Category Archives: Energy

Duty to Consult, Honour of the Crown, Project Assessment, and Land-Use Planning in a Modern Treaty Context: More Clarity from the Supreme Court of the Yukon

By: David Wright

Matter Commented On: First Nation of Na-Cho Nyäk Dun v Yukon (Government of), 2023 YKSC 5 (CanLII) (Metallic Minerals)

PDF Version: Duty to Consult, Honour of the Crown, Project Assessment, and Land-Use Planning in a Modern Treaty Context: More Clarity from the Supreme Court of the Yukon

The duty to consult and accommodate is now a mature area of jurisprudence, including case law that is “replete with indicia” (Coldwater First Nation v Canada (Attorney General), 2020 FCA 34 (CanLII) at para 41) of what constitutes meaningful consultation. One area that continues to evolve, however, is Crown consultation obligations and the honour of the Crown in modern treaty contexts. The landmark Supreme Court of Canada cases of Beckman v Little Salmon/Carmacks First Nation (2010 SCC 53 (CanLII)) and First Nation of Na-Cho Nyäk Dun v Yukon (2017 SCC 58 (CanLII)), both originating from lower courts in the Yukon, set out the contours of this legal landscape, but some uncertainty remains. In First Nation of Na-Cho Nyäk Dun v Yukon (Government of), 2023 YKSC 5 (CanLII) (Metallic Minerals), the Supreme Court of Yukon (YKSC) provides helpful judicial interpretation and observations in this area. In particular, Chief Justice Suzanne M. Duncan clarifies the law with respect to the Honour of the Crown and the duty to consult and accommodate in context of project-level assessment and land-use planning in the Yukon. This short post provides an overview of the case, as well as brief commentary regarding key points. Continue reading →

Administrative Penalties at the Alberta Energy Regulator: A Gentle Slap on the Wrist for Ovintiv

By: Drew Yewchuk

Decision Commented On: AER Administrative Penalty 202304-03, Ovintiv Canada ULC

PDF Version: Administrative Penalties at the Alberta Energy Regulator: A Gentle Slap on the Wrist for Ovintiv

I recently turned my mind to the subject of how the Alberta Energy Regulator (AER) makes decisions on financial penalties to companies that contravene the conditions of their project approvals. This post is the first in what may become a series of blogs on the question. Continue reading →

The Alberta Energy Regulator and the Disclosure Without Delay Rule in FOIP

Commented On: Alberta Energy Regulator Announcement – March 02, 2023: Alberta Energy Regulator Actively Investigating and Responding to Imperial Oil Kearl Site Incident; and Letter to the Office of the Information and Privacy Commissioner Requesting an Investigation of AER Emergency Disclosure Policy

By: Drew Yewchuk

PDF Version: The Alberta Energy Regulator and the Disclosure Without Delay Rule in FOIP

The Alberta Energy Regulator (AER) has been aware that industrial effluent has been seeping from a tailings pit at Imperial’s Kearl oilsands mine since May 2022. (They should not be called tailings ‘ponds’ – they may be pits or lakes, but ‘pond’ implies they are small, which they absolutely are not). The AER chose to make this information public on February 4, 2023, when an estimated 5,300 cubic meters of “[s]torage pond overflowed off lease” and the AER began investigating Imperial for “[f]ailure to comply with conditions of an approval and release of industrial watewater [sic] from an unapproved location” (AER compliance dashboard, incident number 20230311 and investigation number 2023-009). Continue reading →

Worrying About Reclamation and Abandonment Obligations in the Context of Property Assignment Consents

By: Nigel Bankes and Drew Yewchuk

Case commented on: Canadian Natural Resources Limited v Harvest Operations Corp, 2023 ABKB 62 (CanLII)

PDF Version: Worrying About Reclamation and Abandonment Obligations in the Context of Property Assignment Consents

This decision is principally about when a court can or should grant partial summary judgment. For that reason alone, we anticipate that it will be appealed. But the underlying concern that led to this litigation was (and still is) the decision of Canadian Natural Resources Limited (CNRL) to contest assignments pursuant to a purchase and sale agreement (PSA) between Harvest Operations as the vendor and Spoke Resources as the purchaser. CNRL and Harvest were parties to some 170 agreements affected by the PSA, including 133 land agreements, 30 facility agreements, and 7 service agreements. Continue reading →

Do We Need a Forum Within Which to Discuss Issues of Electricity Law and Policy in Alberta?

By: Nigel Bankes

PDF Version: Do We Need a Forum Within Which to Discuss Issues of Electricity Law and Policy in Alberta?

I am not a technical electricity expert and I do not have day-to-day access to technical experts, but I have been following some of the law and policy issues in the electricity sector in Alberta over the last decade or so. I am concerned that we don’t have a suitable forum within which to publicly discuss and develop electricity law and policy for an increasingly decentralized electricity system that continues to decarbonize and has access to a greater diversity of generation. On top of this is the emerging policy of the “electrification of everything”. There is massive complexity here, but the public deserves to be involved in a discussion of the relevant issues. Continue reading →