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 relationship between the well licence jurisdiction of the Energy Resources Conservation Board and the jurisdiction of the Surface Rights Board

Cases Considered: EnCana Corporation v. Campbell, [2008] ABQB 234

PDF Version: The relationship between the well licence jurisdiction of the Energy Resources Conservation Board and the jurisdiction of the Surface Rights Board

Justice Crighton’s decision in EnCana v. Campbell suggests that land owners may be able to use the Surface Rights Board (SRB) to require an oil and gas operator to follow more stringent conditions in relation to surface access and related matters such as weed control and water quality protection and testing than may be prescribed in the terms of a well licence or the Energy Resources Conservation Board (ERCB)’s Oil and Gas Conservation Regulations. Given the potential surface impacts of coal bed methane (CBM) development in the province and the uncertainties associated with the effect of CBM operations on ground water quality this is an important development. But while it offers additional protection for surface owners it also has the potential for a patchwork of environmental requirements etc. which may vary from property to property. This may well be a case where the re-born ERCB needs to be more proactive and precautionary so as to reflect the concerns of and uncertainties faced by landowners especially with respect to such an important matter as water quality.

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The Federal Government’s Climate Change Policy and the Role of Carbon Capture and Storage

PDF Version: The Federal Government’s Climate Change Policy and the Role of Carbon Capture and Storage

In April 2007 the federal government introduced a new greenhouse gas policy, Regulatory Framework for Air Emissions. On March 10, 2008, it tabled a series of additional documents: (1) Taking Action to Fight Climate Change, (2) Regulatory Framework for Industrial Greenhouse Gas Emissions, (3) Canada’s Offset System for Greenhouse Gases, (4) Canada’s Credit for Early Action Program, and (5) Detailed Emissions and Economic Modelling (all available here). These documents provide further guidance and detail on the implementation of the April 2007 proposals. Further details will be provided when the promised regulations appear in draft form but that will not happen before the fall of 2008.

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Calculating the Price of Gas: Wet or Dry?

Cases Considered: Cargill Gas Marketing Ltd. v. Alberta Northeast Gas Limited, 2008 ABQB 59

PDF Version: Calculating the Price of Gas: Wet or Dry?

When gas is sold on the basis of its thermal or heating value it is necessary to provide a formula for converting delivered volumes (Mcf) into British thermal units or equivalent. And it makes a difference whether the formula uses an assumption of wet gas or dry gas. Wet gas will have a lower heating content than dry. But what happens if the formula prescribes the use of wet gas but in fact actual deliveries under the contract have always been dry gas? This was the issue before Justice T.F. McMahon in the present case.

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Environmental Permitting and the Scope of the Duty to Consult

Cases Considered: Siksika First Nation v. Alberta (Director Southern Region Environment) 2007 ABCA 402

PDF Version: Environmental Permitting and the Scope of the Duty to Consult

The Town of Strathmore faced a sewage problem. It proposed to deal with that problem by constructing a pipeline and disposing of some of its waste water into the Bow above the Siksika Reserve. Not surprisingly the Siksika took a dim view of this and when the Director approved the town’s application under the Environmental Protection and Enhancement Act, R.S.A. 2000, c. E-12, the Siksika appealed that decision to Alberta’s Environmental Appeal Board (the EAB). The Siksika also sought judicial review arguing amongst other things that the government of Alberta was in breach of its constitutional duty to consult the Nation. Justice Peter McInytre (oral reasons for judgement, available on the EAB’s website ) rejected the Siksika’s JR application on the grounds that the Siksika’s application was premature and therefore moot (because they might succeed before the EAB). In addition Justice McIntyre reasoned that the EAB procedure (and subsequent consideration of the EAB decision by the Minister) might cure any defect (want of consultation) there might have been in the Director’s procedure. There is no suggestion that Justice McIntyre rejected the application on the basis that the Siksika had not exhausted their local remedies.

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What Zones Were the Subject of a Unitization Agreement?

Case Considered: Signalta Resources Limited v. Dominion Exploration Canada Limited, 2007 ABQB 636

Keywords: oil and gas law, expert witnesses, unit agreements, limitations, damages

PDF Version: What Zones Were the Subject of a Unitization Agreement?

The question of what substances are the subject of a unitization has been before the courts on at least one other occasion in Prism Petroleum Ltd v Omega Hydrocarbons Ltd, [1994] 6 WWR 585 (Alta. C.A.). The issue in that case involved a split petroleum and natural gas title. Signalta v. Dominion does not involve a split title in that sense. Rather the issue was whether the title that had been committed to a unitization agreement was confined to the Viking or whether it also included the Glauconite. Put in these terms the issue seems relatively simple but the paper trail was very complex. Combine a complex set of facts with competing expert opinions from well known legal (Ballem and Thackray) and land (O’Byrne) experts and the result is a very lengthy 74 page judgement from Justice A.G. Park in which he concluded that the Glauconite for the relevant tract was never included in the original unitization.

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