By: Nigel Bankes
PDF Version: Green Regs and Ham: Some Thoughts on Contaminated Sites, the Redwater Decision and the Principle of Intergenerational Equity
Note: This post is a revised version of remarks presented at the Fifth Green Regs and Ham Breakfast convened by the Environmental Law Centre, Edmonton on October 3, 2017. The session was entitled “Municipal Environmental Jurisdiction: Contaminated sites and hockey fights” but my remarks principally addressed liability for abandonment and reclamation of oil and gas wells and facilities.
Good morning. I acknowledge that we meet on the traditional territory of Treaty 7 First Nations, the Blackfoot, Tsuu T’ina, and Stoney First Nations. It is particularly important to acknowledge that connection given that we are talking today about our stewardship and custodial responsibilities for the land (and perhaps more specifically our failings).
There are three parts to the presentation: first, I will offer some remarks on the Court of Appeal’s decision in Redwater; second, some comments on a recent paper from the CD Howe Institute dealing with oil wells (see, Benjamin Dachis, Blake Shaffer and Vincent Thivierge, “All’s Well that Ends Well: Addressing End-of-Life Liabilities for Oil and Gas Wells”) and third, I will conclude with some more philosophical observations on the importance of the principle of intergenerational equity. Continue reading
By: Shaun Fluker
PDF Version: A Proposal for Effective Legal Protection for Endangered Species in Alberta: Introducing the Wildlife Species Protection and Recovery Act (Alberta)
Case Commented On: Wildlife Species Protection and Recovery Act, SA 2017, c W-?
I have followed law and policy on endangered species protection for nearly a decade, focusing primarily on Canada’s federal Species at Risk Act, SC 2002 c 29 [SARA] and Alberta’s Wildlife Act, RSA 2000 c W-10 and the policies enacted thereunder. From time to time, I have glanced into the Ontario Endangered Species Act, 2007, SO 2007, c 6 [Ontario ESA] and observed a selection of decisions by the Ontario Environmental Review Tribunal – for example its decisions concerning the threatened blanding’s turtle. There are many who are working hard on the endangered species file, and some have enjoyed success in Federal Court obtaining rulings under SARA which are favourable towards protecting endangered species in Alberta and elsewhere. There is also an impressive amount of empirical research being conducted by scientists that sheds important light on the application of SARA. All of this is encouraging, but nevertheless I keep returning to an ABlawg post I wrote 7 years ago entitled Endangered species under Alberta’s Wildlife Act: Effective legal protection? In that piece I noted meaningful and effective legal protection for endangered species is largely a provincial matter in Canada and Alberta’s Wildlife Act does not provide effective legal protection for endangered species in this province. Nothing here has really changed since then. Enter the proposed Wildlife Species Protection and Recovery Act (Alberta). Continue reading
By: Nigel Bankes
PDF Version: The Intersection of Discretionary Powers, Fiduciary Duties, the Public Interest and the Standard of Review
Case Commented On: Coldwater Indian Band v Canada (Aboriginal Affairs and Northern Development), 2017 FCA 199 (CanLII)
In this decision, the Federal Court of Appeal, by a majority (per Justice Eleanor Dawson, Justice Donald Rennie concurring; Justice Wyman Webb, dissenting), concluded that the Minister of Indian Affairs and Northern Development breached the fiduciary duty he owed to the Coldwater Indian Band when he approved the assignment of a pipeline right of way easement of 1955 from one affiliate of Kinder Morgan Canada Inc to another affiliate without taking steps to improve the terms of the bargain or at least to ensure that the Crown had been vigilant in its continuing fiduciary obligation to preserve and protect the Band’s interest in the reserve land from an exploitive or improvident bargain. Since the matter came before the Court as an application for judicial review, the Court set aside the Minister’s decision and returned the matter to the Minister for redetermination in accordance with the Court’s reasons. An earlier application by the Band to prevent the Minister from granting approval to the assignment had been dismissed by the Federal Court on the basis that that the application was premature; see the decision in Coldwater Indian Band v Canada (Indian Affairs and Northern Development), 2014 FCA 277 (CanLII). For my earlier post on those proceedings see here. Continue reading
By: Kaye Booth and Heather Forester
PDF Version: JH v Alberta Health Services: The Constitutional Implications of Indefinite Psychiatric Detention
Case Commented On: JH v Alberta Health Services, 2017 ABQB 477 (CanLII)
In 2015, JH appealed a decision by a Review Panel, appointed to determine the need for his continued detention under the Mental Health Act, RSA 2000, c M-13 (Alberta MHA), that he should be held indefinitely in the care of the Foothills Hospital (JH v Alberta Health Services, 2015 ABQB 316 (CanLII)). JH had come to the Foothills with a fever and an infected knee injury the year prior, and was then kept there against his will, based on the Review Panel’s determination. The Review Panel’s conclusion that JH should continue to be detained was based on its view that JH lacked insight into his medical needs and exhibited poor judgment, both of which might put him at risk of harm. The outcome of the case and whether JH would continue to be held in detention was contingent on whether JH fit the criteria for detention set out in section 8(1) of the Alberta MHA, namely that he: (a) suffered from a mental disorder; (b) was likely to cause harm to himself or others, or to suffer substantial physical or mental deterioration if not kept in detention; and (c) was unable to continue at the facility other than as a formal patient. JH’s consulting psychiatrist testified that it was his opinion that JH fit these criteria, as he suffered from a neurocognitive disorder which manifested itself as poor judgment and memory, and that without mental health support in the form of psychiatric detention, JH would deteriorate both mentally and physically. However, an assessment completed by another doctor concluded that JH only had mild memory impairment, and that he understood his health problems enough to maintain health treatment on his own. Justice Eidsvik of the Alberta Court of Queen’s Bench considered JH’s steady employment history prior to the car accident that had left him with cognitive issues, his ability to obtain help both financially and medically on his own, and his commitment to continue on his medication. Based on this evidence, the Court concluded that Alberta Health Services (AHS) failed to prove that JH should continue to be detained, and that any risks to him were not severe enough to justify constraints on his liberty and self-determination. Continue reading
By: Nigel Bankes
PDF Version: GRTAs, Patch Agreements, Indefeasible Title and Collapse Orders
Case Commented On: Chesterworld Holdings Ltd v Computershare Trust Company of Canada, 2017 ABQB 43 (CanLII)
This decision involves the interpretation of a will from 1949 as well as the validity of a gross royalty trust agreement (GRTA) and a subsequent patch agreement. Justice Park concluded that the patch agreement was incapable of saving the GRTA because it was executed by the incorrect parties (or by the correct parties but not in their correct capacity). The case may call into question the efficacy of other patch agreements that were intended to revive or extend GRTAs affected by the decision in Guaranty Trust Co. of Canada v Hetherington, 1989 ABCA 113 (CanLII). Continue reading