Author Archives: Nigel Bankes

About Nigel Bankes

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.

The Milk and St. Mary Apportionment: A Next Step?

By: Nigel Bankes

Matter commented on: International St Mary-Milk Rivers Study Board, Work Plan for the International St Mary-Milk Rivers Study, June 2022, released  July 28, 2022

PDF Version: The Milk and St. Mary Apportionment: A Next Step?

This post examines the most recent development in efforts to improve the ability of both Canada and the United States to access its water entitlement to each of the Milk and St. Mary Rivers under the terms of an apportionment order made by the International Joint Commission (IJC) under the Boundary Waters Treaty more than a century ago. Continue reading →

Novel Form of Agreement to Reserve Surface Rights Payments

By: Nigel Bankes

Case commented on: Schnell v Stene (Heidinger Estate), 2022 SKQB 146 (CanLII)

PDF version: Novel Form of Agreement to Reserve Surface Rights Payments

It is not uncommon for a vendor of agricultural lands in western Canada to seek to ensure that the vendor will continue to receive the benefit of surface rights payments payable under the terms of surface rights leases or right of entry orders. Perhaps the most common technique to achieve this result is by way of an agreement to assign rents. This will be effective so long as one is confident that such an agreement creates an interest in land that can be protected by way of caveat. In some jurisdictions legislation deems such an agreement to give rise to an interest in land, (see, for example, Law of Property Act, RSA 2000, c L-7 at s 63(1)(b)) whereas in other jurisdictions the point may be more debatable: (e.g. Alberta  prior to the 1985 amendment to the Law of Property Act: see Webster v Brown, 2004 ABQB 321 (CanLII) and Canadian Crude Separators Inc. v Mychaluk, 1997 CanLII 14841 (AB QB), [1998] 1 WWR 545. Continue reading →

The Rhetoric of Property and Immunity in the Majority Opinion in the Impact Assessment Reference

By: Nigel Bankes & Andrew Leach

Opinion Commented On: Reference re Impact Assessment Act, 2022 ABCA 165 (CanLII).

PDF Version: The Rhetoric of Property and Immunity in the Majority Opinion in the Impact Assessment Reference

The Alberta Court of Appeal recently released its opinion in Reference re Impact Assessment Act, 2022 ABCA 165 (CanLII). A majority of the Court found the Impact Assessment Act, SC 2019, c. 28, s 1 [IAA] to be unconstitutional. Our colleague Martin Olszynski has already summarized the majority’s approach and some of the doctrinal difficulties therein.

In this post, we consider in more detail the majority’s lengthy discussion of the historical evolution of the resource rights of the prairie provinces from the creation of Alberta and Saskatchewan as provinces in 1905, through to the Natural Resources Transfer Agreements (NRTAs) of 1930, culminating with the adoption of s 92A (the Resources Amendment) in 1982. Continue reading →

If A Land Claims Agreement Says That You Must Resolve The Dispute Through Arbitration, Then That’s What You Must Do

By: Nigel Bankes

PDF Version: If A Land Claims Agreement Says That You Must Resolve The Dispute Through Arbitration, Then That’s What You Must Do

Case Commented On: Newfoundland and Labrador v Nunatsiavut Government, 2022 NLCA 19 (CanLII)

If a land claims agreement says that you must resolve the dispute through arbitration, then that’s what you must do. That’s the blunt (and perhaps obvious) conclusion of the Newfoundland and Labrador Court of Appeal in this decision involving the terms of the Labrador Inuit Land Claims Agreement (Agreement). 

There could be little doubt that the Agreement did in fact stipulate that a dispute of this nature (a dispute relating to the determination and sharing of revenues from the Voisey’s Bay project) must be referred to arbitration (see the combined effect of ss 7.6.9 and 21.9.1of the Agreement, as discussed at paras 34 -52). But in this case, the Nunatsiavut government had submitted the dispute to the provincial superior court, and the provincial government had failed to take any objection to that course of action; until it lost at trial (Nunatsiavut Government v Newfoundland and Labrador, 2020 NLSC 129 (CanLII))and the matter went on appeal to the Court of Appeal. Continue reading →

The Sad State of Regional Land Use Planning in Alberta

By: Nigel Bankes, Sharon Mascher & Martin Olszynski

PDF Version: The Sad State of Regional Land Use Planning in Alberta

Matters Commented On: (1) Coal Policy Committee, Final Report: Recommendations for the Management of Coal Resources in Alberta, December 2021, released to the public March 4, 2022, (2) Minister Sonya Savage, Press Release,  Getting it Right on Coal in Alberta, March 4, 2022, (3) Lower Athabasca Regional Plan, and (4) South Saskatchewan Regional Plan

The release of the Coal Policy Committee Recommendations on March 4, 2022, offers three reminders as to the sad state of regional land use planning in Alberta. The first reminder is that 14 years after the adoption of the much-heralded Land Use Framework in 2008, and 13 years after the adoption of the Alberta Land Stewardship Act, SA 2009, c A-26.8 (ALSA), we still have only two approved plans in Alberta, the Lower Athabasca Regional Plan (LARP) (approved August 22, 2012, and brought into force September 1, 2012) and the South Saskatchewan Regional Plan (SSRP) (adopted in 2014). This was significant to the Coal Policy Committee because it meant that while plans adopted under ALSA might ultimately supersede the “nascent form of land-use planning” (at 22) embodied in the “coal categories” of the 1976 Coal Policy, we are still awaiting plans for the balance of the eastern slopes of the Rockies north of the SSRP, namely for the North Saskatchewan, the Upper Athabasca and the Upper Peace regions (see Figure 1, below). Continue reading →