Month: March 2010 Page 1 of 2

Case considered: Nelson v. 1153696 Alberta Ltd., 2010 ABQB 164

PDF version: Locating Road Boundaries under the Doctrine of Dedication

What is the proper basis for fixing the physical boundaries of a road dedicated to public use under the common law doctrine of dedication? In an earlier decision, Justice Andrea Moen had determined that the road known as the Rabbit Hill Road, which passes through private land owned by the respondents, the Nelsons, and the appellant, 1153696 Alberta Ltd., had been “dedicated” as a public road by a previous owner of the land: see Nelson v.1153696 Alberta Ltd., 2009 ABQB 732. As a result of that 2009 judgment, the Nelsons hired a land surveyor so the precise geographic location and physical dimensions of Rabbit Hill Road could be determined. The surveyor provided for a 66 foot wide road. The appellant took issue with that width and the amount of private property that it thereby lost to the public road. The width of the driving surface of Rabbit Hill Road was usually only 45 feet, which meant that the 66 foot width included more than the road itself. Is a public road dedication confined to the actual driving surface of the road or does it include roadside ditches and slopes? It seems that this issue about the scope of a dedication has never been specifically addressed by a Canadian court. English courts have addressed the issue, but Justice Moen refused to follow those precedents.

Endangered species under Alberta’s Wildlife Act: Effective legal protection?

By Shaun Fluker

On March 29, 2010

In Environmental, Protection of Species

Legislation considered: Wildlife Act, R.S.A. 2000, c. W-10

PDF version: Endangered species under Alberta’s Wildlife Act: Effective legal protection?

On March 23, 2010 Alberta’s Endangered Species Conservation Committee renewed its 2002 recommendation that the Minister of Sustainable Resource Development designate the grizzly bear as a threatened species under the Wildlife Act, R.S.A. 2000, c. W-10. The legal implications of such designation could be few or many under Alberta’s legislative framework for endangered species, and this comment explores this in more detail.

Challenge Notices Under the Terms of the 1990 CAPL Operating Procedure

By Nigel Bankes

On March 25, 2010

In Oil & Gas

Case considered: Diaz Resources Ltd v Penn West Petroleum Ltd, 2010 ABQB 153

PDF version: Challenge notices under the terms of the 1990 CAPL Operating procedure

This case will be of interest to the oil and gas bar for two reasons. First, the case provides some guidance as to the quality of the information that a joint operator must provide to support a challenge notice. Second, the case raises (but does not resolve) a question as to whether or not a challenging joint operator also carries the burden of establishing that it is capable of operating the property in a “good and workmanlike manner.”

Defining Art in the Commons: The Case of Building Owners and Graffiti in Edmonton

By Carmen Gustafson

On March 23, 2010

In Municipal Law, Property

Case Considered: O & M Investments Ltd. v. Edmonton (City), 2010 ABQB 146

PDF version: Defining Art in the Commons: The Case of Building Owners and Graffiti in Edmonton

Graffiti, or street art, is hardly new and neither is the debate around whether it is a public nuisance or art in the commons, as was shown in O & M Investments Ltd. v. Edmonton (City). Graffiti is likely one of the world’s most contentious art forms, perhaps in part due to the subjective nature of art appreciation but also due to the renegade qualities of the installation of a piece. In O & M, a building owner contested an order issued by the City of Edmonton’s Community Standards Branch to “[r]emove all graffiti on any structures on the property that are visible to any surrounding property” (at para. 3). The order referred to graffiti that had been applied to a large wall facing a vacant lot in what can best be described as a mixed-use neighbourhood (see map here and in “street view”, move around to the west side of the building to observe the graffiti).

Leave to Appeal Granted by the SCC in Métis Status Case

By Jennifer Koshan

On March 15, 2010

In Aboriginal, Constitutional, Supreme Court of Canada

By: Jennifer Koshan

PDF Version: Leave to Appeal Granted by the SCC in Métis Status Case

Case Commented On: Cunningham v Alberta (Aboriginal Affairs and Northern Development), 2009 ABCA 239, leave to appeal granted March 11, 2010

On March 11, 2010, the Supreme Court of Canada (Justices McLachlin, Abella and Rothstein) granted leave to appeal to the Alberta government in Her Majesty the Queen in Right of Alberta (Minister of Aboriginal Affairs and Northern Development) and the Registrar et al. v Barbara Cunningham et al. Dealing with the relationship between Métis and Indian status under the Métis Settlements Act, the case may take on even greater significance in light of Bill C-3, the Gender Equity in Indian Registration Act, introduced in the House of Commons on March 12, 2010.