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Author: Nigel Bankes Page 39 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.

Liens Against Minerals Do Not Have Super Priority: Saskatchewan Court of Appeal Overrules Cenex

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On August 8, 2017

In Property

By: Nigel Bankes

PDF Version: Liens Against Minerals Do Not Have Super Priority: Saskatchewan Court of Appeal Overrules Cenex

Case Commented On: National Bank of Canada v KNC Holdings Ltd., 2017 SKCA 57 (CanLII)

A unanimous five person panel of the Saskatchewan Court of Appeal has overruled the Court’s earlier decision in Canada Trust Co. v Cenex Ltd. (1982), 1982 CanLII 2651 (SK CA), 131 DLR (3d) 479 (Sask CA). Decided in 1982, Cenex concluded that s 12 of The Mechanics’ Lien Act, RSS 1978, c M-7, (then the relevant statute) created a super priority for mechanics’ liens filed against mineral interests and severed minerals on the basis that the lien was to attach to  “all the estates and interests in the mineral concerned, other than the estate in fee simple in the mines and minerals …” (at para 11). Justice Hall writing for the Court in Cenex concluded that this language bound even the equity of the Royal Bank which held prior security under s 88 of the Bank Act, RSC 1970, c B-1 and debenture security. The effect of Justice Hall’s conclusion was to afford the lien holders a super priority. 

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Clyde River and Chippewas of the Thames: Some Clarifications Provided But Some Challenges Remain

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On August 4, 2017

In Aboriginal, Energy

By: Nigel Bankes

PDF Version: Clyde River and Chippewas of the Thames: Some Clarifications Provided But Some Challenges Remain

Cases Commented On: Clyde River (Hamlet) v Petroleum Geo-Services Inc., 2017 SCC 40 (CanLII) and Chippewas of the Thames First Nation v Enbridge Pipelines Inc., 2017 SCC 41 (CanLII)

The Supreme Court of Canada has rendered judgment in two cases involving the National Energy Board (NEB) and the duty to consult Indigenous communities. One decision, Clyde River, involves an authorization granted to Petroleum Geo-Services Inc (PGS) to conduct marine seismic testing in Baffin Bay and Davis Strait under the terms of the Canada Oil and Gas Operations Act, RSC 1985, c O-7 (COGOA). The Supreme Court of Canada concluded that the Crown had failed to discharge its duty to consult and accommodate and that as a result the NEB authorization should be quashed. The second decision, Chippewas of the Thames First Nation (CTFN), involves an order by the NEB under s 58 of the National Energy Board Act, RSC 1985, c N-7  (NEBA) exempting Enbridge Pipelines Inc (Enbridge) from the need to obtain a certificate of public convenience and necessity under s 52 of NEBA and at the same time amending the operation of part of Line 9 (Line 9B), to authorize reversing the flow of the line, increasing its capacity and allowing for the transportation of heavy crude. The Supreme Court of Canada concluded that the Crown was entitled to rely on the procedures adopted by the NEB in engaging with CTFN to discharge the Crown’s duty to consult and accommodate and that those procedures in this case were adequate.

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

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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.

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

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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.

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Recommendations on Implementing the Oil Sands Emission Limit

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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.

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