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.

Options to Purchase and the Relentless Logic of Semelhago: One More Reason for the Legislative Repeal of a Disastrous Decision

PDF version: Options to Purchase and the Relentless Logic of Semelhago: One More Reason for the Legislative Repeal of a Disastrous Decision

Case commented on: Mylona Enterprises Ltd v Foundation Place Inc, 2013 ABQB 385.

Does an option to purchase that is subject to a number of contingencies afford the optionee an equitable interest in land for the purposes of establishing that the optionee has a proof of a claim under the Companies’ Creditors Arrangement Act, RSC 1985, c C-36? In this case Justice Yamauchi held that it does so notwithstanding the decision of the Supreme Court of Canada in Semelhago v Paramadevan, [1996] 2 SCR 415 and the decision of the Alberta Court of Appeal in 1244034 Alberta Ltd v Walton International Group Inc, 2007 ABCA 372.

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The Territorial Basis of Métis Hunting Rights

PDF version: The Territorial Basis of Métis Hunting Rights

Case commented on: R v Hirsekorn, 2013 ABCA 242.

There is something special about the Cypress Hills area of southeast Alberta and southwest Saskatchewan. I remember my first visit to this beautiful area some twenty years ago and although I have not been back more than a handful of times since, the region still resonates vividly in my memory of landscapes and seascapes. The special nature of this region was also recognized by the aboriginal peoples of the plains long before colonial settlement although it was clearly contested territory as between Blackfeet peoples to the west and Cree peoples to the east. Indeed, as the record in this case amply demonstrates, the Cypress Hills was a place for visits and for forays but not a place to stay for a long time. And if this was true for the Blackfeet and Cree it was even more so for the Métis who could not safely stay in the area before the North West Mounted Police established a presence there in 1874.

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Summary Judgement Ordered In Outstanding Coal Bed Methane Cases

PDF version: Summary Judgement Ordered In Outstanding Coal Bed Methane Cases

Case commented on: Encana Corporation v ARC Resources Ltd, 2013 ABQB 352.

Previous decisions of the Court of Queen’s Bench and the Court of Appeal (Encana Corporation v ARC Resources Ltd, 2011 ABQB 431, aff’d 2012 ABCA 271) gave summary judgement on many of the coalbed methane (CBM) cases that had been filed in the Alberta courts. Summary judgement was granted in these cases on the basis of an amendment to the Mines and Minerals Act, RSA 2000, c M-17 (now s10.1) adopted in 2010 which declared CBM “to be and at all times to have been natural gas”. See post here.

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Competition Law and the Upstream Oil and Gas Industry

PDF version: Competition Law and the Upstream Oil and Gas Industry

Decision commented on: 321665 Alberta Ltd. v Husky Oil Operations Ltd, 2013 ABCA 221.

I suspect that there will be sighs of relief in the board rooms of downtown Calgary (or at least so soon as the occupants of those office towers are able to think about something other than the consequences of the current disastrous flooding) as a result of this decision in which the Alberta Court of Appeal unanimously allowed an appeal on a civil action based on sections 36 and 45 of the federal Competition Act, RSC 1985, c C-34 (as they stood at the relevant time) which had been successful at trial.

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Hop(p)s and Water: A Nice Little Water Rights Decision Out of British Columbia

PDF version: Hop(p)s and Water: A Nice Little Water Rights Decision Out of British Columbia

Decision commented on: Carolyn Hopp v Assistant Regional Manager Water,  2012-WAT-033(a) (EAB).

The Environmental Appeal Board (EAB) of British Columbia is starting to build up a body of jurisprudence on water rights and especially water licensing decisions in the context of fully allocated or fully recorded streams.

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