Author: Nigel Bankes Page 7 of 87

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.

Sometimes it is Completely Irrelevant Whether or not a Royalty Interest Amounts to an Interest in Land

By Nigel Bankes

On August 28, 2023

In Energy, Land Use, Property

By: Nigel Bankes

Case commented on: Enerplus Corporation v Harvest Operations Corp, 2021 ABQB 634 (CanLII), appeal dismissed, 2023 ABKB 482 (CanLII)

PDF Version: Sometimes it is Completely Irrelevant Whether or not a Royalty Interest Amounts to an Interest in Land

Harvest (70%), Orlen (15%), and Petrus (15%) are the working interest owners of certain oil and gas properties. Under the terms of a farmout agreement (in the form of the 1997 Farmout and Royalty Procedure of the Canadian Association of Petroleum Landmen (CAPL)), back in the chain of title, Enerplus holds a gross overriding royalty interest (GORR) in the 70% interest currently held by Harvest. The terms of the GORR provided that:

An Incredibly Ill-Advised and Unnecessary Decision

By Nigel Bankes

On August 9, 2023

In Energy

By: Nigel Bankes and Martin Olszynski

Decision Commented On: Generation Approvals Pause Regulation, OiC 172/2023, August 2, 2023

PDF Version: An Incredibly Ill-Advised and Unnecessary Decision

On August 3, 2023 the Government of Alberta announced that the Alberta Utilities Commission (AUC) will pause approvals of new renewable electricity generation projects over one megawatt until February 29, 2024. As further set out below, this “pause” is entirely unnecessary to achieve the government’s stated goals; it is also astoundingly hypocritical and undermines confidence in the stability of Alberta’s regulatory framework insofar as it singles out renewable energy projects for special treatment.

Conflict in Paradise

By Nigel Bankes

On August 3, 2023

In Land Use, Oil & Gas

By: Nigel Bankes

Decisions Commented On: (1) AUC Decision 27589-D01-2023, Nova Solar G.P. Inc. and AltaLink Management Ltd., Nova Solar Power Plant and Transmission Connection, July 19, 2023; and (2) AUC letter decision on standing, October 31, 2022 (AUC’s Standing Ruling).

PDF Version: Conflict in Paradise

New and different resource uses may give rise to conflict or competition, and many have been discussed on ABlawg’s pages. Examples include:

(1) competition between natural gas storage operations and conventional oil and gas operation, (see for example Bankes, “Kallisto #2. Competing Uses of Geological Space: Resolving Conflicts Between Oil Production and Natural Gas Storage Interests”);

(2) competition for underground disposal capacity, (see, for example Bankes, “Sharing Geological Pore Space Disposal Capacity” as well as a complex and ongoing regulatory matter involving CNRL and Greenfire Resources before the Alberta Energy Regulator); and

(3) competition between proposed carbon capture and storage operations and a variety of conventional and non-conventional resource activities, (see for example, Ettinger et al, “Alberta’s Carbon Capture & Storage Land Grab And The Potential For Conflicts Of Subsurface Rights”).

The Basics of Alberta’s Torrens Title System: Three Cases

By Nigel Bankes

On July 4, 2023

In Property

By: Jonnette Watson Hamilton and Nigel Bankes

Cases commented on: St Pierre v Schenk, 2020 ABCA 382 (CanLII); Calgary (City) v Teulon, 2021 ABQB 388 (CanLII); St Pierre v North Alberta Land Registry District (Registrar), 2023 ABCA 153 (CanLII)

PDF Version: The Basics of Alberta’s Torrens Title System: Three Cases

These three decisions about the basic elements of Alberta’s Torrens title system cover a wide range of issues. The two Alberta Court of Appeal decisions – one a reserved judgment – arise from the same set of facts, which feature a case of forgery. The first decision looks at whether the registration of a caveat will cure the caveator’s defective title, and the second discusses the Registrar’s liability for the caveator’s loss of an interest in land. The Court of King’s Bench decision stems from facts that are less straight-forward. It considers three statutory exceptions to the principle of indefeasibility that underlies Alberta’s Torrens title system: prior certificate of title, misdescription, and one of the listed exceptions in section 61 of the Land Titles Act, RSA 2000, c L-4 (LTA) (an alleged public highway).

Commissioner Trussler Should Recommend Sanctions Against Premier Smith

By Nigel Bankes

On June 30, 2023

In Ethics and the Legal Profession

By: Nigel Bankes and Jennifer Koshan

Matter Commented On: Conflicts of Interest Act, RSA 2000, c C-23 and the Report on Allegations involving Premier Danielle Smith

PDF Version: Commissioner Trussler Should Recommend Sanctions Against Premier Smith

In her report of May 17, 2023, Ethics Commissioner Marguerite Trussler concluded that Premier Danielle Smith had violated section 3 of the Conflicts of Interest Act, RSA 2000, c C-23, when she contacted the Minister of Justice and Attorney General within hours of taking a call from Artur Pawlowski, where she discussed the criminal charges he was facing. However, the Commissioner went on to note that at that point she was making no recommendations “with respect to sanctions against the Premier for consideration of the Legislative Assembly of Alberta” but that she reserved “the right to make recommendations once the Legislative Assembly is back in session” (at 16). Commissioner Trussler also made two additional recommendations. The first was that “[a]ll new Members of the Legislative Assembly of Alberta attend mandatory training upon election about the structure of Canadian government and the roles of the three branches of government” (at 16). The second was that the Legislative Assembly “consider whether to amend the Conflicts of Interest Act to provide for a stay on any ongoing investigation from the time that the writ drops for an election until the election results are certified” (at 16).