Wind Energy Development on Public Lands in Alberta: A Missed Opportunity

By: Allan Ingelson

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To date, most of the wind energy development in Alberta has been on private lands in the southern part of the province. As a result, private landowners and wind farm developers on private lands have reaped the financial benefits from electricity production. In 2010, we posed the following question: in light of the significant revenues secured by the Alberta government for decades from leasing public lands for hydrocarbon development, why has the provincial government not yet leased public lands for wind energy development? (Allan Ingelson & Ryan Kalt, Wind Farms on Alberta Crown Lands?, International Resources Industries & Sustainability Centre, University of Calgary, IRIS Executive Brief #10-02, March 17, 2010). Eight years later the Alberta Government has not yet adopted a wind energy rights disposition system to facilitate investment and the development of wind farms on public lands in the province. Unlike the governments of Ontario, B.C., Quebec, Nova Scotia, Saskatchewan, Manitoba, and New Brunswick, the Government of Alberta has thus far missed out on the revenue-generating opportunity from leasing public lands to develop wind farms and generate electricity. Years ago, other provincial governments created and adopted wind energy lease systems for public lands, but Alberta has failed to do so and as a result wind farms are located on private lands.

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Judicial Review is about the Legality of State Decision-Making

By: Shaun Fluker

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Case Commented On: Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, 2018 SCC 26 (CanLII)

The Supreme Court of Canada has reversed the Alberta Court of Appeal decision in Wall v Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses, 2016 ABCA 255 (CanLII) which ruled the Highwood Congregation decision to expel one of its members was subject to judicial review on the basis of an alleged breach of procedural fairness. In this unanimous judgment, the Supreme Court ruled that the Court of Appeal stretched the reach of judicial review too far in holding that this mechanism of judicial oversight applies to a decision of a non-state actor.

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A Superior Court’s Inherent Jurisdiction to Infringe the Charter Right to a Jury Trial?

By: Admin

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Case Commented On: R v Boisjoli, 2018 ABQB 410 (CanLII)

The decision of Justice Eldon J. Simpson in R v Boisjoli is unusual. On April 5, 2018, the Crown and the accused, Mr. Boisjoli, appeared before Justice Simpson to select jurors for a trial scheduled for the week of April 9. The charge (or one of the charges) was one of intimidation of a justice system participant, contrary to section 423.1 of the Criminal Code, RSC 1985, c C-46. However, no jury was selected on April 5. Instead, Justice Simpson, by his own motion and under the claimed authority of the court’s inherent jurisdiction, ordered that Mr. Boisjoli’s trial go ahead as a trial by judge alone. Justice Simpson’s order was made because of the anticipated behavior of Mr. Boisjoli, i.e. that he intended to “artificially frustrate the jury selection process” (at para 24) and “disrupt and sabotage” the jury trial (at para 37). There was only a brief mention of Mr. Boisjoli’s Charter right to a trial by jury, and no Charter analysis. Instead, Justice Simpson relied upon an analogy to a section in the Criminal Code that equated an accused’s non-appearance with a waiver of a jury trial.

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When Crocodiles and Kangaroos Dance Together, Anything is Possible: Report of the Timor-Leste and Australia Conciliation Commission

By: Nigel Bankes

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Report commented on: Report and Recommendations of the Compulsory Conciliation Commission between Timor-Leste and Australia on the Timor Sea, Registry, Permanent Court of Arbitration, 9 May 2018

The Conciliation Commission in the dispute between Timor-Leste and Australia with respect to a permanent maritime boundary in the Timor Sea has now issued its final Report and Recommendations on what must be recorded as an exceptionally successful conciliation exercise. The report documents the process of shepherding the Parties to the conclusion and signature of the Treaty between the Democratic Republic of Timor-Leste and Australia Establishing their Maritime Boundaries in the Timor Sea, New York, March 6, 2018. This treaty not only establishes permanent maritime boundaries between the two States it also establishes (Annex B) a joint development regime for the Greater Sunrise and Troubadour deposits that fall on either side of the agreed maritime boundary. The Report also documents the ultimately unsuccessful efforts of the Commission to facilitate the Parties in reaching agreement on a development concept for the Greater Sunrise Field. In dealing with a set of issues that went beyond that of delimitation, the Report illustrates the flexibility of conciliation procedures to address (with the consent of the Parties) a broader suite of issues than could be accommodated in a more formal and constrained adjudication procedure.

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Duty to Consult in the Bigstone Pipeline Case: A Northern Gateway Sequel and TMX Prequel?

By: David. V Wright

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Case commented on: Bigstone Cree Nation v. Nova Gas Transmission Ltd., 2018 FCA 89

While all eyes are on the Trans Mountain Expansion (TMX) pipeline saga, especially the political spats and constitutional law dimensions (clear as much of that law may be), the Federal Court of Appeal (FCA) released a decision in early May that is directly on-point with respect to legal challenges brought by Indigenous groups against the TMX project approval (consolidated by the FCA into one case). Bigstone Cree Nation v. Nova Gas Transmission Ltd. engages the same legislative scheme as the court challenges against the Northern Gateway Project (NGP), which was decided by the Court in Gitxaala Nation v. Canada, 2016 FCA 187, and at issue in TMX – i.e. the post-2012 integrated NEB Act – CEAA 2012 review and approval regime. This post has two parts. In the first part, I focus on a few notable points of law that the FCA reiterated in Bigstone. In the second part, I move on to discuss how this appears to be an important duty to consult trilogy in the making, with this latest case providing hints toward the FCA upholding the TMX Order in Council (OIC) and Certificate of Public Convenience and Necessity (CPCN or certificate). The FCA’s TMX decision is due out soon.

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