On June 30, 2014, the Alberta Court of Appeal, in Stewart Estate
(Re), 2014 ABCA 222, denied an application by the Freehold
Petroleum and Natural Gas Owners Association (FPNGOA) to intervene
in an appeal from a decision of the Alberta Court of Queen's
Bench dismissing a claim that certain freehold leases had
terminated. In a short judgment, the Honourable Madam Justice
Rowbotham confirmed that an applicant seeking leave to intervene in
an appeal must establish that it has a special interest or
particular expertise in the subject matter of the appeal, and must
bring fresh information or a fresh perspective to the appeal.
FPNGOA, which was cited as a not-for-profit corporation with a
mandate to, among other things, act as a "common voice"
for freehold mineral owners in Canada, sought to intervene in
support of the appellants to make submissions on three questions of
law (including the interpretation of the lease at issue in the
appeal), and to make submissions about the nature of petroleum and
natural gas leases, the form of lease at issue, the historical
intent and purpose of parties that have entered into such leases,
and the fiduciary nature of the relationship between the mineral
lessor and lessee. The Court held that FPNGOA had no special
expertise on the legal issues and that the legal issues could be
adequately addressed by the appellants. The Court also rejected
FPNGOA's application to introduce hearsay evidence about the
intention of lessors generally in entering into freehold leases.
The Court noted that it was not the place for an intervener to
bring new arguments or evidence not raised in the court below.
In this era of increased attempts by special interest groups and
non-governmental organizations to intervene and participate in the
regulatory and judicial process related to the development of the
oil and gas industry in Canada, this succinct decision confirms
that the Alberta Court of Appeal will not lightly entertain
attempts at intervention before the Court of Appeal which appear to
raise new issues or introduce inadmissible or unreliable evidence,
which appear largely to be a disguised attempt to bolster or repeat
legal arguments which can readily be made by the parties to the
appeal, or where the proposed intervener does not have a special
interest or fresh perspective to bring to the appeal. It is a
reminder that the court system has more restricted rights of
participation than regulatory bodies such as the Alberta Energy
Regulator and the National Energy Board. The Court will not allow
intervention to transform the court into a political arena.
The full decision of Madam Justice Rowbotham can be viewed here. The lengthy trial decision under appeal,
which addresses many issues that arise in the context of cases of
alleged lease termination, can be viewed here. The appeal is currently scheduled to be
heard in September 2014 and should continue to develop the law in
oil and gas lease termination cases in Alberta.
Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
The Government of Alberta recently announced a number of policy changes that will impact the Alberta Electricity Market, composed of its generators, transmitters, distributors, retailers, electricity consumers and wholesale electricity market.
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