Browsing by Author "Kwasniak, Arlene"
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- ItemOpen AccessABlawg articles(Canadian Institute of Resources Law, 2010-11) Kwasniak, Arlene; Bankes, Nigel; Fluker, ShaunABlawg is the University of Calgary Faculty of Law’s Blog on Developments in Alberta Law. It includes commentary by faculty members, sessional instructors, research associates at the Faculty’s affiliated institutes, and students on court and tribunal decisions and legislative and policy developments in Alberta. ABlawg includes commentary in several areas of interest to readers of Resources: Aboriginal Law, Carbon Capture and Storage, Climate Change, Energy Law, Environmental Law, Natural Resources Law, Oil and Gas Law, and Water Law. Resources articles have sometimes been reprinted on ABlawg (see e.g. Nickie Vlavianos, The Issues and Challenges with Public Participation in Energy and Natural Resources Development in Alberta and David Laidlaw and Monique Passelac Ross, Water Rights and Water Stewardship: What About Aboriginal Peoples?); in this issue of Resources we feature three ABlawg posts concerning (1) judicial interpretation of the Alberta Land Stewardship Act, (2) regulatory approaches to CCS, and (3) standing at the Energy Resources Conservation Board. The posts included here have been edited for length. For full versions of the posts and to become a subscriber to ABlawg, go to http://ablawg.ca/.
- ItemOpen AccessComparing Water Allocation in the Western United States and Southern Alberta: Does the Crown's Fiduciary Duty to Protect the Aboriginal Interest in Reserve Lands Hold any Water?(2015-07-07) Marechal de Carteret, Kevin; Kwasniak, ArleneWater allocation regimes in the Western United States and Alberta are compared to determine the applicability of the United States’ Indian reserved water rights doctrine, also known as the Winters doctrine, in the Treaty 7 area of Alberta. It is established that a significant difference in the division of powers between states and the federal government in the U.S., and provinces and the federal government in Canada, prevents application of the Winters doctrine in Canada. It is argued that the assumption of control over the Aboriginal interest in surface waters associated with Indian reserves through the North-west Irrigation Act, 1894 and the recognition and affirmation of Aboriginal and treaty rights in section 35 of the Constitution Act, 1982 give rise to an obligation on the part of the Crown in right of Alberta to furnish priority water allocations for use on reserves in Treaty 7.
- ItemOpen AccessConstrained conservation: examining legal, policy and organizational obstacles to sage-grouse conservation and recovery in Alberta(2010) Cook, Candice Marion; Kwasniak, ArleneThough conservation and recovery requires that science identify the biological constraints and provide suggestions for mitigation, endangered species conservation and recovery is not solely a scientific enterprise. Instead conservation and recovery is a complex management task reliant on a regulatory and institutional context that provides support and integration of conservation objectives alongside alternative resource and land management decisions. This thesis seeks to explore this alternative context considering the legal, policy and organizational dimen ions of the task of conservation and recovery. Using the case study method, this thesis examined the legal, policy and organization constraints to Alberta efforts to conserve and recover the Greater Sage-grouse (Centrocerus urophasianus) in Alberta. Using key-informant interviews, observation, document analysis and literature reviews, this then is considered the coordination of development and conservation considerations within Alberta's land and resource management system. In concluding, this thesis identified specific constraints resulting from legal deficiencies in both tool availability and implementation, policy problems resulting from management ambiguity and conflicting objectives and organizational obstacles resulting from inappropriate and significant departmentalization and segregation of authority. The cumulative effects of these individual issues function to hinder the conservation task. Management recommendations are provided at the close as suggestions for overcoming these existent barriers.
- ItemOpen AccessEnforcing Wildlife Law(Canadian Institute of Resources Law, 2006-03) Kwasniak, ArleneMost would readily assert that without enforcement, wildlife laws would not have significant impact. Yet it is not always clear what enforcement is and how it is carried out. This paper explains components of enforcement.
- ItemOpen AccessGuidelines for the effective implementation of a land trust(2009) Banack, Candace; Kwasniak, Arlene
- ItemOpen AccessThe Human Right to Water in India(2021-09) Fatima, Zainab; Olszynski, Martin; Kwasniak, Arlene; Mascher, SharonThis thesis analyzes and examines the right to safe and accessible drinking water as a human right focusing on India. The objective of this research is to assess the current status of the right to water in India, especially after judicial recognition of this right as part of the right to life guaranteed under the Indian constitution. It highlights the opportunities and challenges for further developing such a right. It also suggests some possible measures that India may have to consider in order to make this right a reality. It is important to note that this doctrinal research is limited in scope as it only focuses on one aspect of right to water, that is, the right to safe and accessible drinking water in the Indian context. This thesis makes an argument for an explicit and substantive recognition of the right to water in India’s constitution and laws based on experience with three comparable rights: the Indian right to education, the Indian right to food, and South Africa’s explicit right to water in its constitution and laws. As the right to life is closely connected to the right to water, it should not only be recognized but also strongly protected by law. Though this thesis acknowledges that a constitutionally/statutorily-protected human right to water won’t solve all water problems, it tries to make the case that such an approach may help to prioritize water, set minimum standards of governance, mobilize political will, fix accountability of government (especially towards marginalized sections), and to prepare a framework for community participation involving different stakeholders that will lead to more informed decision-making.
- ItemOpen AccessLegal conservation of forest ecological functions in Japan: a critique of the protection forest system(2007) Ono, Takako; Kwasniak, Arlene; Ross, Monique
- ItemOpen AccessMaking Federalism through Law: Regulating Socio-economic Challenges of Energy Development, a Case Study of Alberta’s Oil sands and the Regional Municipality of Wood Buffalo(2013-12-19) Thompson, Chidinma Bernadine; Lucas, Alastair; Kwasniak, ArleneSocio-economic challenges of large scale oil and gas development, especially oil sands, within municipal boundaries are not given adequate attention in Alberta’s oil and gas development regulatory framework. There is no forum in the framework that allows a thorough consideration and proactive resolution, by responsible governments, of socio-economic challenges of large scale energy development prior to, or at the time of, project approvals. The jurisdiction of municipal authorities to regulate such development is highly circumscribed. None of the recently adopted initiatives by the province seems to have closed this gap in the regulatory framework. The gap exists because Alberta’s oil and gas regulatory framework adopts the unitary model of governance. Given the critical role of public infrastructure and services in energy resource development, the thesis recommends a reform of Alberta’s legislative and regulatory framework for energy development using federalism and its underlying principle of non-centralization. The thesis recommends a suite of non-centralized intergovernmental mechanisms which can conveniently fit into the regulatory framework and anchored in the energy legislative scheme. Using legally-mandated intergovernmental partnerships, Alberta can proactively obviate severe growth pressures, crippling demands on public infrastructure and services, lower quality of life for workers in the host areas, difficulty in attracting and retaining a workforce, and greater risk to energy resource development and huge private investment. A weather-proof regulatory framework with built-in, federal fail-safe mechanisms that enable energy development projects while preserving the wellbeing of host communities is sine qua non to achieve Alberta’s ambitious global energy leadership goals.
- ItemOpen AccessMunicipal tools to protect wetlands and riparian lands in Alberta's white zone(2008) Stewart, Judy Mary Mattie; Kwasniak, ArleneAlberta municipalities have statutory authority to enact bylaws and land use regulations to protect wetlands and riparian lands in the settled areas of Alberta from the impacts of human activities and development. Wetlands and riparian lands sustain water supply and quality, and perform many essential environmental, economic and social functions. As the economy grows, drawing more people into the White Zone, Alberta's wetland inventory diminishes. As climate change and water scarcity affect Alberta's landscapes, municipal bylaws should be used to balance the bundle of entitlements enjoyed by property owners with conservation of local natural resources necessary for the overall greater public good. The principle of subsidiarity supports municipalities as the best level of government to regulate human activities and development that impact local wetlands and riparian lands. Recent Supreme Court of Canada decisions upheld municipal by laws that addressed local environmental matters as part of a tri-level regulatory regime.
- ItemOpen AccessThe enforceability of conservation easement agreements in Alberta(2009) Row, Victoria Wismer; Kwasniak, ArleneConservation easement agreements may be granted by landowners for the purpose of conserving, protecting and enhancing the environment including biological diversity, natural scenic and esthetic values on privately owned land as authorized by clauses 22(2)(a)(b) and (c) of the Environmental Protection and Enhancement Act. The goal of this thesis is to analyze whether conservation easements registered on the certificates of title to land in Alberta will be enforceable against the original grantors and subsequent owners of the land. Some of the purposes of the conservation easement agreements collected may not fall within the statutory purposes. An analysis of the terms of the conservation easements collected shows that there are restrictions on the uses of land; however, there are exemptions to those restrictions. Some essential terms in the restrictions and exemptions are undefined and may be void for uncertainty. Because conservation easements are similar to restrictive covenants they may be strictly construed. Challenges to the enforceability of conservation easement agreements may be reduced by including provisions that deal with third party impacts including resource development and access easements, interpretation, severability, amendment, modification, baseline reports, and general restructions and residual rights. There may be remedies, such as severance and modification pursuant to subsection 48( 4) of the Land Titles Act or clauses 22(7)( a) and (b) of the Environmental Protection and Enhancement Act, and amendment by agreement which a court might use to save an otherwise unenforceable conservation easement agreement. There are dispute resolution mechanisms including arbitration available to the parties to reduce the time, effort and expense of resolving disputes.