Author: Nigel Bankes Page 40 of 89

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.

Details of Alberta’s First Renewable Program Competition Announced: A Comment on the Dispute Resolution Procedure and Change of Law Provisions

By Nigel Bankes

On April 11, 2017

In Energy

By: Nigel Bankes

PDF Version: Details of Alberta’s First Renewable Program Competition Announced: A Comment on the Dispute Resolution Procedure and Change of Law Provisions

Documents commented on: (1) AESO, Request for Expressions of Interest for the first renewable electricity program procurement (REP Round 1), posted March 31, 2017, and (2) AESO, Key Provisions of the Renewable Electricity Support Agreement, March 31, 2017

The Government of Alberta released the framework for its plans to support the development of renewable energy projects in Alberta in November 2016 and provided the implementing authority for that program with the introduction and recent entry into force (March 31, 2017) of the Renewable Electricity Act, SA 2016, c R–16.5 (REA). The program adopted was based on a design proposed by the Alberta Electric System Operator (AESO) and the AESO has been charged with its implementation. For discussion of the AESO’s proposals and REA see my earlier post here.

This post briefly references the first Request for Expressions of Interest (REOI) and then discusses the dispute resolution provision of the Key Provisions of the Renewable Electricity Support Agreement (RESA).

The End of Economic Withholding in Alberta’s Electricity Market?

By Nigel Bankes

On March 30, 2017

In Energy

By: Nigel Bankes

PDF Version: The End of Economic Withholding in Alberta’s Electricity Market?

Matter Commented On: Market Surveillance Administrator, Notice to Participants and Stakeholders Re: Consultation re Revocation of Offer Behaviour Enforcement Guidelines, March 17, 2017

On March 17, 2017 Alberta’s Market Surveillance Administrator (MSA) issued a Notice to market participants in Alberta’s electricity market triggering a consultation with respect to the possible revocation of an important set of guidelines known as the Offer Behaviour Enforcement Guidelines (the OBEG Guidelines). These Guidelines provide guidance to market participants as to, inter alia, how they offer generation into Alberta’s wholesale power market (the power pool) with a view to ensuring a fair, efficient and openly competitive market (the FEOC principle). The OBEG Guidelines do not currently prohibit economic withholding. This Notice indicates that the MSA is reconsidering its position on this in light of a number of developments including the competition jurisprudence of the Alberta Utilities Commission (AUC) and proposals to supplement Alberta’s energy-only market with a capacity market. For an earlier post on the capacity market proposals see here.

Reasons, Respect and Reconciliation

By Nigel Bankes

On March 3, 2017

In Aboriginal, Administrative Law, Property

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.

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

By Nigel Bankes

On February 21, 2017

In Energy, Oil & Gas

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.

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

On February 13, 2017

In International Law, Law of the Sea

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).