Books & Reports: 1983-1990

Security of Title in Canadian Water Rights

by Alastair R. Lucas. 1990.
102 pp. ISBN-13: 978-0-919269-22-4. $5.00 (softcover)

This book addresses the problem of the security of the title granted to a water user under water legislation in western and northern Canada. The first part of the book deals with the history of Canadian water law. The second part describes Canadian water law and highlights two problems for water rights allocation under western statutes, specifically, the possible retention of some riparian rights, and whether water licences grant the holder any interest in property or any interest that the law would insist be compensated in the event of expropriation. In the third part of the book, four case studies from Alberta are considered. Finally, conclusions are drawn about the legal character of water rights, statutory priorities, statutory powers to cancel water licences, competing natural resource rights, and licence terms and conditions.

This book will be of use to water managers in government and to individuals and corporations in the private sector who rely on water rights for their livelihood.

Toxic Water Pollution in Canada: Regulatory Principles for Reduction and Elimination with Emphasis on Canadian Federal and Ontario Law

by Paul Muldoon and Marcia Valiante. 1989.
117 pp. ISBN-13: 978-0-919269-26-2. $5.00 (softcover)

This book argues that Canada's laws are currently limited in their ability to protect the nation's waters from the impacts of toxic pollution. There is an urgent need in Canada for an anticipatory and preventive regulatory strategy that will virtually eliminate the discharges of persistent toxic chemicals into the environment. The book proposes the development of five general regulatory principles to achieve this goal.

The approach advocated in this book merits serious consideration by federal and provincial water managers and will be of interest to everyone who is concerned about the state of the environment.

The Offshore Petroleum Regimes of Canada and Australia

by Constance D. Hunt. 1989.
169 pp. ISBN-13: 978-0-919269-29-3. $5.00 (softcover)

This book reviews the approaches taken in Canada and Australia to resolve intergovernmental tensions over which level of government should manage offshore petroleum resources. Themes common to both countries are addressed including: the legal and constitutional status of political accords; the amendment of enabling laws and regulations; the extent of consistency that has been achieved in the laws, regulations, and policies that pertain to the various offshore areas in each country; the workability of the respective decision-making mechanisms; the clarity of legislative authority under each regime; fiscal relationships; and the legal and practical significance of boundaries in the offshore areas. The conclusions focus upon the ways in which future Canadian offshore regimes might be improved as a result of the experiences in both countries.

This book is of interest to government policy-makers and to the industry working in the offshore, to whom an understanding of the development and ongoing evolution of the regulatory regime is vital.

Interjurisdictional Issues in Canadian Water Management

by J. Owen Saunders. 1988.
130 pp. ISBN-13: 978-0-919269-27-9. $5.00 (softcover)

This book examines the primary legal tool, the intergovernmental agreement, that has been used to resolve interjurisdictional water problems in Canada. The transboundary character of water resources, however, makes the resolution of any constitutional issues concerning water management especially critical. Specifically, this book examines the constitutional context of Canadian water management, the structure of federal-provincial cooperation in water management, specific intergovernmental agreements related to water, and the legal aspects of intergovernmental agreements.

This book will be of interest to water managers and, more broadly, to those in the many other government sectors where intergovernmental agreements play an important role.

The Framework of Water Rights Legislation in Canada

by David R. Percy. 1988.
103 pp. ISBN-13: 978-0-919269-21-7. $20.00 (softcover)

This book is the first major study of the systems which allocate rights to consume water in the common law provinces of Canada. The book first deals with the western system of prior allocation, which forms the basis of water law from British Columbia to Manitoba. The second section of the book discusses the authority management scheme, which was adopted by the federal government for the Northwest Territories and the Yukon. The third section analyzes the Ontario permit system which is used as a representative model of the riparian system that provides the basis of water law in Ontario and eastern Canada. Throughout the book, the water law systems are compared and their individual defects are examined. Suggestions for reform are made in the light of the objectives of the individual system of water law and the experience of other jurisdictions.

This book is invaluable to policy-makers and others in Canada and elsewhere who are concerned with the wise management of water resources.

Aboriginal Water Rights in Canada: A Study of Aboriginal Title to Water and Indian Water Rights

by Richard H. Bartlett. 1988.
237 pp. ISBN-13: 978-0-919269-23-1. $30.00 (softcover)

The book attempts to provide a statement of the Canadian law governing the water rights of aboriginal peoples. It first considers the concept of rights to water as an aspect of aboriginal title to traditional lands. Secondly, the book examines those rights to water which attach to the small parts of those traditional lands which were set apart especially for the aboriginal peoples, in particular, Indian reserves and land set apart in contemporary agreements with the Inuit. It suggests that water rights were appropriated along with the lands in order to enable the objectives with which the lands were set apart to be met. The book draws heavily upon United States jurisprudence.

The book concludes that aboriginal title includes the right to use water for traditional purposes, including hunting, trapping and fishing. Further it concludes that water rights were appropriated along with the small areas of land especially set apart for the aboriginal peoples which would enable the lands to be a "homeland" and allow not only the maintenance of traditional forms of sustenance such as hunting, trapping and fishing, but also the development of agrarian and other more contemporary ways of life. The water rights of the aboriginal peoples are "prior" in time to most non-aboriginal interests and "paramount" in their degree of protection from regulation and abrogation. Negotiated settlements might more clearly define aboriginal water rights and provide for joint aboriginal-government administration of the water resource. 

A Reference Guide to Mining Legislation in Canada (Second Edition)

by Barry Barton, Barbara Roulston and Nancy Strantz. 1988.
123 pp. ISBN-13: 978-0-919269-25-5. $5.00 (softcover)

This book is a practical guide to the legislation that governs the acquisition, content, maintenance, and cancellation of legal interests in hard-rock minerals granted by the Crown in Canada. In a series of tables, the guide summarizes legislation that governs the exploration, development, and production of metallic minerals and industrial minerals such as asbestos. The guide concentrates on the most commonly acquired interests in minerals. It describes how and where claims, leases, and other interests in Crown minerals may be acquired; describes the extent of the rights that are required under each interest; deals with work requirements, transfers, and cancellation; and offers a guide to surface rights.

This book will be of interest to anyone managing the development of hard-rock minerals or concerned about the legal aspects of mineral development in Canada. 

Maritime Boundaries and Resource Development: Options for the Beaufort Sea

by Donald R. Rothwell. 1988.
61 pp. ISBN-13: 978-0-919269-24-8. $5.00 (softcover)

This book examines court decisions affecting maritime boundary disputes and proposes some alternatives for deciding the Canada-United States maritime boundary in the Beaufort Sea. The book shows how a court decision on the Beaufort boundary would be unlikely to resolve the current dispute, since previous cases (most notably the Gulf of Maine Case) have failed to resolve equitably the two countries' competing claims. The author then examines five alternatives and argues that a joint development zone be adopted in the Beaufort Sea.

This book will be useful to anyone interested in international law. This book was the 1986 winner of the Institute's annual national Essay Prize on natural resources law. 

Liability for Drilling- and Production-Source Oil Pollution in the Canadian Offshore

by Christian G. Yoder. 1986.
84 pp. ISBN-13: 978-0-919269-20-0. $5.00 (softcover)

This book addresses the means used by the law to regulate the rights of parties involved in offshore oil spills. The book examines the liability-imposing provisions of the Canadian statutes that apply to offshore spills resulting from the activities of the petroleum industry. Specifically, the book reviews the legislative origins of these statutes, compares civil and criminal liability, refers to several additional relevant aspects of the topic, and draws some general conclusions. The underlying theme of the book is that overlapping statutes raise statutory-interpretation questions which make assessing liability exposure and recovery possibilities difficult. Indeed, variations in the statutes offer both claimants and defendants fertile ground for advantage-seeking arguments.

This book will be of interest to practitioners, and industry and government personnel involved with the offshore oil industry.

A Guide to Appearing Before the Surface Rights Board of Alberta (Second Edition)

by Barry Barton and Barbara Roulston. 1986.
124 pp. ISBN-13: 978-0-919269-19-4. $5.00 (softcover)

This book provides a guide to the Alberta Surface Rights Act, under which a company can be authorized to use land to drill an oil or gas well, to lay a pipeline, to erect a power line, or to carry out mining. The first four chapters of this book cover the ways that an operator can obtain a right of entry on land, procedures before the Alberta Surface Rights Board, and the way that compensation is fixed. In the last chapter, the authors offer a legal analysis of a number of difficult issues in surface rights law.

This book is directed to the needs of owners and occupants of land, and should also be of use to resource companies, landmen, lawyers, appraisers, and others whose work requires an understanding of surface rights negotiations and proceedings. 

The Canadian Regulation of Offshore Installations

by Christian G. Yoder. 1985.
116 pp. ISBN-13: 978-0-919269-18-7. $5.00 (softcover)

This book examines the regulation of four types of temporary structures used by the oil industry for ocean drilling: drill ships, artificial islands, semi-submersibles, and jack-up oil rigs. The unique technological features of these installations, and the fact that they operate beyond the low-water mark, raise complex and interesting legal questions about the interface between coastal state law and maritime law. The book first examines sources of law that apply to offshore installations: coastal state oil and gas regulatory law, maritime law, environmental law, and labour law. This is followed with a discussion of some of the problems that result from the interface between these sources of law.

This book is useful to oil and gas law practitioners, to oil and gas companies operating in the offshore, and to environmentalists concerned about development in the offshore. 

Oil and Gas Conservation on Canada Lands

by Owen L. Anderson. 1985.
122 pp. ISBN-13: 978-0-919269-16-3. $5.00 (softcover)

This book examines Canada's Oil and Gas Production and Conservation Act, which regulates exploration and production of oil and gas on Canada lands. The book begins with a brief review of the history and rationale for petroleum conservation laws. It examines the legislative history of the Act, raises some organizational issues, and reviews the statutory provisions pertaining to the Oil and Gas Committee. A major portion of the book focuses upon the actual procedures for pursuing oil and gas conservation. Reference is made to inquiries and appeal procedures, and to the role of conservation engineers. A list of offenses and penalties is provided.

This book will be of interest to practitioners and industry personnel who are working in resource development on Canada lands. Also, because of its critique of the Act, it will be useful to government policy-makers and legislators. Professor Anderson was the incumbent of the 1984 Chair of Natural Resources Law in the Faculty of Law at the University of Calgary. 

The Assignment and Registration of Crown Mineral Interests with Particular Reference to the Canada Oil and Gas Act

by N.D. Bankes. 1985.
126 pp. ISBN-13: 978-0-919269-11-8. $5.00 (softcover)

The subject of this book is the registration of Crown mineral interests. The first section of the book examines the various types of registration systems that could be employed for registered Crown mineral interests, specifically: registration of deeds, registration of charges, and registration of title. The second part of the book analyzes the registry systems for Crown minerals utilized in Alberta and Australia. The third section is concerned with the Canada Oil and Gas Act. It reviews and analyzes exploration agreements and production licences, examines the transfer provisions found in regulations promulgated under the Act, and looks at procedures for notification and approval of assignments.

This book will be of interest to those working in the oil and gas industry and, because of its comparative approach to registry systems, to government policy-makers and legislators. 

The International Legal Context of Petroleum Operations in Canadian Arctic Waters

by Ian Townsend Gault. 1983.
76 pp. ISBN-13: 978-0-919269-10-1. $5.00 (softcover)

This book addresses Canada's claims to jurisdiction in Arctic waters for the purpose of the exploration, production, and transportation of hydrocarbons. The first part traces the development of the law of the sea and the doctrine of the continental shelf. The second part examines a number of aspects of the domestic legal regime. In the third part, contemporary international legal norms are analyzed with respect to offshore jurisdictional zones (including the doctrine of the continental shelf), environmental protection, transportation of oil and gas, the construction of offshore facilities, and the legal status of Arctic waters, especially the Northwest Passage and the waters of the Canadian Arctic archipelago. In the final part, some conclusions and comments on the state of the legal regime are offered.

This book will be of interest to those working with oil and gas development in the Canadian offshore, and to anyone interested in the issue of Canada's jurisdiction over offshore waters. 

Canadian Electricity Exports: Legal and Regulatory Issues

by Alastair R. Lucas and J. Owen Saunders. 1983.
42 pp. ISBN-13: 978-0-919269-09-5. $5.00 (softcover)

This book addresses the major legal constraints that would confront Canada in any attempt to cut off export commitments of electricity to the United States. The book discusses the constitutional context of electricity exports and concludes that either the federal government or a provincial government would have constitutional authority to terminate exports, however, the federal government has the greater power to act in this respect.

The book also discusses international law, and concludes that, if there were no specific treaties dealing with the situation, it would be difficult to characterize curtailment of such exports by Canada as a breach of international obligations. 

Acid Precipitation in North America: The Case for Transboundary Cooperation

by Douglas M. Johnston and Peter Finkle. 1983.
75 pp. ISBN-13: 978-0-919269-02-6. $5.00 (softcover)

This book addresses the difficult problem of transfrontier pollution in North America and Europe, a problem with potentially serious consequences both for human health and the integrity of the natural environment.

The book analyzes some of the more intransigent problems which acid precipitation has created for Canada-United States relations. The authors conclude that future cooperation between the two countries must be concerned with both short- and long-range problems, with the practical elimination of sulphur emissions, and with the rejection of dispersion techniques as a method of pollution control.

This book will be of interest to anyone concerned about acid rain and, in its comparison of legal approaches to the problem, it is especially useful to policy-makers and diplomats.