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.

Community Generation Projects in Alberta

By: Nigel Bankes

PDF Version: Community Generation Projects in Alberta

Regulation and Decisions Commented On: Small Scale Generation Regulation, Alta Reg 194/2018 and five decisions of the Alberta Utilities Commission (AUC): (1) AUC Decision 24857-D01-2020, Three Nations Energy GP Inc., Fort Chipewyan Solar Generation Facility (Phase 2),  January 15, 2020; (2) AUC Decision 25236-D01-2020, Peavine Metis Settlement, 4.97-Megawatt Community Solar Power Plant, May 4, 2020; (3) AUC Decision 25459-D01-2020, Innisfail Solar Corporation, Innisfail Solar Project Time Extension and Community Generation Designation, May 21, 2020; (4) AUC Decision 24845-D04-2020, 2113260 Alberta Ltd., Community Generation Designation for Oyen Community Solar Project, June 17, 2020; and (5) AUC Decision 25471-D01-2020, 2181731 Alberta Ltd., Vulcan County Community Solar Project, June 25, 2020.

While the Kenney government declined to commit to new rounds of procurements to meet the target of 30% renewables by 2030 established by the Renewable Electricity Act, SA 2016, c R-16.5 (surprisingly, still in force), it has continued with a renewables incentive program provided for under the Small Scale Generation Regulation, Alta Reg 194/2018 (SSGR), including the concept of community generation projects designed to foster community sponsored renewables projects. This post examines the terms of that regulation as well as practice to date under the regulation.

The SSGR applies to three categories of small scale generation projects: (1) small scale projects (generally), (2) small scale community generation projects, and (3) small scale community generation projects that are located within an isolated community. The second and third categories are sub-sets of the first. None of these projects require any degree of self-supply in order to qualify as eligible projects.

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The Fair Deal Panel Report – and the British North America Act?

By: Nigel Bankes

 PDF Version: The Fair Deal Panel Report – and the British North America Act?

Report Commented On: Fair Deal Panel, Report to Government, May 2020

The Kenney government has now released the Report of the Fair Deal Panel. It is not a good read. Many sections are poorly written and poorly reasoned. But since ABlawg is a blog on legal developments, let’s start with the title to this post and the decision of the authors to refer to Canada’s founding constitutional document as the British North America Act (BNA Act) of 1867.

While the authors concede (at 13) that the BNA Act is also known as the Constitution Act, 1867, they consistently refer to the BNA Act throughout the report. This is simply wrong, and it has been wrong since 1982 when Canada adopted the Constitution Act, 1982. That Act includes a Schedule entitled “Modernization of the Constitution” (emphasis added) which serves to rename elements of the Constitution. In particular, item 1 in the Schedule renames the BNA Act of 1867 the Constitution Act, 1867. It repeals the title to the old BNA Act.

This may seem, especially to non-lawyers, a relatively trivial point (perhaps the Panel members just made an elementary mistake, despite having two lawyers on the Panel), but perhaps there is something deeper going on. Perhaps the Panel, consciously or unconsciously, is hearkening back to the “golden” days of Empire and reaffirming the institution of the Monarchy; or perhaps the Panel is somehow questioning the legitimacy of the patriation of the Constitution and its (Pierre) Trudeau Charter? But none of that makes any sense. As the statue topplers remind us, there was nothing especially golden about the Empire, and there is one element of the 1982 constitutional package that Alberta continues to rely on heavily. That is the addition of section 92A, the resources amendment, to the Constitution Act, 1982. That amendment afforded the provinces greater powers over the regulation of oil and gas, electricity, and other natural resources.

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Oil Sands Approvals and Bill 22, the Red Tape Reduction Implementation Act, 2020

By: Nigel Bankes

PDF Version: Oil Sands Approvals and Bill 22, the Red Tape Reduction Implementation Act, 2020

Bill Commented On: Bill 22, Red Tape Reduction Implementation Act, 2020

This post deals with one aspect of this large omnibus bill, namely the proposed amendment to the Oil Sands Conservation Act, RSA 2000, c O-7 (OSCA). This amendment will remove the need to seek Cabinet authorization for the approval of new oil sands projects and related processing facilities. More specifically, this post assesses whether the amendment will have any implications for the Crown’s duty to consult First Nations and Métis communities, and to observe the honour of the Crown in its dealings with those communities. The main conclusion is that these proposed changes will not simplify or shorten the steps that the Crown needs to take to discharge its constitutional responsibilities. None of these responsibilities constitute “red tape.” Any shortening in project review timelines as a result of removing the opportunity for Cabinet review will be no more than a few months (a drop in the bucket in the time frame for characterizing and developing a new oil sands prospect), a steep price to pay for the loss of an opportunity to hit pause, or to impose additional terms and conditions to protect the public interest.

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The Implementing Regulation for Bill 12: The Liabilities Management Statutes Amendments Act, 2020

By: Nigel Bankes

PDF Version: The Implementing Regulation for Bill 12: The Liabilities Management Statutes Amendments Act, 2020

Matter Commented On: Orphan Fund Delegated Administration Amendment Regulation, OC 174/2020

Bill 12, the Liabilities Management Statutes Amendments Act, 2020, amongst other things, authorized the delegation of additional responsibilities to the Orphan Well Association (OWA). I provided commentary on Bill 12 in a previous post here. The entry into force of Bill 12 is set for June 15, 2020, and this amendment to the Orphan Fund Delegated Administration Regulation, Alta Reg 45/2001 (Delegation Regulation), effective the same day, implements that incremental delegation and clarifies some additional issues.

This post draws attention to four elements of the amendment: (1) the definitions of “holder of the mineral rights” and of “person who has the right to win, work and recover a mineral”; (2) the limitation of liability provisions of the Delegation Regulation; (3) the applicability of the audit and inspection provisions of the Government Organization Act, RSA 2000 c G-10 (GOA); and (4) the enhanced authority of the OWA to enter into and expend funds pursuant to “agreements” with other parties. Continue reading →

Different Uses of Subsurface Storage Space: Natural Gas Storage or Compressed Air Energy Storage?

By: Nigel Bankes

PDF Version: Different Uses of Subsurface Storage Space: Natural Gas Storage or Compressed Air Energy Storage?

Decision commented on: OEB Decision and Order EB-2019-0287, Tribute Energy Storage Inc., Application for an order to revoke the designation of the natural gas storage areas known as the Bayfield Pool and the Stanley 4-7-XI Pool, in the County of Huron, April 9, 2020

This post focuses on an application by the project proponent and licensee (Tribute or TESI) to have the Ontario Energy Board (OEB) revoke an existing designation of a depleted gas reservoir as a natural gas storage area, with a view to potentially having the same reservoir re-licensed as a site for compressed air energy storage (CAES).

While the application to revoke the designation is the focus of this post, there are two other underlying themes. The first is the question about how we make decisions on the competing uses of underground (storage) space or pore space. I have commented on this issue before on ABlawg; the most recent post is here, with links to earlier posts. A second theme relates to the importance of establishing appropriate rules for energy (electricity) storage projects, whether these projects are battery projects, pumped hydro or, compressed air energy storage. These rules include not only the necessary tenure and licensing rules for the physical project, which is the focus here, but also, in some cases, the appropriate market rules. Should a storage project be treated as generation to the extent that it supplies energy? Should it be treated as load to the extent that it draws energy to pump water upstream or to inject compressed air? Should it be treated as transmission to the extent that it might avoid the need to reinforce transmission to an in isolated community? And how should storage be able to participate in the different ancillary markets? The appropriate characterization is important because characterization affects how the provider is compensated – either by market rules or cost of service.

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