ABLawg

By: Jocelyn Stacey

PDF Version: Failing to Assess the Key Issue: The Unsatisfactory Approval Process for Keystone XL

Decisions Commented On: United States Department of State Bureau of Oceans and International Environmental and Scientific Affairs, Final Environmental Impact Statement for the Proposed Keystone XL Project (August 26, 2011); National Energy Board, TransCanada Keystone Pipeline GP Ltd., OH-1-2009 (March 2010)

For two weeks in August, thousands of protesters staged a sit-in at the White House to protest the imminent approval of TransCanada’s Keystone XL pipeline expansion project. The project would connect the Alberta oilsands to the Gulf Coast market. In one of the biggest acts of environmental civil disobedience in decades, over 1,200 people were arrested and fined, including big names such as Daryl Hanna, Naomi Klein and NASA climatologist, James Hansen. While the Canadian regulatory process caused barely a ripple in the Canadian public conscience, American protesters have launched a full frontal attack drawing support from celebrities, Senators, Congress members, State Governors and Nobel Prize laureates. Keystone XL has become the next chapter in Alberta’s increasingly hostile relationship with American environmentalists. This post explains the American context of the Keystone XL proposal. Why has it is inflamed environmentalists, and is this more than just politics?

Another step in implementing ALSA: the review and variance provisions and compensation for compensable takings

By Nigel Bankes

On September 22, 2011

In Environmental

PDF version: Another step in implementing ALSA: the review and variance provisions and compensation for compensable takings

Regulation commented on: Alberta Land Stewardship Regulation, Alta. Reg. 179/2011

The Alberta Land Stewardship Act, SA 2009, c A-26.8 (ALSA) is a work in progress: see my earlier blog: “ALSA and the property rights debate in Alberta: a certificate of title to land is not a ‘statutory consent’” We won’t know how this beast or angel will turn until we see the first approved plans (see my blog on the draft Lower Athabasca Plan (“The proof of the pudding: ALSA and the Draft Lower Athabasca Regional Plan“) and a complete set of implementing regulations. Here we have the next piece of the puzzle in the form of a set of regulations primarily concerned to implement the 2011 amendments to the ALSA (Bill 10, the Alberta Land Stewardship Amendment Act, 2011) which I blogged at “Regulatory chill, weak regional plans, and lots of jobs for lawyers: the proposed amendments to the Alberta Land Stewardship Act” .

I wasn’t exactly a fan of Bill 10. I thought that it created too many opportunities to put roadblocks in the way of implementing plans. I don’t believe that it is necessary to provide for both plan reviews and variance applications, and I am still of the view that the compensable taking provisions of Bill 10 will foster needless and expensive litigation.

Alberta Court of Queen’s Bench finds Personal Information Protection Act, Regulations, section 7 Unconstitutional

By Linda McKay-Panos

On September 19, 2011

In Constitutional

PDF version: Alberta Court of Queen’s Bench finds Personal Information Protection Act, Regulations, section 7 Unconstitutional

Decision considered: United Food and Commercial Workers, Local 401 v Alberta, 2011 ABQB 415 (“UFCW“)

This decision is interesting because it illustrates the interplay between the Canadian Charter of Rights and Freedoms (“Charter“) subsection 2(b) freedom of expression, and Alberta’s privacy legislation. The employees of Palace Casino in West Edmonton Mall were on strike, and both the United Food and Commercial Workers, Local 401 (“Union”) and the employer photographed and videotaped the picket line. People who crossed the picket line and those who walked in and out of the casino were also photographed or taped. The Union posted a sign which stated: “by crossing the picket line you are providing your consent for your image to be posted at www.CasinoScabs.ca“. The employer’s Vice President complained to the Privacy Commissioner that his photo was displayed on a poster at the picket site, in the Union’s newsletter and on pamphlets distributed at the site. Two other complainants who crossed the picket line said that they had been photographed or videotaped, although they never saw any images. The Office of the Privacy Commissioner’s Adjudicator accepted that it was a long-standing historical practice for Unions and employers to photograph and videotape at picket line sites (UFCW, para 6).

Production in meaningful quantities: commercial realities should inform the interpretation of an oil and gas lease

By Nigel Bankes

On September 15, 2011

In Oil & Gas

PDF version: Production in meaningful quantities: commercial realities should inform the interpretation of an oil and gas lease

Case commented on: Omers Energy Inc. v Alberta (Energy Resources Conservation Board), 2011 ABCA 251

In important and rare “reasons for judgement reserved” the Alberta Court of Appeal, in unanimous reasons authored by Justice Carol Conrad, affirmed the decision of the Energy Resources Conservation Board (ERCB) to the effect that a petroleum and natural gas lease had expired in its secondary term in accordance with its own terms when the gas well (the 100/05-4 well) on the lands was unable to produce for more than very short periods of time (minutes or hours) because of large volumes of produced water. The lease in question (the CAPL 91 form) provided for continuation beyond the end of its primary term by “operations”; the term “operations” was defined to include “the production of any leased substances” and was further extended by the language of the shut-in wells clause which defined the existence of a well “capable of producing the leased substances” to serve as “operations” for the purposes of the habendum. Both the Board and the Court concluded that the lease could not be continued. The words “capable of producing” did not mean just any production no matter how miniscule the quantities, and instead must be read to mean “production in meaningful quantities”. Since it followed from this that the lease had expired, Omers was not entitled to maintain well licences for two other wells that it had drilled on the leased properties since it could no longer meet the requirements of s 16 of the Oil and Gas Conservation Act, RSA 2000, c O-6 to the effect that:

16(1) No person shall apply for or hold a licence for a well
(a) for the recovery of oil, gas or crude bitumen, or
(b) for any other authorized purpose
unless that person is a working interest participant and is entitled to the right to produce the oil, gas or crude bitumen from the well or to the right to drill or operate the well for the other authorized purpose, as the case may be.

ERCB Decision 2009-037 is available here.

Conflicts of Interest and Good Judgment

By Alice Woolley

On September 12, 2011

In Ethics and the Legal Profession

PDF version: Conflicts of Interest and Good Judgment

Case considered: Dow Chemical Canada Inc. v Nova Chemicals Corporation, 2011 ABQB 509

Previously on ABlawg I have suggested that outcomes in conflicts cases turn more on a judge’s overall impression of the facts and the equities than on the precise articulation and application of specific rules (here). A recent judgment of the Alberta Court of Queen’s Bench aligns with this perception, insofar as the outcome of the case seems closely linked to the judge’s assessment of the good faith and propriety of the conduct of the law firm alleged to be in conflict. The case also, though, shows the continued evolution of the principles that govern conflicts of interest. Specifically, Chief Justice Wittmann’s judgment provides new analysis of the principles governing what is necessary for a client to consent to a conflict in advance, how imputation rules operate in national firms, lawyers transferring between law firms, and the intersection between law society rules and judicial determinations in assessing conflicts. In this way the judgment may indicate that contrary to my earlier suggestion, conflicts cases are in fact like other legal judgments, with outcomes determined by a complex interplay of principles, rules, facts and, above all, the “judgment” of the judge, what in the context of moral decision-making David Luban and Michael Milleman have described as the ability to identify “which principle is most important given the particularities of the situation” (“Good Judgment: Ethics Teaching in Dark Times,” (1995-96) 9 Geo J of Legal Ethics 31 at 39). In other words, it’s not so much whether judges perceive lawyers to have been “good” or not, as it is whether judges perceive lawyers to have been good enough that the applicable principles do not require that they be removed from a file. This does mean that the interplay of fact and law matters more than the precise articulation of the law – i.e., that there is some legitimacy to my general feeling that the fights between the CBA and the Federation of Law Societies over the precise wording of conflicts rules is not a very good use of anyone’s time. But it does not mean that principles are irrelevant.