Author: Kirk Lambrecht, Q.C.

Kirk Lambrecht, Q.C., practices law with the firm Shores Jardine LLP in Edmonton. He has practiced as a barrister before numerous tribunals, at all court levels in Alberta, before the Federal Courts, and before the Supreme Court of Canada. He is the author of numerous essays and two books: Aboriginal Consultation, Environmental Assessment and Regulatory Review in Canada (University of Regina Press, 2013), and The Administration of Dominion Lands, 1870 - 1930 (Canadian Plains Research Centre, 1991).

The Court of Appeal Rebukes the Environmental Appeal Board and the Director for an Erroneously Narrow Interpretation, and Unreasonable Application, of the phrase “Directly Affected” in the Environmental Protection and Enhancement Act

By Kirk Lambrecht, Q.C.

On January 11, 2021

In Environmental

By: Kirk Lambrecht Q.C.

PDF Version: The Court of Appeal Rebukes the Environmental Appeal Board and the Director for an Erroneously Narrow Interpretation, and Unreasonable Application, of the phrase “Directly Affected” in the Environmental Protection and Enhancement Act

Decision Commented On: Normtek Radiation Services Ltd v Alberta Environmental Appeal Board, 2020 ABCA 456 (CanLII), reversing Normtek Radiation Services Ltd v Alberta (Environmental Appeals Board), 2018 ABQB 911 (CanLII), which upheld Normtek Radiation Services Ltd. v Director, Red Deer-North Saskatchewan Region, Alberta Environment and Parks, re: Secure Energy Services Inc. (2 March 2018), Appeal No. 16-024-D (AEAB)

This brief case comment offers a proposition on the cause of a yawning gap between (i) purposes defined in section 2 of the Environmental Protection and Enhancement Act (EPEA); and (ii) practices of the Environmental Appeal Board (EAB) and the Directors under EPEA.

The proposition advanced here is that the phrase “directly affected” in EPEA has been, for decades, interpreted and applied by the EAB and Directors under EPEA in such a way as to avoid Ministerial oversight of Directors’ decisions regarding the environment. In Normtek, the Court of Appeal attempted to correct these practices. In the result, the Court remitted the matter of Normtek’s standing to appeal to the EAB back to the EAB for reconsideration in accordance with the reasons of the Court.

The Alberta Utilities Commission Rules on Its Jurisdiction to Assess Crown Aboriginal Consultation

By Kirk Lambrecht, Q.C.

On March 7, 2017

In Aboriginal, Energy

By: Kirk N. Lambrecht Q.C.

PDF Version: The Alberta Utilities Commission Rules on Its Jurisdiction to Assess Crown Aboriginal Consultation

Decisions Commented On:

AUC Ruling on jurisdiction to determine Questions stated in Notices of Questions of Constitutional Law, October 7, 2016, and Sent to Parties Currently Registered in Proceeding 21030 Fort McMurray West 500-kV Transmission Project Proceeding 21030 Applications 21030-A001 to 21030-A015 (Appendix J); and

AUC Decision 21030-D02-2017, Alberta PowerLine General Partner Ltd. Fort McMurray West 500-Kilovolt Transmission Project, February 10, 2017

Introduction

This post offers critical analysis of the first Ruling of the Alberta Utilities Commission (AUC) to grapple with the issue of whether the AUC has jurisdiction to consider the adequacy of Crown Aboriginal consultation in the course of AUC proceedings (the Preliminary AUC Ruling). The Preliminary AUC Ruling was issued on October 7, 2016. It was followed on February 10, 2017, with a ruling on the merits of the Application (the AUC Ruling on the Merits). Both are discussed here. The Preliminary AUC Ruling is attached as Appendix J to the AUC Ruling on the Merits.

The AUC is a quasi-judicial regulatory tribunal with power to determine all questions of law and constitutional law which arise in the course of its regulatory functions. It exercises a final approval function in relation to the construction of the Fort McMurray West 500-kV transmission line Project. The Project is generally described here. Appendix A to the current Alberta policy on Aboriginal consultation suggests that large-scale regional transmission line projects have high impact and require extensive consultation (see The Government of Alberta’s Guidelines on Consultation with First Nations on Land and Natural Resource Management, July 28, 2014). A deep consultation requirement of this kind is consistent with the description of the Project as critical in nature. It is also consistent with the finding of the AUC, described below, that the Project would introduce industrial development which would adversely impact Aboriginal groups in way which is not easily mitigated.

The AUC has not been at the center of Alberta’s policy development in relation to Aboriginal consultation. That development has tended to focus on the Alberta Energy Regulator, rather than the AUC. In this proceeding, absent guidance from Provincial policy, the AUC concluded that it had no jurisdiction in relation to Crown consultation and accommodation.

The Governor in Council Occasions Change and Delay in the National Energy Board’s Review of the Trans Mountain Pipeline Expansion Project: The Curious Case of PC 2015-1137

By Kirk Lambrecht, Q.C.

On September 15, 2015

In Administrative Law, Energy, Natural Resources

By: Kirk Lambrecht, Q.C.

PDF Version: The Governor in Council Occasions Change and Delay in the National Energy Board’s Review of the Trans Mountain Pipeline Expansion Project: The Curious Case of PC 2015-1137

Matter Commented On: Order in Council PC 2015-1137

In plain language, it seems that the Governor in Council shot the Trans Mountain Pipeline Expansion Project in the foot just as the Project was about the cross the finish line of a two year environmental assessment and regulatory review process overseen by the quasi-judicial National Energy Board [NEB]. A Governor in Council decision to appoint a Proponent’s witness to the NEB, taken while a Panel of the NEB was still considering the Proponent’s application, has occasioned the striking of a part of the Proponent’s evidence in the ongoing environmental assessment process (described here) and regulatory review process (described here) for the Trans Mountain Pipeline Expansion Project (described here). The Governor in Council’s action will cause unexpected changes and delays to these processes; and the clouds of future litigation which lay on the horizon for this Project now darken as a further consequence. This comment is structured around four questions: (1) what happened? (2) how could this happen? (3) will this affect Aboriginal consultation? and (4) what happens next?

The Importance of Location and Context to the Future Application of the Grassy Narrows Decision of the Supreme Court of Canada

By Kirk Lambrecht, Q.C.

On July 30, 2014

In Aboriginal, Constitutional

By: Kirk Lambrecht Q.C.

PDF Version: The Importance of Location and Context to the Future Application of the Grassy Narrows Decision of the Supreme Court of Canada

Case commented on: Grassy Narrows First Nation v Ontario (Natural Resources), 2014 SCC 48

This post discusses the future application of the decision of the Supreme Court in Grassy Narrows First Nation v Ontario (Natural Resources), 2014 SCC 48, to the Prairie Provinces of Canada. The proposition advanced here is that Treaty rights in Manitoba, Saskatchewan and Alberta are constitutionally protected under the Natural Resource Transfer Agreements of 1930, all of which are schedules to the Constitution Act, 1930, as well as being constitutionally protected by s. 35 of the Constitution Act, 1982 and the doctrine of the Honour of the Crown. The scope and extent of Treaty harvesting rights in the Prairie Provinces, and how the constitutional protection afforded by the Natural Resource Transfer Agreements within the Constitution Act, 1930, may affect the exercise of provincial proprietary and legislative powers, is anticipated by, but not specifically addressed in, the Grassy Narrows decision. This will require future judicial analysis when Grassy Narrows is applied in the region west of the Ontario/Manitoba border.