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Who Gets the Final Say on a Mineral Royalty Calculation? And Some Grumbling on Standard of Review Analysis

On August 28, 2013

In Administrative Law, Natural Resources

PDF Version: Who Gets the Final Say on a Mineral Royalty Calculation? And Some Grumbling on Standard of Review Analysis

Case considered: Saskatchewan (Ministry of Energy and Resources) v Areva Resources Canada Inc., 2013 SKCA 79

This comment looks at a recent decision of the Saskatchewan Court of Appeal concerning the judicial review of a mineral royalty decision made by Saskatchewan’s Minister of Energy and Resources. In Saskatchewan (Ministry of Energy and Resources) v Areva Resources Canada Inc., 2013 SKCA 79, the Saskatchewan Court of Appeal upholds a royalty calculation made by the Minister pursuant to the Crown Minerals Act, SS 1984-85-86, c C-50.2 and underlying regulations. I think this case is of interest to ABlawg readers because it involves the judicial review of a mineral royalty decision and it also concerns appellate-level consideration of the standard of review applicable to a ministerial decision – a topic of recent interest in the judiciary and which Professor Olszynski explores in his recent ABlawg post “Of Killer Whales, Sage-grouse, and the Battle Against (Madisonian) Tyranny”.

Is a Lease with an Option to Renew a Subdivision?

By Jonnette Watson Hamilton

On August 26, 2013

In Property

PDF Version: Is a Lease with an Option to Renew a Subdivision?

Case commented on: Strathcona County v. Half Moon Lake Resort Ltd., 2013 ABQB 405

The main question in this case was whether an option to renew a lease that was added by Half Moon Lake Resort to a campsite rental agreement whose form had been consented to by Strathcona County and approved by the court in a consent order was forbidden by that order. This was the issue in three separate applications before Justice Brian R. Burrows. Half Moon Lake Resort applied for a declaration that the renewal option was not prohibited by the consent order, Strathcona County applied for a declaration that campsite leases in a form different than that approved by the consent order were invalid, and the Registrar of Land Titles sought directions about the obligations imposed on that office by the consent order. But the essence of this dispute, which began in 1999, was that Half Moon Lake Resort wanted to “sell” 216 individual campsites on an unsubdivided parcel of land — or come as close as the law allowed to selling each campsite without subdividing the land, thereby maximizing the value of each campsite and the security of tenure for each campsite “owner.”

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Of Killer Whales, Sage-grouse and the Battle Against (Madisonian) Tyranny

By Martin Olszynski

On August 21, 2013

In Administrative Law, Constitutional, Environmental

PDF version: Of Killer Whales, Sage-grouse and the Battle Against (Madisonian) Tyranny

Cases commented on: Alberta Wilderness Association v Canada (Attorney General), 2013 FCA 190, Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, Canada (Fisheries and Oceans) v David Suzuki Foundation, 2012 FCA 40.

“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

James Madison, Federalist Papers No. 47

It is commonly understood that Canada’s Parliamentary system of democratic governance is an example of a “weak” separation of powers. In contrast to the United States, where generally speaking the Legislature (i.e. Congress) is responsible for passing laws, the Executive (i.e. the President) for implementing them and the Judiciary for interpreting them, in Canada — at least in “majority” situations — the Legislature (i.e. Parliament) is effectively (if not theoretically) controlled by the Executive (i.e. the Prime Minister and his Cabinet). The fairly predictable result is that laws passed by Parliament tend to give statutory delegates considerable discretion, which in turn allows them to implement government policy on a case-by-case basis without much restraint. In the environmental and natural resources context, most commentators regard this as a bad thing because it tends to favor short term economic and/or political gain over long term economic and environmental sustainability. But there is an emerging threat to the already weak separation of powers in Canada that should be of concern to all lawyers and academics, if not all Canadians. I refer to the Supreme Court of Canada’s (SCC) current approach to judicial review, and the standard of review in particular.

Doctors Affected by Hospital Unit Closure Have Minimal Procedural Fairness Rights: Public Program Discretion Tops Individual Procedural Rights

By Alastair Lucas, Q.C.

On August 14, 2013

In Administrative Law, Health Law

PDF version: Doctors Affected by Hospital Unit Closure Have Minimal Procedural Fairness Rights: Public Program Discretion Tops Individual Procedural Rights

Cases Considered: MacDonald v Alberta Health Services, 2013 ABQB 404.

It is tempting to view the Alberta Queen’s Bench decision in MacDonald v Alberta Health Services, 2013 ABQB 404 as a simple affirmation that there is no legal right to consultation on government decisions about public programs. See, for example, Canadian Assn of Regulated Importers v Canada (Attorney-General), [1993] 3 FC 199 (TD); rev’d [1994] 2 FC 247 (CA), where a change by the Minister to the distribution of import quota for hatching eggs and chicks affected traditional importers. But little reflection is needed to see that the procedural issues raised by Alberta Health Services’ (AHF) decision to close the obstetrics unit at the Banff Hospital are far more nuanced. The applicant, Dr. MacDonald, who with his wife and partner Dr. Fowke, performed all deliveries at the Hospital in 2012 seemed to be left wondering whether every arguably interested person except he and his partner were consulted and had some input into the closure decision.

City of Calgary not Entitled to Disclosure of Environmental Agreement on Lynnview Ridge

By Linda McKay-Panos

On August 9, 2013

In Environmental, Privacy

PDF version: City of Calgary not Entitled to Disclosure of Environmental Agreement on Lynnview Ridge

Case Commented on: Imperial Oil Ltd v Calgary (City), 2013 ABQB 393.

Many people are concerned about what appears to be the lack of public access to government-held information. Ironically, in this case, the City of Calgary (a municipal government) is quite concerned about its lack of access to the Remediation Agreement reached between Alberta Environment and Imperial Oil Limited, which pertains to environmental remediation of lands contaminated by petroleum, hydrocarbon vapours and lead in Lynnview Ridge (a residential subdivision in Calgary).