The Declaration Concerning the Prevention of Unregulated High Seas Fishing in the Central Arctic Ocean

By: Seamus Ryder

PDF Version: The Declaration Concerning the Prevention of Unregulated High Seas Fishing in the Central Arctic Ocean

Matter Commented On: The Declaration concerning the Prevention of Unregulated High Seas Fishing in the Central Arctic Ocean

On 16 July, 2015, Ambassadorial-level representatives from all five Arctic Ocean coastal states – Canada, Denmark, Norway, Russia and the United States (the Arctic Five) – met in Oslo to sign the Declaration concerning the Prevention of Unregulated High Seas Fishing in the Central Arctic Ocean (the Declaration). The Declaration follows up on the substantive outcome of the February 2014 Nuuk Meeting on Central Arctic Ocean Fisheries and builds upon discussions toward the development and implementation of interim measures to prevent unregulated fishing in the high seas portion of the central Arctic Ocean and related scientific matters. In this sense, the Declaration can be seen as the latest development in a so-called “Arctic Ocean coastal state process” on the regulation and management of Arctic Ocean fisheries. This blog post looks at the substantive output of this latest development and makes some initial observations regarding the contribution of the Declaration to the legal and policy framework for Arctic fisheries (background information and discussions on both the Nuuk meeting and the Arctic Ocean coastal state process on Arctic Ocean fisheries can be found in an earlier blog post). If nothing else, this post aims to clarify a number of apparent misconceptions and inaccuracies in media reports on the Declaration.

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

Bill C-24: Strengthening Canadian Citizenship – Weakening Global Security

By: Hannah Buckley

PDF Version: Bill C-24: Strengthening Canadian Citizenship – Weakening Global Security

Statute Commented On: Strengthening Canadian Citizenship Act, SC 2014 c 22

On June 11, 2015 the final host of amendments created under the Strengthening Canadian Citizenship Act (Bill C-24) came into force. Among those were amendments to section 10 of the Citizenship Act, RSC 1985 c C-29 greatly expanding the government’s ability to revoke Canadian citizenship. The amendments apply to naturalized Canadians, dual citizens and Canadian-born citizens who are eligible to obtain dual citizenship. Prior to Bill C-24, only naturalized citizenship could be revoked, and revocation was limited to cases where citizenship was obtained by means of fraud or false pretenses (See Parliamentary Information and Research Service, Legislative Summary of Bill C-24: An Act to amend the Citizenship Act and to make consequential amendments to other Acts by Julie Béchard, Penny Becklumb, & Sandra Elgersma (Ottawa: Library of Parliament, 2014) available here). Now treason, terrorism, aiding the enemy, espionage, and communicating safeguarded or operational information have been added to the list of exile-worthy offences.

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Posted in Terrorism and Security | 1 Comment

Some Observations about Evidence in the Electronic Age

By: Shaun Fluker

PDF Version: Some Observations about Evidence in the Electronic Age

Case Commented On: Kon Construction v Terranova Development, 2015 ABCA 249

This Court of Appeal decision concerns a dispute over the performance of a contract. Terranova retained Kon Construction to grade lands for residential development. The work was to be done in 2005 but was delayed into 2006 and the agreement went sour. Kon Construction filed a claim for unpaid invoices and Terranova counterclaimed that Kon Construction breached the agreement on a number of grounds thereby allowing it to retain another firm to complete the grading work. At trial Madam Justice B.A.Brown ruled that Terranova did not have grounds to terminate its contract with Kon Construction and was therefore liable for a portion of the unpaid invoices which she found had been improperly inflated (Kon Construction v Terranova Development, 2014 ABQB 256). The issues on appeal were primarily on the admissibility of certain electronic records.

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The Law on Mr. Big Confessions

By: Caroline Law

PDF Version: The Law on Mr. Big Confessions

Cases Commented On: R v Magoon, 2015 ABQB 351; R v Campeau, 2015 ABCA 210

A Big operation is a common police sting tactic used to obtain confessions from suspects. It usually involves undercover police officers posing as members of a criminal organization and developing a friendly relationship with the suspect. The suspect is then asked to perform a series of seemingly illegal tasks, and is told those are tests to gain trust from the head of the criminal organization, Mr. Big. In the process, the police officers involved try to obtain evidence or a confession from the suspect in relation to an alleged crime. The operation culminates with a “job interview” between the suspect and the crime boss Mr. Big, which entails Mr. Big interrogating the suspect into his past criminal activities. Once the suspect admits to committing the crime, he or she is arrested. In this post I look at recent decisions in Alberta that have applied the law concerning the admissibility of Mr. Big confessions.

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Implementing the New Liability and Financial Assurance Rules for Oil and Gas Operations on Federal Lands in the Arctic and for the East Coast Offshore

By: Nigel Bankes

PDF Version: Implementing the New Liability and Financial Assurance Rules for Oil and Gas Operations on Federal Lands in the Arctic and for the East Coast Offshore

Regulations Commented On: [Draft] Canada Oil and Gas Operations Financial Requirements Regulations and accompanying Regulatory Impact Assessment Statement (RIAS), Canada Gazette, vol. 149, No. 28, July 11, 2015, [Draft] Canada-Newfoundland and Labrador Petroleum Financial Requirements Regulations, Canada Gazette, vol. 149, No. 28, July 11, 2015 and [Draft] Canada-Nova Scotia Petroleum Financial Requirements Regulations, Canada Gazette, vol. 149, No. 28, July 11, 2015

The current liability and assurance rules for oil and gas operations on federal lands and for the east coast offshore are, by any account, outdated and inadequate. The federal government undertook to review these rules following the Montara and Macondo spills and the National Energy Board (NEB) undertook its own review, The Past is Always Present: Review of Offshore Drilling in the Canadian Arctic, Preparing for the Future (2011). As a result of these initiatives the government introduced Bill C-22 which became the Energy Safety and Security Act, SC 2015 c.4 (ESSA). ESSA obtained Royal Assent on February 26, 2015 but will not (s.119) enter into force until 12 months after Assent or on an earlier date prescribed by Order in Council. The delay permits the development of the necessary regulations, including the three related regulations (supported by a common RIAS), that are the subject of this post. Bill C-22 once in force will, inter alia amend the liability and financial assurance provisions of the Canada Oil and Gas Operations Act, RSC 1985, c. O-7 (COGOA), the Canada-Newfoundland and Labrador Atlantic Accord Implementation Act, SC 1987, c.3 and the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act, SC 1988, c.28. This post will focus on the COGOA rules although what is said here for the most part applies equally to the areas covered by the Accord Acts. The first part summarizes the current COGOA provisions. The second part summarizes the changes that ESSA makes to COGOA. The third part discusses the regulations and the accompanying RIAS. The fourth part offers some comments on the regulations while the final part asks what is missing from this regime.

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Mandatory Retirement of School Bus Drivers Again Before Alberta Human Rights Tribunal

By: Linda McKay-Panos

PDF Version: Mandatory Retirement of School Bus Drivers Again Before Alberta Human Rights Tribunal

Case Commented On: Mortland and VanRootselaar v Peace Wapiti School Division No 76, 2015 AHRC 9

Once again, the Human Rights Tribunal has been asked to address the issue of mandatory retirement for school bus drivers in Alberta. In an earlier case involving a preliminary hearing, Pelley and Albers v Northern Gateway Regional School Division No 76, 2012 AHRC 2 (Pelly and Albers), the Tribunal held that the School Division was an “employer” for the purposes of the Alberta Human Rights Act, RSA 2000 c A-25.5 (AHRA), section 7. (See my previous post on Pelly and Albers).

Mortland and VanRootselaar were each school bus drivers employed by the Peace Wapiti School Division No 76. They were mandatorily retired at the end of the school year in which they attained the age of 65. They filed individual complaints of age discrimination under section 7 of the AHRC (employment) with the Alberta Human Rights Commission. The School Division argued that the “age 65 or less” standard for bus driver employment was a bona fide occupational requirement under subsection 7(3) of the AHRA.

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Fundamental Legal Questions and Standard of Review in Alberta

By: Shaun Fluker

PDF Version: Fundamental Legal Questions and Standard of Review in Alberta

Case Commented On: Stewart v Elk Valley Coal Corporation, 2015 ABCA 225

The Court of Appeal has issued another strong statement on standard of review and clearly asserts its intention to place boundaries on the application of a presumption of deference in the judicial review (or statutory appeal) of tribunal decisions. Readers may recall my earlier post where I commented on the direction taken by the Court on standard of review in Edmonton (East) Capilano Shopping Centres Ltd v Edmonton (City), 2015 ABCA 85 particularly in relation to the Court’s reluctance to defer to the interpretation by a tribunal of its home statute. It has seemed in recent years that the Supreme Court of Canada has come out strongly in favour of deference to legal determinations by statutory tribunals concerning their home legislation, and so the Capilano decision struck me as an outlier. The Court’s reasoning in Stewart v Elk Valley Coal Corporation builds on its earlier Capilano judgment and thus further indicates the Court has plans to rework the presumption of deference in judicial review for Alberta.

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Expensive, Complex Appeals from Residential Tenancy Dispute Resolution Service Orders

By: Jonnette Watson Hamilton     

PDF Version: Expensive, Complex Appeals from Residential Tenancy Dispute Resolution Service Orders

Case Commented On: Nee v Ayre & Oxford Inc, 2015 ABQB 402 (CanLII)

The decision by Justice Donald Lee in Nee v Ayre & Oxford Inc is one of several decisions that he has made dismissing tenants’ appeals of Residential Tenancies Dispute Resolution Service (RTDRS) orders because the tenant failed to file a transcript of the oral hearing that took place before an RTDRS officer. This decision builds on Justice Lee’s prior judgment in Herman v Boardwalk Rental Communities, 2011 ABQB 394 (CanLII), as it reproduces twelve paragraphs of his Herman decision to provide the reasons for dismissing Ms. Nee’s appeal. It is also very similar to Justice Lee’s decisions in Zibrowski v Nicolis, 2012 ABQB 236 (CanLII). Although Nee v Ayre & Oxford Inc does not make any new legal points, it is worth a post because it once again highlights how complex and expensive appeals from RTDRS orders are, especially for many self-represented litigants who are, after all, the people for whom the RTDRS process was designed.

What exactly does that complex and expensive appeal process entail?

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Alberta Decision on Knock-for-Knock Allocation of Liability in a Standard Form Drilling Contract

By: Nigel Bankes

PDF Version: Alberta Decision on Knock-for-Knock Allocation of Liability in a Standard Form Drilling Contract

Case Commented On: Precision Drilling Canada Limited Partnership v Yangarra Resources Ltd, 2015 ABQB 433

This case involves the interpretation of a standard form drilling contract. Under that contract, said (at para 5) to be negotiated between the Canadian Association of Oilwell Drilling Contractors and the Canadian Association of Petroleum Producers, the drilling contractor (here Precision) and the oil and gas operator (here Yangarra) agreed to accept an allocation of risks and liabilities based essentially on ownership interests rather than fault. Thus, Article 10.1 of the contract, subject to some listed exceptions, provided that:

Precision shall at all times assume all of the risk of and be solely liable for any damage to, loss of, or destruction of Precision’s Surface Equipment, regardless of the negligence or other fault of Yangarra or howsoever arising and Precision specifically releases Yangarra in regard to any claims that Precision may otherwise have in regard thereto.

By the same token, Yangarra (Article 10.3 and 10.4) agreed to accept risks and provide an indemnity in relation to any downhole issues:

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The SGER Amendments and the New Treatment of Cogeneration

By: Nigel Bankes

PDF Version: The SGER Amendments and the New Treatment of Cogeneration

Regulation Commented On: Specified Gas Emitters Amendment Regulation, Alta Reg 104/2015

In a previous post I reported on the Minister’s speech announcing a two-step procedure for developing a new climate change policy for Alberta. The first step involved changes to two of the key variables in the current Specified Gas Emitter Regulation (SGER), Alta Reg 139/2007 while the second step is the more comprehensive review to be conducted by Dr Andrew Leach to assess the full range of options for the management of greenhouse gas emissions in the province. At the time I wrote that post I had not examined the details of the amendments to the SGER to see what other changes (if any) were being proposed. This post picks up where the last left off.

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Posted in Climate Change, Energy, Environmental | Leave a comment