Category Archives: Administrative Law

Constitutional Questions and the Alberta Energy Regulator

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Decisions commented on: (1) ERCB Letter Decision, April 18, 2013, re Fort McKay First Nation, Notice of Question of Constitutional Law; (2) ERCB Letter decision, May 23, 2013, reasons for decision in relation to Fort McKay First Nation, Notice of Question of Constitutional Law; (3) 2013 ABAER 014, Dover Operating Corporation, Application for a Bitumen Recovery Scheme Athabasca Oil Sands Area, August 6, 2013; and (4) Fort McKay First Nation v Alberta Energy Regulator, 2013 ABCA 355

The Alberta Court of Appeal has granted leave to the Fort McKay First Nation (FMFN) to appeal two questions of law or jurisdiction in relation to decisions made by the Energy Resources Conservation Board (ERCB) (the predecessor to the Alberta Energy Regulator (AER)) and the AER itself in approving, subject to the further approval of the Lieutenant Governor in Council, Dover’s application for a major steam assisted gravity drainage (SAGD) bitumen recovery project. The two questions on which leave was granted are as follows:

(a) Whether the Tribunal erred in law or jurisdiction by finding that the question whether approval of the project would constitute a meaningful diminution of the Treaty rights of the Fort McKay First Nation and therefore be beyond provincial competence was not a question of constitutional law as defined in the Administrative Procedures and Jurisdiction Act;

(b) Whether the Tribunal erred in law or jurisdiction by finding that it had no jurisdiction to consider constitutional issues other than those defined as “questions of constitutional law” in the Administrative Procedures and Jurisdiction Act.

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Update on the Sage-grouse, the Separation of Powers and the Rule of (Ineffective Environmental) Law(s)

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Cases Considered: Alberta Wilderness Association v Canada (Attorney General), 2013 FCA 190, Wildlands League and Federation of Ontario Naturalists v Ministry of Natural Resources (Ontario) et al., Court file no. 400/13, Sandy Pond Alliance to Protect Canadian Waters Inc. v Canada, Court file no. T-888-10

As most readers are probably already aware, last week the federal government announced that it will be issuing an emergency protection order (EPO) under the federal Species at Risk Act SC 2002, c 2 for the Greater Sage-grouse (for the background to this announcement, see my previous post here).  Ostensibly, this is a ‘good news’ story about the separation of powers at work:  The federal government delayed in taking the measures ecologically necessary and (ultimately) required by law to protect the Sage-grouse; the matter was brought before the courts, which concluded that the government’s actions were illegal; the government is now taking steps to bring itself into compliance.

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Who Gets the Final Say on a Mineral Royalty Calculation? And Some Grumbling on Standard of Review Analysis

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Case considered: Saskatchewan (Ministry of Energy and Resources) v Areva Resources Canada Inc., 2013 SKCA 79

This comment looks at a recent decision of the Saskatchewan Court of Appeal concerning the judicial review of a mineral royalty decision made by Saskatchewan’s Minister of Energy and Resources. In Saskatchewan (Ministry of Energy and Resources) v Areva Resources Canada Inc., 2013 SKCA 79, the Saskatchewan Court of Appeal upholds a royalty calculation made by the Minister pursuant to the Crown Minerals Act, SS 1984-85-86, c C-50.2 and underlying regulations. I think this case is of interest to ABlawg readers because it involves the judicial review of a mineral royalty decision and it also concerns appellate-level consideration of the standard of review applicable to a ministerial decision – a topic of recent interest in the judiciary and which Professor Olszynski explores in his recent ABlawg post “Of Killer Whales, Sage-grouse, and the Battle Against (Madisonian) Tyranny”.

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Of Killer Whales, Sage-grouse and the Battle Against (Madisonian) Tyranny

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Cases commented on: Alberta Wilderness Association v Canada (Attorney General), 2013 FCA 190, Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, Canada (Fisheries and Oceans) v David Suzuki Foundation, 2012 FCA 40.

“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

James Madison, Federalist Papers No. 47

It is commonly understood that Canada’s Parliamentary system of democratic governance is an example of a “weak” separation of powers. In contrast to the United States, where generally speaking the Legislature (i.e. Congress) is responsible for passing laws, the Executive (i.e. the President) for implementing them and the Judiciary for interpreting them, in Canada — at least in “majority” situations — the Legislature (i.e. Parliament) is effectively (if not theoretically) controlled by the Executive (i.e. the Prime Minister and his Cabinet).  The fairly predictable result is that laws passed by Parliament tend to give statutory delegates considerable discretion, which in turn allows them to implement government policy on a case-by-case basis without much restraint.  In the environmental and natural resources context, most commentators regard this as a bad thing because it tends to favor short term economic and/or political gain over long term economic and environmental sustainability. But there is an emerging threat to the already weak separation of powers in Canada that should be of concern to all lawyers and academics, if not all Canadians. I refer to the Supreme Court of Canada’s (SCC) current approach to judicial review, and the standard of review in particular.

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Doctors Affected by Hospital Unit Closure Have Minimal Procedural Fairness Rights: Public Program Discretion Tops Individual Procedural Rights

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Cases Considered: MacDonald v Alberta Health Services, 2013 ABQB 404.

It is tempting to view the Alberta Queen’s Bench decision in MacDonald v Alberta Health Services, 2013 ABQB 404 as a simple affirmation that there is no legal right to consultation on government decisions about public programs. See, for example, Canadian Assn of Regulated Importers v Canada (Attorney-General), [1993] 3 FC 199 (TD); rev’d [1994] 2 FC 247 (CA), where a change by the Minister to the distribution of import quota for hatching eggs and chicks affected traditional importers. But little reflection is needed to see that the procedural issues raised by Alberta Health Services’ (AHF) decision to close the obstetrics unit at the Banff Hospital are far more nuanced. The applicant, Dr. MacDonald, who with his wife and partner Dr. Fowke, performed all deliveries at the Hospital in 2012 seemed to be left wondering whether every arguably interested person except he and his partner were consulted and had some input into the closure decision.

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