JASPER RESEARCH SEMINAR 2023 – PAPERS OVERVIEW
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Paper Topics:
Thursday, June 15
8:15 AM – 9:00 AM
WHO PAYS FOR THE ENERGY TRANSITION?
Presenters: Matthew Keen & Michael Manhas (Norton Rose Fulbright)
Should Canadians depend on tech billionaire plutocrats, government tax incentives, or the electricity rates paid by Jane Frontporch to get to net zero? Should the latter’s rates subsidize experimenting with new technologies before proof of concept has been established, or is private capital better placed to shoulder that risk and reap the reward? Might monopoly-owned charging stations inadvertently slow the adoption of EVs in some jurisdictions?
The energy transition is well underway as economies take steps to decarbonize multiple industry sectors, most prominently electricity generation and transportation. This transition has been, and will increasingly be, driven by new technologies – wind and solar generation, distributed generation, energy storage, and electric vehicles, among others – each of which brings its own benefits and challenges. “Old” technologies, like expanded transmission infrastructure needed to support (or in some cases made redundant by) these technologies are at issue too. Creating discrete areas for utilities to test participation in new domains is not unusual, but in Canada public utilities are entering the market beyond “regulatory sandboxes.”
The paper will address recent public utility entries into competitive markets as part of the energy transition, and the tension between taxpayer, ratepayer and shareholder interests. This includes potentially inhibiting the development of private markets, and the tradeoffs that arise from treating captive ratepayers as taxpayers in support of social objectives. These considerations are typically the domain of economic regulators, but the energy transition has led legislators and regulators to re-examine the goals, purposes and boundaries of energy regulation, in some cases constraining regulators’ powers.
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9:15 AM – 10:00 AM
PORE SPACE AS A RESOURCE: A DISCUSSION OF THE POLICY AND REGULATORY FRAMEWORK FOR CARBON CAPTURE, UTILIZATION AND STORAGE
Presenters: Kerri Howard, Kimberly Howard, Ashley Urch, Ashley Wilson (McCarthy Tétrault LLP) & Carolyn Milne (Shell Canada)
As reinforced by the International Energy Agency (IEA), carbon capture, utilization and storage (CCUS) is the only currently available group of technologies that contributes both to reducing emissions in key hard to abate sectors and to capture CO2 emissions that enable low carbon value chains such as hydrogen. According to Natural Resources Canada, CCUS and carbon management will play a critical role in achieving global climate and energy goals. In fact, the Intergovernmental Panel on Climate Change (IPCC) and the IEA have gone so far as to state there is no viable path to net-zero emissions without CCUS and other carbon management technologies.
Canada’s oil and gas sector has been an early innovator and adaptor of CCUS. The potential for further deploying CCUS to create a CCUS-based value chain is significant in Western Canada. This paper provides an overview of the updated Canadian regulatory framework enabling and regulating CCUS with a focus on Alberta. Specific topics explored include overviews of: (i) the regulatory framework governing CCUS (ii) policy and legislative gaps; (iii) the various governmental incentives including federal and provincial tax credits; (iv) the generation of environmental attributes and carbon and clean fuel credits; and (vi) options for regulating “open access” CCUS hubs and CO2 pipelines.
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10:00 AM – 10:45 AM
PREVAILING WINDS: REGULATORY FRAMEWORKS AND COMMERCIAL REALITIES FOR DEVELOPING WIND AND GREEN HYDROGEN PROJECTS IN NOVA SCOTIA AND NEWFOUNDLAND AND LABRADOR
Presenters: Robert Grant, K.C., Gregory Moores, Jamie Gamblin & John Samms (Stewart McKelvey)
In recent years, there has been ever-growing enthusiasm on the part of both governments and industry for the development of onshore wind, offshore wind, and associated development of green hydrogen resources in Atlantic Canada. This is not surprising, given that many tout the proliferation of a hydrogen industry as a new frontier in energy development in Canada.
The potential of new wind-related energy development has attracted world leaders to the region, with a visit to Newfoundland and Labrador (“NL”) by Prime Minister Trudeau and German Chancellor Scholz in 2022. In Nova Scotia (“NS”), the provincial government has set a target of 5 gigawatts of energy to be supplied by offshore wind by 2030 and has amended a number of laws to enable green hydrogen development. In NL, the provincial government has removed a statutory onshore wind development restriction which has revitalized industry interest in the region. The federal government in partnership with NS and NL, has begun an environmental impact assessment of certain NS and NL offshore areas in anticipation of offshore wind development. Additionally, the federal government, NS and NL have announced that the joint federal-provincial offshore petroleum boards will be reformed with broader mandates to act as regulators for offshore wind development.
Announcements and commentary from provincial and federal leaders point to imminent development of onshore, offshore and green hydrogen resources. Further, the decision to amend the mandate of existing offshore petroleum boards to regulate new wind-related development reflects governments’ desires to rapidly develop new regulatory regimes to facilitate these industries. Focusing on NS and NL, this paper will examine existing and proposed regulatory frameworks associated with wind-related development. The paper will also examine possible disconnects and gaps between the commercial realities of wind-related development and both existing and proposed regulatory regimes in comparison with select international offshore regimes.
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11:00 AM – 11:45 AM
RECENT JUDICIAL DECISIONS OF INTEREST TO ENERGY LAWYERS
Presenters: Keith Marlowe, K.C., Alyssa Duke, Geoff Adair & Nicole Bakker (Blake, Cassels & Graydon LLP)
This paper summarizes recent judicial decisions of interest to energy lawyers. The authors review and comment on case law from the past year in several areas including: Indigenous law, contractual interpretation, employment and labour, securities litigation, class actions, environment, competition law, cybersecurity, insurance law, bankruptcy and insolvency, tax, and arbitration. The authors discuss the practical implications of the decisions and risk-management strategies that may be of benefit to participants in the energy industry. The authors also highlight cases to watch in 2023.
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Friday, June 16
8:30 AM – 9:15 AM
THE REGULATION AND LITIGATION OF CUMULATIVE EFFECTS ON INDIGENOUS RIGHTS FOLLOWING THE YAHEY DECISION AND BLUEBERRY RIVER FIRST NATION SETTLEMENT AND THE POTENTIAL EFFECTS ON THE ENERGY INDUSTRY
Presenters: Sander Duncanson, Sean Sutherland (Osler, Hoskins & Harcourt LLP), Kevin Thrasher (Trans Mountain Corporation) & Martha Peden (NorthRiver Midstream)
The British Columbia Supreme Court (BCSC)’s June 2021 decision in Yahey v British Columbia is the first Canadian decision to find that the Crown infringed its treaty obligations to an Indigenous group as a result of the cumulative effects of development. In arriving at this novel finding, the BCSC modified the test for treaty infringement, lowering the bar to establishing these claims by asking only whether there is a significant or meaningful diminishment of treaty rights, rather than “no meaningful exercise of the rights” (the prior, and higher, standard).
As a remedy, the Court prohibited British Columbia from continuing to authorize activities that breach Treaty 8 and ordered the Province and the Blueberry River First Nations (Blueberry) to diligently consult and negotiate changes to the regulatory regime to better assess and manage cumulative effects.
Close to 18 months after the decision was issued, the Province and Blueberry reached an agreement under which the Province made multi-million dollar investments in the Blueberry claim area and agreed to joint decision-making powers with Blueberry regarding future development in the area. The agreement has transformed the future of resource development in the Blueberry claim area, which covers much of northeastern British Columbia, including the Montney shale play and the traditional territories of many other Indigenous groups who are not party to the Blueberry agreement.
The BCSC decision has significant implications for treaty relations and litigation across Canada. Similar claims have been filed in Alberta, Saskatchewan and Ontario. For example, in July 2022, the Duncan’s First Nation (DFN) filed a claim against the Province of Alberta mirroring the Blueberry claim and seeking to apply it to DFN’s territory in northwest Alberta. If courts across Canada adopt the BCSC’s reasoning in Yahey and grant additional claims like DFN’s, land management decision-making could fundamentally change across much of the country, impacting not only resource development but all types of land use (agriculture, municipal expansion, etc.) and, of course, Indigenous economic development.
This paper explores the potential impacts of Yahey, the Blueberry agreement and the DFN claim on energy and resource developments and Indigenous relations across Canada.
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9:30 AM – 10:15 AM
COLLABORATIVE CONSTRUCTION CONTRACTS: OPPORTUNITIES AND CHALLENGES FOR THE ENERGY SECTOR IN CANADA
Presenters: Bill Woodhead, Theron Davis (Borden Ladner Gervais LLP) & Robert Walker (Suncor)
The last few years have been challenging for the construction industry. A global pandemic, disruptions in the supply chain, environmental disasters, geopolitical conflict, protests, and volatile financial conditions have created significant pressures on contractors and owners alike. In the public sector, these pressures have resulted in numerous competitive procurements being cancelled or reimagined in order to attract sufficient bidders.
In response, Canadian construction industry stakeholders have increasingly become interested in collaborative contracting models to shift risk allocation in contracts and attempt to reduce or eliminate the prospect of costly and time consuming disputes. Contracting models such as integrated project delivery, alliance, progressive design-build and early contractor involvement are being implemented on major projects in Ontario, British Columbia and across Canada. These models aim to deliver on budget and on schedule project completion, while incentivizing cooperative behaviours and minimizing litigation and arbitration.
This paper will assess the features and suitability of these collaborative project delivery models for the construction of energy related projects. In evaluating these models, the authors provide commentary on their risks and benefits and identify relevant opportunities for the energy sector in Canada.
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10:15 AM – 11:00 AM
CLIMATE-RELATED DISCLOSURE FOR CANADIAN ENERGY COMPANIES – GETTING READY FOR THE MANDATORY REGIME: VOLUNTARY GUIDELINES, RULE PROPOSALS, GOVERNANCE IMPLICATIONS AND BEST PRACTICES TO AVOID GREENWASHING ALLEGATIONS
Presenters: Bill Gilliland, Courtney Burton, Christy Lee & Ana Cherniak-Kennedy (Dentons Canada LLP)
Many Canadian energy companies already are making voluntary climate-related disclosures, reflecting investor and market expectations and taking the opportunity to lead in this developing area. This paper reviews the TCFD (Task Force on Climate-Related Disclosure) disclosure framework which has emerged as the widely-accepted voluntary disclosure framework. Key aspects of the TCFD framework are identified as foundational pieces for the mandatory rules proposals. The paper then reviews the proposed mandatory climate-related disclosure rules and standards from the CSA (Canadian Securities Administrators), SEC (US Securities and Exchange Commission) and the ISSB (International Sustainability Standards Board) that are being finalized through 2023. Recent updates are analysed with an assessment of implementation timing and what the final rules are likely to require. The governance implications for corporations preparing to comply with these rules are outlined together with a set of governance best practices.
Greenwashing allegations against corporations are also on the rise globally. This paper will discuss best practices for how Canadian energy companies can best protect themselves from both regulatory and civil action against allegations of greenwashing. Canadian trends, as well as recent regulatory actions and civil litigation claims in the United Kingdom and the United States, will be examined with a view to a practical application in the Canadian context.
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11:15 AM – 12:00 PM
RECENT REGULATORY AND LEGISLATIVE DEVELOPMENTS OF INTEREST TO ENERGY LAWYERS
Presenters: Marian Yuzda (Canada Energy Regulator), Marianne (Chuck) Davies (Pembina Pipeline Corporation), Jeremy Barretto, Liv Desaulniers & Viviana Berkman (Cassels Brock & Blackwell LLP)
This article provides an overview of recent regulatory and legislative developments of interest to Canadian energy lawyers from April 2022 to March 2023. It includes discussions of recent regulatory decisions and related judicial decisions, and well as changes to regulatory and legislative regimes impacting energy law. This paper will also discuss and comment on a number of ongoing regulatory and legislative developments to watch in the coming year. Topics discussed include the opportunities and challenges posed by decarbonization and the ongoing energy transition, cumulative effects, Aboriginal law and Indigenous partnerships, and other natural resources and electricity-related developments.
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Saturday, June 17
9:00 AM – 10:00 AM
RICHARD RIEGERT MEMORIAL LECTURE THE CANADIAN CRITICAL MINERALS STRATEGY: UNEARTHING ENERGY SECURITY IN CANADA
Presenters: Sean Ralph, Julia Loney, Beth Riley, Ryan Johnson & Spencer Klug (McMillan LLP)
Recent global events and instability are transforming the ever-changing energy industry as Western countries are now forced to focus on energy security in addition to energy transition and diversification priorities. The treatment of strategic mineral resources underpins the energy industry and is essential for responding to and balancing these interests. Governments are now turning their minds to incorporating energy security needs into existing energy priorities and implementing policies and strategies that will define and outline a course of action for achieving their energy goals going forward. Such policies and strategies will have legal and regulatory implications on the energy industry and understanding these considerations will help to inform where the industry is heading, how it will get there and what it can expect.
In their recent Critical Minerals Strategy (the “Strategy”), released in December of 2022, the Government of Canada (the “Government”) underscored the importance that critical minerals will play in achieving Canadian energy security in the future. In the midst of a focus on transition and diversification from carbon intensive forms of energy production towards renewable and alternative energy sources, the exploration, production, use and protection of critical minerals will be an essential component. Safeguarding and capitalizing on Canada’s abundance of critical minerals is a foundational step that will provide the bedrock for this emerging sector.
The Canadian Critical Minerals Strategy: Unearthing Energy Security in Canada, will examine the Government’s Strategy, emphasizing two considerations that will determine its success and longevity. Structured in two parts:
Part I centers on the Strategy’s performance hinging on transparent statute(s) and regulations. Absent a commercially-reasonable regulatory regime; critical mineral development, project growth, and investment will be limited. A review of Canada’s commitments set out in the Strategy, and the energy regulatory environment as a whole, will provide guidance for project developers and the energy industry.
Part II is dedicated toward critical mineral supply chains and investments. As the global ‘arms-race’ in the critical mineral
sphere continues to transpire, compliance with competition regimes is necessary – as concentrated production has the potential effect of disrupting supply chains and inflating prices. A review of the pertinent competition regimes and its intersection with critical minerals will occur. On occasion, investments into Canada may have deleterious motives or implications. Recent policy updates under the Investment Canada Act address this concern, and a review of its impact on critical minerals will take place.
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Questions?
If you have questions regarding the CELF Jasper Research Seminar, please contact us at seminars@energylawfoundation.ca or at 1-800-281-0697.
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