PDF version: SCC Wrongly Accused of “Judicial Activism” in Recent Insite Case
Decision considered: Canada (A.G.) v PHS Community Services Society (“Insite“)
The recent SCC judgment in the Insite case has been said to “threaten peace between judges and legislators” (see Kirk Makin, “Landmark Insite decision threatens peace between judges and legislators” October 10, 2011 Globe and Mail Online (Makin). I am not sure that I agree with this sentiment.
By: Astrid Kalkbrenner
PDF Version: Cleaning Up Coal
Regulations Commented On: Federal Draft Regulations “Reduction of Carbon Dioxide Emissions from Coal-Fired Generation of Electricity Regulations” as of 27 August 2011
On 27 August 2011 the federal government published proposed regulations on the “Reduction of Carbon Dioxide Emissions from Coal-Fired Generation of Electricity” (the “Regulations”). The Regulations are open for comments for a 60-day public consultation period. The final Regulations will be published next year.
As noted in previous posts, in its newsletter titled JSS Barristers Rules JSS Barristers provides summaries of cases considering the new Alberta Rules of Court, Alta Reg 124/2010.
Issue 3 of the Newsletter and updated Cumulative Summary are now available here.
The JSS Barristers website, www.jssbarristers.ca, features a Cumulative Summary of Court Decisions which considers the Alberta Rules of Court. The Cumulative Summary of the Rules is organized by the Rule considered, and includes an expanded summary of the Decisions including key quotations from the Decisions. It is updated regularly to ensure that it provides an ongoing and current resource for those interested in the consideration of the Rules of Court on a cumulative basis.
Those who are interested in receiving future editions of JSS Barristers Rules can subscribe here.
PDF version: The Fading Federal Presence in Environmental Assessment and the Muting of the Public Interest Voice
Topic: Federal environmental assessment and effective public participation update
Good environmental assessment followed by well crafted permits, regulation, monitoring and follow-up responsive to the assessment, results in better planned projects, fewer environmental impacts, and often net environmental and social sustainability gains. The legislative authority for the federal government to carry out the assessment is found in the Canadian Environmental Assessment Act (SC 1992, c 37) (“CEAA“) and regulations. The federal government may assess a project when it has constitutional jurisdiction over an area that may be impacted by a project, and, generally, where the federal government has permitting authority over the project or an aspect of it, all as set out in the CEAA and regulations. These areas include fisheries, navigation, migratory birds, federal lands, Aboriginal interests, nuclear facilities, interprovincial and international matters. Having the exclusive right to regulate in these and other areas, only the federal government can do a fully responsive job in assessing impacts. This is because only the federal government is in a position to know what information it needs in the environmental assessment process in order to determine whether it should provide the permit for the project when taking into account likely environmental impacts. If the project does go ahead (like most projects do) only the federal government is in a position to know what it needs during the assessment process in order to properly mitigate and regulate impacts, especially on areas within its jurisdiction. Such mitigation and alteration could include project alterations, monitoring, follow up conditions, and adaptive management measures that may require the proponent to change environmental management because of unexpected impacts. As well, as the responsible protector of the public interest with respect to matters under its jurisdiction, only the federal government can wholly take into account the public and national interest during the environmental assessment and following regulatory processes.
PDF version: Accounting issues left unresolved in split title litigation
Case considered: Anderson v Amoco Canada Oil and Gas Co, 2011 ABCA 268
The Court of Appeal has finally brought an end to the phase gas, split title litigation known under the style of cause of Anderson v Amoco. The Court did so (at the behest of the petroleum owners (the defendants)) under the cover of the drop dead rule of the old Rules of Court. As a result of this decision the accounting issues, one of the key issues in split title litigation which has been around since the Privy Council’s decision in Borys v CPR, [1953] AC 217, will remain unresolved. While this dismissal will bind the particular plaintiffs listed in this litigation it will not preclude disgruntled gas owners from returning to the fray in the future – either individually or as part of a class action. Thus, while the defendants and their lawyers may have cracked open a few bottles of champagne last week to celebrate the end of this long-running litigation I am not sure that the accounting issues related to production from split title lands are going to go away.
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