The Timing of Major Energy Project Reviews

Jonathan Drance, Glenn Cameron and Kurtis Reed-

In recent years the timeline to complete Canadian regulatory reviews of proposed major projects – and particularly environmental assessments which are the key part of the project review process – has become a major political issue. Over the last decade or so, project proponents have consistently raised concerns about the speed and unpredictability of the results of project review processes –principally at the federal level.1

Complaints have also been made, and lawsuits have been commenced, by opponents of those projects including environmental groups, First Nations bands, and other interested parties alleging procedural and other flaws in the project review process – again principally but not exclusively at the federal level.

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All Wells May Not End Well: Alberta Court of Appeal Rules that Receivers and Trustees Can Orphan "Bad" Wells

 David M. Price, Allison M. Sears and Sarah M. Graham

In a much anticipated decision, a 2-1 majority of the Alberta Court of Appeal (the ABCA) has upheld the Alberta Court of Queen’s Bench (ABQB) decision in Re Redwater Energy Corporation, 2016 ABQB 278. The ABCA found in favour of receivers, trustees and secured creditors on the basis that the Bankruptcy and Insolvency Act (the BIA) takes precedence over the provincial oil and gas regulatory schemes, making such schemes inoperative to the extent that they purport to require trustees and receivers to comply with abandonment, reclamation and remediation requirements of disclaimed assets. This decision will continue to prevent the Alberta Energy Regulator (the AER) from refusing to transfer licensed assets in an insolvency process unless ongoing environmental obligations tied to disclaimed licensed assets are met. The ABCA’s split decision also likely signals a period of continued uncertainty as it is reasonable to expect that the AER and the Orphan Well Association (the OWA) will be seeking leave to appeal this decision to Canada’s top court. Moreover, whatever happens in Alberta will impact policy in the other western Canadian provinces.

Background and ABQB Decision

In 2015, Grant Thornton Limited (GTL) was appointed as receiver (the Receiver) of the assets of Redwater Energy Corporation (Redwater). The Receiver advised the AER that it took possession and control of only 20 of the 127 AER-licensed assets belonging to Redwater. In fact, the Receiver took possession of the most valuable assets and disclaimed the remainder. In response, the AER issued abandonment and closure orders regarding the licensed assets of which the Receiver indicated it did not assume possession. GTL later disclaimed the remaining 107 AER-licensed assets in its capacity as Redwater’s trustee in bankruptcy, informing the AER that it did not intend to comply with the abandonment and closure orders as it had legitimately renounced those properties.

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FAQs about shareholder meetings

Chip Johnston - 

We have compiled a quick reference guide for 35 of the most frequently asked questions about shareholder meetings, including questions concerning who can speak at meetings, whether shareholders can replace the Chair, and whether shareholders can move to remove directors at meetings. We have also included a sample chair’s script for an annual meeting.

Please note, these materials have been prepared for use by corporations incorporated under the Business Corporations Act (Alberta) (the ABCA), whether or not they are listed on a Canadian exchange.

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Fifteen key legal developments for oil & gas companies

Chip Johnston, Jennifer McPherson, Alexandra Low - 

We have summarized key developments in Canadian law from the fourth quarter of 2016, relevant to the oil and gas industry. The fourth quarter brought a number of developments in the legal landscape, particularly in the regulation of public M&A, the approval of two key pipelines, and the emergence of guidance relating to private company governance.

Public Markets M&A

1. In InterOil, the Yukon Court of Appeal prevented ExxonMobil from acquiring InterOil by arrangement, despite the fact that the transaction had been approved by InterOil’s shareholders, based on the objections of InterOil’s former CEO. The analysis in the judgment suggests that issuers should seek a fairness opinion that offers detail regarding the economic analysis supporting the fairness conclusion in order to reduce activist leverage. It also tends to support the view that the payment for a fairness opinion should not be made on a success basis, and that targets should bring evidence supporting the deal to the court hearing meant to approve the transaction

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The Relevance (and Likelihood) of Action on Carbon in a Post-Trump World

Jason Kroft, Jonathan Drance and Luke Sinclair -

The election of Donald Trump and his recent cabinet nominations of individuals who have been described in the mainstream U.S media climate skeptics, including Scott Pruitt (Environmental Protection Agency), Rick Perry (Department of Energy) and Rex Tillerson, the former CEO of ExxonMobil (Department of State), has many questioning the integrity of proposed domestic and international carbon pricing schemes. As a result of the election, the conversation has turned away from the recent momentum of post-Paris climate mandates, to the ramifications if the United Stated decides to abandon its climate commitments. In light of Trump’s inauguration as the 45th president of the United States, it is worthwhile to examine the outlook for carbon regulation and pricing in a post-Trump world. Many market analysts initially expect that the direction of the Trump administration on climate change will have potentially far-reaching implications. We will examine this topic and the sub-themes we identify below in follow-up blog pieces in the weeks ahead.

Federal Action and State Actors

In the United States, the federal government’s ability to influence climate change regulation is largely accomplished through the conduit of the EPA and the Clean Air Act. The new U.S. Federal government will certainly have an impact on the direction of the EPA and the administration and implementation of the Clean Air Act. Many of the obstacles that have prevented environmental regulation in the past (and which critics have cited as reasons for slow action at the federal level in the U.S. on climate change and similar matters) will work against reversing the regulation and regulatory landscape in place in the future. In a recent interview, Ms. McCarthy (the current head of the EPA under the Obama administration), stated that just as she had to provide a scientific foundation for her regulations to curb carbon dioxide emissions, the Trump administration would be required by the Clean Air Act to show that any attempt to tear up the regulations is supported by science. In other words, an onerous standard of proof can act as a double edged sword, one that makes change difficult in either direction.

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Quebec's new Petroleum Resources Act

Erik Richer La Flèche

In the early hours of Saturday, December 10, 2016, a bleary-eyed Quebec National Assembly voted 62 to 38 to adopt Bill 106, An Act to implement the 2030 Energy Policy and to amend various legislative provisions. The Minister of Natural Resources and Wildlife had introduced the bill on June 7, 2016 and the Government had very much wanted it to be passed by the end of the year. Energy policy has been a subject of much debate in Quebec for the better part of a decade and after numerous policy papers, expert panels, public consultations and other tergiversations, the Government was eager to remove a potential irritant from the political scene. The next Quebec election is scheduled for October 2018 and Premier Couillard’s Liberals want the final years of their mandate to have a happier tone than the first three, when the focus was the cleanup of Quebec’s public finances, replete with painful service and budget cuts. With Quebec having largely righted its financial affairs – at the time of writing, unemployment is at a 34-year low and tax revenues have materially increased – it was time to clear the tables.

The legislative process has been arduous. Bill 106 is an unusual statute, akin to an omnibus bill. It deals with four energy-related but nonetheless discrete subjects. The first three are relatively uncontroversial and supported by a wide-ranging consensus. The same cannot be said of the fourth chapter, which contains Quebec’s first-ever law dedicated to the exploration and production of oil and gas: the Petroleum Resources Act (the PRA).

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Supreme Court of Canada dismisses appeal challenging the Alberta Energy Regulator's immunity provisions

Vincent Light and Keith Miller - 

On January 13, 2017, the Supreme Court of Canada released its judgment in Ernst v Alberta Energy Regulator, dismissing the appellant’s claim against the Alberta Energy Regulator (AER) for damages for alleged breaches to her right to freedom of expression under section 2(b) of the Charter. Nevertheless, as we note below, there was no clear majority view on the Court with respect to the issue of whether the AER’s immunity provision is constitutional and the final resolution of that issue may need to wait for another case.

Background

Ms. Ernst brought her claim against the AER for allegedly punishing her because she publicly criticized the AER, and for preventing her from speaking to key offices within the AER organization for a period of 16 months. Ms. Ernst had also alleged that the AER was negligent in the administration of a regulatory regime allowing hydraulic fracturing and drilling close to her property, and for preventing her from speaking to the AER. Her statement of claim alleged that the AER’s restrictions limited her ability to lodge complaints, register concerns and to participate in the AER’s compliance and enforcement process, thereby constituting a breach of her right to freedom of expression under section 2(b) of the Charter.

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BC LNG - Waiting for the World to Change

Jonathan Drance and Glenn Cameron -  

February 2013 was the height of optimism regarding the LNG export facilities that were being proposed for the West Coast of British Columbia. At that time almost 20 projects of varying sizes were at different stages of development. The province released budget papers that included a forecast for its future revenues from LNG. The province’s forecast was based on assumptions about future growth, about which the province could not and did not give assurances. The assumptions included the completion of two large-scale and three smaller-scale LNG facilities by 2020 producing in aggregate 82 million tonnes per annum (MTPA) of LNG. LNG production at that level would have placed BC among the first rank of global LNG producers such as Australia and Qatar.

For 12 to 18 months after 2013, global demand for LNG was and remained high, particularly in Asia. Prices for LNG delivered to Asian markets were over US $16 per million btu (mmbtu) at their peak in 2013. However, by 2016 the global LNG market was affected by new production – principally from Australia and prospectively from the United States. In addition, the price of oil (to which the price of LNG has historically been linked) declined by more than 50%. That resulted in the price for Asian-landed LNG declining from US $16/mmbtu or more to US $6/mmbtu or less.

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The Future of the Oil Sands: Reports of its Demise are Premature

Glenn Cameron, Jonathan Drance and Stephen Wintermute

The oil sands have played a vital role in the Canadian economy for the past twenty-five years. Recent geo-political developments both at home and abroad, however, have led many to speculate whether Canada’s oil sands will continue to be viable. Some have even suggested that the oil era is nearing its end, particularly given the current, proposed and foreseeable limitations on carbon emissions.  

Recent studies have undertaken the difficult task of forecasting what the future holds for the oil industry. In Canada’s Energy Future 2016 (initially published in January 2016 and then updated in October), Canada’s National Energy Board (the NEB) projects the future prices for and production of Canada’s oil resources during the period from 2016 until 2040 (the Projection Period). ExxonMobil has also completed its Outlook for Energy which forecasts global energy demand to 2040. In addition, the International Energy Agency (the IEA) has released its 2016 World Energy Outlook.  These studies all project that the global demand for oil will continue to grow, led by key emerging economies. They also suggest that Canada’s oil sands will be in position to play a material role in meeting this growing demand. 

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Alberta's Ambitious Renewable Electricity Program: The Long-Awaited and Eagerly-Anticipated Details Unveiled

Allison Sears and Vincent Light - 

Almost a year after Alberta Premier Notley first announced her Climate Leadership Plan in bold but extraordinarily broad strokes, the details of how she hopes to achieve a target of 30% renewables on Alberta’s grid by 2030 are finally taking shape.

Coincident with the first reading of Bill 27 - Renewable Electricity Act in the Alberta Legislature, Environment Minister Shannon Phillips and Mr. Mike Law, the VP of Renewables Development and Sustainability at the Alberta Electric System Operator (AESO), each gave presentations at the Canadian Wind Energy Association (CanWEA) annual conference (auspiciously held in Calgary this year) revealing aspects of Alberta’s Renewable Electricity Program (REP). 

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