ABLawg

Cases Considered: Bear Hills Charitable Foundation v. Alberta Gaming and Liquor Commission 2008 ABQB 766; East Prairie Métis Settlement v. Alberta (Métis Settlements Ombudsman) 2009 ABQB 31.

PDF Version: Don’t you forget about me: Remembering the rest of administrative law after Dunsmuir

In March 2008 the Supreme Court of Canada released its decision in Dunsmuir v. New Brunswick, 2008 SCC 9, in which it rearticulated the appropriate approach to identifying and applying the standard for judicial review of administrative decisions. The significance (or not) of this re-articulation has been discussed elsewhere on ABlawg (see here and here). What perhaps needs to be better understood, however, is that in rearticulating the standard of review, the Supreme Court did not change other principles of administrative law. Two recent decisions of the Alberta Court of Queen’s Bench indicate that there may be some confusion on this point. In one case, the Dunsmuir analysis was used by the Court to consider a question of administrative procedure, even though procedural questions are not properly subject to standard of review analysis. In another case, the Dunsmuir analysis was used by the Court to review a decision properly characterized either as procedural or non-dispositive which, again, makes the use of a Dunsmuir analysis inapt.

R. v. Syncrude Canada: The Case of The 500 Dead Ducks

By Shaun Fluker

On February 23, 2009

In Environmental

PDF Version: R. v. Syncrude Canada: The Case of The 500 Dead Ducks

Alberta Environment and Environment Canada have laid charges against Syncrude Canada in relation to the toxic substances in its Aurora Mines tailing pond that resulted in the death of 500 migratory birds in 2008.

Environment Canada has charged Syncrude for violating section 5.1 of the Migratory Birds Convention Act, S.C. 1994, c. 22 by depositing substances harmful to migratory birds in its tailing pond. This is the same information as sworn by John Custer in his private prosecution that commenced in January (See my earlier post Environmental Private Prosecution Update: John Custer v. Syncrude Canada).

The End of Law: A New Framework for Analyzing Section 15(1) Charter Challenges

By Jonnette Watson Hamilton

On February 20, 2009

In Aboriginal, Constitutional, Oil & Gas, Supreme Court of Canada

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: The End of Law: A New Framework for Analyzing Section 15(1) Charter Challenges

Case Commented On: Ermineskin Indian Band and Nation v Canada, 2009 SCC 9

After the Supreme Court of Canada handed down its decision in R v Kapp, 2008 SCC 41 in June of 2008 there were questions about whether the Court had changed the legal framework for analyzing challenges brought under section 15(1) of the Charter. Kapp had clearly changed the approach to section 15(2), granting it independent status to protect ameliorative laws, programs and activities. However, on the topic of section 15(1), the Court had sent mixed signals about its intended approach. The message sent by the Court’s February 13, 2009 decision in Ermineskin Indian Band and Nation v Canada is much clearer; the legal framework for analyzing section 15(1) claims will be very different than it has been for the past decade.

The Crown has neither the power nor the duty to invest Indian monies: The use of legislation to limit trust duties

By Nigel Bankes

On February 20, 2009

In Aboriginal, Constitutional, Oil & Gas, Supreme Court of Canada

Cases Considered: Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9.

PDF Version: The Crown has neither the power nor the duty to invest Indian monies: The use of legislation to limit trust duties

The “money management” part of the long-running Samson\Ermineskin Case has now come to a close. A unanimous seven person panel of the Supreme Court of Canada in a judgement authored by Justice Marshall Rothstein has ruled that the Government of Canada is not liable when it fails to invest First Nation royalty monies and instead deposits those monies to the credit of the Consolidated Revenue Fund (CRF) and pays the First Nations interest on those monies. In fact, the Court has ruled that the Indian Act makes it illegal for the Crown to invest Indian capital monies. The Court also ruled that the provisions of the Act which require this conclusion do not constitute discrimination within the meaning of s.15 of the Charter.

Co-Ownership is a Messy Business (Even with an Operating Agreement)

By Nigel Bankes

On February 15, 2009

In Bankruptcy and Insolvency, Oil & Gas, Property

Cases Considered: San Juan Resources Inc (Re) 2009 ABQB 55 (Registrar in Bankruptcy).

PDF Version: Co-ownership is a messy business (even with an operating agreement)

Co-ownership is a legal relationship for parties who are able to get along together. For those who cannot the court will order partition or sale under the Law of Property Act, R.S.A. 2000, c. L-7. But co-ownership is also the typical foundation for oil and gas operations in this province and elsewhere since oil and gas companies will typically be tenants in common (working interest owners) of their title documents (the freehold and Crown leases) on which their operations rely.