Author: Nigel Bankes Page 3 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.

Cases and decisions commented on: (1) AER Panel Decision on Stay Motion Filed by the Municipal District of Ranchland No. 66 (Stay Application) August 9, 2024, and (2) Municipal District of Ranchland No. 66 v Alberta Energy Regulator, 2024 ABCA 274 (CanLII) (PTA Application) August 22, 2024

This ABlawg post is an update to a post from earlier this year: “Taking Stock of The Grassy Mountain Litigation as of February 2024”. In that post, I traced the litigation commenced by Benga and its corporate successor Northback following the June 2021 report and decision of the Joint Review Panel to reject the Grassy Mountain Project exercising authority as the Alberta Energy Regulator (AER). That litigation involved cases in the Federal Court and Alberta’s Court of Appeal and Court of King’s Bench. The Alberta Court of Appeal litigation came to an end in 2022 when the Supreme Court of Canada denied a further leave to appeal. The Federal Court cases are still ongoing, as is the King’s Bench matter, as well as allied litigation brought by First Nations in both Federal Court and in King’s Bench. I refer the reader to my February 2024 post for details on these case as well as the necessary links and references.

Restoule: Tugging on the Rope and the Duty of Diligent Implementation of Treaty Promises

By Nigel Bankes

On August 8, 2024

In Aboriginal, Indigenous, Reconciliation, Treaty Rights

By: Nigel Bankes

Case Commented On: Ontario (Attorney General) v Restoule, 2024 SCC 27 (CanLII)

PDF Version: Restoule: Tugging on the Rope and the Duty of Diligent Implementation of Treaty Promises

[T]he trial judge found that the Robinson Treaties were motivated largely by the principles of kinship and mutual interdependence, as reflected in the Covenant Chain. This enduring alliance has been depicted using the metaphor of a ship tied to a tree with a metal chain: “The metaphor associated with the chain was that if one party was in need, they only had to ‘tug on the rope’ to give the signal that something was amiss, and ‘all would be restored’” … The Anishinaabe treaty partners have been tugging on the rope for some 150 years now, but the Crown has ignored their calls. The Crown has severely undermined both the spirit and substance of the Robinson Treaties.

Per Justice Jamal at para 286

In a unanimous judgment authored by Justice Jamal, Ontario (Attorney General) v Restoule, 2024 SCC 27 (CanLII), the Supreme Court of Canada has confirmed that the Crown has a duty of diligent implementation of treaty promises that is informed not by fiduciary principles, but by the honour of the Crown. And in this case, the Crown was clearly in breach of that duty since, as Justice Jamal noted in words that will ring down through the decades: “For well over a century, the Crown has shown itself to be a patently unreliable and untrustworthy treaty partner in relation to the augmentation promise. It has lost the moral authority to simply say ‘trust us’” (at para 262).

Agreement in Principle on a Revised Columbia River Treaty

By Nigel Bankes

On July 18, 2024

In International Law, Water Law

By: Nigel Bankes

Event commented on: Announcement of an Agreement in Principle on a Revised Columbia River Treaty, July 11, 2024

PDF Version: Agreement in Principle on a Revised Columbia River Treaty

Last week the governments of Canada and the United States announced that they had reached an agreement in principle (AiP) on a set of amendments to “modernize” the Columbia River Treaty (CRT). It has taken the parties over six years to reach this point. I have provided some background on the CRT and the launch of the renegotiation in previous ABlawg posts here and here. The parties have yet to provide the full text of the AiP but the Government of British Columbia has posted a backgrounder that summarizes the terms of the AiP as well as a useful Q & A page. Here is the text of the summary:

The Premier’s Review of the AER: A Recipe for How Industry Can Have its Cake and Eat it too

By Nigel Bankes

On May 30, 2024

In Energy

By: Drew Yewchuk, Shaun Fluker, Martin Olszynski, and Nigel Bankes

Commented on: Final report: Premier’s Review of the Alberta Energy Regulator (May 2024)

PDF Version: The Premier’s Review of the AER: A Recipe for How Industry Can Have its Cake and Eat it too

The UCP government continues to overhaul energy policy and regulation in Alberta with no meaningful opportunities for public scrutiny or input. In January 2023, Premier Danielle Smith appointed a five-person Premier’s Advisory Council on Alberta’s Energy Future (Energy Future Council) to prepare a report on Alberta’s energy future. The terms of reference for this Energy Future Council were set by Ministerial Order 02/2023, which was only released to the public in response to a FOIP request (see When Does a Ministerial Order Have to be Published?). The Energy Future Council submitted its report to the Premier in June 2023, but that report has never been made public. In response to this non-published report, the Minister of Energy and Minerals initiated another panel, similarly closed to public input, to review and report on the Alberta Energy Regulator (AER). On May 22, 2024, the Government of Alberta elected to release this second report (the AER Report) under the names of two of the five members of the Energy Future Council, David Yager and Bob Curran. As was the case with the recission of the 1976 Coal Policy, the AER Report demonstrates that the UCP government takes its instructions on the direction of energy policy primarily from industry, rather than from the public it serves.

Two Decades of Nunavut Fisheries Litigation and the Meaning of “Special Consideration”

By Nigel Bankes

On May 16, 2024

In Administrative Law, Fisheries Regulation, Statutory Interpretation

By: Nigel Bankes

Case Commented On: Nunavut Tunngavik Incorporated v Canada (Fisheries and Oceans), 2024 FC 649 (CanLII)

PDF Version: Two Decades of Nunavut Fisheries Litigation and the Meaning of “Special Consideration”

Ever since the ratification of the Nunavut Agreement (Agreement) in 1993, Inuit of Nunavut and especially Inuit of the Qikiqtani region of Nunavut have been attempting to use the Agreement, as well as other levers, to obtain an increased share of fisheries quota, principally for Greenland halibut (turbot) and Northern shrimp, for the waters offshore of Baffin Island. One can think of this as a process of recapturing or repatriating a resource to Nunavut and Nunavummiut that was largely appropriated by fishery interests based in the Atlantic provinces. I first wrote about this process twenty years ago: “Implementing the Fisheries Provisions of the Nunavut Claim: Re-capturing the Resource?” (2003) 12 J Environmental L & Policy 141-204. This most recent decision finally puts some teeth into the “special consideration” language of s 15.3.7 of the Agreement.

Author: Nigel Bankes Page 3 of 88

Taking Stock of the Grassy Mountain Litigation, Part 2, August 2024

Restoule: Tugging on the Rope and the Duty of Diligent Implementation of Treaty Promises

Agreement in Principle on a Revised Columbia River Treaty

The Premier’s Review of the AER: A Recipe for How Industry Can Have its Cake and Eat it too

Two Decades of Nunavut Fisheries Litigation and the Meaning of “Special Consideration”