Conflating Dissent with Disloyalty, Allan Inquiry sets a Dangerous Precedent

By: Martin Z. Olszynski

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Matter Commented On: The Public Inquiry into Anti-Alberta Energy Campaigns

It’s late fall 2022. A popular mayor of a southern Alberta town wakes up to a peculiar email: the Second Public Inquiry into Anti-Alberta Energy Campaigns has reviewed several news reports from 2020 and 2021, as well as his social media account, and has determined that he engaged in an “anti-Alberta energy campaign.”

Just a bit down the highway, a popular Alberta country singer finds a similar email. They’ve each been given two weeks to respond. Confused, each writes back to the Inquiry to insist that they’re absolutely not anti-Alberta: they’re proud Albertans who care deeply about its lands and waters, especially the eastern slopes of the Rockies and the vital headwaters found there. Continue reading →

The AER’s Mandatory Closure Spend Targets are Deficient

By: Drew Yewchuk

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Legislation Commented On: AER Bulletin 2021-23 ‘Mandatory Closure Spend Targets’

This is a follow up post to my June 24, 2021 post on the changes the Alberta Energy Regulator (AER) is making to the Liability Management Framework and specifically Draft Directive XXX: Licensee Life-Cycle Management (Draft Directive) meant to replace the current Directive 006 once finalized. Readers are encouraged to check that post for background context. Continue reading →

R v Boudreau: Senior Crown Recused Due to Hostility, “Animus” Toward Accused

By: Amy Matychuk

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Case Commented On: R v Boudreau, 2021 ABPC 175 (CanLII)

In R v Boudreau, 2021 ABPC 175 (CanLII), Judge F. K. MacDonald for the Provincial Court of Alberta ordered that Mr. Mark Huyser-Wierenga, a Crown prosecutor, recuse himself from conducting a prosecution against the accused, Mr. William Boudreau. Judge MacDonald found that Mr. Huyser-Wierenga’s conduct showed “a lack of objectivity and an inappropriate hostility” to Mr. Boudreau’s defense counsel, Ms. Ellen Sutherland (at para 110). Mr. Huyser-Wierenga also put himself in a position of conflict and conducted himself recklessly or with unacceptable negligence. In this unusual decision, Judge MacDonald issues a stern rebuke to a very senior male Crown prosecutor who not only treated junior female defence counsel discourteously and unprofessionally, but also gave rise to a reasonable apprehension of bias against the accused by making himself a witness and using hyperbole and overstatement when before the court. Continue reading →

Blueberry River First Nation and the Piecemeal Infringement of Treaty 8

By: Robert Hamilton & Nick Ettinger

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Case Commented On: Yahey v British Columbia, 2021 BCSC 1287 (CanLII)

In a highly anticipated decision, the Supreme Court of British Columbia ruled on June 29, 2021 that the Province of British Columbia (BC) unjustifiably infringed the Treaty 8 rights of Blueberry River First Nation (Blueberry) by “permitting the cumulative impacts of industrial development to meaningfully diminish Blueberry’s exercise of its treaty rights” (Yahey v British Columbia, 2021 BCSC 1287 (CanLII) at para 1884 [Yahey]). The Court ordered the Province to consult and negotiate with Blueberry to establish regulatory mechanisms to manage and address the cumulative impacts of industrial development on Blueberry’s treaty rights. If a satisfactory solution is not reached within 6 months, the Province will be prohibited from permitting further industrial activity in Blueberry’s traditional territory (Yahey, para 1894), which overlies the vast natural gas and liquids resource of the Montney Formation in northeast BC. The Montney reserves form the anchor for LNG Canada’s $40 billion liquefied natural gas processing and export facility under construction at Kitimat, BC, which will be serviced by the Coastal GasLink Pipeline, as well as the planned Woodfibre LNG export terminal on the Howe Sound fjord near Squamish, BC. Continue reading →

Justice for the Westslope Cutthroat Trout at Grassy Mountain

By: Shaun Fluker

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Decision Commented On: Report of the Joint Review Panel: Benga Mining Limited Grassy Mountain Coal Project, 2021 ABAER 010

On June 17, 2021, the Alberta Energy Regulator (AER) denied an application by Benga Mining Limited under the Coal Conservation Act, RSA 2000, c C-17, for approvals to construct, operate and reclaim an open-pit metallurgical coal mine (along with associated processing, transportation and related infrastructure) on the montane and subalpine lands of Grassy Mountain in the Crowsnest Pass region of southwestern Alberta. The application was considered by a federal-provincial joint review panel governed by terms of reference established under the Responsible Energy Development Act, SA 2012, c R-17.3, and the Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52 (CEAA 2012), terms which instructed the panel to exercise AER decision-making authority under the Coal Conservation Act and assess the environmental, economic, and social impacts of the project under various provincial statutes and CEAA 2012 (the federal registry for the environmental impact assessment is here). The panel’s decision consists of a whopping 3072 paragraphs (631 pages not including appendices). This comment focuses on the AER portion of this decision, and in particular just one aspect of this decision: the confrontation between coal development and preservation of the threatened Alberta population of westslope cutthroat trout (WSCT) along the eastern slopes of the Rocky Mountains. This comment is not reviewing the CEAA 2012 findings and recommendations because, as the panel indicates at paragraph 3066, without the provincial authorizations the project cannot proceed. Continue reading →