ABLawg

By: Alice Woolley

PDF Version: Don’t Gossip About Your Client to the Press… Some (Mildly) Complicating Thoughts on Robidoux

Decision commented on: In the matter of the Legal Profession Act, and in the matter of a hearing regarding the conduct of Kristine Robidoux, QC, a Member of the Law Society of Alberta

On June 9 2014 the Law Society of Alberta suspended Kristine Robidoux for four months after she admitted to violating her duties of confidentiality and candour to her client, provincial Conservative party candidate and former journalist Arthur Kent. Robidoux was legal counsel to Kent’s election team in the 2008 Alberta provincial election. She was also Kent’s agent and the Conservative party’s quadrant chair for five of the electoral constituencies in Calgary. During that time Robidoux had e-mail correspondence with Don Martin, a journalist, in which she gave Martin information about problems with the Kent campaign and, in part based on which, Martin wrote a column that “was unbalanced and wholly negative, thereby leaving a misleading and false impression about the candidate” (Agreed Statement of Facts, para 24).

Because of Robidoux’s admissions, the Law Society Hearing Panel reasons (see here) are relatively limited. After noting that Robidoux was Mr. Kent’s counsel, they state that they had “no difficulty in accepting that she improperly disclosed confidential information” (para 11), that she was not candid about having done so (para 12) and that there was an “element of cover-up” given her failure to admit what she done, instead hoping that journalist-source privilege would mean her disclosures were never revealed (para 13). The bulk of the Panel’s decision focused not on the finding of professional misconduct, but rather on the issue of whether the 4 month suspension proposed by the Law Society and Ms. Robidoux was the appropriate sanction.

Northern Gateway Approved Despite Uncertain Environmental Effects: Is This What Sustainable Development Looks Like?

By Shaun Fluker

On July 3, 2014

In Environmental, Oil & Gas, Protection of Species

By: Shaun Fluker

PDF Version: Northern Gateway Approved Despite Uncertain Environmental Effects: Is This What Sustainable Development Looks Like?

Decision commented on: National Energy Board, Northern Gateway Decision Statement

On June 17, 2014 the National Energy Board issued a decision statement to Enbridge under section 54(1) of the Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52 announcing that the federal Governor in Council had approved the Northern Gateway pipeline subject to the 209 conditions recommended by the Northern Gateway panel (The panel report was the subject of earlier ABlawg comments here and here). The Governor in Council accepted the panel’s recommendations that the pipeline will have significant adverse environmental effects to populations of woodland caribou and grizzly bears, but that these effects are justified in the circumstances. I will comment on this approval by comparing it to another major resource project decision issued on the very same day, June 17, 2014 – albeit one issued on the other side of the globe in New Zealand.

Establishing Aboriginal Title: A Return to Delgamuukw

By Jonnette Watson Hamilton

On July 2, 2014

In Aboriginal, Property

By: Jonnette Watson Hamilton

PDF Version: Establishing Aboriginal Title: A Return to Delgamuukw

Case commented on: Tsilhqot’in Nation v British Columbia, 2014 SCC 44

The declaration of Aboriginal title by the Supreme Court of Canada on June 26, 2014 — a first in Canada — is a momentous decision that should have long-lasting significance for the Tsilhquot’in Nation, other Aboriginal groups, and the rest of Canada. The unanimous Supreme Court decision made new law in the areas of the duty to consult and accommodate, governments’ justification of infringements of Aboriginal title, and federalism — matters that my colleagues Nigel Bankes, Sharon Mascher and Jennifer Koshan will be writing about. On the law of Aboriginal title — the focus of this post — the decision is extremely important for at least two reasons. First, as part of its return to principles set out in the Court’s 1997 decision in Delgamuukw v British Columbia, [1997] 3 SCR 1010, Tsilhqot’in Nation includes a return to an equal role for Aboriginal perspectives that includes Aboriginal laws, instead of the exclusive focus on Aboriginal practices that was a feature of R v Marshall; R v Bernard, 2005 SCC 43, [2005] 2 SCR 220, the Court’s second post-1982 decision on Aboriginal title. Second, Tsilhqot’in Nation clarifies an understanding of occupation that accords with a territorial approach to Aboriginal title, one that does not require and piece together intensive use of well-defined tracts of land. In doing so, the Court turned its back on the approach it took in Marshall/Bernard, an approach that was the source of the arguments made by the governments of Canada and British Columbia in Tsilhqot’in Nation and the basis of the British Columbia Court of Appeal decision in this case (William v British Columbia, 2012 BCCA 285). The June 26 decision therefore brings increased certainty to the law of Aboriginal title by clarifying the type of occupation that will ground Aboriginal title. It also increases the likelihood of more successful Aboriginal title claims and, hopefully, more intensive and good faith negotiations in modern land claims and treaty processes.

U.S. Supreme Court Narrows Greenhouse Gas Rules: What It Means for the U.S. Climate Agenda

By James Coleman

On June 24, 2014

In Climate Change, Energy

By: James Coleman

PDF Version: U.S. Supreme Court Narrows Greenhouse Gas Rules: What It Means for the U.S. Climate Agenda

Case Commented On: Utility Air Regulatory Group v Environmental Protection Agency (EPA), USSC No. 12–1146 (June 23, 2014)

On Monday, the U.S. Supreme Court struck down a portion of the United States’ first regulations for greenhouse gas emissions from industrial sources. The Court held that the Environmental Protection Agency (EPA) may not apply its “Prevention of Significant Deterioration” (PSD) program to new industrial sources on the basis of their greenhouse gas emissions. Instead, EPA can only regulate greenhouse gas emissions from new sources that are already subject to the PSD program because they emit other pollutants.

Conservation Easements and Fraud under the Land Titles Act

By Jonnette Watson Hamilton

On June 23, 2014

In Property

By: Jonnette Watson Hamilton

PDF Version: Conservation Easements and Fraud under the Land Titles Act

Case commented on: Nature Conservancy of Canada v Waterton Land Trust Ltd, 2014 ABQB 303

This 130 page, 605 paragraph judgment penned by Justice Paul R. Jeffrey deals with a number of note-worthy legal issues in a fascinating factual context. The case started when the Nature Conservancy of Canada (NCC) tried to enforce a conservation easement that it had registered against its title to the Penny Ranch, a large cattle ranch near Waterton Lakes National Park in the south-west corner of the province. One of the main purposes of the conservation easement was to ensure that, when the NCC sold the Penny Ranch, development by the purchasers or their successors in title would not impede wildlife migration through the area, an area which the NCC described as the “North American Serengeti.” The case ended (barring appeals) with Justice Jeffrey finding that defendant’s new bison fence was not a breach of the conservation easement and ordering the NCC to pay over $700,000 to Thomas Olson for the NCC’s failure to issue him a timely tax receipt. In between, numerous legal issues arose, including: (1) the nature of conservation easements under the Alberta Land Stewardship Act; (2) contract rectification; (3) fraud as an exception to indefeasibility; (4) rectification of a caveat with a missing page in the underlying document; and (5) damages for the late issuance of a tax receipt. In this post, I will deal with only one of those issues and that is the fraud issue. Colleagues will address some of the other issues.