Author: Nigel Bankes Page 35 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.

The Intersection of Discretionary Powers, Fiduciary Duties, the Public Interest and the Standard of Review

By Nigel Bankes

On October 3, 2017

In Aboriginal, Oil & Gas

By: Nigel Bankes

PDF Version: The Intersection of Discretionary Powers, Fiduciary Duties, the Public Interest and the Standard of Review

Case Commented On: Coldwater Indian Band v Canada (Aboriginal Affairs and Northern Development), 2017 FCA 199 (CanLII)

In this decision, the Federal Court of Appeal, by a majority (per Justice Eleanor Dawson, Justice Donald Rennie concurring; Justice Wyman Webb, dissenting), concluded that the Minister of Indian Affairs and Northern Development breached the fiduciary duty he owed to the Coldwater Indian Band when he approved the assignment of a pipeline right of way easement of 1955 from one affiliate of Kinder Morgan Canada Inc to another affiliate without taking steps to improve the terms of the bargain or at least to ensure that the Crown had been vigilant in its continuing fiduciary obligation to preserve and protect the Band’s interest in the reserve land from an exploitive or improvident bargain. Since the matter came before the Court as an application for judicial review, the Court set aside the Minister’s decision and returned the matter to the Minister for redetermination in accordance with the Court’s reasons. An earlier application by the Band to prevent the Minister from granting approval to the assignment had been dismissed by the Federal Court on the basis that that the application was premature; see the decision in Coldwater Indian Band v Canada (Indian Affairs and Northern Development), 2014 FCA 277 (CanLII). For my earlier post on those proceedings see here.

GRTAs, Patch Agreements, Indefeasible Title and Collapse Orders

By Nigel Bankes

On September 29, 2017

In Oil & Gas, Property

By: Nigel Bankes

PDF Version: GRTAs, Patch Agreements, Indefeasible Title and Collapse Orders

Case Commented On: Chesterworld Holdings Ltd v Computershare Trust Company of Canada, 2017 ABQB 43 (CanLII)

This decision involves the interpretation of a will from 1949 as well as the validity of a gross royalty trust agreement (GRTA) and a subsequent patch agreement. Justice Park concluded that the patch agreement was incapable of saving the GRTA because it was executed by the incorrect parties (or by the correct parties but not in their correct capacity). The case may call into question the efficacy of other patch agreements that were intended to revive or extend GRTAs affected by the decision in Guaranty Trust Co. of Canada v Hetherington, 1989 ABCA 113 (CanLII).

Hibernia Payout Account Dispute

By Nigel Bankes

On September 27, 2017

In Arbitration, Oil & Gas

By: Nigel Bankes

PDF Version: Hibernia Payout Account Dispute

Case Commented On: Newfoundland and Labrador v ExxonMobil Canada Properties, 2017 NLDT(G) 147, 2017 CanLII 56724 (NL SCTD)

This case involves an unsuccessful application by the Government of Newfoundland and Labrador to set aside an arbitral award dealing with the calculation of royalties with respect to the Hibernia project.

An Operator of Gas Processing Facilities Does Not Have a Possessory Lien Under the Possessory Liens Act

By Nigel Bankes

On September 20, 2017

In Oil & Gas, Property

By: Nigel Bankes

PDF Version: An Operator of Gas Processing Facilities Does Not Have a Possessory Lien Under the Possessory Liens Act

Case Commented On: Cansearch Resources Ltd v Regent Resources Ltd, 2017 ABQB 535 (CanLII)

Cansearch and Regent jointly owned the Joffre Facility under the term of an agreement for the construction, ownership and operation (CO & O) of that facility (2008). Cansearch was appointed as operator. The CO & O agreement afforded Cansearch as operator an operator’s lien (cl 602(a)) in the following terms:

Effective from the Effective Date, Operator shall have a lien and charge, which is first and prior to any other lien, charge, mortgage or other security interest, with respect to the Function Unit Participations of each Owner in the Facility and such Owner’s share of Facility Products, to secure payment of such Owner’s proportionate share of the costs and expenses incurred by Operator for the Joint Account.

Cansearch never registered its Operator’s Lien pursuant to the Personal Property Security Act, RSA 2000, c P-7 (PPSA).

Abandonment Expenses are for the Joint Account

By Nigel Bankes

On September 6, 2017

In Oil & Gas

By: Nigel Bankes

PDF Version: Abandonment Expenses are for the Joint Account

Case Commented On: Spyglass Resources Corp v Bonavista Energy Corporation, 2017 ABQB 504 (CanLII)

In this decision Justice Jones rejected a series of technical arguments raised by the receiver of Spyglass (Ernst and Young) to resist payment of abandonment costs. The receiver had argued that Bonavista had abandoned co-owned assets for its own account rather than the joint account and that Bonavista was not able to set-off revenues attributable to Spyglass’s interest against Spyglass’s share of abandonment obligations.