Author: Nigel Bankes Page 11 of 88

Nigel Bankes is emeritus professor of law at the University of Calgary. Prior to his retirement in June 2021 Nigel held the chair in natural resources law in the Faculty of Law.

By: Nigel Bankes and Martin Olszynski

Decision Commented On: Generation Approvals Pause Regulation, OiC 172/2023, August 2, 2023

PDF Version: An Incredibly Ill-Advised and Unnecessary Decision

On August 3, 2023 the Government of Alberta announced that the Alberta Utilities Commission (AUC) will pause approvals of new renewable electricity generation projects over one megawatt until February 29, 2024. As further set out below, this “pause” is entirely unnecessary to achieve the government’s stated goals; it is also astoundingly hypocritical and undermines confidence in the stability of Alberta’s regulatory framework insofar as it singles out renewable energy projects for special treatment.

Conflict in Paradise

By Nigel Bankes

On August 3, 2023

In Land Use, Oil & Gas

By: Nigel Bankes

Decisions Commented On: (1) AUC Decision 27589-D01-2023, Nova Solar G.P. Inc. and AltaLink Management Ltd., Nova Solar Power Plant and Transmission Connection, July 19, 2023; and (2) AUC letter decision on standing, October 31, 2022 (AUC’s Standing Ruling).

PDF Version: Conflict in Paradise

New and different resource uses may give rise to conflict or competition, and many have been discussed on ABlawg’s pages. Examples include:

(1) competition between natural gas storage operations and conventional oil and gas operation, (see for example Bankes, “Kallisto #2. Competing Uses of Geological Space: Resolving Conflicts Between Oil Production and Natural Gas Storage Interests”);

(2) competition for underground disposal capacity, (see, for example Bankes, “Sharing Geological Pore Space Disposal Capacity” as well as a complex and ongoing regulatory matter involving CNRL and Greenfire Resources before the Alberta Energy Regulator); and

(3) competition between proposed carbon capture and storage operations and a variety of conventional and non-conventional resource activities, (see for example, Ettinger et al, “Alberta’s Carbon Capture & Storage Land Grab And The Potential For Conflicts Of Subsurface Rights”).

Commissioner Trussler Should Recommend Sanctions Against Premier Smith

By Nigel Bankes

On June 30, 2023

In Ethics and the Legal Profession

By: Nigel Bankes and Jennifer Koshan

Matter Commented On: Conflicts of Interest Act, RSA 2000, c C-23 and the Report on Allegations involving Premier Danielle Smith

PDF Version: Commissioner Trussler Should Recommend Sanctions Against Premier Smith

In her report of May 17, 2023, Ethics Commissioner Marguerite Trussler concluded that Premier Danielle Smith had violated section 3 of the Conflicts of Interest Act, RSA 2000, c C-23, when she contacted the Minister of Justice and Attorney General within hours of taking a call from Artur Pawlowski, where she discussed the criminal charges he was facing. However, the Commissioner went on to note that at that point she was making no recommendations “with respect to sanctions against the Premier for consideration of the Legislative Assembly of Alberta” but that she reserved “the right to make recommendations once the Legislative Assembly is back in session” (at 16). Commissioner Trussler also made two additional recommendations. The first was that “[a]ll new Members of the Legislative Assembly of Alberta attend mandatory training upon election about the structure of Canadian government and the roles of the three branches of government” (at 16). The second was that the Legislative Assembly “consider whether to amend the Conflicts of Interest Act to provide for a stay on any ongoing investigation from the time that the writ drops for an election until the election results are certified” (at 16).

Ethics Commissioner Confirms that Premier Danielle Smith Breached the Conflicts of Interest Act – and a Fundamental Principle of Our Democracy

By Nigel Bankes

On May 24, 2023

In Constitutional, Ethics and the Legal Profession, Legal Education

By: Nigel Bankes, Jennifer Koshan, and Martin Olszynski

Matter commented on: Office of the Ethics Commissioner, Report of Findings and Recommendations into allegations involving Hon. Danielle Smith, Member for Brooks-Medicine Hat, Premier of Alberta, May 17, 2023

PDF Version: Ethics Commissioner Confirms that Premier Danielle Smith Breached the Conflicts of Interest Act – and a Fundamental Principle of Our Democracy

In early January of this year, Premier Danielle Smith participated in a lengthy telephone conversation with Pastor Artur Pawlowski, who was at that time facing criminal charges and charges under the provincial Critical Infrastructure Defence Act, SA 2020, c C-32.7 in relation to the Coutts blockade. Artur Pawlowski recorded a video of that call that subsequently became available to the public. That recording triggered complaints to the Ethics Commissioner under the Conflicts of Interest Act, RSA 2000, c C-23 (COIA) by a private citizen and by Irfan Sabir, MLA for Calgary-Bhullar-McCall and NDP Justice Critic.

First Arbitration Award under the Nunavut Agreement

By Nigel Bankes

On May 11, 2023

In Aboriginal, Arbitration, Indigenous

By: Nigel Bankes

Matter commented on: Arbitration Award in The Inuit of Nunavut as represented by Nunavut Tunngavik Incorporated v His Majesty the King in Right of Canada as represented by the Minister of Crown-Indigenous Relations and The Commissioner of Nunavut as represented by the Government of Nunavut, and the Government of Nunavut as represented by the Premier of Nunavut, and the Government of Nunavut, Initial Decision, March 25, 2023.

PDF Version: First Arbitration Award under the Nunavut Agreement

This is the first Arbitration Award under the revised dispute resolution provisions of the Nunavut Agreement (1993). The Nunavut Agreement is the constitutionally protected land claims agreement between the Inuit of Nunavut and the Governments of Canada (GoC) and Nunavut (GN). In this Award, the Honourable Constance Hunt, acting as the sole arbitrator, has issued a series of declarations concluding that Inuit Employment Plans (IEPs) prepared by each of the GN and GoC fell short of the obligations of government under the terms of Article 23 of the Nunavut Agreement (NA). Article 23 of the NA is entitled “Inuit Employment within Government”.