Category Archives: Intervenors and Standing

The problem of Locus Standi at the Energy Resources Conservation Board: Leave to appeal granted in Kelly #2

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Case Considered: Kelly v. Alberta (Energy Resources Conservation Board), 2010 ABCA 307

On October 15, 2010 the Court of Appeal granted leave to Susan Kelly and Lillian Duperron to appeal the decision of the Energy Resources Conservation Board (ERCB) denying them an opportunity to oppose the drilling of a sour gas well. West Energy proposes to drill the well at a location approximately 6 kilometers from their respective residences. Justice Frans Slatter granted leave to appeal on two questions, one of which concerns the proximity between a residence and the contested well and its application towards whether a person’s rights may be directly and adversely affected by the well. Readers not familiar with the law concerning standing to oppose an energy project being considered by the ERCB may wish to consult previous ABlawg posts for background on this matter (For an overview and links to previous postings see Nickie Vlavianos’ July 2010 ABlawg post, “Still more questions about standing before the ERCB“).

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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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The Issues and Challenges with Public Participation in Energy and Natural Resources Development in Alberta

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Introduction

Public participation is a key feature of energy and natural resources development in Alberta. The provincial government often expresses its desire for participation by Albertans in its policy making and planning processes. At the project approval stage, project proponents regularly conduct public consultation programs and regulatory boards hold public hearings and award costs to interveners.

Yet there are signs that public participation is not all that it seems in the Alberta energy and resources development context. Albertans seem frustrated and dissatisfied with the current level or type of public participation available: see, for example, Dan Woynillowicz & Steve Kennett, “Passage of Bill 46 Perpetuates EUB Shortcomings” (2007). Applications for leave to appeal decisions of energy tribunals on issues of public participation and procedural fairness seem to be on the rise: see, for example, Prince v. Alberta (Energy Resources Conservation Board), 2010 ABCA 214, Cheyne v. Alberta (Utilities Commission), 2009 ABCA 94, and Kelly v. Alberta (Energy and Utilities Board), 2008 ABCA 52.

The Canadian Institute of Resources Law (CIRL) at the University of Calgary is currently engaged in a research project, funded by the Alberta Law Foundation, which is focusing on legal and policy questions in relation to public participation in the Alberta energy and natural resources development context. To obtain input on the issues and challenges facing public participation in this context, CIRL held a Round Table discussion at the University of Calgary on April 16, 2010. There were 20 participants in attendance, all of whom have experience with public participation issues in the energy and natural resources development context. There was representation from landowners, regulators, industry, the regulatory bar, environmental and natural resources organizations, multi-stakeholder consultation groups, policy and energy consultants, and academia.

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Still More Questions about Standing before the ERCB

PDF version: Still More Questions about Standing before the ERCB 

Case Considered: Prince v. Alberta (Energy Resources Conservation Board), 2010 ABCA 214

Leave to appeal applications from standing decisions of the Energy Resources Conservation Board (ERCB) continue to be heard almost, it seems, regularly. Some cases raise questions about the first part of the standing test, whether a “right” has been established that may be affected by a proposed energy project. Others focus on the second part of the test, whether possible direct and adverse effects have been demonstrated. Sometimes the Court of Appeal grants leave; sometimes it does not. Prince v. Alberta (ERCB) is another case of leave denied. It is also yet another case that raises important questions about the proper interpretation of the test for standing. Isn’t it time for legislative direction?

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Lawyer, Not Intervenor

Case considered: R. v. B.P., 2010 ABQB 204

PDF version: Lawyer, Not Intervenor

In R. v. B.P., 2010 ABQB 204, Madam Justice Strekaf denied intervenor status to the former lawyer for the appellant accused. The accused had entered a plea to a charge of possession of a weapon for a dangerous purpose. He sought to have the plea set aside on the basis of ineffective assistance by his trial lawyer, Mr. McAviney. Mr. McAviney sought intervenor status in the appeal on the basis that the argument for ineffective assistance of counsel gave him a “direct interest in the outcome of the case” (B.P. at para. 8). He suggested that the “real lis” of the appeal was between Mr. McAviney and the accused, rather than between the accused and the Crown.

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