ABLawg

Case considered: Encana Corporation v ARC Resources Ltd., 2011 ABQB 431

In 2010 the provincial legislature amended the Mines and Minerals Act, RSA 2000, c. M-17 (as am by SA 2010, c.20) (MMA) to declare that coalbed methane (CBM) is and always has been natural gas. In this case Justice Kent of the Court of Queen’s Bench applied the new s.10.1 to grant summary judgement in competing actions brought by the coal owners and the natural gas lessees seeking declaratory relief as to the ownership of CBM in certain lands. The actions in question had all been commenced before the amendment was introduced and passed. The Court held that s.10.1 was a complete answer to the competing claims and concluded that the natural gas lessees were entitled to a declaration that the coalbed methane had been granted to them under the terms of their natural gas leases.

Second edition of JSS Barristers Rules now available

By Admin

On August 4, 2011

In Civil Procedure: New Rules of Court

As noted in a previous post, JSS Barristers is providing summaries of cases considering the new Alberta Rules of Court, Alta. Reg. 124/2010, in a newsletter called JSS Barristers Rules. The second edition of the newsletter is available here. Of particular note is the following:

Our website, www.jssbarristers.ca, now also features a Cumulative Summary of Court Decisions which consider the Alberta Rules of Court. The Cumulative Summary of the Rules is organized by the Rule considered, and includes an expanded summary of the Decisions including key quotations from the Decisions. It will be updated regularly to ensure that it provides an ongoing and current resource for those interested in the consideration of the Rules of Court on a cumulative basis.

Those who are interested in receiving future editions of JSS Barristers Rules can subscribe here.

Unauthorized practice and access to justice

By Alice Woolley

On August 3, 2011

In Access to Justice, Ethics and the Legal Profession

PDF version: Unauthorized practice and access to justice

Case considered: Lameman v Alberta, 2011 ABQB 396

The Beaver Lake Cree Nation have commenced an action against the federal and provincial Crowns claiming that their treaty rights have been infringed by the Crown “taking up so much of their traditional territory that [they] have no meaningful right to hunt, trap or fish” (Lameman v Alberta, 2011 ABQB 396, para 12). The Crown brought applications to strike the Nation’s actions, the hearings in respect of which were adjourned on the basis of the Nation’s impecuniosity.

Tenant Cannot Unilaterally Withhold Rent Because of Unsanitary Living Conditions

By Nickie Nikolaou

On August 2, 2011

In Property

Case Considered: Herman v. Boardwalk Rental Communities, 2011 ABQB 394

Introduction

Questions often arise about whether a tenant can refuse to pay rent because of something the landlord has or has not done, or because of the condition of the premises. The typical short answer is “no.”.” Why? Because, generally-speaking, “rent is sacrosanct.” And so it was in the recent case of Herman v. Boardwalk Rental Communities, 2011 ABQB 394 (Herman), a case considering the situation of tenants in Alberta under the Residential Tenancies Act, RSA 2000, c 17.1 (RTA). Even in the face of allegations of dog/cat urine and fecal matter leaking onto/into his apartment, the Court held the tenant could not unilaterally withhold rent. The Court also held that procedure can be sacrosanct in landlord/tenant matters. The tenant’s failure to meet the procedural requirements for bringing his appeal resulted in it being dismissed, with costs being awarded to the landlord.

Aboriginal title, reserve rights to groundwater and (possibly) a right to an instream flow

By Nigel Bankes

On July 29, 2011

In Aboriginal

Case considered: Helalt First Nation v British Columbia, 2011 BCSC 945

In this case the Helalt First Nation (HFN) sought judicial review of an environmental assessment certificate issued under the terms of BC’s Environmental Assessment Act, SBC 2002, c 43 with respect to a project known as the Chemainus Wells Project on the grounds that the Crown had failed to discharge its constitutional obligations to consult and accommodate the HFN. The First Nation succeeded in its application. Justice Wedge held that the Crown failed to engage in adequate consultation and failed in its duty to accommodate. As a remedy, Justice Wedge ordered (in addition to granting relevant declarations) that the implementation of any actions or decisions pursuant to the certificate should be stayed pending adequate consultation and reasonable accommodation.

This post focuses on the Court’s treatment of aboriginal title and reserve rights in relation to groundwater.

The Court confirms that coalbed methane forms part of the natural gas title and not the coal title

Second edition of JSS Barristers Rules now available

Unauthorized practice and access to justice

Tenant Cannot Unilaterally Withhold Rent Because of Unsanitary Living Conditions

Aboriginal title, reserve rights to groundwater and (possibly) a right to an instream flow