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Author: Nigel Bankes Page 77 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.

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.

Little Salmon and the juridical nature of the duty to consult and accommodate

PDF version: Little Salmon and the juridical nature of the duty to consult and accommodate 

Case commented on: Beckman v Little/Salmon Carmacks First Nation, 2010 SCC 53

This is the first decision of the Supreme Court of Canada to deal head on with the relationship between the terms of a constitutionally protected land claims agreement (LCA) and the duty to consult and accommodate. The Court holds that the terms of an LCA do not exhaust the Crown’s duty to consult, or, to put it another way, an LCA is not a complete code but is embedded in the general legal system embracing both constitutional law norms and administrative law norms. This means that the Crown may have consultation obligations that are additive to those found in the text of an LCA. However, the majority articulates a narrow view of the content of the duty to consult and thus it was easy for the Court to find that the Crown — here the Government of Yukon (YTG) — had satisfied its obligations. In my view the content of the duty to consult articulated by the Court in this case is no greater than that which would be provided by the application of standard principles of administrative law. This impoverished view of the duty to consult is hardly likely to contribute to the constitutional goal of inter-societal reconciliation.

The Energy Resources Conservation Board proposes to repeal provincial legislation

Proposal commented on: ERCB Bulletin 2010 – 42, Invitation for Feedback on Draft Legislative Amendments for Removing Industrial Development Permits for Energy Resource Use

Yes. That’s right. In Bulletin 2010-42 issued on December 2, 2010 the ERCB announced that it is “proposing to remove industrial development permits (IDP) legislation from its mandate”. If that wasn’t clear enough the Bulletin goes on to state that “The ERCB is proposing to repeal Sections 28 to 31 of the CCA, [Coal Conservation Act, RSA 2000, c. C-17], Section 43 of the OGCA, [Oil and Gas Conservation Act, RSA 2000, c. O- 6] and Section 12 of the OSCA [Oil Sands Conservation Act, RSA 2000, c. O- 7]. The ERCB is also proposing to modify the definitions of a “processing plant” and “oil sands products” under the OSCA to provide greater clarity as to what types of facilities would fall under the ERCB’s jurisdiction.”

Alberta Makes Significant Progress in Establishing a Legal and Regulatory Regime to Accommodate Carbon Capture and Storage (CSS) Projects

By: Nigel Bankes

PDF Version: Alberta Makes Significant Progress in Establishing a Legal and Regulatory Regime to Accommodate Carbon Capture and Storage (CSS) Projects

Legislation Commented On: Bill 24, Carbon Capture and Storage Statutes Amendment Act, 2010, The Legislative Assembly of Alberta, Third Session, 27th Legislature, 59 Elizabeth II

On November 1, 2010 the Minister of Energy introduced in the legislature Bill 24, the Carbon Capture and Storage Statutes Amendment Act. If and when enacted, the Bill will amend four of the provinces’s energy statutes, the Energy Resources Conservation Act (ERCA), RSA 2000, c.E-10, the Mines and Minerals Act (MMA), RSA 2000, c. M-17, the Oil and Gas Conservation Act (OGCA), RSA 2000, c.O-6 and the Surface Rights Act (SRA), RSA 2000, c.S-24, all in a bid to accommodate CCS projects and provide clear legal and regulatory rules for such projects. This blog focuses on the amendments to the MMA and the OGCA.

The Supreme Court of Canada clarifies the role of administrative tribunals in discharging the duty to consult

PDF version: The Supreme Court of Canada clarifies the role of administrative tribunals in discharging the duty to consult 

Case considered: Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43

In the 1950s British Columbia authorized Alcan to develop the Nechako and Kemano Rivers for power purposes to supply Alcan’s aluminum facility at Kitimat. This development occurred in the traditional territory of the Carrier Sekani Tribal Council (CSTC) First Nations. There was no consultation at that time. Since then Alcan has sold excess power from its facilities to BC Hydro (a Crown corporation) and in 2007 the parties negotiated an energy purchase agreement (EPA) to cover the period up until 2034. Sales have been growing in recent years as Alcan has found it more profitable to generate electricity than make aluminum: Kitimat (District) v. British Columbia (Minister of Energy and Mines), 2008 BCCA 81.

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