Author: Nigel Bankes Page 68 of 89

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.

Quest. The Energy Resources Conservation Board Approves the First Commercial Scale Carbon Capture and Storage Project in Alberta

By Nigel Bankes

On August 3, 2012

In Administrative Law, Carbon Capture and Storage, Energy, Natural Resources, Oil & Gas

By: Nigel Bankes

PDF Version: Quest. The Energy Resources Conservation Board Approves the First Commercial Scale Carbon Capture and Storage Project in Alberta

Decision Commented On: Shell Canada Limited, Application for the Quest Carbon Capture and Storage Project, Radway Field, July 10, 2012, 2012 AERCB 008

In a long-awaited decision issued on July 10, 2012, Alberta’s Energy Resources Conservation Board (ERCB or Board) approved Shell Canada Limited’s application for a commercial scale CCS project (the Quest Project). The project is associated with the long standing Athabasca Oil Sands Project (AOSP) and the Scotford Upgrader where new facilities are designed to capture up to 1.2 megatonnes of CO₂ per year for ongoing injection. The cumulative stored volume is expected to be greater than 27 Mt of CO₂ over the expected 25 year life of the Scotford Upgrader. The approval is subject to some 23 conditions and, as contemplated by the scheme approval provision of section 39(2) of the Oil and Gas Conservation Act, RSA 2000, c O- 6 (OGCA), the project will only be finally approved by the ERCB following review by the Minister of the Environment who may impose additional conditions on the scheme approval.

British Columbia and the Northern Gateway Pipeline

By Nigel Bankes

On July 25, 2012

In Constitutional, Energy, Natural Resources, Oil & Gas

PDF version: British Columbia and the Northern Gateway Pipeline

Document commented on: BC Outlines requirements for heavy oil pipeline projects, July 23, 2012.

The proposed Northern Gateway Pipeline is proving to be extremely contentious on a number of fronts. It raises important questions about the duty to consult and accommodate indigenous peoples who may be affected by the project; it raises questions about the joint review panel and the role of the National Energy Board (see post here) and the amendments to the National Energy Board brought about by the Budget Bill, Bill C-38, now SC 2012, c 19); and, most recently, the province of British Columbia’s Environment Minister, Terry Lake and Aboriginal Relations and Reconciliation Minister, Mary Polak, have outlined the government of British Columbia’s five minimum requirements that must be met for that province “to consider the construction and operation of heavy oil pipelines within its borders.”

Low Carbon Energy Policies: Vested Rights, Legitimate Expectations, and Differential Treatment in Domestic and International Law

By Nigel Bankes

On July 13, 2012

In Administrative Law, Carbon Capture and Storage, Climate Change, Energy, International Law

By: Nigel Bankes

PDF Version: Low Carbon Energy Policies: Vested Rights, Legitimate Expectations, and Differential Treatment in Domestic and International Law

Cases and Matters Commented On: Secretary of State for Climate Change v Friends of the Earth and Others, [2012] EWCA Civ. 28, aff’g lower decision; Mesa Power Group LLC v Government of Canada, Notice of Intent to Submit a Claim to Arbitration under Chapter Eleven of NAFTA, July 6, 2011; Mercer International Inc v Government of Canada, Notice of Intent to Submit a Claim to Arbitration under Chapter Eleven of NAFTA, 26 January 2012, and request for arbitration (ICSID Additional Facility), April 30, 2012

Governments around the world are adopting a variety of low carbon and green energy policies designed to increase the share of renewable energy sources in the energy mix. In addition, some governments, including the government of Alberta, have also adopted policies to provide for the sequestration of carbon dioxide emissions where carbon fuels continue to make up a significant part of the energy mix. These policies often provide financial incentives to investors in order to persuade them to commit to the new technology. For example, many governments provide for feed-in-tariffs (FIT) to encourage the development of wind and solar energy. A FIT represents a commitment by the government directly or through the incumbent utility to purchase the output from the designated facility (e.g. wind generator, solar panels or biomass generation) at a specified price for a prescribed number of years (typically representing the amortization period of the asset). Such commitments are designed to be “bankable” in the sense that the proponent will be able to use the commitment to raise capital to fund the venture. Similarly, many governments have found it necessary to provide financial support (subsidies or “state aid” in the language of the European Union) for the first commercial scale carbon capture and storage projects. For example, the province of Alberta is currently providing support for three different sequestration related projects in the province (see here).

The implications of the Tsilhqot’in Case for the Numbered Treaties

By Nigel Bankes

On July 11, 2012

In Aboriginal, International Law

PDF version: The implications of the Tsilhqot’in Case for the Numbered Treaties

Cases Considered: Williams v British Columbia, 2012 BCCA 285, and Lameman v Alberta, 2012 ABQB 195

The unanimous decision of the British Columbia in Williams, (a.k.a. the Tsilhqot’in land claim case or the Brittany Triangle case) continues the trend in Canadian case law (beginning with R v Marshall; R v Bernard, 2005 SCR 43) of insisting that a claimant First Nation or other aboriginal people must establish exclusive occupation of particular tracts of land in order to obtain a declaration of aboriginal title. Indeed, the case comes close to suggesting, and as a matter of law, that a claimant people will hardly ever\never succeed on the basis of what the court describes as a territorial claim (at para 219) i.e. the claim that these lands (e.g. a particular watershed) are our lands because we were present in that territory (at para 206), living in accordance with our laws (including property laws) and using that territory to the exclusion of all others.

Disgorgement Damages Awarded against Canada for Breach of a Modern Land Claim Agreement

By Nigel Bankes

On July 5, 2012

In Aboriginal, Property

PDF version: Disgorgement Damages Awarded against Canada for Breach of a Modern Land Claim Agreement

Case commented on: NTI v Canada (Attorney General), 2012 NUCJ 11

In this important case Justice Earl Johnson in the Nunavut Court of Justice has granted summary judgement against Canada in the amount of $14,817,500 for breach of Article 12.7.6 of the Nunavut Land Claims Agreement (NLCA) which provided for the establishment of a monitoring program to cover “the long term state and health of the ecosystemic and socio-economic environment in the Nunavut Settlement Area.” Justice Johnson assessed damages on a disgorgement basis calculated by reference to the expenditures that Canada avoided making by failing to implement this provision of the NLCA in a timely way. In doing so the judgement draws upon the decision of the House of Lords in Attorney General v Blake, [2001] 1 AC 268 (HL).