Online Research Seminar - Canadian Energy Law Foundation

We are pleased to announce that the Canadian Energy Law Foundation (CELF) will be hosting the CELF Online Research Seminar on June 23-24, 2021.

The Seminar will take place over two half-day sessions and will feature the presentation of each of the papers that were originally going to be presented at the 2021 Jasper Research Seminar. Each presentation will feature a live paper presentation by the authors, commentary from our academic guests, followed by an open Q&A forum for attendees.

We look forward to bringing world class education to you in a revised format and hope you’ll join us.

Event Details

CELF Online Research Seminar
June 23 – 24. 2021

June 23 – 12:00 PM – 4:00 PM
June 24 – 9:00 AM – 1:00 PM

Click here to view the full Agenda

Paper Topics:

The Road to Net-Zero: Opportunities for the western Canadian oil and gas industry in a changing energy sector

Presenters: Sean Korney, Brendan Downey, Mike Henry and Robyn Finley (Burnet, Duckworth & Palmer LLP)

Canadian energy industry will emerge from the COVID-19 pandemic and the economic challenges of the last half decade forever changed and facing new opportunities and obstacles, including a refocus on new energy sources that will have an important role in re-shaping the industry. This evolution is expected to be accelerated by emerging emissions reduction strategies and net zero targets from all levels of government and the eagerness of investors to capitalize on the opportunities that a rapidly transforming sector presents. In this paper, we will review significant provincial and federal policy and legislative shifts that focus on reducing emissions, expanding sources and forms of energy, including hydrogen, geothermal and clean fuels, and introducing incentive mechanisms intended to promote these changes. The development of a robust Canadian hydrogen industry remains in its nascent stages. While many of the regulatory pieces currently exist, the growth of this industry will nevertheless require concerted policy action and implementation, as well as a degree of regulatory harmonization. The introduction of the Geothermal Resource Development Act represents the Government of Alberta’s first step towards developing a geothermal industry and other provinces are similarly pursuing this form of energy production. The Government of Canada’s climate goals, particularly the introduction of rules which will require liquid fuel (gasoline, diesel, home heating oil) suppliers to reduce the carbon intensity of these fuels have the potential to bolster the Canadian market for technologies that help produce “cleaner” fuels. Throughout, we will contemplate market diversification efforts and the new technologies within the context of Canada’s existing energy resources and infrastructure. We will consider what legal challenges Canada’s energy future might bring, including the need for the expansion of regulatory regimes, integration of alternative energy sources into private and public markets and export constraints. We expect that energy professionals will find themselves at the forefront of a new era of Canadian energy, and will comment on the ways in which the practice may evolve.

Moving Forward by Looking Back: Toward a Renewable Conservation Scheme in Alberta

Presenters: Daniel Johnson, Matt Schneider and Yi Liu (Borden Ladner Gervais LLP)

The Government of Canada’s recently released plan for “A Healthy Environment and a Healthy Economy” calls for the elimination of coal fired power across Canada by 2030, and doubling or trebling the amount of clean energy generated in Canada by 2050. Concurrently, Alberta’s Renewable Electricity Act maintains a target of 30% renewable electricity produced in Alberta by 2030. In the private sector, recent developments suggest a strong desire to source renewable energy, which will likely require significant development of renewable electricity generation. Alberta, with its abundant solar and wind resources, is well placed for the development of significant renewable electricity generation.

Currently, renewable electricity developments, as with other generation projects, are governed by the Hydro Electric Energy Act, Electric Utilities Act, and Alberta Utilities Commission Act. Although a renewable electricity project must meet regulatory requirements, the current regime does not formally provide a mechanism to address potential conflicts between renewable projects for access to resources or balance various development interests. Further, solar and wind resources are not subject to royalty treatment so, other than general corporate taxes, the public purse does not benefit from the capture and use of renewable energy resources.

All of the foregoing suggests that a conservation scheme for renewable energy sources, in particular wind and solar, may be necessary and desirable to encourage further development of renewable energy in Alberta. The authors suggest that the creation of a renewable conservation regime, using Alberta’s existing oil and gas conservation regime as a template, is a workable solution to balance the various competing interest and encourage development of Alberta’s renewable energy resources, while providing additional revenue to the Alberta government.

The ABCs of EFCs: Eligible Financial Contracts and Energy Company Insolvency Proceedings

Presenters/Authors: Ky Kvisle and James Reid (Blake, Cassels & Graydon LLP)

Since the 1990s, Canadian insolvency laws have provided special treatment for complex financial instruments such as swaps, forwards and other derivatives referred to in Canadian insolvency legislation as “eligible financial contracts”, or “EFCs”. Courts have long recognized that various types of energy trading contracts commonly entered into by energy companies to manage commodity price fluctuations and other risks inherent in their businesses may, depending on their terms, be properly characterized as EFCs. These have included financially settled swaps entered into under ISDAs and in certain circumstances, gas purchase and sale agreements, including those entered into under GasEDIs, NAESBs or ISDAs with a Gas Annex.

Canadian insolvency legislation expressly provides that in insolvency proceedings, the insolvent party to an EFC cannot disclaim an EFC like it can many of its other contracts. Further, unlike other types of contracts, the solvent counterparty cannot be stayed from terminating an EFC and, if applicable, calculating early termination damages. Depending on the circumstances, this may provide priority relief to the solvent counterparty through the exercise of set-off or valid credit support rights if permitted under the terms of the EFC.

The special treatment extended to EFCs in insolvency proceedings is intended to both protect the non-defaulting counterparty from the risk of indeterminate exposure to the insolvent counterparty and to reduce systemic risk in financial markets. This special treatment continues to lead to disputes during insolvency proceedings as to whether various forms of energy trading contracts are properly characterized as EFCs. Parties to EFCs also continue to test the limits on what rights and protections Canadian insolvency laws provide solvent counterparties to EFCs. The courts in Alberta have recently had to review these matters in the ongoing CCAA proceedings of Bellatrix Exploration Ltd.

These issues continue to be at the forefront of dealings in Canadian energy markets, where physically settled energy trading contracts may require a nuanced analysis of the terms of the contract to determine whether such contract qualifies as an EFC. This paper provides background on the purpose behind the EFC provisions in Canadian insolvency legislation and reviews both historical and recent court decisions surrounding EFCs and energy trading contracts in insolvency proceedings. The objective of this paper is to clarify the scope and limitations of the protections and legal remedies that may be available, or unavailable, to solvent counterparties to an EFC.

Prompt Payment Movement Sweeps Across Canada – Is the Energy Industry Ready to Comply?

Presenters: Paula Olexiuk, Melanie Gaston, Jagriti Singh (Osler, Hoskin & Harcourt LLP) and Lesley Lee (TC Energy)

Prompt payment and mandatory adjudication legislation is being enacted across Canada in an effort to alleviate perceived delays in payment and the settlement of disputes down the construction pyramid. The prompt payment regime introduces swift payment deadlines that were inspired by similar reforms introduced over 20 years ago in the United Kingdom. Parties building and maintaining energy infrastructure in Canada will need to adapt their customary contractual provisions, communication practices and internal corporate processes as these new requirements come into effect,.

A watershed moment came in 2019 when such legislation came into force in Ontario through amendments to the Construction Act (formerly the Construction Lien Act). Ontario was the first jurisdiction with a prompt payment and adjudication regime layered over an existing construction lien regime. To a large degree, the intersection between payment requirements and the lien process has been considered. Today, much of the development industry in Ontario has revised its internal processes and re-drafted contracts to address the new rules.

While stakeholders in Ontario are grappling with the inevitable growing pains caused by the new legislation, a number of other jurisdictions in Canada such as Nova Scotia, Saskatchewan and Alberta, as well as the federal government, have followed Ontario’s lead and passed legislation which is yet to come into force. In Quebec, the Chair of the Conseil du trésor, authorized the implementation of a pilot project in 2018 which prescribes the use of payment calendars and introduces dispute settlement by adjudicators to facilitate payment to enterprises that are parties to public construction work contracts and related public subcontracts. Still other provinces, namely New Brunswick, Manitoba and British Columbia, are either implementing other initiatives in relation to prompt payment, or considering what form prompt payment and adjudication should take in their provinces. These provinces are having some interesting discussions regarding whether the “Ontario model” is right for them.
This article will discuss the introduction and implementation of prompt payment and mandatory adjudication across Canada, and its impact on actors in the construction pyramid. It will provide industry stakeholders with guidance to help prevent mid-performance disruption of existing projects and effective new project structure considerations to comply with the new requirements, with particular focus on Canadian energy industry impacts.

Energy Storage: The Regulatory Landscape in Alberta

Presenters: David Eeles, Matthew Keen, Ryan Taylor and Alexander Baer (Norton Rose Fulbright Canada LLP)

Energy storage technologies are increasingly being deployed in Alberta. In the recent past, costs were the largest hurdle to widespread energy storage deployment. But this is changing given falling battery prices.
Indeed, AESO and AUC processes are increasingly considering energy storage development and potential, but within the scope of existing legislation and its policy framework. Alberta’s traditional model of electricity regulation is based on generators supplying electricity to load customers for consumption, and does not directly contemplate the unique attributes of energy storage. These attributes include the flexibility of customers to switch between supply and load, such as where a customer discharges a battery into the grid during peak hours and charges the battery during off-peak hours.

Energy market participants and policy makers need to consider the use of flexible resources in an evolving electricity industry where distributed and intermittent power sources are increasingly prominent. Energy storage is playing a key role in this ongoing evolution. To that end, this article seeks to provide practitioners and industry stakeholders guidance on the current state of the Alberta regulatory landscape applicable to energy storage, and anticipated changes.

Specifically, this article sets out the regulatory framework applicable to, and policy issues raised by, energy storage, including tariffs and competitive market issues, the concept of “hybrid sites” and self-supply and export issues, and AUC decisions approving the deployment of energy storage. As to how the landscape may change, this article looks at recent policy statements by the AUC and the AESO describing potential changes on the horizon.

Indigenous Ownership of Natural Resource Projects: A Framework for Partnership and Economic Development

As demonstrated by several recent landmark transactions, the acquisition by Indigenous communities (ICs) of significant and meaningful ownership in natural resource projects and related infrastructure has become increasingly prevalent in recent years. Such transactions are part of an emerging paradigm shift towards a framework of partnership and shared economic prosperity in the development of energy projects. This paper explores the context and recent evolution of such IC ownership and investment transactions and features insights from the authors based on their involvement in such transactions, including the following:

the sale of Alberta PowerLine by Canadian Utilities to seven First Nations groups and a commercial investor;
the $1.5-billion financing of the Cascade Power Project which involved equity participation by six Alberta Indigenous communities; and
the Fort Chipewyan solar project, Canada’s largest off-grid solar farm, owned by Three Nations Energy.

The paper addresses specific IC ownership and equity participation matters such as relating to: (i) typical IC investment terms and structures; (ii) governance structuring and related project governance issues, including recognition and incorporation of traditional IC governance models; (iii) financing of IC investments, including an overview of government and private funding sources, and key IC financing/lender issues; and (iv) material IC investment transaction issues and process requirements; and (v) a survey that provides a further overview of recent transactions involving IC ownership interests in energy projects which have been publicly announced, and have been completed or are pending as of the date of publication of this paper.

Given the above context, this paper explores the recent evolution of IC investment transactions and examines the legal architecture of the resultant co-ownership structures, incorporating IC perspectives from Indigenous community and business leaders, including our co-author Stephen Buffalo, who have been instrumental in progressing this increasingly pervasive and influential model.

Presenters: Vivek Warrier, Luke Morrison, Ashley White (Bennett Jones LLP) and Stephen Buffalo (Samson Cree Nation)

Recent Judicial Development of Interest to Energy Lawyers

Presenters: Sean Fairhurst, Dentons

Recent Legislative and Regulatory Developments of Interest to Energy Lawyers

Presenters: Rosa Twyman, Marlè Riley and Laura-Marie Berg (Regulatory Law Chambers)

This article provides a high-level overview of regulatory and legislative developments in Canada from mid-April 2020 to the end of March 2021. We reviewed statutes, regulations, case law, regulatory decisions and industry practices from provincial, territorial, and federal authorities. Topics of note include the challenges related to climate change and decarbonization, and the opportunities decarbonization provides for evolving technology and mechanisms to provide low carbon energy through use of hydrogen and small scale nuclear, and the regulatory gaps related thereto. We address developments in regulatory efficiency. We set out how the Vavilov decision has been applied to energy regulatory decisions. We discuss energy regulators’ obligations to consider the honour of the Crown outside the “duty to consult”. Lastly, we also discuss the potential effects on project approvals and achieving reconciliation with our Indigenous peoples assuming the federal passage of Bill C-15, an Act respecting the United Nations Declaration on the Rights of Indigenous Peoples. Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65.

Registration Pricing

Registration Type	Event Fee (CDN)
Participant Registration	$1,950.00
Speaker Registration	$1,200.00
Guest Registration	$850.00
Childcare Provider Registration	$200.00
Child Registration (Age 2 and Over)	$100.00
Gold	$250.00

Questions?
If you have questions regarding the CELF Jasper Research Seminar, please contact us at seminars@energylawfoundation.ca or at 1-800-281-0697.