Author: Nigel Bankes Page 18 of 89

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.

Supreme Court of Canada Re-writes the National Concern Test and Upholds Federal Greenhouse Gas Legislation: Part II (The Dissents)

By Nigel Bankes

On April 29, 2021

In Climate Change, Environmental, Supreme Court of Canada

By: Nigel Bankes, Andrew Leach & Martin Olszynski

PDF Version: Supreme Court of Canada Re-writes the National Concern Test and Upholds Federal Greenhouse Gas Legislation: Part II (The Dissents)

Case Commented On: References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 (CanLII)

This is the second in a series of posts on the Supreme Court of Canada’s much-anticipated reference opinion regarding the constitutionality of the federal government’s greenhouse gas (GHG) pricing regime: Reference re Greenhouse Gas Pollution Pricing Act , 2021 SCC 11 (CanLII) (GGPPA Reference) (Greenhouse Gas Pollution Pricing Act, SC 2018, c 12, s 186 (GGPPA). The first post summarized the legislation and the majority opinion written by Chief Justice Richard Wagner. In this post, we summarize the dissenting opinions of Justices Suzanne Côté, Russell Brown and Malcolm Rowe. Our goal in reviewing the dissents is to highlight areas of agreement and disagreement between the majority and the dissents.

Supreme Court of Canada Re-writes the National Concern Test and Upholds Federal Greenhouse Gas Legislation: Part I (The Majority Opinion)

By Nigel Bankes

On April 28, 2021

In Climate Change, Environmental, Supreme Court of Canada

By: Nigel Bankes, Andrew Leach & Martin Olszynski

PDF Version: Supreme Court of Canada Re-writes the National Concern Test and Upholds Federal Greenhouse Gas Legislation: Part I (The Majority Opinion)

Case Commented On: References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 (CanLII)

The essential factual backdrop to these appeals is uncontested. Climate change is real. It is caused by greenhouse gas emissions resulting from human activities, and it poses a grave threat to humanity’s future. The only way to address the threat of climate change is to reduce greenhouse gas emissions… (References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 (CanLII) at para 2)

On March 25, 2021, the Supreme Court of Canada released its much-anticipated reference opinion regarding the constitutionality of the federal government’s greenhouse gas (GHG) pricing regime. In Reference re Greenhouse Gas Pollution Pricing Act , 2021 SCC 11 (CanLII) (GGPPA Reference or the Reference), a majority of the Supreme Court held that the Greenhouse Gas Pollution Pricing Act, SC 2018, c 12, s 186 (GGPPA) fell within Parliament’s residual power to make laws for “peace, order, and good government” (POGG), as set out in section 91 of the Constitution Act, 1867. Writing for the majority, Chief Justice Richard Wagner concluded that setting minimum national standards of GHG price stringency to reduce GHG emissions was a “matter of national concern” (at para 4), a recognized branch of the POGG power. Justices Suzanne Côté, Russell Brown, and Malcolm Rowe dissented, each for different reasons. Importantly, Justice Côté agreed with the majority on the national concern issue.

Coal Law and Policy Part Six: Coal Consultation Terms of Reference

By Nigel Bankes

On April 21, 2021

In Energy, Environmental

By: Nigel Bankes

PDF Version: Coal Law and Policy Part Six: Coal Consultation Terms of Reference

Matter Commented On: Terms of Reference for the Coal Policy Consultation Committee, dated March 29, 2021

This is the sixth instalment in the ABlawg series on coal law. See Part One: the Coal Policy and Its Legal Status, the special edition: What Are the Implications of Reinstating the 1976 Coal Development Policy?, Part Two: The Rules for Acquiring Coal Rights and the Royalty Regime, Part Three: Was the Public Rationale for Rescinding the Coal Policy Ever Convincing?, Part Four: The Regulation of Coal Exploration, and Part Five: What is the Role of the Federal Government in Relation to Alberta Coal Mines?

These previous posts have traced recent developments in coal law and policy in Alberta, including the revocation of the Coal Development Policy of 1976 effective June 1, 2020, the limited reinstatement of that Policy on February 8, 2021 following broad opposition from civil society, and the promise by the Minister of Energy, Sonya Savage to engage in “widespread consultations on a new coal policy.”

Following that last announcement (which was also accompanied by a Ministerial Directive to the Alberta Energy Regulator, available as an appendix to Department of Energy, Information Letter IL 2021-07) and a second (February 23, 2021) news release promising “a comprehensive consultation plan”, the Minister went on most recently to establish (March 29, 2021, Engaging with Albertans on a modern coal policy) the Coal Policy Consultation Committee (CPCC). The Committee is to be chaired by Ron Wallace, a former member of the National Energy Board. The four other members are Fred Bradley, a former conservative MLA and former Alberta minister of the environment, Natalie Charlton, the executive director of the Hinton and District Chamber of Commerce, Bill Trafford, the president of the Livingstone Landowners’ Group, and Eric North Peigan, who is a small business owner and a member of Piikani Nation.

Coal Law and Policy in Alberta, Part Three: Was the Public Rationale for Rescinding the Coal Policy Ever Convincing?

By Nigel Bankes

On February 15, 2021

In Energy, Environmental

By: Nigel Bankes

PDF Version: Coal Law and Policy in Alberta, Part Three: Was the Public Rationale for Rescinding the Coal Policy Ever Convincing?

Matter Commented On: Information Letter 2020-23, “Rescission of A Coal Development Policy for Alberta and new leasing rules for Crown coal leases” (15 May 2020)

While Minister Savage announced the temporary reinstatement of the 1976 Coal Development Policy (CDP) on February 8, 2021, it still seems worth examining the public justification offered by the Government of Alberta for rescinding the CDP. The principal justification advanced was that the CDP was obsolete in light of developments in law and regulation. One version of this justification was posted on the coal policy guidelines page of the Department of Energy’s web page. The text is no longer available online, but it read as follows:

The Coal Policy was originally published in 1976, before modern regulatory processes existed. The scope of the policy was wide-ranging and included, among other items, a land use classification system…. When these categories were created, land use planning hadn’t yet been completed, supporting infrastructure was lacking and there were environmental concerns that the existing regulatory processes weren’t equipped to address.

With the various regulatory, policy and planning advancements over the past 45 years, the Coal Policy became obsolete.

…

All coal development projects will continue to be considered through the existing rigorous Alberta Energy Regulator review process. This review is based on each project’s merits, including its economic, social and environmental impacts.

The original intention of the Coal Policy was to ensure that there were appropriate regulatory and environmental protection measures in place before new coal projects were authorized—this objective is being met by today’s modern regulatory, land use planning and leasing systems.

Coal Law and Policy in Alberta, Part Two: The Rules for Acquiring Coal Rights and the Royalty Regime

By Nigel Bankes

On February 11, 2021

In Energy, Environmental

By: Nigel Bankes

PDF Version: Coal Law and Policy in Alberta, Part Two: The Rules for Acquiring Coal Rights and the Royalty Regime

Matters Commented On: Mines and Minerals Act, RSA 2000, c M-17; Coal Royalty Regulation, Alta Reg 295/1992

Minister of Energy Sonya Savage’s announcement on February 8, 2021 that the province would reinstate the 1976 Coal Development Policy (CDP) caused us to change the planned roll-out of this series on coal law and policy, and to add some analysis of that decision in the post “What Are the Implications of Reinstating the 1976 Coal Development Policy?”

With that out of the way, it still seems useful to return to the original plan in the interests of contributing to the ongoing debate on the future of coal on Alberta’s landscape and economy. To that end, this post examines the rules for acquiring coal rights and the royalty regime for coal in Alberta. In other words, it deals with questions of ownership or property. A later post will deal with questions relating to the regulation of coal exploration and development. It bears emphasizing at the outset that while a lease gives the lessee the property right to exploit the coal, the lessee still needs regulatory approvals from the Alberta Energy Regulator before it can engage in any exploration activities on the land. We see the same parallel structure in the oil and gas sector. A petroleum and natural gas lease, whether acquired from the Crown (Department of Energy) or a private owner, grants the property right to exploit the oil or gas but the lessee still requires a licence from the AER in order to be able to drill a well (see Oil and Gas Conservation Act, RSA 2000, c O-6, s 11). Hence it is important to keep separate questions of property and questions of regulation. The focus of this post is on question of property.