Alberta Law Review (ALR)
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Richard Riegert Memorial Lecture: Ownership Issues in the Production of Geothermal Energy
No full textAlberta passed the Geothermal Resources Development Act (GRDA) to encourage the growth of a nascent geothermal industry. However, the GRDA fails to determine the respective rights of mineral owners and surface owners to exploit geothermal resources. It adds significant transaction costs to projects, as it forces proponents to obtain the consent of surface owners and potentially multiple owners of minerals on each affected parcel of land. The author concludes that the GRDA stands on an unreliable foundation and discourages the development of geothermal resources. A declaration of Crown ownership of the geothermal resources or retroactive legislation that precisely defined the parties who own the rights to geothermal resources would be more conducive to developing an industry that can produce energy without significant greenhouse gas emissions
Recent Judicial Decisions of Interest to Energy Lawyers
No full textThe second year of the COVID-19 pandemic continued to impact the Canadian economy, commercial activity, and the legal system in general. Courts, tribunals, legislatures, law firms, corporations, and workers all learned to adapt to remote working, remote hearings, and new ways of living. Within the crisis came opportunities to modernize systems and think about new ways of accessing justice.
This article summarizes a number of recent judicial decisions of interest to energy lawyers. The authors review key case law from several broad areas, including: Indigenous and First Nations law; contractual interpretation; environmental law; tax law; corporate and securities law; bankruptcy and insolvency; and constitutional law. In each area of law, the authors will provide insight on the significance and potential implications of these decisions on the Canadian energy industry.
The authors also canvas more specific topics, such as: economic interests and the Crown’s duty to consult; the Canada Revenue Agency’s priority ranking in the restructuring process; the ability of receivers to disclaim an agreement in the bankruptcy process and unilaterally impose go-forward terms on a secured party; the priority of builders’ liens in the face of abandonment and reclamation obligations; the evolution of the “reverse vesting order”; and provincial control over resources
The Legal Framework for Carbon Dioxide Removal in Canada
No full textRecent assessments of progress on greenhouse gas (GHG) emissions reductions suggest that efforts to reduce emissions are well below what is necessary to meet current global targets of 2 degrees Celsius, let alone 1.5 degrees Celsius above pre-industrial levels. Current Intergovernmental Panel on Climate Change models include significant amounts of carbon dioxide removal (CDR) from the atmosphere as necessary to meet the 2 degrees Celsius target. The models assume the availability of CDR technologies to contribute to climate goals, but significant uncertainties remain regarding the efficacy, costs, scalability, environmental impacts, and broader public acceptability of these technologies. In Canada, CDR technologies are a crucial element of Canada’s long-term climate strategy towards achieving net-zero emissions by 2050. Still, little to no national policy attention has been paid to researching, assessing, and implementing CDR measures, including the necessary legal framework in which these technologies would operate.
This article provides an overview of Canada’s existing legal framework that will apply to various CDR methods as they are developed. It examines the legal framework as it may apply to CDR measures collectively (particularly in consideration of how these technologies will be treated in Canada’s broader climate framework), and individually. It aims to take stock of existing federal and provincial rules and assess the potential gaps that will need to begin to be addressed as Canada develops CDR capacities
The Purpose Error in the Modern Approach to Statutory Interpretation
No full textThe modern approach to statutory interpretation mandates that statutes be read with an eye toward harmonizing their text, context, and purpose. This article notes that jurists can stray from the modern approach by prioritizing abstract statutory purposes over the specific legal rules by which an act pursues these objectives, a mistake here identified as the “purpose error.” The article argues that the purpose error contradicts the principle of legislative supremacy and recent guidance by the Supreme Court. The article furthers suggests that two factors generally drive the commission of the purpose error. First, the definition of the statutory purpose at an unduly high level of abstraction. Second, the failure to qualify a statute’s primary purpose by considering other competing secondary purposes that the act also aims to achieve. The article finally submits that awareness of the “purpose error” is key to ascertaining the scope of the “making available” right under the Copyright Act — a question that will soon come before the Supreme Court
Tort Claims Against Public Authorities
No full textWhen interactions between modern states and their citizens result in harm to individuals, the legal system is called upon to provide redress. Holding public authorities liable in tort is one solution the common law has developed to compensate individuals for harm incurred through state action. This article highlights the role that tort law plays in seeking redress against public authorities, and explores the extent to which tort law has converged with, or diverged from, other avenues of redress. After providing a brief history of tort claims against public authorities, we proceed to compare torts with judicial review, looking to their respective principles of liability, the formal aspects of bringing a claim, the substantive conditions of liability, and remedies. Through this comparison, we hope to elucidate the structure of the existing legal framework governing tort claims against public authorities
The Roles of Amicus Curiae (Friend of the Court) in Judicial Systems with Emphasis on Canada and Alberta
No full textIn administrating their judicial functions, courts can resort to different devices. One of these devices is the appointment of an amicus curiae or a friend of the court. There have been many debates on the origins of this institution and even its definition due to its evolving nature. In this article, the author will consider what this nature is and whether judicial systems are prepared to appreciate this evolution or departure from the amici’s origins. The author is of the opinion that, at least in Canada, the judicial system is required to be careful in expanding the roles of amici and to appoint them in exceptional cases where their appointment is necessary for advancing the administration of judicial functions. In Alberta in particular, some cases are more prone to the amicus’ appointments but still the courts are cautious about determining their roles. The author concludes that in Canadian judicial systems, amici generally contribute to furthering the administration of justice in an orderly and fair manner
Seven Years of Accessible Justice: A Critical Assessment Of Hryniak V. Mauldin’s Culture Shift
No full textIn 2014, the Supreme Court of Canada sought to address the inaccessibility of public adjudication for “ordinary Canadians” by introducing a culture shift to civil litigation. This culture shift required participants in the civil justice system to stop viewing trial as the default adjudication method and expand use of summary judgment. In this article, I critically evaluate the Supreme Court’s reasoning for the culture shift from a jurisprudential perspective and quantitatively evaluate the endeavour’s success. I find that Alberta courts have misapplied the culture shift contrary to the Supreme Court’s intentions, that the culture shift is being implemented only on a limited basis, that summary judgment is no more accessible for ordinary Canadians, and that fairness and justice are not being preserved. I provide recommendations for alternate methods to address the accessibility problem
Making the Case: 2SLGBTQ+ Rights and Religion in Schools, Donn Short, Bruce Macdougall & Paul T. Clarke (Vancouver: Purich Books, 2021)
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Hydrogen Roadmap: Policy, Regulation, and Prospect for Future Developments in Alberta
No full textThe world is decarbonizing and stakeholders are taking steps towards transitioning from fossil fuels to alternatives. Certain governments and industries — such as those in Alberta— have a keen desire to manage this transition in a manner that lessens or avoids significant declines in economies heavily reliant on traditional oil and gas development. Hydrogen is a unique clean energy alternative put forward as a path which can balance these tensions.
This article provides a high-level overview of hydrogen, including what makes it attractive as a “clean” fuel as well as its limitations, and examines domestic and international policies, regulations, and prospects for future hydrogen development. By bringing together the Alberta, federal, and international perspectives, this article aims to answer the question of whether regulatory and legislative reform is needed in Alberta to adapt to hydrogen and ultimately suggests that minor amendments to existing regimes are sufficient at this time
The Most-Cited Law Review Articles of All Time by the Supreme Court of Canada
No full textScholars use citation counts to measure the impact of scholarly works in a wide range of disciplines, including law. The aims of this study are twofold: to present the methods most commonly used to measure the impact of scholarly works and to determine which law reviews and articles the Supreme Court of Canada has cited most since its creation. Part II of this study reveals that legal scholars typically use three methods to generate lists of important works: the periodical citation method; the judicial citation method; and the peer rating method. The choice of method depends on the research objective. Part III of this study adopts the judicial citation method to identify the law reviews and articles most cited by the Supreme Court and provides a qualitative analysis of the top three articles. It focuses solely on publications in generalist, peer-reviewed, and university-based law reviews that were created in or before 1982. This study finds that two law reviews — the McGill Law Journal and the University of Toronto Law Journal — and 39 articles have been particularly successful. These articles were predominantly written in English by male law professors holding degrees from elite law schools and concern pressing constitutional law issues. As society shifts to tackle biases in all professions, including academia and law, the attributes of the most-cited articles can be expected to evolve — and the gender gap to close — in the years to come