Category Archives: Natural Resources

The death of free entry mining regimes in Canada?

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Decision commented on: Ross River Dena Council v Government of Yukon, 2012 YKCA 14.

I (along with co-author Cheryl Sharvit) and others have long tried to make the case that free entry mining regimes are not only bad public policy but also unconstitutional on the grounds that the common premises of free entry regimes are inconsistent with the Crown’s duty to consult indigenous peoples whose rights and interests may be affected by the government’s decisions to allow others to acquire rights in traditional territory. See Bankes and Sharvit, Aboriginal Title and Free Entry Mining Regimes in Northern Canada, (1998) here and Bankes, “The Case for the Abolition of Free Entry Mining Regimes” (2004), 24(2) J. Land, Resources, & Envtl. Law 317-322.

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A new approach to regulating unconventional resource plays in Alberta: the ERCB takes a bold step forward

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Document commented on: ERCB Discussion Paper, Regulating Unconventional Oil and Gas in Alberta, 2012.

In the weeks before Christmas the Energy Resources Conservation Board (ERCB) released a number of documents all dealing with aspects of the development of unconventional resources. The documents included two inquiry reports dealing with serious incidents in relation to horizontal wells (here and here) and multi-stage fracturing, a draft Directive on Hydraulic Fracturing and the document which is the focus of this post, the Discussion Paper, Regulating Unconventional Oil and Gas in Alberta. The release of this paper is a welcome development because it provides a practical example of how a regulator can take the initiative in trying to manage cumulative impacts and the risks associated with the application of known technologies to new challenges. It is fully consistent with the planning approach espoused by the Alberta Land Stewardship Act, SA 2009, c A-26.8 and the Land-use Framework. And for once it demonstrates the ability of the Board to lead and get out in front of its critics – ironically, precisely at the moment when it is about to be replaced by new Energy Development Authority (I was going to title this blog “The ERCB and the Owl of Minerva” but thought that some might infer from that title that it was a post on species at risk).

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Bill 2 the Responsible Energy Development Act and the Duty to Consult

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Proposals commented on: Bill 2, the Responsible Energy Development Act, Alberta and the First Nations Consultation Policy, Discussion Paper, (Fall 2012).

There has been a lively debate in the courts, tribunal decisions and the literature over the last few years as to the role of administrative tribunals in discharging or examining the Crown’s duty to consult aboriginal peoples when contemplating making decisions and developing policies which may adversely affect aboriginal or treaty rights.  There are two guiding rules.  First, a tribunal that has the authority to decide questions of law is presumed to have the jurisdiction to decide questions of constitutional law including the question of whether or not the Crown has satisfied its constitutional duty to consult and accommodate – provided that the constitutional question is rationally connected to a power or jurisdiction that the tribunal is exercising.  The legislature may rebut that presumption by removing all or part of that jurisdiction from a tribunal.  Second, a tribunal does not have the authority to discharge the Crown’s duty to consult and accommodate unless that authority is expressly delegated to the tribunal.  The principal authority for all of this is Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43 which I blogged at here.

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An Overview of Bill 2: Responsible Energy Development Act – What are the changes and What are the issues?*

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Bill commented on: Bill 2, Responsible Energy Development Act, The Legislative Assembly of Alberta, 1st Session, 28th Legislature

On the heels of a sweeping overhaul to federal legislation to streamline federal approval processes for major energy projects, it is now Alberta’s turn.  Bill 2 – the proposed Responsible Energy Development Act (REDA) proposes significant changes to the way oil and gas (and coal) projects are approved and regulated in the province.  This post provides an overview of the Bill by highlighting the key changes that will be made to the current regulatory regime and the issues they raise.

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Bill 2 and its implications for landowner participation in energy project decision-making

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Bill commented on: Bill 2, Responsible Energy Development Act, The Legislative Assembly of Alberta, First Session, 28th Legislature

I find it strange to be writing in defence of the current hearing practice at the Energy Resources Conservation Board (ERCB), but that is what I am about to do.  I find myself in this odd position because Bill 2 significantly reshapes the governing legislation on energy project hearings, and in doing so the Bill proposes to repeal existing statutory rights held by landowners under sections 26(2) and 28(1) the Energy Resources Conservation Act, RSA 2000, c E-10 (ERCA).  These existing statutory provisions provide a landowner or resident on the land upon which an energy project will be located, or those in very close proximity, with the right to an ERCB hearing to contest the project and the prospect of funding to construct their case.  Much has been written on ABlawg concerning these provisions (See various posts by myself and others here at the Faculty under the “Intervener and Standing” category, here. See also a short article I published in volume 111 of Resources (2011) entitled “Public Participation at the Alberta Energy Resources Conservation Board,” here. This post describes the changes proposed in Bill 2.

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