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 Court of Appeal confirms that the word “producible” does not mean actual production

PDF version: The Court of Appeal confirms that the word “producible” does not mean actual production 

Case considered: Bearspaw Petroleum Ltd v Encana Corporation, 2011 ABCA 7

The Court of Appeal in a memorandum of judgement (Rowbotham, McDonald and Bielby JJA) has confirmed Justice McMahon’s decision at trial which I blogged here.  See that post for a summary of the facts.

There were two issues in this case: (1) the proper interpretation of the habendum (duration) of a petroleum and natural gas lease, and (2) the existence of a covenant to market. The Court finds for the lessee (Bearspaw) on both grounds.

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Down on the Kerrs’ Farm: A Comment on the Reports of Alleged Carbon Dioxide Leaks from Cenovus’ Weyburn Project

By: Nigel Bankes

Carbon capture and storage (CCS) is not yet a proven technology at commercial scales. It is true that we have had considerable experience with analogies including acid gas disposal projects, natural gas storage projects and enhanced oil recovery (EOR) projects (involving the injection of carbon dioxide as a miscible flood). We also have some international experience especially in the North Sea with CO2 injection projects not linked to EOR, but elsewhere, commercial scale CCS projects are just getting underway. And there is nothing that would stop or seriously slow the adoption of CCS more quickly than a significant failure in one of the early projects.

For some this would be no bad thing – particularly for the climate skeptics, those who believe that human induced global warming is not happening. Others accept the reality of global warming but are philosophically opposed to CCS as a means of mitigating emissions. The challenge for this group is to identify realistic alternatives if we remove CCS as an option. Yes, energy conservation and the widespread and aggressive adoption of renewables will get us a long way, and for some nuclear energy is an important part of the solution, but national mitigation strategies often adopt a “wedge” that represents the contribution that CCS can make to meeting national mitigation targets (see for example, the work of the National Round Table on the Economy and the Environment). If we lose the CCS wedge we need to find other mitigation strategies that can deliver over the next ten to twenty years.

This is what is so troubling about the reports (see below) that are emerging from Saskatchewan in which the Kerr family alleges that they are experiencing harms from carbon dioxide leaking from the enhanced oil recovery operation of Encana (now Cenovus) in the Weyburn Field in Saskatchewan. This project (which is an EOR project and not a CCS project) has been extensively and intensively studied since 2000 by an international group of scientists and has been adopted by the International Energy Agency as a pilot project to encourage learning for future CCS projects (see here).

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SARA has a spine as well as teeth

PDF version: SARA has a spine as well as teeth 

Case commented on: David Suzuki Foundation v. Minister of Fisheries and Oceans and the Minister of the Environment, 2010 FC 1233

Eighteen months ago I blogged on Justice Zinn’s decision in Alberta Wilderness Association v. Canada (Minister of the Environment), 2009 FC 710. The decision dealt with the government’s failure to designate critical habitat for the greater sage grouse under the federal Species at Risk Act, S.C. 2002, c. 29 (SARA) as part of the development of a recovery plan. I thought that Justice Zinn’s decision confirmed that the Courts were prepared to give SARA a fairly robust interpretation and hence I suggested that the legislation was starting to “grow teeth”.

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Using water reservations to protect the aesthetic values associated with water courses: a note on the Spray River (Banff)

 PDF version: Using water reservations to protect the aesthetic values associated with water courses: a note on the Spray River (Banff)

Documents commented on: Order in Council 546\49; South Saskatchewan Basin Water Allocation Regulation, Alta. Reg. 307/1991 (rescinded by Bow, Oldman and South Saskatchewan River Basin Water Allocation Order, Alta. Reg. 171/2007); Alberta Environment, TransAlta Utilities (TAU) licence for the Spray River development.

I have been doing some work on Crown water reservations over the last few months and in the course of that came across an example of what at first glance seemed to be the use of a water reservation to preserve the aesthetic qualities of a watercourse. The example also has an interesting constitutional twist that is worth reflecting on.

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CCS and CDM: The Eligibility of Carbon Capture and Storage Projects under the Clean Development Mechanism of the Kyoto Protocol – the Cancun Meeting of the Conference of the Parties

By: Nigel Bankes

PDF Version: CCS and CDM: The Eligibility of Carbon Capture and Storage Projects under the Clean Development Mechanism of the Kyoto Protocol – the Cancun Meeting of the Conference of the Parties

Decision Commented On: UNFCCC, Kyoto Protocol, CoP\MoP Decision on “Carbon dioxide capture and storage in geological formations as clean development mechanism project activities”

The 16th Meeting of the Conference of the Parties to the United Nations Convention on Climate Change (UNFCCC), and the 7th Meeting of the Parties to the Kyoto Protocol (KP) (CoP\MoP) concluded last week in Cancun. In the assessment of most observers this was a successful meeting but perhaps only because expectations were modest and anything seemed liked progress after the Copenhagen debacle of last year. But there is still much that remains to be done before countries can agree on a successor to the first commitment period of the KP which expires in 2012. Without such agreement the KP will simply die. Some, especially Europe, but also developing countries, want to see a second commitment period. But others, like Canada, point to the lack of inclusiveness of the KP (to say nothing of our own non-compliance which would result in a penalty on Canada during any second commitment period) and want to see an alternative to the KP that imposes emissions reduction obligations not only on the United States (not a party to the KP) but also on the so-called BRIC countries (Brazil, India, China) as well as other developing countries.

The Meeting did make progress on number of larger matters including REDD+ (reduced emissions from deforestation and forest degradation) and on the narrower issue of the eligibility of carbon capture and storage (CCS) projects under the clean development mechanism (CDM) of the KP. The purpose of this note is to provide an update on that debate.

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