Author: Nigel Bankes Page 14 of 87

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.

By: Nigel Bankes & Andrew Leach

Opinion Commented On: Reference re Impact Assessment Act, 2022 ABCA 165 (CanLII).

PDF Version: The Rhetoric of Property and Immunity in the Majority Opinion in the Impact Assessment Reference

The Alberta Court of Appeal recently released its opinion in Reference re Impact Assessment Act, 2022 ABCA 165 (CanLII). A majority of the Court found the Impact Assessment Act, SC 2019, c. 28, s 1 [IAA] to be unconstitutional. Our colleague Martin Olszynski has already summarized the majority’s approach and some of the doctrinal difficulties therein.

In this post, we consider in more detail the majority’s lengthy discussion of the historical evolution of the resource rights of the prairie provinces from the creation of Alberta and Saskatchewan as provinces in 1905, through to the Natural Resources Transfer Agreements (NRTAs) of 1930, culminating with the adoption of s 92A (the Resources Amendment) in 1982.

If A Land Claims Agreement Says That You Must Resolve The Dispute Through Arbitration, Then That’s What You Must Do

By Nigel Bankes

On March 31, 2022

In Aboriginal

By: Nigel Bankes

PDF Version: If A Land Claims Agreement Says That You Must Resolve The Dispute Through Arbitration, Then That’s What You Must Do

Case Commented On: Newfoundland and Labrador v Nunatsiavut Government, 2022 NLCA 19 (CanLII)

If a land claims agreement says that you must resolve the dispute through arbitration, then that’s what you must do. That’s the blunt (and perhaps obvious) conclusion of the Newfoundland and Labrador Court of Appeal in this decision involving the terms of the Labrador Inuit Land Claims Agreement (Agreement).

There could be little doubt that the Agreement did in fact stipulate that a dispute of this nature (a dispute relating to the determination and sharing of revenues from the Voisey’s Bay project) must be referred to arbitration (see the combined effect of ss 7.6.9 and 21.9.1of the Agreement, as discussed at paras 34 -52). But in this case, the Nunatsiavut government had submitted the dispute to the provincial superior court, and the provincial government had failed to take any objection to that course of action; until it lost at trial (Nunatsiavut Government v Newfoundland and Labrador, 2020 NLSC 129 (CanLII))and the matter went on appeal to the Court of Appeal.

The Sad State of Regional Land Use Planning in Alberta

By Nigel Bankes

On March 10, 2022

In Land Use

By: Nigel Bankes, Sharon Mascher & Martin Olszynski

PDF Version: The Sad State of Regional Land Use Planning in Alberta

Matters Commented On: (1) Coal Policy Committee, Final Report: Recommendations for the Management of Coal Resources in Alberta, December 2021, released to the public March 4, 2022, (2) Minister Sonya Savage, Press Release, Getting it Right on Coal in Alberta, March 4, 2022, (3) Lower Athabasca Regional Plan, and (4) South Saskatchewan Regional Plan

The release of the Coal Policy Committee Recommendations on March 4, 2022, offers three reminders as to the sad state of regional land use planning in Alberta. The first reminder is that 14 years after the adoption of the much-heralded Land Use Framework in 2008, and 13 years after the adoption of the Alberta Land Stewardship Act, SA 2009, c A-26.8 (ALSA), we still have only two approved plans in Alberta, the Lower Athabasca Regional Plan (LARP) (approved August 22, 2012, and brought into force September 1, 2012) and the South Saskatchewan Regional Plan (SSRP) (adopted in 2014). This was significant to the Coal Policy Committee because it meant that while plans adopted under ALSA might ultimately supersede the “nascent form of land-use planning” (at 22) embodied in the “coal categories” of the 1976 Coal Policy, we are still awaiting plans for the balance of the eastern slopes of the Rockies north of the SSRP, namely for the North Saskatchewan, the Upper Athabasca and the Upper Peace regions (see Figure 1, below).

The Regulation of District Energy Systems in Alberta: Part 3

By Nigel Bankes

On March 7, 2022

In Energy, Utility Regulation

By: Nigel Bankes

PDF Version: The Regulation of District Energy Systems in Alberta: Part 3

Decision Commented On: AUC Decision 26717-D01-2022, Calgary District Heating Inc. Exemption from Provisions of the Public Utilities Act, March 2, 2022

As the title indicates, this is my third post dealing with the regulation of district energy systems in Alberta. My first post, “Regulatory Forbearance and The Status of District Energy Systems Under the Public Utilities Act”, dealt with an application by ENMAX for relief from the entirety of Part 2 of the Public Utilities Act, RSA 2000, c P-45, (PUA) as it might apply to a proposed district energy system in Edmonton (Edmonton DE Decision). The Alberta Utilities Commission (AUC) denied the application. It concluded that ENMAX had not discharged its onus to show that (at para 35) “sufficient competition will exist such that regulation of ENMAX in its provision of thermal energy within the exclusive franchise area is unnecessary; or, stated in another way, that it would be in the public interest to exempt DE Edmonton and ENMAX (as its owner and operator) from Part 2 of the Public Utilities Act.” Rather, the evidence that customers who agreed to take service from the district energy facility and removed their existing boilers would effectively be captive to the service provided by ENMAX. While there was some discussion of whether more limited exemptions would protect these customers, it became clear that ENMAX’s application was in the nature of an “all-or-nothing application.” Accordingly, the AUC found it unnecessary to opine on the acceptability of a more limited set of exceptions.

Province of Alberta Issues a Request for Full Project Proposals For Carbon Sequestration Hubs

By Nigel Bankes

On December 7, 2021

In Energy, Environmental

By: Nigel Bankes

PDF Version: Province of Alberta Issues a Request for Full Project Proposals For Carbon Sequestration Hubs

Document Commented On: Request for Full Project Proposals For Carbon Sequestration Hubs, December 2, 2021

Following an earlier announcement (Information Letter 2021-19) in May 2021 (commented on here) and then a call for Expressions of Interest (EOI) in September (commented on here, the link to the EOI is now broken and the EOI no longer seems to be available), the province has now moved to the next stage in developing its hub-based carbon capture and storage (CCS) policy with the issuance of a “Request for Full Project Proposals For Carbon Sequestration Hubs” (RFPP). This latest RFPP indicates that

Author: Nigel Bankes Page 14 of 87

The Rhetoric of Property and Immunity in the Majority Opinion in the Impact Assessment Reference

If A Land Claims Agreement Says That You Must Resolve The Dispute Through Arbitration, Then That’s What You Must Do

The Sad State of Regional Land Use Planning in Alberta

The Regulation of District Energy Systems in Alberta: Part 3

Province of Alberta Issues a Request for Full Project Proposals For Carbon Sequestration Hubs