Author: Nigel Bankes Page 59 of 87

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.

Separation of Powers and the Government’s Response to the Judgment in Pembina Institute v Alberta (Environment and Sustainable Resources Development), 2013 ABQB 567

By Nigel Bankes

On October 11, 2013

In Environmental

PDF Version: Separation of Powers and the Government’s Response to the Judgment in Pembina Institute v Alberta (Environment and Sustainable Resources Development), 2013 ABQB 567

Responses commented on: (1) “Still Alberta’s prerogative to say who speaks at oilsands reviews: Alison Redford” as reported by Canadian Press, Calgary Herald, October 4, 2013, and (2) “Environment minister defends officials in oil sands case”, as reported by James Wood, Calgary Herald, October 9, 2013

My colleague Shaun Fluker posted a comment on the judgment in Pembina Institute v Alberta (Environment and Sustainable Resources Development), 2013 ABQB 567 last week here. In that case Justice Marceau ruled that a Director within the Department of Environment and Sustainable Resources Development acted unlawfully when he decided that the Pembina Institute and the Fort McMurray Environmental Association were not entitled to file a statement of concern with respect to the MacKay River oil sands project. Justice Marceau ruled that the Director in making his decision took into account irrelevant and improper considerations – namely that the applicants were no longer as cooperative as they had been in their dealings with government in relation to oil sands developments and the environmental impacts of those developments.

The United States Wants a New Columbia River Treaty, What Should Canada Do?

By Nigel Bankes

On September 30, 2013

In International Law, Water Law

PDF Version: The United States Wants a New Columbia River Treaty, What Should Canada Do?

Documents commented on: (1) The Columbia River Treaty and Protocol, 1964 and (2) Columbia River Treaty Review, Draft Regional Recommendation, September 20, 2013 available here

Interesting times lie ahead for the Columbia River Treaty (CRT) of 1964 between Canada and the United States. The CRT provides for the cooperative development of the upper Columbia River and the Kootenay River for two purposes, flood control and power. Under the terms of the treaty Canada agreed to build and operate three dams: Duncan, Mica and Arrow/Keenleyside. The treaty also authorized the United States to construct Libby dam on the Kootenay River in the United States. Libby dam created Lake Koocanusa (Kootenay/Canada/USA) which backs up into British Columbia (hence the need for treaty authorization). In return for all of this, Canada received a $64 million dollar lump sum payment for the first sixty years of flood control offered by the Canadian dams, and 50% of the incremental power and capacity made available at US mainstem dams as a result of the new storage. The mainstem dams are existing dams on the Columbia, some owned by the US federal government (e.g. Grand Coulee and Chief Joseph), and some owned by public utility districts (e.g. Wells, Rocky Reach, Rock Island, Wanapum and Priest Rapids). The Canadian storage improved the efficiency of these dams by firming up capacity (i.e. providing stored water when installed generation would otherwise be running at less than full capacity) and storing water when the same dams might otherwise be spilling water. These power benefits currently have an average annual value of about $202 million. Canada/British Columbia also receives other benefits from the treaty facilities including local flood control (for communities like Trail and Castlegar) and on site generation at Mica, Revelstoke (not a treaty dam, but a facility which benefits from the regulation provided by Mica) and Keenleyside. For maps of the basin and dam locations and more information about the treaty see the website of the Columbia Basin Trust here.

Ontario Court of Appeal Confirms that the Courts Have Some Residual Jurisdiction Over Natural Gas Storage Matters

By Nigel Bankes

On September 27, 2013

In Oil & Gas

PDF Version: Ontario Court of Appeal Confirms that the Courts Have Some Residual Jurisdiction Over Natural Gas Storage Matters

Case Commented On: 2195002 Ont. Inc. v Tribute Resources Inc, 2013 ONCA 576

In this decision the Ontario Court of Appeal confirmed the conclusion reached in two separate applications before the Superior Court of Justice in Ontario related to a gas storage matter. For my post on these two decisions see here.

One decision, Tribute Resources v 2195002 Ontario Inc, 2012 ONSC 25 dealt with the jurisdiction of the Superior Court to consider the matter, the argument being that all gas storage issues should be litigated before the Ontario Energy Board (OEB) because of the preclusive clauses in the Ontario Energy Board Act, SO 1998, c.15 and the decision of the Ontario Court of Appeal in Snopko v Union Gas Ltd, 2010 ONCA 248, the subject of an earlier post here. A second decision, that of Justice Helen Rady in 21955002 Ontario Inc v Tribute Resources Inc 2012 ONSC 5412, dealt with the substantive question of whether Tribute could claim storage rights on the basis of an oil and gas lease and a unitization agreement or whether its rights were confined to such rights as it held under a gas storage lease which lease the Ontario Court of Appeal in an earlier action held to have expired: Tribute Resources v McKinley Farms, 2010 ONCA 392, also the subject of a previous ABlawg post here.

The Crown Owes No Duty to Consult Indigenous Communities Before Ratifying a Bilateral Investment Treaty

By Nigel Bankes

On September 10, 2013

In Aboriginal, International Law

PDF Version: The Crown Owes No Duty to Consult Indigenous Communities Before Ratifying a Bilateral Investment Treaty

Case commented on: Hupacasath First Nation v Minister of Foreign Affairs Canada and the Attorney General of Canada, 2013 FC 2009

In this case Chief Justice Crampton of the Federal Court Trial Division rejected the application of the claimant Hupacasath First Nation (HFN) for a declaration that Canada is required to engage in a process of consultation and accommodation with First Nations, including HFN, prior to ratifying or taking other specific steps that will bind Canada to the terms of the Agreement between the Government of Canada and the Government of the People’s Republic of China for the Promotion and Reciprocal Protection of Investments (CCFIPPA) (text available here). It was common ground (at paras 11 and 12) that while the Department of Foreign Affairs and International Trade had consulted with stakeholders, that consultation did not extend to HFN or other First Nations.

Kallisto #2. Competing Uses of Geological Space: Resolving Conflicts Between Oil Production and Natural Gas Storage Interests

By Nigel Bankes

On August 1, 2013

In Oil & Gas

By: Nigel Bankes

PDF version: Kallisto #2. Competing Uses of Geological Space: Resolving Conflicts Between Oil Production and Natural Gas Storage Interests

Decision Commented On: Kallisto Energy Corp Application for a Well Licence, Crossfield East Field, July 23, 2013, 2013 ABAER 013

In a sequel to the ERCB’s Decision, Kallisto Energy Corp Application for a Well Licence Crossfield East Field, 2012 AERCB 005, February 24, 2012 (hereafter Kallisto # 1), the subject of an earlier ABlawg post, the new Alberta Energy Regulator (AER) has handed down its decision on a proposal by Kallisto Energy to drill another oil well on lands immediately adjacent to CrossAlta’s natural gas storage facility north of Airdrie.