Category Archives: Administrative Law

Applicants to a Feed-in Tariff Program Must Expect Change

By: Nigel Bankes

PDF Version: Applicants to a Feed-in Tariff Program Must Expect Change

Case Commented On: Skypower CL 1 LP et al v Minister of Energy (Ontario) et al, 2012 ONSC 4979

In an earlier post entitled “Low carbon energy policies: vested rights, legitimate expectations and differential treatment in domestic and international law” (see here). I commented on a UK case involving changes to a feed-in tariff (FIT) program as well as a couple of ongoing international arbitrations against Canada involving provincial energy policies (one in British Columbia and one in Ontario, the Mesa Power arbitration). The Skypower decision which is the subject of this post involves changes to Ontario’s FIT program. The common theme of all of these cases are the legal implications for government where government changes its mind about the terms of incentive programs designed to encourage the uptake of low carbon forms of generation.

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The letter decisions of the Energy Resources Conservation Board

PDF version: The letter decisions of the Energy Resources Conservation Board

Decision commented on: Reasons for July 17, 2012 Decision on Notice of Question of Constitutional Law, Osum Oil Sands Corp., Taiga Project, August 24, 2012.

In a letter decision of August 24, 2012 the Energy Resources Conservation Board (ERCB or Board) decided that it lacks the jurisdiction to determine whether or not the Crown in right of Alberta had discharged its duty to consult and accommodate the Cold Lake First Nation (CLFN) with respect to the impacts of a proposed SAGD bitumen project (the Taiga project).

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Who decides if the Crown has met its duty to consult and accommodate?

PDF version: Who decides if the Crown has met its duty to consult and accommodate?

Decision commented on: Reasons for July 17, 2012 Decision on Notice of Question of Constitutional Law, Osum Oil Sands Corp., Taiga Project, August 24, 2012.

In a letter decision of August 24, 2012 (hereafter LD) the ERCB decided that it lacks the jurisdiction to determine whether or not the Crown in right of Alberta had discharged its duty to consult and accommodate the Cold Lake First Nation (CLFN) with respect to the impacts of a proposed SAGD (steam assisted gravity drainage) in situ bitumen project (the Taiga Project). Continue reading →

Nova Scotia exploration well approval case

PDF version:   Nova Scotia exploration well approval case

Decision commented on: Margaree Environmental Association v Nova Scotia (Environment), 2012 NSSC 296.

In this case Justice MacAdam of the Nova Scotia Supreme Court denied a statutory appeal from a decision of the Nova Scotia Department of the Environment to grant an approval to drill an exploration well on a 383,000 acre block in the area around Lake Ainslie.  There is nothing particularly remarkable about the case but I blog it here for these reasons: (1) it’s an oil and gas case and there are surprisingly few oil and gas cases involving judicial review or statutory appeals from decisions to issue (or not issue) a well licence or equivalent; (2) it’s a decision from a non-traditional oil and gas jurisdiction, Nova Scotia.

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Access to Justice: University of Calgary Environmental Law Clinic in 2011/2012 – “What’s legal is not always what is just” – Rick Collier

PDF version: Access to Justice: University of Calgary Environmental Law Clinic in 2011/2012 – “What’s legal is not always what is just” – Rick Collier

Case and Decision considered: Kelly v Alberta (Energy Resources Conservation Board), 2012 ABCA 19,

Hohloch v Director, Southern Region, Environmental Management, Alberta Environment and Water, re: Eastern Irrigation District (29 March 2012), (AEAB), Appeal No 10-043-ID2

 As the Fall 2012 term approaches we here at the law school have started to prepare for the return of students and the resumption of lectures.  In my case, this includes getting ready for another year of supervising our environmental law clinic.  Before the new term arrives for the clinic, however, I want to look back on some highlights from 2011/2012.  The clinic allows one to step out of the law school and into the field of environmental disputes in Alberta.  If there was a common theme to all of our files last year, it was access to justice.  I’ve chosen to end this recap with a tribute to Rick Collier who stood up for wilderness in an act of civil disobedience to protest the lack of public input into resource and environmental decision-making in Alberta.

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