Saskatchewan Land Titles Decision Calls Out for Appellate Review

By: Nigel Bankes and Jonnette Watson Hamilton

PDF Version: Saskatchewan Land Titles Decision Calls Out for Appellate Review

Case Commented On: Registrar of Titles and Great West Life Assurance Company and Primrose Drilling Ventures Ltd, 2018 SKQB 290.

This decision deals with the power of the registrar to correct an error made back in the chain of title, the effect of a registrar’s caveat, and the status of a purchaser where a title is encumbered by a registrar’s caveat. Unfortunately, Justice Kovach has, in our view, reached incorrect conclusions on each of these issues. We hope that the Saskatchewan Court of Appeal has the opportunity to correct these errors.

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The Alberta Law Reform Institute Begins Project Selection

Website of the Alberta Law Reform Institute

PDF Version: The Alberta Law Reform Institute Begins Project Selection

By: Barry Chung

Since 2016, the Institute has received over 50 law reform suggestions from the public, legal community and various service organizations. There was a wide variety of topics that ranged from the appointment of Provincial Court Judges, Indigenous Peoples and reconciliation, autonomous vehicle legislation, and Business Corporations Act compliance to name just a few.

While the majority of these topics are important and worthy of consideration, only a few will make it through ALRI’s rigorous selection process.

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Implementing UNDRIP: some reflections on Bill C-262

By: Nigel Bankes

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Bill Commented On: Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples

This post comments on Bill C-262 adopted by the House of Commons on May 30, 2018. The Bill is currently in the Senate awaiting debate in a very packed fall sitting. The post is based on a presentation that I made to the Conference on Indigenous Solutions to Environmental Problems held at the Banff Centre, Banff Alberta, November 9 – 12th 2018 on the Treaty 7 territory of the Stoney Nakoda First Nation.

Part I offers some preliminary comments on the United Nations Declaration on the Rights of Indigenous Peoples (Declaration or UNDRIP). Part II describes Canada’s bumpy road to the endorsement of the Declaration. Part III examines the subject of latest step in that endorsement, namely the government’s support of MP Romeo Saganash’s private member’s bill, Bill C-262.

My main conclusion is that the Bill strikes a judicious balance between affording the Declaration some immediate “application” in the laws of Canada, and the creation of a process that will, over time, give greater effect to the Declaration within the Canadian legal system and in doing so slowly decolonize Canadian law and the Canadian legal mind. My perception of the balanced nature of the Bill means that I do not share the views expressed by some (see, for example, Dwight Newman and Ken Coates here) to the effect that the Bill is overly simplistic and will shift a lot more power to the courts.

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Food for thought: Judgment of the European Court of Justice on Capacity Market Issues

By: Nigel Bankes

PDF Version: Food for thought: Judgment of the European Court of Justice on Capacity Market Issues

Case Commented On: Tempus Energy Ltd v European Commission, Judgment of the General Court (Third Chamber, Extended Composition), 15 November 2018, Case T-793/14.

Those engaged in the challenging job of designing a capacity market for Alberta’s electricity sector might be interested in this recent judgment of the European Court of Justice in which the Court concluded that the European Commission (EC) had been too hasty in approving the design of the UK’s proposed capacity market. The case arises in the particular context of the primary law of the European Union (EU), the Treaty on the Functioning of the European Union and specifically that treaty’s provisions on “State aid” – better known to the rest of the world as unlawful state subsidies. The UK’s proposed capacity market had to be notified to the EC for its approval because a capacity market, despite the “market” label, represents a departure from a “purer” version of an electricity market (an energy only market). A capacity market involves a degree of central planning (estimating the required capacity) and then “out of market” payments to those who post winning bids to provide that capacity. See my earlier post on Alberta’s capacity market legislation here. Continue reading →

Payout under Alberta’s Oil Sands Royalty Regulation

By: Nigel Bankes

PDF Version: Payout under Alberta’s Oil Sands Royalty Regulation

Case Commented On: Fort Hills Energy Corporation v Alberta (Minister of Energy), 2018 ABQB 905

A year ago, ABlawg posted a case comment on a dispute related to the determination of payout with respect to the Hibernia project on the East Coast. That case, Newfoundland and Labrador v ExxonMobil Canada Properties, 2017 NLDT(G) 147, 2017 CanLII 56724 (NL SCTD), involved an arbitration followed by an unsuccessful application by the Province of Newfoundland and Labrador to have the court overturn the arbitral award. Fort Hills, perhaps more conventionally, involves the definition of payout under the terms of Alberta’s Oil Sands Royalty Regulation, 2009, Alta Reg 223/2008, (OSRR). In this case the matter arises as an application for judicial review with respect to the Minister’s decision on one element of the payout account for the Fort Hills Oil Sand Project (FHOS Project), namely a category of expenses referred to as ‘prior net cumulative balance’ (PNCB). The differences between the parties were massive. Suncor had originally claimed a PNCB of $1,898,205,145; the minister allowed a PNCB of a little more than $33 million, and a further review and audit reduced this to $NIL. Definitely worth fighting about!

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