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.
PDF version: The right to trap in traditional territory: a case of competing normative orders?
Decision commented on: Cooper and Boucher v Ganter and HMQA, 2012 ABQB 695.
I don’t actually know if this is a case of competing normative orders but it sure looks like it. More formally and abstractly this decision confirms that a claimant cannot avoid the six month limitation rule for judicial review proceedings by commencing an action by way of a statement of claim.
PDF version: The death of free entry mining regimes in Canada?
Decision commented on: Ross River Dena Council v Government of Yukon, 2012 YKCA 14.
I (along with co-author Cheryl Sharvit) and others have long tried to make the case that free entry mining regimes are not only bad public policy but also unconstitutional on the grounds that the common premises of free entry regimes are inconsistent with the Crown’s duty to consult indigenous peoples whose rights and interests may be affected by the government’s decisions to allow others to acquire rights in traditional territory. See Bankes and Sharvit, Aboriginal Title and Free Entry Mining Regimes in Northern Canada, (1998) here and Bankes, “The Case for the Abolition of Free Entry Mining Regimes” (2004), 24(2) J. Land, Resources, & Envtl. Law 317-322.
PDF version: A new approach to regulating unconventional resource plays in Alberta: the ERCB takes a bold step forward
Document commented on: ERCB Discussion Paper, Regulating Unconventional Oil and Gas in Alberta, 2012.
In the weeks before Christmas the Energy Resources Conservation Board (ERCB) released a number of documents all dealing with aspects of the development of unconventional resources. The documents included two inquiry reports dealing with serious incidents in relation to horizontal wells (here and here) and multi-stage fracturing, a draft Directive on Hydraulic Fracturing and the document which is the focus of this post, the Discussion Paper, Regulating Unconventional Oil and Gas in Alberta. The release of this paper is a welcome development because it provides a practical example of how a regulator can take the initiative in trying to manage cumulative impacts and the risks associated with the application of known technologies to new challenges. It is fully consistent with the planning approach espoused by the Alberta Land Stewardship Act, SA 2009, c A-26.8 and the Land-use Framework. And for once it demonstrates the ability of the Board to lead and get out in front of its critics – ironically, precisely at the moment when it is about to be replaced by new Energy Development Authority (I was going to title this blog “The ERCB and the Owl of Minerva” but thought that some might infer from that title that it was a post on species at risk).
PDF version: Duty to consult application is premature – what’s the big deal?
Case and decision commented on: Metis Nation of Alberta Region 1 v Joint Review Panel, 2012 ABCA 352 and decision of the Joint Review Panel
In this decision Justice Slatter denied the application of the Metis Nation and of the Athabasca Chipewyan First Nation (ACFN) for leave to appeal the decision of the Joint Review Panel (JRP) constituted to deal with Shell’s Jackpine Mine Expansion Project application. In its decision the JRP concluded that it did not have jurisdiction to assess whether or not the Crown had fulfilled its duty to consult with respect to the Jackpine Mine Project. In the alternative, the JRP concluded that any application to assess whether or not the Crown had fulfilled its constitutional obligation was premature. The JRP is established by federal\provincial executive agreement and has the responsibility of discharging obligations under both the federal Canadian Environmental Assessment Act, 2012, SC 2012, c 19 and the responsibilities of the provincial Energy Resources Conservation Board under a number of statues including the Oil Sands Conservation Act, RSA 2000, c O-7 – all with respect to the Jackpine Mine expansion project.
PDF version: Proprietary estoppel is alive and well in Alberta (at least for the over fifties)
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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