Category: Environmental Page 31 of 53

By: Martin Olszynski

PDF Version: All I Want for Christmas is the Justification for Shell Jackpine

Case Commented On: Adam v Canada (Environment), [2014] FC 1185

On December 9, 2014, the Federal Court rendered its decision in Adam v. Canada (Environment). Chief Allan Adam, on his own behalf and on behalf of the Athabasca Chipewyan First Nation (ACFN), challenged two federal government decisions pursuant to the Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52 (CEAA) in relation to Shell Canada’s proposed Jackpine oil sands mine expansion project. The first was the Governor in Council’s (GiC) determination pursuant to section 52(4) that the project’s anticipated significant adverse environmental effects are “justified in the circumstances.” The second was the Minister’s “Decision Statement” pursuant to section 54, which contains the conditions subject to which the project may proceed. In a decision that reads somewhat tersely but that also covers a lot of ground, primarily Aboriginal consultation and division of powers issues, Justice Tremblay-Lamer dismissed the ACFN’s challenge. This post – the first of what will likely be a series – focuses on the first challenged decision: the GiC’s determination that the project’s significant adverse environmental effects are justified.

Two Alberta Perpetuities Stories

By Nigel Bankes

On December 19, 2014

In Environmental, Property

By: Nigel Bankes

PDF Version: Two Alberta Perpetuities Stories

Matters Commented On: Bill 8, Justice Statutes Amendment Act and Gottlob Schmidt’s donation to the province of Antelope Provincial Park

This post covers two matters. The first is the amendment to the Perpetuities Act, RSA 2000, c. P – 5 enacted as part of Bill 8, the omnibus Justice Statutes Amendment Act which received third reading on December 9^th and Royal Assent on December 17^th. The second relates to a story carried in the Calgary Herald about Gottlob Schmidt’s generous donation to the province of a block of land for parkland purposes.

Section 9 of Bill 8, the Justice Statutes Amendment Act provides that

(2) The following is added after section 22 [of the Perpetuities Act]:

Rule against perpetuities not applicable to qualifying environmental trusts

22.1(1) In this section, “qualifying environmental trust” means a qualifying environmental trust as defined in section 1(2)(g.011) of the Alberta Corporate Tax Act.

(2) The rule against perpetuities does not apply to a qualifying environmental trust created after December 31, 2013.

The definition of a qualifying environmental trust (QET) is complex since it involves reference not only to the Alberta Corporate Tax Act, RSA 2000, c.A-15 but also to the QET provisions of the federal Income Tax Act, RSC 1985 (5^th supp.), c 1. The basic idea of a QET is that it is a trust that is established to meet reclamation obligations principally in the natural resources sector. This amendment to Alberta’s Perpetuities Act became necessary (or at least desirable) as a result of the National Energy Board’s consideration of the need to make provision for the reclamation obligations of operators of federally regulated pipelines.

Whose (Pipe)line is it Anyway?

By Martin Olszynski

On December 3, 2014

In Constitutional, Environmental

By: Martin Olszynski

PDF Version: Whose (Pipe)line is it Anyway?

Document Commented On: Quebec’s Letter to TransCanada Corp. Imposing 7 Conditions on Energy East

On November 18^th, on the heels of a unanimous vote of non-confidence in the National Energy Board (NEB) by Quebec’s National Assembly, Quebec’s Environment Minister sent a letter to TransCanada outlining seven conditions that the company must meet before the province “accepts” the Quebec portion of the company’s proposed pipeline. Most of the conditions are similar to those stipulated by British Columbia with respect to Enbridge’s Northern Gateway pipeline (e.g. world class emergency and spill response plans, adequate consultation with First Nations) with three notable differences. First, while Quebec insists that the project generate economic benefits for all Quebecers, unlike British Columbia it is not asking for its “fair share” (whatever that meant). Second, because Energy East involves the repurposing of an existing natural gas pipeline, Quebec insists that there be no impact on its natural gas supply. Finally, and the focus of this post, Quebec insists on a full environmental assessment (EA) of the Quebec portion of the pipeline and the upstream greenhouse gas emissions from production outside the province – something that the NEB has consistently refused to assess in its other pipeline reviews. Last week, Ontario joined Quebec in imposing these conditions (see here for the MOU). Premier Kathleen Wynne acknowledged that “Alberta needs to move its resources across the country,” but argued that the two provinces “have to protect people in Ontario and Quebec.” In this post, I consider whether this condition is consistent with the current approach to the regulation of interprovincial pipelines.

Ernst v Alberta Environment: The Gatekeeper Refuses to Strike or Grant Summary Judgment

By Shaun Fluker

On November 17, 2014

In Civil Procedure, Environmental

By: Shaun Fluker

PDF Version: Ernst v Alberta Environment: The Gatekeeper Refuses to Strike or Grant Summary Judgment

Case Commented On: Ernst v Alberta Environment, 2014 ABQB 672

This short comment adds to the recent posts on ABlawg by Professor Martin Olszynski (here and here) and myself (here) on the Ernst litigation against Alberta Environment, the Alberta Energy Regulator (AER) and Encana Corporation concerning allegations of groundwater contamination from hydraulic fracturing. Readers interested in more details on the substance of the litigation will find it here. My focus in this comment is on how Chief Justice Neil Wittmann applies the law on a motion to strike under Rule 3.68 and for summary judgment under Rule 7.3 of the Alberta Rules of Court, Alta Reg 124/2010 (the Rules) to dismiss Alberta’s application. I also ask how we reconcile this decision from the motion to strike initiated by the AER/ERCB and the decision by Alberta courts to grant that application.

Recall that Ernst alleges that Alberta Environment and the AER owe her a duty of care and were negligent by failing to meet that duty. The AER successfully applied to have the Ernst proceedings struck for failing to disclose a reasonable cause of action (Ernst v Alberta (Energy Resources Conservation Board), 2014 ABCA 285 (Ernst II)). Ernst has applied to the Supreme Court of Canada for leave to appeal this Court of Appeal decision (See here).

Regulatory Negligence Redux: Alberta Environment’s Motion to Strike in Fracking Litigation Denied

By Martin Olszynski

On November 14, 2014

In Environmental, Torts

By: Martin Olszynski

PDF Version: Regulatory Negligence Redux: Alberta Environment’s Motion to Strike in Fracking Litigation Denied

Case Commented On: Ernst v EnCana Corporation, 2014 ABQB 672

This post follows up on a previous one regarding Ms. Ernst’s lawsuit against EnCana, the Energy Resources Conservation Board (ERCB, now the AER) and Alberta Environment for the alleged contamination of her groundwater as a result of EnCana’s hydraulic fracturing activity (fracking) near Rosebud, Alberta. My first post considered the ERCB’s application to have the action against it struck, with respect to which it was successful (see 2013 ABQB 537 (Ernst I), affirmed 2014 ABCA 285 (Ernst II)). On November 7, 2014, Chief Justice Wittmann released the most recent decision (Ernst III) in what is shaping up to be the legal saga of the decade. Like the ERCB before it, Alberta Environment sought to have the regulatory negligence action against it struck on the basis that it owed Ms. Ernst no private law “duty of care” and that, in any event, it enjoyed statutory immunity. In the alternative, Alberta sought summary judgment in its favor. In contrast to his earlier decision agreeing to strike the action against the ERCB, the Chief Justice dismissed both applications.

In my previous post, I noted some inconsistencies between Ernst I and II with respect to the duty of care analysis and suggested that courts should strive to apply the applicable test (the Anns test) in a predictable and sequential manner, the Supreme Court of Canada’s decision in Cooper v Hobbart, 2001 SCC 79 (still the authority for the content of that test in Canada) being valued first and foremost for bringing some much needed transparency to the exercise. In this respect, the Chief Justice’s most recent decision is exemplary. In this post, I highlight those aspects of the decision that help to explain the different result in this case, as well as those that in my view address some of the concerns I expressed in my previous post.