ABLawg

Party Principally Interested in Thermal Recovery Succeeds on Appeal

On June 8, 2017

By: Nigel Bankes

PDF Version: Party Principally Interested in Thermal Recovery Succeeds on Appeal

Case Commented On: IFP Technologies (Canada) Inc v EnCana Midstream and Marketing, 2017 ABCA 157 (CanLII)

The Court of Appeal by a majority (Chief Justice Fraser, Justice Rowbotham concurring; Justice Watson dissenting) has concluded that a party (IFP Technologies) who acquired from PanCanadian Resources (PCR, now Encana) a 20% undivided interest in a set of oil and gas properties under the terms of a conveyancing document (denominated here as the Asset Exchange Agreement, AEA), retains a working interest in those properties even where other contemporaneous documents executed by the parties, including a joint operating agreement (JOA), purported to limit IFP’s interest to an interest in the production that occurs as a result of thermal processes and not as a result of primary production. As a result of its interpretation of the AEA, the majority concluded that IFP was entitled to an accounting for its proportionate share of the net revenue realized from primary production from the relevant properties (now held by Wiser – and most recently Canadian Forest Oil – pursuant to a farmout from PCR to Wiser). The Court also held that IFP had reasonably withheld its consent to Wiser’s acquisition of PCR’s interest in the lands. In reaching these conclusions the majority overruled Chief Justice Wittmann’s decision at trial (2014 ABQB 470 (CanLII)) acting in place of the Trial Judge, Justice Ron Stevens who (at para 48) died in spring 2014 without having been able to render judgement based on a trial which took place between January and June 2011.

Federal Court Grants Alberta Leave to Intervene in TransMountain Proceedings: Has Alberta Earned the Privilege?

By Shaun Fluker

On June 2, 2017

In Aboriginal, Intervenors and Standing, Oil & Gas

By: Shaun Fluker

PDF Version: Federal Court Grants Alberta Leave to Intervene in TransMountain Proceedings: Has Alberta Earned the Privilege?

Case Commented On: Tsleil-Waututh Nation v Canada (Attorney General), 2017 FCA 102 (CanLII)

In Tsleil-Waututh Nation v Canada (Attorney General) Justice Stratas deals with two leave to intervene motions filed in the consolidated Kinder Morgan TransMountain pipeline judicial review proceedings currently before the Federal Court of Appeal. Justice Stratas grants Alberta’s application to intervene on the presumption that the Crown represents the interest of Albertans in the proceedings (at paras 11-27) and denies the application to intervene made by the Tsartlip First Nation on the basis it is really an application for judicial review under the guise of an intervention and its submissions would be duplicative of existing parties (at paras 35-54). Both applications were opposed by existing parties – the Tsleil-Waututh Nation opposed Alberta’s intervention and Kinder Morgan opposed the Tsartlip intervention. This comment focuses on the reasoning given by Justice Stratas in granting Alberta intervener status in these proceedings, and in particular I question why Alberta was not asked to justify or explain its basis for intervening in these proceedings. The privilege of representing the public interest is something which must be earned, and it isn’t clear to me Alberta has done so in this case.

Can Federal Legislative Jurisdiction Support a Broad, Sustainability-Based Impact Assessment?

By Martin Olszynski

On May 30, 2017

In Constitutional, Environmental

By: Martin Olszynski

PDF Version: Can Federal Legislative Jurisdiction Support a Broad, Sustainability-Based Impact Assessment?

Report Commented On: Expert Panel on the Review of Federal Environmental Assessment Processes, Building Common Ground: A New Vision for Impact Assessment in Canada

This is the fourth in a series of ABlawg posts to consider the report of the Expert Panel on the Review of Federal Environmental Assessment Processes. Professor Arlene Kwasniak wrote the first post, wherein she summarized the main contours of the Expert Panel’s recommendations; Professor Shaun Fluker and Drew Yewchuk (JD 2017) tackled the ever-present challenges of discretion, transparency and accountability; and Professor Sharon Mascher recently discussed the Expert Panel’s recommendations with respect to triggering. In this post, I tackle an area of lingering doubt in the Panel’s report, namely the federal government’s jurisdiction to make project-related decisions following a broad, sustainability-based impact assessment. In my view and as further set out below, this doubt is misplaced. My analysis is admittedly somewhat novel but doesn’t break entirely new ground – a similar analysis was put forward in the commentary following the Supreme Court of Canada’s landmark decision in Friends of the Oldman River Society v. Canada (Minister of Transport) 1992 CanLII 110 (SCC). Fundamental to my approach is the distinction between legislating with respect to a subject on the one hand, and subsequent decision-making pursuant to such legislation on the other.

Triggering Federal Impact Assessment: Lessons from Down-Under

By Sharon Mascher

On May 29, 2017

In Environmental, Protection of Spaces, Protection of Species

By: Sharon Mascher

PDF Version: Triggering Federal Impact Assessment: Lessons from Down-Under

Report Commented On: Expert Panel on the Review of Federal Environmental Assessment Processes, Building Common Ground: A New Vision for Impact Assessment in Canada

On April 5, 2017, the Expert Panel on the Review of Federal Environmental Assessment Processes released a report entitled Building Common Ground: A New Vision for Impact Assessment in Canada proposing major reforms to Canada’s federal environmental assessment processes. Professor Arlene Kwasniak has provided some background and an overview of key aspects of the report. Professor Shaun Fluker and Drew Yewchuk have commented on the Panel’s response to concerns raised by the University of Calgary’s Public Interest Law Clinic on behalf of the Canadian Parks and Wilderness Society (CPAWS) Southern Alberta Chapter in relation to discretion, transparency and accountability.

The focus of this post is to comment on the Panel’s recommendations relating to the first of three fundamental questions it considered – what should require federal impact assessment (IA)? In answering this question, the Expert Panel reached the overall conclusion that “[t]here should be an appropriate threshold for effects on federal interests so that a trivial impact does not trigger IA. This threshold, defined as a consequential impact, should be tied to the sustainability framework.” To achieve this outcome, the Expert Panel recommends three different triggering mechanisms for projects, plans and policies clearly linked to matters of federal interest. The Expert Panel notes that Australia takes a similar approach, with environmental assessments required when a proposed action is “likely to have a significant impact on a matter of national environmental significance.” This post explores the similarities and differences between the Panel’s recommendations and the approach taken in Australia to ask what lessons can be learned from the Australian experience.

“Abandoned Goods” Require Abandoned Premises or Expired/Terminated Tenancies Plus Vacated Premises

By Jonnette Watson Hamilton

On May 26, 2017

In Landlord/Tenant

By: Jonnette Watson Hamilton

PDF Version: “Abandoned Goods” Require Abandoned Premises or Expired/Terminated Tenancies Plus Vacated Premises

Cases Commented On: Wilderdijk-Streutker v Zhao, 2017 ABPC 24 (CanLII) and Shearer v Shields, 2017 ABPC 108 (CanLII)

A landlord can dispose of the belongings that a residential tenant has left behind at the rented premises if those belongings meet the definition of “abandoned goods” in section 31(1) of the Residential Tenancies Act, SA 2004, c R-17.1. That section says “abandoned goods” are goods left at residential premises by a tenant who has either abandoned the premises or has vacated the premises after their tenancy has expired or been terminated. Two recent Provincial Court judgments discuss whether a tenant’s belongings were “abandoned goods” or not. In both judgments, the landlords were found to have acted rashly and the tenants were found to have not abandoned their belongings. However, only one of the judgments considers whether the belongings were “abandoned goods” by paying attention to the definition in section 31(1) of the Act. That definition requires that the focus be on the premises and the tenant’s legal relationship to those premises, and not on the belongings themselves.