How to Deal with a Fickle Friend? Alberta's Troubles with the Doctrine of Federal Paramountcy

Alberta energy law and policy rarely generates consensus between the Canadian Association of Petroleum Producers, the United Farmers of Alberta, other landowners, Indigenous peoples, environmental groups, the Alberta Energy Regulator (“AER”), Alberta Energy, and Alberta’s Freehold Owners Association. However, none of these groups are happy with the fallout from the Alberta Court of Appeal’s (“ABCA”) decision in Orphan Well Association v Grant Thornton Limited (“Redwater”). The reason for concern is that Redwater has punched a hole in the AER’s strategy to help ensure upstream operators provide for proper abandonment of old oil and gas wells. The Supreme Court of Canada (“SCC”) heard the AER’s appeal in February 2018. Some believe that Justice Martin’s dissenting opinion in the ABCA judgment in Redwater may provide a better path, but even those individuals who sympathize with its conclusion believe her reasoning “may be reaching too far”. This detailed article offers an alternative path, which is based on the proper application of the doctrine of federal paramountcy in this context. The doctrine of federal paramountcy states that if there is a conflict between two pieces of legitimately legislated law, and if one is provincial and the other is federal, the provincial law is inoperative to the extent that the two laws are incompatible. A classic example of such incompatibility is when a citizen must violate one of the two laws to comply with the other. “Co-operative federalism” guides the courts’ application of this doctrine. This constitutional principle asks courts to adopt a “strict definition” of “conflict”, allowing each level of government the flexibility to engage in pragmatic alignments. Courts are supposed to allow room for modern governance, which often requires multilevel governmental function. In other words, co-operative federalism is a constitutional principle that adds flexibility to the “watertight compartments” view of federal and provincial powers, which has been an essential part of Canada’s constitutional structure since its inception. Part II will explain the federal paramountcy test and the key precedents for its application to Redwater. Part III will apply the federal paramountcy test to Redwater. Part IV will conclude, offering some final reflections on the doctrine of federal paramountcy.

Récupéré en direct depuis OpenAlex et désinversé. Les résumés ne sont pas conservés dans cette base de données : les index inversés représentent 8,6 Go des 9,3 Go de texte de la base, et le serveur dispose de 13 Go libres.