Case considered: Reece v. Edmonton (City), 2010 ABQB 538

Lucy is a 34 year old elephant who lives in the Edmonton Valley Zoo. In recent years Lucy has attracted significant media and celebrity attention, as animal welfare activists have campaigned for her transfer to a warmer climate (details on the campaign and Lucy herself are documented here). Activists insist that Lucy is in distress because of her living conditions in the Edmonton zoo. Media celebrities including William Shatner and Bob Barker have called upon the City of Edmonton to allow Lucy to move south. Lucy’s plight has attracted the attention of the local media as well (see “Free Lucy the elephant: protesters“, CBC News). The Valley Zoo insists Lucy is fine and cannot be safely moved.

In the Fall of 2009, ZooCheck Canada and the People for the Ethical Treatment of Animals (PETA) retained Ontario lawyer Clayton Ruby to advise them on possible legal remedies for Lucy. In February 2010 ZooCheck, PETA, and a local Alberta resident (Tove Reece) filed an Originating Notice in the Alberta Court of Queen’s Bench seeking a judicial declaration that the City of Edmonton (as operator of the Valley Zoo) was contravening section 2 of the Animal Protection Act, R.S.A. 2000, c. A-41, in its treatment of Lucy at the Valley Zoo. Associate Chief Justice John Rooke heard the ZooCheck application along with the City’s motion to strike the proceeding under Rule 129 of the Alberta Rules of Court, Alta. Reg. 390/1968. In Reece v. Edmonton (City), 2010 ABQB 538 Justice Rooke grants the City’s motion to strike on the basis that the ZooCheck/PETA application is an abuse of process for two reasons: (1) the application does not conform with the legislative path for bringing this issue to the Court; (2) no individual can bring a civil action to enforce criminal law. Justice Rooke also makes some obiter statements on standing which I comment on below.

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PDF version: The Case of the 1600 dead ducks: The verdict is in - Syncrude guilty under the Migratory Birds Convention Act 

Case considered: R. v. Syncrude Canada Ltd., 2010 ABPC 229

On June 25, 2010 Justice Ken Tjosvold of the Provincial Court of Alberta issued his guilty verdict against Syncrude Canada after a lengthy trial heard over approximately 8 weeks during this past March and April. The message is a powerful one: Syncrude is held to account by the criminal justice system for the death of 1600 migratory birds that landed in one of its tailings ponds.

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PDF version: Fraud and Concealment of Contaminated Land: Do Your Due Diligence, Purchaser

Cases considered: Motkoski Holdings Ltd. v. Yellowhead (County), 2008 ABQB 454 (Q.B.), Motkoski Holdings Ltd. v. Yellowhead (County), 2010 ABCA 72 (C.A.)

As both environmental standards and the demand for strategically located land increase, there is a greater likelihood that contaminated land will come on the market. What is clear from the case of Motkoski Holdings Ltd. v. Yellowhead (County) is that the burden of thoroughly investigating a site remains firmly on the purchaser’s shoulders, despite the sometimes inequitable difference in bargaining power between a vendor and a purchaser. Standard real estate contractual terms will often transfer land “as is” and exclude representations and warranties outside the four corners of the contract as well as exclude any collateral agreements. A contractual term that excludes any warranty as to the soil conditions, particularly in light of an engineering report that recommends further investigation, should put the purchaser on notice that further investigation may be necessary. If there are any concerns raised from preliminary investigation of the site, the purchaser neglects to follow up or investigate at its own peril.

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PDF version: Maintaining space for autonomy? Environmental assessments in the context of aboriginal land claims agreements

Case considered: Quebec (Attorney General) v. Moses, 2010 SCC 17

This is the first decision of the Supreme Court of Canada to examine a modern land claims agreement; in this case the James Bay and Northern Quebec Land Claim Agreement (JBNQA or the Agreement) between Canada, Quebec and the James Bay Cree and the Northern Quebec Inuit. The argument in the case happens to relate to the nature of the environmental assessment process that should be applied to a particular project but there is a much broader issue at stake which is the capacity of federal and provincial governments to continue to make and apply laws within the territory covered by the Agreement to matters “covered” by the terms of the Agreement. By adopting an artificial distinction between that which is covered by the Agreement and that which falls outside it, the majority recognize that governments have retained significant authority to “supplement” the terms of the Agreement. But the government’s authority to do so is not completely unlimited since the majority also recognizes that such authority must be exercised consistently with the Crown’s duty to consult. By contrast, the dissent takes a more robust view of the coverage of the land claims agreement and as a result limits the capacity of governments to create a parallel normative world that sidelines negotiated arrangements for autonomy.

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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.

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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:   Climate Change Legislation – Waiting for Obama; or Just Waiting

Shaun Fluker’s environmental law non-event of the past decade  focused on case law (or lack thereof). My review of climate change legislation continues Shaun’s theme. We waited for federal legislation. Then we waited for the Obama climate change legislation. Now with the President’s Senate majority gone, how long can Canada continue to wait?

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Case considered: Municipality of Crowsnest Pass v. Director, Southern Region, Environmental Management, Alberta Environment (23 December 2009), Appeal No. 08-016-R (A.E.A.B.).

PDF version:   The Environmental Appeal Board confirms Alberta Environment’s decision to reject the application of municipality to obtain additional water from a well

The Context

Crowsnest Pass is one of a number of communities in the South Saskatchewan River Basin (SSRB) (another is Okotoks) that face a difficult challenge in acquiring the rights to use additional sources of water to permit municipal expansion.

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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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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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