By: Paul Joffe
Case/Decision/Legislation/Bill Commented On: First Nations, Inuit and Métis Child, Youth and Family Services Act, SC 2019, c 24
PDF Version: Supporting Indigenous Peoples’ Human Rights – Especially Children
This is the fourth post in a series on the First Nations, Inuit and Métis Child, Youth and Family Services Act. You can read a summary here and I wish to express my appreciation for the analyses by Kerry Wilkins and Kent McNeil, which are also instructive.
By: Nigel Bankes
Matter commented on: International St Mary-Milk Rivers Study Board, Work Plan for the International St Mary-Milk Rivers Study, June 2022, released July 28, 2022
PDF Version: The Milk and St. Mary Apportionment: A Next Step?
This post examines the most recent development in efforts to improve the ability of both Canada and the United States to access its water entitlement to each of the Milk and St. Mary Rivers under the terms of an apportionment order made by the International Joint Commission (IJC) under the Boundary Waters Treaty more than a century ago.
By: Lisa Silver
Case commented on: R v Germain, 2022 ABCA 257 (CanLII)
PDF version: Placing Parity in Perspective
The recent Alberta Court of Appeal decision of R v Germain, 2022 ABCA 257 (CanLII), reads like a judge’s “how to” manual for applying the sentencing principle of parity. Here, the Court not only discusses the role of parity in making a sentencing determination but also provides a step-by-step approach to applying the principle in practice. To do this, the Court relies on precedent and deference, the cornerstones of appellate review of sentencing. Significantly, the decision attempts to reconcile a long line of Court of Appeal decisions on starting points, with recent direction by the Supreme Court of Canada in R v Parranto, 2021 SCC 46 (CanLII), R v Friesen, 2020 SCC 9 (CanLII), and R v Lacasse, 2015 SCC 64 (CanLII), that sentencing is not a “mindless numbers game” involving a strict adherence to a minimum sentencing regime (see R v Ostertag, 2000 ABCA 232 (CanLII) at para 21). Rather, sentencing strives for individualization in the context of general principles. This seemingly incongruous task creates uncertainty in those very principles the sentencing court is bound to apply. Although the Germain decision clarifies the practicalities of sentencing, there remains considerable room in future decisions for further delineation of the framework of sentencing and the proper placement of the parity principle within it.
By: Drew Yewchuk
AER Administrative Sanction Commented On: 202207-13, AlphaBow Energy Ltd.
The Alberta Energy Regulator (AER) issued an administrative sanction to AlphaBow Energy Ltd. on July 28, 2022. Two aspects of the sanction make this an interesting case rather than a routine enforcement action: first, the history of AlphaBow, and second, that the administrative sanction is the AER implementing their new approach to liability management, so the terms and the ultimate outcome of this administrative sanction are a decent indication of things to come.
By: Nigel Bankes
Case commented on: Schnell v Stene (Heidinger Estate), 2022 SKQB 146 (CanLII)
PDF version: Novel Form of Agreement to Reserve Surface Rights Payments
It is not uncommon for a vendor of agricultural lands in western Canada to seek to ensure that the vendor will continue to receive the benefit of surface rights payments payable under the terms of surface rights leases or right of entry orders. Perhaps the most common technique to achieve this result is by way of an agreement to assign rents. This will be effective so long as one is confident that such an agreement creates an interest in land that can be protected by way of caveat. In some jurisdictions legislation deems such an agreement to give rise to an interest in land, (see, for example, Law of Property Act, RSA 2000, c L-7 at s 63(1)(b)) whereas in other jurisdictions the point may be more debatable: (e.g. Alberta prior to the 1985 amendment to the Law of Property Act: see Webster v Brown, 2004 ABQB 321 (CanLII) and Canadian Crude Separators Inc. v Mychaluk, 1997 CanLII 14841 (AB QB), [1998] 1 WWR 545.
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