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.

Ethics Commissioner Confirms that Premier Danielle Smith Breached the Conflicts of Interest Act – and a Fundamental Principle of Our Democracy

By: Nigel Bankes, Jennifer Koshan, and Martin Olszynski

Matter commented on: Office of the Ethics Commissioner, Report of Findings and Recommendations into allegations involving Hon. Danielle Smith, Member for Brooks-Medicine Hat, Premier of Alberta, May 17, 2023

PDF Version: Ethics Commissioner Confirms that Premier Danielle Smith Breached the Conflicts of Interest Act – and a Fundamental Principle of Our Democracy

In early January of this year, Premier Danielle Smith participated in a lengthy telephone conversation with Pastor Artur Pawlowski, who was at that time facing criminal charges and charges under the provincial Critical Infrastructure Defence Act, SA 2020, c C-32.7 in relation to the Coutts blockade. Artur Pawlowski recorded a video of that call that subsequently became available to the public. That recording triggered complaints to the Ethics Commissioner under the Conflicts of Interest Act, RSA 2000, c C-23 (COIA) by a private citizen and by Irfan Sabir, MLA for Calgary-Bhullar-McCall and NDP Justice Critic. Continue reading →

First Arbitration Award under the Nunavut Agreement

By: Nigel Bankes

Matter commented on: Arbitration Award in The Inuit of Nunavut as represented by Nunavut Tunngavik Incorporated v His Majesty the King in Right of Canada as represented by the Minister of Crown-Indigenous Relations and The Commissioner of Nunavut as represented by the Government of Nunavut, and the Government of Nunavut as represented by the Premier of Nunavut, and the Government of Nunavut, Initial Decision, March 25, 2023.

PDF Version: First Arbitration Award under the Nunavut Agreement

This is the first Arbitration Award under the revised dispute resolution provisions of the Nunavut Agreement (1993). The Nunavut Agreement is the constitutionally protected land claims agreement between the Inuit of Nunavut and the Governments of Canada (GoC) and Nunavut (GN). In this Award, the Honourable Constance Hunt, acting as the sole arbitrator, has issued a series of declarations concluding that Inuit Employment Plans (IEPs) prepared by each of the GN and GoC fell short of the obligations of government under the terms of Article 23 of the Nunavut Agreement (NA). Article 23 of the NA is entitled “Inuit Employment within Government”. Continue reading →

Stores Block Meets Vavilov: The Status of Pre-Vavilov ABCA Decisions

By: Nigel Bankes

Decision commented on: ATCO Electric Ltd v Alberta Utilities Commission, 2023 ABCA 129 (CanLII)

PDF Version: Stores Block Meets Vavilov: The Status of Pre-Vavilov ABCA Decisions

This case is an appeal of the ATCO Fort McMurray fire decision of the Alberta Utilities Commission (AUC). In this case, a panel of the Court of Appeal made an important statement as to the status of previous court decisions on AUC-related matters that were rendered prior to the Supreme Court of Canada’s decision in Minister of Citizenship and Immigration v Vavilov, 2019 SCC 65. Continue reading →

Premier Danielle Smith and the (Non) Observance of Constitutional Conventions

By: Nigel Bankes and Jennifer Koshan

Matter Commented On: Premier Smith’s interactions with the Department of Justice in the matter of Artur Pawlowski

PDF Version: Premier Danielle Smith and the (Non) Observance of Constitutional Conventions

For the past several weeks, news outlets have been reporting on Premier Danielle Smith’s involvement in prosecutions for COVID-19 and Coutts border blockade related offences. Most recently, a video was leaked of Premier Smith’s conversation with Artur Pawlowski, who is facing criminal charges for the Coutts blockade that Smith said she would discuss with Justice officials. One issue that has not squarely been addressed is the significance of whether Premier Smith actually spoke to prosecutors in Pawlowski’s case, or whether she just spoke to officials within the Department of Justice, including the Deputy Attorney General, about the case.  The Premier’s back and forth on who she contacted suggests she believes this distinction matters, such that if she “only” did the latter she did not breach any constitutional convention relating to prosecutorial independence. In our view this is incorrect. Any contact by the Premier with the Department of Justice in relation to any particular case or class of cases is inconsistent with the constitutional conventions associated with the prosecution of criminal charges. These constitutional conventions are essential elements of the rule of law, the separation of powers, and ideas of equality before the law. Continue reading →

What is the Status of the Shell/Pieridae Deal and What is the AER Doing?

By: Nigel Bankes

Matter commented on: Deferred Shell/Pieridae Licence Transfer Application: Amended Notice of Hearing, Proceeding 410, Shell Canada Limited and Pieridae Alberta Production Ltd., Caroline, Waterton, and Jumping Pound, and 2022 ABAER 001.

PDF Version: What is the Status of the Shell /Pieridae Deal and What is the AER Doing?

In 2019, Shell Canada, an international major, entered into a purchase and sale agreement (PSA) with Pieridae Alberta Production Ltd. The PSA contemplated that Shell would sell Pieridae its interests in what are known as Shell’s ‘Foothills Natural Gas Assets’ in Alberta: the Waterton, Jumping Pound, and Caroline fields. These assets are all sour gas assets meaning that they are rich in hydrogen sulphide, thus their development and continuing production pose considerable risks to human health as well as technical risks to the integrity of facilities that must be carefully managed. Continue reading →