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BLAW 428 > Final Exam > Flashcards

Final Exam Flashcards

1
Q

What was Sparrow v. The Queen (1990)?

A

First case to test section 35 of Charter

- Court explained that Aboriginal rights need to be “interpreted flexibly so as to permit their evolution over time”

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2
Q

What is the 2 Part test to Sparrow v. The Queen?

A
  1. ) Does the regulation infringe on a traditional right?

2. ) Can you justify the infringement over the right (social good doctrine is too vague)

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3
Q

What was the significance of Delgammuukw v. B.C. (1997)

A
  • Aborginal title includes the right to the land itself, not just the right to hunt, fish, and gather
  • Legitimacy of Oral History
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4
Q

What does “Honour the Crown” mean?

A

The government has a duty to consult with First Nations if they are potentially adversely affected

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5
Q

What is the main distinction of U.S. to Canada in regards to Aboriginal rights?

A

Aboriginal rights and treaty rights are not codified in the U.S. Constitution as they are in Canada

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6
Q

What is the take away for First Nations Considerations in New Zealand?

A

New Zealand has a strong legislative program to protect Aboriginal rights, however there is some concerns in practice

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7
Q

What is the take away for First Nations Considerations in India?

A

• India – aboriginal rights in the constitution, however in practice, implementation of compensation and relocation is ineffective

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8
Q

When is a EIA required? What are the exceptions?

A
  • When there is uncertainty with environmental damages and Federal agency is the proponent of a project
  • Exception: project has insignificant environmental effects, national emergency, private project
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9
Q

What is Public Law and what are penalties?

A

Public law sets rules for the relationship between the individual and society
Ex.) Failing to adhere to regulations - Penalty is a fine or criminal offense

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10
Q

What is Private Law and what are the penalties?

A

Private law sets the rules between individuals

Ex.) Private group sues a company for a tort - Penalty is compensation for damages

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11
Q

What are the types of Torts relevant to environmental contamination leading to personal injuries?

A
  1. ) Trespass
  2. ) Private Nuisance
  3. ) Public Nuisance
  4. ) Negligence
  5. ) U.S. Strict Liability
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12
Q

What is Trespass?

A

Intrusion of another’s property without legal authority inhibits the owner’s ability to enjoy the property to its full extent

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13
Q

What are the requirements of Trespass?

A
  • Must show harm done
  • Must show causal connection
  • Burden of proof is on the plaintiff
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14
Q

What is Private Nuisance?

A

Protects the use and enjoyment of private property from unreasonable interference by adjacent property owners

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15
Q

What is Public Nuisance?

A

Public Nuisance is the doing or failure to do something that injures the health and safety of the general public

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16
Q

What is the requirement of Public Nuisance?

A

Requires “special harm” to be actionable - must show special damage not shared in common wit hthe rest of hte public

17
Q

What is Negligence?

A

Liability imposed when a duty of care is breached

- Duty is typically defined as the reasonably prudent person’s exercise of ordinary care and skill

18
Q

What is the requirement of Negligence?

A

Damage must be connected to negligent behaviour (proximate and actual cause)
Ex.) Difficult to prove that toxic substance caused Cancer, because cancer can be caused by many things

19
Q

What is Strict Liability?

A

If the owner uses his land in an un-natural way, they are completely liable for any damages caused regardless of the circumstances

20
Q

What are the 4 models for countries developing systems of acquiring or even allowing for private mineral rights in their territory?

A
  1. ) Concession (Licenses)
  2. ) Participation Agreements
  3. ) Production Sharing Contracts
  4. ) Risk-Service Contracts
21
Q

What are Concessions?

A

Royalty sharing agreements

  • Europe and NA
  • Country transfers virtually all control over petroleum to the holder
  • unanticipated resources belong to the concession holder
22
Q

What is a Participation Agreement?

A

Joint ventures between government and a private company

- Falls in between a concession and production sharing agreement

23
Q

What are Production Sharing Contracts?

A

Country grans the company a contractual right to explore in a specified area in exchange for the company’s opportunity for a possible profit

  • Country receives a share of profit
  • Company has all risk if there is a loss
  • Resembles a Farmout agreement (except it involves the government)
  • Africa + Latin America
24
Q

What are Risk-Service Contracts?

A

All aspects of oil and gas development is left to the state agencies.

  • Private company explores and gets no commission/royalty for work, just a payment
  • if it fails, the private company gets nothing and absorbs risk
  • often brought in for expertise
  • Middle East, where high percentage of hitting oil
25
Q

What is the Ad Coelom Doctrine?

A

Whoever’s is the soil, is theirs from heaven to hell

26
Q

What is the Rule of Capture?

A

If you capture it, you get to keep it

- Oil is fugacious, so horizontal drilling is allowed

27
Q

What are the 2 types of ownership rights and what do they mean?

A
  1. ) Non-Ownership Theory - owner does not own the resource until it’s controlled and capture in a well. Surface rights don’t matter.
  2. ) Profit Pendre - since oil and gas is part of the soil, it is owned by the landowner. Limited by fugacious nature of oil and gas
28
Q

What is a Farmor?

A

Farmor is the owner of the mineral lease

29
Q

What is a Farmee?

A

Farmee wishes to obtain a percentage of ownership of a lease or leases in exchange for providing services (drilling)

30
Q

What is a Farmout Agreement?

A

A negotiation between two private individuals/companies that shares risks and profits of a project

31
Q

What are penalties for environmental/regulatory offenses under strict liability in administrative law?

A

Fines, or

Non-monetary sanctions issued by the government

32
Q

What is the difference of administrative Rules in England, U.S., and Canada?

A

England - rules are applied in a flexible manner and decisions are made on a case-by-case basis.
U.S. - rules applied with discretion, but meant to be universal and strictly followed
Canada - like U.S., except Due diligence is a defense concerning strict liability

33
Q

What are the categories of Offenses?

A
  1. ) Substantive Offences - actual offense
  2. ) Reporting Offences - failure to notify of pollution
  3. ) Information Offences - concealed or false information
  4. ) Regulatory Offences - failure to obey orders
34
Q

What is Comfort or No-Action Records?

A

Risk Management strategy that asks government ahead of time about permission to make sure something is okay

35
Q

What is Due Diligence?

A

Defense to strict liability offences

  • Directors and officers have a responsibility to take all reasonable care to ensure that the corporation complies with the law
  • Corporation has due diligence defense if someone, like a director, officer or employee, took reasonable steps to avoid the offence

BLAW 428 (2 decks)

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