The Gas/Bitumen Dispute: The Clash of Fact, Technology, Policy and Law

This article examines the conflict between gas production and the preservation of bitumen resources in Alberta's oil sands area. After providing a synopsis of the relevant technical and legal issues facing the industry, the authors then focus on the clash of factual, technological, legal and policy issues facing both regulators and industry in the gas/bitumen dispute. The authors then conclude with an analysis of the current status and future of the gas/bitumen dispute.

Canadian Challenges in Implementing the Kyoto Protocol: A Cause for Harmonization

On 17 December 2002, Canada ratified the Kyoto Protocol to the United Nations Framework Convention on Climate Change (Kyoto Protocol), taking on binding targets to reduce Canadian emissions of greenhouse gases (GHGs). Canada's ratification decision and the proposed domestic emissions trading system forming part of Canada's Kyoto implementation plan continue to be the source of considerable disagreement and conflict between the provinces and thefederal government regarding: the practical challenges associated with multiple Canadian jurisdictions implementing emissions trading systems: the current status and legal issues associated with covenants between industry and government(s) to enforce GHG reduction targets; the legal jurisdiction over domestic emissions trading system(s); and the impact on interprovincial and international trade. Each ofthese issues is examined in the unique Canadian legal context. The authors conclude that many ofthe most significant challenges may be mitigated through harmonization and coordination byfederal and provincial governments in a manner that allows for local concerns to be addressed without fragmenting the Canadian emissions markets.

Principles of Kyoto and Emissions Trading Systems: A Primer for Energy Lawyers

The Kyoto Protocol defines new emissions standards to be met by the international community in respect of greenhouse gases, the aim of which is to curb the present trend of adverse climate change. The specific responses of ratifying governments to bring about the desired changes will significantly impact citizenry and industry alike. This article addresses the issues surrounding emissions trading systems as market-based policy instruments that may ultimately contribute to Canada s legislative response to the Kyoto standards. Central to this question is the need to familiarize legal practitioners with the implications of climate change and the range of policy responses available to government in the context of emissions trading systems. The author examines responses open to the governments of Canada and Alberta through a review of the international reaction to climate change, the role of emissions trading in environmental regulation generally and the anticipated use of emissions trading to comply with the Kyoto Protocol in the future. The author presents an in-depth analysis of the principles underlying the design of domestic emissions trading systems, of the legislative authority surrounding their implementation and of the need for affected businesses to strategically plan for ensuing changes. The author concludes that while Canada has not yet adopted a policy on domestic emissions trading systems in respect of the Kyoto Protocol, the potential impact of emission standards on domestic sources is pronounced, meriting an inspection of the design features that may form a pan of such trading schemes.

Rights, Duties and Obligations of Counter-Parties following Default under Derivative Contracts

The article discusses the use of derivative contracts as a risk-management tool and the results of terminating such contracts, including: termination under conditions of insolvency and non-insolvency of a counter party; the use of collateral security to mitigate the risks of contractual obligations that might terminate prematurely; the duty to negotiate in good faith; notice requirements for termination of a derivative contract; and damages/penalties that arise when a contract is terminated prior to completion.

Fundamental Aspects of Oil and Gas Revisited

The authors review certain fundamental principles of Canadian oil and gas law, concentrating on three main areas: basic principles of ownership and operation in the oil and gas industry: aspects of oil and gas agreements: and international petroleum agreements. In discussing each of these subjects, the authors consider issues of significance to practitioners of oil and gas law.

Coalbed Methane: Conventional Rules for an Unconventional Resource

Considering the evolution of coalbed methane development In North America, the authors highlight the risks involved at various stages of development. To manage these risks and potentially increase the chance of successful projects, the authors offer suggestions for adapting leases and agreements typically used in the oil and gas industry to reflect the uniqueness of coalbed methane development. The authors also suggest amendments to Alberta's current legislation affecting Crownlands. The authors acknowledge that the issues that arise in the coalbed methane context will change over time as projects are carried out, the industry matures and the legal and regulatory frameworks governing coalbed methane evolve. In providing possible solutions to the current situation, consideration is given to common law principles of ownership of coalbed methane, legislation affecting Crown and freeholdlands, typical freeholdleases, joint ventures and operating agreements and environmental concerns surrounding coalbed methane development.

Consultation with Aboriginal Peoples: Impacts on the Petroleum Industry

The duties of consultation and accommodation with Aboriginal peoples affected by resource development were, until 2002, primarily the responsibility of the Crown. The British Columbia Court of Appeal, in two related decisions involving the Haida Nation on the one hand and the Crown and Weyerhaeuser Company Limited on the other, has placed these duties squarely on to the shoulders of industry. Where the Crown fails to discharge its duties of consultation and accommodation, resource tenures such as permits, licenses or leases may be invalid and activity conducted pursuant to the tenures may result in damages awarded against industry in favour of affected Aboriginal peoples. Appeals from both decisions will be heard by the Supreme Court of Canada. In the meantime, the law on industry’s duty to consult and to accommodate Aboriginal peoples continues to lack certainty.

Recent Regulatory and Legislative Developments of Interest to Oil and Gas Lawyers

This article examines recent regulatory and legislative developments relevant to oil and gas lawyers. Regulatory decisions ofthefederal National Energy Board and the Alberta Energy and Utilities Board receive particularfocus, as well as legislative developments in British Columbia and Saskatchewan. The article concludes with a discussion of recent guidelines, policies and directives.

Recent Judicial Developments of Interests to Oil and Gas Lawyers

The purpose of the article is to provide a brief review of recent Canadian judicial decisions of interest to oil and gas lawyers. The authors have surveyed Canadian case law in the areas of government regulation, conflicts, creditor’s rights, surface rights, contracts and tax.