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.

Proprietary estoppel is alive and well in Alberta (at least for the over fifties)

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Case commented on: Parkdale Nifty Fifties Seniors Association v Calgary (City), 2012 ABCA 301

I confess that I don’t find the name “Nifty Fifties” especially endearing, especially when associated with the term “seniors.” Indeed, it is disconcerting to learn from this decision that the qualifying age for entry to the plaintiff’s society is not some respectable, far-off, likely unattainable, age like 70, no, not even 65, but 50!! (the bar was apparently lowered from the 55 to 50 sometime post 1983). Quite why any self-respecting 50 year old would voluntarily associate (self-identify) with an organization trumpeting this name is quite beyond me. So, no sympathy with the plaintiff\respondent’s name, but lots of sympathy with the cause, and lots of interest in the idea of proprietary estoppel – indeed, notwithstanding the advancing years I still recall, without prompting, one of the leading proprietary estoppel cases I came across at law school in the UK, a case which rejoices in the name of Dillwyn v Llewelyn, [1862] 4 De GF & J 517, 45 ER 1285 (a case that doesn’t come to mind without also calling to mind Dylan Thomas’, Llareggub in Under Milk Wood – and for those not in the know, try that backwards); and yes, I digress.

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Bill 2 the Responsible Energy Development Act and the Duty to Consult

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Proposals commented on: Bill 2, the Responsible Energy Development Act, Alberta and the First Nations Consultation Policy, Discussion Paper, (Fall 2012).

There has been a lively debate in the courts, tribunal decisions and the literature over the last few years as to the role of administrative tribunals in discharging or examining the Crown’s duty to consult aboriginal peoples when contemplating making decisions and developing policies which may adversely affect aboriginal or treaty rights. There are two guiding rules. First, a tribunal that has the authority to decide questions of law is presumed to have the jurisdiction to decide questions of constitutional law including the question of whether or not the Crown has satisfied its constitutional duty to consult and accommodate – provided that the constitutional question is rationally connected to a power or jurisdiction that the tribunal is exercising. The legislature may rebut that presumption by removing all or part of that jurisdiction from a tribunal. Second, a tribunal does not have the authority to discharge the Crown’s duty to consult and accommodate unless that authority is expressly delegated to the tribunal. The principal authority for all of this is Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43 which I blogged at here.

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Bill 2, the Responsible Energy Development Act and the Enforcement of Private Surface Agreements

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Proposal commented on: Bill 2, the Responsible Energy Development Act

Bill 2, the Responsible Energy Development Act (REDA) if enacted will afford the Regulator an entirely new jurisdiction over the enforcement of “private surface agreements.” This comment discusses the following questions: (1) What is the status quo and what are the problems with the status quo? (2) What will the Bill do? (3) If change was necessary, why was this jurisdiction accorded to the Regulator and not the Surface Rights Board? Focusing on question # 3 my general argument will be that it would be a better “fit” to accord this additional jurisdiction to the Surface Rights Board which already has considerable expertise in these matters.

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Bill 2 and its implications for the jurisdiction of the Environmental Appeal Board

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Proposal commented on: Bill 2, the Responsible Energy Development Act

This post examines the implications of Bill 2 for the jurisdiction of the Environmental Appeal Board (EAB). The legislation will establish the new Alberta Energy Regulator (the Regulator) and will abolish appeals to the EAB with respect to decisions in relation to energy resource activities. Instead, the Bill proposes a scheme of reviews by the Regulator of its own decisions.

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Court of Appeal approves decision concluding that water rights did not pass with a transfer of land

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Cases Considered: Canada Finance Corporation Limited v Hirsche Herefords, 2012 ABCA 315

The Court of Appeal has dismissed the appeal from a decision of Justice Strekaf in which she had approved the sale by the receiver of a water right separate from the sale of lands to which the water right was appurtenant. In an earlier ABlawg post I commented on Justice Strekaf’s decision (here).

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