Category: Environmental Page 49 of 53

Cases considered: Motkoski Holdings Ltd. v. Yellowhead (County), 2008 ABQB 454 (Q.B.), Motkoski Holdings Ltd. v. Yellowhead (County), 2010 ABCA 72 (C.A.)

As both environmental standards and the demand for strategically located land increase, there is a greater likelihood that contaminated land will come on the market. What is clear from the case of Motkoski Holdings Ltd. v. Yellowhead (County) is that the burden of thoroughly investigating a site remains firmly on the purchaser’s shoulders, despite the sometimes inequitable difference in bargaining power between a vendor and a purchaser. Standard real estate contractual terms will often transfer land “as is” and exclude representations and warranties outside the four corners of the contract as well as exclude any collateral agreements. A contractual term that excludes any warranty as to the soil conditions, particularly in light of an engineering report that recommends further investigation, should put the purchaser on notice that further investigation may be necessary. If there are any concerns raised from preliminary investigation of the site, the purchaser neglects to follow up or investigate at its own peril.

Maintaining space for autonomy? Environmental assessments in the context of aboriginal land claims agreements

By Nigel Bankes

On May 28, 2010

In Aboriginal, Environmental, Supreme Court of Canada

Case considered: Quebec (Attorney General) v. Moses, 2010 SCC 17

This is the first decision of the Supreme Court of Canada to examine a modern land claims agreement; in this case the James Bay and Northern Quebec Land Claim Agreement (JBNQA or the Agreement) between Canada, Quebec and the James Bay Cree and the Northern Quebec Inuit. The argument in the case happens to relate to the nature of the environmental assessment process that should be applied to a particular project but there is a much broader issue at stake which is the capacity of federal and provincial governments to continue to make and apply laws within the territory covered by the Agreement to matters “covered” by the terms of the Agreement. By adopting an artificial distinction between that which is covered by the Agreement and that which falls outside it, the majority recognize that governments have retained significant authority to “supplement” the terms of the Agreement. But the government’s authority to do so is not completely unlimited since the majority also recognizes that such authority must be exercised consistently with the Crown’s duty to consult. By contrast, the dissent takes a more robust view of the coverage of the land claims agreement and as a result limits the capacity of governments to create a parallel normative world that sidelines negotiated arrangements for autonomy.

Endangered species under Alberta’s Wildlife Act: Effective legal protection?

By Shaun Fluker

On March 29, 2010

In Environmental, Protection of Species

Legislation considered: Wildlife Act, R.S.A. 2000, c. W-10

PDF version: Endangered species under Alberta’s Wildlife Act: Effective legal protection?

On March 23, 2010 Alberta’s Endangered Species Conservation Committee renewed its 2002 recommendation that the Minister of Sustainable Resource Development designate the grizzly bear as a threatened species under the Wildlife Act, R.S.A. 2000, c. W-10. The legal implications of such designation could be few or many under Alberta’s legislative framework for endangered species, and this comment explores this in more detail.

MiningWatch Canada v. Canada (Fisheries and Oceans): Hoisted on one’s own petard?*

By Shaun Fluker

On February 19, 2010

In Environmental, Fisheries Regulation

Case considered: MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2

PDF version: MiningWatch Canada v. Canada (Fisheries and Oceans): Hoisted on one’s own petard?

Ecojustice, on behalf of its client MiningWatch Canada, declared victory on January 21, 2010 with the release of the Supreme Court of Canada’s decision in MiningWatch Canada v. Canada (Fisheries and Oceans). In brief, Justice Rothstein for a unanimous Supreme Court ruled that the track of environmental assessment conducted by a federal responsible authority pursuant to the Canadian Environmental Assessment Act, S.C. 1992, c. 37 flows directly from the scope of the project as proposed by a project proponent. The decision confirms that tracking an environmental assessment sequentially precedes project scoping under Canadian Environmental Assessment Act, and is of obvious significance in the conduct of federal environmental assessment on projects in Alberta on a go forward basis.

Climate Change Legislation – Waiting for Obama; or Just Waiting

By Alastair Lucas, Q.C.

On February 3, 2010

In Climate Change, Environmental

PDF Version: Climate Change Legislation – Waiting for Obama; or Just Waiting

Shaun Fluker’s environmental law non-event of the past decade focused on case law (or lack thereof). My review of climate change legislation continues Shaun’s theme. We waited for federal legislation. Then we waited for the Obama climate change legislation. Now with the President’s Senate majority gone, how long can Canada continue to wait?

Category: Environmental Page 49 of 53

Fraud and Concealment of Contaminated Land: Do Your Due Diligence, Purchaser

Maintaining space for autonomy? Environmental assessments in the context of aboriginal land claims agreements

Endangered species under Alberta’s Wildlife Act: Effective legal protection?

MiningWatch Canada v. Canada (Fisheries and Oceans): Hoisted on one’s own petard?*

Climate Change Legislation – Waiting for Obama; or Just Waiting