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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.

MSA Announces Investigation into the Bidding Practices of the Balancing Pool

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On September 10, 2020

In Energy

By: Nigel Bankes

PDF Version: MSA Announces Investigation into the Bidding Practices of the Balancing Pool

Proceedings and Announcements Commented On: (1) MSA News Release, “MSA has issued a formal notice of investigation to the Balancing Pool related to offer strategies undertaken at PPA units”, September 2, 2020; and (2) AUC Decision 25809-D01-2020, Market Surveillance Administrator, Application to Make Public a Record that Identifies a Market Participant by Name, September 2, 2020

On September 2, 2020, the Market Surveillance Administrator (MSA) announced that it was initiating an investigation into the bidding practices of the Balancing Pool (BP) in relation to the remaining power purchase agreements (PPAs) for which it still has offer control. This follows an earlier MSA investigation into the BP’s bidding practices that resulted in a settlement agreement between the BP and the MSA that was ultimately approved (on the second go-around) by the Alberta Utilities Commission (AUC). For the two AUC decisions see: AUC Decision 23828-D01-2019, Market Surveillance Administrator, Application for Approval of a Settlement Agreement Between the Market Surveillance Administrator and the Balancing Pool, August 1, 2019; and AUC Decision 23828-D02-2020, Market Surveillance Administrator, Application for Approval of a Revised Settlement Agreement Between the Market Surveillance Administrator and the Balancing Pool January 14, 2020. The settlement agreement itself, from October 1, 2019, is posted here (you will need a free AUC account to access).

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Consent Provisions in Long-Term Relational Contracts

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On September 8, 2020

In Contracts, Oil & Gas

By: Nigel Bankes

PDF Version: Consent Provisions in Long-Term Relational Contracts

Case Commented On: Apache North Sea Ltd v Ineos FPS Ltd, [2020] EWHC 2081 (Comm)

The drafters of long-term relational contracts often have to deal with the uncertainties of future developments. One technique for doing so is to accord one party to the contract (A) a power to propose some development or other while affording to the other party (B) a power to withhold its consent to the development, but disciplining the consent power by stipulating that B cannot unreasonably withhold its consent. Such provisions have long been common in the landlord and tenant context but they are also common in other commercial contracts, including oil and gas contracts. For a recent Canadian example see IFP Technologies (Canada) Inc v EnCana Midstream and Marketing, 2017 ABCA 157 (CanLII) and my post on that decision here.

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Court Confirms that Offshore Board Cannot Extend a Licence Term by Issuing a Replacement Licence

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On July 14, 2020

In Administrative Law, Environmental, Oil & Gas

By: Nigel Bankes 

PDF Version: Court Confirms that Offshore Board Cannot Extend a Licence Term by Issuing a Replacement Licence

Case commented on: David Suzuki Foundation v Canada-Newfoundland and Labrador Offshore Petroleum Board, 2020 NLSC 94 (CanLII).

This decision involves the terms of the federal and provincial legislation implementing the Atlantic Accord: Canada-Newfoundland and Labrador Atlantic Accord Implementation Act, SC 1987, Ch 3 (Federal Act), and Canada-Newfoundland and Labrador Atlantic Accord Implementation Newfoundland and Labrador Act, RSNL 1990, c C-2 (Newfoundland Act) (collectively the Accord legislation). I commented on earlier proceedings in this litigation (David Suzuki Foundation v Canada-Newfoundland Offshore Petroleum Board, 2018 NLSC 146 (CanLII)) confirming the public interest standing of the applicant here. That earlier post also provides the factual background:

Corridor Resources Inc. (Corridor) received a nine year exploration licence (EL 1105) from the Canada-Newfoundland Offshore Petroleum Board (CNLOPB or Board) on January 15, 2008 under the terms of the Accord legislation. … As is customary, the EL was divided into two periods: Period I, five years and Period II, 4 years. In order to validate the licence for Period 2 Corridor had to commence the drilling of a well within the Period I and diligently drill through to completion. Corridor’s proposal to drill proved controversial and triggered a time-consuming environmental assessment procedure. In response to this Corridor applied for and was granted an extension to Period I but in the end it was not able to drill a well as required by the EL.

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Community Generation Projects in Alberta

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On June 30, 2020

In Energy

By: Nigel Bankes

PDF Version: Community Generation Projects in Alberta

Regulation and Decisions Commented On: Small Scale Generation Regulation, Alta Reg 194/2018 and five decisions of the Alberta Utilities Commission (AUC): (1) AUC Decision 24857-D01-2020, Three Nations Energy GP Inc., Fort Chipewyan Solar Generation Facility (Phase 2),  January 15, 2020; (2) AUC Decision 25236-D01-2020, Peavine Metis Settlement, 4.97-Megawatt Community Solar Power Plant, May 4, 2020; (3) AUC Decision 25459-D01-2020, Innisfail Solar Corporation, Innisfail Solar Project Time Extension and Community Generation Designation, May 21, 2020; (4) AUC Decision 24845-D04-2020, 2113260 Alberta Ltd., Community Generation Designation for Oyen Community Solar Project, June 17, 2020; and (5) AUC Decision 25471-D01-2020, 2181731 Alberta Ltd., Vulcan County Community Solar Project, June 25, 2020.

While the Kenney government declined to commit to new rounds of procurements to meet the target of 30% renewables by 2030 established by the Renewable Electricity Act, SA 2016, c R-16.5 (surprisingly, still in force), it has continued with a renewables incentive program provided for under the Small Scale Generation Regulation, Alta Reg 194/2018 (SSGR), including the concept of community generation projects designed to foster community sponsored renewables projects. This post examines the terms of that regulation as well as practice to date under the regulation.

The SSGR applies to three categories of small scale generation projects: (1) small scale projects (generally), (2) small scale community generation projects, and (3) small scale community generation projects that are located within an isolated community. The second and third categories are sub-sets of the first. None of these projects require any degree of self-supply in order to qualify as eligible projects.

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The Fair Deal Panel Report – and the British North America Act?

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On June 25, 2020

In Constitutional

By: Nigel Bankes

 PDF Version: The Fair Deal Panel Report – and the British North America Act?

Report Commented On: Fair Deal Panel, Report to Government, May 2020

The Kenney government has now released the Report of the Fair Deal Panel. It is not a good read. Many sections are poorly written and poorly reasoned. But since ABlawg is a blog on legal developments, let’s start with the title to this post and the decision of the authors to refer to Canada’s founding constitutional document as the British North America Act (BNA Act) of 1867.

While the authors concede (at 13) that the BNA Act is also known as the Constitution Act, 1867, they consistently refer to the BNA Act throughout the report. This is simply wrong, and it has been wrong since 1982 when Canada adopted the Constitution Act, 1982. That Act includes a Schedule entitled “Modernization of the Constitution” (emphasis added) which serves to rename elements of the Constitution. In particular, item 1 in the Schedule renames the BNA Act of 1867 the Constitution Act, 1867. It repeals the title to the old BNA Act.

This may seem, especially to non-lawyers, a relatively trivial point (perhaps the Panel members just made an elementary mistake, despite having two lawyers on the Panel), but perhaps there is something deeper going on. Perhaps the Panel, consciously or unconsciously, is hearkening back to the “golden” days of Empire and reaffirming the institution of the Monarchy; or perhaps the Panel is somehow questioning the legitimacy of the patriation of the Constitution and its (Pierre) Trudeau Charter? But none of that makes any sense. As the statue topplers remind us, there was nothing especially golden about the Empire, and there is one element of the 1982 constitutional package that Alberta continues to rely on heavily. That is the addition of section 92A, the resources amendment, to the Constitution Act, 1982. That amendment afforded the provinces greater powers over the regulation of oil and gas, electricity, and other natural resources.

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