Author: Nigel Bankes Page 57 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.

By: Nigel Bankes and Jennifer Koshan

PDF Version: Tsilhqot’in: What Happened to the Second Half of Section 91(24) of the Constitution Act, 1867?

Case commented on: Tsilhqot’in Nation v British Columbia, 2014 SCC 44

The Delgamuukw decision of the Supreme Court of Canada, [1997] 3 SCR 1010 was an important decision both on aboriginal title and also on the division of powers under the Constitution Act, 1867– in particular for its robust reading of the “lands reserved” head of s.91(24) and the companion language of s.109 (provincial title subject to “any interest other than that of the province in the same”): see Bankes, “Delgamuukw, Division of Powers and Provincial Land and Resource Law: Some Implications for Provincial Resource Rights” (1998), 32 UBC L Rev 317-351 and Kent McNeil “Aboriginal Title and the Division of Powers: Rethinking Federal and Provincial Jurisdiction” (1998) 61 Sask L Rev 431-465. The Tsilhqot’in decision is also an important decision on both issues; but it will be remembered (if it too does not go the way of Marshall and Bernard, [2005] SCC 43 – read into nothingness as our colleague Jonnette Watson Hamilton points out here) on the division of powers issues as the decision that, in extended obiter dictum (see paras 98 and 126), eviscerated the lands reserved head of s.91(24).

Court of Appeal Confirms the Availability of a Disgorgement Remedy as a Possible Means of Assessing Damages for Breach of a Modern Land Claim Agreement

By Nigel Bankes

On June 5, 2014

In Aboriginal, Remedies

By: Nigel Bankes

PDF Version:Court of Appeal Confirms the Availability of a Disgorgement Remedy as a Possible Means of Assessing Damages for Breach of a Modern Land Claim Agreement

Case commented on: Nunavut Tunngavik Incorporated v Canada (Attorney General), 2014 NUCA 02

The Nunavut Court of Appeal has confirmed the availability of a disgorgement remedy as a possible means of assessing damages for breach of a modern land claim agreement. However, the majority of the Court (Justices Slatter and O’Brien) ruled that summary judgment was not available to the Nunavut Tunngavik Inc (NTI) in this case and that consequently damages must still be assessed following the trial. Justice Hunt (dissenting on this point) concluded that summary judgment was available. All members of the Court were agreed that nominal damages would not be appropriate in this sort of case even if NTI were unable to prove actual damages. To allow an award of nominal damages for breach of a land claim agreement would not foster the overall goal of reconciliation.

Directly and Adversely Affected: The Actual Practice of the Alberta Energy Regulator

By Nigel Bankes

On June 3, 2014

In Energy, Responsible Energy Development Act

By: Nigel Bankes

PDF Version: Directly and Adversely Affected: The Actual Practice of the Alberta Energy Regulator

This post examines the actual practice of the Alberta Energy Regulator (AER) with respect to a number of related matters: (1) decisions by the AER as to whether a person is directly and adversely affected by an application, (2) decisions by the AER as to whether or not to hold a public hearing on an application, and (3) decisions by the AER as to whether it should disregard a statement of concern. The discussion is based on nine letter decisions of the AER in relation to two different project applications: CNRL’s Kirby in situ oil sands expansion project, and Keyera Energy’s application to enhance the extraction of liquids at its Rimbey Plant. The interested parties who filed statements of concern (SOCs) or requests to participate with respect to the two applications include First Nations, an environmental organization, and industrial competitors. Thus the range of decisions examined here provides valuable guidance as to how the AER will exercise its discretion in relation to standing, hearing and statement of concern matters involving a number of different types of interests.

Swift Judgment in a Complex Commercial Case

By Nigel Bankes

On June 2, 2014

In Civil Procedure: New Rules of Court, Oil & Gas

By: Nigel Bankes

PDF Version: Swift Judgment in a Complex Commercial Case

Case commented on: Blaze Energy Ltd v Imperial Oil Resources, 2014 ABQB 326

The Commercial Court of the English High Court is well known for its capacity to give swift judgments in complex commercial cases. This decision confirms that the Alberta Court of Queen’s Bench can offer the same service provided that the parties can agree on the procedures to be followed.

The statement of claim in this matter was filed on April 23, 2014 and on April 29 Chief Justice Wittman granted a Consent Order for an expedited trial confined to three issues. Absent an Agreed Statement of Facts the trial proceeded on the basis of filed affidavits and the transcripts of cross examination on those affidavits. The Consent Order provided that there would be no questioning or viva voce evidence. The trial concluded on May 26 and Justice Frederica Schutz acceded to counsels’ request and gave well written reasons for judgement on May 30.

Round One of the Electricity Competition Playoffs Goes to the Market Surveillance Administrator: MSA 1; TAU 0. TAU Cannot Hijack the MSA’s Own Proceeding

By Nigel Bankes

On May 21, 2014

In Energy

By: Nigel Bankes

PDF Version: Round One of the Electricity Competition Playoffs Goes to the Market Surveillance Administrator: MSA 1; TAU 0. TAU Cannot Hijack the MSA’s Own Proceeding

Decision commented on:AUC Decision 2014-135, TransAlta Corporation, TransAlta Energy Marketing Corp., TransAlta Generation Partnership, Mr. Nathan Kaiser and Mr. Scott Connelly; Complaints about the conduct of the Market Surveillance Administrator, May 15, 2014

Is it possible to ensure a competitive electricity market in Alberta? This is I think the broad issue that underlies the current proceedings before the Alberta Utilities Commission (AUC) involving the Market Surveillance Administrator (MSA) and TransAlta (TAU). Several months ago the MSA filed with the AUC notice of a request to initiate a proceeding against TAU and two of its current or former employees, Kaiser and Connelly (K & C). In brief the MSA is charging these parties with unlawfully manipulating the price of electricity as set by Alberta’s power pool to the advantage of TAU in breach of the Electric Utilities Act, SA 2003, c E-5.1 and the Fair, Efficient and Open Competition Regulation, Alta Reg 159/2009. The MSA seeks to prosecute those charges before the AUC as contemplated by the Alberta Utilities Commission Act, SA 2007, c A-37.2 (AUCA). Days before the MSA took this action TAU, K and C seized the moment and filed their own complaints with the AUC under s.58 of the AUCA alleging that the MSA was abusing its position. To be clear, TAU and K and C knew what was in store for them. The MSA had informed TAU three years ago (March 2011) that it was commencing an investigation and it has spent the time in between diligently collecting information from TAU and building its case. The MSA provided TAU with the draft case against it in November 2013. It is fairly evident therefore that the preemptive filing by TAU, K and C was a strategic effort to seize the initiative, put the MSA on the defensive, and perhaps seek to have the complaints against the MSA heard before the MSA’s own case.