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: Court of Appeal approves decision concluding that water rights did not pass with a transfer of land
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).
PDF version: Manitoba decision on the assignment of a royalty interest
Case Commented on: Campion et al v Radomski et al, 2012 MBQB 267
In this case the beneficiaries of the Milliken estate (the beneficiaries) sought to ignore an assignment of a royalty interest that Milliken had executed during his life in favour of the Manning interests. The parties entitled to the Manning royalty interest sued to enforce that assignment and in this case the court dismissed an application by the beneficiaries (the defendants) for summary judgement.
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.
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.
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.
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