Author: Nigel Bankes Page 3 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

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.

Alberta’s Water Sharing “Agreements”

By Nigel Bankes

On May 1, 2024

In Water Law

By: Nigel Bankes

Matter commented on: Water Sharing Agreements for the South Saskatchewan Basin, April 2024

PDF Version: Alberta’s Water Sharing “Agreements”

Last month (April 19, 2024), Minister Schulz announced that what she referred to as the “largest water sharing agreements in Alberta’s 118-year history are now in place to help respond to the risk of severe drought.” The press release referred to a package of four such water sharing “agreements” (WSAs). Each of these four agreements are in fact titled as a Memorandum of Understanding (MoU). The four MoUs are as follows: (1) an MoU in relation to the Red Deer River Basin, (2) an MoU in relation to the Bow River Basin, (3) an MoU in relation to the Oldman South Saskatchewan Basin, and (4) an MoU in relation to the Southern Tributaries (that is to say, the southern tributaries of the Oldman River, namely the Waterton, Belly, and St. Mary Rivers. All of the MoUs bear the header date of April 2, 2024, suggesting that they were all finalized as of that date.

The Dickson Decision, UNDRIP, and the Federal UNDRIP Act

By Nigel Bankes

On April 18, 2024

In Aboriginal, Constitutional, Indigenous

By: Nigel Bankes and Jennifer Koshan

Decision Commented On: Dickson v Vuntut Gwitchin First Nation, 2024 SCC 10 (CanLII)

PDF Version: The Dickson Decision, UNDRIP, and the Federal UNDRIP Act

This post is part of continuing ABlawg commentary on the approach of the courts to legislation implementing the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). That commentary includes the decision of the Supreme Court of British Columbia in Gitxaala v British Columbia (Chief Gold Commissioner), 2023 BCSC 1680 (CanLII) (ABlawg post here) and, most importantly, the Supreme Court of Canada’s decision in Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 (CanLII) (FNIM Reference) (ABlawg post here). This post is also the first of multiple posts that ABlawg anticipates on the Dickson decision.

Yatar v TD Insurance Meloche Monnex: Limited Statutory Rights of Appeal and The Availability of Judicial Review

By Nigel Bankes

On April 10, 2024

In Administrative Law, Appellate Practice, Supreme Court of Canada

By: Shaun Fluker, Drew Yewchuk, and Nigel Bankes

Case Commented On: Yatar v TD Insurance Meloche Monnex, 2024 SCC 8 (CanLII)

PDF Version: Yatar v TD Insurance Meloche Monnex: Limited Statutory Rights of Appeal and The Availability of Judicial Review

This post discusses the recent Supreme Court decision in Yatar v TD Insurance Meloche Monnex, 2024 SCC 8 (CanLII) (Yatar). The decision addresses the availability of judicial review of administrative decisions when the legislature has established a restricted statutory right of appeal for those same decisions. This unanimous decision is an important affirmation of the continued availability of judicial review – at least for grounds of review not covered by the statutory appeal right. However, it seems likely that this decision, especially when read together with the Court’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (CanLII) (Vavilov) will encourage parallel or sequential filings under both the statutory appeal provisions and for judicial review.

Some Quick Fixes for a Broken Market, And then the Possibility of an Enhanced Electricity Market for Alberta

By Nigel Bankes

On March 20, 2024

In Administrative Law, Energy

By: Nigel Bankes

Matters commented on: Market Surveillance Administrator, “Advice to support more effective competition in the electricity market: Interim action and an Enhanced Energy Market for Alberta”, (21 December 2023, released 11 March 2024) (MSA Advice); Supply Cushion Regulation, Alta Reg 42/2024, and Market Power Mitigation Regulation, Alta Reg 43/2024.

PDF Version: Some Quick Fixes for a Broken Market, And then the Possibility of an Enhanced Electricity Market for Alberta

On March 11, 2024 Nathan Neudorf, Alberta’s Minister of Affordability and Utilities, issued a press release announcing two temporary adjustments to Alberta’s electricity market rules to lessen opportunities for economic withholding and to create new rules for so-called “long lead time” generation assets with a view to further constrain opportunities for physical withholding. Long lead time generation assets are generators that require more than an hour to synchronize to the Alberta interconnected system (AIES). The non-availability of such assets during tight supply periods may effectively be a form of physical withholding of generation from the electricity market which serves to drive up the pool price. Economic withholding refers to the practice of bidding physically available generation into the pool “at prices sufficiently above marginal cost that the generator is not dispatched” also serving to drive up the pool price (MSA Advice at 4).