PDF version: Hop(p)s and Water: A Nice Little Water Rights Decision Out of British Columbia
Decision commented on: Carolyn Hopp v Assistant Regional Manager Water, 2012-WAT-033(a) (EAB).
The Environmental Appeal Board (EAB) of British Columbia is starting to build up a body of jurisprudence on water rights and especially water licensing decisions in the context of fully allocated or fully recorded streams.
PDF version: Supreme Court Renders Leave to Appeal Decisions in Several Alberta Cases
Cases considered: R v Mack, 2012 ABCA 42, leave to appeal granted, April 11, 2013 (SCC); Métis Nation of Alberta Region 1 v Joint Review Panel, 2012 ABCA 352, leave to appeal dismissed April 11, 2013 (SCC); Fitzpatrick v Alberta College of Physical Therapists, 2012 ABCA 207, leave to appeal dismissed April 11, 2013 (SCC)
On April 11, 2013 the Supreme Court of Canada handed down leave to appeal decisions in three cases from Alberta.
PDF version: Duty to consult application is premature – what’s the big deal?
Case and decision commented on: Metis Nation of Alberta Region 1 v Joint Review Panel, 2012 ABCA 352 and decision of the Joint Review Panel
In this decision Justice Slatter denied the application of the Metis Nation and of the Athabasca Chipewyan First Nation (ACFN) for leave to appeal the decision of the Joint Review Panel (JRP) constituted to deal with Shell’s Jackpine Mine Expansion Project application. In its decision the JRP concluded that it did not have jurisdiction to assess whether or not the Crown had fulfilled its duty to consult with respect to the Jackpine Mine Project. In the alternative, the JRP concluded that any application to assess whether or not the Crown had fulfilled its constitutional obligation was premature. The JRP is established by federal\provincial executive agreement and has the responsibility of discharging obligations under both the federal Canadian Environmental Assessment Act, 2012, SC 2012, c 19 and the responsibilities of the provincial Energy Resources Conservation Board under a number of statues including the Oil Sands Conservation Act, RSA 2000, c O-7 – all with respect to the Jackpine Mine expansion project.
PDF version: Bill 2 the Responsible Energy Development Act and the Duty to Consult
Proposals commented on: Bill 2, the Responsible Energy Development Act, Alberta and the First Nations Consultation Policy, Discussion Paper, (Fall 2012).
There has been a lively debate in the courts, tribunal decisions and the literature over the last few years as to the role of administrative tribunals in discharging or examining the Crown’s duty to consult aboriginal peoples when contemplating making decisions and developing policies which may adversely affect aboriginal or treaty rights. There are two guiding rules. First, a tribunal that has the authority to decide questions of law is presumed to have the jurisdiction to decide questions of constitutional law including the question of whether or not the Crown has satisfied its constitutional duty to consult and accommodate – provided that the constitutional question is rationally connected to a power or jurisdiction that the tribunal is exercising. The legislature may rebut that presumption by removing all or part of that jurisdiction from a tribunal. Second, a tribunal does not have the authority to discharge the Crown’s duty to consult and accommodate unless that authority is expressly delegated to the tribunal. The principal authority for all of this is Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43 which I blogged at here.
PDF version: An Overview of Bill 2: Responsible Energy Development Act – What are the changes and What are the issues?*
Bill commented on: Bill 2, Responsible Energy Development Act, The Legislative Assembly of Alberta, 1st Session, 28th Legislature
On the heels of a sweeping overhaul to federal legislation to streamline federal approval processes for major energy projects, it is now Alberta’s turn. Bill 2 – the proposed Responsible Energy Development Act (REDA) proposes significant changes to the way oil and gas (and coal) projects are approved and regulated in the province. This post provides an overview of the Bill by highlighting the key changes that will be made to the current regulatory regime and the issues they raise.
