Author: Nigel Bankes Page 38 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.

The Federal Response to the Report of the Expert Panel on the Modernization of the National Energy Board

By Nigel Bankes

On July 14, 2017

In Aboriginal, Energy, Environmental

By: Nigel Bankes

PDF Version: The Federal Response to the Report of the Expert Panel on the Modernization of the National Energy Board

Document Commented On: Environmental and Regulatory Reviews, Discussion Paper, Government of Canada, June 2017

Professor Mascher has provided an overview of this Discussion Paper. This post highlights how the Discussion Paper responds to the Report of the Expert Panel on the Modernization of the National Energy Board. This is not a straightforward task for two reasons. First, while the Discussion Paper contains one page that is devoted to “modern energy regulation” (at 20) there are references throughout the document that are perhaps also relevant to the National Energy Board (NEB) as well as the other regulatory processes that are under review. Second, and more importantly (and as has already been highlighted by Professor Mascher), the Discussion Paper is not directly responsive to the Report of the Expert Panel. While there are a few quotations from the Expert Panel Report (and from the other review processes) scattered through the Discussion Paper there is no systematic tabulation of Expert Panel recommendations against the responses of the Government of Canada with perhaps (no doubt wishful thinking on my part) some supporting reasoning. Instead, all that we have is a set of high level proposals.

Court of Appeal Confirms that Summary Judgement Not Available in a Factually Complex Oil and Gas Case

By Nigel Bankes

On July 6, 2017

In Oil & Gas

By: Nigel Bankes

PDF Version: Court of Appeal Confirms that Summary Judgement Not Available in a Factually Complex Oil and Gas Case

Case Commented On: Talisman Energy Inc v Questerre Energy Corporation, 2017 ABCA 218 (CanLII)

The Court of Appeal has concluded that summary judgement will not be available for monies owing based upon the liquidated demand clause in the 1990 CAPL Operating Agreement where the matter involves the existence of an alleged additional or collateral agreement that, if proven, may vary the terms or application of the Operating Agreement on which the claim depends.

Recommendations on Implementing the Oil Sands Emission Limit

By Nigel Bankes

On June 27, 2017

In Climate Change, Oil & Gas

By: Nigel Bankes

PDF Version: Recommendations on Implementing the Oil Sands Emission Limit

Report Commented On: Oil Sands Advisory Group (OSAG), Recommendations on Implementation of the Oil Sands Emissions Limit Established by the Alberta Climate Leadership Plan, dated May 8, 2017, released to the public June 16, 2017 with related news release

One of the planks of Alberta’s Climate Leadership Plan (CLP) is the adoption of a 100 Megatonne (Mt) cap on greenhouse gas emissions for the oil sands sector. The government introduced and passed the Oil Sands Emissions Limit Act, SA 2016 c. O-7.5 (OSELA) to give effect to this commitment. I commented on the Act as it was introduced as Bill 25 here. While OSELA provides the necessary legal authorization for the cap, many of the details still need to be worked out and then implemented through the regulation-making power in s 3 of OSELA (and see in particular s 3(h)). Recognizing the need for advice on this set of issues Minister Phillips established the Oil Sands Advisory Group (OSAG) in July 2016. The terms of reference are available here along with two mandate letters from Premier Notley here and here.

Announcing a Summer Discussion Series on Recent Developments in Energy and Environmental Law

By Nigel Bankes

On June 22, 2017

In Energy, Environmental

By: Martin Olszynski and Nigel Bankes

PDF Version: Announcing a Summer Discussion Series on Recent Developments in Energy and Environmental Law

Event Commented On: 2017 Energy & Environmental Law Summer Discussion Series

The past year has been relatively busy from a legislative and policy reform perspective, especially with respect to Canadian energy and environmental law. At the federal level, all of the expert panels and parliamentary committees tasked by the current Liberal government with reviewing the Harper-era changes to Canada’s energy and environmental law regime have now delivered their reports: Forward, Together: Enabling Canada’s Clean, Safe and Secure Energy Future (regarding the National Energy Board); Building Common Ground: A New Vision for Impact Assessment in Canada (regarding federal environmental assessment processes); Review of changes made in 2012 to the Fisheries Act: enhancing the protection of fish and fish habitat and the management of Canadian fisheries; and A Study of the Navigation Protection Act. There has also been important litigation at the provincial level, especially the Alberta Court of Appeal’s recent decision in the Redwater litigation: Orphan Well Association v Grant Thornton Limited, 2017 ABCA 124 (CanLII).

While most of these developments have been discussed in this forum (see e.g. posts by Kwasniak, Fluker and Yewchuk, Olszynski, and Mascher with respect to environmental assessment and Bankes on the NEB report and Redwater), the Faculty and the Canadian Institute of Resources Law have decided that it would also be interesting to host a series of panel discussions over the summer to further analyze the issues.

The NEB Modernization Report

By Nigel Bankes

On June 14, 2017

In Aboriginal, Energy

By: Nigel Bankes

PDF Version: The NEB Modernization Report

Report commented on: Forward, Together: Enabling Canada’s Clean, Safe and Secure Energy Future, Report of the Expert Panel on the Modernization of the National Energy Board, May 2017, and Volume II, Annexes.

This post provides a summary of and preliminary comments on the Report of the Expert Panel on the Modernization of the National Energy Board (NEB), which was released in May 2017. The Report begins with an overview of “What the Panel Heard” and then articulates a set of five principles which underlie the Panel’s recommendations. The Panel follows this with a statement of the Panel’s vision for Canada’s regulator of energy infrastructure and then a set of recommendations focused around six key themes for realizing the Panel’s vision. These recommendations constitute the meat of the report. The six key themes are: (1) mandate, (2) relationships with Indigenous Peoples, (3) governance and decision-making, (4) public participation, (5) Î-kanatak Askiy Operations (keeping the land pure), and (6) respect for landowners.