ABLawg

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

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.

Defining Prosecutorial Discretion (With an Invitation to the Court to Re-define Abuse of Process)

By Alice Woolley

On June 20, 2014

In Ethics and the Legal Profession

By: Alice Woolley

PDF Version: Defining Prosecutorial Discretion (With an Invitation to the Court to Re-define Abuse of Process)

Case Commented On: R. v. Anderson, 2014 SCC 41

With its unanimous judgment in R. v. Anderson, 2014 SCC 41, the Supreme Court has clarified the scope of “prosecutorial discretion”, distinguishing it from matters that go only to “tactics and conduct before the court” (para 35) while confirming its application to a “wide range of prosecutorial decision making” (para 45). The Court also confirmed the non-reviewable nature of prosecutorial discretion absent demonstration of an abuse of process, and reviewed the law governing assessment of an abuse of process. Finally, the Court held that Crown counsel have no constitutional obligation to consider an accused’s aboriginal status when they tender Notice to the accused that the Crown intends to seek the mandatory minimum punishment that may be applicable given that accused’s prior convictions.