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Author: Nigel Bankes Page 74 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.

The Full Implications of Demonstrable Integration: A Roundtable Discussion on West Moberley

PDF version: The Full Implications of Demonstrable Integration: A Roundtable Discussion on West Moberley

Case considered: West Moberly First Nations v. British Columbia, 2011 BCCA 247

Summer at the law school provides faculty members with the opportunity to get on with some research and writing and, in particular, the larger projects that there isn’t the opportunity to tackle during the teaching terms. Law school is also a quieter place at this time with fewer LLB/ JD students around. But there is always a good number of summer students – some employed by Student Legal Assistance (SLA) for clinical duties and others employed by faculty members, the Alberta Law Reform Institute, the Alberta Civil Liberties Research Centre and Canadian Institute of Resources Law on various research projects. One of the other things that we try and do over the summer to enrich the research environment for summer students, graduate students and faculty members alike is to hold a number of roundtable discussions on recent important judicial decisions. Last year, for example, we had a discussion of Supreme Court of Canada freedom of expression decisions (R. v. National Post, 2010 SCC 16; Toronto Star v. Canada, 2010 SCC 21; Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23) and a discussion of the Advisory Opinion of the International Court of Justice on Kosovo. Our first roundtable discussion this year focused on the British Columbia Court of Appeal’s decision in West Moberly First Nations v. British Columbia, 2011 BCCA 247, a recent Treaty 8 consultation case which also deals with a SARA (Species at Risk Act, SC 2002, c 29) listed species (woodland caribou). The Attorney General of Alberta appeared as an intervenor on the appeal, undoubtedly because much of northern Alberta is covered by Treaty 8.

Saskatchewan oil and gas land titles case confirms the basic principles: a volunteer cannot take the benefit of a registrar’s error

PDF version: Saskatchewan oil and gas land titles case confirms the basic principles: a volunteer cannot take the benefit of a registrar’s error 

Case commented on: Ronald Olney (Executor of the estate of Kenneth Olney) v Great-West Life Assurance Company and the Registrar of Land Titles, 2011 SKQB 186

This case applies basic Torrens title law to resolve the competing claims of a mineral owner whose title was cancelled by the Registrar’s error and the claim of the current registered owner. It would have been a nice problem for a first year property exam except that it is a tad too easy – just a straightforward application of Canadian Pacific Railway Co. v Turta, [1954] SCR 427 that any first year property law student should have nailed!

Compensation for cancelled oil sands rights under the terms of the draft Lower Athabasca Regional Plan

PDF version: Compensation for cancelled oil sands rights under the terms of the draft Lower Athabasca Regional Plan 

Documents commented on: Draft Lower Athabasca Regional Plan 2011 – 2021, Strategic Plan and Implementation Plan; Proposed Lower Athabasca Integrated Regional Plan Regulations

In an earlier blog on a draft version of the Lower Athabasca Regional Plan (LARP) under the Alberta Land Stewardship Act, SA 2009, c.A-26.8 (ALSA) I suggested that I might provide a further blog on the implications of the Plan (if implemented) for existing property interests. This is that blog but with a focus on oil sands rights that will be cancelled if the Plan is implemented as proposed. The Draft LARP also addresses other Crown resource interests that might be affected including timber harvesting interests.

A single window for the permitting of energy projects in Alberta: who will look out for the chickens?

PDF version: A single window for the permitting of energy projects in Alberta: who will look out for the chickens? 

Report commented on: Enhancing Assurance: Developing an integrated energy resources regulator, a discussion document, May 2011

In a discussion paper released on May 9, 2011 under a covering message from Premier Stelmach, the provincial government has announced its intention to create a single window for the permitting of energy projects in the province. The proposal envisages a single new board that will have all of the current responsibilities of the Energy Resources Conservation Board (ERCB) plus the following additional responsibilities (as they pertain to energy projects including conventional oil and gas, oilsands, and coal – and in the future perhaps mining):

1. The responsibilities currently vested in Alberta Environment under the terms of the Environmental Protection and Enhancement Act, (EPEA) RSA 2000c. E-12, and the Water Act, RSA 2000, c.W-3 to conduct EIAs, issue licences and authorizations under the Water Act and EPEA and to deal with reclamation and remediation on private land.

2. The responsibilities currently vested in Sustainable Resource Development (SRD) to issue public land dispositions including mineral surface leases, and to deal with reclamation and remediation on public land.

Does this make sense?

Alberta’s CCS Disposition Scheme: the Carbon Sequestration Tenure Regulation

By: Nigel Bankes

PDF Version: Alberta’s CCS Disposition Scheme: the Carbon Sequestration Tenure Regulation 

Regulation Commented On: Carbon Sequestration Tenure Regulation, A.R. 68/2011

The provincial government is making steady progress in implementing its plan to put in place a legal and regulatory framework for carbon capture and storage projects. The province passed legislation in the fall of 2010 (Bill 24, Carbon Capture and Storage Statutes Amendment Act, which I blogged here) to deal with pore space ownership issues and to provide a framework for granting agreements to sequester captured carbon dioxide (CO2) in that pore space; and in March 2011 it launched a Regulatory Framework Assessment (RFA) to review the current regulatory rules.

The most recent step is the promulgation (at the end of April) of the Carbon Sequestration Tenure Regulation, Alta. Reg. 68/2011. This regulation puts some meat on the framework established by the new Part 9 of the Mines and Minerals Act (RSA 2000, c. M-17 (MMA)). In particular, it describes in greater detail the elements of the two new forms of agreement (evaluation permits and carbon sequestration leases) and some of the content of monitoring, measuring and verification plans (MMV) and closure plans. The regulations also go some way towards clarifying the relationship between the Department of Energy and the Energy Resources Conservation Board in relation to some of the more technical aspects of MMV programs and closure plans.

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