Author: Nigel Bankes Page 32 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.

Public Interest Standing for NGOs to Test Whether CNLOPB can Effect an End-Run Around Maximum Term Provisions

By Nigel Bankes

On July 17, 2018

In Energy

By: Nigel Bankes

PDF Version: Public Interest Standing for NGOs to Test Whether CNLOPB can Effect an End-Run Around Maximum Term Provisions

Case Commented On: David Suzuki Foundation v Canada-Newfoundland Offshore Petroleum Board, 2018 NLSC 146

Corridor Resources Inc. (Corridor) received a nine year exploration licence (EL 1105) from the Canada-Newfoundland Offshore Petroleum Board (CNLOPB or Board) on January 15, 2008 under the terms of the federal and provincial legislation implementing the terms of the Atlantic Accord: Canada-Newfoundland and Labrador Atlantic Accord Implementation Act, S.C.1987, Ch. 3 (Federal Act), and Canada-Newfoundland and Labrador Atlantic Accord Implementation Newfoundland and Labrador Act, R.S.N.L. 1990, c. C-2 (Newfoundland Act). As is customary, the EL was divided into two periods: Period I, five years and Period II, 4 years. In order to validate the licence for Period 2 Corridor had to commence the drilling of a well within the Period I and diligently drill through to completion. Corridor’s proposal to drill proved controversial and triggered a time-consuming environmental assessment procedure. In response to this Corridor applied for and was granted an extension to Period I but in the end it was not able to drill a well as required by the EL.

Relevant Considerations in Approving Assignments Under the CCAA

By Nigel Bankes

On July 10, 2018

In Bankruptcy and Insolvency, Energy

By: Nigel Bankes

PDF Version: Relevant considerations in approving assignments under the CCAA

Case Commented On: Dundee Oil and Gas Limited (Re), 2018 ONSC 3678

As part of approving a plan of compromise or arrangement under the Companies’ Creditors Arrangement Act, RSC 1985, c. C-36, s.11.3 (CCAA), the Court on an “application by a debtor company and on notice to every party to an agreement and the monitor, … may make an order assigning the rights and obligations of the company under the agreement to any person who is specified by the court and agrees to the assignment.” Section 11.3(3) provides the following guidance to the Court in exercising this power:

(3) In deciding whether to make the order, the court is to consider, among other things,

(a) whether the monitor approved the proposed assignment;

(b) whether the person to whom the rights and obligations are to be assigned would be able to perform the obligations; and

Alberta Court follows Third Eye Capital v Dianor in a Royalty Characterization Case

By Nigel Bankes

On June 28, 2018

In Energy, Oil & Gas

By: Nigel Bankes

PDF Version: Alberta Court follows Third Eye Capital v Dianor in a Royalty Characterization Case

Case Commented On: Manitok Energy Inc (Re), 2018 ABQB 488 (CanLII)

In a welcome development Justice Karen Horner has followed the Ontario Court of Appeal’s recent decision in Third Eye Capital Corporation v Resources Dianor Inc., 2018 ONCA 253 (CanLII) (the subject of a post here) and concluded that the royalty agreements at issue in this case were intended to create an interest in land and did in law create such an interest notwithstanding that the royalty was described as in interest in oil volumes once produced rather than as in interest in the minerals themselves.

When Crocodiles and Kangaroos Dance Together, Anything is Possible: Report of the Timor-Leste and Australia Conciliation Commission

By Nigel Bankes

On June 7, 2018

In Uncategorized

By: Nigel Bankes

PDF Version: When Crocodiles and Kangaroos Dance Together, Anything is Possible: Report of the Timor-Leste and Australia Conciliation Commission

Report commented on: Report and Recommendations of the Compulsory Conciliation Commission between Timor-Leste and Australia on the Timor Sea, Registry, Permanent Court of Arbitration, 9 May 2018

The Conciliation Commission in the dispute between Timor-Leste and Australia with respect to a permanent maritime boundary in the Timor Sea has now issued its final Report and Recommendations on what must be recorded as an exceptionally successful conciliation exercise. The report documents the process of shepherding the Parties to the conclusion and signature of the Treaty between the Democratic Republic of Timor-Leste and Australia Establishing their Maritime Boundaries in the Timor Sea, New York, March 6, 2018. This treaty not only establishes permanent maritime boundaries between the two States it also establishes (Annex B) a joint development regime for the Greater Sunrise and Troubadour deposits that fall on either side of the agreed maritime boundary. The Report also documents the ultimately unsuccessful efforts of the Commission to facilitate the Parties in reaching agreement on a development concept for the Greater Sunrise Field. In dealing with a set of issues that went beyond that of delimitation, the Report illustrates the flexibility of conciliation procedures to address (with the consent of the Parties) a broader suite of issues than could be accommodated in a more formal and constrained adjudication procedure.

Columbia River Treaty Negotiations to Commence

By Nigel Bankes

On May 25, 2018

In Aboriginal, Environmental

By: Nigel Bankes

PDF Version: Columbia River Treaty Negotiations to Commence

Announcements commented on: (1) Global Affairs Canada, Canada and United States launch negotiations to renew Columbia River Treaty, May 22, 2018, (2) US Department of State, Launching negotiations to modernize the Columbia River Treaty regime, May 22, 2018, (3) British Columbia, Statement on Upcoming Treaty Negotiations, May 22, 2018, (4) Okanagan Nation Alliance, Shuswap Nation Council and Ktunaxa Nation Council, Canada Excludes Indigenous First Nations form International Columbia River Treaty Re-Negotiation, May 23, 2018.

The Governments of Canada and the United States have announced that they will begin negotiations (May 29 and 30, 2018, Washington DC) to “modernize” the Columbia River Treaty. For background on this issue see my previous post here. British Columbia and three First Nation groups have also issued press releases.