PDF version: A Step Forward for CCS as a CDM Project Activity

Report commented on: Subsidiary Body for Scientific and Technological Advice (SBSTA) Technical Workshop on the eligibility of carbon capture and storage projects under the clean development mechanism of the Kyoto Protocol, released on November 8th, 2011.

In December 2010, the Conference of the Parties serving as the meeting of the Parties (CMP) to the Kyoto Protocol (KP), by its decision 7/CMP.6, decided that carbon dioxide capture and storage (CCS) in geological formations would be eligible as a project activity under the clean development mechanism (CDM), provided that the following issues could be addressed and resolved in a satisfactory manner:

- non-permanence, including long-term permanence;
- measuring, reporting and verification;
- environmental impacts;
- project activity boundaries;
- international law;
- liability;
- the potential for perverse outcomes;
- safety ,and
- insurance coverage and compensation for damages caused due to seepage or leakage.

(See also Nigel Bankes’ blog on CCS and CDM: the eligibility of carbon capture and storage projects under the clean development mechanism of the Kyoto Protocol - the Cancun Meeting of the Conference of the Parties)

Parties and admitted observer organizations were invited to submit their views on how to address and manage these issues. Ten admitted observer organizations and Australia, the Alliance of Small Island States (AOSIS), the European Union, Indonesia, Japan, Norway, Qatar, Saudi Arabia, United Arab Emirates and USA (as an observer state to KP) responded the invitation. Also, the Secretariat hosted a technical workshop with technical and legal experts to consider these submissions and to discuss the issues referred to in decision 7/CMP.6. The workshop, held in Abu Dhabi on September 7th and 8th 2011 clarified some of the technical and legal issues in its report and suggested possible solutions.

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PDF version: The theory and the practice of well abandonment and surface reclamation in Alberta: the latest episode in the dismal saga of Sarg Oils Limited

Decision commented on: Sarg Oils Limited, Review of Abandonment Orders AD 2006-17, AD 2006-17A, AD 2006-18, AD 2006-19 and AD 2006-20, November 15, 2011, 2011 AERCB 032.

Well over ten years ago Sarg Oils sold oil and gas assets to another party. The Energy Resources Conservation Board (ERCB) refused to consent to the transfer of the well licences associated with those assets and as a result Sarg was left with the responsibility of abandoning those facilities. And when Sarg refused, the ERCB did the job itself and sent the bill to Sarg; and when Sarg didn’t pay (and the Court of Appeal ruled that this was a lawful debt owing to the Board: ERCB v Sarg Oils Ltd, 2002 ABCA 174) the ERCB garnisheed other assets of Sarg (the Southern Alberta assets). Sarg didn’t like that and shut the facilities in - owing by this time in excess of $1 million. The Board informed the province of this dastardly deed and the province triggered the procedures under the Petroleum and Natural Gas Tenure Regulation (Alta Reg 267/1997, s18) to terminate the leases on those Southern Alberta assets. Since Sarg no longer had the right to exploit the resources on those terminated leases, the ERCB ordered Sarg (2006) to abandon the related wells and facilities. Sarg did nothing about this except to seek a section 40 review (this application) under the Energy Resources Conservation Act, RSA 2000, c E-10) of the Board orders. And now, five years later, the Board has concluded that the orders “are valid and will be upheld” (at para 148). And now, Sarg must really get on with it! Whew! Unless of course Sarg seeks leave to appeal.

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PDF version: The Repeal of the Long Gun Registry: A Violation of the Federal Government’s Obligations Concerning Violence Against Women?

Legislation considered: Bill C-19, An Act to amend the Criminal Code and the Firearms Act (”Ending the Long-gun Registry Act”), 41st Parliament, 1st Session

December 6, 2011 was the National Day of Remembrance for Violence Against Women, which marked the 22nd anniversary of the Montreal Massacre. The Globe and Mail’s Jane Taber indicated that “government MPs [were] purposely shut out from officially speaking at and attending an event on Parliament Hill to honour the 14 young women who were shot dead in 1989,” because the government is about to repeal the long gun registry (see Bill C-19). The Montreal Massacre was one of the pressure points for the registry, as was the use of firearms in crimes of domestic violence. When the Alberta government challenged the constitutionality of the registry, which was implemented via the Firearms Act, SC 1995, ch 39, as an amendment to the Criminal Code, the Supreme Court found that it was properly enacted under the federal government’s criminal law powers (see Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 SCR 783 at paras 43, 59). The enactment of the law creating the registry was constitutional; but is its repeal unlawful? I think an argument can be made that the federal government’s abolishment of the long gun registry is unconstitutional on Charter grounds, as well as contrary to international law.

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PDF version: Polar Bear ‘Special Concern’ Designation Raises Some Concerns of Its Own

Decision considered: Order Amending Schedule 1 to the Species at Risk Act SOR/2011-233 October 27, 2011.

On November 10, 2011, the Federal Government released its decision to list the polar bear as “special concern” under Schedule 1 of the Species at Risk Act (Species at Risk Act, SC 2002, c 29, hereinafter “SARA”). This decision has been a long time coming. This post reflects on the significance of the decision, and specifically two concerns it raises with the listing process under SARA.

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PDF version: Why Canada should not withdraw from the Kyoto Protocol 

Rumour\decision commented on: Canada will withdraw from the Kyoto Protocol

Rumours abound that Canada will withdraw from the Kyoto Protocol later this month. While Canada’s Minister of the Environment, Peter Kent, will not confirm these rumours (Montreal Gazette, November 29, 2011) there is reason for thinking that withdrawal is being actively considered if not already decided on (see “Canada to pull out of Kyoto Protocol next month“?

This post discusses four questions. First, what is the law pertaining to withdrawal from an international environmental agreement (MEA)? Second, why is withdrawal being considered and what other options are available? Third, what might be some of the ramifications of a Canadian withdrawal? And fourth, what is the legal nature of the current commitment: whom does it bind?

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PDF version: The property rights debate in Alberta 

Document commented on: “Albertans asked for property rights input,” Government of Alberta Press Release, November 24, 2011

Premier Redford has announced the creation of a task force to ask “Albertans for their concerns regarding property rights.” According to the Press Release, Premier Redford has “heard concerns from landowners that their property rights need to be better respected,” and takes the view that “We need to move towards a more common-sense approach when it comes to property rights.”

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PDF version: Cost Decision from Canadian Human Rights Commission Case: Implications for Albertans 

Decision considered: Canadian Human Rights Commission v Canada (AG), 2011 SCC 53 (”Mowat“)

The Supreme Court of Canada’s (”SCC”) decision about costs in the Mowat case was released in October, and this will have significant ramifications in cases under the Canadian Human Rights Act, RSC 1985, c H-6 (CHRA). (See my blog on the decision of the Federal Court of Appeal for a discussion of the facts of the case here). The issue of costs in the context of human rights cases is significant, as it may become an access to justice issue, especially in cases with public interest issues.

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PDF version: What is the effect of an invalid caveat? What is the effect of the lapse of an invalid caveat?

Case commented on: Humford Developments Ltd. v 1026451 Alberta Ltd., 2011 ABQB 655

The decision of the Alberta Court of Appeal in Holt Renfrew & Co. v Henry Singer Ltd., (1982), 20 Alta LR (2d) 97 (CA) tells us that an old caveat protecting an old lease cannot protect a new lease, and that an invalid caveat purporting to protect an agreement for sale cannot protect the priority of that interest as against a subsequent caveat filed to protect the new lease. In this case (Humford) Justice Clackson concludes that a caveat that was invalid ab initio can protect the assignee of a lease against a new registered owner and that the lapse of such a caveat is immaterial. I think that the first part of this conclusion is mistaken.

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PDF version: Public Interest Standing and a Statutory Right of Appeal

Case Considered: Pembina Institute for Appropriate Development v Alberta (Utilities Commission), 2011 ABCA 302

The Pembina Institute for Appropriate Development (”Pembina”) recently sought leave of the Alberta Court of Appeal to appeal the June 30, 2011 interim decision of the Alberta Utilities Commission (”AUC”) to approve the construction of a coal-fired power generation facility by Maxim Power Corp. (”Maxim”) in Alberta. In Pembina Institute for Appropriate Development v Alberta (Utilities Commission), 2011 ABCA 302, Madam Justice Patricia Rowbotham denies the Pembina application for leave to appeal. However in her reasons for decision, Justice Rowbotham adds to the Alberta jurisprudence on public interest standing. I will first describe the parameters of the leave application before discussing the standing matter.

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PDF version: “Safe and enjoyable and reasonable use”:  Of public space, public fighting and Edmonton’s defence of its Public Places Bylaw

Case considered: R v Keshane, 2011 ABQB 525

A recent Alberta Court of Queen’s Bench decision, R v Keshane, 2011 ABQB 525 (”Keshane“) has further refined the contentious, and important issue of how much control a municipal authority can have over shared public space. The judgment in Keshane decisively rejected a defence that the passage and application of a City of Edmonton bylaw prohibiting public fighting was beyond the power of the municipal government. In its judgment the court concluded that Edmonton’s Public Places Bylaw was a valid exercise of municipal authority because (at para 118) “in pith and substance it relates to the purpose of providing safe and enjoyable public places for the benefit of all residents of and visitors to the City…”. The court determined that as a consequence the bylaw fell within provincial authority “as either or both a matter of property and civil rights in the province under subsection 92(13) of the Constitution Act, 1867 or a matter of merely local nature under section 92(16).” The Queen’s Bench judgment overturned an earlier lower court decision R v Keshane, 2010 ABPC 275 (per Judge D.M. Groves) which reached almost exactly the opposite conclusion. The Queen’s Bench judgment is the latest in a string of recent cases in both Alberta and British Columbia in which Constitutional challenges have been launched against municipal restrictions on activities in public space.

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