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ABlawg’s Clawbie Nominations for 2017

In this year where we marked the 150th anniversary of the Canadian federation – for all its flaws and omissions – ABlawg nominates a number of Canadian law blogs with a constitutional / public law focus:

Thanks to all Canadian law bloggers for a wonderful and stimulating year of reading! #clawbies2017

Tolling Methodologies On Federally Regulated Pipelines In Northeast British Columbia

By: Nigel Bankes

PDF Version: Tolling Methodologies On Federally Regulated Pipelines In Northeast British Columbia

Matters Commented On: (1) National Energy Board (NEB), Letter decision on the Application of Westcoast Energy Inc for Review of the Decision of Members Ballem and Lytle, in Report GH-003-2015 (Towerbirch Report), Respecting the Toll Treatment of the Tower Lake Section (TLS), and (2) NEB letter to NOVA Gas Transmission Ltd (NGTL), Westcoast Energy Inc (Westcoast) and Alliance Pipeline Ltd (Alliance), re Examination to Determine Whether to Undertake an Inquiry of the Tolling Methodologies, Tariff Provisions and Competition in Northeast BC, 16 March 2017 (the Tolling Methodology Process Letter).

Northeast British Columbia is an area of expanding natural gas production due to a number of significant shale gas plays in the area including Horn River, Liard, and Montney.

Historically this area of the province was first served for conventional sour gas production by Westcoast Transmission. Westcoast offered producers a bundled service including sour gas processing as well as mainline transmission down to the lower mainland and on to serve markets in the Pacific Northwest. This entire system has long been federally regulated by the National Energy Board (NEB), a practice that was legally and constitutionally confirmed by the majority judgement of the Supreme Court of Canada in Westcoast Energy Inc. v. Canada (National Energy Board), [1998] 1 SCR 322, 1998 CanLII 813 (SCC). More recently the area has also come to be served by Alliance’s “bullet pipeline” and by extension of the NGTL system from Alberta into BC. The Alliance Pipeline is a point-to-point pipeline which transports liquids rich gas from this area and northwest Alberta to the Chicago market hub. Alliance came on stream in 2000. Its construction was backed by 15 year contracts. Few shippers elected to renew and “accordingly, Alliance developed its New Services Offering (NSO), which incorporated new services and tolling methodologies on the pipeline. Alliance applied for Board approval of the NSO in 2014.” The Board’s Reasons for Decision on that matter (RH-002-2014) are available here. The NGTL system is the old NOVA intraprovincial transmission system which began life in the 1950s under the name Alberta Gas Trunk Line (AGTL) and subsequently morphed into NOVA before merging with TransCanada PipeLines (TCPL) in 1998. Historically, AGTL and NOVA were provincially regulated until brought under federal regulation in 2009: see ABlawg post here. The AGTL\NOVA business model was quite different from that of Westcoast. NOVA focused its attention on the transmission system and left the producers to assume responsibility for owning and constructing in-field processing facilities to produce pipeline quality gas for delivery to the AGTL\NOVA system.

The result of these developments is that the natural gas transmission scene in northeast BC no longer looks like a natural monopoly, and has not for some long time. Instead, there is competition for natural gas production and competition to fill transmission systems with gas. No pipeline system feels this more acutely than the NGTL system and its sister, the TCPL mainline, which needs additional volumes of gas to make up for the declines in conventional gas production in the western Canadian Sedimentary Basin (WCSB). Continue reading →

Supreme Court to Render Judgment in Ernst on Friday

PDF Version: Supreme Court to Render Judgment in Ernst on Friday

Case Commented On: Ernst v Alberta Energy Regulator, 2013 ABQB 537, aff’d 2014 ABCA 285, leave to appeal granted April 30, 2015 (SCC)

On Friday, January 13, 2017, the Supreme Court of Canada will deliver its long-awaited judgment in Jessica Ernst v. Alberta Energy Regulator. As Jessica Ernst notes on her blog, the appeal was heard on January 12, 2016, making it the only case from the 2016 spring session in which the Court has not yet rendered judgment.

The case involves the issue of whether a statutory immunity clause (in this case, s 43 of the Energy Resources Conservation Act, RSA 2000, c E-10) can bar a Charter claim for a remedy under s 24(1) of the Charter (in this case, a claim for damages for an alleged violation of Ernst’s freedom of expression by the respondent regulator). Earlier decisions in the case involved broader issues related to administrative law and negligence as against the regulator, the provincial government, and Encana for the contamination of Ms. Ernst’s groundwater allegedly caused by Encana’s hydraulic fracturing operations in the Rosebud area. ABlawg has posted several comments on this litigation, which are available here (from most recent to oldest):

Jennifer Koshan, Leave to Appeal granted in Ernst v Alberta Energy Regulator

Shaun Fluker, Ernst v Alberta Environment: The Gatekeeper Refuses to Strike or Grant Summary Judgment

Martin Olszynski, Regulatory Negligence Redux: Alberta Environment’s Motion to Strike in Fracking Litigation Denied

Jennifer Koshan, The Charter Issue(s) in Ernst: Awaiting Another Day

Shaun Fluker, Ernst v Alberta (Energy Resources Conservation Board): The Gatekeeper is Alive and Well

Martin Olszynski, Revisiting Regulatory Negligence: The Ernst Fracking Litigation

Watch for commentary on the forthcoming SCC decision on ABlawg.

ABlawg’s Clawbie Nominations for 2016

PDF Version: ABlawg’s Clawbie Nominations for 2016

Like many of our colleagues at law schools across the country, this year the University of Calgary Faculty of Law has been working towards developing our response to the Calls to Action of Canada’s Truth and Reconciliation Commission. In the spirit of the Commission’s significant work, our nominations for the Clawbies this year are law blogs that have made us think deeply and creatively about reconciliation:

We encourage our readers to submit your nominations for the Clawbies by following the instructions here.

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ABlawg’s Year in Review, 2016

PDF Version: ABlawg’s Year in Review, 2016

ABlawg is pleased to provide this compilation of highlights from 2016, consisting of some statistics and synthesis of our bloggers’ contributions in substantive areas of law this past year.

The Numbers

ABlawg has published one hundred and fifty (150) posts so far in 2016, with more to come before we take our annual holiday hiatus. The post that generated the most hits this year was Nigel Bankes’ The Termination of Power Purchase Arrangements in Alberta: What is the Legal Position and What are the Implications of Termination?, with 6071 views overall, showing the appetite for informed public policy discussions in Alberta. The runners-up were three posts on the Ghomeshi trial: Joshua Sealy-Harrington’s Mastery or Misogyny? The Ghomeshi Judgment and Sexual Assault Reform, with 5178 views overall, Jennifer Koshan’s Reflections on Week One of the Ghomeshi Trial, with 3798 views overall, and Alice Woolley’s What Ought Crown Counsel to do in Prosecuting Sexual Assault Charges? Some Post-Ghomeshi Reflections, with 2827 views overall. “Mastery or Misogyny” also established a new record for daily hits to ABlawg, with 2989 views of our site the day it was posted.

The post that spurred the most comments in 2016 was Martin Olszynski’s Northern Gateway: Federal Court of Appeal Applies Wrong CEAA Provisions and Unwittingly Affirms Regressiveness of 2012 Budget Bills. This post led to an intense debate on the proper interpretation of the Canadian Environmental Assessment Act, 2012, with Martin’s position being recently adopted by both the appellant and respondent before the Supreme Court of Canada, as discussed in his most recent comment on that post.

Continue reading →