Author: Nigel Bankes Page 33 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.

By: Nigel Bankes

PDF Version: Power Purchase Arrangement Litigation Comes to an End

Matter Commented On: Government of Alberta Press Release, March 9, 2018

The Government of Alberta issued a Press Release on March 9, 2018 indicating the Government and ENMAX “have agreed to withdraw ENMAX from the Power Purchase Arrangement (PPA) legal action initiated in 2016 by the Attorney General”. The agreement apparently “provides for the transfer from ENMAX to the Balancing Pool of 166,667 carbon offset credits and for a payment of equivalent value to ENMAX from the Balancing Pool for previously disputed and unpaid dispatch services and PPA transition matters”. The release goes on to note that “With this agreement, the legal action between the Government of Alberta, ENMAX and the remaining parties will be ended”.

ABlawg has published numerous posts on the PPA litigation (see here, here, here, here, here, and here) and there is a nice summary of the history of the litigation on the blog of the Alberta Power Market, a very informative blog prepared by members of the Electricity Markets Group of Borden Ladner Gervais LLP.

This post may be cited as: Nigel Bankes “Power Purchase Arrangement Litigation Comes to an End” (14 March, 2018), online: ABlawg, http://ablawg.ca/wp-content/uploads/2018/03/Blog_NB_PPA_Litigation_Ends.pdf

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Lifting the Stay to Allow the CAPL Operator Replacement Provisions to Run their Course

By Nigel Bankes

On March 9, 2018

In Oil & Gas

By: Nigel Bankes

PDF Version: Lifting the Stay to Allow the CAPL Operator Replacement Provisions to Run their Course

Case Commented On: Firenze Energy Ltd v Scollard Energy Ltd, 2018 ABQB 126 (CanLII)

In this decision Justice Corina Dario granted Firenze’s application to lift a stay of proceedings imposed as part of a receivership order pertaining to Scollard in order to allow Firenze to issue a notice or notices with respect to the replacement of Scollard as operator of a number of oil and gas properties subject to the 2007 CAPL Operating Procedure. This decision, together with Justice Macleod’s earlier decision in Bank of Montreal v Bumper Development Corp, 2016 ABQB 363 (CanLII) (commented on here), calls into question the proposition that it will be difficult to replace an operator under the CAPL operating agreements once a receivership order is in place.

Some Things Have Changed but Much Remains the Same: the New Canadian Energy Regulator

By Nigel Bankes

On February 15, 2018

In Energy

By: Nigel Bankes

PDF Version: Some Things Have Changed but Much Remains the Same: the New Canadian Energy Regulator

Bill Commented On: Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts

Given the discussions over the last year as to the future of the National Energy Board (see posts here and here) it is hardly surprising that Part 2 of Bill C-69 takes the form of an entirely new Act to be known as the Canadian Energy Regulator Act (CERA) rather than a set of amendments to the existing National Energy Board Act, RSC 1985, c N-7. This no doubt creates the impression that the new Bill represents a wholesale replacement of the NEB rather than mere tinkering. This post examines whether this is indeed the case by examining in some more detail what has changed and what remains the same. My focus is Part 2 of Bill C-69. My colleague Martin Olszynski has already provided a post on Part 1 of the Bill, the proposed new Impact Assessment Act (IIA) as well as the amendments to the Fisheries Act.

TMX v Burnaby: When Do Delays by a Municipal (or Provincial) Permitting Authority Trigger Paramountcy and Interjurisdictional Immunity?

By Nigel Bankes

On January 24, 2018

In Constitutional, Municipal Law, Oil & Gas

By: Nigel Bankes and Martin Olszynski

PDF Version: TMX v Burnaby: When Do Delays by a Municipal (or Provincial) Permitting Authority Trigger Paramountcy and Interjurisdictional Immunity?

Decision Commented On: National Energy Board, Reasons for Decision (18 January 2018) in support of Order MO-057-2017 (6 December 2017) re Trans Mountain Expansion Project

The National Energy Board (NEB) has now issued its reasons for decision for an Order that it issued in December 2017 allowing Trans Mountain to proceed with certain activities associated with the Trans Mountain Expansion Project (TMX) without having first complied with bylaw requirements of the City of Burnaby.

Specific Performance of a Right of First Refusal in the Context of a Facilities Agreement

By Nigel Bankes

On January 17, 2018

In Oil & Gas, Property

By: Nigel Bankes

PDF Version: Specific Performance of a Right of First Refusal in the Context of a Facilities Agreement

Decision Commented On: Canlin Resources Partnership v Husky Oil Operations Limited, 2018 ABQB 24 (CanLII)

Canlin and Husky are successors in interest to a Construction, Ownership and Operation (CO & O) Agreement for the Erith Dehydration and Flow Splitter Facility (Facility Agreement). The agreement was based on the standard form CO & O Agreement (1999) developed by the Petroleum Joint Venture Association (PJVA). The Facility Agreement provides both parties with mutual rights of first refusal (ROFR) in the event that either decides to sell the facility but also provides a number of exceptions. In particular, the Agreement provided that the ROFR would not be triggered in the event of (at para 3) “(a) disposition made by an Owner of all or substantially all … of its petroleum and natural gas rights in wells producing to the Facility …”. Husky was disposing of its interests in the area (the Ikkuma transaction) but the challenge was that there had been no wells producing into the facility since 2016 when Husky installed a “jumper” pipeline. This pipeline served to by-pass the Erith Facility with the result that gas previously processed at Erith was now processed at the Blackstone Facility. The question therefore was whether Husky could rely on the exception, there being no wells producing into the facility. Husky took the view that the exception was triggered since the wells in question were still associated with the Erith Facility in the sense of being tied-in to the Facility. Justice Romaine concluded that the exception was not triggered and accordingly declared that Canlin could exercise the ROFR; furthermore she concluded that Canlin was entitled to an order of specific performance.