Section 27 of the Surface Rights Act and the Potential Fallout of Non-Compliance

By: Fenner Stewart

PDF Version: Section 27 of the Surface Rights Act and the Potential Fallout of Non-Compliance

Legislation Commented On: Surface Rights Act, RSA 2000, c S-24

Section 27 of Alberta’s Surface Rights Act obliges operators to notify landowners of the opportunity to renegotiate leases, but provides no enforcement measures for operator non-compliance. This post explores the potential fallout.

1. Introduction

Alberta’s Surface Rights Act helps to encourage the negotiation of surface leases between landowners and operators. Whether granting a producer the right of entry to drill for oil and gas or granting an energy company the right to place a pipeline or power transmission line across one’s property, many landowners would not allow such operators access to their land if the force of law did not compel the right of entry. In mining and drilling cases, the common law recognizes an implied right of entry in conjunction with the granting of mineral rights. In pipeline and transmission line cases, the Crown can exercise its power of expropriation to take private property for public use. In these situations, the legal authority for such rights of entry is not dependent on any power granted by the Surface Rights Act.

The primary purpose of the Surface Rights Act is to avoid litigation when an obstinate landowner rejects all reasonable offers for compensation in exchange for access to their property. When negotiations breakdown, the Surface Rights Board intervenes and establishes the terms, including compensation, of the surface lease. By offering an alternative to a privately negotiated lease, the Act promises to break deadlocks between lessor-landowners and lessee-operators resulting in expedited energy projects. Further, it is hoped that by providing an alternative to the more adversarial judicial system, more amicable relations between landowners and operators will develop even in less than ideal circumstances.

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The Application of stare decisis in Administrative Decision-Making

By: Shaun Fluker

PDF Version: The Application of stare decisis in Administrative Decision-Making

Case Commented On: Altus Group v Calgary (City), 2015 ABCA 86

In Altus Group v Calgary (City), 2015 ABCA 86, the Alberta Court of Appeal confronts the application of stare decisis to administrative tribunal decision-making. Some would say it is a truism that statutory decision-makers are not bound by precedent given the fact-intensive and policy-laden nature of their work, and that most tribunal members have little or no substantive legal training. Jurists of Diceyan thought have surely held this position and indeed typically point to the very absence of stare decisis in administrative law to bolster their suspicion of and disregard for statutory decision-making and to justify the need for intrusive judicial scrutiny. In modern times, a tribunal seeking to downplay arguments based on precedent might be expected to respond along the lines of “[w]hile our earlier decisions may be relevant and even persuasive in this case, we are not bound by these previous rulings.” But on the other hand, many administrative law practitioners have no doubt appeared before a tribunal who references its earlier decisions and the need for consistency to support a particular ruling. Perhaps all we can say for sure is that the application of stare decisis to administrative decision-making is a tricky business.

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Assessing Canada’s Habitat/Fisheries Protection Regime: A Near Total Abdication of Responsibility?

By: Martin Olszynski and Alex Grigg

PDF Version: Assessing Canada’s Habitat/Fisheries Protection Regime: A Near Total Abdication of Responsibility?

Legislation Commented On: Section 35 of the Fisheries Act, RSC 1985 c F-14, as amended by the Jobs, Growth and Long-term Prosperity Act SC 2012, c 19

Roughly three years ago (on June 29, 2012), Bill C-38, the omnibus budget bill also known as the Jobs, Growth and Long-term Prosperity Act, received royal assent. As most ABlawg readers will surely know, Bill C-38 fundamentally changed some of Canada’s most important environmental laws. Among these were changes to the Fisheries Act and a new regime for the protection of fish habitat in particular. Section 35 of the Act, which used to prohibit any work or undertaking that resulted in the “harmful alteration or disruption, or the destruction” (HADD) of fish habitat, was amended to prohibit works, undertakings and activities that result in “serious harm to fish that are part of a commercial, recreational or Aboriginal fishery,” serious harm being defined as “the death of fish or any permanent alteration to, or destruction of, fish habitat” (DPAD). At the time of Bill C-38’s passage, this wording was widely panned as vague, confusing and bound to reduce the scope of protection for fish habitat (see here, here, here, here and our own professor emeritus Arlene Kwasniak here). This summer – and with a view towards a Fisheries Act panel at the Journal of Environmental Law and Practice’s 5th conference in Kananaskis in June – we are conducting research to assess the merits of this new regime. This blog sets out our approach and some preliminary findings. Long story short, it appears that the federal government has all but abdicated its role in protecting fish habitat in Canada.

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Posted in Environmental, Fisheries Regulation | 2 Comments

A “Convicted Terrorist” By Any Other Name

By: Maureen Duffy

PDF Version: A “Convicted Terrorist” By Any Other Name

Case Generally Considered: Pelham, Warden of the Bowden Institution, et al. v. Khadr, No. 36081 (Alberta) (Criminal) (SCC, By Leave); Bowden Institution v Khadr, 2015 ABCA 159; Khadr v Bowden Institution, 2015 ABQB 261; Canadian Broadcasting Corporation v Warden of Bowden Institution, 2015 FC 173; Khadr v Edmonton Institution, 2014 ABCA 225; Khadr v Edmonton Institution, 2013 ABQB 611

“What’s In a Name?”

Shakespeare famously wrote:

’Tis but thy name that is my enemy;

Thou art thyself though, not a Montague.

What’s Montague? it is nor hand, nor foot,

Nor arm, nor face, nor any other part

Belonging to a man. O! be some other name:

What’s in a name? that which we call a rose

By any other name would smell as sweet …

The idea, of course, is that names may be superficial labels, which do not, by themselves, define the character of the person to whom they are attached. Rather, they can be misleading, giving an impression of a person that is entirely different from reality.

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Posted in Constitutional, Criminal, International Law, Youth and the Law | Leave a comment

Kaddoura v Hanson : The Alberta Rules of Court Regarding Disclosure Work; Delay Tactics Sourced In Old Rule Logic and Old Rule Opinion Do Not

By: Brett Code, Q.C.

PDF Version: Kaddoura v Hanson: The Alberta Rules of Court Regarding Disclosure Work; Delay Tactics Sourced In Old Rule Logic and Old Rule Opinion Do Not

Case Commented On: Kaddoura v Hanson, 2015 ABCA 154

In Kaddoura v Hanson, 2015 ABCA 154, the Alberta Court of Appeal eliminated from current and future consideration several old arguments regularly advanced under the old Rules of Court by parties wanting to avoid complete record disclosure and wanting to use the available motions process and its concomitant rights of appeal to delay the discovery process. In a case concerning the record disclosure obligations of third-partied lawyers alleged by straw buyers in mortgage fraud schemes to bear concurrent or exclusive responsibility for the plaintiff bank’s losses, the Court of Appeal solidified an understanding that the “new” Rules were meant to improve efficiency and reduce cost, in particular by limiting the delay and avoidance tactics previously available and oft-used by litigants under the old Rules. The message to litigants in Alberta is that the new Rules are unambiguous, and they work. Recycled arguments previously used to limit the application of the Rules to current discovery obligations will fail.

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ITLOS Special Chamber Prescribes Provisional Measures with Respect to Oil and Gas Activities in Disputed Area in Case Involving Ghana and Côte d’Ivoire

By: Nigel Bankes

PDF Version: ITLOS Special Chamber Prescribes Provisional Measures with Respect to Oil and Gas Activities in Disputed Area in Case Involving Ghana and Côte d’Ivoire

Decision Commented On: International Tribunal on the Law of the Sea (ITLOS), Special Chamber, Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean, Order with respect to the prescription of provisional measures, April 25, 2015, ITLOS Case No. 23

By way of a Special Agreement concluded on 3 December 2014, Ghana and Côte d’Ivoire submitted a dispute concerning their maritime boundary to a Special Chamber (SC) of ITLOS. The SC was fully constituted on 12 January 2015 and on 27 February 2015 Côte d’Ivoire made a request for the prescription of provisional measures under Article 290(1) of the Convention on the Law of the Sea (LOSC) requiring Ghana to:

  1. take all steps to suspend all ongoing oil exploration and exploitation operations in the disputed area;
  2. refrain from granting any new permit for oil exploration and exploitation in the disputed area;
  3. take all steps necessary to prevent information resulting from past, ongoing or future exploration activities conducted by Ghana, or with its authorization, in the disputed area from being used in any way whatsoever to the detriment of Côte d’Ivoire;
  4. and, generally, take all necessary steps to preserve the continental shelf, its superjacent waters and its subsoil; and
  5. desist and refrain from any unilateral action entailing a risk of prejudice to the rights of Côte d’Ivoire and any unilateral action that might lead to aggravating the dispute.

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Posted in International Law, Law of the Sea, Natural Resources, Oil & Gas | Leave a comment

A Cautionary Tale for Step-Parents and Step-Children

By: Jonnette Watson Hamilton

PDF Version: A Cautionary Tale for Step-Parents and Step-Children

Case Commented On: Peters Estate (Re), 2015 ABQB 168 CanLII

People have many different ways of defining “family” and what being part of a family means to them. The idea that “a family is what you make it” or “families are who you love” is true enough when it comes to inheritance if you make a will. But the assumption that each of us can define family for ourselves is not true if we die without a will. If we die intestate (i.e., without a will), then the law will define our family for us — and the law’s categories are not flexible ones. They are not even twenty-first century categories. While the percentage of Canadian families who correspond to the nuclear-family model has declined, the laws of intestate succession still depend on that model. As a result, for those who die without a will, there is the possibility that the people they considered family will not inherit from them. The Peters Estate case is a cautionary tale about the need for wills or adoption in a modern world where “family” is a constantly changing concept.

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Posted in Family, Wills and Estates | 2 Comments

Reflections on the Alberta Energy Regulator’s Best-In-Class Regulatory Initiative

By: Fenner Stewart

PDF Version: Reflections on the Alberta Energy Regulator’s Best-In-Class Regulatory Initiative

Initiative Commented On: Alberta Energy Regulator’s Best-In-Class Regulatory Initiative

The University of Pennsylvania’s Penn Program on Regulation (PennReg) has now completed its consultation of experts and stakeholders as part of its “Best-In-Class” Regulatory Initiative, which is funded by the Alberta Energy Regulator (AER). This post discusses the “Best-In-Class” Regulatory Initiative as well as one of PennReg’s three consultations, entitled the “Alberta Dialogue.”

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Leave to Appeal granted in Ernst v Alberta Energy Regulator

By: Jennifer Koshan

PDF Version: Leave to Appeal granted in Ernst v Alberta Energy Regulator

Case commented on: Ernst v Alberta Energy Regulator, 2013 ABQB 537, aff’d 2014 ABCA 285, leave to appeal granted April 30, 2015 (SCC)

Today the Supreme Court (Justices Abella, Karakatsanis and Côté) granted leave to appeal with costs in the cause to Jessica Ernst.  The Court’s description of the case is as follows:

Charter of Rights – Constitutional law – Enforcement – Remedy – Freedom of expression – Statutory immunity clause held to preclude adjudication of individual’s action in damages for alleged Charter breach by the regulator – Can a general “protection from action” clause contained within legislation bar a Charter claim for a personal remedy made pursuant to s. 24(1) of the Charter – Can legislation constrain what is considered to be a “just and appropriate” remedy under s. 24(1) of the Charter – Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28.

The applicant owns land near Rosebud, Alberta. She brought an action against: i) EnCana Corporation for damage to her water well and the Rosebud aquifer allegedly caused by its construction, drilling, hydraulic fracturing and other activities in the area; ii) Alberta Environment and Sustainable Resource Development, claiming it owes her a duty to protect her water supply and had failed to address her complaints about EnCana; and iii) the respondent regulator, for “negligent administration of a regulatory regime” related to her claims against EnCana. She brought a further claim for damages against the regulator under s. 24(1) of the Charter for alleged breaches of her s. 2(b) Charter rights. She alleges that from November, 2005 to March 2007, the Board’s Compliance Branch refused to accept further communications from her through the usual channels for public communication until she agreed to raise her concerns only with the Board and not publicly through the media or through communications with other citizens. She submits the respondent infringed her s. 2(b) Charter rights both by restricting her communication with it and by using those restrictions to punish her for past public criticisms and prevent her making future public criticisms of the respondent.

The respondent brought an application to strike paragraphs from the Statement of Claim or grant summary judgment in its favour. The Court of Queen’s Bench of Alberta granted the application and struck out the applicant’s negligence and Charter claims. While the Court held that the Charter claims were not doomed to fail and did disclose a cause of action, it held that the courts were precluded from considering the claims by the statutory immunity provision in the Energy Resources Conservation Act, R.S.A. 2000, c. E-10. The Alberta Court of Appeal dismissed the appeal.

There have been several ABlawg posts on the Alberta courts’ earlier decisions in the Ernst litigation. The most relevant to the issue that is now going to the Supreme Court is my post The Charter Issue(s) in Ernst: Awaiting Another Day.

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A Missing Issue in the 2015 Alberta Election: Curbing Carbon Emissions

By: Shaun Fluker

PDF Version: A Missing Issue in the 2015 Alberta Election: Curbing Carbon Emissions

Legislation Commented On: Specified Gas Emitters Regulation, Alta Reg 139/2007

One might think that curbing carbon emissions would be a key topic during an election in the province which emits more carbon emissions than any other jurisdiction in Canada. Carbon emission is after all an inherently political topic these days both at home and abroad. However, the absence of debate on how Alberta should address carbon emissions is one of the more defining features of the 2015 Alberta election. This is particularly noteworthy because of Ontario’s recent announcement that it will join the carbon emissions cap-and-trade scheme operating in Quebec and California under the Western Climate Initiative. Premier Jim Prentice stated that Alberta (see here) will not join this regional scheme, and recent media commentary has expressed concern with this position (see here).

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Posted in Climate Change, Environmental | 2 Comments