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.

Pushing Back, Lock[e], Stock and Barrel on the Availability of Summary Judgment in Oil and Gas Lease Cases

By: Nigel Bankes

PDF Version: Pushing Back, Lock[e], Stock and Barrel on the Availability of Summary Judgment in Oil and Gas Lease Cases

Case commented on: P. Burns Resources Limited v Locke, Stock and Barrel Company Ltd., 2014 ABCA 40 

This decision of the Court of Appeal confirms that it will be a rare case in which the lessor of an oil and gas lease will be able to obtain summary judgment on the validity of the lease during its secondary term, especially where the third proviso offers a number of circumstances in which “time shall not be counted” against the lessee. In this case the third proviso read as follows: Continue reading →

What is the Test for Leave to Appeal from the Decision of a Regulatory Tribunal in Alberta?

By: Nigel Bankes

PDF Version: What is the Test for Leave to Appeal from the Decision of a Regulatory Tribunal in Alberta?

Case commented on: Judd v Alberta Energy Resources Conservation Board, 2014 ABCA 41

The provincial legislature has chosen to “channel” judicial supervision of the decisions of Alberta’s energy regulators to the Alberta Court of Appeal. The legislature achieves this channeling through two linked provisions in the relevant legislation. The first is a strong privative clause which purports (I say purports because such a measure can never be completely successful for constitutional reasons: Crevier v Attorney General of Quebec, [1981] 2 SCR 220, Dunsmuir v New Brunswick, 2008 SCC 9) to exclude ordinary judicial review applications. Then, having purported to close the door, the legislature cracks it open again with a provision that allows an aggrieved party to appeal the regulator’s decision on a point of law or jurisdiction, but only with leave. The leave application is heard by a single judge who is charged with assessing whether the matter should be heard by three of his or her colleagues on the merits of those alleged points of law or jurisdiction. The relevant provisions of the Energy Resources Conservation Act, RSA 2000, c E-10 in force at the time read as follows:

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The Limits to Summary Judgement in Oil and Gas Compensatory Royalty Cases

By Nigel Bankes

PDF Version: The Limits to Summary Judgement in Oil and Gas Compensatory Royalty Cases

Case commented on: Laird v Sword Energy Inc., 2014 ABQB 13.

This decision of Justice Don Manderscheid confirms that it will a rare case in which a lessor will be able to obtain summary judgement for a claim of compensatory royalties under an offset well clause under an oil and gas lease. As such it casts further doubt on the correctness of Justice Lee’s judgement in 1301905 Alberta Ltd v Sword Energy Ltd., 2013 ABQB 113, which was the subject of an earlier post here.

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The WTO Panel Decision on the EU’s Rules on the Marketing of Seal Products: Who Won and Who Lost?

By Elizabeth Whitsitt and Nigel Bankes

PDF Version: The WTO Panel Decision on the EU’s Rules on the Marketing of Seal Products: Who Won and Who Lost?

Decisions commented on:  World Trade Organization (WTO) Panel Report, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, 25 November 2013,  and Inuit Tapiriit Kanatami et al v European Commission, Case T-526/10, Judgement of the General Court (EU), (Seventh Chamber), 25 April 2013, available here (currently on appeal)

Regulations commented on: Regulation (EC) No 1007/2009 on trade in seal products, (Framework Regulation) and Commission Regulation (EU) No 737/2010 of 10 August 2010 laying down detailed rules for the implementation of Regulation (EC) No 1007/2009 of the European Parliament and of the Council on trade in seal products (Implementing Regulation) (collectively the Sealing Regulations) (both available here along with other background information and reports)

The WTO Panel handed down its decision in the complaints made by Canada and Norway in relation to the European Union’s ban on placing seal products on the market on November 25, 2013.  The reaction in the media was immediate with most outlets indicating that the Panel had upheld the ban.  The CBC, for example, reported that “[t]he WTO, while finding that the EU’s so-called Seal Regime had violated international trade agreements, also determined that the ban was valid because of a controversial public morals clause”. Gloria Galloway in the Globe and Mail reported that “[a] WTO ruling released on Monday says the ban the EU imposed in 2010 undermines the principles of fair trade, but is justified because it ‘fulfills the objective of addressing EU public moral concerns on seal welfare’”.

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What are the Rules Governing Consents to Assignments of Pipeline Easements across Indian Reserves?

PDF Version: What are the Rules Governing Consents to Assignments of Pipeline Easements across Indian Reserves? 

Case commented on: Coldwater Indian Band v Minister of Indian Affairs and Northern Development, 2013 FC 1138

This case raises the question of the leverage available to a First Nation to claim hold-out rents where a pipeline crosses reserve lands and the current owner/operator of the pipeline has failed to obtain required consents to an assignment of the pipeline easement.

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