Author: David Laidlaw Page 2 of 3

David K. Laidlaw, B.Sc. Computer Science and Economics, University of Calgary, 1985; LL.B. Dalhousie University 1988 and LL.M. University of Calgary 2013, admitted to the Alberta Bar in 1989. After 20 years in private practice in Calgary, David has returned to Law School to obtain his LL.M. in 2013. Having practiced briefly in Aboriginal law in the early 1990s, his ongoing interest in the area has led him to explore Aboriginal law and its implications. He is currently engaged in research in aboriginal issues for the Canadian Institute of Resources Law (CIRL). In addition to Aboriginal law, his research interests include legal history and the philosophy of law.

By: David Laidlaw

PDF Version: Sense and Sensibility at the AER?

Decision Commented On: Pembina Pipeline Prehearing Meeting 2015 ABAER 002

The Alberta Energy Regulator (AER) held a prehearing meeting on May 14, 2014 with all of the objecting parties and the project’s proponent Pembina Pipeline Corporation (Pembina). The AER felt it was appropriate to issue a decision report for the guidance of industry, landowners and objecting parties.

The Decision noted that the Responsible Energy Development Act, SA 2012, c R-17.3 (REDA) requires the AER to provide for the “efficient, safe, orderly and environmentally responsible development of energy resources in Alberta,” under subsection 2(1)(a). Further the AER must consider the interests of landowners when reviewing applications under section 15 of REDA and section 3 of the Responsible Energy Development Act General Regulation, Alta Reg 90/2013. Thus when a matter is referred to a hearing, a Panel is appointed to establish a hearing process for the application, and:

[i]n determining procedural matters, the panel takes guidance from REDA, its regulations, and its rules. One of the panel’s most important responsibilities is to ensure that the hearing process is fair. This includes ensuring that parties are provided with adequate notice of the hearing and application and that they have an opportunity to reply or to be heard (at para 5).

Further, the process is “intended to be fair, efficient, and effective for all concerned: for participants as well as the applicant” (at para 6, emphasis added).

The Decision is a short, well written 10 page ruling that warrants careful consideration by industry, lawyers and the public, but in this post I will focus on 3 novel aspects.

Alberta Energy Regulator: Split Jurisdiction Implications for Crown Consultation?

By David Laidlaw

On June 11, 2013

In Aboriginal, Energy

PDF version: Alberta Energy Regulator: Split Jurisdiction Implications for Crown Consultation?

Legislation considered: Responsible Energy Development Act, SA 2012, c 17; Designation of Constitutional Decision Makers Regulation, AR 69/2006

The new single Alberta Energy Regulator under the Responsible Energy Development Act, has been proclaimed in force in part (OC 163/2013) on June 4, 2013 to be effective June 17, 2013. Section 21 of that Act, in force on June 17, 2013, states that the Alberta Energy Regulator has no jurisdiction to assess the adequacy of Crown consultation:

Crown consultation with aboriginal peoples

21. The Regulator has no jurisdiction with respect to assessing the adequacy of Crown consultation associated with the rights of aboriginal peoples as recognized and affirmed under Part II of the Constitution Act, 1982.

Gardening on Vacant Land –Through Calgary’s Lens

By David Laidlaw

On July 9, 2012

In Environmental, Municipal Law, Property

PDF version: Gardening on Vacant Land –Through Calgary’s Lens

Comment: Gardening on Vacant Land in Calgary – Part II

The ABlawg post Part I of Gardening on Vacant Land in Calgary, Verdant History, Volatile Endeavor, described the rich history of gardening on vacant land in Calgary, and discussed law and policy challenges posed by the Occupiers Liability Act, RSA 2000, c O-4. This ABlawg post turns to issues of vacant land use for gardening in Calgary.

Gardening on Vacant Land –Verdant History, Volatile Endeavor

By David Laidlaw

On June 18, 2012

In Environmental, Municipal Law, Property

PDF version: Gardening on Vacant Land –Verdant History, Volatile Endeavor

Comment: Gardening on vacant land in Calgary – Part I

On the Victoria Day long-weekend in 2012, Donna Clarke and some volunteers planted potatoes on a vacant lot next door to her home in Scarboro on 17^th Avenue S.W. The fence was painted in bright colours and painted tires were used as planters. The lots were owned by Scarboro Projects Ltd., an affiliate of Vancouver mortgage firm who had foreclosed on a number of adjacent properties in 2009. Three of the buildings had been ordered demolished by the City of Calgary in 2011 as part of a crackdown on derelict properties.

Da’naxda’xw/Awaetlala

By David Laidlaw

On August 29, 2011

In Aboriginal

PDF version: Da’naxda’xw/Awaetlala

Case considered: Da’naxda’xw/Awaetlala First Nation v British Columbia (Environment), 2011 BCSC 620 (“Da’naxda’xw/Awaetlala“)

In the Da’naxda’xw/Awaetlala case, Madam Justice Fisher was faced with a different type of duty to consult and accommodate issue.

While this is a British Columbia case it demonstrates even more the differences between British Columbia Court’s treatment of the duty to consult and accommodate and Alberta Courts (see here). Further it distinguishes the recent Alberta Court of Appeal decision in Tsuu T’ina Nation v Alberta (Minister of Environment), 2010 ABCA 137 on, I would suggest somewhat arguable distinctions (see here). Finally, this decision also distinguishes the Alberta Court of Appeal decision in R v Lefthand, 2007 ABCA 206.

In the Da’naxda’xw/Awaetlala, the petitioners sought judicial review of the Minister’s refusal to recommend a boundary variation of a conservation area that encompassed the First Nation’s traditional lands in order to accommodate a proposed hydro-electric power project (the “Project”). The twist was that the petitioners Da’naxda’xw/Awaetlala First Nation (“First Nation”) and Kleana Power Corporation (“Kleana”), the nominal project proponent, were seeking the variation.