ABLawg - - Page 60

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.

Blueberry River First Nation and the Piecemeal Infringement of Treaty 8

By Robert Hamilton

On July 20, 2021

In Aboriginal, Treaty Rights

By: Robert Hamilton & Nick Ettinger

PDF Version: Blueberry River First Nation and the Piecemeal Infringement of Treaty 8

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.

Justice for the Westslope Cutthroat Trout at Grassy Mountain

By Shaun Fluker

On July 19, 2021

In Environmental, Protection of Species

By: Shaun Fluker

PDF Version: Justice for the Westslope Cutthroat Trout at Grassy Mountain

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.

The Silence of the Turkeys: What Does the Agriculture Industry Have to Hide?

By Lara Yeung

On July 12, 2021

In Animal Law

By: Lara Yeung

PDF Version: The Silence of the Turkeys: What Does the Agriculture Industry Have to Hide?

Statute Commented On: Bill C-205, An Act to amend the Health of Animals Act, 2nd Sess, 43rd Parl, 2020 (as amended by Committee 21 June 2021)

In 2020, Parliament considered Bill C-205, An Act to amend the Health of Animals Act, 1st Sess, 43rd Parl, 2020 (as passed by the House of Commons on first reading 18 February 2020). Bill C-205 was introduced by Mr. John Barlow as a Private Member’s Bill in response to protests and farm occupations across Canada by animal activists (see Hansard). This version of Bill C-205 would have made it an offence for any person, “without lawful authority or excuse,” to enter a place in which animals are kept if it could result in the exposure of the animals to a disease or toxic substance (s 9.1). Bill C-205 purports to be concerned with biosecurity risks, however, its focus on punishing trespassers, including animal activists, ignores the evidence that shows biosecurity risks are not caused by trespassers but rather by poor farming practices (see Animal Justice, “Animal Advocacy or Animal Agriculture? Disease Outbreaks & Biosecurity Failures on Canadian Farms” (13 May 2021)). In a small victory for animal activists, Bill C-205 was amended on review by Committee to recognize that it may be farm owners and operators themselves who are responsible for these risks (see Bill C-205, An Act to amend the Health of Animals Act, 1st Sess, 43rd Parl, 2020 (as amended by Committee 21 June 2021) and Animal Justice, “Federal “Ag Gag” Bill Could Punish Negligent Farmers After Amendments at Committee” (22 June 2021)). This comment will examine similar provincial legislation that is sweeping across Canada, with an emphasis on the legislation enacted in Alberta in 2019.

The AER Announces Some Details of the Mandatory Closure Spend Targets

By Drew Yewchuk

On June 24, 2021

In Energy, Oil & Gas

By: Drew Yewchuk

PDF Version: The AER Announces Some Details of the Mandatory Closure Spend Targets

Legislation Commented On: AER Bulletin 2021-22 ‘Invitation for Feedback on Proposed New Licensee Life-Cycle Management Directive’; AER Bulletin 2021-23 ‘Mandatory Closure Spend Targets’

This is another post on the changes the Alberta Energy Regulator (AER) is making to the Liability Management Framework for conventional oil and gas assets. The earlier post I co-authored with Shaun Fluker on the problems with the liability management framework and the changes being made to it (and specifically the changes to the Eligibility Requirements for Acquiring and Holding Energy Licences and Approvals) is here. The AER is now seeking comments on Draft Directive XXX: Licensee Life-Cycle Management (the Draft Directive) until July 25, 2021. The Draft Directive will replace the current Directive 006 once finalized. This post discusses the Draft Directive and the details of the inventory reduction program first announced a year ago.

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

Blueberry River First Nation and the Piecemeal Infringement of Treaty 8

Justice for the Westslope Cutthroat Trout at Grassy Mountain

The Silence of the Turkeys: What Does the Agriculture Industry Have to Hide?

The AER Announces Some Details of the Mandatory Closure Spend Targets