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.

Reasons, Respect and Reconciliation

By: Nigel Bankes

PDF Version: Reasons, Respect and Reconciliation

Case Commented On: Kainaiwa/Blood Tribe v Alberta (Energy), 2017 ABQB 107 (CanLII)

Reconciliation between Canada’s settler society and First Nations and other indigenous communities certainly requires mutual respect but it should also require reasons in appropriate cases according to Justice Paul Jeffrey, at least where the Crown dismisses an application for the exercise of a statutory discretion which is closely linked to efforts to right an historic grievance. This is an important decision which should be required reading for every Minister of the Crown with a responsibility for the relationship between Her Majesty and Canada’s first peoples, and for all senior civil servants responsible for advising those Ministers. Continue reading →

Independent Operations, Holdings and Common Ownership: A Letter Decision of the Alberta Energy Regulator

By: Nigel Bankes and Heather Lilles

PDF Version: Independent Operations, Holdings and Common Ownership: A Letter Decision of the Alberta Energy Regulator

Decision Commented On: AER, Request for Regulatory Appeal by Westbrick Energy Ltd., Regulatory Appeal No. 1852713, 25 May 2016

Last week, ABlawg announced a new three-step project which will present the Alberta Energy Regulator’s (AER’s) published procedural and participatory letter decisions in a more usable and accessible form. As noted in that post, step one of the project, which collates the summaries of these decisions in a searchable PDF document, is now complete.

The objective of this post is to provide an example of the potentially valuable nuggets of information discoverable in this large group of decisions. The post concerns a letter decision which, while ostensibly dealing with procedural matters, also contains discussions of holdings, common ownership and independent operations within the meaning of the 1990 CAPL Operating Procedure. As such, the decision confirms the importance of publishing these decisions insofar as joint operating agreements (JOAs) are common in the industry as is the practice “going penalty”. But the decision also illustrates some confusion between the threshold question of standing and the decision on the merits. In this case it appears to us that the AER panel actually decided the merits of Westbrick’s application and then somewhat perversely denied it standing. Continue reading →

The Relationship Between Declarations Under the Optional Clause of the Statute of the International Court of Justice and Part XV of the Law of the Sea Convention

By: Nigel Bankes

PDF Version: The Relationship Between Declarations Under the Optional Clause of the Statute of the International Court of Justice and Part XV of the Law of the Sea Convention

Case Commented On: Maritime Delimitation in the Indian Ocean (Somalia v Kenya), Preliminary Objections, Judgment, 2 February 2017

Somalia instituted proceedings against Kenya in the International Court of Justice (ICJ or the Court) in August 2014 concerning a dispute in relation to “the establishment of the single maritime boundary between Somalia and Kenya in the Indian Ocean delimiting the territorial sea, exclusive economic zone . . . and continental shelf, including the continental shelf beyond 200 nautical miles” (Somalia’s Application). In so doing Somalia relied upon Optional Declarations made by both states pursuant to Article 36(2) of the Statute of the Court. Kenya raised a preliminary objection as to the jurisdiction of the Court and also argued that the Court should treat Somalia’s application as inadmissible. On 2 February 2017, the Court released its judgment in respect of these preliminary objections.

This post explains the basis of Kenya’s arguments in respect of the jurisdiction of the Court and the admissibility of Somalia’s claim. It reviews the Court’s Judgment and dissenting opinions and declarations and offers some concluding remarks focussing on the relationship between declarations under the optional clause of the Statute of the International Court of Justice and Part XV of the Law of the Sea Convention (LOSC). Continue reading →

Announcing a New Resource for the Letter Decisions of the Alberta Energy Regulator

By: Nigel Bankes, Amy Matychuk, and David Rennie

PDF Version: Announcing a New Resource for the Letter Decisions of the Alberta Energy Regulator

Decisions Commented On: The Participatory/Procedural Decisions of the AER

Several years ago now, ABlawg published a series of posts that were critical of the failure of the Alberta Energy Regulator (AER) and its predecessor the Energy Resources Conservation Board to publish its letter decisions in a systematic way: see here, here and here. Whether in response to that criticism, or for its own good reasons, the AER began posting what it refers to as participatory/procedural decisions (presumably a sub-set of a broader category of letter decisions) in the fall of 2015. When this venture began, the decisions were simply listed with no attached descriptor whatsoever. Now the AER does provide a brief description of the matter at hand but it is still a laborious task to click and retrieve each document and assess its significance.

Having asked the AER to provide this information it accordingly seemed appropriate to try and present it in a more usable and accessible form. Hence this project. The project has three steps. Step one is to provide a digest of each decision. Given the number of these decisions (already over 170) we have not attempted to synthesise or précis these decisions, rather the exercise has been more of a cut-and-paste job hewing closely to the AER’s actual text. We have added key words which are listed below. There is no additional commentary. The result of that exercise has been collated into a PDF document which is available here and is fully searchable. Step two will be to present this information as a set of web-pages. That is a work in progress. Step three will be to write what we anticipate will become a short annual survey of these decisions, assessing trends and perhaps highlighting some of the more important decisions. That too is a work in progress. It goes without saying that while step one is complete until the end of January 2017 we also aim to populate it with new decisions from time to time.

David Rennie (JD 2017) began this work as a summer student in 2016 preparing digests of the first 85 decisions and Amy Matychuk (JD 2018), also a summer student in 2016, continued the work for the latter part of the summer and through the fall. Nigel Bankes provided direction and supervision.

We hope that readers of ABlawg and other researchers will find this tool useful and we welcome your feedback, either by way of a comment on this post or to ndbankes@ucalgary.ca Continue reading →

The Efficiency Plank in Alberta’s Climate Leadership Plan

By: Nigel Bankes

PDF Version: The Efficiency Plank in Alberta’s Climate Leadership Plan

Report Commented On: Getting it Right: A More Energy Efficient Alberta, Final Report of the Alberta Energy Efficiency Advisory Panel, released 23 January 2017 and related press release

As reported in previous posts, Alberta’s Climate Leadership Plan (CLP) released in November 2015 following receipt of the Leach Report has four key planks: (1) phasing out emissions from coal-generated electricity and developing more renewable energy, (2) implementing a new carbon price on greenhouse gas emissions, (3) a legislated oil sands emission limit, and (4) employing a new methane emission reduction plan.

The government introduced legislation to implement an economy-wide carbon price in June 2016 (the Climate Leadership Implementation Act) with the results of that in the form of the carbon levy coming into force on January 1 of this year (2017). The fall session of the legislature (2016) saw the introduction and passage of Bill 25, The Oil Sands Emission Limit Act to implement the third objective, a legislated oil sands emission limit (I commented on Bill 25 here) and followed this up with Bill 27, the Renewable Electricity Act to implement the second half of the first plank – developing more renewable energy. I commented on Bill 27 here. Then there were subsequent developments with respect to transforming Alberta’s “energy only” market which I commented on here. This last post also commented on the first half of the first plank of the CLP, i.e. the agreement between the province and the owners on the phase-out of coal generating facilities and the level of compensation payable.

As part of the plan to replace coal generation the province has also been looking at energy efficiency policies and micro or distributed generation. Although energy efficiency measures do not result in more generation they do suppress load and avoid (or at least postpone) the need to build or run new generation. While energy efficiency has a lower public profile than new generation, most commentators suggest that energy efficiency and demand side management policies are usually among the most cost effective measures for meeting load and for reducing greenhouse gas emissions – especially where the current energy mix, as in Alberta, is carbon intensive. Continue reading →