Crown Oil Sands Dispositions and the Duty to Consult

By: Nigel Bankes

Case commented on: Buffalo River Dene Nation v. Ministry of Energy and Resources and Scott Land and Lease Ltd., 2014 SKQB 69

PDF version: Crown Oil Sands Dispositions and the Duty to Consult

In this decision Justice Currie of the Saskatchewan Court of Queen’s Bench concluded that the Crown owes no duty to consult a Treaty 10 First Nation when issuing Oil Sands Special Exploratory Permits (OSSEPs) in the traditional territory of that First Nation. In reaching this conclusion Justice Currie focused on his assessment that in issuing a permit the Minister did not make a decision that could affect the use of the land. Justice Currie also distinguished the Supreme Court of Canada’s decision in Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73, where that Court held that the Crown’s decision to authorize the assignment of tree farm licence could trigger the duty to consult on the basis that it was a high level strategic planning decision that could have subsequent on-the-ground effects. Justice Currie took the view in this case that there was no Crown “plan of action” and no high level strategic planning decisions and therefore no duty.  Continue reading

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Four Years Out: Is the Gulf of Mexico Safer Today?

By: Jacqueline L. Weaver

In February 2011, at the invitation of Professor Alastair Lucas at the University of Calgary, I spoke on the U of C campus about the causes and consequences of the BP oil spill in the Gulf of Mexico as of that date. That invitation led me on a three-year journey that culminated in two lengthy articles, just published in the Houston Journal of International Law, seeking to assess what has changed in offshore safety in the Gulf since the blowout (see “Offshore Safety in the Wake of the Macondo Disaster: Business as Usual or Sea Change?”, (2014) 36 Houston J. Int’l L. 148 (Part One) and “Offshore Safety in the Wake of the Macondo Disaster: the Role of the Regulator” (2014) 36 Houston J. Int’l L. 380 (Part Two)). This brief post summarizes my main findings on the state of safety in the Gulf today.  I am deeply grateful for the “push” that the U of C Law School gave me with its invitation to speak and its gracious hospitality during my visit there.

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Leave to Appeal Granted in NRCB Case Concerning Participatory Rights and the Interpretation of ‘Directly Affected’ Persons Entitled to a Hearing

By: Shaun Fluker

PDF Version: Leave to Appeal Granted in NRCB Case Concerning Participatory Rights and the Interpretation of ‘Directly Affected’ Persons Entitled to a Hearing

Decision commented on: JH Drilling Inc. v Alberta (Natural Resources Conservation Board), 2014 ABCA 134

The Alberta Court of Appeal has granted leave to JH Drilling to appeal a ‘standing’ decision by the Natural Resources Conservation Board (NRCB).  While not a decision on the merits of the issue, this leave decision is significant because the question for appeal will concern the NRCB’s interpretation of ‘directly affected’ in its governing legislation to determine participatory rights before the Board.  Moreover, the interest asserted by JH Drilling to be directly affected here is one of a commercial nature – JH Drilling is not a landowner or resident in the immediate vicinity of the proposed project in this case.  To my knowledge, this merit hearing will be the first time the Court of Appeal considers participatory rights before the NRCB.

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Access to Justice and Costs Against the Crown

By: Sarah Burton

PDF Version: Access to Justice and Costs Against the Crown

Case commented on: R v A.Y.A., 2014 ABQB 103

In R v A.Y.A., 2014 ABQB 103 [AYA], the Honourable Madam Justice C.A. Kent suggested that access to justice considerations have a role to play in awarding costs against the Crown. AYA built on pre-existing case law that laid the groundwork to make this exceptional award in situations where there was no Crown misconduct. Prior to AYA, however, applicants had been unsuccessful in achieving these ends. This decision is particularly fascinating because Justice Kent used access to justice concerns to distinguish the case before her from the earlier unsuccessful case law. In the process (and despite Justice Kent’s best efforts to narrowly confine the decision) AYA raises wide-ranging questions about remedial entitlements for access to justice breaches.

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The Abatement of Rent Remedy under Alberta’s Residential Tenancies Act

By: Jonnette Watson Hamilton

PDF Version: The Abatement of Rent Remedy under Alberta’s Residential Tenancies Act

Case commented on: Perpelitz v Manor Management Ltd., 2014 ABPC 63

There are few enough written decisions considering the landlord’s duties under Alberta’s 10-year-old Residential Tenancies Act, SA 2004, c R-17.1, that almost any decision considering the statute is worth bringing to the notice of the province’s landlords and tenants. But this decision by Judge Gordon Yake is interesting on its own merits for a few reasons.

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A Pricked Condom: Fraudulently Obtained Consent or No Consent in the First Place?

By: Joshua Sealy-Harrington

PDF Version: A Pricked Condom: Fraudulently Obtained Consent or No Consent in the First Place?

Case commented on: R v Hutchinson, 2014 SCC 19

This post discusses a recent decision from the Supreme Court of Canada addressing consent in the context of sexual assault. The Court was unanimous on its final destination: dismissing the appellant’s appeal of his conviction for sexual assault. However, the Court narrowly split, 4-3, on the path taken to get there. More specifically, the Court split on whether deliberately and secretly sabotaging a condom renders sexual activity with that condom non-consensual because the victim’s consent was obtained fraudulently or because she never consented in the first place. This post reviews these two alternate approaches, notes their subtle overlap, and concludes that the state of consent in Canadian law is left unclear following this decision.

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Seasonal Workers and Discriminatory Benefits: The NWTCA Provides Some Clarity

By: Jennifer Koshan

PDF Version: Seasonal Workers and Discriminatory Benefits: The NWTCA Provides Some Clarity

Case commented on: NWT (WCB) v Mercer, 2014 NWTCA 01 (Can LII)

This decision from the Northwest Territories Court of Appeal was passed on to me by an ABlawg reader in response to one of my recent posts on the ongoing uncertainty regarding the test for discrimination under human rights legislation. The decision is important in several ways. First, it finds that the standard of review for a decision on discrimination is reasonableness. Second, it affirms the application of the prima facie test for discrimination, most recently discussed by the Supreme Court of Canada in Moore v British Columbia (Education), 2012 SCC 61 (CanLII), [2012] 3 SCR 360. Third, and relatedly, it indicates that the government’s objectives for a particular statute should be considered at the justification stage of analysis rather than under the prima facie discrimination stage. Fourth, it finds that seasonal workers can be seen as a group protected by human rights legislation under the ground of social condition (which includes source of income). I will elaborate upon all of these findings in this comment.

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ABlawg participates in the Launch of Can LII Connects

On April 4, 2014, Can LII launched a new project called Can LII Connects. This site will provide summaries of and commentary on Canadian cases reported on Can LII. Case comments will be accessible via Can LII Connects and via the Can LII website, and Can LII Connects also has a blog.  ABlawg was very pleased to be asked to participate in this project as one of a few law blogs to post historical content in time for the launch. To access ABlawg’s content on Can LII Connects, readers can use the Search function or choose to filter by Publisher.  Readers can concur with comments on Can LII Connects, or add their own commentary.  All new case comments on ABlawg will be cross-posted to Can LII Connects from here on in. We encourage our readers to check out this excellent new resource.

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What the ELA Tells Us About Alberta’s New Monitoring Agency

By: Martin Olszynski

PDF Version: What the ELA Tells Us About Alberta’s New Monitoring Agency

Developments commented on: Government of Canada announces that a new operator for the Experimental Lakes Area has been secured; Appointment of Chair and Vice-Chair of Alberta’s Environmental Monitoring, Evaluation and Reporting Agency’s Board

This past Tuesday, the Canadian and Ontario governments, together with the Winnipeg-based International Institute for Sustainable Development (IISD) announced that an agreement had been reached to transfer responsibility for the Experimental Lakes Area (ELA) from the federal Department of Fisheries and Oceans (DFO) to the IISD.  Many readers will know that the ELA is the world-renowned research facility located in northern Ontario where since 1968 freshwater ecologists and other scientists have conducted numerous important and unique whole-lake experiments, including one by a then-recent Rhodes Scholar named David Schindler that resulted in the phasing out of phosphorus additives in cleaning products.  These same readers will also likely know that DFO’s funding for the ELA, a whopping $2 million per year, was cut as part of the (in)famous 2012 federal budget (which also took an axe to the National Roundtable on the Environment and Economy).  What readers might not know, however, is what these events tell us about the potential success of Alberta’s new independent monitoring agency, the Alberta Environmental Monitoring, Evaluation and Reporting Agency (AEMERA).

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The Decision in Smith v St. Albert (City): An example of a Municipality’s Expansive Powers to Regulate Just About…Everything?

By: Ola Malik and Theresa Yurkewich

PDF Version: The Decision in Smith v St. Albert (City): An example of a Municipality’s Expansive Powers to Regulate Just About…Everything?

Case commented on: Smith v St. Albert (City), 2014 ABCA 76

In our system of cooperative federalism, it is well settled that limiting a government’s powers to the boundaries of its jurisdiction is a futile exercise. The dual aspect of a single jurisdictional subject matter is a reality for any federal system. It is more than likely that any one single jurisdictional subject matter can be shared by several different levels of government without leading to outright conflict. The courts’ modern approach to resolving the overlap is to recognize the dual aspect of a single subject matter, so long as the subservient legislation does not adversely affect or impair any vital element of the core competence of, or conflict with, legislation enacted by the higher level of government (Canadian Western Bank v Alberta, [2007] 2 SCR 3).

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