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.

The legal status of the commitment by Alberta’s irrigation districts to share the shortage

PDF version: The legal status of the commitment by Alberta’s irrigation districts to share the shortage 

Document commented on: Declaration re: Sharing Water for Human Needs and Livestock Sustenance During Water Shortages, Alberta Irrigation Projects Association

Last week, on World Water Day, March 22, Alberta’s thirteen irrigation districts (acting through the Alberta Irrigation Projects Association) passed a declaration entitled “Sharing Water for Human Needs and Livestock Sustenance During Water Shortages”. The Declaration is an important political statement by Alberta’s Irrigation Districts. The purpose of this blog is to assess the legal significance of the Declaration. Before doing that I will set out the Declaration and explain just what it is that the Declaration is trying to do.

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Regulatory chill, weak regional plans, and lots of jobs for lawyers: the proposed amendments to the Alberta Land Stewardship Act

PDF version: Regulatory chill, weak regional plans, and lots of jobs for lawyers: the proposed amendments to the Alberta Land Stewardship Act 

Legislation commented on: Bill 10, the Alberta Land Stewardship Amendment Act, 2011

In an earlier blog, I commented on one aspect of the on-going debate in Alberta on the Alberta Land Stewardship Act, SA 2009, c.A-26.8 (ALSA). On March 1, 2011 the government introduced Bill 10, the Alberta Land Stewardship Amendment Act, 2011. The Bill contains 12 pages of amendments to the Act. I think that the Bill will encourage the adoption of timid plans that will not achieve the noble purpose of the legislation. I also think that the amendments will create significant uncertainty and encourage litigation. The big winners from this Bill will be lawyers; the environment will be the loser. And if the environment loses then we all lose; whether we happen to be landowners or not.

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Court of Appeal grants relief from forfeiture in an oil and gas lease case

PDF version: Court of Appeal grants relief from forfeiture in an oil and gas lease case 

Case commented on: Canpar Holdings Ltd. v. Petrobank Energy and Resources Ltd., 2011 ABCA 62

The principal significance of this case is that it confirms that the Court may relieve against the forfeiture of an oil and gas lease that is terminated for cause (in this case failing to calculate and tender royalties as prescribed by the lease) – as opposed to termination in accordance with its own terms (e.g. for failure to drill or produce), in which case there can be no relief. In granting relief the Court signals that it will draw guidance from non-oil and gas cases dealing with relief from forfeiture. I think that this is the first reported decision in which the Court of Appeal has exercised its discretion to relieve against forfeiture in an oil and gas lease case.

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ALSA and the property rights debate in Alberta: a certificate of title to land is not a “statutory consent”

PDF version: ALSA and the property rights debate in Alberta: a certificate of title to land is not a “statutory consent” 

Statute commented on: Alberta Land Stewardship Act, SA 2009, c.A-26.8

There is significant public debate in Alberta about a series of measures introduced and passed by the provincial government over the last 18 months. These measures include: (1) the Land Assembly Project Area Act (sometimes known as Bill 19, now SA 2009, c. L-2.5, yet to be proclaimed), (2) the Electric Statutes Amendment Act, SA 2009, c.44 (Bill 50), (3) the Alberta Land Stewardship Act, SA 2009, c.A-26.8 (ALSA), and (4) Bill 24, the Carbon Capture and Storage Statutes Amendment Act (Alberta), SA 2010, c.14. I won’t deal with all aspects of the debate but I do want to comment on one aspect of the debate as it relates to ALSA.

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The world wide web and the honour of the Crown

PDF version: The world wide web and the honour of the Crown 

Cases considered: Athabasca Chipewyan First Nation v Alberta (Minister of Energy), 2011 ABCA 29, and Lameman v Alberta, 2011 ABQB 40

The Court of Appeal (Justices Ritter, Bielby and Read) has denied the appeal by the Athabasca Chipewyan First Nation (ACFN) against the judgement at trial (2009 ABQB 576) which I blogged here. In that decision, Justice D.R.G. Thomas held that ACFN had commenced its application more than six months after the relevant decision, and therefore out of time within the meaning of Rule 753.11 of the old Alberta Rules of Court, Alta. Reg. 390/1968. In doing so I think that the Court of Appeal has ignored the constitutional foundation of the duty to consult and as a result has failed to interpret the Rules of Court through that lens.

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