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.

Crown Oil Sands Dispositions and the Duty to Consult

By: Nigel Bankes

Case commented on: Buffalo River Dene Nation v. Ministry of Energy and Resources and Scott Land and Lease Ltd., 2014 SKQB 69

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

In this decision Justice Currie of the Saskatchewan Court of Queen’s Bench concluded that the Crown owes no duty to consult a Treaty 10 First Nation when issuing Oil Sands Special Exploratory Permits (OSSEPs) in the traditional territory of that First Nation. In reaching this conclusion Justice Currie focused on his assessment that in issuing a permit the Minister did not make a decision that could affect the use of the land. Justice Currie also distinguished the Supreme Court of Canada’s decision in Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73, where that Court held that the Crown’s decision to authorize the assignment of tree farm licence could trigger the duty to consult on the basis that it was a high level strategic planning decision that could have subsequent on-the-ground effects. Justice Currie took the view in this case that there was no Crown “plan of action” and no high level strategic planning decisions and therefore no duty.  Continue reading →

Decision of the High Court of Australia of Interest to Canada’s Energy Bar

By: Nigel Bankes

PDF Version: Decision of the High Court of Australia of Interest to Canada’s Energy Bar

Case Commented On: Electricity Generation Corporation v Woodside Energy Ltd, [2014] HCA 7

In this majority decision the High Court of Australia (HCA) concluded that the obligations of a seller under a gas purchase agreement (GSA) to use “reasonable endeavours” to provide the purchaser with a supplemental maximum daily quantity of gas (SMDQ) in addition to an agreed maximum daily quantity of gas (MDQ) did not require the seller to provide any gas at the SMDQ price when market opportunities emerged which afforded the seller the opportunity to sell all its available production beyond MDQ at a much higher price. While any case such as this turns on the particular language of the GSA in question, including the surrounding circumstances known to the parties and the commercial purpose or objects to be secured by the agreement, the case serves as a reminder that terms such as “best efforts” or “reasonable endeavours”, at least when viewed in the self-seeking paradigm of contract, may not offer much comfort to the counterparty in this sort of commercial arrangement.

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Bill C-22 and the Proposed Regime for the Development of Transboundary Oil and Gas Pools and Fields

By: Nigel Bankes

PDF Version: Bill C-22 and the Proposed Regime for the Development of Transboundary Oil and Gas Pools and Fields

Proposed legislation commented on: Bill C-22, An Act respecting Canada’s offshore oil and gas operations, enacting the Nuclear Liability and Compensation Act, repealing the Nuclear Liability Act and making consequential amendments to other Acts (Energy Safety and Security Act), Second Session, Forty-first Parliament, 62 Elizabeth II, 2013-2014

Bill C-15, An Act to replace the Northwest Territories Act to implement certain provisions of the Northwest Territories Lands and Resources Devolution Agreement and to repeal or make amendments to the Territorial Lands Act, the Northwest Territories Waters Act, the Mackenzie Valley Resource Management Act, other Acts and certain orders and   regulations, (Northwest Territories Act), Second Session, Forty-first Parliament, 62 Elizabeth II, 2013-2014. And see the coordination provision in s 118 of Bill C-22 coordinating the entry into force of the two statutes.

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Summary of Papers and Proceedings from a Workshop on Key Issues in the Design of Carbon Management Policies and Regulations in Alberta, Calgary, January 27th & 28th, 2014

By: Nigel Bankes and Elizabeth Wilman, Workshop Co-Chairs

PDF Version: Summary of Papers and Proceedings from a Workshop on Key Issues in the Design of Carbon Management Policies and Regulations in Alberta, Calgary, January 27th & 28th, 2014

Regulation Commented On: Specified Gas Emitters Regulation, Alta. Reg. 139/2007

Background and Format

Largely because of its role as a global energy supplier, Alberta is the largest emitter of greenhouse gases among the Canadian provinces. In 2007 Alberta passed the Specified Gas Emitters Regulation (SGER), Alta. Reg. 139/2007, which is due for renewal in 2014. The purpose of the workshop, Key Issues in the Design of Carbon Management Policies and Regulations, was to provide input to Alberta Environment and Sustainable Resource Development (AESRD) to assist in updating and revising the Regulation.

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The Utilities Commission and the Court are Powerless to Prevent Unjustly Discriminatory Rates; The Fat Lady is Singing – Loudly

By: Nigel Bankes

PDF Version: The Utilities Commission and the Court are Powerless to Prevent Unjustly Discriminatory Rates; The Fat Lady is Singing – Loudly

Case commented on: Williams Energy (Canada) Inc v Alberta Utilities Commission, 2014 ABCA 51

The Court of Appeal has confirmed that the scheme of the Gas Utilities Act, RSA 2000, c. G-5 (GUA) reserves to the Lieutenant Governor in Council the exclusive authority to determine which gas utilities will be subject to regulation by the Alberta Utilities Commission (AUC). Thus, while the AUC may make declaratory findings that an entity is a gas utility and that the utility is charging unjustly discriminatory rates, such declaratory findings are empty remedies for the customers of that utility unless and until the Lieutenant Governor in Council can be persuaded to make an Order in Council (OC) bringing that utility under full rate regulation.

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