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Category: Energy Page 38 of 55

Clyde River and Chippewas of the Thames: Some Clarifications Provided But Some Challenges Remain

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On August 4, 2017

In Aboriginal, Energy

By: Nigel Bankes

PDF Version: Clyde River and Chippewas of the Thames: Some Clarifications Provided But Some Challenges Remain

Cases Commented On: Clyde River (Hamlet) v Petroleum Geo-Services Inc., 2017 SCC 40 (CanLII) and Chippewas of the Thames First Nation v Enbridge Pipelines Inc., 2017 SCC 41 (CanLII)

The Supreme Court of Canada has rendered judgment in two cases involving the National Energy Board (NEB) and the duty to consult Indigenous communities. One decision, Clyde River, involves an authorization granted to Petroleum Geo-Services Inc (PGS) to conduct marine seismic testing in Baffin Bay and Davis Strait under the terms of the Canada Oil and Gas Operations Act, RSC 1985, c O-7 (COGOA). The Supreme Court of Canada concluded that the Crown had failed to discharge its duty to consult and accommodate and that as a result the NEB authorization should be quashed. The second decision, Chippewas of the Thames First Nation (CTFN), involves an order by the NEB under s 58 of the National Energy Board Act, RSC 1985, c N-7  (NEBA) exempting Enbridge Pipelines Inc (Enbridge) from the need to obtain a certificate of public convenience and necessity under s 52 of NEBA and at the same time amending the operation of part of Line 9 (Line 9B), to authorize reversing the flow of the line, increasing its capacity and allowing for the transportation of heavy crude. The Supreme Court of Canada concluded that the Crown was entitled to rely on the procedures adopted by the NEB in engaging with CTFN to discharge the Crown’s duty to consult and accommodate and that those procedures in this case were adequate.

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The Federal Response to the Report of the Expert Panel on the Modernization of the National Energy Board

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On July 14, 2017

In Aboriginal, Energy, Environmental

By: Nigel Bankes

PDF Version: The Federal Response to the Report of the Expert Panel on the Modernization of the National Energy Board

Document Commented On: Environmental and Regulatory Reviews, Discussion Paper, Government of Canada, June 2017

Professor Mascher has provided an overview of this Discussion Paper. This post highlights how the Discussion Paper responds to the Report of the Expert Panel on the Modernization of the National Energy Board. This is not a straightforward task for two reasons. First, while the Discussion Paper contains one page that is devoted to “modern energy regulation” (at 20) there are references throughout the document that are perhaps also relevant to the National Energy Board (NEB) as well as the other regulatory processes that are under review. Second, and more importantly (and as has already been highlighted by Professor Mascher), the Discussion Paper is not directly responsive to the Report of the Expert Panel. While there are a few quotations from the Expert Panel Report (and from the other review processes) scattered through the Discussion Paper there is no systematic tabulation of Expert Panel recommendations against the responses of the Government of Canada with perhaps (no doubt wishful thinking on my part) some supporting reasoning. Instead, all that we have is a set of high level proposals.

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Announcing a Summer Discussion Series on Recent Developments in Energy and Environmental Law

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On June 22, 2017

In Energy, Environmental

By: Martin Olszynski and Nigel Bankes

PDF Version: Announcing a Summer Discussion Series on Recent Developments in Energy and Environmental Law

Event Commented On: 2017 Energy & Environmental Law Summer Discussion Series

The past year has been relatively busy from a legislative and policy reform perspective, especially with respect to Canadian energy and environmental law. At the federal level, all of the expert panels and parliamentary committees tasked by the current Liberal government with reviewing the Harper-era changes to Canada’s energy and environmental law regime have now delivered their reports: Forward, Together: Enabling Canada’s Clean, Safe and Secure Energy Future (regarding the National Energy Board); Building Common Ground: A New Vision for Impact Assessment in Canada (regarding federal environmental assessment processes); Review of changes made in 2012 to the Fisheries Act: enhancing the protection of fish and fish habitat and the management of Canadian fisheries; and A Study of the Navigation Protection Act. There has also been important litigation at the provincial level, especially the Alberta Court of Appeal’s recent decision in the Redwater litigation: Orphan Well Association v Grant Thornton Limited, 2017 ABCA 124 (CanLII).

While most of these developments have been discussed in this forum (see e.g. posts by Kwasniak, Fluker and Yewchuk, Olszynski, and Mascher with respect to environmental assessment and Bankes on the NEB report and Redwater), the Faculty and the Canadian Institute of Resources Law have decided that it would also be interesting to host a series of panel discussions over the summer to further analyze the issues.

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The NEB Modernization Report

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On June 14, 2017

In Aboriginal, Energy

By: Nigel Bankes

PDF Version: The NEB Modernization Report

Report commented on:  Forward, Together: Enabling Canada’s Clean, Safe and Secure Energy Future, Report of the Expert Panel on the Modernization of the National Energy Board, May 2017, and Volume II, Annexes.

This post provides a summary of and preliminary comments on the Report of the Expert Panel on the Modernization of the National Energy Board (NEB), which was released in May 2017. The Report begins with an overview of “What the Panel Heard” and then articulates a set of five principles which underlie the Panel’s recommendations. The Panel follows this with a statement of the Panel’s vision for Canada’s regulator of energy infrastructure and then a set of recommendations focused around six key themes for realizing the Panel’s vision. These recommendations constitute the meat of the report. The six key themes are: (1) mandate, (2) relationships with Indigenous Peoples, (3) governance and decision-making, (4) public participation, (5) Î-kanatak Askiy Operations (keeping the land pure), and (6) respect for landowners.

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Upholding the Lexin Equipment Order – The AER Wins the Battle, But Most Likely Will Lose the War

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On April 20, 2017

In Bankruptcy and Insolvency, Energy

By: Heather Lilles

PDF Version: Upholding the Lexin Equipment Order – The AER Wins the Battle, But Most Likely Will Lose the War

Case Commented On: Interim Order and Order Re Equipment (ABQB), Alberta Energy Regulator (applicant) and Lexin Resources Ltd. (respondent), Court File Number 1701-02272 and Alberta Energy Regulator v Lexin Resources Ltd., 2017 ABQB 219 (CanLII)

Lexin Resources may only be a junior oil and gas company, but recent extensive coverage by local news agencies (see here for example) has caused the name of the small oil and gas producer to become as familiar as its larger counterparts, or – perhaps – as infamous as Redwater Energy Corporation. Redwater, another junior in the Canadian industry, became notorious last October when Chief Justice Neil Wittmann of the Court of Queen’s Bench allowed the Receiver of Redwater to disclaim unproductive oil and gas assets even where those assets were subject to abandonment orders from the Alberta Energy Regulator (AER). See the post of Professor Bankes on the Redwater decision here.

Like Redwater Energy, Lexin has been petitioned into bankruptcy under the Bankruptcy and Insolvency Act, RSC 1985, c B-3. In Lexin’s case, a Receiver was appointed on the application of the Alberta Energy Regulator – an unprecedented step for the Regulator. This post addresses two of the recent court actions involving Lexin Resources and the AER: the Interim Order Re Equipment which was issued by the Court of Queen’s Bench on February 14, 2017 (the “Interim Order”) and the recent decision in Alberta Energy Regulator v Lexin Resources Ltd., 2017 ABQB 219 (CanLII) (the “Lexin Decision”). This post does not directly discuss Lexin’s bankruptcy or what effect the Court of Appeal’s decision in Redwater (not yet released) could have on Lexin’s bankruptcy and its AER licensed assets.

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