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Category: Property Page 19 of 34

Court of Appeal confirms QB decision that coalbed methane forms part of the natural gas title and not the coal title

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On September 21, 2012

In Energy, Natural Resources, Property

PDF version: Court of Appeal confirms QB decision that coalbed methane forms part of the natural gas title and not the coal title

Case Considered: Encana Corporation v Devon Canada Corporation, 2012 ABCA 271, aff’g 2011 ABQB 431.

 The Court of Appeal in a unanimous memorandum of judgment (Justices McFadyen, O’Brien and O’Ferrall) has affirmed Justice Kent’s decision at trial in a case dealing with section 10.1 of the Mines and Minerals Act, RSA 2000, c M-17 (as am by SA 2010, c 20) (MMA).  That section declared that coalbed methane (CBM) is and always has been natural gas.  Justice Kent applied the new section 10.1 to grant summary judgement in competing actions brought by the coal owners and the natural gas lessees seeking declaratory relief as to the ownership of CBM in certain lands.  The actions in question had all been commenced before the amendment was introduced and passed. The Court held that section 10.1 was a complete answer to the competing claims and concluded that the natural gas lessees were entitled to a declaration that the coalbed methane had been granted to them under the terms of their natural gas leases.  I blogged on the trial judgment here.

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The Pleasures and Perils of Holograph Wills

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On August 28, 2012

In Family, Property, Wills and Estates

PDF version: The Pleasures and Perils of Holograph Wills

Case Considered: Lubberts Estate, 2012 ABQB 506

 This Court of Queen’s Bench decision interprets a provision in a holograph will.  The case is an example of the not-uncommon human tendency to try to use property to control family members’ behaviour, both before death by way of gift and after death by way of inheritance.  Like many such efforts, this deceased’s handwritten codicils to her lawyer-drawn will and her subsequent holograph will did not do what she wanted them to do.  Instead of the deceased determining who would inherit her property and on what conditions, her family members inherited under generic, unconditional intestate laws.  It is ironic; the more control the deceased tried to exert over what happened to her property on her death, the less say she had in the disposition of her property in the end.

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Gardening on Vacant Land –Through Calgary’s Lens

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On July 9, 2012

In Environmental, Municipal Law, Property

PDF version: Gardening on Vacant Land –Through Calgary’s Lens

Comment: Gardening on Vacant Land in Calgary – Part II

The ABlawg post Part I of Gardening on Vacant Land in Calgary, Verdant History, Volatile Endeavor, described the rich history of gardening on vacant land in Calgary, and discussed  law and policy challenges posed by the Occupiers Liability Act, RSA 2000, c O-4.  This ABlawg post turns to issues of vacant land use for gardening in Calgary.

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Disgorgement Damages Awarded against Canada for Breach of a Modern Land Claim Agreement

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On July 5, 2012

In Aboriginal, Property

PDF version: Disgorgement Damages Awarded against Canada for Breach of a Modern Land Claim Agreement

Case commented on: NTI v Canada (Attorney General), 2012 NUCJ 11

In this important case Justice Earl Johnson in the Nunavut Court of Justice has granted summary judgement against Canada in the amount of $14,817,500 for breach of Article 12.7.6 of the Nunavut Land Claims Agreement (NLCA) which provided for the establishment of a monitoring program to cover “the long term state and health of the ecosystemic and socio-economic environment in the Nunavut Settlement Area.”  Justice Johnson assessed damages on a disgorgement basis calculated by reference to the expenditures that Canada avoided making by failing to implement this provision of the NLCA in a timely way.  In doing so the judgement draws upon the decision of the House of Lords in Attorney General v Blake, [2001] 1 AC 268 (HL).

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Building energy empires on (legal) foundations of sand, or, can I have my cake and eat it too?

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On June 27, 2012

In Energy, Property

PDF version: Building energy empires on (legal) foundations of sand, or, can I have my cake and eat it too?

Case commented on: Remington Development Corporation v Enmax Power Corporation, 2011 ABQB 694, aff’d 2012 ABCA 196.

Most people would think that if Utility Co (U Co) needs access to cross Y’s land in order to construct a major capital investment in the form of a utility right of way, U Co will secure any necessary access rights (easement or utility right of way) either: (1) by way of an agreement, or (2) by way of expropriation if Y tries to extract hold-out rents.  In either case, U Co will want the expropriation or agreement to bind the land: i.e. to run with the land no matter what Y does with it (sell it, assign it into bankruptcy etc.).  And in either case one would think that U Co (and its lawyers) would want to make sure that the agreement bound the land for so long as U Co needed the right of way – or at least for a reasonable amortization period for the investment that U Co is about to make, so as to ensure that it does not have stranded assets on its hands, or worse still, a gap in its transmission system.

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