Category Archives: Administrative Law

The Supreme Court of Canada clarifies the role of administrative tribunals in discharging the duty to consult

PDF version: The Supreme Court of Canada clarifies the role of administrative tribunals in discharging the duty to consult 

Case considered: Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43

In the 1950s British Columbia authorized Alcan to develop the Nechako and Kemano Rivers for power purposes to supply Alcan’s aluminum facility at Kitimat. This development occurred in the traditional territory of the Carrier Sekani Tribal Council (CSTC) First Nations. There was no consultation at that time. Since then Alcan has sold excess power from its facilities to BC Hydro (a Crown corporation) and in 2007 the parties negotiated an energy purchase agreement (EPA) to cover the period up until 2034. Sales have been growing in recent years as Alcan has found it more profitable to generate electricity than make aluminum: Kitimat (District) v. British Columbia (Minister of Energy and Mines), 2008 BCCA 81.

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Public Rights Trump Private Privilege

PDF version: Public Rights Trump Private Privilege  

Case considered: J.O. v. Strathcona-Tweedsmuir School, 2010 ABQB 559

In December 2006 the Strathcona-Tweedsmuir School expelled J.O. based on allegations that she had been seen having sex with her boyfriend in the women’s washroom at the Calgary Golf and Country Club. The allegations were “mistaken” (para. 41). J.O. was rather suffering the predictable consequences of teenage drinking and a long-car ride; she was drunk and sick, and her boyfriend was in the bathroom helping to clean her up.

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Lucy the Elephant v. Edmonton (City)

PDF version: Lucy the Elephant v. Edmonton (City) 

Case considered: Reece v. Edmonton (City), 2010 ABQB 538

Lucy is a 34 year old elephant who lives in the Edmonton Valley Zoo. In recent years Lucy has attracted significant media and celebrity attention, as animal welfare activists have campaigned for her transfer to a warmer climate (details on the campaign and Lucy herself are documented here). Activists insist that Lucy is in distress because of her living conditions in the Edmonton zoo. Media celebrities including William Shatner and Bob Barker have called upon the City of Edmonton to allow Lucy to move south. Lucy’s plight has attracted the attention of the local media as well (see “Free Lucy the elephant: protesters“, CBC News). The Valley Zoo insists Lucy is fine and cannot be safely moved.

In the Fall of 2009, ZooCheck Canada and the People for the Ethical Treatment of Animals (PETA) retained Ontario lawyer Clayton Ruby to advise them on possible legal remedies for Lucy. In February 2010 ZooCheck, PETA, and a local Alberta resident (Tove Reece) filed an Originating Notice in the Alberta Court of Queen’s Bench seeking a judicial declaration that the City of Edmonton (as operator of the Valley Zoo) was contravening section 2 of the Animal Protection Act, R.S.A. 2000, c. A-41, in its treatment of Lucy at the Valley Zoo. Associate Chief Justice John Rooke heard the ZooCheck application along with the City’s motion to strike the proceeding under Rule 129 of the Alberta Rules of Court, Alta. Reg. 390/1968. In Reece v. Edmonton (City), 2010 ABQB 538 Justice Rooke grants the City’s motion to strike on the basis that the ZooCheck/PETA application is an abuse of process for two reasons: (1) the application does not conform with the legislative path for bringing this issue to the Court; (2) no individual can bring a civil action to enforce criminal law. Justice Rooke also makes some obiter statements on standing which I comment on below.

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Mutatis Mutandis: The ERCB Speaks (in Latin) on the Subject of Carbon Capture and Storage

By: Nigel Bankes

PDF Version: Mutatis Mutandis: The ERCB Speaks (in Latin) on the Subject of Carbon Capture and Storage

Matter Commented On: ERCB Bulletin 2010 – 22, ERCB Processes Related to Carbon Capture and Storage (CCS) Projects, June 29, 2010

After a long period of cogitation the chief energy regulator in the province has finally provided a statement of how it proposes to approach the regulation of carbon capture and storage (CCS) projects. The message is simple: apply the current rules, so far as they are applicable to CCS (the basic idea of mutatis mutandis). The issue is important: several task forces and many commentators have emphasised that the proponents of CCS projects need regulatory certainty if they are to plan and implement commercial scale CCS operations. Whether this ERCB Bulletin provides sufficient guidance to industry and sufficient comfort to the citizens of the province that CCS projects will be handled safely remains to be seen.

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Innovative but controversial municipal bylaws survive challenges

PDF version: Innovative but controversial municipal bylaws survive challenges

Case considered: Keller v. Municipal District of Bighorn No. 8, 2010 ABQB 362

This case is significant in three regards. First it raises the thorny issue of standard of review regarding the reasonableness of a municipal bylaw under the Municipal Government Act (R.S.A. 2000, c. M-26) (MGA),  given that the SCC in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 (Dunsmuir) collapsed the previous standard of review categories of patent unreasonableness and reasonableness into one category, reasonableness, and section 539 of the MGA that states that no municipal bylaw (or resolution) may be challenged on the ground that it is unreasonable. Second, it considers the validity of an innovative municipal land use management tool that is not specifically authorized by the MGA, thus shedding light on the breadth of municipal authority in carrying out its land use and development functions. Third, it is the first decision to consider the effect of the Alberta Land Stewardship Act, S.A. 2009, c. A-26.8 (ALSA). The case considers who may bring a challenge regarding alleged non-compliance with the ALSA, and whether the ALSA is retroactive.

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