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.

Directly and Adversely Affected: The Actual Practice of the Alberta Energy Regulator

By: Nigel Bankes

PDF Version: Directly and Adversely Affected: The Actual Practice of the Alberta Energy Regulator

Decisions commented on:(1) AER Letter decision to Beaver Lake Cree First Nation re CNRL’s Kirby Expansion Project; (2) AER Letter decision to Cold Lake First Nation re CNRL’s Kirby Expansion Project, (3) AER Letter decision to Fort McMurray First Nation re CNRL’s Kirby Expansion Project, (4) AER Letter decision to Kehewin Cree Nation re CNRL’s Kirby Expansion Project, (5) AER Letter decision to Oil Sands Environmental Coalition re CNRL’s Kirby Expansion Project, (6) AER Letter decision to Whitefish Lake Nation re CNRL’s Kirby Expansion Project, (7) AER Letter decision to AltaGas Ltd re Keyera Energy Ltd’s Rimbey Plant Turbo Expander Project, (8) AER Letter decision to ATCO Energy Solutions re Keyera Energy Ltd’s Rimbey Plant Turbo Expander Project, (9) AER Letter decision to NOVA Chemicals Corporation re Keyera Energy Ltd’s Rimbey Plant Turbo Expander Project

This post examines the actual practice of the Alberta Energy Regulator (AER) with respect to a number of related matters: (1) decisions by the AER as to whether a person is directly and adversely affected by an application, (2) decisions by the AER as to whether or not to hold a public hearing on an application, and (3) decisions by the AER as to whether it should disregard a statement of concern. The discussion is based on nine letter decisions of the AER in relation to two different project applications: CNRL’s Kirby in situ oil sands expansion project, and Keyera Energy’s application to enhance the extraction of liquids at its Rimbey Plant.  The interested parties who filed statements of concern (SOCs) or requests to participate with respect to the two applications include First Nations, an environmental organization, and industrial competitors. Thus the range of decisions examined here provides valuable guidance as to how the AER will exercise its discretion in relation to standing, hearing and statement of concern matters involving a number of different types of interests.

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Swift Judgment in a Complex Commercial Case

By: Nigel Bankes

PDF Version: Swift Judgment in a Complex Commercial Case

Case commented on: Blaze Energy Ltd v Imperial Oil Resources, 2014 ABQB 326

The Commercial Court of the English High Court is well known for its capacity to give swift judgments in complex commercial cases. This decision confirms that the Alberta Court of Queen’s Bench can offer the same service provided that the parties can agree on the procedures to be followed.

The statement of claim in this matter was filed on April 23, 2014 and on April 29 Chief Justice Wittman granted a Consent Order for an expedited trial confined to three issues. Absent an Agreed Statement of Facts the trial proceeded on the basis of filed affidavits and the transcripts of cross examination on those affidavits. The Consent Order provided that there would be no questioning or viva voce evidence. The trial concluded on May 26 and Justice Frederica Schutz acceded to counsels’ request and gave well written reasons for judgement on May 30.

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Round One of the Electricity Competition Playoffs Goes to the Market Surveillance Administrator: MSA 1; TAU 0. TAU Cannot Hijack the MSA’s Own Proceeding

By: Nigel Bankes

PDF Version: Round One of the Electricity Competition Playoffs Goes to the Market Surveillance Administrator: MSA 1; TAU 0. TAU Cannot Hijack the MSA’s Own Proceeding

Decision commented on:AUC Decision 2014-135, TransAlta Corporation, TransAlta Energy Marketing Corp., TransAlta Generation Partnership, Mr. Nathan Kaiser and Mr. Scott Connelly; Complaints about the conduct of the Market Surveillance Administrator, May 15, 2014

Is it possible to ensure a competitive electricity market in Alberta? This is I think the broad issue that underlies the current proceedings before the Alberta Utilities Commission (AUC) involving the Market Surveillance Administrator (MSA) and TransAlta (TAU). Several months ago the MSA filed with the AUC notice of a request to initiate a proceeding against TAU and two of its current or former employees, Kaiser and Connelly (K & C). In brief the MSA is charging these parties with unlawfully manipulating the price of electricity as set by Alberta’s power pool to the advantage of TAU in breach of the Electric Utilities Act, SA 2003, c E-5.1 and the Fair, Efficient and Open Competition Regulation, Alta Reg 159/2009. The MSA seeks to prosecute those charges before the AUC as contemplated by the Alberta Utilities Commission Act, SA 2007, c A-37.2 (AUCA). Days before the MSA took this action TAU, K and C seized the moment and filed their own complaints with the AUC under s.58 of the AUCA alleging that the MSA was abusing its position. To be clear, TAU and K and C knew what was in store for them. The MSA had informed TAU three years ago (March 2011) that it was commencing an investigation and it has spent the time in between diligently collecting information from TAU and building its case. The MSA provided TAU with the draft case against it in November 2013. It is fairly evident therefore that the preemptive filing by TAU, K and C was a strategic effort to seize the initiative, put the MSA on the defensive, and perhaps seek to have the complaints against the MSA heard before the MSA’s own case.

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The AER’s Peace River Odours and Emissions Report and Response

By: Nigel Bankes

Reports commented on: AER Report of Recommendations on Odours and Emissions in the Peace River Area, March 31, 2014, 2014 ABAER 005; AER Response, April 15, 2014

PDF version: The AER’s Peace River Odours and Emissions Report and Response

For a long time now residents in the Peace River area (Three Creeks, Reno and Seal Lake) have complained about hydrocarbon odours and emissions from oil sands / heavy oil developments in this part of the province. Some residents have complained of health effects and some have found conditions intolerable and have moved off their properties. Pressure to deal with this has grown and the Alberta Energy Regulator (AER) has responded by endorsing a comprehensive set of recommendations designed to:

  • reduce and virtually eliminate all hydrocarbon emissions that contribute to odour events, nuisance, and environmental and potential health impacts for residents of the Peace River area; and
  • increase the conservation of gas resources in the Peace River area. (Response at 11)

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The First Ministerial Direction to the Alberta Energy Regulator: The Aboriginal Consultation Direction

By: Giorilyn Bruno and Nigel Bankes

Direction commented on: Ministerial Order 141/2013, The Aboriginal Consultation Direction

PDF version: The First Ministerial Direction to the Alberta Energy Regulator: The Aboriginal Consultation Direction

On November 26, 2013, the Minister of Energy issued Ministerial Order 141/2013, the Aboriginal Consultation Direction. The Direction was issued to ensure that “the AER considers and makes decisions in respect of energy applications in a manner that is consistent with the work of the Government of Alberta” (Direction at 2) in meeting its consultation obligations associated with the existing rights of Aboriginal people. The Direction gives eight specific directions to the Alberta Energy Regulator (AER) and sets up a process on Aboriginal consultation that the AER must follow. This post comments on the content of the Direction, its implications, and identifies some of the issues that are unclear under the current legislation.

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