University of Alberta

BLAW 628
Units 9 and 10
November 20, 2014
1. Forest Tenure
By the NRTA, 1930, Canada transferred public lands including timber located on provincial
Crown Lands, to Alberta. The Forests Act allows the right to harvest Crown timber to companies
and individuals through various forms of tenure. These are area based tenures by which the
tenure holder has the right to harvest a specified volume of timber from a specified area or all
timber in that area e.g. Forest Management Agreements.
There are volume based tenures by which the tenure holder has the right to a percentage of
Annual Allowable Cut (AAC) measured in timber volume in a specified area or a specified
volume in a specified area e.g. Timber quotas or timber permits.
There are:
1) Forest Management Agreements
2) Timber Quotas issued a Timber Quota Licence:
(a) Coniferous Timber Quotas
(b) Deciduous Timber Allocation
3) Timber Permits issued Timber Permits:
(a) Commercial Timber Permits
(b) Community Timber Program
(c) Community Timber Permits
(d) Local Timber Permits
(e) Forest Product Tags
Forest Management Agreements:
There are 20 FMAs including 3 joint FMAs. Areas cover 585 km2 to 58,120 km2. FMA holders
manage the forest for perpetual sustained yield. They must also consider social, economic and
environmental factors and take on a greater responsibility for forest management consistent with
sustainable resource development. There is an opportunity for public consultation during
development of a Forest Management Plan (FMPs). They are responsible for reforestation.
FMPs operational components are prepared for a10-year term and show extent and size of area,
specific stands identified for harvest and intended reforestation treatments. Have rights to
standing timber. 20 years, renewable every 10 years. Obtained by Request for Proposal (RFP).
Timber Quotas:
Coniferous Timber Quota and Deciduous Timber Quota. Volume for former, area or volume for
latter. Similar but not identical. By auction, tender or direct sale. Rights to harvested timber. 20
years, renewable. Reforest, or if small volume can opt to pay a charge for reforestation.

Timber Permits:
(a) Commercial Timber Permits. Generally to 5 years. By volume. Generally under
5,000 m3. By auction, tender or direct sale. Rights to harvested timber. No renewals.
(b) Local Timber Permit to one year. To 50 m3.
(c) Forest Products Tag to 30 days. To 53. Rights to harvested timber. No renewal.
2. Treaty Making and Implementation
United States: Treaty making for President with two thirds advice and consent of Senate. Once
notified by that action the treaty is enforceable in U.S. law and become part of the supreme law
of the land. Sometimes federal legislation is required.
Canada: The entering into treaty is controlled by the executive. Since 2008 treaties have gone to
the House of Commons for tabling. This is only a courtesy entering into treaty is still a
function of the executive. Implementation may require legislation to be effective. Sometimes
both federal and provincial laws need be passed in order to implement a treaty. The federal
government is the one that is bound to treaty but is not able to enforce compliance in areas of
provincial jurisdiction. Some treaties contain a federal states clause that seeks to limit
Canadas obligation to a best effort to obtain provincial compliance.
3. Climate Change
Textbook pp. 70-99, specifically pp. 85-87.
pp. 397-416.
(a) Rio Conference
(b) Kyoto Protocol 1997
Canada agreed to reduce greenhouse gases by 6% from 1990 levels by 2012. Canada
ratified the Protocol in 1997. Environment Minister Peter Kent withdrew from the
Protocol in December 2011 (two hours after arriving from UN Climate talks in Durban).
The reason was that Canada was facing $14 billion in penalties if it did not withdraw.
(c) Canadas current action on climate change:
To reduce Greenhouse Gases by 17% from 2005 levels by 2020 through a sector by
sector approach aligned generally with the United States. There are greenhouse gas
regulations for transportation and electricity sections: Regulations for Passenger
Automobiles and Light Trucks, for Heavy Duty Vehicles, for Renewable Fuel and for the
Electricity Sector.
4. Albertas Responses to Climate Change
Textbook: pp. 398-402
Climate Change and Emissions Management Act.
Intensity based approach not directed to reduction of total emissions. 5 regulations in force.
Alberta requires large industrial emitters to report emissions and take action to make mandatory
reductions. Specified Gas Emitters Regulation, Specified Gas Reporting Regulations.
5. What of possible constitutional conflict between Canada and Alberta?
(a) National Concern branch of POGG power:
Textbook, p. 34-35. The subject matter must have a singleness, distinctiveness, and
indivisibility that clearly distinguishes it from matters of provincial concern and a

scale of impact on provincial jurisdiction that is reconcileable with the fundamental

distribution of power under the Constitution.
See case, para. 33:
1. The national concern doctrine is separate and distinct from the national
emergency doctrine of the peace, order and good government power, which is
chiefly distinguishable by the fact that it provides a constitutional basis for what is
necessarily matters of national concern;
2. The national concern doctrine applies to both new matters which did not exist at
Confederation and to matters which, although originally matters of a local or
private nature in a province, have since, in the absence of national emergency,
become matters of national concern;
3. For a matter to qualify as a matters of national concern in either sense it must
have a singleness, distinctiveness and indivisibility that clearly distinguishes it
from matters of provincial concern and a scale of impact on provincial jurisdiction
that is reconcileable with the fundamental distribution of legislative power under
the Constitution;
4. In determining whether a matter has attained the required degree of singleness,
distinctiveness and indivisibility that clearly distinguishes it from matters of
provincial concern, it is relevant to consider what would be the effect on extraprovincial interests of a provincial failure to deal effectively with the control or
regulation of the intra-provincial aspects of the matter.
(b) Criminal law power
See Canada (A.G.) v. Hydro Quebec, [1997] 3 S.C.R. 213. Toxic substance
provisions of CEPA upheld on basis of federal power over commercial law.
(c) Federal Spending Power Described by Canada as:
Constitutionally, however, the term spending power has come to have a
specialized meaning in Canada: it means the power of Parliament to make payments
to people or institutions or governments for the purposes on which it [Parliament]
does not necessarily have the power to legislate.
It is not explicit in the Constitution Act, 1867, but must derive from the power to levy
taxes (s. 91(3)), to legislate in relation to public property (s. 91(1)(a)) and to
appropriate federal funds (s. 196).
See also Winterhaven Stables Ltd. V. Canada (1988), 53 D.L.R. (4th) 413.
(d) See also local works and undertakings (s. 92(10)), property and civil rights in the
province (s. 92(13)), matters of a local or private nature in the province (s. 92(16))
and s. 92A regarding natural resources.
(e) See also federal Trade and Commerce power. A scheme for regulation of
international or interprovincial trade is in exclusive federal jurisdiction (Caloil Inc. v.
Canada [1971] S.C.R. 53).

6. UN Declaration on the Rights of Indigenous Peoples

This declaration was adopted by the UN General Assembly in 2007. It sets an important
standard and will assist indigenous peoples in battling discrimination and marginalization.
It was initially rejected by Australia, Canada, New Zealand and USA. Canada had supported
the spirit of the declaration but was concerned that it was fundamentally incompatible with
Canadas Constitutional Framework that included the Canadian Charter of Rights and
Freedoms and s. 35(2) of the Constitution Act, 1982, that included a recognition of
Aboriginal and Treaty rights. On November 12, 2010 Canada endorsed the Declaration with
reservations. Among other issues are concern with free, prior and informed consent before
resource development. Aspirational document, non-binding.
7. Species at Risk Act
Textbook: pp. 320-326.
Migratory Birds Convention of 1917.
Then Migratory Birds Convention Act.
Species at Risk Act (Canada).