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Journal of Energy & Natural Resources Law Volume 7, 1989 - Issue sup1: Monopoly and Competition in Energy Supply
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Original Articles

Canada

Constance D Hunt Dean of the Faculty of Law, University of Calgary.
&
Alastair R Lucas Professor of Law, University of Calgary.
Pages 96-119 | Published online: 08 Jun 2015

  • The original paper also examined the legal arrangements for uranium in detail.
  • Canada, Department of Energy, Mines and Resources, Energy and Canadians into the 21st Century: A Report on the Energy Options Process (Ottawa: Department of Supply and Services, 1988) at 4.
  • Id. at 42.
  • R.S.A. 1980, c. M-15 as am., s. 4. For an overview of Alberta's regulatory regime for coal see L. Douglas Rae, “The Legal Framework for Coal Development in Alberta”, (1982) 20 Alta. L. Rev. 117.
  • R.S.A. 1980, c. C-14.
  • Rae, supra, n. 4 at 138.
  • Id. at 148.
  • Alberta, Department of Energy, Office of Coal Research and Technology, Alberta Coal: Energy for the World (Edmonton: Office of Coal Research and Technology, 1987) at 16.
  • Ibid.
  • Alta. Office of Coal Research and Technology Annual Report, 1986–7 (n.p.).
  • Canadian Energy Research Institute, Potential Markets for Thermal Coal in Canada 1978–2000: Working Paper No. 79–2 (Calgary: Canadian Energy Research Institute, 1979); International Energy Agency, Coal Prospects and Policies in IEA Countries: 1983 Review (Paris: Organisation for Economic Co-operation and Development, 1984) at 69.
  • Id. at 68.
  • Supra n. 8 at 25.
  • What follows is a summary of the description of the project found in Honourable Ron Basford, “Negotiating the North East Coal Agreements” in N.D. Bankes and J.O. Saunders, eds, Public Disposition of Natural Resources (Calgary: Canadian Institute of Resources Law, 1984) at 271.
  • Canada, Department of Energy, Mines and Resources, Energy in Canada: A Background Paper, (Ottawa: Department of Supply and Services, 1987) at 17.
  • House of Commons Statement by the Hon. George Hees, Minister of Trade and Commerce, February 1, 1961.
  • See now, National Energy Board Act, R.S.C. 1985, c. N-7, Part IV.
  • Ibid.
  • Caloil Inc. v. National Energy Board (No. 1) (1970), 15 D.L.R. (3rd) 164 (Ex. Ct.); (No. 2) (1970), 15 D.L.R. (3d) 177, (S.C.C.).
  • Constitution Act, 1867, s. 91(2).
  • Ibid., s. 92(13).
  • See Canada Energy Law Service (hereinafter CELS), Vol. 3, “Pricing of Oil and Pentanes Plus”, p. 30–118.
  • Under the Energy Supplies Emergency Act, S.C. 1973–74, c. 52, and the Petroleum (now Energy) Administration Act, R.S.C. 1974–75–76, c. 47 as amended by S.C. 1977–78, c. 24. See CELS, Vol. 2, p. 10–6011.
  • Ibid.; CELS, at p. 10–6011.
  • National Energy Board, Reasons for Decision, Interprovincial Pipeline Ltd., March 1975, CELS NEB Decision 14, Vol. 3, p. 10–4107. See A.R. Lucas, The National Energy Board, Case Study No. 2., p. 79 (Ottawa: Law Reform Commission of Canada, 1975).
  • NEB, Part VI Regulations, Amendment, SOR/73–88, Feb. 15, 1973.
  • Export Tax Act, S.C. 1973–4, c. 53.
  • Canada, House of Commons, Oil: Scarcity or Security—Eighth Report of Standing Committee on Energy, Mines and Resources (Ottawa: Standing Committee on Energy, Mines and Resources, September 1987) at 75 (Chair: B Sparrow, M.P.).
  • CELS, Vol. 1, p. 10–1580.
  • Supra, n. 28 at 76.
  • See Canada, Department of Energy, Mines and Resources, The National Energy Program, 1980 (Ottawa: Department of Supply and Services, 1980) at 25, 28–29.
  • Energy Administration Act, Part III.3, ss. 65.29, 65.3.
  • OSLO Partners, Governments of Canada and Alberta, Statement of Principles for OSLO Oil Sands Mining Project, and Background Papers, September 24, 1988.
  • Governments of Canada, Alberta, and Saskatchewan, Joint News Release: “Agreement Reached on Building Crude Oil Upgrader in Lloydminster”, and Background Papers, September 2, 1988.
  • Supra, no. 31, at 25.
  • Id. at p. 27.
  • Petroleum Incentives Program Act, S.C. 1980–82, c. 107.
  • Canada Oil and Gas Act, S.C. 1980-81-82-83, c. 81, ss. 10, 19–23
  • Petroleum Incentives Program Act, Part III.
  • National Energy Board Amendment Act (No. 3), S.C. 1980-81-82-83, c. 116, ss. 23–25.
  • Canada Oil and Gas Act, S.C. 1980-81-82-83, c. 81, s. 27.
  • Supra, n. 31, at 51; Energy Administration Act, ss. 65.21, 65.26–65.28.
  • Supra, n. 27, at 76; supra, no. 31, at 53–73. Alternative Energy is discussed infra.
  • The Western Accord, An Agreement Among the Governments of Canada, Alberta, Saskatchewan and British Columbia, On Oil and Gas Pricing and Taxation, March 27, 1985.
  • NEB Pt VI Regulations, CRC 1978, c. 1056 as amended, ss. 24–32.
  • Governments of Canada and Newfoundland, Statement of Principles: Hibernia Development Project, July 18, 1988.
  • Canada, National Energy Board. Gulf Canada Limited, In the Matter of an Application Pursuant to Section 59, Reasons for Decision, December, 1984. See CELS, Vol. 1, p. 10–1533.
  • Canada, National Energy Board. In Re a Public Hearing Into the Matter of Certain Terminal, Storage and Related Facilities Owned or Leased and Operated by Dome Petroleum Ltd. in Windsor, Ontario, Reasons for Decision, January, 1986, and Board adoption of presiding members report, February 6, 1986.
  • This section is based on Hunt and Lucas, CELS, Vol. 1, pp. 30–3023—30–3–26.
  • R.S.A., 1980, c. 0–5.
  • Alberta, ERCB, “Supplementary Oil Sales Under Alberta Prorationing System”, Informational Letter IL 85–14, September 27, 1985. See CELS, Vol. 1, p. 30–3025.
  • Alberta ERCB, “Modification of the Plan for Proration of Oil to Market Demand in Alberta”, ID 87–1, March 2, 1987.
  • See Alberta ERCB, Informational Letter, IL 88–12, July 19, 1988.
  • Supra, n. 15, at 29.
  • Constitution Act, 1982, s. 50.
  • This latter area of provincial jurisdiction is controversial in view of federal jurisdiction under the Constitution Act, The Regulation of Trade and Commerce (s. 91(2)) and extra provincial works or undertakings (s. 92(10)(a)). In practice, there is a degree of overlapping in jurisdiction.
  • See Bankes, Hunt and Saunders, “Energy and Natural Resources: The Constitutional Framework” in M. Kraswick, ed., Case Studies in the Division of Powers. (Toronto: University of Toronto Press, 1986) at 53, 97–100. The authors suggest that this area is an example of an area of concurrent federal and provincial jurisdiction, in which Parliament has left the field open for valid provincial legislation.
  • Except for Quebec to Ontario and Newfoundland to Quebec sales. See supra, n. 15 at 31–32.
  • Id., at 29.
  • Export regulation is discussed at pp. 34–38 infra. See National Energy Board Act, R.S.C. 1985, c. N-7, Part VI.
  • National Energy Board Amendment Act (No. 3), S.C. 1980-81-82-83, c. 116, s. 32.
  • Supra, n. 57, at 99.
  • Ibid.
  • Fulton v. Energy Resources Conservation Board (1981), 118 D.L.R. (3d) 577.
  • Constitution Act, 1867, s. 92(10).
  • See supra, n. 15, at 31ff.
  • See e.g. CELS vol. 2, 20–155, “Regulation of B.C. Hydro”. Alberta, which lacks a major Crown Corporation electrical utility has, under the Electricity Marketing Act, S.A. 1981, c. E. 4.1, established a system under the authority of the Alberta Electric Energy Marketing Agency for averaging the upstream (generation and transmission costs) of electricity produced in the province. See CELS, Vol. 4, Alberta Public Utilities Board Commentary, p. 30–6028.
  • Constitution Act, 1867, s. 125.
  • Reference Re Proposed Federal Tax on Exported Natural Gas (1982), 136 D.L.R. (3d) 285. (SCC).
  • By direct statutory designation, or at common law. See The Queen v. Eldorado Nuclear Limited, (1983) 2 S.C.R. 551.
  • In Alberta and Prince Edward Island. See Canada, National Energy Board, The Regulation of Electricity Exports: Report on an Inquiry by a Panel of the National Energy Board Following a Hearing in November and December 1986 (Ottawa: Department of Supply and Services, June 1987) at 23.
  • Ibid., at 19, 23.
  • The following historical sketch is based on ibid at 5–9.
  • See R.S.C. 1952, Vol. II p. 2556.
  • National Energy Board Act, R.S.C. 1985 c. N.-7, s. 118.
  • Ibid., ss. 40–44.
  • Supra, n. 75.
  • National Energy Board, Canadian Niagara Power Company Limited, Electric Power Export Application, Reasons for Decision, February, 1980, at 9.
  • For interruptible export power, any interconnected Canadian utility can pre-empt the electricity by meeting the export price. See CELS, Vol. 1, p. 10–1582, text accompanying note 512.
  • Not merely a higher price calculated on the same basis as the export price: National Energy Power, Maritime Electric Company Ltd. and New Brunswick Electric Power Commission, Application and Cross-Application, January, 1985; nor a price that does not include a rebate available to export customers: National Energy Board, Hydro Quebec, Application for a Licence to export Electric Power, Reasons for Decision, November, 1985, at 18–19.
  • See National Energy Board, British Columbia Hydro and Power Authority, Electric Power Export Application, Reasons for Decision, March, 1980, at 41.
  • See CELS, Vol. 1, pp. 10-1588-1589 and NEB decisions cited.
  • Supra, n. 71 at 41.
  • Ibid.
  • See p. 107, supra.
  • Supra, n. 71 at 44.
  • Ibid.
  • The Board agrees, id., at 42.
  • Ibid.
  • Ibid.
  • Id., at 43.
  • Canada, Department of External Affairs, The Canada-US Free Trade Agreement, Article 905, Annex 905.2.2. (Ottawa: Department of Supply and Services, 1988).
  • Supra, n. 71.
  • Id., at 10–11.
  • Department of Energy, Mines and Resources News Release: “Masse Announces New Electricity Exports Policy”, and Backgrounder, September 6, 1988.
  • See Canada, Office of Privatisation and Regulatory Affairs, Regulatory Reform: Making It Work (Ottawa: Office of Privatisation and Regulatory Affairs, September 1988).
  • Supra, n. 92, Article 905, Annex 905.2.1.
  • Canada, National Energy Board, Canadian Energy Supply and Demand 1987–2003 (Ottawa: Department of Energy and Services, 1988) at 85.
  • Ontario Hydro has encouraged private development of small hydroelectric sites, and even established a new non-utility division to provide technical assistance to proponents. See “Ontario Hydro urges entrepreneurs to hook up to grid”, The Financial Post. October 7, 1988 at 1.
  • S.B.C. 1980, s. 85.1, added by S.B.C. 1988, c. 63, s. 7.
  • Ibid., s. 85.1.
  • “Private power producers to focus on Fort Nelson”, B.C. Hydro News, Vol. 5, No. 11, November, 1988.
  • “B.C. Hydro says companies interested in building new generating stations”, The Globe and Mail, May 10, 1989, at B6.
  • ERCB, A.E. Sinnott, Wind Generator Interconnection Application, Decision, D84–12, June 8, 1984.
  • Order in Council 211/87, April 9, 1987.
  • Energy Resources Conservation Board, and Public Utilities Board, Small Power Inquiry, P.U.B. Rept. E 88001, ERCB Rept. 88-A, February, 1988.
  • Id., at 5–6.
  • The Small Power Research and Development Act, S.A. 1988, c. s-13.75, Royal Assent, July 6, 1988.
  • See p. 108, supra.
  • Supra, n. 15. The historical summary that follows is largely derived from 79 et seq.
  • Information on both programs has been supplied by Erwin J. Kilotat, Director, Programs Office—Edmonton, Conservation and Renewable Energy Office, Department of Energy, Mines and Resources. A discussion of the Canertech experience is found in J.K. Laux and M.A. Molot, State Capitalism: Public Enterprise in Canada (Ithaca, NY: Cornell University Press, 1988) at 172–173.
  • Canada, House of Commons, Energy Alternatives: Report of the Special Committee on Alternative Energy and Oil Substitution to the Parliament of Canada (Ottawa: Department of Supply and Services, 1981). House of Commons, Canada Energy Alternatives, a Report by the Special Committee on Alternative Energy and Oil Substitution.
  • Canada, Department of Energy, Mines and Resources, Response to the Department of Energy, Mines and Resources to the Report of the Special Committee of the House of Commons on Alternative Energy Supply and Oil Substitution (Ottawa: Department of Supply and Services, 1982). The Committee's recommendations that did not find favour mostly concerned proposed institutional changes, such as the creation of a Ministry of State for Alternative Energy and Conservation within the Department. In an accompanying Foreword to the Department's response, the Minister, the Honourable Marc Lalonde, explained that it was considered preferable to have all energy matters co-ordinated by one ministry.
  • Notes for an address by the Honourable Marcel Masse, at The New Energy Sources Seminar, Solar Energy Society of Canada Conference, Ottawa, June 22, 1988, at 3.
  • Ibid.
  • Id. Supra, n. 15, at 90.
  • Supra, n. 2. For a critique of the Report, see P.S. Elder and W.A. Ross, “Energy and Canadians into the 21st Century: The Energy Options Report”, (1988) 23 Resources 1.
  • Toronto Globe and Mail, April 14, 1989, p. A9, “Epp to cool energy options”.
  • Supra, n. 15.
  • Id. at 44.
  • Supra, n. 112, at 176.
  • Geothermal Resources Act, S.B.C. 1982, c. 14. For a detailed review and critique of this legislation, see Sheilagh L. Martin, “The Geothermal Resources Act: A Case Study in Resource Management”, (1985) 19 U.B.C. L. Rev. I. Much of the information that follows is derived from this article.
  • Supra, n. 122 at 14–16.
  • The information that follows was provided by Peter Ostergaard, Senior Co-ordinator, Energy Policy Branch, B.C. Ministry of Energy, Mines and Petroleum Resources, March 1, 1989.
  • These programs are described at 216 in supra n. 112.
  • The major place or work on this subject appears to be Marie-Ann Bowden, “Protecting Solar Access in Canada: The Common Law Approach”, (1985) 9 Dal. L.J. 261.
  • Id. at 262.
  • Energy, Mines and Resources Canada, News Release, 88/130, June 16, 1988, “Federal Government Announces the Opening of a New Energy—From Waste Plant in Greater Vancouver”.
  • Another example of government involvement in the energy sector in Alberta was the establishment of the Alberta Gas Trunk Line Company in 1954 by S.A. 1954, c. 37. The object of the company was to gather and transmit natural gas within the province. Initially the provincial government appointed a provisional Board of Directors to organise the company and arrange distribution of voting shares. The company (now called NOVA) is now investor owned with the Alberta government appointing four out of 15 members to the Board of Directors. For a review of the company's activities, see B.W. Simpson, “Comment” in Bankes and Saunders, eds, supra n. 14 at 339.
  • Supra, n. 111, Table 3 at 62.
  • For an overview of Petro-Canada and its operation up until 1981, see U.S. General Accounting Office, Petro-Canada: The National Oil Company as a Tool of Canadian Energy Policy, October 15, 1981.
  • A review of the relevant legislation and some of the legal problems it created is found in C.D. Hunt, “The Impact of Crown Interests Upon Private Sector Right and Remedies: The Case of the Canadian Oil and Gas Industry” in Bankes and Saunders, supra, n. 14 at 45.
  • Supra, n. 111 at 198.
  • Canada Petroleum Resources Act, S.C. 1986, c. c-5.
  • B.C. Ministry of Energy, Mines and Petroleum Resources News Release, January 27, 1989, “Hydro's Victoria Gas Utility Sold to Vancouver Island Gas Co.”.
  • B.C. Hydro says companies interested in building new generating operations, supra, n. 103.
  • Manitoba News Service, January 3, 1989, “Manitoba Oil and Gas Purchased by Tundra”.
  • Globe and Mail, March 9, 1989, p. 1
  • “Consumers, T.C.P.L. bid to run mothballed Hydro plant”, the Globe and Mail, May 23, 1989, at B1.

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