Author Archives: Arlene Kwasniak

About Arlene Kwasniak

Professor Emerita of Law. Member of the Alberta Bar. Please click here for more information.

Lack v. Alberta: Court Unmuddies and Advances Accretion Law

PDF version: Lack v. Alberta: Court Unmuddies and Advances Accretion Law 

Case considered: Lack v. Alberta (Sustainable Resource Development), 2011 ABQB 379

Courts typically find the facts, ascertain the applicable law, and apply the law to the facts. When asked to apply common law of accretion to a natural world overlaid with complex situations of land ownership and statutory rules and rights under the Alberta Land Titles Act, RSA, c L-4, this straightforward approach cannot always easily be adopted. Over the last few years accretion challenges have invited creative judicial activity and problem solving in order to reconcile classic accretion at common law, the natural world, and the Alberta Torrens system as manifested in the Land Titles Act. My earlier blog Andriet v. County of Strathcona No. 20: Court of Appeal Conjures a Creative Accretion Approach discussed some of the accretion issues that lead to questions regarding what is the applicable law in Alberta. Is it the old common law concerning accretion Is it an evolving common law to account for a changing physical and social world? Is it the common law mixed or modified by the application of the Land Titles Act, and rights under that Act? Justice Yamuchi’s decision in Lack v. Alberta takes us a fair distance in clearing up some of these recently exposed murky areas.

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Innovative but controversial municipal bylaws survive challenges

PDF version: Innovative but controversial municipal bylaws survive challenges

Case considered: Keller v. Municipal District of Bighorn No. 8, 2010 ABQB 362

This case is significant in three regards. First it raises the thorny issue of standard of review regarding the reasonableness of a municipal bylaw under the Municipal Government Act (R.S.A. 2000, c. M-26) (MGA),  given that the SCC in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 (Dunsmuir) collapsed the previous standard of review categories of patent unreasonableness and reasonableness into one category, reasonableness, and section 539 of the MGA that states that no municipal bylaw (or resolution) may be challenged on the ground that it is unreasonable. Second, it considers the validity of an innovative municipal land use management tool that is not specifically authorized by the MGA, thus shedding light on the breadth of municipal authority in carrying out its land use and development functions. Third, it is the first decision to consider the effect of the Alberta Land Stewardship Act, S.A. 2009, c. A-26.8 (ALSA). The case considers who may bring a challenge regarding alleged non-compliance with the ALSA, and whether the ALSA is retroactive.

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The Eviscerating of Federal Environmental Assessment in Canada

Considered: Canadian Environmental Assessment Act, S.C. 1992, c. 37
Regulations Amending the Exclusion List Regulations, SOR/2009-88
Infrastructure Projects Environmental Assessment Adaptation Regulations, SOR/2009-89
Regulations and Regulatory Impact Analysis Statement

PDF Version: The Eviscerating of Federal Environmental Assessment in Canada

Introduction
A cornerstone of sustainable development is environmental assessment. Through environmental assessment (“EA”) processes regulators identify and assess the environmental, social, and economic consequences of proposed projects to assist them in determining whether they should be approved, and if so, under what conditions. Because of EA, projects are better planned and have reduced environmental impacts and social costs. However, notwithstanding the benefits of EA, recently the federal government has announced its plans to greatly reduce the number of federal EAs in Canada and to limit the application of federal legislation designed to protect our navigable waters and fisheries.

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Queen’s Bench Boosts Municipal Bylaw Making Powers

Cases Considered: William Holowatiuk v. Beaver County, 2008 ABQB 290

PDF Version: Queen’s Bench Boosts Municipal Bylaw Making Powers

This decision takes a broad view of municipal powers granted under the Alberta Municipal Government Act (R.S.A. 2000, c. M-26) (MGA). In doing so it finds that statutory provisions that limit municipal powers may not limit municipal bylaw making power. Although the Court engaged in an extensive historical and statutory interpretation exercize in reaching its decision, in my view, the decision failed to consider a key provision of the MGA, section 13. If it had, the Court might well have reached a different conclusion.

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Andriet v. County of Strathcona No. 20: Court of Appeal Conjures a Creative Accretion Approach

Cases Considered: Andriet v. County of Strathcona No. 20, 2008 ABCA 27

PDF Version: Andriet v. County of Strathcona No. 20: Court of Appeal Conjures a Creative Accretion Approach

In this important reserved judgment, the Alberta Court of Appeal applied a creative approach to attempt to reconcile uncertainties relating to common law accretion with a Torrens Land Titles system, and in doing so once again found for private ownership of accreted lands over Crown ownership of exposed beds and shores.

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