Crown Oil Sands Dispositions and the Duty to Consult

By: Nigel Bankes

Case commented on: Buffalo River Dene Nation v. Ministry of Energy and Resources and Scott Land and Lease Ltd., 2014 SKQB 69

PDF version: Crown Oil Sands Dispositions and the Duty to Consult

In this decision Justice Currie of the Saskatchewan Court of Queen’s Bench concluded that the Crown owes no duty to consult a Treaty 10 First Nation when issuing Oil Sands Special Exploratory Permits (OSSEPs) in the traditional territory of that First Nation. In reaching this conclusion Justice Currie focused on his assessment that in issuing a permit the Minister did not make a decision that could affect the use of the land. Justice Currie also distinguished the Supreme Court of Canada’s decision in Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73, where that Court held that the Crown’s decision to authorize the assignment of tree farm licence could trigger the duty to consult on the basis that it was a high level strategic planning decision that could have subsequent on-the-ground effects. Justice Currie took the view in this case that there was no Crown “plan of action” and no high level strategic planning decisions and therefore no duty.  Continue reading →

Four Years Out: Is the Gulf of Mexico Safer Today?

By: Jacqueline L. Weaver

In February 2011, at the invitation of Professor Alastair Lucas at the University of Calgary, I spoke on the U of C campus about the causes and consequences of the BP oil spill in the Gulf of Mexico as of that date. That invitation led me on a three-year journey that culminated in two lengthy articles, just published in the Houston Journal of International Law, seeking to assess what has changed in offshore safety in the Gulf since the blowout (see “Offshore Safety in the Wake of the Macondo Disaster: Business as Usual or Sea Change?”, (2014) 36 Houston J. Int’l L. 148 (Part One) and “Offshore Safety in the Wake of the Macondo Disaster: the Role of the Regulator” (2014) 36 Houston J. Int’l L. 380 (Part Two)). This brief post summarizes my main findings on the state of safety in the Gulf today.  I am deeply grateful for the “push” that the U of C Law School gave me with its invitation to speak and its gracious hospitality during my visit there.

Continue reading →

Leave to Appeal Granted in NRCB Case Concerning Participatory Rights and the Interpretation of ‘Directly Affected’ Persons Entitled to a Hearing

By: Shaun Fluker

PDF Version: Leave to Appeal Granted in NRCB Case Concerning Participatory Rights and the Interpretation of ‘Directly Affected’ Persons Entitled to a Hearing

Decision commented on: JH Drilling Inc. v Alberta (Natural Resources Conservation Board), 2014 ABCA 134

The Alberta Court of Appeal has granted leave to JH Drilling to appeal a ‘standing’ decision by the Natural Resources Conservation Board (NRCB).  While not a decision on the merits of the issue, this leave decision is significant because the question for appeal will concern the NRCB’s interpretation of ‘directly affected’ in its governing legislation to determine participatory rights before the Board.  Moreover, the interest asserted by JH Drilling to be directly affected here is one of a commercial nature – JH Drilling is not a landowner or resident in the immediate vicinity of the proposed project in this case.  To my knowledge, this merit hearing will be the first time the Court of Appeal considers participatory rights before the NRCB.

Continue reading →

Access to Justice and Costs Against the Crown

By: Sarah Burton

PDF Version: Access to Justice and Costs Against the Crown

Case commented on: R v A.Y.A., 2014 ABQB 103

In R v A.Y.A., 2014 ABQB 103 [AYA], the Honourable Madam Justice C.A. Kent suggested that access to justice considerations have a role to play in awarding costs against the Crown. AYA built on pre-existing case law that laid the groundwork to make this exceptional award in situations where there was no Crown misconduct. Prior to AYA, however, applicants had been unsuccessful in achieving these ends. This decision is particularly fascinating because Justice Kent used access to justice concerns to distinguish the case before her from the earlier unsuccessful case law. In the process (and despite Justice Kent’s best efforts to narrowly confine the decision) AYA raises wide-ranging questions about remedial entitlements for access to justice breaches.

Continue reading →

The Abatement of Rent Remedy under Alberta’s Residential Tenancies Act

By: Jonnette Watson Hamilton

PDF Version: The Abatement of Rent Remedy under Alberta’s Residential Tenancies Act

Case Commented On: Perpelitz v Manor Management Ltd., 2014 ABPC 63

There are few enough written decisions considering the landlord’s duties under Alberta’s 10-year-old Residential Tenancies Act, SA 2004, c R-17.1, that almost any decision considering the statute is worth bringing to the notice of the province’s landlords and tenants. But this decision by Judge Gordon Yake is interesting on its own merits for a few reasons.

Continue reading →