Browsing by Author "Bankes, Nigel"
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- ItemOpen AccessA legal regime for the Nile basin: the relationship between the principles of equitable utilization and no significant harm(2003) Endeshaw, Yoseph; Bankes, Nigel
- ItemOpen AccessA sustainable co-existence?: aboriginal rights and resource management in Canada(1999) Sharvit, Cheryl Yvonne; Bankes, Nigel
- ItemOpen AccessABlawg articles(Canadian Institute of Resources Law, 2010-11) Kwasniak, Arlene; Bankes, Nigel; Fluker, ShaunABlawg is the University of Calgary Faculty of Law’s Blog on Developments in Alberta Law. It includes commentary by faculty members, sessional instructors, research associates at the Faculty’s affiliated institutes, and students on court and tribunal decisions and legislative and policy developments in Alberta. ABlawg includes commentary in several areas of interest to readers of Resources: Aboriginal Law, Carbon Capture and Storage, Climate Change, Energy Law, Environmental Law, Natural Resources Law, Oil and Gas Law, and Water Law. Resources articles have sometimes been reprinted on ABlawg (see e.g. Nickie Vlavianos, The Issues and Challenges with Public Participation in Energy and Natural Resources Development in Alberta and David Laidlaw and Monique Passelac Ross, Water Rights and Water Stewardship: What About Aboriginal Peoples?); in this issue of Resources we feature three ABlawg posts concerning (1) judicial interpretation of the Alberta Land Stewardship Act, (2) regulatory approaches to CCS, and (3) standing at the Energy Resources Conservation Board. The posts included here have been edited for length. For full versions of the posts and to become a subscriber to ABlawg, go to http://ablawg.ca/.
- ItemOpen AccessAlternative Dispute Resolution Mechanisms to Define Aboriginal Parcel Boundaries in Canada(2017) Jones, Kent Douglas; Barry, Michael; Bankes, Nigel; Detchev, IvanThe objective of this research was to explore strategic options for alternative boundary dispute resolution (ABDR) mechanisms that improve non-treaty boundary determination for First Nations in Canada by rebalancing the power relationships with government to relieve the comprehensive claims backlog. The comprehensive claims process concerns the negotiation of modern treaties between First Nations and the Canadian government and includes boundary determination. Boundary determination needs to balance the land interests of Aboriginal Peoples and government. This is informed by the seminal case, Tsilhqot’in Nation v. British Columbia, [2014] SCC 44, where the Supreme Court of Canada said that traditional use informed boundary determination and relied on non-treaty boundary determination to grant Aboriginal title within Canada’s cadastre for the first time. A review of the literature found that a Canadian Alternative Boundary Dispute Resolution (ABDR) mechanism may assist boundary determination in comprehensive claims if it is structured to (i) include expert panels, (ii) apply both common law and Indigenous legal principles, and (iii) innovate by accommodating Aboriginal legal boundary principals. A graduated spectrum of diminishing rights was also described as a framework for Aboriginal traditional use lands within ABDR. The method of Barry (1999) that coupled induction with a descriptive narrative method was adapted to this research using twenty-two semi-structured interviews of seven First Nations in Canada and fifteen non-Aboriginal Canadians familiar with non-treaty boundary determination. Responses were coded into themes and ranked using an ordinal scale to support interpretation of the interview data and triangulation between the participants. It was found that a quasi-judicial framework may be established that is only reviewable by superior courts of appeal by developing a novel ABDR mechanism that empanels experts on Aboriginal law and issues who are culturally sensitive to Aboriginal Peoples. It should also utilize land surveyors in the field to walk the boundaries. By induction, it also found that a quasi-judicial ABDR mechanism may be viable within the Surveyor General Branch if this department is moved out of Natural Resources Canada where it could be expected to have greater autonomy and perceived independence by Aboriginal Peoples.
- ItemOpen AccessCanadian Income Taxation of Sovereign Wealth Funds(2018-02-28) Ryer, Andrea Michelle; Brown, Catherine Anne; Ewens, Douglas S; Ilg, Michael; Bankes, NigelThis thesis is a comparative analysis of the Canadian income taxation of sovereign wealth funds (SWFs). Because SWFs are owned and controlled by foreign governments, they are subject to different rules than private foreign investors, notably tax rules. The taxation of SWFs in Canada is determined by the interaction of domestic tax rules, bilateral tax treaties, and the law of state immunity. In certain cases, SWFs may be immune from taxation. The thesis examines the Canadian tax law and policy applicable to SWFs and compares Canadian practice to that of three other jurisdictions (Australia, Germany and the United States). In particular, it argues that the existing rules lack certainty and transparency and recommends legislative change to address these shortcomings.
- ItemOpen AccessCarbon Capture and Storage in Alberta: Learning from the Acid Gas Disposal Analogy(Canadian Institute of Resources Law, 2007) Bankes, Nigel; Poschwatta, JenetteThere is a growing interest both globally and in western Canada in the capture and geological storage of carbon dioxide as a possible mechanism to help parties meet the stabilization objective of the Framework Convention on Climate Change and the quantified emission limitations of the Kyoto Protocol. Carbon capture and storage (CCS) envisages that CO2 will be captured from large final emitters (LFEs) and injected into a target formation. The widespread adoption of CCS will require the resolution of uncertainties in the areas of property, regulatory and liability. This paper uses acid gas disposal (AGD) as an analogy to explore the uncertainties in implementing CCS. The article begins by describing AGD and then moves to consider each of the property, regulatory and liability issues associated with this activity. It concludes with some preliminary reflections on Alberta’s AGD overall regulatory scheme and its adequacy.
- ItemOpen AccessClimate change and the constitution(1994) Shier, E. Mitchell; Bankes, Nigel
- ItemOpen AccessCompensating for Catastrophic Harm: Civil Liability Regimes and Compensation Funds(2015-09-24) Kalkbrenner, Astrid; Bankes, NigelThis thesis is concerned with civil liability for catastrophic incidents such as the BP Deepwater Horizon or Fukushima. Most civil liability regimes for potentially hazardous activities adopt design features, such as channelling and limiting the amount of liability. Channelling means that liability is assigned to a specific group of injurers and the liability of other potential defendants is excluded. The combination of channelling and financial limits may limit the overall compensation available to victims potentially resulting in undercompensation of victims. Depending on the jurisdiction, the remaining liability is left with the state or the victims. This thesis argues that the ordinary structure of civil liability regimes consisting of a liability rule backed up by a financial security instrument, such as insurance, is insufficient to address hazardous activities that result in catastrophic damage if adequate compensation for victims is the policy goal. Instead it is necessary to provide a liability regime that provides compensation in a series of layers. A liability rule assigns liability to the injurers, determines the standard of liability and other modalities such as limitation in amount. The first compensation layer consists of a financial security instrument that ensures liability is covered through financial means. For hazardous activities with potentially catastrophic outcomes, it is essential that another additional layer enhances the overall financial capacity to compensate for an accident. This thesis argues for the creation of a compensation fund financed by the group of potential injurers through a mechanism that reflects the risk contributed by each potential injurer. Compensation funds reduce reliance on financial aid from the state and avoid leaving the burden on the victims, while enhancing overall compensation capacity. There is only a limited body of literature on the topic of compensation funds. This thesis contributes to research on compensation funds through the study of existing compensation funds in the area of oil tanker pollution and nuclear accidents, and offers a theoretical analysis of funds. Compensation funds have the potential to make an important contribution to the efforts of adequately compensating victims and internalising costs. Thus, they should be an integral part of a civil liability regime for hazardous activities.
- ItemOpen AccessConservation Offset Policy for Alberta: A Comparative Legal Analysis(2014-09-23) Poulton, David William; Bankes, NigelThe Province of Alberta has expressed an interest in conservation offsets as a new policy tool to promote land stewardship. The tool is enabled by provisions of the Alberta Land Stewardship Act. This thesis explores what Alberta must do in order to develop and implement an effective and credible conservation offset mechanism. It reviews the concept of conservation offsets and some of the key issues inherent to it. Focussing primarily on legal and regulatory aspects, it reviews the experience of conservation offset regimes for wetlands in the United States and for native vegetation in the State of Victoria, Australia. Drawing lessons from each of these case studies, it considers Alberta’s policy position and makes recommendations for bringing an Alberta conservation offset system to fruition.
- ItemOpen AccessDeconstructing establishment rights in international investment law(2007) Chimisso dos Santos, Daniela; Bankes, Nigel; Watson-Hamilton, Jonnette
- ItemOpen AccessDeveloping Strategic Environmental Assessment for the Protection of Marine Areas Beyond National Jurisdiction(2023-05-10) Gu, Kristine; Hubert, Anna-Maria; Bankes, Nigel; Wright, David V.The marine environment of areas beyond national jurisdiction (ABNJ) is complex, interconnected, and vulnerable to a multitude of threats from human activities, both on land and in water. The broad scope of environmental obligations established by the legal and normative frameworks that operate in marine ABNJ is one of their greatest strengths, but there remain significant gaps and weaknesses that need to be addressed. There has been increased interest in strategic environmental assessment (SEA) as one way to respond to the need for improved environmental governance. The central aim of SEA is the integration of environmental considerations into strategic-level decisions. Its use in marine ABNJ can help to uphold mandates established by the United Nations Convention on the Law of the Sea and international environmental law. However, its application at an international level is underdeveloped and lacks cohesiveness. Developing a comprehensive SEA for marine ABNJ will require a strong understanding of the normative and institutional characteristics of a multifaceted decision-making context, as well as an understanding of SEA itself. This thesis begins with a doctrinal analysis of the current international legal framework governing marine ABNJ, with special attention on the elements that relate to the use of SEA. A study of SEA as a “family of approaches” is used to underscore its benefits and the importance of context in shaping the contours of SEA practice. The status of SEA in international law is also assessed, along with its relationship with due diligence and the principles of integration and interrelationship. These discussions contribute to an examination of what will define the contours of SEA form and content in marine ABNJ. This thesis concludes that, while the specifics of SEA practice will require further elaboration, at the heart of SEA exists both a legal foundation for its inclusion in international law as an obligation for marine ABNJ and the potential for it to promote more than just environmental protection, but also a more cohesive approach to the environmental governance of marine ABNJ as a whole.
- ItemOpen AccessDraft Australian Legislation on Carbon Capture and Storage: A Canadian Perspective(Canadian Institute of Resources Law, 2008) Bankes, Nigel; Poschwatta, JenetteThe Australian government has continued its leadership role in the development of a legal and regulatory framework for carbon capture and storage (CCS) with the release of draft CCS legislation. This paper provides a description and analysis of the Australian proposals and also offers a critique of the legislation from a Canadian perspective. The paper examines the proposed disposition regime, regulatory issues including approval of site plans and site closure, and liability issues. The paper also considers the way in which the draft proposes to deal with possible conflicts between CCS interests and petroleum exploration and production interests.
- ItemOpen AccessEcocentric endangered species protection: a new paradigm for protecting the grizzly bear in Canada and the United States(1994) Phares, Mark Christopher; Bankes, Nigel
- ItemOpen AccessEnvironmental impact assessment in Nunavut: meeting Inuit needs(1994) Mascher, Sharon Lorene; Bankes, NigelThe Nunavut Agreement includes development impact provisions to assess and monitor the impact of projects within the Nunavut Settlement Area. These provisions were included within the Agreement to provide Inuit with an effective role in the environmental decision making processes which directly affect them, to protect the ecosystem, and to protect traditional Inuit lifestyles, all in a more effective manner than federal legislation. This thesis argues that the Nunavut Agreement has achieved these goals, meeting or surpassing the protection which would otherwise have been afforded Inuit of Nunavut by the Canadian Environmental Assessment Act. A comparison of the Nunavut Agreement and the Canadian Environmental Assessment Act, and specifically the screening and review bodies created by the two instruments, the process triggers, the scope of assessment and the review process, provides the foundation for this argument.
- ItemOpen AccessEnvironmental Security and Gas Exports(Canadian Institute of Resources Law, 1996) Bankes, Nigel
- ItemOpen AccessThe Federal Government's Climate Change Policy and the Role of Carbon Capture and Storage(Canadian Institute of Resources Law, 2008) Bankes, NigelFollowing release of its new greenhouse gas policy in April 2007, the Government of Canada released additional documents in March 2008, elaborating on various aspects of the policy with actual regulations promised in Fall 2008. Carbon capture and storage (CCS) is relevant to the policy in four ways: (1) regulated emitters may meet their targets by engaging in CCS, (2) CCS projects will qualify as offsets projects, (3) a regulated entity may dedicate its fund contributions to a CCS project, and (4) CCS technology will be used to determine emissions intensity targets for new (post-2012) projects.
- ItemOpen AccessGhana's new mining law: an evaluation of its competitiveness(2009) Ayisi, Martin Kwaku; Bankes, Nigel
- ItemOpen AccessGovernance of Resource Revenues in Ghana’s Mineral and Petroleum Sectors(2012-12-12) Adimazoya, Theodore Nsoe; Bankes, NigelThis thesis is a critical comparative study of the governance frameworks for resource revenues in the Ghanaian mineral and petroleum sectors. It examines the law and legal institutions of both sectors with regard to transparency and accountability in the management of resource rents. In particular it argues that the experiences of the petroleum sector governance regime can be used to reform the mining sector. The thesis further argues that the availability of legal mechanisms which ensure that citizens have timely and accurate information on the resources exploited and the utilization of rents is essential to good resource management. It concludes that while the petroleum sector may offer the mining sector ideas about how to reform its revenue governance system, if the reform is to be effective it needs to be carried out holistically, consistent with the mining context.
- ItemOpen AccessImplementation of mulitlateral environmental agreements in Canada: the role of legitimacy(2005) MacKay, William R.; Bankes, Nigel
- ItemOpen AccessIn situ conservation and the Biodiversity Convention: Zambia(1996) Mwinga, Doris Katai Katebe; Bankes, NigelThe United Nations Convention on Biological Diversity, 1992, calls on all parties to conserve biological diversity and to ensure that the use of biological diversity is sustainable. Article 8 provides for the conservation of biological diversity through the protection of ecosystems, wild species and genetic diversity in their natural surroundings. The Convention requires the parties to establish protected areas and protect threatened species and populations. This thesis infers that protected areas and protection of species strategies for the conservation of biological diversity have to be focused on conserving ecosystems, natural habitats and the maintenance and recovery of viable population of species and genetic diversity. Management plans play an important role in achieving these objectives. Ultimately the thesis asserts that the public in general and local communities in particular, have a significant role to play in the success of in situ conservation of biological diversity especially in developing countries in Africa.
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