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.

Natural Gas Storage Rights in Ontario: Questions of Jurisdiction and Interpretation

PDF version: Natural gas storage rights in Ontario: questions of jurisdiction and interpretation

Cases Commented On: Tribute Resources v 2195002 Ontario Inc, 2012 ONSC 25 (on the jurisdictional issue) and 2195002 Ontario Inc v Tribute Resources Inc, 2012 ONSC 5412 (on the interpretation issues)

These two decisions represent one example of the efforts of Ontario landowners who claim ownership of natural gas storage rights by virtue of owning the rights to petroleum and natural gas to assert those rights against working interest owners who claim to have acquired storage rights by various old instruments including petroleum and natural gas leases, unitization arrangements, and, in some cases, specific gas storage leases.  The cases are part of a broader litigation strategy in which storage owners are trying to negotiate more favourable economic terms that afford them the right to participate in the value that the storage represents to Ontario utilities and generators.

Continue reading →

Applicants to a Feed-in Tariff Program Must Expect Change

By: Nigel Bankes

PDF Version: Applicants to a Feed-in Tariff Program Must Expect Change

Case Commented On: Skypower CL 1 LP et al v Minister of Energy (Ontario) et al, 2012 ONSC 4979

In an earlier post entitled “Low carbon energy policies: vested rights, legitimate expectations and differential treatment in domestic and international law” (see here). I commented on a UK case involving changes to a feed-in tariff (FIT) program as well as a couple of ongoing international arbitrations against Canada involving provincial energy policies (one in British Columbia and one in Ontario, the Mesa Power arbitration). The Skypower decision which is the subject of this post involves changes to Ontario’s FIT program. The common theme of all of these cases are the legal implications for government where government changes its mind about the terms of incentive programs designed to encourage the uptake of low carbon forms of generation.

Continue reading →

Giving away the Arctic farm to piddly little companies – Federal (mis)management of northern oil and gas rights.

PDF version: Giving away the Arctic farm to piddly little companies – Federal (mis)management of northern oil and gas rights.

Decision commented on: The decision of the Minister of Indian Affairs and Northern Development (aka Minister for Aboriginal Affairs and Northern Development, Canada) to award new oil and gas rights pursuant to the 2011-2012 Beaufort Sea & Mackenzie Delta Call for Bids.

On September 12, 2012, the government of Canada announced that it would be granting exploration licences (ELs) to the small and low profile Franklin Petroleum Limited of the UK for six blocks of oil and gas rights in the Beaufort Sea.  The ELs will cover over 900,000 hectares of land.

Continue reading →

Court of Appeal confirms QB decision that coalbed methane forms part of the natural gas title and not the coal title

PDF version: Court of Appeal confirms QB decision that coalbed methane forms part of the natural gas title and not the coal title

Case Considered: Encana Corporation v Devon Canada Corporation, 2012 ABCA 271, aff’g 2011 ABQB 431.

 The Court of Appeal in a unanimous memorandum of judgment (Justices McFadyen, O’Brien and O’Ferrall) has affirmed Justice Kent’s decision at trial in a case dealing with section 10.1 of the Mines and Minerals Act, RSA 2000, c M-17 (as am by SA 2010, c 20) (MMA).  That section declared that coalbed methane (CBM) is and always has been natural gas.  Justice Kent applied the new section 10.1 to grant summary judgement in competing actions brought by the coal owners and the natural gas lessees seeking declaratory relief as to the ownership of CBM in certain lands.  The actions in question had all been commenced before the amendment was introduced and passed. The Court held that section 10.1 was a complete answer to the competing claims and concluded that the natural gas lessees were entitled to a declaration that the coalbed methane had been granted to them under the terms of their natural gas leases.  I blogged on the trial judgment here.

Continue reading →

Issuance of a Notice of Abandonment under Clause 1201 of CAPL is an Attempt to Exercise a “Right to Remedy” within the Meaning of the Typical Stay Provisions of a Receivership Order

PDF version: Issuance of a notice of abandonment under clause 1201 of CAPL is an attempt to exercise a “right to remedy” within the meaning of the typical stay provisions of a Receivership Order

Case Commented On: Baytex Energy Ltd. v Sterling Eagle Petroleum Corporation, 2012 ABQB 539

The Facts

Baytex and Sterling held 50% working interests in certain properties by way of various agreements of 1995 and 1996.  The properties were also subject to the terms of the CAPL Operating Procedure.  There were a number of producing wells on the joint lands and four non-producing wells.  Sterling was placed in receivership in June 2011 and the terms of the Receivership Order were brought to the attention of Baytex in August 2011.  Revenues from the producing wells continued to be paid to the Receiver.  The Order, conventionally, provided that:

Continue reading →