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 Duty of a Regulated Pipeline to Provide Facilities

By: Nigel Bankes

PDF Version: The Duty of a Regulated Pipeline to Provide Facilities

Case Commented On: National Energy Board, Letter Decision, 4 December 2018, Nipigon LNG Corporation (NLNG) Application pursuant to Section 12, Section 13, Section 59, Subsection 71(2), Subsection 71(3) and Part IV of the National Energy Board Act (NEB Act) in respect of TransCanada PipeLines Limited (TransCanada) and the TransCanada Mainline pipeline system (the TransCanada Mainline).

Public utility statutes typically require a public utility to provide service on a non-discriminatory basis to persons within its exclusive franchise area. This is also the common law duty of a common carrier. But what if a regulated utility does not have a franchise area (e.g. TransCanada PipeLines, see for example the comments of the National Energy Board in its TCPL Restructuring Decision RH-003-2011, at 38); and what if the utility is not a common carrier (e.g. a federally regulated natural gas pipeline)?

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Severing a joint tenancy in Alberta

By: Nigel Bankes

PDF Version: Severing a joint tenancy in Alberta

Case Commented On: Dobransky v Roteliuk, 2018 ABQB 660 and Smilley v McMillan, 2018 ABQB 988.

Co-owners in Alberta may choose to hold an estate in land as joint tenants or as tenants in common: Law of Property Act, RSA 2000, c L-7, sections 4 and 5 (LPA). A joint tenancy carries with it the incident of survivorship – that is, the right of the surviving joint tenant to the entire estate. Despite the fact that there is a presumption in favour of a tenancy in common and that therefore co-owners must indicate expressly that they wish to own as joint tenants and not as tenants in common (LPA, section 8), there is general agreement (and this was certainly the position of courts of equity) that it should be easy to destroy or sever the joint tenancy thereby avoiding the incident of survivorship. This post sets out the law of severance and then comments on two recent decisions in each of which the plaintiff sought to get the Court’s assistance to complete a severance.

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Saskatchewan Land Titles Decision Calls Out for Appellate Review

By: Nigel Bankes and Jonnette Watson Hamilton

PDF Version: Saskatchewan Land Titles Decision Calls Out for Appellate Review

Case Commented On: Registrar of Titles and Great West Life Assurance Company and Primrose Drilling Ventures Ltd, 2018 SKQB 290.

This decision deals with the power of the registrar to correct an error made back in the chain of title, the effect of a registrar’s caveat, and the status of a purchaser where a title is encumbered by a registrar’s caveat. Unfortunately, Justice Kovach has, in our view, reached incorrect conclusions on each of these issues. We hope that the Saskatchewan Court of Appeal has the opportunity to correct these errors.

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Implementing UNDRIP: some reflections on Bill C-262

By: Nigel Bankes

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Bill Commented On: Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples

This post comments on Bill C-262 adopted by the House of Commons on May 30, 2018. The Bill is currently in the Senate awaiting debate in a very packed fall sitting. The post is based on a presentation that I made to the Conference on Indigenous Solutions to Environmental Problems held at the Banff Centre, Banff Alberta, November 9 – 12th 2018 on the Treaty 7 territory of the Stoney Nakoda First Nation.

Part I offers some preliminary comments on the United Nations Declaration on the Rights of Indigenous Peoples (Declaration or UNDRIP). Part II describes Canada’s bumpy road to the endorsement of the Declaration. Part III examines the subject of latest step in that endorsement, namely the government’s support of MP Romeo Saganash’s private member’s bill, Bill C-262.

My main conclusion is that the Bill strikes a judicious balance between affording the Declaration some immediate “application” in the laws of Canada, and the creation of a process that will, over time, give greater effect to the Declaration within the Canadian legal system and in doing so slowly decolonize Canadian law and the Canadian legal mind. My perception of the balanced nature of the Bill means that I do not share the views expressed by some (see, for example, Dwight Newman and Ken Coates here) to the effect that the Bill is overly simplistic and will shift a lot more power to the courts.

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Food for thought: Judgment of the European Court of Justice on Capacity Market Issues

By: Nigel Bankes

PDF Version: Food for thought: Judgment of the European Court of Justice on Capacity Market Issues

Case Commented On: Tempus Energy Ltd v European Commission, Judgment of the General Court (Third Chamber, Extended Composition), 15 November 2018, Case T-793/14.

Those engaged in the challenging job of designing a capacity market for Alberta’s electricity sector might be interested in this recent judgment of the European Court of Justice in which the Court concluded that the European Commission (EC) had been too hasty in approving the design of the UK’s proposed capacity market. The case arises in the particular context of the primary law of the European Union (EU), the Treaty on the Functioning of the European Union and specifically that treaty’s provisions on “State aid” – better known to the rest of the world as unlawful state subsidies. The UK’s proposed capacity market had to be notified to the EC for its approval because a capacity market, despite the “market” label, represents a departure from a “purer” version of an electricity market (an energy only market). A capacity market involves a degree of central planning (estimating the required capacity) and then “out of market” payments to those who post winning bids to provide that capacity. See my earlier post on Alberta’s capacity market legislation here. Continue reading →