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.

Landowners Can’t Use the Surface Rights Board to Mount a Collateral Attack on the Approval of a Transmission Line

By: Nigel Bankes

PDF Version: Landowners Can’t Use the Surface Rights Board to Mount a Collateral Attack on the Approval of a Transmission Line

Case Commented On: Togstad v Alberta (Surface Rights Board), 2015 ABCA 192

In a completely predictable decision the Court of Appeal has applied the doctrine of collateral attack to dismiss the efforts of landowners to have a second kick at the can by seeking to question the constitutional basis for provincial regulation of a proposed transmission line before the Surface Rights Board.

This case, in fact, two cases, Togstad on appeal from 2014 ABQB 485 and an appeal from Kure v Alberta (Surface Rights Board) 2014 ABQB 572, involves the longstanding efforts of the provincial government to strengthen the transmission grid in the province through the construction of two new major transmission lines known as WATL and EATL – Western Alberta Transmission Line and the Eastern Alberta Transmission Line. These projects have been, to say the least, controversial. Along the way the Energy and Utilities Board bumped into its spy scandal and was subsequently dissolved; the province introduced the so-called critical infrastructure legislation to definitively and authoritatively resolve the question of “need” (SA 2009, c.44); and there was litigation, lots of it, on everything from allegations of bias (Lavesta Area Group v Alberta (Energy and Utilities Board), 2011 ABCA 108) to valiant efforts to argue that the Alberta Utilities Commission (AUC) still had to establish need as part of its assessment of public interest and notwithstanding the critical infrastructure legislation: Shaw v Alberta (Utilities Commission), 2012 ABCA 378, albeit involving the Heartland project rather than WATL or EATL. And then, in the hearings on the merits in WATL, the AUC carefully examined (and dismissed, AUC Decision 2012-327) landowner arguments to the effect that the lines were interprovincial undertakings that should be subject to federal regulation.

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Aboriginal Title Claim Against a Private Party Allowed to Continue

By: Nigel Bankes    

PDF Version: Aboriginal Title Claim Against a Private Party Allowed to Continue

Case Commented On: Ominayak v Penn West Petroleum Ltd, 2015 ABQB 342

Some forty or so years ago the Lubicon Lake Band and Chief Bernard Ominayak commenced an action for aboriginal title, and, in the alternative, a treaty reserve entitlement claim. Chief Ominayak also brought a petition before the United Nations Human Rights Committee (HRC) under the Optional Protocol of the International Covenant on Civil and Political Rights alleging a breach by Canada of Article 27 of that Covenant dealing with the cultural rights of minorities.

In the end, at least so far as I know, the title and treaty entitlement claim died after the Band failed in its attempts to obtain an interlocutory injunction: see Lubicon Indian Band v Norcen Energy Resources Ltd, [1985] 3 WWR 196 (Alta CA) – a matter I commented on very early in my academic career here. Chief Ominayak did however succeed, if that is the right word, in his petition before the HRC on the grounds that the degree and intensity of resource extraction occurring in the traditional territory of the Lubicon Cree was so extensive as to deprive the Lubicon of access to the material aspects of their culture. In another sense however, the petition was a failure since Ominayak’s concerns have never been adequately dealt with. It is true that Alberta has settled a treaty entitlement claim with at least some of the Lubicon Cree, but there remains an outstanding question (to which this litigation attests at para 5) as to whether or not the Lubicon Cree with whom Alberta negotiated were properly mandated to agree to the settlement.

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ITLOS Special Chamber Prescribes Provisional Measures with Respect to Oil and Gas Activities in Disputed Area in Case Involving Ghana and Côte d’Ivoire

By: Nigel Bankes

PDF Version: ITLOS Special Chamber Prescribes Provisional Measures with Respect to Oil and Gas Activities in Disputed Area in Case Involving Ghana and Côte d’Ivoire

Decision Commented On: International Tribunal on the Law of the Sea (ITLOS), Special Chamber, Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean, Order with respect to the prescription of provisional measures, April 25, 2015, ITLOS Case No. 23

By way of a Special Agreement concluded on 3 December 2014, Ghana and Côte d’Ivoire submitted a dispute concerning their maritime boundary to a Special Chamber (SC) of ITLOS. The SC was fully constituted on 12 January 2015 and on 27 February 2015 Côte d’Ivoire made a request for the prescription of provisional measures under Article 290(1) of the Convention on the Law of the Sea (LOSC) requiring Ghana to:

  1. take all steps to suspend all ongoing oil exploration and exploitation operations in the disputed area;
  2. refrain from granting any new permit for oil exploration and exploitation in the disputed area;
  3. take all steps necessary to prevent information resulting from past, ongoing or future exploration activities conducted by Ghana, or with its authorization, in the disputed area from being used in any way whatsoever to the detriment of Côte d’Ivoire;
  4. and, generally, take all necessary steps to preserve the continental shelf, its superjacent waters and its subsoil; and
  5. desist and refrain from any unilateral action entailing a risk of prejudice to the rights of Côte d’Ivoire and any unilateral action that might lead to aggravating the dispute.

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Summary Judgment on Contested Amounts Owing under Natural Gas Processing and Related Agreements

By: Nigel Bankes

PDF Version: Summary Judgment on Contested Amounts Owing under Natural Gas Processing and Related Agreements

Case Commented On: SemCAMS ULC v Blaze Energy Ltd, 2015 ABQB 218

This is an important judgment on the interplay between the rules for the interpretation of contracts and the post Hryniak law on summary judgment: see Hryniak v Mauldin, 2014 SCC 7. The short version of the holding is that a producer cannot avoid summary judgment for outstanding amounts owing under a natural gas processing or related agreement on the basis that the producer has called for an audit of the operator’s accounts or otherwise disputes the amounts owing – at least where the agreements in question clearly oblige producers to settle invoices promptly, notwithstanding the existence of a dispute as to whether the invoices properly reflect the amounts owing.

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Crown Oil Sands Dispositions and the Duty to Consult

By: Nigel Bankes

PDF Version: Crown Oil Sands Dispositions and the Duty to Consult

Case Commented On: Buffalo River Dene Nation v Ministry of Energy and Resources and Scott Land and Lease Ltd, 2015 SKCA 31

The Saskatchewan Court of Appeal has confirmed Justice Currie’s decision (discussed here) to the effect that the grant of an oil sands exploration permit in Saskatchewan does not trigger the Crown’s duty to consult principally on the grounds that that there is no potential for conflict between the rights conferred by the permit and the First Nation’s treaty rights. This is because the permit alone gives the permittee no right to use the surface while the First Nation (at para 88) “does not advance here a treaty right or Aboriginal claim to subsurface rights or rights exercisable in relation to the subsurface of Treaty 10 lands.” Furthermore, at the time that the permit is granted there is no project on which to consult about; this will only become apparent when the permittee (if ever) develops a plan for its proposed exploration or development of the underlying minerals which requires surface access – at which time consultation will occur. And (at para 92) “It is at this point that the Crown and Buffalo River DN would have something meaningful, in the sense of quantifiable, to consult about, to reconcile.” Until then there is no project.

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