Author Archives: Nick Ettinger

About Nick Ettinger

BSc (Queen's University), MSc (University of Texas at Austin), JD (2022, University of Calgary). Nick is a geologist who aims to apply his background in earth sciences to the intersection of natural resources, energy, and environmental law and policy.

Alberta’s Carbon Capture & Storage Land Grab And The Potential For Conflicts Of Subsurface Rights

By: Nick Ettinger, Renée Matthews & Rudiger Tscherning

PDF Version: Alberta’s Carbon Capture & Storage Land Grab And The Potential For Conflicts Of Subsurface Rights

Matter Commented On: Alberta’s Request for Full Project Proposals for Carbon Capture and Sequestration Hubs

On March 3, 2022, the Government of Alberta issued a province-wide Request for Full Project Proposals (RFPP) for carbon capture and sequestration hubs (CCS Hubs). This followed a more limited RFPP for CCS Hub(s) to service emissions from Alberta’s Industrial Heartland (IH), which closed on February 1, 2022. By the end of March 2022, Alberta Energy is expected to announce the successful proponents of the IH RFPP, who will receive permits to evaluate large amounts of publicly owned pore space for the eventual permanent sequestration of millions of tons of carbon dioxide (CO2). The RFPP for the rest of the province closes on May 2, 2022. Nigel Bankes has previously commented on the evolution of this process for pore space tenure dispositions (see here, here, and here). We’ve previously described the potential for conflicts arising from the subsurface convergence of CCS and critical minerals such as helium and lithium in Alberta (read our article here). This post examines the potential for conflicts of competing subsurface rights and interests arising from the current legislative scheme and the province’s rapid roll-out of CCS Hub dispositions. Continue reading →

Yahey v British Columbia and the Clarification of the Standard for a Treaty Infringement

By: Robert Hamilton & Nick Ettinger 

PDF Version: Yahey v British Columbia and the Clarification of the Standard for a Treaty Infringement

Case Commented On: Yahey v British Columbia, 2021 BCSC 1287 (CanLII)

On June 29, 2021, the Supreme Court of British Columbia ruled that the Crown had infringed Treaty 8 by “permitting the cumulative impacts of industrial development to meaningfully diminish [Blueberry River First Nation’s (Blueberry)] exercise of its treaty rights” (Yahey v British Columbia, 2021 BCSC 1287 (CanLII) at para 1884 [Yahey]). This is the first time a court has held that the cumulative effects of multiple projects may form the basis of a treaty infringement. The trial judge’s nuanced articulation of the standard for what constitutes a treaty infringement enabled this groundbreaking development (see paras 445-547). We reviewed the factual and legal findings of the decision in a previous post. This post unpacks the doctrinal aspects of treaty infringement in more detail to contextualize Justice Emily Burke’s navigation of infringement case law and formulation of the “significantly or meaningfully diminished” standard in Yahey (at para 541). While some pundits have interpreted Yahey to be a dramatic lowering of the standard for an infringement, we believe the decision is an insightful clarification and faithful application of Supreme Court precedent. Continue reading →

Blueberry River First Nation and the Piecemeal Infringement of Treaty 8

By: Robert Hamilton & Nick Ettinger

PDF Version: Blueberry River First Nation and the Piecemeal Infringement of Treaty 8

Case Commented On: Yahey v British Columbia, 2021 BCSC 1287 (CanLII)

In a highly anticipated decision, the Supreme Court of British Columbia ruled on June 29, 2021 that the Province of British Columbia (BC) unjustifiably infringed the Treaty 8 rights of Blueberry River First Nation (Blueberry) by “permitting the cumulative impacts of industrial development to meaningfully diminish Blueberry’s exercise of its treaty rights” (Yahey v British Columbia, 2021 BCSC 1287 (CanLII) at para 1884 [Yahey]). The Court ordered the Province to consult and negotiate with Blueberry to establish regulatory mechanisms to manage and address the cumulative impacts of industrial development on Blueberry’s treaty rights. If a satisfactory solution is not reached within 6 months, the Province will be prohibited from permitting further industrial activity in Blueberry’s traditional territory (Yahey, para 1894), which overlies the vast natural gas and liquids resource of the Montney Formation in northeast BC. The Montney reserves form the anchor for LNG Canada’s $40 billion liquefied natural gas processing and export facility under construction at Kitimat, BC, which will be serviced by the Coastal GasLink Pipeline, as well as the planned Woodfibre LNG export terminal on the Howe Sound fjord near Squamish, BC. Continue reading →