Discussion Papers

Alberta's Wetlands: Legal Incentives and Obstacles to Their Conservation

by Darcy M. Tkachuk. 1993.
38 pp. ISBN-13: 978-0-919269-37-8. Discussion Paper. $5.00

This paper examines the effects of the common law, statutes, and policies which impact upon Alberta's wetland resources. Wetlands are among the most diverse and environmentally sensitive ecosystems in the world, but they have not been adequately recognized as valuable natural resources which deserve protection under the law. In this paper, both the older legal instruments that promoted wetland destruction and the newer generation of legislation and policies that encourage conservation are discussed. A series of recommendations are also made for eliminating the dichotomy that promotes both the conservation and destruction of wetlands.

This paper is of interest to government policy-makers, to practitioners of water law and environment law, and to anyone concerned with wetlands use and conservation.

Instream Flow Protection and Alberta's Water Resources Act: Legal Constraints and Considerations for Reform

by Steven J. Ferner. 1992.
44 pp. ISBN-13: 978-0-919269-38-5. Discussion Paper.

This paper examines the techniques available in Alberta's Water Resources Act to protect instream flow. In river basins not yet fully allocated, instream flow has the potential to be adequately protected; however, changes to Alberta's Water Resources Act (including the linking of statutes, market transfer of water rights, and the removal of the preference of use approach found in section 11 of the Act) would enhance the protection of instream flow in fully allocated river basins. This paper concludes that in order to better protect instream flow, Alberta should adopt a system of water law which allows for the market transfer of water rights.

This paper is of use to anyone interested in systems of water rights allocation, especially those concerned with the protection of rivers and streams. It was the 1991 winner of the Institute's annual national Essay Prize on natural resources law.

Successor Liability for Environmental Damage

by Terry R. Davis. 1989.
46 pp. ISBN-13: 978-0-919269-30-9. Discussion Paper.

This paper discusses the liability for environmental damage as between successors in title to the same property. There are two broad bases for imposing environmental liability: the process of sale, and limitations on rights of user. The first part of this paper discusses the process of sale and the specific issue of liability for non-disclosure of latent defects. The second part of the paper discusses limitations on the rights of user that may be imposed by the common law under the tort of nuisance. This is a new and growing area of law with the potential for producing high damage awards.

This paper will be of interest to those involved with the purchase and sale of land, including lawyers, financial institutions, and insurance companies.

Surrounding Circumstances and Custom: Extrinsic Evidence in the Interpretation of Oil and Gas Industry Agreements in Alberta

by David E. Hardy. 1989.
36 pp. Discussion Paper.

This paper discusses evidentiary issues that may arise in litigation concerning oil and gas industry agreements. The courts use the parol evidence rule to determine whether extrinsic evidence may be used as an aid to the interpretation of the agreement. Two exceptions to the rule are surrounding circumstances and custom. The paper explains the basis for these two exceptions, discovers the principles which have developed regarding their application in Alberta courts, and describes some of the difficulties which may be encountered in their application.

This paper will be of interest to practitioners working with industry agreements and contracts in any field of natural resources. It was the 1988 winner of the Institute's annual national Essay Prize on natural resources law.

Classifying Non-operating Interests in Oil and Gas

by Eugene Kuntz. 1988.
31 pp. Discussion Paper.

This paper focuses on the use and judicial characterization of non-operating interests that exist in the oil and gas industry. Specifically, the first part of the paper explains the need for non-operating interests, their development, and their uses. The second part of the paper briefly describes the types of non-operating interests: royalty interest, overriding royalty interest, production payment, net profits interest, and carried interest. The third part of the paper explains the need for the classification of these interests and the methods of classification (traditional and incidents of ownership). The remainder of the paper examines judicial classification of non-operating interests in the United States and Canada.

This paper will be of interest to anyone working in natural resources industries or law who has to deal with non-operating interests such as royalties. Professor Kuntz was the 1989 incumbent of the Chair of Natural Resources Law in the Faculty of Law at the University of Calgary.

Views on Surface Rights in Alberta, Papers and materials from the Workshop on Surface Rights

edited by Barry Barton. 1988.
77 pp. Discussion Paper.

This paper gathers together background materials and reports of small group sessions from a workshop on surface rights held in April 1988.

The paper includes an introduction, with an overview of the discussions that took place and the points of consensus that were reached; revised versions of the four background papers that were presented at the workshop; reports from the small groups; and a list of participants. The background papers address principles for fixing compensation, decision-making by the Surface Rights Board of Alberta, judicial supervision of the Surface Rights Board of Alberta, and costs.

This paper will be of interest to anyone in Alberta who addresses problems related to surface rights. It will be of interest also to government personnel in other jurisdictions who are considering the same kinds of problems, especially those considering implementing or changing a regulatory regime.