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Author: Nigel Bankes Page 60 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.

Judgment Handed Down in a Complex Petroleum and Natural Gas Lease Case

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On November 29, 2013

In Oil & Gas

PDF Version: Judgment Handed Down in a Complex Petroleum and Natural Gas Lease Case

Case commented on: Stewart Estate v TAQA North Ltd, 2013 ABQB 691

This lengthy (121 page plus appendices) and well-reasoned decision will be essential reading for members of the oil and gas bar in Alberta. Justice Barbara Romaine offers guidance on a number of issues including the importance of having all relevant parties before the Court when seeking a declaration as to lease validity, limitations, the interpretation of the term “lack of or intermittent market” and the term “any cause whatsoever beyond the Lessee’s reasonable control”, and the measure of damages where a lessee produces on a dead lease. Given the length of the decision (much of which is taken up with a careful review of the testimony of expert witnesses) I will limit this post to the above legal questions. There are, however, a number of other issues discussed in the decision that this post does not deal with (e.g. estoppel, leave and licence, champerty and maintenance, etc).

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Cancellation of a Nova Scotia Exploration License for Failure to Tender a Work Deposit

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On November 11, 2013

In Oil & Gas

PDF Version: Cancellation of a Nova Scotia Exploration License for Failure to Tender a Work Deposit

Case commented on: Shin Fan F & P Inc v Canada-Nova Scotia Offshore Petroleum Board, 2013 NSSC 341

In this straightforward decision Justice Gregory Warner of the Nova Scotia Supreme Court declined to grant judicial review of a decision of the Canada-Nova Scotia Offshore Petroleum Board to cancel Shin Han’s exploration license (EL) for failure to tender a work deposit.

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Constitutional Questions and the Alberta Energy Regulator

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On October 24, 2013

In Aboriginal, Administrative Law, Constitutional

PDF Version: Constitutional Questions and the Alberta Energy Regulator

Decisions commented on: (1) ERCB Letter Decision, April 18, 2013, re Fort McKay First Nation, Notice of Question of Constitutional Law; (2) ERCB Letter decision, May 23, 2013, reasons for decision in relation to Fort McKay First Nation, Notice of Question of Constitutional Law; (3) 2013 ABAER 014, Dover Operating Corporation, Application for a Bitumen Recovery Scheme Athabasca Oil Sands Area, August 6, 2013; and (4) Fort McKay First Nation v Alberta Energy Regulator, 2013 ABCA 355

The Alberta Court of Appeal has granted leave to the Fort McKay First Nation (FMFN) to appeal two questions of law or jurisdiction in relation to decisions made by the Energy Resources Conservation Board (ERCB) (the predecessor to the Alberta Energy Regulator (AER)) and the AER itself in approving, subject to the further approval of the Lieutenant Governor in Council, Dover’s application for a major steam assisted gravity drainage (SAGD) bitumen recovery project. The two questions on which leave was granted are as follows:

(a) Whether the Tribunal erred in law or jurisdiction by finding that the question whether approval of the project would constitute a meaningful diminution of the Treaty rights of the Fort McKay First Nation and therefore be beyond provincial competence was not a question of constitutional law as defined in the Administrative Procedures and Jurisdiction Act;

(b) Whether the Tribunal erred in law or jurisdiction by finding that it had no jurisdiction to consider constitutional issues other than those defined as “questions of constitutional law” in the Administrative Procedures and Jurisdiction Act.

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Separation of Powers and the Government’s Response to the Judgment in Pembina Institute v Alberta (Environment and Sustainable Resources Development), 2013 ABQB 567

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On October 11, 2013

In Environmental

PDF Version: Separation of Powers and the Government’s Response to the Judgment in Pembina Institute v Alberta (Environment and Sustainable Resources Development), 2013 ABQB 567

Responses commented on: (1) “Still Alberta’s prerogative to say who speaks at oilsands reviews: Alison Redford” as reported by Canadian Press, Calgary Herald, October 4, 2013, and (2) “Environment minister defends officials in oil sands case”, as reported by James Wood, Calgary Herald, October 9, 2013

My colleague Shaun Fluker posted a comment on the judgment in Pembina Institute v Alberta (Environment and Sustainable Resources Development), 2013 ABQB 567 last week here. In that case Justice Marceau ruled that a Director within the Department of Environment and Sustainable Resources Development acted unlawfully when he decided that the Pembina Institute and the Fort McMurray Environmental Association were not entitled to file a statement of concern with respect to the MacKay River oil sands project. Justice Marceau ruled that the Director in making his decision took into account irrelevant and improper considerations – namely that the applicants were no longer as cooperative as they had been in their dealings with government in relation to oil sands developments and the environmental impacts of those developments.

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The United States Wants a New Columbia River Treaty, What Should Canada Do?

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On September 30, 2013

In International Law, Water Law

PDF Version: The United States Wants a New Columbia River Treaty, What Should Canada Do?

Documents commented on: (1) The Columbia River Treaty and Protocol, 1964 and (2) Columbia River Treaty Review, Draft Regional Recommendation, September 20, 2013 available here

Interesting times lie ahead for the Columbia River Treaty (CRT) of 1964 between Canada and the United States. The CRT provides for the cooperative development of the upper Columbia River and the Kootenay River for two purposes, flood control and power. Under the terms of the treaty Canada agreed to build and operate three dams: Duncan, Mica and Arrow/Keenleyside. The treaty also authorized the United States to construct Libby dam on the Kootenay River in the United States. Libby dam created Lake Koocanusa (Kootenay/Canada/USA) which backs up into British Columbia (hence the need for treaty authorization). In return for all of this, Canada received a $64 million dollar lump sum payment for the first sixty years of flood control offered by the Canadian dams, and 50% of the incremental power and capacity made available at US mainstem dams as a result of the new storage. The mainstem dams are existing dams on the Columbia, some owned by the US federal government (e.g. Grand Coulee and Chief Joseph), and some owned by public utility districts (e.g. Wells, Rocky Reach, Rock Island, Wanapum and Priest Rapids). The Canadian storage improved the efficiency of these dams by firming up capacity (i.e. providing stored water when installed generation would otherwise be running at less than full capacity) and storing water when the same dams might otherwise be spilling water. These power benefits currently have an average annual value of about $202 million. Canada/British Columbia also receives other benefits from the treaty facilities including local flood control (for communities like Trail and Castlegar) and on site generation at Mica, Revelstoke (not a treaty dam, but a facility which benefits from the regulation provided by Mica) and Keenleyside. For maps of the basin and dam locations and more information about the treaty see the website of the Columbia Basin Trust here.

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