Author: Nigel Bankes Page 4 of 88

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.

Some Quick Fixes for a Broken Market, And then the Possibility of an Enhanced Electricity Market for Alberta

By Nigel Bankes

On March 20, 2024

In Administrative Law, Energy

By: Nigel Bankes

Matters commented on: Market Surveillance Administrator, “Advice to support more effective competition in the electricity market: Interim action and an Enhanced Energy Market for Alberta”, (21 December 2023, released 11 March 2024) (MSA Advice); Supply Cushion Regulation, Alta Reg 42/2024, and Market Power Mitigation Regulation, Alta Reg 43/2024.

PDF Version: Some Quick Fixes for a Broken Market, And then the Possibility of an Enhanced Electricity Market for Alberta

On March 11, 2024 Nathan Neudorf, Alberta’s Minister of Affordability and Utilities, issued a press release announcing two temporary adjustments to Alberta’s electricity market rules to lessen opportunities for economic withholding and to create new rules for so-called “long lead time” generation assets with a view to further constrain opportunities for physical withholding. Long lead time generation assets are generators that require more than an hour to synchronize to the Alberta interconnected system (AIES). The non-availability of such assets during tight supply periods may effectively be a form of physical withholding of generation from the electricity market which serves to drive up the pool price. Economic withholding refers to the practice of bidding physically available generation into the pool “at prices sufficiently above marginal cost that the generator is not dispatched” also serving to drive up the pool price (MSA Advice at 4).

Preliminary Thoughts on the Implications of the Children, Youth and Families Reference for the Lands Reserved Head of Section 91(24)

By Nigel Bankes

On March 5, 2024

In Aboriginal, Constitutional, Indigenous

By: Nigel Bankes

Case Commented on: Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 (CanLII).

PDF Version: Preliminary Thoughts on the Implications of the Children, Youth and Families Reference for the Lands Reserved Head of Section 91(24)

The Children, Youth and Families Reference is a decision on the “Indians” head of section 91(24), a head that the Supreme Court of Canada has reframed as “Indigeneity, that is, Indigenous peoples as Indigenous peoples” (Reference at para 94). The Court takes a broad view of the scope of this head of federal power. It also reminds us that the double aspect doctrine means that so long as federal legislation is firmly connected to a federal head of power it can compete with and trump provincial legislation grounded on provincial heads of power addressing the same subject area (e.g. child and family welfare), so long as the federal legislation is addressed to the federal aspect of that subject matter. Furthermore, the Reference makes it clear that Parliament may accord the laws of Indigenous Nations the authority of federal law while the Nations await judicial confirmation that section 35 of the Constitution Act, 1982 protects a broad inherent power of Indigenous self-government. This implies that, provided that the federal government has the necessary legal or political motivation, it has the means to back-out provincial laws and create space for Indigenous self-government on a broad range of matters that can be connected to Indigenous peoples as Indigenous peoples.

Premier Smith Converts a Legal Pause on Renewable Energy Projects Into a De Facto Moratorium of Uncertain Duration

By Nigel Bankes

On March 1, 2024

In Energy

By: Nigel Bankes and Martin Olszynski

Matter Commented On: Policy Guidance to the Alberta Utilities Commission, February 28, 2024

PDF Version: Premier Smith Converts a Legal Pause on Renewable Energy Projects Into a De Facto Moratorium of Uncertain Duration

In August 2023, the Government of Alberta (GoA) stunned most commentators and the renewable energy sector in Alberta by announcing that it would be instructing the Alberta Utilities Commission (AUC) to withhold approval of all new renewable energy projects in the province for seven months. We commented on that announcement here: “An Incredibly Ill-Advised and Unnecessary Decision”.

What Did the Court Mean When It Said that UNDRIP “has been incorporated into the country’s positive law”? Appellate Guidance or Rhetorical Flourish?

By Nigel Bankes

On February 28, 2024

In Aboriginal, Indigenous, International Law, Supreme Court of Canada

By: Nigel Bankes and Robert Hamilton

Case commented on: Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 (CanLII).

PDF Version: What Did the Court Mean When It Said that UNDRIP “has been incorporated into the country’s positive law”? Appellate Guidance or Rhetorical Flourish?

In its recent reference opinion on the validity of an Act respecting First Nations, Inuit and Métis children, youth and families, SC 2019, c 24 (the FNIM Act), the Supreme Court went out of its way to comment on the legal significance of the United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14 (the federal UNDRIP Act). The Court did so notwithstanding that legal questions relating to the federal UNDRIP Act were not directly before it, and notwithstanding its own observations in the Reference to the effect that “[t]he task that falls to the Court in the context of a reference invites caution …” (at para 111). That it chose to comment at such length is even more remarkable when one reflects on how reticent the Court seems to have been to comment on the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP or Declaration), or international human rights law more generally, in other cases over the last two decades dealing with Indigenous rights.

Taking Stock of The Grassy Mountain Litigation as of February 2024

By Nigel Bankes

On February 22, 2024

In Administrative Law, Energy, Natural Resources

By: Nigel Bankes

Cases commented on: (1) Benga Mining Limited v Alberta Energy Regulator, 2022 ABCA 30 (CanLII), (January 8, 2022); (2) Benga Mining Limited v Alberta Energy Regulator, et al, 2022 CanLII 88683 (SCC), (September 29, 2022); (3) Stoney Nakoda Nations v His Majesty the King In Right of Alberta As Represented by the Minister of Aboriginal Relations (Aboriginal Consultation Office), 2023 ABKB 700 (CanLII), (December 4, 2023); and (4) Benga Mining Limited v Canada (Environment and Climate Change), 2024 FC 231 (CanLII), (February 12, 2024).

PDF Version: Taking Stock of The Grassy Mountain Litigation as of February 2024

This post is a public service announcement to update all of those concerned about coal mining in Alberta, and specifically for those concerned about the status of the rejected Grassy Mountain coal project and ongoing litigation concerning that project. This is old territory for ABlawg. Readers will recall that we launched an extended coal law and policy series in 2021 when the Minister of Energy first revoked the Lougheed coal development policy of 1976.