LLP Vancouver

Allison ReedLawson Lundell LLP Vancouver

Joshua ShamesBlake, Cassels & Graydon LLP Vancouver

Michael SoltynskiBorden Ladner Gervais LLP Vancouver

Law Students

Ramez AlamRavneet AroraGeea AtanaseCoral AtchisonHarmanpreet BainsSofia BakkenJeanine BallCourtney Barber

Steven BercekBethan BuchananJackson BullockNora Claire ButlerJennifer CaoKai Nee Nicole ChangMario ChecchiaLorraine ChowSabah ChristopherRobyn CooperDouglas CottierMichael CunninghamRamanjot DahiaDotun DaviesZachary DavisCorey DavisonAmandeep DhesiAjit DhillonDanielle EastveldDustin EllisKass FreemanSarah FullbrookChristopher D. GallTaranpreet GillKarianne GoodJonathan GoodrichTracey GreerRyan GriffinGeoffrey (Ryan) HamiltonOlivia HarveyElaine HeStephanie HeadAasim HirjiBrian HowarthNeila HowesDaniel HutchinsonKimberly JensenJennifer JonesSalman KarimSetareh KhashaSheridan KingStephen KroegerJessica KruhlakRachel LaGroixStephanie LeongJustin LivingstoneJeremy MaddockSean (Michael) Manery

Sarah MarshKrista J. MasleckRobert MazzaroloAdrienne McFaddenAlan McKenzieJames McleodKenneth McLeodKelly MelnykRyan MontyKendra (Kenna) MorrisNatasha NairJaysan NamasivayamDanielle OliverAlexander C. PatersonMichael PavlicStephanie PenkalaMalgorzata (Gosia)PiaseckaMarshall PutnamTajinder RathorToby Rauch-DavisCaroline D. RobertsCole RodockerKathryn RogersNickolas RogicDennis RoseKeegan RutherfordHoutan SanandajiMichael ScottAmritpal SekhonLeah SeneviratneZahra Sadat Seyed AliNikta ShirazianAmandeep SidhuOnkar SohiBrett SquairMichelle TangHarmandeep ToorClaire VikseIan WalkerRaja WariachCrystal WariachRob WasiliewStephen WhiteheadJohn WiebeJeff Tsz Chun WongWinston WooAlexander Wright

November & December 2013

newmembers

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