Paper Topics & Speakers

Thursday, June 11, 2020

CLIMATE CHANGE LITIGATION: ARE CANADIAN PUBLIC LAW AND PRIVATE LAW CLAIMS PART OF THE ANSWER TO A GLOBAL PROBLEM?
Presenters: Colin Feasby, Matthew Huys (Osler, Hoskin & Harcourt LLP) & David de Vlieger (Repsol Oil & Gas Canada Inc.)

In the last few years, lawsuits over climate change have proliferated internationally. New York, San Francisco, and other U.S. municipalities have sued the world’s largest investor-owned energy companies seeking to recover the costs arising from climate change harms. Further, youth in Canada, the United States, and a number of other countries have filed lawsuits which accuse their governments of violating their rights by failing to implement policies to prevent climate change. Climate change lawsuits have a mixed track record internationally. Climate change lawsuits have been successful in some jurisdictions, most notably the Urgenda decision in the Netherlands.

However, lawsuits in other jurisdictions, such as the United States, have been unsuccessful. Specifically, courts in the United States have generally decided that climate change is a policy issue that should be dealt with by the legislative and executive branches of government instead of the courts. In Canada, climate change lawsuits are in their infancy. This raises the following questions: (i) can private and public law claims be successfully advanced in Canada; (ii) if so, are the courts an appropriate forum to address a multi-faceted problem like climate change?; and (iii) who should bear the costs of any climate change harms – producers or consumers?

This paper will: (i) evaluate the current landscape of climate change litigation both in Canada and internationally; and (ii) answer the questions posed above. Specifically, this paper will evaluate whether public and private law claims could be successfully advanced in Canada (particularly with the assistance of legislation designed to facilitate private climate change claims). Further, this paper will present the arguments that: (i) the courts are not the appropriate venue to address climate change; and (ii) producers should not bear the costs of climate change harms.

ADAPTING TO THE DIGITAL TRANSFORMATION
Presenters: Presenters: Thomas O’Leary (Dentons Canada LLP) & Taylor Armfield (Syncrude Canada)

Society is on the verge of a digital transformation. As a naturally data-driven industry, digitization and artificial intelligence have the potential to revolutionize the natural resources sector with the promise of enhanced decision-making and experiences. Autonomous vehicles, environmental monitoring techniques or the digitization of plant processes are but a few ways the power of artificial intelligence can be leveraged for improved corporate performance and efficiencies. While the digital transformation brings great promise, it also presents many unknowns – especially in the legal landscape.

This paper will discuss the emerging legal issues relating to the digital transformation and the application of artificial intelligence, including transparent decision making, privacy, data security, intellectual property, liability and risk management considerations. It will also address the fear that an unregulated environment could lead to a loss of human supervisory control and, in turn, unfortunate outcomes.

FEDERALISM IN THE PATCH: CANADA’S ENERGY INDUSTRY AND THE CONSTITUTIONAL DIVISION OF POWERS
Presenters: Brendan Downey, Paul Chiswell, Robert Martz (Burnet, Duckworth & Palmer LLP) & Ramona Salamucha (Enbridge Pipelines Inc.)

The story of Canadian federalism is one that has been characterized, at times, by pushes to greater centralization and pulls to decentralized provincial autonomy. Throughout the 1970s and the early 1980s, natural resource and energy policy was one of the primary drivers of this jurisdictional tug-of-war. The section 92A resource amendment, the National Energy Program and the Western Accord are all examples of a struggle that was largely characterized by the provinces’ desire for greater control over their resources. As Canada entered the 1990s, the “energy federalism” debate resolved with greater provincial autonomy and decentralization.

Thirty years later, the Canadian oil and gas sector is once again a political cause célèbre and the energy federalism debate continues to be litigated in the courts. This time, however, the protagonists’ motivations are different and the constitutional parameters less clear. In this paper, we examine four recent cases that illustrate this trend: Reference re Greenhouse Gas Pollution Pricing Act (Saskatchewan), Reference re Greenhouse Gas Pollution Pricing Act (Ontario), British Columbia (Attorney General) v Alberta (Attorney General), and Reference re Environmental Management Act. To varying degrees and from different perspectives, each of these judgments balances the competing concerns of resource development and economic growth against environmental protection and stewardship. Given the unique and ambiguous role the environment plays in the constitutional division of powers, the resolution of this chapter in the energy federalism debate has the potential to shift the balance of legislative power in Canada and reshape the contours of our national political conversation.

Friday, June 12, 2020

DISPUTE RESOLUTION IN THE ENERGY SECTOR: WITHER THOU GOEST?
Presenters: Presenters: Ann Ryan Robertson (Locke Lord LLP) & Elizabeth Whitsitt (University of Calgary)

The majority of international arbitrations involve disputes within the energy sector. Yet, international arbitration mechanisms of dispute resolution – whether in the private or public domain are in the midst of transformation. In recent years a series of developments in international arbitration have prompted important questions about the cost and efficiency of this form of dispute settlement. And, even more fundamentally, whether and how arbitration is different from other forms of dispute settlement such as litigation. In the public law domain, international investment treaty arbitration has become a lightning rod for criticism which has prompted a variety of responses from various players operating in that regime. With this context in mind, this paper considers some of the key developments taking place in both international commercial arbitration and investment treaty arbitration. Because of the significance of the commercial relationship between Canada and the United States of America (US) in the energy sector, this paper focuses on evolutions in arbitration that particularly affect the North American region. The ultimate objective of this contribution is to illuminate prospective advantages and disadvantages associated with these developments as a means by which to help users of international arbitration in the energy sector.

After an introductory section (I), this paper considers developments within Canada and the US that affect, or have the potential to affect, international arbitration. In so doing, it will examine efforts to harmonize international commercial arbitration legislation across Canadian jurisdictions and consider some of the issues that have recently been the subject of consideration in Canadian Courts, including competing and overlapping claims, arbitrator disclosure requirements, and jurisdiction to set-aside awards (Section II). This discussion will be followed by consideration of the developments taking place within the US that affect international arbitration, including U.S.C. Section 1782, non-signatories, arbitrability, and emergency arbitrators (Section III).

Having addressed developments affecting international commercial arbitration within North America, this contribution will then examine the reformations taking place in investment treaty arbitration. Since NAFTA’s inception in 1995 Canadian and US investors operating in the energy sector have had access to the arbitration mechanism established in Chapter 11. But, the new NAFTA deal appears to forego any form of investor-state dispute settlement under its investment chapter. This contribution will outline these changes and then discuss the implications of this change for energy investors in the North American region (Section III). Following this discussion, we consider the broader policy direction that Canada and the US seem to be taking with respect to dispute settlement in international investment law. In so doing, this section will consider Canada’s recent adoption of an investment court under CETA and how this new form of dispute settlement might impact energy sector investors (Section IV). Section V will provide some concluding remarks.

UNDRIP AS A FRAMEWORK FOR RECONCILIATION IN CANADA: CHALLENGES AND OPPORTUNITIES FOR MAJOR ENERGY PROJECTS
Presenters: Sabrina Spencer, Terri-Lee Oleniuk, Sam Adkins (Blake, Cassels & Graydon LLP) & Lisa Jamieson (LNG Canada)

The advancement of reconciliation with Indigenous peoples in Canada has had a significant impact on the approval of energy projects since the introduction of Section 35 of the Constitution Act, 1982. The legal concepts of consultation, accommodation and consent have pushed the boundaries of our existing regulatory regimes and challenged the way we think about administrative processes. The move toward the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in Canada, including the concept of ‘free, prior and informed consent’, is certain to further push those boundaries as governments advance reconciliation with Indigenous peoples.

The impact of UNDRIP on regulatory processes will depend on the approach taken to implementation. In canvassing current and proposed legislative and policy developments across Canada, in particular recent legislative changes in British Columbia, there appear to be different models developing for incorporating UNDRIP into Canadian law. These models range from express requirements in relation to Indigenous consent on major project approvals, to more flexible frameworks that will enable governments to address UNRIP incrementally over time.
Ultimately, many important questions remain with respect to how UNDRIP will impact energy development in Canada:

  • How will we reconcile UNDRIP with existing Section 35 case law, and what are the constitutional limits on free, prior and informed consent?
  • How will we preserve and promote critical principles such as administrative fairness and efficiency in our regulatory processes?
  • Will administrative tribunals be equipped for dealing with new and evolving standards related to UNDRIP and consent?
  • How will competing (and in many cases, conflicting) interests of multiple Indigenous groups be addressed, particularly on large-scale linear projects?
  • What role will impact benefit agreements and other commercial negotiations have in achieving consent going forward?

Answering these questions will create new challenges for energy projects in Canada, but also opportunities for those that get it right.

EXPLORING NEW SHORES: AN OVERVIEW OF THE LEGAL LANDSCAPE RELATING TO THE SUPPLY AND TRANSPORTATION OF LNG FROM CANADIAN PORTS
Presenters: Presenters: Robin Acworth, John Bromley, Q.C. (Norton Rose Fulbright Canada LLP) & Ian McIver (Seaspan ULC)

At least eighteen LNG liquefaction projects have been proposed in Canada to date and, while the future of some of these projects remains uncertain, it is hoped that many will proceed with development in the near future. It is expected that the majority of these projects will be developed primarily for the export of LNG to other markets, but some may also supply LNG to meet Canada’s domestic LNG demands and the LNG-bunkering sector which is being developed to serve LNG-fueled vessels operating in Canadian waters. In any case, there is expected to be an increasing number of LNG carriers and other vessels calling at Canadian ports to load LNG once these facilities become operational.

Transportation of LNG from shore-based liquefaction facilities will engage a broad range of rules and regulations in Canada governing the operation of ships in Canadian waters and, where relevant, the export of LNG. A variety of non-regulatory requirements will also apply to those involved in such activities as a result of the contractual arrangements invariably entered into when using terminals, port facilities and related services, when chartering and operating ships and when buying and selling LNG.

This paper provides an overview of the key areas of the legal landscape, including both regulatory and other requirements, downstream of liquefaction terminals in the context of Canadian LNG projects. This will be of particular interest to those involved in Canada’s nascent LNG industry, including project proponents, buyers and sellers of LNG and owners and operators of LNG carriers and other vessels intending to load LNG, either as cargo or bunker fuel, from a terminal in Canada.

Saturday, June 13, 2020

RECENT JUDICIAL DECISIONS OF INTEREST TO ENERGY LAWYERS
Presenters: Presenters: Matti Lemmens & Brett Carlson (Borden Ladner Gervais LLP)

This paper summarizes a number of recent judicial decisions of interest to energy lawyers. The authors review key cases in the past year and provide comment on the significance and implications of these developments to the Canadian energy industry. This paper will cover several broad areas of law including: Aboriginal law, administrative law, arbitration, contractual interpretation, constitutional law, bankruptcy and insolvency, intellectual property, and notable developments in civil procedure.

Specific topics addressed include: the appropriate standard of review for judicial reviews and statutory appeals, disclaiming environmental liabilities in the bankruptcy process, provincial and federal jurisdiction over interprovincial pipelines, interprovincial trade, and carbon pricing, the Crown’s duty to consult in resource projects, certification in environmental class actions, document production in arbitration, developments in the application of summary judgment, transfer of abandoned wells and remediation obligations, “drill, drop or pay” obligations in oil and gas leases, oil and gas related patent infringement, and pipeline spill liability. In each case, the facts, a summary of the decision, and commentary on the outcomes and future implications for energy lawyers and the industry are canvassed.

RICHARD REIGERT MEMORIAL LECTURE: SESSION TBA

Session Details TBA

RECENT REGULATORY AND LEGISLATIVE DEVELOPMENTS OF INTEREST TO ENERGY LAWYERS
Presenters: Gino Bruni, Taylor Campbell, Lou Cusano & David Wood (Torys LLP)

This paper provides an overview of recent regulatory and legislative developments of interest to energy lawyers. 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 standard of review, market access, environmental and climate change regulation, Aboriginal law, and other natural resource and power developments.