ABLawg - - Page 49

If A Land Claims Agreement Says That You Must Resolve The Dispute Through Arbitration, Then That’s What You Must Do

Case Commented On: Newfoundland and Labrador v Nunatsiavut Government, 2022 NLCA 19 (CanLII)

If a land claims agreement says that you must resolve the dispute through arbitration, then that’s what you must do. That’s the blunt (and perhaps obvious) conclusion of the Newfoundland and Labrador Court of Appeal in this decision involving the terms of the Labrador Inuit Land Claims Agreement (Agreement).

There could be little doubt that the Agreement did in fact stipulate that a dispute of this nature (a dispute relating to the determination and sharing of revenues from the Voisey’s Bay project) must be referred to arbitration (see the combined effect of ss 7.6.9 and 21.9.1of the Agreement, as discussed at paras 34 -52). But in this case, the Nunatsiavut government had submitted the dispute to the provincial superior court, and the provincial government had failed to take any objection to that course of action; until it lost at trial (Nunatsiavut Government v Newfoundland and Labrador, 2020 NLSC 129 (CanLII))and the matter went on appeal to the Court of Appeal.

Is The Canadian Energy Centre A Department, Branch or Office of the Government of Alberta?

By Drew Yewchuk

On March 30, 2022

In Energy

By: Drew Yewchuk

PDF Version: Is The Canadian Energy Centre A Department, Branch or Office of the Government of Alberta?

Decision Commented On: Re Canadian Energy Centre Ltd, Order F2022-16 (AB OIPC)

The Office of the Information and Privacy Commissioner (OIPC) released a Re Canadian Energy Centre Ltd, Order F2022-16 finding that the Canadian Energy Centre (CEC), which is also known as the ‘War Room’, is not subject to the Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25 (FOIP). This is the outcome the Alberta government intended when creating the CEC, and Alberta Energy participated in the hearing to argue the CEC was not subject to FOIP. Despite that, my view is that the OIPC adjudicator made errors in interpreting FOIP and their conclusion is wrong. The CEC is a ‘public body’ subject to FOIP.

The Sequoia Bankruptcy Part 3: The Second Application for Summary Dismissal Should Never Have Been Heard

By Drew Yewchuk

On March 29, 2022

In Energy

By: Drew Yewchuk

PDF Version: The Sequoia Bankruptcy Part 3: The Second Application for Summary Dismissal Should Never Have Been Heard

Case Commented On: PricewaterhouseCoopers Inc v Perpetual Energy Inc, 2022 ABCA 111

This is part 3 of a series on the litigation resulting from the Bankruptcy of Sequoia Resources Corp. (Sequoia). Part 1 covered the first application to strike and the first application to intervene. Part 2 covered a costs decision against the Trustee and the first appeal decision.

This third part covers some of the interlocutory decisions, the Court of Appeal’s decision on the second summary dismissal decision, and explains how the initial asset transfer seems to have passed regulatory review.

How is the Orphan Fund Levy Set? Alberta’s Oil and Gas Clean-up Costs in 2022

By Drew Yewchuk

On March 17, 2022

In Energy, Oil & Gas

By: Drew Yewchuk & Chris Wray

PDF Version: How is the Orphan Fund Levy Set? Alberta’s Oil and Gas Clean-up Costs in 2022

Decision Commented On: The Upcoming Orphan Fund Levy for 2022/2023

ABlawg has covered the orphan and inactive oil and gas well issue for around five years now and those who have not followed the issue can become lost in the complexities of the regulatory system. This post is an entry point for those first starting to look carefully at the issue. It describes Alberta’s oil and gas clean-up obligation and costs problems in detail, explains why it is difficult to get clear information about the precise size of the problem, and ends by describing what is at stake in the upcoming policy decision: the annual decision of the Alberta Energy Regulator (AER) to set the amount of the 2022/2023 Orphan Fund Levy.

If Not Now, When?

By Lisa Silver

On March 16, 2022

In Criminal, Sentencing

By: Lisa Silver

PDF Version: If Not Now, When?

Case Commented On: R v Natomagan, 2022 ABCA 48 (CanLII)

The opening paragraphs of the recent Alberta Court of Appeal decision in R v Natomagan, 2022 ABCA 48 (CanLII), belie the significance of the decision. It commences like many other appellate sentencing decisions, setting out the lower Court’s ruling by focusing on a narrow ground of appeal. In this case, that ground encompasses the Crown appeal against the imposition of a determinate rather than an indeterminate sentence for a designated dangerous offender. By paragraph 3, the Court has shown its hand and finds the sentencing judge “applied the wrong legal standard.” By paragraph 5, the Court allows the appeal and imposes an indeterminate sentence. So far, as expected. But it is in the next paragraph where the decision steps out of the ordinary and becomes a case to read closely, thoroughly, and with interest. There, the Court raises concerns with the “unfettered reliance” on the use of “actuarial risk assessment tools” in determining custodial options for Indigenous offenders within the criminal justice system (at para 6). The Court directly connects these biased risk assessment tools to the overrepresentation of Indigenous offenders in the carceral system (at paras 7 to 13). Finally, the Court provides a well-placed caution requiring judges to make informed decisions in using these tools (at para 141). Despite this warning and well-placed concern, the Court, as foreshadowed by the opening paragraphs, reverts to the usual by finding the offender, Ashton Natomagan, to be an “intractable risk to the public” (at para 137). This means the biased and discriminatory risk assessment tools did not impact the ultimate finding that he was a danger, requiring an indeterminate sentence (at paras 137 to 138). This disconnect between law and reality is a continuing theme in the criminal justice experience of Indigenous offenders. Although this decision is a positive step in recognizing wrongs and attempting to ameliorate injustices, more must be done now to change the future outcomes for Indigenous offenders like Ashton.