Month: December 2007 Page 1 of 2

The Town of Strathmore faced a sewage problem. It proposed to deal with that problem by constructing a pipeline and disposing of some of its waste water into the Bow above the Siksika Reserve. Not surprisingly the Siksika took a dim view of this and when the Director approved the town’s application under the Environmental Protection and Enhancement Act, R.S.A. 2000, c. E-12, the Siksika appealed that decision to Alberta’s Environmental Appeal Board (the EAB). The Siksika also sought judicial review arguing amongst other things that the government of Alberta was in breach of its constitutional duty to consult the Nation. Justice Peter McInytre (oral reasons for judgement, available on the EAB’s website ) rejected the Siksika’s JR application on the grounds that the Siksika’s application was premature and therefore moot (because they might succeed before the EAB). In addition Justice McIntyre reasoned that the EAB procedure (and subsequent consideration of the EAB decision by the Minister) might cure any defect (want of consultation) there might have been in the Director’s procedure. There is no suggestion that Justice McIntyre rejected the application on the basis that the Siksika had not exhausted their local remedies.

Standing Against Public Participation at the Alberta Energy and Utilities Board

By Shaun Fluker

On December 12, 2007

In Administrative Law, Natural Resources

Cases Considered: Sawyer v. Alberta (Energy and Utilities Board), 2007 ABCA 297

PDF Version: Standing Against Public Participation at the Alberta Energy and Utilities Board

In September 2007, the Alberta Court of Appeal denied leave to appeal an AEUB (now the Energy Resources Conservation Board) decision that affirmed its longstanding position that participatory rights to contest the merits of an energy project by, for example, presenting evidence and/or cross-examining the project proponent, are not available to recreational users of public lands or urban environmentalists.

Substance Over Form: The Court of Appeal’s Protection of Intervener Rights at the Alberta Energy and Utilities Board

By Alice Woolley

On December 12, 2007

In Administrative Law, Natural Resources

Cases Considered: Lavesta Area Group v. Alberta (Energy and Utilities Board), 2007 ABCA 365

PDF Version: Substance Over Form: The Court of Appeal’s Protection of Intervener Rights at the Alberta Energy and Utilities Board

In Lavesta Area Group v. Alberta (Energy and Utilities Board) 2007 ABCA 365, Madam Justice Carole Conrad granted two appeals of Alberta Energy and Utilities Board (“Board”) decisions. She did so on the basis of “reasonable apprehension of bias” and, in particular, on the basis of the Board’s own concession that such an apprehension had arisen.

Ascertaining a Dominant Tenement With a Right to a View

By Jonnette Watson Hamilton

On December 12, 2007

In Property

Cases Considered: Kolias v. Owners Condominium Plan 309 CDC, 2007 ABQB 714

PDF Version: Ascertaining a Dominant Tenement With a Right to a View

The small community known as Eagle Ridge occupies the eastern shore of the Glenmore Reservoir in Calgary. In 1971, a restrictive covenant was registered against Lot 10 in the Eagle Ridge community, a lot now owned by the appellants, Ike and Lisa Kolias. In the restrictive covenant, Lot 10 was divided into three areas and height restrictions were imposed on two of those three areas. No structure or hedge over six feet in height could be built or placed in the first of those areas. Nothing over fourteen feet in height (except chimneys or radio or T.V. antenna) was allowed in the second area. Although not specified in the restrictive covenant itself, its purpose arguably was to protect the sight lines of the units in the six storey condominium on the adjacent lot. These units had views in three directions, including views of downtown to the north and, to the west across Lot 10, views of Heritage Park, the Glenmore Reservoir and the mountains to the west.

Offensive Publication Case Highlights the Tension Between Human Rights and Civil Liberties

By Linda McKay-Panos

On December 11, 2007

In Administrative Law, Constitutional, Human Rights

Case(s) Considered: Darren Lund v. Stephen Boissoin and the Concerned Christian Coalition Inc. (November 30, 2007, Alta. H.R.P.; Lori G. Andreachuk, Q.C., Panel Chair)

PDF Version: Offensive Publication Case Highlights the Tension Between Human Rights and Civil Liberties

In many circumstances, human rights and civil liberties principles are complementary. However, in some cases—such as those involving freedom of expression—they can conflict. In examining s. 3 of Alberta’s Human Rights, Citizenship and Multiculturalism Act (“HRCMA”), R.S.A. 2000, c. H-14, the tension between these two values is acute. A recent Alberta Human Rights Panel (“Panel”) decision illustrates how difficult it is to balance freedom of expression (supported byfreedom of religion) and freedom from discrimination in Alberta.

Month: December 2007 Page 1 of 2

Environmental Permitting and the Scope of the Duty to Consult

Standing Against Public Participation at the Alberta Energy and Utilities Board

Substance Over Form: The Court of Appeal’s Protection of Intervener Rights at the Alberta Energy and Utilities Board

Ascertaining a Dominant Tenement With a Right to a View

Offensive Publication Case Highlights the Tension Between Human Rights and Civil Liberties