Category Archives: Energy

Federal Court of Appeal Quashes Trans Mountain Pipeline Approval: The Good, the Bad, and the Ugly

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Case Commented On: Tsleil-Waututh Nation v. Canada (Attorney General) 2018 FCA 153

Last Thursday, the Federal Court of Appeal released its decision in Tsleil-Waututh Nation v. Canada (Attorney General). Those following Canada’s contentious pipeline debate will know that this was the primary legal challenge to Kinder Morgan’s certificate of public convenience and necessity (CPCN or certificate) for its Trans Mountain Expansion Project (TMX) (for a series of related ABlawg posts, see here). The Federal Court of Appeal quashed the CPCN on two grounds: first, the Court held that the National Energy Board’s (NEB) decision to exclude the increased marine traffic associated with the project from the environmental assessment (EA) conducted pursuant to the Canadian Environmental Assessment Act, 2012 SC 2012, c 19, s 52 (CEAA, 2012) was unreasonable; and second, Canada did not adequately discharge its constitutionally-rooted duty to consult and accommodate affected Indigenous peoples. This post focuses primarily on the first ground, although as will be seen the two are related. As further discussed below, the Federal Court of Appeal’s analysis with respect to marine traffic appears to be on solid footing (the Good). More problematic is the Court’s approach to the reviewability of EAs generally (i.e. the ability to challenge such reports in court) (the Bad). Most problematic, however, has been the decision’s reception and distortion by various groups and individuals to make various claims that the decision simply does not substantiate (the Ugly).

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Public Interest Standing for NGOs to Test Whether CNLOPB can Effect an End-Run Around Maximum Term Provisions

By: Nigel Bankes

PDF Version: Public Interest Standing for NGOs to Test Whether CNLOPB can Effect an End-Run Around Maximum Term Provisions

Case Commented On: David Suzuki Foundation v Canada-Newfoundland Offshore Petroleum Board, 2018 NLSC 146

Corridor Resources Inc. (Corridor) received a nine year exploration licence (EL 1105) from the Canada-Newfoundland Offshore Petroleum Board (CNLOPB or Board) on January 15, 2008 under the terms of the federal and provincial legislation implementing the terms of the Atlantic Accord: Canada-Newfoundland and Labrador Atlantic Accord Implementation Act, S.C.1987, Ch. 3 (Federal Act), and Canada-Newfoundland and Labrador Atlantic Accord Implementation Newfoundland and Labrador Act, R.S.N.L. 1990, c. C-2 (Newfoundland Act). As is customary, the EL was divided into two periods: Period I, five years and Period II, 4 years. In order to validate the licence for Period 2 Corridor had to commence the drilling of a well within the Period I and diligently drill through to completion. Corridor’s proposal to drill proved controversial and triggered a time-consuming environmental assessment procedure. In response to this Corridor applied for and was granted an extension to Period I but in the end it was not able to drill a well as required by the EL.

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Alberta and British Columbia: How the constitution makes you best pals – Constitutional Perspectives

Presenter: Fenner Stewart (Professor, University of Calgary)

PDF Version: Alberta and British Columbia: How the constitution makes you best pals – Constitutional Perspectives

Summarized By: Alexander Crisp, JD Candidate 2020, University of Calgary

Editor’s Note: This is the fifth in a series of blog posts that provides summaries of presentations from the ninth annual Energy Regulatory Forum, held in Calgary on May 28, 2018, as summarized by student attendees.

On May 28, Professor Stewart from the University of Calgary shared his views on Kinder Morgan’s Trans Mountain Expansion (TMX), and some of the constitutional tools that the British Columbia (BC), Alberta and federal governments have at their disposal to use on the project.

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Relevant Considerations in Approving Assignments Under the CCAA

By: Nigel Bankes

PDF Version: Relevant considerations in approving assignments under the CCAA

Case Commented On: Dundee Oil and Gas Limited (Re), 2018 ONSC 3678

As part of approving a plan of compromise or arrangement under the Companies’ Creditors Arrangement Act, RSC 1985, c. C-36, s.11.3 (CCAA), the Court on an “application by a debtor company and on notice to every party to an agreement and the monitor, … may make an order assigning the rights and obligations of the company under the agreement to any person who is specified by the court and agrees to the assignment.” Section 11.3(3) provides the following guidance to the Court in exercising this power:

(3) In deciding whether to make the order, the court is to consider, among other things,

(a) whether the monitor approved the proposed assignment;

(b) whether the person to whom the rights and obligations are to be assigned would be able to perform the obligations; and

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Energy Regulatory Forum: A Discussion on Bill C-69 Part 1: Canada Energy Regulator: A rose by any other name – what does it do; how does it work?

Presenters: Dennis Langen, Partner, Stikeman Elliott LLP; Sheila Leggett, President, Tower Peak Consultants Ltd.

Summarized By: David Hillier, BSc EnvS, University of Calgary JD Candidate 2020

PDF Version: Energy Regulatory Forum: A Discussion on Bill C-69 Part 1: Canada Energy Regulator: A rose by any other name – what does it do; how does it work?

Editor’s Note: This is the fourth in a series of blog posts that provides summaries of presentations from the ninth annual Energy Regulatory Forum, held in Calgary on May 28, 2018, as summarized by student attendees.

The first presentation at the 2018 Energy Regulatory Forum compared and contrasted Bill C-69 and the incoming Canadian Energy Regulator (CER) regime with the current National Energy Board (NEB) regulatory regime it is intended to replace (for an earlier ABlawg on this topic, see here). What important differences should those in the energy industry be aware of? What are the potential issues with the new regime? Dennis Langen and Shelia Leggett provided a brief tour through the proposed legislation, highlighted some of its key features, and discussed the significance of these regulatory changes.

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