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The severance of a water right from a purchase and sale of land

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On February 7, 2012

In Property, Water Law

PDF version: The severance of a water right from a purchase and sale of land 

Case commented on: Royal Bank of Canada v Hirsche Herefords, 2012 ABQB 32 

This decision concludes that a provincial water licence can be contingently severed from the land or undertaking to which it is appurtenant by way of an agreement of sale and the subsequent registered transfer. The contingency is the Director’s approval of the transfer of the water licence to another party under the terms of sections 81 – 82 of the Water Act, RSA 2000, c W-5. The decision also confirms the emergence of a water rights market in southern Alberta.

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Senate Reform on the Horizon: Does the Parliament of Canada have the power to unilaterally change the terms and selection method of Senators?

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On February 6, 2012

In Constitutional

PDF version: Senate Reform on the Horizon: Does the Parliament of Canada have the power to unilaterally change the terms and selection method of Senators? 

Legislation considered: Bill C-7, An Act respecting the selection of senators and amending the Constitution Act, 1867 in respect of Senate term limits (“Senate Reform Act”), 41st Parliament, 1st Session

After a very long journey, Canadians may be reaching the end of the long road to Senate reform. In the recently introduced Senate Reform Act the federal government is proposing a framework for electing senate nominees, and proposing to significantly reduce Senator term limits. Questions have been raised about Parliament’s unilateral ability to effect these reforms without provincial consent. This comment will explore the constitutional validity of the Senate Reform Act in terms of Parliament’s jurisdiction to unilaterally amend the Canadian Constitution. It will be suggested that while the proposed term limit is likely constitutionally valid, the proposed framework and legal obligation of the Prime Minister to consider elected Senate nominees is beyond Parliament’s sole power.

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The Northern Gateway Joint Review Panel and the Governor in Council

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On February 2, 2012

In Environmental, Oil & Gas

 PDF version: The Northern Gateway Joint Review Panel and the Governor in Council

Documents commented on: (1) An open letter from the Honourable Joe Oliver, Minister of Natural Resources, on Canada’s commitment to diversify our energy markets and the need to further streamline the regulatory process in order to advance Canada’s national economic interest, January 9, 2012;

(2) National Energy Board Act, RSC 1985, c N-7, s 52;

(3) Canadian Environmental Assessment Act, SC 1992, c 37, s 37.

On January 9, 2012, the day before the hearings by a Joint Review Panel (JRP) were due to open for the proposed Northern Gateway pipeline (NGP), the federal Minister of Natural Resources, Joe Oliver took the extraordinary step of issuing an Open Letter to Canadians. He followed this up with a series of media appearances. In his letter Minister Oliver made four main points. First, Canada needs to diversify its export markets for many products including oil. Second, “environmental and other radical groups” seek to block this opportunity and any underlying projects. Third, these “radicals” will “hijack our regulatory system,” stack public hearings, “kill good projects,” exploit any opportunity they can to delay project reviews. These radicals have access to foreign money to implement their goals. The delays that ensue are unacceptable. Fourth, Canada needs a fair and independent process to assess projects based on science and the facts – but the current system is out of balance and “is broken.”

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Jurisdiction can be a Significant Consideration in Human Rights Cases

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On January 31, 2012

In Human Rights

By: Linda Mckay-Panos

PDF version: Jurisdiction can be a Significant Consideration in Human Rights Cases

Case considered: British Columbia (Workers Compensation Board) v Figliola (“Figliola“), 2011 SCC 52 (CanLII)

A recent SCC case again demonstrates the importance of jurisdiction in human rights cases. In Alberta, and in other provinces, a number of tribunals may have human rights jurisdiction. Thus, in some situations, complainants have potential access to more than one tribunal to resolve their issues. This can, however, lead to challenges regarding accountability, consistency, and efficiency. On the one hand, complainants want a fair, yet reviewable resolution of their human rights issue-on the other hand, respondents would like a final resolution of the complaint and to know the matter is not subject to re-litigation by a second tribunal (See: The Court, Marina Chernenko, “Neighbouring Tribunals and ‘Lateral Adjudicative Poaching’: Forum Shopping for Human Rights in British Columbia v. Figliola“)

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CCS is now a CDM Project Activity

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On January 26, 2012

In Carbon Capture and Storage, Climate Change, Environmental

By: Ana Maria Radu

PDF Version: CCS is now a CDM Project Activity  

Decision Commented On: Decision -/CMP.7 Modalities and procedures for carbon dioxide capture and storage in geological formations as clean development mechanism project activities – adopted in December 2011

The 17th United Nations Climate Change Conference and the seventh meeting of the parties to the Kyoto Protocol (CMP) took place in Durban in November-December 2011 and brought hope again to the international community fighting climate change. The negotiations were reasonably successful and blended together the implementation of the Convention and the Kyoto Protocol, the Bali Action Plan, and the Cancun Agreements, concluding with a decision adopted by Parties that a universal legal agreement on climate change is to be adopted as soon as possible, but no later than 2015.

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