Category Archives: Energy

Duty to consult application is premature – what’s the big deal?

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Case and decision commented on: Metis Nation of Alberta Region 1 v Joint Review Panel, 2012 ABCA 352 and decision of the Joint Review Panel

 In this decision Justice Slatter denied the application of the Metis Nation and of the Athabasca Chipewyan First Nation (ACFN) for leave to appeal the decision of the Joint Review Panel (JRP) constituted to deal with Shell’s Jackpine Mine Expansion Project application.  In its decision the JRP concluded that it did not have jurisdiction to assess whether or not the Crown had fulfilled its duty to consult with respect to the Jackpine Mine Project.  In the alternative, the JRP concluded that any application to assess whether or not the Crown had fulfilled its constitutional obligation was premature.  The JRP is established by federal\provincial executive agreement and has the responsibility of discharging obligations under both the federal Canadian Environmental Assessment Act, 2012, SC 2012, c 19 and the responsibilities of the provincial Energy Resources Conservation Board under a number of statues including the Oil Sands Conservation Act, RSA 2000, c O-7 – all with respect to the Jackpine Mine expansion project.

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Natural Gas Storage Rights in Ontario: Questions of Jurisdiction and Interpretation

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Cases Commented On: Tribute Resources v 2195002 Ontario Inc, 2012 ONSC 25 (on the jurisdictional issue) and 2195002 Ontario Inc v Tribute Resources Inc, 2012 ONSC 5412 (on the interpretation issues)

These two decisions represent one example of the efforts of Ontario landowners who claim ownership of natural gas storage rights by virtue of owning the rights to petroleum and natural gas to assert those rights against working interest owners who claim to have acquired storage rights by various old instruments including petroleum and natural gas leases, unitization arrangements, and, in some cases, specific gas storage leases.  The cases are part of a broader litigation strategy in which storage owners are trying to negotiate more favourable economic terms that afford them the right to participate in the value that the storage represents to Ontario utilities and generators.

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Applicants to a Feed-in Tariff Program Must Expect Change

By: Nigel Bankes

PDF Version: Applicants to a Feed-in Tariff Program Must Expect Change

Case Commented On: Skypower CL 1 LP et al v Minister of Energy (Ontario) et al, 2012 ONSC 4979

In an earlier post entitled “Low carbon energy policies: vested rights, legitimate expectations and differential treatment in domestic and international law” (see here). I commented on a UK case involving changes to a feed-in tariff (FIT) program as well as a couple of ongoing international arbitrations against Canada involving provincial energy policies (one in British Columbia and one in Ontario, the Mesa Power arbitration). The Skypower decision which is the subject of this post involves changes to Ontario’s FIT program. The common theme of all of these cases are the legal implications for government where government changes its mind about the terms of incentive programs designed to encourage the uptake of low carbon forms of generation.

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Court of Appeal confirms QB decision that coalbed methane forms part of the natural gas title and not the coal title

PDF version: Court of Appeal confirms QB decision that coalbed methane forms part of the natural gas title and not the coal title

Case Considered: Encana Corporation v Devon Canada Corporation, 2012 ABCA 271, aff’g 2011 ABQB 431.

 The Court of Appeal in a unanimous memorandum of judgment (Justices McFadyen, O’Brien and O’Ferrall) has affirmed Justice Kent’s decision at trial in a case dealing with section 10.1 of the Mines and Minerals Act, RSA 2000, c M-17 (as am by SA 2010, c 20) (MMA).  That section declared that coalbed methane (CBM) is and always has been natural gas.  Justice Kent applied the new section 10.1 to grant summary judgement in competing actions brought by the coal owners and the natural gas lessees seeking declaratory relief as to the ownership of CBM in certain lands.  The actions in question had all been commenced before the amendment was introduced and passed. The Court held that section 10.1 was a complete answer to the competing claims and concluded that the natural gas lessees were entitled to a declaration that the coalbed methane had been granted to them under the terms of their natural gas leases.  I blogged on the trial judgment here.

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Quest. The Energy Resources Conservation Board Approves the First Commercial Scale Carbon Capture and Storage Project in Alberta

By: Nigel Bankes

PDF Version: Quest. The Energy Resources Conservation Board Approves the First Commercial Scale Carbon Capture and Storage Project in Alberta

Decision Commented On: Shell Canada Limited, Application for the Quest Carbon Capture and Storage Project, Radway Field, July 10, 2012, 2012 AERCB 008

In a long-awaited decision issued on July 10, 2012, Alberta’s Energy Resources Conservation Board (ERCB or Board) approved Shell Canada Limited’s application for a commercial scale CCS project (the Quest Project).  The project is associated with the long standing Athabasca Oil Sands Project (AOSP) and the Scotford Upgrader where new facilities are designed to capture up to 1.2 megatonnes of CO2 per year for ongoing injection.  The cumulative stored volume is expected to be greater than 27 Mt of CO2 over the expected 25 year life of the Scotford Upgrader.  The approval is subject to some 23 conditions and, as contemplated by the scheme approval provision of section 39(2) of the Oil and Gas Conservation Act, RSA 2000, c O- 6 (OGCA), the project will only be finally approved by the ERCB following review by the Minister of the Environment who may impose additional conditions on the scheme approval.

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