ABLawg

This is the first decision of the Supreme Court of Canada to deal head on with the relationship between the terms of a constitutionally protected land claims agreement (LCA) and the duty to consult and accommodate. The Court holds that the terms of an LCA do not exhaust the Crown’s duty to consult, or, to put it another way, an LCA is not a complete code but is embedded in the general legal system embracing both constitutional law norms and administrative law norms. This means that the Crown may have consultation obligations that are additive to those found in the text of an LCA. However, the majority articulates a narrow view of the content of the duty to consult and thus it was easy for the Court to find that the Crown — here the Government of Yukon (YTG) — had satisfied its obligations. In my view the content of the duty to consult articulated by the Court in this case is no greater than that which would be provided by the application of standard principles of administrative law. This impoverished view of the duty to consult is hardly likely to contribute to the constitutional goal of inter-societal reconciliation.

The Energy Resources Conservation Board proposes to repeal provincial legislation

By Nigel Bankes

On December 8, 2010

In Administrative Law, Natural Resources

Proposal commented on: ERCB Bulletin 2010 – 42, Invitation for Feedback on Draft Legislative Amendments for Removing Industrial Development Permits for Energy Resource Use

Yes. That’s right. In Bulletin 2010-42 issued on December 2, 2010 the ERCB announced that it is “proposing to remove industrial development permits (IDP) legislation from its mandate”. If that wasn’t clear enough the Bulletin goes on to state that “The ERCB is proposing to repeal Sections 28 to 31 of the CCA, [Coal Conservation Act, RSA 2000, c. C-17], Section 43 of the OGCA, [Oil and Gas Conservation Act, RSA 2000, c. O- 6] and Section 12 of the OSCA [Oil Sands Conservation Act, RSA 2000, c. O- 7]. The ERCB is also proposing to modify the definitions of a “processing plant” and “oil sands products” under the OSCA to provide greater clarity as to what types of facilities would fall under the ERCB’s jurisdiction.”

Domestic Violence and Provocation: The Door Remains Open

By Jennifer Koshan

On December 6, 2010

In Criminal, State Responses to Violence, Supreme Court of Canada

PDF version: Domestic Violence and Provocation: The Door Remains Open

Case Considered: R. v. Tran, 2010 SCC 58

The Supreme Court’s most recent decision, R. v. Tran, is an Alberta case I commented on at the Court of Appeal level. Tran involves a man who killed his estranged wife’s lover and slashed his wife’s face, causing her permanent injury. The issue in this case was whether there was provocation arising from the fact that the accused found his wife in bed with her lover, such that he should be convicted of manslaughter rather than second degree murder. In a decision authored by Justice Louise Charron, the Supreme Court agreed with the Alberta Court of Appeal that provocation was not made out in the circumstances of the case, and upheld the accused’s conviction for murder. While this is a positive outcome, in my view the Court did not go far enough in contextualizing this case as one involving domestic violence, nor did it foreclose future uses of the provocation defence in this context.

The Right of a Landlord to Withhold Consent to the Sub-leasing of Residential Premises

By Jonnette Watson Hamilton

On November 30, 2010

In Landlord/Tenant, Property

By: Jonnette Watson Hamilton

PDF Version: The Right of a Landlord to Withhold Consent to the Sub-leasing of Residential Premises

Case Commented On: Botar v Mainstreet Equity Corp., 2010 ABQB 710

It is unusual for a residential tenancy matter to be heard in the Court of Queens’ Bench of Alberta, as was Botar v. Mainstreet Equity Corp. Residential landlord and tenant law is intended to be accessible; the relationship is regulated by one, fairly comprehensible and comprehensive statute, the Residential Tenancies Act, S.A. 2004, c. R-17.1. Claims under that statute are usually heard in Provincial Court – Civil (also known as Small Claims Court), and that court has a helpful website on the Residential Tenancies Process. Accessible explanations of the process involved in making claims under the Residential Tenancies Act are an indication that Provincial Court – Civil is oriented toward self-represented litigants. Nevertheless, a tenant such as Andrew S. Botar might choose to represent himself in the Court of Queen’s Bench or be required to do so because his claim is for more than $25,000, the upper limit on damages that Provincial Court – Civil can award. In this case, Mr. Botar’s claim was for approximately $75,000. Mr. Botar had also enjoyed some success in the Court of Queen’s Bench against his landlord, Mainstreet, in 2007: see Botar v. Mainstreet Equity Corp., 2007 ABQB 608 and A Tenant’s Right to Withhold Payment of Rent, my comment on that earlier decision. Any preference Mr. Botar might have for the Court of Queen’s Bench, however, might be dissipated by this November 2010 decision by Mr. Justice J.J. Gill.

Clarification of CBM Ownership on Freehold Lands in Alberta

By Allan Ingelson

On November 28, 2010

In Oil & Gas, Property

PDF version: Clarification of CBM Ownership on Freehold Lands in Alberta

Legislation commented on: Bill 26, Mines and Minerals (Coalbed Methane) Amendment Act, 2010, Legislative Assembly of Alberta, Third Session, 27th Legislature, 59 Elizabeth II

One of the obstacles to coalbed methane (CBM) development on freehold lands in Alberta has been uncertainty regarding ownership of CBM on split title freehold lands. CBM ownership disputes have arisen when one person holds the title to natural gas and a different person holds the coal rights for the same parcel of land. Ron Liepert, the Minister of Energy, introduced Bill 26 in the Alberta legislature on October 27, 2010. After the first and second readings of the Bill, the Committee of the Whole passed an amended version on November 23, which includes one additional section.

Little Salmon and the juridical nature of the duty to consult and accommodate

The Energy Resources Conservation Board proposes to repeal provincial legislation

Domestic Violence and Provocation: The Door Remains Open

The Right of a Landlord to Withhold Consent to the Sub-leasing of Residential Premises

Clarification of CBM Ownership on Freehold Lands in Alberta