Case Considered: Canada (Prime Minister) v. Khadr, 2010 FCA 199

The litigation saga of Omar Khadr continues. On July 22, 2010, the Federal Court of Appeal granted a stay pending appeal of the most recent order of the Federal Court after hearing the appeal by teleconference on July 16, 2010. (See Canada (Prime Minister) v. Khadr, 2010 FCA 199). For background on Khadr’s case, including a discussion of the Federal Court order at issue in the appeal, see my earlier ABlawg post, Maureen Duffy, The Third Time Is the Charm? The Ongoing Litigation Regarding Omar Khadr; see also Linda McKay-Panos, My Vote for R. v. Hape as a Significant Legal Case of the Decade.

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PDF version: Mutatis Mutandis: The ERCB speaks (in Latin) on the subject of carbon capture and storage

Considered: ERCB Bulletin 2010 - 22, ERCB Processes Related to Carbon Capture and Storage (CCS) Projects, June 29, 2010

After a long period of cogitation the chief energy regulator in the province has finally provided a statement of how it proposes to approach the regulation of carbon capture and storage (CCS) projects. The message is simple: apply the current rules, so far as they are applicable to CCS (the basic idea of mutatis mutandis). The issue is important: several task forces and many commentators have emphasised that the proponents of CCS projects need regulatory certainty if they are to plan and implement commercial scale CCS operations. Whether this ERCB Bulletin provides sufficient guidance to industry and sufficient comfort to the citizens of the province that CCS projects will be handled safely remains to be seen.

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PDF version: Estoppel arguments fail once again in an oil and gas lease case 

Case considered: Desoto Resources Limited v. Encana Corporation, 2010 ABQB 448

In this case Justice William Tilleman dismissed an appeal from Master Jodi Mason’s decision in chambers in which she had granted summary judgement in favour of the defendant in the action, Encana. Desoto had been seeking a declaration that it had a number of valid leases notwithstanding that the primary term of the leases had expired in the 1970s and that there had been no production on the leases for a period beginning in the late 1990s. This was apparently, at least at the outset, as a result of the properties being shut-in by order of the Energy Resources Conservation Board because of the failure of the then lessee to pay well abandonment deposits.

I blogged on Master Mason’s decision - see Successful application for summary dismissal in an oil and gas lease validity case.

On appeal, Desoto focused on estoppel arguments urging that the leases should survive on the basis of promissory estoppel, estoppel by acquiescence, or estoppel by deed.

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PDF version: The Third Time Is the Charm? The Ongoing Litigation Regarding Omar Khadr

Case considered: Khadr v. Canada (Prime Minister), 2010 FC 715.

Omar Khadr, perhaps the most controversial of the detainees at the U.S. naval base at Guantanamo Bay, Cuba, has won another round, in the Federal Court of Canada, in his ongoing quest to pressure the Government to seek to repatriate him to Canada. The Honourable Mr. Justice Zinn cited the “unique circumstances of this case” and entered a strongly worded judgment, finding that Khadr was entitled to “procedural fairness and natural justice” by the executive in the response to the most recent Supreme Court of Canada ruling in the case - Canada (Prime Minister) v. Khadr, 2010 SCC 3 [Khadr II].

Justice Zinn, finding the Government’s response to date to be lacking, laid out a number of specific mandates for the Government. He ordered the Government to advise Khadr and his attorneys, within seven days, of all “untried” remedies, which had the potential to cure or at least lessen the prior breach of Khadr’s Charter rights. He granted Khadr time to respond with his own list of potential remedies, and even went so far as to retain jurisdiction to resolve disputes and to impose his own remedies if the Government failed to do so in a reasonable time. Not surprisingly, the Government appealed Justice Zinn’s ruling, setting the stage for a possible third round of higher court rulings in this case.

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PDF version: Still More Questions about Standing before the ERCB 

Case Considered: Prince v. Alberta (Energy Resources Conservation Board), 2010 ABCA 214

Leave to appeal applications from standing decisions of the Energy Resources Conservation Board (ERCB) continue to be heard almost, it seems, regularly. Some cases raise questions about the first part of the standing test, whether a “right” has been established that may be affected by a proposed energy project. Others focus on the second part of the test, whether possible direct and adverse effects have been demonstrated. Sometimes the Court of Appeal grants leave; sometimes it does not. Prince v. Alberta (ERCB) is another case of leave denied. It is also yet another case that raises important questions about the proper interpretation of the test for standing. Isn’t it time for legislative direction?

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PDF version: Water Rights and Water Stewardship: What About Aboriginal Peoples?

Introduction

The province of Alberta is currently reviewing its approach to the allocation, licensing and transfer of water rights. The government has received advice from a number of groups of experts established under various government initiatives and concerned citizens have come forward with their own recommendations. In addition, the government has announced that it will hold public consultations on the proposed review of its water allocation and management system in the summer of 2010.

One striking feature of the reports received by the Alberta government is the absence of attention paid to the issue of Aboriginal uses of, and rights to, water. First Nations are only mentioned, along with other designated groups, in passing in a single recommendation (at #12 of the 15 recommendations) in the report submitted by the Minister’s Advisory Group dealing with governance of water management and allocation: Minister’s Advisory Group, Recommendations for Improving Alberta’s Water Management and Allocation, August 2009.

One reason for this lack of attention is Alberta’s long-standing position that Aboriginal water rights have been extinguished and the province has exclusive jurisdiction over water in the province (see Nigel Bankes, “Water Law Reform in Alberta: Paying Obeisance to the ‘Lords of Yesterday’, or Creating a Water Charter for the Future?” (1995) 49 Resources 1 at 5).

Alberta’s position has been challenged by several First Nations in several lawsuits alleging that their water rights still exist, both on and off reserve, and those rights now receive the benefit of constitutional protection. In connection with these rights Aboriginal peoples assert that they must be adequately consulted by the government on proposed reviews of the water allocation system and on ongoing land and water initiatives that impact their rights. In response, the government has stated that it will seek input from First Nations on water use and watershed planning initiatives through an undefined separate “yet parallel process”: Government of Alberta, Water for Life: Alberta’s Water Allocation Management System Review; see “Who is involved in the Water Allocation System Review?”

In November 2009, the Canadian Institute of Resources Law (CIRL) convened a small workshop, funded by the Alberta Law Foundation and the Canadian Boreal Initiative, to discuss the issue of Aboriginal rights to water in Alberta. The meeting was attended by First Nations elders and councillors, community leaders, lawyers and scholars. This article draws in part from the proceedings of this workshop and a CIRL Occasional Paper #29, Defining Aboriginal Rights to Water in Alberta: Do They Still “Exist”? How Extensive are They? by Monique M. Passelac-Ross and Christina M. Smith (2010).

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PDF version: Pre-emptive attack on arbitration succeeds

Case considered: Suncor Energy Products Inc. v. Howe-Baker Engineers, Ltd., 2010 ABQB 310

Instead of asserting an ordinary limitation period defence in the ordinary course of an arbitration proceeding, Suncor chose to attempt a pre-emptive attack in the Court of Queen’s Bench, asking the court to assume jurisdiction and strike the arbitration proceedings that were barely underway. The court did so, rather than dismissing Suncor’s application or requiring Suncor to respond to the request for arbitration so that the parties’ arbitrator could decide the limitation period issue. It is this aspect of the judgment -the “who decides?” aspect - that I will focus on in this comment. The court’s decision appears to undermine the legitimacy of domestic arbitration.

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