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Author: Nigel Bankes Page 4 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.

When Is An Interest In Land A Legal (As Opposed To An Equitable) Interest?

By: Nigel Bankes

Case Commented On: PrairieSky Roy2alty Ltd v Yangarra Resources Ltd, 2025 ABCA 240 (CanLII)

PDF Version: When Is An Interest In Land A Legal (As Opposed To An Equitable) Interest?

The principal issue in this case by the time the matter reached the Court of Appeal was the question of whether a gross overriding royalty (GORR) carved out of an Alberta Crown petroleum and natural gas (png) lease was a legal or an equitable interest in land. Justice Michel Bourque at trial (2023 ABQB 11) concluded that the GORR in question was an interest in land (applying Bank of Montreal v Dynex Petroleum Ltd2002 SCC 7 aff’g 1999 ABCA 363).  Furthermore, Justic Bourque went on to conclude that the GORR was a legal interest in land. The GORR was therefore binding on Yangarra as the successor in interest to the Crown png lease, even though Yangarra had no notice of PrairieSky’s GORR. As a result, Justice Bourque did not need to consider Yangarra’s alternative argument to the effect that if the GORR were only an equitable interest in land Yangarra was entitled to be treated as equity’s darling (i.e. the bona fide purchaser of the legal estate without notice (actual or constructive) of the prior outstanding equitable interest (i.e. the GORR)). The Crown png lease originally granted in 1979 was held by a number of parties in succession over the years until 2011, when Home Quarter Resources (HQR) granted the GORR to Range Royalty (the HQ GORR or the 2011 GORR). The lessee’s interest subsequently became vested in Yangarra, while Range Royalty’s interest became vested in PrairieSky. I commented extensively on the trial judgment here and I refer the reader to that comment for a more detailed summary of the facts.

Who’s Afraid of the Proposed First Nations Clean Water Act?

By: Nigel Bankes and Martin Olszynski

Matter Commented On: Bill C-61, An Act respecting water, source water, drinking water, wastewater and related infrastructure on First Nation lands, First Session, Forty-fourth Parliament, 70-71 Elizabeth II – 1-2-3 Charles III, 2021-2022-2023-2024

PDF Version: Who’s Afraid of the Proposed First Nations Clean Water Act?

On June 30, Alberta’s Minister of Environment and Protected Areas and Ontario’s Minister of Environment Conservation and Parks penned a remarkable letter to their federal counterpart, Ms. Julie Dabrusin, Minister of Environment and Climate Change (for Alberta’s Press Release see here). The joint letter asserted that “Canada is poised to be an economic superpower, but achieving that potential depends on strong, constitutionally grounded provincial authority over resource development and environmental management.” With that as the premise, the two Ministers went on to indicate that they had a number of “urgent requests” that they would like to discuss “immediately” with their federal counterpart, namely:

  • Repealing the Impact Assessment Act and the Physical Activities Regulations.
  • Repealing the Clean Electricity Regulations.
  • Repealing the Greenhouse Gas Pollution Pricing Act and associated regulations.
  • Amending the Species at Risk Act to respect the constitutional jurisdiction of the
  • Suspending the proposed Oil and Gas Sector Greenhouse Gas Emissions Cap Regulation.
  • Undertaking to refrain from reintroducing Bill C-61: An Act respecting water, source water, drinking water, wastewater, and related infrastructure on First Nation lands.

Taking Stock of the Grassy Mountain Project: Part 3, June 2025

By: Nigel Bankes

Cases and Decisions Commented On: (1) Northback Holdings Corporation v Alberta Energy Regulator, 2025 ABCA 186 (CanLII), (2) Northback Holdings Corporation v. Canada (Environment and Climate Change), 2025 FCA 31 (CanLII), and (3) AER Decision, Northback Holdings Corporation Applications for Coal Exploration Program (CEP) A10123772, Deep Drilling Permit (DDP) 1948547, and Temporary Diversion Licence (TDL) 00497386 May 15, 2025, 2025 ABAER 006

 PDF Version: Taking Stock of the Grassy Mountain Project: Part 3, June 2025

In addition to ABlawg’s coal law and policy series (for the most recent post in that series see here) and our Coal Law and Policy ebook, we have provided occasional posts updating readers on the status of the Grassy Mountain project and litigation related to the project. As the title of the post suggests, this is the third such update following earlier updates in February 2024 and August 2024.

Provincial Referendum Legislation, Citizen-Led Secession Proposals, and Non-Derogation Clauses

By: Nigel Bankes

Bill Commented On: Bill 54, Election Statutes Amendment Act

PDF Version: Provincial Referendum Legislation, Citizen-Led Secession Proposals, and Non-Derogation Clauses

In the dying hours of this last Legislative Session the Minister of Justice, Mickey Amery introduced a series of amendments (Amendment # A6, adopted May 14, 2025 and Hansard at 3494) to Bill 54, the Election Statutes Amendment Act. This is the Bill that will make it easier for parties to call for a citizen-led secession reference. One of the amendments related to proposed changes to the province’s Referendum Act, RSA 2000, c R-8.4. The amendment (the non-derogation clause or amendment) purports to clarify that:

Nothing in a referendum held under this Act is to be construed as abrogating or derogating from the existing aboriginal and treaty rights of the aboriginal peoples of Canada that are recognized and affirmed by section 35 of the Constitution Act, 1982.

An Important Alberta Crown Lease Continuation Decision

By: Nigel Bankes

Case Commented On: APL Oil & Gas (1998) Ltd v Alberta, 2025 ABKB 201 (CanLII)

PDF Version: An Important Alberta Crown Lease Continuation Decision

In the natural resources sector, as in so many other industrial sectors that require major capital investments in physical assets, security of tenure for those engaging in exploration activities (resource lessees) is foundational. And a crucial part of security of tenure for a resource lessee is the expectation that, if they make a discovery, they will be able to hold on to that discovery at least until they have recovered all their investment including a return on risk capital, or better yet, until the discovery has been fully exploited and is no longer profitable to produce. On the other hand, the resource owner (whether private or public (Crown)) wants to ensure diligent exploration and development by the resource operator/lessee, failing which the property should be returned to the owner so as to allow the owner to explore other potential lessees.

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