Setting the Record Straight on Federal and Provincial Jurisdiction Over the Environmental Assessment of Resource Projects in the Provinces

By: Martin Olszynski and Nigel Bankes

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Matter Commented On:Bill C-69: An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to ament the Navigation Protection Act and to make consequential amendments to other Acts

Alberta’s new premier has recently threatened to sue the federal government over Bill C-69, the Liberal government’s attempt to restore some credibility to Canada’s environmental assessment regime. More specifically, Premier Kenney has recently been asserting that section 92A of the Constitution Act, 1982, which gives the provinces jurisdiction over the development of non-renewable natural resources, precludes the federal government from assessing what the Premier describes as “provincial projects”: “[BillC-69] gives a new federal agency the power to regulate provincial projects, such as in situ oil sands developments and petrochemical refineries, which are entirely within a province’s borders and already subject to provincial regulation. It disregards a landmark Supreme Court ruling on jurisdiction and the balance between federal and provincial powers spelled out in the Constitution — including section 92A in which provinces have exclusive authority over non-renewable resource projects.” In making these comments, the Premier contradicts almost three decades of settled jurisprudence with respect to the federal and provincial division of powers over the environment generally, and federal jurisdiction to conduct environmental assessments specifically. Continue reading →

Sentencing to the Starting Point: The Alberta Debate

By: Lisa Silver

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Case Commented On: R v Ford, 2019 ABCA 87

After R v Shropshire, [1995] 4 SCR 22, the future of starting points in sentencing seemed questionable but after R v M (CA), [1996] 1 SCR 500, the future of the concept seemed downright bleak. Yet, decades later in R v Lacasse, [2015] 3 SCR 1089, the Supreme Court still wrestled with the applicability of starting points in sentencing. Now, the province which embraced the concept is debating the efficacy of using this sentencing approach. Although the majority of the Alberta Court of Appeal has never wavered on the applicability of sentencing starting points, the meaning of such a tool has changed. In R v Ford, 2019 ABCA 87, the most recent pronouncement on the issue, the Court seems prepared to shed the past and move beyond this point of contention.

The Ford decision is brief and needs context. This requires a review of the principles surrounding starting points including a look back to the source of the principle. This review, however, and here is the spoiler alert, will not just engage a linear analysis of the law. It is not enough that we understand the divergent issues arising from applying starting points in sentencing to arrive at the final sentence determination in an individual case. We must also situate that starting point in the grander scheme of legal principle by asking the reason for using such a point in the first place. This exploration of the “why” requires us to understand what the attraction to a starting point in anything is anyway and whether, for this reason, we simply cannot shed the basic need to start from somewhere. For this part of the discussion, I will not start with the expected but with the unexpected. Continue reading →

Standing to Seek Judicial Review of a Statutory Decision

By: Shaun Fluker

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Case Commented On: Kozina v Knecht, 2019 ABQB 355

This is a decision by Mr. Justice Brian R. Burrows ruling that the applicant (Kozina) has standing to seek judicial review of a decision made by the Alberta Law Enforcement Review Board (Board). It seems that the applicant’s standing was contested at the outset of the judicial review hearing on March 29, and thus Justice Burrows initially heard submissions on standing. The merits of the judicial review application will now proceed at a later date. This ruling is of interest to me because of my ongoing work on standing to commence proceedings and also because the case involves the relationship between judicial review and a statutory right of appeal. Continue reading →

Canada v Chhina: Supreme Court Makes Habeas Corpus Available to Immigration Detainees

By: Amy Matychuk

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Case Commented On: Canada (Public Safety and Emergency Preparedness) v Chhina, 2019 SCC 29

On May 10, 2019, the Supreme Court of Canada released its judgment in Canada v Chhina (Chhina SCC). It held that habeas corpus is available to immigration detainees where the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA) does not provide a complete, comprehensive and expert statutory scheme equally as broad and advantageous as habeas corpus. Justice Andromache Karakatsanis, for the 6-1 majority, found that the IRPA’s procedures for reviewing the legality of immigration detention are not broad enough to preclude detainees from seeking habeas corpus as an alternative remedy. Justice Rosalie Abella, dissenting, would have held that the IRPA should be interpreted in such a way as to guarantee the fullest possible range of scrutiny for the legality of immigration detention. Continue reading →

Summary Judgment Not Available in a Farmout Case

By: Nigel Bankes

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Cases commented on: (1) Teine Energy Limited v Audax Investments Ltd, unreported oral judgment delivered from the bench October 2, 2018 (Transcript of Proceedings), (2) Teine Energy Limited v Audax Investments Ltd, unreported oral judgment delivered from the bench March 21, 2019 (ABQB), and (3) Teine Energy Limited v Audax Investments Ltd, 2019 ABQB 334 (ABQB Ruling on Costs)

Teine and Audax entered into a farmout agreement on November 24, 2016. The agreement took the form of a proposal from Teine (as the farmor) to Audax as the proposed farmee, which proposal Audax accepted. The agreement contemplated that in return for drilling the commitment well (or wells), Audax would earn a 100% interest in Taine’s Saskatchewan Crown petroleum and natural gas lease, subject to a 17.5% gross overriding royalty in favour of Teine. The agreement incorporated by reference the 1997 Canadian Association of Petroleum Landmen Farmout and Royalty Procedure.

The case turns on clauses 3 and 4 of the farmout agreement: Continue reading →