Case considered: MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2

PDF version: MiningWatch Canada v. Canada (Fisheries and Oceans): Hoisted on one’s own petard?

Ecojustice, on behalf of its client MiningWatch Canada, declared victory on January 21, 2010 with the release of the Supreme Court of Canada’s decision in MiningWatch Canada v. Canada (Fisheries and Oceans). In brief, Justice Rothstein for a unanimous Supreme Court ruled that the track of environmental assessment conducted by a federal responsible authority pursuant to the Canadian Environmental Assessment Act, S.C. 1992, c. 37 flows directly from the scope of the project as proposed by a project proponent. The decision confirms that tracking an environmental assessment sequentially precedes project scoping under Canadian Environmental Assessment Act, and is of obvious significance in the conduct of federal environmental assessment on projects in Alberta on a go forward basis.

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PDF version: The Nothing that is: The leading environmental law case of the past decade

The most important judicial decision in environmental law from Alberta courts (or the Supreme Court of Canada for that matter) during the last decade is precisely the absence of any such decision. This is not to say that significant issues in environmental law have not been ruled upon by the courts during this time, but rather that environmental law has stagnated and has lost its vigour and imagination. The 1990s were marked with strong statements by the Supreme Court of Canada on environmental protection: “one of the major challenges of our time” (Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3 at para. 1); “a fundamental value in Canadian society” (Ontario v. Canadian Pacific, [1995] 2 S.C.R. 1031 at para. 55); “a public purpose of superordinate importance” (R. v. Hydro Quebec, [1997] 3 S.C.R. 213 at para. 85). Looking back now, these statements seem like nothing more than rhetoric.

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Case considered: Kelly v. Alberta (Energy Resources Conservation Board, 2009 ABCA 349

PDF Version: The problem of Locus Standi at the Energy Resources Conservation Board: A Diceyan solution

Introduction
A person must have ‘standing’ to oppose an energy project being considered for approval by the Alberta Energy Resources Conservation Board (ERCB). In January 2009 the ERCB denied standing to Susan Kelly, Linda McGinn, and Lillian Duperron in relation to an application by Grizzly Resources to drill two sour gas wells near their residences. All three applicants reside outside the designated 2.11 km area emergency planning zone (EPZ) surrounding the gas wells and designated by Grizzly pursuant to ERCB Directive 071 - Emergency Preparedness and Response Requirements for the Petroleum Industry. Directive 071 defines an EPZ as the area surrounding a sour gas well that due to its proximity requires an emergency response plan from the well licensee. The delineation of an EPZ by and large defines the applicant’s consultation requirements set by the ERCB and, as I note below, it also informs the ERCB’s interpretation of the standing test in section 26(2) of the Energy Resources Conservation Act, R.S.A. 2000, c. E - 10. The distinguishing feature in this case involves the relatively new requirement in Directive 071 for sour gas well licensees to model a protective action zone (PAZ) which anticipates the movement of a sour gas plume upon release from the well. Kelly, McGinn and Duperron reside within the designated PAZ modelled by Grizzly, which covered a larger area than the EPZ. This fact proved significant in the subsequent Alberta Court of Appeal proceedings.

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Cases Considered: Big Loop Cattle Co. v. Alberta (Energy Resources Conservation Board), 2009 ABCA 301;
Big Loop Cattle Co. v. Alberta (Energy Resources Conservation Board), 2009 ABCA 302;
Petro-Canada Sullivan Field Proceeding

PDF Version: Love is in the air at the Energy Resources Conservation Board: A comment on the Petro-Canada Sullivan Field Application

In separate decisions cited as Big Loop Cattle Co. v. Alberta (Energy Resources Conservation Board), Madam Justice Marina Paperny dismisses two applications by the Pekisko Group et. al. for leave to appeal an Energy Resources Conservation Board (ERCB) ruling concerning the revelation of an ERCB employee involved in a personal relationship with a Petro-Canada employee during a Petro-Canada facility application hearing. Petro Canada proposes to drill sour gas wells along the front range of the Rocky Mountains west of Longview, Alberta, and the Pekisko Group among others opposes the development. In a strange twist, the ERCB ruled on its own partiality in March 2009 and the recent Alberta Court of Appeal decisions flow from that ruling.

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PDF Version:  R. v. Syncrude Canada: The Case of The 500 (or was that 1600) Dead Ducks

In a Provincial Court appearance on September 14, 2009, Syncrude Canada pled not guilty to charges laid by Alberta Environment and Environment Canada in relation to the toxic substances in its Aurora Mines tailing pond that resulted in the death of 1600 migratory birds in 2008 (the number of birds was initially thought to be 500, but was revised upwards to 1600 after further investigation). ABlawg has followed this regulatory saga from its inception in January 2009 (see previous posts by myself (R. v. Syncrude Canada: The Case of The 500 Dead Ducks and Environmental Private Prosecution Update: John Custer v. Syncrude Canada) and Jocelyn Stacey (Lame duck constitutional arguments: a new twist on Syncrude’s Tailings Pond Debacle).

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Case considered: Berger v. Alberta (Energy Resources Conservation Board), 2009 ABCA 158 

PDF version: Narrowing the prospect of obtaining leave to appeal an ERCB decision: The troublesome aspect of judicial deference

The Court of Appeal routinely decides applications for leave to appeal an Energy Resources Conservation Board (ERCB) decision on questions of law or jurisdiction pursuant to section 41 of the Energy Resources Conservation Act, R.S.A. 2000, c. E-10 (ERCA). In Berger v. Alberta (Energy Resources Conservation Board), Mr. Justice Frans Slatter denies a request from several applicants for leave to appeal a December 2008 ERCB approval issued to Highpine Oil and Gas to drill 3 sour gas wells in Parkland County west of Edmonton (ERCB decision 2008-135).

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Case considered: Genesis Land Development Corp. v. Alberta, 2009 ABQB 221

PDF version: A rare species of tort in the Spray Valley: Abuse of public office

My work in environmental law began in the late 1990s as part of the opposition to a mountain resort proposed by a land company based in Calgary - Genesis Land Developers - to be located along the eastern boundary of Banff National Park in the Spray Valley. In the planning stages since the 1960s, this resort proposal had only partial regulatory approval by 1998 when its legal ownership was acquired by Genesis. The subsequent Genesis development proposal consisted of a four-season mountain resort in the Spray Valley, including a tour boat operation on Spray Lakes, helicopter and cat-assisted skiing on Tent Ridge, and a 400 bed accommodation facility. Of these three components, the boating operation was essentially approved when Genesis acquired ownership of the proposal. The regulatory approval process was in full swing until May 31, 2000, when the Government of Alberta announced the project would not be approved and the Spray Valley would be designated as a provincial park. This turn of events led to the current proceedings.

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PDF Version: R. v. Syncrude Canada: The Case of The 500 Dead Ducks

Alberta Environment and Environment Canada have laid charges against Syncrude Canada in relation to the toxic substances in its Aurora Mines tailing pond that resulted in the death of 500 migratory birds in 2008.

Environment Canada has charged Syncrude for violating section 5.1 of the Migratory Birds Convention Act, S.C. 1994, c. 22 by depositing substances harmful to migratory birds in its tailing pond. This is the same information as sworn by John Custer in his private prosecution that commenced in January (See my earlier post Environmental Private Prosecution Update: John Custer v. Syncrude Canada).

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Cases Considered: Bearspaw Petroleum Ltd. v. Alberta Energy and Utilities Board, 2008 ABCA 405;
Bearspaw Petroleum Ltd. v. Alberta Energy and Utilities Board, 2009 ABCA 3.

PDF Version: Obtaining leave to appeal an ERCB decision: Where is the justice?

Section 41 of the Energy Resources Conservation Act, R.S.A. 2000 c. E-10 provides for an appeal from a decision of the Energy Resources Conservation Board (ERCB) on questions of law or jurisdiction with leave of the Court of Appeal. The test for leave includes a consideration of four factors: (1) whether the point on appeal is of significance to the practice; (2) whether the point raised is of significance to the action itself; (3) whether the appeal is prima facie meritorious; and (4) whether the appeal will unduly hinder the progress of the action. Bearspaw Petroleum Ltd. v. Alberta Energy and Utilities Board is one of many recent leave to appeal decisions from the Court (See for example “Landowners, Procedural Fairness and Alberta’s Energy Resources Conservation Board” ). What strikes me about this decision is how it compares to the Court’s decision to deny leave to appeal in Sawyer v. Alberta Energy and Utilities Board, 2007 ABCA 297 (see “Standing against public participation at the Alberta Energy and Utilities Board”).

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PDF Version:  The Counterview to a National Securities Regulator in Canada

I am coming to the aid of an old friend. Having worked as legal counsel at the Alberta Securities Commission, I can tell you the current securities regulatory system works and is far less fragmented than most suggest. Indeed provincial (and territorial) securities regulation serves Canadians very well notwithstanding the challenges of operating within such a large and diverse a nation as Canada. Of all the legitimate reasons to implement a national securities regulator, let’s be clear that “fixing the system” is not one of them.In the early part of the 20th century, various provinces enacted securities legislation to regulate the sale of securities in their jurisdiction. In 1932, the U.K. Privy Council upheld Alberta’s securities legislation as within the provincial constitutional purview with its Lymburn v. Mayland decision, [1932] A.C. 318. Until the 1960s, most provincial governments administered their securities legislation within the executive branch. Presumably growth in the size and complexity of the capital market within certain provinces led governments to create provincial administrative agencies known as securities commissions and delegate regulatory authority to them. Shortly thereafter a federal proposal for securities regulation was published in 1979. Similar national proposals have surfaced more recently with the Crawford Report in 2005 and now the Hockin Report. The point of this history lesson is simply to observe that provincial jurisdiction over securities regulation has been challenged time and time again almost from the day it started.

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