Author: Nigel Bankes Page 2 of 88

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.

Matter Commented On: Alberta’s Standard Form Carbon Sequestration Agreement

PDF Version: Alberta’s Carbon Sequestration Agreement: An Analysis

The Government of Alberta (GoA) has finally released the form or template of the Carbon Sequestration Agreement (CSA) that it will use for carbon capture and storage (CCS) projects organized as hub projects. A hub project is a CCS project in which one party provides transportation and sequestration (T & S) services to variety of emitters. One example is the Atlas Carbon Storage Hub promoted by ATCO EnPower and Shell Canada Products which received its final investment decision in June 2024. Previous ABlawg posts (here, here and here) have reviewed Alberta’s decision to adopt a hub approach to CCS in preference to the vertically integrated project approach that characterized Shell’s earlier Quest project (see ABlawg post here). A vertically integrated CCS project is a project in which a single party (or joint venture) is responsible for all three elements of the CCS value chain (that is to say, capture and compression, transportation, and injection and geological sequestration). In a hub project (or a hub and spoke project) one party (the hub operator) typically offers transportation and sequestration services (T & S) to a number of different large emitters. I refer readers to the earlier posts for the more detailed explanations of the background.

A Landmark Decision in Canadian Charter-based Climate Litigation: Mathur v Ontario, 2024 ONCA 762

By Nigel Bankes

On October 31, 2024

In Climate Change, Constitutional

By: Martin Olszynski, Jennifer Koshan, Nigel Bankes, and Jonnette Watson Hamilton

Case commented on: Mathur v Ontario, 2024 ONCA 762 (CanLII)

PDF Version: A Landmark Decision in Canadian Charter-based Climate Litigation: Mathur v Ontario, 2024 ONCA 762

The Ontario Court of Appeal recently released its decision in Mathur v Ontario, 2024 ONCA 762 (CanLII). ABlawg readers will know that this is one of three Charter-based climate lawsuits currently making their way through Canadian courts. The other two are La Rose v Canada, 2023 FCA 241 (CanLII), which involves a challenge to the federal government’s climate policies, and Dykstra et al v Saskatchewan Power Corporation, which involves a challenge to the Saskatchewan government’s and SaskPower’s decisions to expand gas-fired electricity generation (see our previous post on La Rose here). In this post, we contrast the trial and appellate reasons in Mathur (and where relevant, in La Rose FCA) and offer our commentary on several key issues in this litigation.

Court of Appeal Grants Permission to Appeal Another AER Coal Decision

By Nigel Bankes

On October 8, 2024

In Administrative Law, Energy

By: Nigel Bankes

Decision Commented On: Ranchland (Municipal District No 66) v Alberta Energy Regulator, 2024 ABCA 309 (CanLII)

PDF Version: Court of Appeal Grants Permission to Appeal Another AER Coal Decision

While my recent coal posts (e.g. here and here) have focused on the efforts of Benga/Northback to resurrect (literally bring back from the dead) its Grassy Mountain Project, it is important to acknowledge that the coal policy decisions (the “flip/flop”) of the Kenney and Smith governments have triggered other litigation. Some of that litigation involves claims to compensation for alleged regulatory takings or constructive expropriation (see Cabin Ridge Project Limited v Alberta, 2024 ABKB 189 (CanLII)) but the case that is the subject of this post deals with other issues – reclamation and opaque AER decision-making.

Modern Treaties, Shared Territories and Party Status in Aboriginal Title Litigation

By Nigel Bankes

On September 23, 2024

In Aboriginal, Indigenous, Treaty Rights

By: Nigel Bankes

Case commented on: Malii v British Columbia, 2024 BCSC 85 (CanLII), aff’d Nisg?a’a Nation v Malii, 2024 BCCA 313 (CanLII)

PDF Version: Modern Treaties, Shared Territories and Party Status in Aboriginal Title Litigation

Overlapping claims and shared territories present challenges in the negotiation of modern treaties that are best worked out by the Indigenous Nations themselves, drawing on their own laws and protocols. But this does not always prove possible and one party or another may initiate litigation in the courts of the settler state. Unfortunately, this is not uncommon and there are now dozens of cases dealing with overlapping claims or shared territories in the context of modern treaty negotiations. One group of cases deals with the scenario in which Nation A is moving to finalize a modern treaty with the Crown, while Nation B takes the view that the territory encompassed by the proposed treaty is territory that Nation B also used more or less intensively. Nation B therefore files a competing claim and also seeks injunctive relief to prevent finalization or ratification of the proposed treaty. The courts have typically rejected applications for injunctive relief and the substantive claims may drag on for years if not decades. A case in point is the Benoanie litigation in which the applicant Nations with reserves in Northern Manitoba and Saskatchewan sought to enjoin ratification of the Nunavut Agreement: Fond du Lac Band et al v Canada (Minister of Indian and Northern Affairs, 1992 CanLII 2404 (FC).

New “Public Document” on the Agreement in Principle to Modernize the Columbia River Treaty

By Nigel Bankes

On September 13, 2024

In Utility Regulation, Water Law

By: Nigel Bankes

Document commented on: “Negotiations to Modernize the Columbia River Treaty, Agreement-in-Principle Content, Public Document”, dated August 30, 2024, release announced September 5, 2024.

PDF Version: New “Public Document” on the Agreement in Principle to Modernize the Columbia River Treaty

In the first part of July, the governments of Canada and the United States announced that they had reached an agreement in principle (AiP) on the modernization of the Columbia River Treaty (CRT). At about the same time, the province of British Columbia released a backgrounder summarizing the AiP. I provided an ABlawg commentary on that backgrounder here and I have previously posted on modernization of the CRT here and here.