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.

Bill 1, Respecting Property Rights Act: A Damp Squib and a Good Thing Too

By: Nigel Bankes

PDF Version: Bill 1, Respecting Property Rights Act: A Damp Squib and a Good Thing Too

Bill Commented On: Bill 1: Respecting Property Rights Act

The good news about Bill 1 for those with communitarian views is that Bill 1 does not change the law of Alberta one iota. The bad news about Bill 1 for those of a more libertarian persuasion is that Bill 1 does not change the law of Alberta one iota.

Here is the entire text of Bill 1 from its bizarre preambular provisions to its single operative clause:

Preamble

WHEREAS private ownership of land is a fundamental element of Parliamentary democracy in Alberta;

WHEREAS the Alberta Bill of Rights recognizes and declares the right of the individual to the enjoyment of property and the right not to be deprived thereof except by due process of law;

WHEREAS the Government is committed to consulting with Albertans on legislation that impacts private property ownership;

WHEREAS the Land Assembly Project Area Act was enacted by the Legislature in 2009 and was amended in 2011 but has not been proclaimed in force; and

WHEREAS the repeal of the Land Assembly Project Area Act reaffirms the government’s commitment to respect individual property rights;

THEREFORE HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Alberta, enacts as follows:

Land Assembly Project Area Act Repeal

  1. The Land Assembly Project Area Act, SA 2009 cL-2.5, is repealed.

This post addresses two questions. First, how is it that despite all the pomp and circumstance surrounding the introduction of this Bill, legally, it changes nothing? And second, why, at least in the opinion of this author, is that a good thing?

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Judicial Supervision of the National Energy Board (NEB): The Federal Court of Appeal Defers to the NEB on Key Decisions

By: Nigel Bankes

PDF Version: Judicial Supervision of the National Energy Board (NEB): The Federal Court of Appeal Defers to the NEB on Key Decisions

Cases Commented On: Forest Ethics Advocacy Association and Donna Sinclair v National Energy Board, 2014 FCA 245; City of Vancouver v National Energy Board, and TransMountain Pipeline ULC, Order of the Federal Court of Appeal, Docket 14-A-55, per Justice Marc Nadon, October 16, 2014, denying leave to appeal the NEB’s scoping decision, Hearing Order OH-001-2014, 23 July 2014.

The National Energy Board (NEB) has its plate full; so too does the Federal Court of Appeal which has been hearing both judicial review applications and leave to appeal applications in relation to a number of projects including the Northern Gateway Project (Enbridge), the Line B Reversal and Line 9 Capacity Expansion Project (Enbridge), and the TransMountain expansion Project (Kinder Morgan). Interested readers can obtain details of these projects as well as Board decisions on the NEB’s website. I provided an assessment of the state of play in the Northern Gateway applications in a comment published in the Energy Regulation Quarterly.

The term “judicial supervision” in this post is designed to encompass both the idea of judicial review and appellate review of NEB decisions by way of appeal to the Federal Court of Appeal (FCA) (with leave). The normal route for obtaining judicial supervision of the NEB is by way of appeal (with leave) but one of the most significant recent decisions we have seen in this area, the Forest Ethics and Sinclair case, came before the Court on an application for judicial review. The case is important because it establishes, at least in the circumstances of that case, that the Board did not err in ruling that it did not have to consider the larger environmental effects of a pipeline project including the contribution to climate change made by the Alberta oil sands and facilities and activities upstream and downstream from the pipeline project.

This post aims to do three things. First it explains the different ways in which a party may seek judicial supervision of an NEB decision. Second, it examines the Forest Ethics and Sinclair decision and finally it offers some brief commentary on one important practical and philosophical difference between the way in which the Federal Court of Appeal treats leave applications and the way in which it treats judicial review applications – reasons.

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Gross Negligence and Set-off Rights under the 2007 CAPL Operating Procedure

By: Nigel Bankes

PDF Version: Gross Negligence and Set-off Rights under the 2007 CAPL Operating Procedure

Case Commented On: Bernum Petroleum Ltd v Birch Lake Energy Inc., 2014 ABQB 652; unreported transcript of reasons of Master Robertson, July 31, 2013

Bernum and Birch Lake held interests (60:40) in five sections of land (sections 3, 7, 8, 17 and 19) governed by the 2007 version of the CAPL operating procedure. Bernum was the operator. Birch Lake elected to participate in drilling two horizontal wells, the 4-3 well and the 6-19 well. The 4-3 well was a success and is still producing. The 6-19 failed and was subsequently abandoned. Birch Lake failed to meet cash calls under the authorizations for expenditure (AFEs) for the two wells; Bernum commenced an action and applied for summary judgement. Bernum also set off Birch Lake’s share of production against Birch Lake’s indebtedness.

Birch Lake defended Bernum’s application for summary judgement on the basis that Bernum had been grossly negligent in drilling the two wells. The 2007 CAPL provides that:

4.02 The Operator … will not be liable to any of the Non-Operators for any Losses and Liabilities resulting from or in any way attributable to or arising out of any act, omission or failure to act, whether negligent or otherwise, of the Operator or its Affiliates and their respective directors, officers, agents, contractors or employees in the performance of the Operator’s duties under this Agreement (including those in planning or conducting any Joint Operation), except insofar as:

(a) those Losses and Liabilities are a direct result of, or are directly attributable to the Gross Negligence or Wilful Misconduct of the Operator …;

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The Uncertain Status of the Doctrine of Interjurisdictional Immunity on Reserve Lands

By: Nigel Bankes and Jennifer Koshan

PDF Version: The Uncertain Status of the Doctrine of Interjurisdictional Immunity on Reserve Lands

Case Commented On: Sechelt Indian Band v. British Columbia (Manufactured Home Park Tenancy Act, Dispute Resolution Officer), 2013 BCCA 262, application for leave to appeal dismissed with costs, October 23, 2014

The Supreme Court of Canada has passed up the opportunity to clarify the application of the doctrine of interjurisdictional immunity (IJI) to reserve lands following its decisions in Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 and Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48 (Keewatin) in June 2014 by denying leave to appeal in the Sechelt Indian Band case. It is unusual to comment on a decision to deny leave since such decisions are never supported by reasons and the Court has warned that we cannot infer much about the status of an appellate decision on which leave was denied for the very good reason that there may be all sorts of considerations that might lead the Court to deny leave in any particular case. We are commenting on the leave issue in this case because in our view by missing the opportunity to clarify the scope of Tsilhqot’in and Keewatin the Court has left outstanding uncertainty as to the scope of these decisions that it could usefully have resolved. We also include a postscript referring to a recent decision out of Saskatchewan that seems to extend Tsilhqot’in to render IJI inapplicable to provincial limitations legislation applying to reserve lands.

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The Federal Renewable Fuels Regulations Survive an Aggressive and Comprehensive Challenge from Syncrude

By: Nigel Bankes

PDF Version: The Federal Renewable Fuels Regulations Survive an Aggressive and Comprehensive Challenge from Syncrude

Case Commented On: Syncrude Canada Ltd. v Attorney General of Canada, 2014 FC 776

In the dog days of summer (August 6, 2014) Justice Russel Zinn of the Federal Court of Canada handed down his judgement in a case in which Syncrude sought to challenge the validity of the federal Renewable Fuels Regulations, SOR/2010/189 (RFR) on both constitutional and administrative law grounds. The judgment seems to have passed almost without comment in the media. The RFR require that diesel fuel produced, imported or sold in Canada must contain renewable fuel of at least 2% by volume. This requirement can be met by blending diesel with biodiesel (although this can be challenging at cold temperatures). Failure to comply with the RFR is an offence although a regulated entity can achieve compliance by purchasing compliance units from other regulated entities who have exceeded their own compliance targets. See the judgement at para 4.

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