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ERCB Decision on an Acid Gas Disposal Scheme: Further Lessons for the Regulation of Carbon Capture and Storage Schemes

On January 8, 2010

In Carbon Capture and Storage, Oil & Gas

By: Nigel Bankes & Trevor Ference

PDF version: ERCB Decision on an Acid Gas Disposal Scheme: Further Lessons for the Regulation of Carbon Capture and Storage Schemes

Case Commented On: Re: AltaGas Ltd, Applications for Two Pipeline Licences, An Amendment to a Facility Licence, and Approval for an Acid Gas Disposition Scheme, Pouce Coupe Field, ERCB Decision 2009-073

During the fall of 2009 the province of Alberta signed letters of intent for funding with four proponents for carbon capture and storage schemes (CCS): (1) Swan Hills Synfuel for an in situ goal gasification and enhanced oil recovery (EOR) project, (2) Enhance Energy and Northwest Upgrading for a CO2 trunkline, (3) Shell for the Quest project and (4) TransAlta for Project Pioneer. As these proponents move to implement their projects we will start to see how the existing and proposed regulatory scheme accommodates CCS projects. There are perhaps four types of legal and regulatory issues that project proponents face in relation to the storage elements of any project: (1) property issues (e.g. pore space ownership); (2) regulatory issues (Energy Resources Conservation Board (ERCB) approvals); (3) liability issues (will long term liability for storage sites transfer to the province?), and (4) crediting issues (how will CCS projects be treated within the context of Alberta’s Specified Gas Emitters Regulation, Alta. Reg. 139/2007; will CCS projects create emission performance credits or offset credits?). The Carbon Capture and Storage Development Council (Accelerating Carbon Capture and Storage Implementation in Alberta, Final Report, March 2009) has urged the province to provide guidance and regulatory certainty on these issues but, by and large, the province has yet to act.

ABlawg’s Top Cases and Legal Developments from the 2000s, and a Vote for Dunmore

By Jennifer Koshan

On January 6, 2010

In Constitutional, Supreme Court of Canada

By: Jennifer Koshan

PDF Version: ABlawg’s Top Cases and Legal Developments from the 2000s, and a Vote for Dunmore

Case Commented On: Dunmore v Ontario (Attorney General), 2001 SCC 94

It is the first month of a new year, and the first year of a new decade. Hence, it is a time for lists. Rolling Stone magazine has opined on the top albums, songs and movies of the 2000s, and the Globe and Mail has weighed in on the top 10 nation builders of the last decade. On the legal front, the Globe also lists the top trials of the decade in Canada as well as internationally. The Court has compiled some statistics on the Supreme Court’s output over the 2000s, and plans its own series of posts on the top judgments of the last decade.

Here at ABlawg, some of our bloggers will be writing about the case or legal development they think was most important from the 2000s. Other bloggers will be compiling top ten lists within particular areas of law. In keeping with the focus of ABlawg, our contributions will be linked to the impact the cases or legal developments have had in this province.

My own pick for a case of significance is Dunmore v Ontario (Attorney General), [2001] 3 SCR 1016. Dunmore was hailed for its recognition that the Charter may impose positive obligations on government. In this case, the obligation arose in the context of including agricultural workers within labour relations legislation as an aspect of freedom of association under section 2(d) of the Charter. While Dunmore hedged on the issue of whether the government had a duty to include protections for collective bargaining, it opened the door for the Court’s later finding that there was such a duty in Health Services and Support – Facilities Subsector Bargaining Assn. v British Columbia, [2007] 2 SCR 391.

Clear and Unequivocal Evidence Required to Prove a Gift of Land

By Nickie Nikolaou

On January 1, 2010

In Property

Case Considered: Fleet Estate v. Davies, 2009 ABCA 376

PDF version: Clear and Unequivocal Evidence Required to Prove a Gift of Land

Cases involving gifts of land are not frequently before the Alberta Court of Appeal. This may be because such gifts are uncommon, or it may be because such gifts are difficult to prove. In the recent case of Fleet Estate v. Davies, 2009 ABCA 376, the Court of Appeal reminds us that clear and unequivocal evidence must always be presented to make out a case for a gift of land. Having been allowed to live in the property for a number of years without paying any rent is not sufficient. Proving that a gift of land has been perfected requires more. The Court of Appeal says that evidence of delivery of a transfer of land or a duplicate certificate of title (where those are still available) will do, but it is doubtful that anything less will.

Charter Freedoms and Government Duties around Street Preaching: An (Overly?) Expansive View

By Jennifer Koshan

On December 29, 2009

In Constitutional, Municipal Law

Case considered: R. v. Pawlowski, 2009 ABPC 362

PDF version: Charter Freedoms and Government Duties around Street Preaching: An (Overly?) Expansive View

Earlier this month, Judge Allan Fradsham of the Alberta Provincial Court handed down a lengthy and far reaching judgment dealing with religious freedom, freedom of expression, and government duties to write laws that are not vague or overbroad. Numerous charges against Artur Pawlowski for actions associated with ministering in public spaces were dismissed by Judge Fradsham. I have been a fervent critic of the courts’ extreme deference to government in several Charter cases, but the level of government accountability and limits on government action established in this case may go too far the other way.

Perhaps the Last Court of Appeal Decision on the Availability of Specific Performance for Agreements for the Sale and Purchase of Land

By Jonnette Watson Hamilton

On December 22, 2009

In Property

Case considered: Covlin v. Minhas, 2009 ABCA 404

PDF version: Perhaps the Last Court of Appeal Decision on the Availability of Specific Performance for Agreements for the Sale and Purchase of Land

If the recommendations in the October 2009 Alberta Law Reform Institute (ALRI) Final Report No. 97, entitled “Contracts for the Sale and Purchase of Land: Purchasers’ Remedies,” are implemented, cases like Covlin v. Minhas will disappear from Alberta court dockets. ALRI recommended that the law governing remedies for breaches of such contracts be restored to what it was prior to the 1996 Supreme Court of Canada decision in Semelhago v. Paramadevan, [1996] 2 S.C.R. 415. The only issue in Covlin v. Minhas was whether the plaintiff, Verna Covlin, who was the purchaser under a contract for the sale and purchase of land, was entitled to the remedy of specific performance. Prior to Semelhago, specific performance for breach of a real estate contract was granted as a matter of course. Post-Semelhago, however, Covlin had to prove the land she offered to purchase was “unique” in the sense that no substitute is available for it. ALRI’s Final Report No. 97 recommends that legislation be enacted to provide that any land which is the subject of a contract for sale and purchase is conclusively deemed to be unique at all material times.