Final Exam Flashcards
What was Sparrow v. The Queen (1990)?
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”
What is the 2 Part test to Sparrow v. The Queen?
- ) Does the regulation infringe on a traditional right?
2. ) Can you justify the infringement over the right (social good doctrine is too vague)
What was the significance of Delgammuukw v. B.C. (1997)
- Aborginal title includes the right to the land itself, not just the right to hunt, fish, and gather
- Legitimacy of Oral History
What does “Honour the Crown” mean?
The government has a duty to consult with First Nations if they are potentially adversely affected
What is the main distinction of U.S. to Canada in regards to Aboriginal rights?
Aboriginal rights and treaty rights are not codified in the U.S. Constitution as they are in Canada
What is the take away for First Nations Considerations in New Zealand?
New Zealand has a strong legislative program to protect Aboriginal rights, however there is some concerns in practice
What is the take away for First Nations Considerations in India?
• India – aboriginal rights in the constitution, however in practice, implementation of compensation and relocation is ineffective
When is a EIA required? What are the exceptions?
- 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
What is Public Law and what are penalties?
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
What is Private Law and what are the penalties?
Private law sets the rules between individuals
Ex.) Private group sues a company for a tort - Penalty is compensation for damages
What are the types of Torts relevant to environmental contamination leading to personal injuries?
- ) Trespass
- ) Private Nuisance
- ) Public Nuisance
- ) Negligence
- ) U.S. Strict Liability
What is Trespass?
Intrusion of another’s property without legal authority inhibits the owner’s ability to enjoy the property to its full extent
What are the requirements of Trespass?
- Must show harm done
- Must show causal connection
- Burden of proof is on the plaintiff
What is Private Nuisance?
Protects the use and enjoyment of private property from unreasonable interference by adjacent property owners
What is Public Nuisance?
Public Nuisance is the doing or failure to do something that injures the health and safety of the general public
What is the requirement of Public Nuisance?
Requires “special harm” to be actionable - must show special damage not shared in common wit hthe rest of hte public
What is Negligence?
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
What is the requirement of Negligence?
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
What is Strict Liability?
If the owner uses his land in an un-natural way, they are completely liable for any damages caused regardless of the circumstances
What are the 4 models for countries developing systems of acquiring or even allowing for private mineral rights in their territory?
- ) Concession (Licenses)
- ) Participation Agreements
- ) Production Sharing Contracts
- ) Risk-Service Contracts
What are Concessions?
Royalty sharing agreements
- Europe and NA
- Country transfers virtually all control over petroleum to the holder
- unanticipated resources belong to the concession holder
What is a Participation Agreement?
Joint ventures between government and a private company
- Falls in between a concession and production sharing agreement
What are Production Sharing Contracts?
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
What are Risk-Service Contracts?
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
