Author: Nigel Bankes Page 2 of 87

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.

Case Commented On: Signalta Resources Limited v Canadian Natural Resources Limited, 2025 ABCA 306 (CanLII) and Signalta Resources Limited v Canadian Natural Resources Limited, 2023 ABKB 108 (CanLII).

PDF Version: Unlawful Production and Restitutionary Damages

There are two principal substantive issues in this important unanimous decision of the Alberta Court of Appeal (referred to as ABCA decision). The first issue relates to the rules pertaining to the right of a Crown oil sands lessee (Canadian Natural Resources Limited (CNRL)) to produce gas cap (or non-solution) gas in the course of producing oil sands (or bitumen) when the Crown has leased the natural gas rights in the same location (and indeed the same formation) to another party (Signalta). The second substantive issue relates to the legal consequences of the unlawful production of somebody else’s natural gas, specifically the assessment of damages for such unlawful production.

The Government of Alberta’s Commitment to Protect Alberta’s Water from Selenium Pollution

By Nigel Bankes

On October 1, 2025

In Energy, Environmental, Natural Resources, Responsible Energy Development Act

By: Nigel Bankes, David Luff, and Neil Kathol

Matters Commented On: (1) Press Conference on the Coal Industry Modernization Initiative, December 20, 2024, (2) Bringing Alberta Coal Mining into the 21st Century, and (3) Your Province, Your Premier, January 25, 2025.

PDF Version: The Government of Alberta’s Commitment to Protect Alberta’s Water from Selenium Pollution

Over the course of the past ten months the Government of Alberta, through statements made by Premier Smith and Ministers Jean and Schulz, has committed to ensure that, going forward, the end of pipe discharge standard for selenium for all coal mines in the province will be 0 micrograms per litre (the zero-discharge standard) i.e., no new mines may operate or obtain permits to operate if there is any chance they could discharge any amount of additional selenium into surface or groundwater, or by windblown particulates.

CEO of the Alberta Energy Regulator Denies Public Hearing Rights on a Coal Application

By Nigel Bankes

On September 15, 2025

In Administrative Law, Environmental, Natural Resources

By: Nigel Bankes and Shaun Fluker

Decisions Commented On: AER Panel Decision (July 23, 2025 – Proceeding 449) and AER Reconsideration Decision (August 21, 2015)

PDF Version: CEO of the Alberta Energy Regulator Denies Public Hearing Rights on a Coal Application

This post comments on a recent interlocutory proceeding at the Alberta Energy Regulator (AER or Regulator) concerning a motion by Summit Coal Inc. (Summit) to cancel a scheduled public hearing on its coal mine project application. The basis for the motion was that all the directly and adversely affected persons who initially opposed the application, had subsequently withdrawn their opposition. Accordingly, Summit submitted there was no longer a need for a public hearing to consider the application. The AER panel assigned to the hearing dismissed Summit’s motion on July 23, ruling that the hearing should proceed because two ENGOs with full participation status in the hearing remain opposed to the application. On August 21 the AER’s Chief Executive Officer (CEO) Rob Morgan issued a reconsideration decision that reversed the panel’s ruling and cancelled the public hearing. Two novel questions of law under the Responsible Energy Development Act, SA 2012, c R-17.3 (REDA) arise from these decisions: (1) as a matter of law does the CEO have the authority to vary or reverse a decision of a panel of a hearing commissioners seized with an application to the AER and (2) what is the legal significance of being “directly and adversely affected” for the purposes of a hearing on an application before the AER.

When Is An Interest In Land A Legal (As Opposed To An Equitable) Interest?

By Nigel Bankes

On August 1, 2025

In Natural Resources, Property

By: Nigel Bankes

Case Commented On: PrairieSky Roy2alty Ltd v Yangarra Resources Ltd, 2025 ABCA 240 (CanLII)

PDF Version: When Is An Interest In Land A Legal (As Opposed To An Equitable) Interest?

The principal issue in this case by the time the matter reached the Court of Appeal was the question of whether a gross overriding royalty (GORR) carved out of an Alberta Crown petroleum and natural gas (png) lease was a legal or an equitable interest in land. Justice Michel Bourque at trial (2023 ABQB 11) concluded that the GORR in question was an interest in land (applying Bank of Montreal v Dynex Petroleum Ltd, 2002 SCC 7 aff’g 1999 ABCA 363). Furthermore, Justic Bourque went on to conclude that the GORR was a legal interest in land. The GORR was therefore binding on Yangarra as the successor in interest to the Crown png lease, even though Yangarra had no notice of PrairieSky’s GORR. As a result, Justice Bourque did not need to consider Yangarra’s alternative argument to the effect that if the GORR were only an equitable interest in land Yangarra was entitled to be treated as equity’s darling (i.e. the bona fide purchaser of the legal estate without notice (actual or constructive) of the prior outstanding equitable interest (i.e. the GORR)). The Crown png lease originally granted in 1979 was held by a number of parties in succession over the years until 2011, when Home Quarter Resources (HQR) granted the GORR to Range Royalty (the HQ GORR or the 2011 GORR). The lessee’s interest subsequently became vested in Yangarra, while Range Royalty’s interest became vested in PrairieSky. I commented extensively on the trial judgment here and I refer the reader to that comment for a more detailed summary of the facts.

Who’s Afraid of the Proposed First Nations Clean Water Act?

By Nigel Bankes

On July 17, 2025

In Aboriginal, Environmental, Indigenous, Natural Resources, Water Law

By: Nigel Bankes and Martin Olszynski

Matter Commented On: Bill C-61, An Act respecting water, source water, drinking water, wastewater and related infrastructure on First Nation lands, First Session, Forty-fourth Parliament, 70-71 Elizabeth II – 1-2-3 Charles III, 2021-2022-2023-2024

PDF Version: Who’s Afraid of the Proposed First Nations Clean Water Act?

On June 30, Alberta’s Minister of Environment and Protected Areas and Ontario’s Minister of Environment Conservation and Parks penned a remarkable letter to their federal counterpart, Ms. Julie Dabrusin, Minister of Environment and Climate Change (for Alberta’s Press Release see here). The joint letter asserted that “Canada is poised to be an economic superpower, but achieving that potential depends on strong, constitutionally grounded provincial authority over resource development and environmental management.” With that as the premise, the two Ministers went on to indicate that they had a number of “urgent requests” that they would like to discuss “immediately” with their federal counterpart, namely:

Repealing the Impact Assessment Act and the Physical Activities Regulations.
Repealing the Clean Electricity Regulations.
Repealing the Greenhouse Gas Pollution Pricing Act and associated regulations.
Amending the Species at Risk Act to respect the constitutional jurisdiction of the
Suspending the proposed Oil and Gas Sector Greenhouse Gas Emissions Cap Regulation.
Undertaking to refrain from reintroducing Bill C-61: An Act respecting water, source water, drinking water, wastewater, and related infrastructure on First Nation lands.