Fenner Stewart | University of Calgary (original) (raw)

Chapters in Books by Fenner Stewart

Environment in the Courtroom, 2nd ed., (Calgary: University of Calgary Press), 2023

This article provides an overview of the Greenhouse Gas Pollution Pricing Act (GGPPA), with a par... more This article provides an overview of the Greenhouse Gas Pollution Pricing Act (GGPPA), with a particular focus on its enforcement mechanisms. The rationale for carbon pricing is explained, as well as how carbon pricing functions under the GGPPA. GGPPA gives the federal government the authority to make the Benchmark non-negotiable, providing an incentive to uncooperative jurisdictions to appreciate that cooperation under GGPPA serves to maximize jurisdictional autonomy. Therefore, GGPPA reflects a potentially cooperative exercise in how the federal and provincial governments approach emissions reductions. Provinces are free to pursue plans that account for their unique economies and geographies within the rubric of the federal Benchmark, or they can abdicate the field (and its revenues) in favour of the federal government.

The Research Handbook on the History of Corporate and Company Law (Edward Elgar), 2018

This chapter provides a brief history of Canada's corporate law. In part, it contemplates the jud... more This chapter provides a brief history of Canada's corporate law. In part, it contemplates the judicial interpretations of the Canada Business Corporations Act (CBCA), and the controversies that arose from them. From this, it explains two claims that are often made about the CBCA. Some assert that it is more shareholder centric than the American models, while others assert the opposite: that it is more stakeholder centric. The chapter concludes that although both of these interpretations of the CBCA are reasonable from a gloss of the law, the reality of corporate governance in Canada is that managers, not shareholders nor stakeholders, have firm control over the corporation.

2017 Annual Review of Insolvency Law, 2018

Alberta energy law and policy rarely generates consensus between the Canadian Association of Petr... more Alberta energy law and policy rarely generates consensus between the Canadian Association of Petroleum Producers, the United Farmers of Alberta, other landowners, Indigenous peoples, environmental groups, the Alberta Energy Regulator ("AER"), Alberta Energy, and Alberta's Freehold Owners Association. However, none of these groups are happy with the fallout from the Alberta Court of Appeal's ("ABCA") decision in Orphan Well Association v Grant Thornton Limited ("Redwater"). The reason for concern is that Redwater has punched a hole in the AER's strategy to help ensure upstream operators provide for proper abandonment of old oil and gas wells.

The Supreme Court of Canada ("SCC") heard the AER's appeal in February 2018. Some believe that Justice Martin's dissenting opinion in the ABCA judgment in Redwater may provide a better path, but even those individuals who sympathize with its conclusion believe her reasoning "may be reaching too far". This detailed article offers an alternative path, which is based on the proper application of the doctrine of federal paramountcy in this context.

The doctrine of federal paramountcy states that if there is a conflict between two pieces of legitimately legislated law, and if one is provincial and the other is federal, the provincial law is inoperative to the extent that the two laws are incompatible. A classic example of such incompatibility is when a citizen must violate one of the two laws to comply with the other. "Co- operative federalism" guides the courts' application of this doctrine. This constitutional principle asks courts to adopt a "strict definition" of "conflict", allowing each level of government the flexibility to engage in pragmatic alignments. Courts are supposed to allow room for modern governance, which often requires multilevel governmental function. In other words, co-operative federalism is a constitutional principle that adds flexibility to the "watertight compartments" view of federal and provincial powers, which has been an essential part of Canada's constitutional structure since its inception.

Part II will explain the federal paramountcy test and the key precedents for its application to Redwater. Part III will apply the federal paramountcy test to Redwater. Part IV will conclude, offering some final reflections on the doctrine of federal paramountcy.

The Embedded Firm: Corporate Governance, Labor, and Finance Capitalism (Cambridge University Press), 2011

The concept of embeddedness can be traced to Karl Polanyi's The Great Transformation. The book is... more The concept of embeddedness can be traced to Karl Polanyi's The Great Transformation. The book is a history of the commoditization of English society from the eighteenth century forward, recounting how markets became unstitched from the fabric of society. As markets became more distinct from everyday life, society began to change in order to meet the needs of markets. One example of this transformation was the enclosure of English farmlands and the end of the ancient system of farming on land that was considered free for the use of all. This created a radical disruption in social function. Without farmland, thousands were forced to move to sites of industrial production, generating a radical shift in society from traditional agrarian life to one that was dominated by factory work. In other words, the book explains how markets became dis-embedded from society and then how these dis-embedded markets altered social activities as they became embedded into market function.

Polanyi never believed that society could become completely embedded within the market function, concluding that society's members would never tolerate a market function which completely overwhelmed their other social needs. This resistance to market pressures is what Polanyi called the "double movement." Simon Deakin has elaborated on Polanyi's idea of the double movement, explaining how it also operates in reverse. In other words, market actors will resist projects for greater equality, when these social demands compromise market function. The balance between favoring the needs of markets or the needs of society has fluctuated throughout the twentieth century. According to Deakin, the pendulum is swinging toward the needs of markets today, as societal governance is evermore closely tied to the expectations of investors. Today, certainly, the pendulum appears to swing in a different, yet still unknown, direction.

Papers by Fenner Stewart

Windsor Yearbook of Access to Justice, 2019

Civic republicanism endorses a freedom ideology that can support the Corporate Social Responsibil... more Civic republicanism endorses a freedom ideology that can support the Corporate Social Responsibility movement (CSR) in some of the challenges it faces. This article is a call for CSR to embrace this normative guidance as a superior alternative to mainstream liberalism. Part 1 discusses the institutional changes that gave rise to CSR’s present incarnation. Part 2 builds upon this discussion, explaining how corporate risk management strategies pose a threat to CSR’s persuasive authority today. It then considers CSR’s options for enhancing governance when such persuasive authority is not available. It determines that inspiring integrity—above all else—is integral to success and that, in turn, the removal of moral distance is key to inspiring such integrity. It also notes that whether a form of coercive authority exists or not to back a governance mechanism, the removal of moral distance will be key to its effectiveness. Part 3 notes that efforts to remove moral distance have been attempted since the 1970s, but time has proven that business actors have been resilient to meaningful change. It argues that this failure to reduce moral distance is, in part, the result of mainstream liberalism, which continues to nullify such efforts to make business actors feel accountable for the impacts of their decision-making. It then explores liberalism, detangling the meaning of possibly the most contested, and normatively powerful, concept from the 20th century to the present. Part 4 explains civic republicanism. It then explores civic republicanism’s conceptual proximity to liberalism. Part 5 makes the case for why civic republicanism ought to amend the liberal message, recasting the rights and responsibilities of both imperium (i.e., the authority of the sovereign) and dominium (i.e., the private authority usually emanating from property and contract) within society. Part 6 concludes with a short reflection on the ground covered.

Indiana Journal of Global Legal Studies, 2018

Banking & Finance Law Review , 2018

On February 15, 2018, the Supreme Court of Canada (SCC) considered oral arguments in Orphan Well ... more On February 15, 2018, the Supreme Court of Canada (SCC) considered oral arguments in Orphan Well Association v. Grant Thornton Limited (Grant Thornton). Initially, the Court of Queen's Bench of Alberta determined that the Alberta Energy Regulator's (AER) regulatory framework for reclamation and abandonment of oil and gas wells was ultra vires to the extent that it conflicted with the Bankruptcy and Insolvency Act, a decision affirmed by the Alberta Court of Appeal in 2017. The effect of Grant Thornton is to allow trustees in bankruptcy, who are administering the estate of insolvent oil and gas companies, to disclaim an insolvent's worthless well assets (e.g., non-producing wells where the abandonment and reclamation process is not yet complete), while selling its valuable well assets (e.g., producing wells). The judgment allows secured creditors the best chance possible to be compensated from the bankrupt's assets, while leaving Alberta's oil and gas industry (and potentially the Albertan taxpayer) to pay the cost for the bankrupt's reclamation and abandonment obligations. It has opened the floodgates for bankruptcies, as creditors push financially distressed companies through the bankruptcy process before the SCC issues its judgment, and potentially changes the law This article provides an analysis of the case to date, but does not hazard a guess as to the ultimate holding. Rather, it will focus upon four of the case's key constitutional issues: the doctrine of interjurisdictional immunity (IJI); the doctrine of federal paramountcy (federal paramountcy); the principle of cooperative federalism (cooperative federalism); and, the ''disinterested regulator " defence. Each of these issues impact Canadian energy federalism. Canadian energy federalism is the compact between provinces and the federal government, which designates the rights and responsibilities associated with Canadian energy resource production, management, and transport. Part 2 provides some background for understanding the case. Part 3 sketches the AER's current regulatory framework for abandoning, remediating, and reclaiming wells (regulatory framework). Part 4 analyzes the constitutional issues outlined above. Finally, Part 5 offers some concluding thoughts about outstanding issues in Grant Thornton not addressed in this article, and then reflects upon the impacts that this pending judgment will have upon Alberta's efforts to reform its current regulatory framework.

Journal of World Energy Law & Business, 2018

Exploration and production companies frequently partner with host countries that struggle to main... more Exploration and production companies frequently partner with host countries that struggle to maintain political stability and eliminate security threats, making it difficult to develop security strategies to protect company employees and assets in country. Exploring this problem, we interview elite actors who populate germane risk management networks, providing a cross-section of perspectives as to how well upstream producers are crafting and implementing security risk management strategies. We construct a model of holistic security risk governance, and apply it to what our dataset reveals about firm performance in this area. Finally, we recommend ways in which industry-level responses can support exploration and production companies to reduce their risk and enhance their performance.

Journal of Energy & Natural Resources Law , 2017

This article focuses on how hydraulic fracturing activities – including wastewater injection – ge... more This article focuses on how hydraulic fracturing activities – including wastewater injection – generated, and are still generating, a spectrum of regulatory responses. These regulatory inconsistencies are due to many variables, including: differing opinions on how regulators ought to manage new technologies with unknown environmental impacts; the promise of economic benefit; how politically contested hydraulic fracturing is in the jurisdictions in question; and the fact that much is still unknown about the environmental impacts of hydraulic fracturing. Part I provides an overview of the emerging science on the connections between hydraulic fracturing, wastewater injection and induced seismicity. Part II maps the responses of U.S. state-level regulators to this issue. Part III provides a refresher of the environmental governance theories and practices that help administrative agencies cope with the risks, which energy systems have created, and which agencies are mandated to manage. Part IV evaluates the U.S. state-level responses using the introduced theories and practices. Finally, the conclusion provides some additional reflections.

Journal of Energy & Natural Resources Law, 2016

This commentary examines the decision in Chevron Corp v Yaiguaje, which was released by the Supre... more This commentary examines the decision in Chevron Corp v Yaiguaje, which was released by the Supreme Court of Canada (SCC) on 4 September 2015. In the case, the SCC considered whether a Canadian court had jurisdiction to recognise and enforce a US$9.51bn judgment against Chevron (and its wholly owned subsidiary), which was issued by an Ecuadorian court. The SCC held that it did. It reasoned that there was no requirement for a real and substantial connection between a foreign judgment debtor (or the dispute from which the judgment arose) and a Canadian court before such a court has jurisdiction to recognise and enforce a foreign judgment. As a result, it appears that Canadian courts may be applying the low domestic standard for recognising awards from another province to awards from foreign countries. The fallout from this case will prove to be divisive. Human rights advocates will celebrate this case, hoping that it signals that Canadian courts will be taking a more active role in holding extraction companies accountable for human rights violations and environmental damages abroad. Sceptics will fear this case, believing that Canada’s new role as a judicial trailblazer will come at a cost, discouraging foreign investment and potentially undermining international relations.

Capital University Law Review (Cited by the Supreme Court of Ohio), 2015

As stories of signing bonuses and the promise of rich gas royalties spread through the local comm... more As stories of signing bonuses and the promise of rich gas royalties spread through the local communities in Eastern Ohio, owning land was like owning a lottery ticket. For some, fortunes were made over night. For others, their land was not over the sweet spots of the shale plays. And for others still, what appeared to be their easy path to prosperity was blocked, much to their surprise and chagrin, by title ambiguities. It was at this point that Ohio's dormant mineral rights became litigious, and the Ohio Dormant Mineral Act (ODMA) was scrutinized for the first time. In fact, to say that the ODMA was scrutinized may be an understatement, as local lawyers have commented: " The amount of litigation that has been generated involving Ohio's DMA during the past three years [2011-2014] has rarely been seen with regard to a single statute. " Such problems with ownership are not new to American law. In America, unlike most countries, the surface owner owns subsurface rights. In some cases, especially in resource rich areas, surface owners will sell the mineral rights under their land to another, creating a split title. When such mineral interests prove valueless, the mineral rights are abandoned, forgotten, and often unmentioned in successive land transactions. In Ohio, many seemingly worthless mineral right interests were poorly recorded through title documents, and they were inherited without notice from one generation to the next. As explained above, these neglected mineral rights may never have resulted in any consequence except for their newfound value created by the advent and popularization of hydraulic fracturing. Ohio's Seventh District Court of Appeals recently attempted to remedy the ODMA's ambiguities. The appellate court, however, may not have the final word on the matter. The Ohio Supreme Court will review a number of issues in the coming year, and there are still others which may ultimately need to be reviewed. In light of this, this article will evaluate the appellate court's judgments. This study is confined to research the following issues: (1) whether all three appellant panels correctly determined that the 1989 version provides for automatic vesting; (2) whether the court in Eisenbarth correctly determined that the look-back period under the 1989 version is for a fixed twenty-year period; and (3) what is the proper interpretation and application of the title transaction savings event. This article will argue for automatic vesting, argue against a fixed look-back period, and finally, offer some guidance as to the application of the title transaction savings event. To do so, this article will examine the 1989 and 2006 versions of the ODMA, the relevant case law, and the academic literature on the issue. Accordingly, Part I of this article lays out the operations of the ODMA; Part II highlights its weaknesses that triggered litigations, and it also analyzes the most recent judicial determinations on these three issues on the eve of the Supreme Court of Ohio's decisions; and Part III offers some final thoughts upon the ODMA, and its judicial interpretations.

Indiana Journal of Global Legal Studies, 2014

This article takes a critical look at the idea of publicization and how it plays out within new g... more This article takes a critical look at the idea of publicization and how it plays out within new governance. Publicization is a vague, but powerful, notion that the delegation of public power to for-profit agents—what John Braithwaite calls the " privatization of the public " — will lead to such agents exercising this power as idealized public servants—what Braithwaite calls the " publicization of the private. " This article argues that publicization of the private is a dangerous metaphor, which offers a romanticized picture of functionally efficient, decentered actors acting with the integrity of public servants. This article suggests that " publicization of the private " is an empty promise that will lead the faithful to be less critical of privatization. Accordingly, this article suggests that new governance initiatives may be leading to the privatization of the public without the publicization of the private.

Rutgers Business Law Review, 2012

The article focuses upon a secondary argument made by John Dewey (1926), Morton Horwitz (1985 and... more The article focuses upon a secondary argument made by John Dewey (1926), Morton Horwitz (1985 and 1992), William Bratton (1989 and 2005), and David Millon (1990). Each of these works is a central article in the American corporate legal theory cannon. The common argument between the articles is straightforward: essentialist theories of the corporation (such as the concession, entity and aggregate contractarian theories) are indeterminate and thus can be used to argue for or against any corporate legal position. However, this is not acknowledged in most corporate legal debates today. As a result, a number of potentially problematic decisions have resulted-such as Citizens United. In fact, although commenters of my article suggested that I use Citizens United as a "hook" for this article, I purposely avoided doing so, because I wanted this article to squarely place this argument in the foreground so as to not have it obscured, once again as it apparently was in these seminal works. The question remains: Why is it significant if this argument about the indeterminacy of corporate theory is emphasized? If this argument is taken seriously, it will necessarily generate a more critical and robust conversation about corporate legal issues. Frankly, it will also challenge the prevailing opinion that market forces can optimize corporate governance, which might need to be more critically reassessed in light of present market instabilities.

Loyola Consumer Law Review, 2011

This article provides a history of the legal debates over corporate charters in the American cont... more This article provides a history of the legal debates over corporate charters in the American context beginning with a famous dispute that originated in a series of contesting law review articles in the 1970s. A brief literature review will recount the academic arguments that have provided the intellectual support for sustaining Delaware's primacy over corporate lawmaking in the face of constant attack. By understanding the debates that have sustained Delaware's ability to lead the American competition for incorporation, this Note provides insight into what is regarded as the most important legal instrument for maintaining status quo for actual social relationships within the American corporation: the "market for incorporation." However, this article will also draw attention to the growing skepticism over Delaware's ability to consistently legislate optimal corporate law. This skepticism is most clearly evident in the federal government's growing willingness to design and to pursue corporate law policies in the face of corporate governance scandal, notwithstanding the fact that corporate law in the United States is governed by the states. The consequences of these developments are subject to strict scrutiny and ongoing discussion. In sum, this Note provides an example of how shifts in lawmaking networks outside of the firm demand the potential to shift the embeddedness of the behavior of social relationships inside the firm.

Seattle University Law Review, 2011

The 1970s marked an American revolution in corporate governance as managers shifted their focus t... more The 1970s marked an American revolution in corporate governance as managers shifted their focus toward greater market accountability. By the late 1980s, the resulting efficiency gains placed the firm in a competitive position to dominate within an increasingly global marketplace. The firm no longer looked like the tired and bloated conglomerate of the 1960s; it had shed its skin and transformed itself into a glistening profit-maker designed to entice the interest of the emerging class of global investors. Although a collection of academics created the theoretic groundwork that inspired this heroic rebirth of the American firm, Henry Manne deserves much of the credit. Manne's success can be attributed, at least in part, to how he redefined the interests of shareholders by " flipping " Adolf A. Berle's " shareholder primacy " argument. For the Berle of the 1920s and 1930s, shareholders were the middle-and working-class " Everyman. " Berle believed that if shareholder primacy was ensured, it would correct the democratic deficit that existed in the management of the American economy. For Manne of the 1960s, shareholders were much different; they were rational actors whose constructed intentions could be used to ascertain and justify market function. While Berle believed that the democratization of the shareholder class would make the corporation a tool for the wider polity, Manne used shareholder primacy to focus managerial efforts on economic efficiency. When Manne's thoughts on shareholder primacy were married with those of Ronald Coase's on transaction cost theory, what emerged was a powerful reconceptualization of the corporation in legal thought. With the success of Manne's perspective, the shareholder wealth maximization norm was born, firmly defining the interest of shareholders and planting the seeds for the financialization of the firm. Today, Berle is celebrated as the grandfather of modern shareholder primacy, but this description glosses over his opposition to Manne's flip of his argument. Berle's objection is not always appreciated in commentaries of his shareholder primacy argument. For this reason, this Article offers a nuanced understanding of Berle's argument, providing a clear observation point for examining the shift from his shareholder primacy argument to the one of today. This shift is a transition from promoting shareholder primacy in order to protect minority constituents to promoting shareholder primacy in order to protect majority rights and the right of exit for any disgruntled minority. It is also the shift from promoting shareholder primacy in order to tie corporate managers to public interest to promoting shareholder primacy in order to endorse minimizing transaction costs—even when efficacy gains unfortunately result in costs being externalized upon people who did not ex ante negotiate contract safeguards to protect themselves against such risk. From this point of observation, the shareholder primacy argument offers another perspective upon investor empowerment during the current " rise of finance. " Part II briefly reviews the history of Berle as a young man. It then introduces Berle's theory of the corporation and how this theory plays out in his early endorsement of shareholder primacy from 1923 to 1926. Part III explores the development and content of The Modern Corporation and Private Property, with particular emphasis on the relationship between the book and the Berle–Dodd debate. Part IV provides a fresh analysis of the debate. Part V contextualizes Berle's thoughts on shareholder primacy within the rise of finance as an organizing force not only for the firm, but also for the rest of society. Finally, Part VI offers a concluding thought.

Doctoral Dissertation by Fenner Stewart

Osgoode Hall Law School Digital Commons (Nominated for the Best Doctoral Dissertation at York University in 2013), 2013

This book explores how American legal scholarship treats the corporation by providing a history o... more This book explores how American legal scholarship treats the corporation by providing a history of American corporate legal theory, a history of corporate (social) responsibility from the perspective of the Berle–Dodd debate, an analysis of how legal scholars understand corporate lawmaking in America, and an initial inquiry into how the prevailing opinions about the corporation are realized in the context of a critical assessment of whether or not this resulting corporate governance holds the potential to compliment the efforts of new governance regulators. This book consists of four essays about American corporate governance. Three essays trace how three particular presumptions about the corporation came to become part of the dominant narrative about the corporation within the American academic context. The first presumption is that the American contractarian theory of the corporation most accurately frames an understanding of the corporation. This presumption underpins much of Delaware's corporate law. Second is the notion that shareholder value maximization provides the necessary precondition for effective corporate governance. The modern incarnation of this presumption was inadvertently inspired by the early 20th Century work of Adolf A. Berle. Third is the idea that there is market competition for incorporations between states, and this competition creates a " race to the top. " Such presumptions help shape the dominant narrative about the American corporation. In the final chapter, the elements of these presumptions, and the narratives they weave, are reconsidered within the context of new governance, which encourages private actors, like corporations, to play larger roles within the administrative functions of governments. It is explained how new governance thought presumes that corporations are becoming more imbued with a sense of public spiritedness. This presumption is closely examined and then ultimately rejected as dangerously optimistic considering the narratives that dominate corporate legal thinking—at least in the American context. Each of the four chapters has been published in U.S. law reviews, creating a portfolio of essays regarding the American corporation and its place in society.

Book Reviews by Fenner Stewart

Modern Law Review (London School of Economics/Wiley), 2019

Innovation and the State, with its close scrutiny – and redemption – of flexible regulation, will... more Innovation and the State, with its close scrutiny – and redemption – of flexible regulation, will do much to transcend any remaining tensions within the academy after the Credit Crisis. Moreover, Ford's call to defend the spirit of civic republicanism within modern regulation provides a language and new progressive benchmark to protect the flexible regulation project against its historical vulnerabilities. Accordingly, Innovation and the State sketches a map to a future where regulatory architects actualise David Levi-Faur's dream of the 'reassertion of the public interest'

Queen’s Law Journal, 2019

This book review takes stock of Regulation and Inequality at Work, which is Vanisha Sukdeo's firs... more This book review takes stock of Regulation and Inequality at Work, which is Vanisha Sukdeo's first book. The book presents an unnerving account of workers' rights today. The suggested culprits for this state of affairs are: state retrenchment from workers' rights and the managers of the "virtual sweatshops" at the center of today's economic order.

Journal of Energy & Natural Resources Law (Taylor & Francis), 2018

Shale Gas: A Practitioner's Guide to Shale Gas and Other Unconventional Resources offers essentia... more Shale Gas: A Practitioner's Guide to Shale Gas and Other Unconventional Resources offers essential insight into the comparative legal, political and economic determinants that are driving the transformation of global gas markets. The book is edited by Vivek Bakshi, who practices in the Dentons' Energy Law Group in Toronto. Bakshi has extensive international experience, specialising in the structuring and financing of gas and other natural resource projects. This well-written edited collection is penned by leading energy lawyers and policy experts from the United Kingdom, Australia, the United States, and Canada. Its ten chapters provide a detailed overview of the fast-paced reordering of the gas trade, and the legal responses and challenges that this reordering has triggered.

Journal of Energy & Natural Resources Law (Taylor & Francis), 2017

Rönne, is a product of the Academic Advisory Group for the Section on Energy, Environment, Natura... more Rönne, is a product of the Academic Advisory Group for the Section on Energy, Environment, Natural Resources and Infrastructure Law (SEERIL) of the International Bar Association. The book is written by 36 of the top thinkers in energy, natural resource and environmental law. It combines natural resource governance theory with practical case studies and traditional legal analysis to offer a thorough explanation of the legal and social processes that dictate, and will continue to dictate, how the costs and benefits of energy and resource activities are allocated among corporations, nation states, indigenous peoples and local communities. The book's concept resulted from the biennial conference of SEERIL in Berlin in 2014. Deliberations during and after the conference drew attention to a significant change in natural resource governance. The conference participants noted how legal focus used to be honed upon the host state, and how it could reform its legal framework to mitigate the costs and share the benefits of energy and resource projects. But now, the focus is on something quite different; attention is being evermore pulled toward how private companies and local communities are negotiating relationships directly with minimal participation from the state. The conference participants decided that this change was marking what might become a monumental shift in the context of decision-making within natural resource governance. They decided that this insight deserved further investigation. This book resulted from that investigation.

Environment in the Courtroom, 2nd ed., (Calgary: University of Calgary Press), 2023

The Research Handbook on the History of Corporate and Company Law (Edward Elgar), 2018

2017 Annual Review of Insolvency Law, 2018

The Embedded Firm: Corporate Governance, Labor, and Finance Capitalism (Cambridge University Press), 2011

Windsor Yearbook of Access to Justice, 2019

Indiana Journal of Global Legal Studies, 2018

Banking & Finance Law Review , 2018

Journal of World Energy Law & Business, 2018

Journal of Energy & Natural Resources Law , 2017

Journal of Energy & Natural Resources Law, 2016

Capital University Law Review (Cited by the Supreme Court of Ohio), 2015

Indiana Journal of Global Legal Studies, 2014

Rutgers Business Law Review, 2012

Loyola Consumer Law Review, 2011

Seattle University Law Review, 2011

Osgoode Hall Law School Digital Commons (Nominated for the Best Doctoral Dissertation at York University in 2013), 2013

Modern Law Review (London School of Economics/Wiley), 2019

Queen’s Law Journal, 2019

Journal of Energy & Natural Resources Law (Taylor & Francis), 2018

Journal of Energy & Natural Resources Law (Taylor & Francis), 2017

Resources, 2015

Mineral Land Rights: What You Need To Know is a 127-page book broken into 10 short chapters; it c... more Mineral Land Rights: What You Need To Know is a 127-page book broken into 10 short chapters; it can be read, with ease, in a couple of hours. The genius of this work is that anyone who has even basic reading skills can understand the content of her text … with the exception of possibly Chapter 3, entitled Mineral Land Ownership. It would be a stretch to compare Ms. Louie’s prose to that of Alistair MacLeod’s, but both share the capacity to decode complex ideas into simple, direct language. In fact, the book reads as though she was explaining the nuances of the oil and gas industry to you over a cup of coffee at the local Tim Hortons.

Rudy Beese & Jennifer Morrissey, eds, Global Smart Cities & Connected Communities Think Tank (Dentons, 2020) 62., 2020

The School of Public Policy (University of Calgary), 2019

Tensions had been simmering since the 1990s between Alberta’s oil and gas regulator, now called t... more Tensions had been simmering since the 1990s between Alberta’s oil and gas regulator, now called the Alberta Energy Regulator (AER), and the insolvency community. Its members regarded bankruptcy as a private matter between insolvent parties and their creditors. Moreover, to the degree that government intervention was ever necessary, Parliament – not the provinces – had the authority to do so. The AER saw things differently, regarding the proper abandonment and reclamation of oil and gas sites as one of its key mandates and a duty to be addressed prior to obligations to creditors. The AER’s position was consistent with a 1991 Alberta Court of Appeal decision which found that serving the public interest in this manner was not subject to the Bankruptcy and Insolvency Act (BIA).

C.D. Howe Intelligence Memos, 2019

The Orphan Well Association v. Grant Thornton (the so-called Redwater) case considered whether Al... more The Orphan Well Association v. Grant Thornton (the so-called Redwater) case considered whether Alberta’s mechanism for funding oil and gas well reclamation conﬂicted with the federal Bankruptcy and Insolvency Act (BIA). The Supreme Court of Canada held that the two did not conﬂict, so Alberta’s funding mechanism survived.

The judgement does not fix the orphan well problem, the problem of oil and gas companies orphaning wells to the regulator will continue to resurface until Alberta reforms its legislation for well reclamation. Furthermore, the judgment does not undermine creditors, and in terms of affecting financing, the court has merely affirmed the status quo. However, this does not mean that Redwater has had no impact. Without the court’s judgment, the BIA would have created a broad immunity to provincial law for anyone who filed for bankruptcy – potentially creating perverse incentives, which could have consequences stretching well beyond the scope of oil and gas activities.

ABlawg (University of Calgary, Faculty of Law), 2017

Canadian Bar Association Law Matters, 2018

I have argued that the AbitibiBowater and Northern Badger decision complement each other, and thu... more I have argued that the AbitibiBowater and Northern Badger decision complement each other, and thus the disinterested regulator defence ought to be preserved. If the judgement of the lower courts remains, future courts will be led to conclude that a regulator is never disinterested. Respectfully, this conclusion defies both co-operative federalism and common sense. In reality, most regulators enforce the law without any nefarious, self-interested ends. Surely the lower courts did not intend this consequence, but that is now how the law stands. If the law remains unchanged, I predict that it will prove problematic in the future.
In the end, the true stake is whether the SCC untangles what has been done, providing proper guidance for future courts to identify disreputable regulators from disinterested ones. For more analysis, you can read my articles on the topic.

C.D. Howe Intelligence Memos, 2018

The Redwater case pits the Alberta Energy Regulator against Grant Thornton, which is the receiver... more The Redwater case pits the Alberta Energy Regulator against Grant Thornton, which is the receiver of the bankrupt Redwater Energy Corp. The regulator wants the proceeds from Redwater’s valuable oil-well assets to clean up its derelict wells before its creditors receive what remains. Grant Thornton wants all proceeds for the creditors.

Before Redwater, Alberta courts upheld a sacred covenant between Albertans and the petroleum industry: an exploration and production company can profit from producing oil and gas from the lands of Albertans so long as the company – not the public – reclaims the land on which it drills.

The Negotiator, 2017

As of November 1 st , many in Alberta are still waiting to hear whether the Supreme Court of Cana... more As of November 1 st , many in Alberta are still waiting to hear whether the Supreme Court of Canada (SCC) will grant leave to the Alberta Energy Regulator (AER) to hear its appeal of Orphan Well Association v Grant Thornton Limited, 2017 ABCA 124 (Redwater). The Court of Appeal's decision in Redwater has punched a hole in the AER's program for ensuring that licensees of oil and gas wells have the capital necessary to satisfy their reclamation and abandonment obligations. The ruling effectively allows trustees in bankruptcy to disclaim worthless assets (e.g., non-producing wells where the abandonment process is not yet complete), while selling valuable assets (e.g., producing wells). Redwater grants secured creditors the best chance possible to be compensated from the bankrupt's assets, while guaranteeing that Alberta's oil and gas industry (and potentially taxpayers) pay the cost for the bankrupt's reclamation and abandonment obligations. As things stand today, if Redwater is not reversed, even more wells will be orphaned, adding to the already alarming number on the books of the Orphan Well Association (OWA).

This article outlines how Redwater complicates the daunting challenge facing the Alberta government and the AER to deal with the problem of orphan wells. Part II sketches the AER's current regulatory framework for abandoning, remediating, and reclaiming wells. Part II explains how Redwater adds to the reform challenge. Part IV offers some concluding thoughts.

Financial Post, 2017

Last month, the Supreme Court of Canada announced it would review a judgment of the Alberta Court... more Last month, the Supreme Court of Canada announced it would review a judgment of the Alberta Court of Appeal that threatens to eviscerate Alberta's oil-well abandonment and reclamation program. The Alberta court's decision had blocked the Alberta Energy Regulator (AER) from ensuring that proceeds from the sale of a bankrupt exploration and production company's wells are used to satisfy its outstanding environmental obligations. In short, the decision grants lenders the right to separate the wheat from the chaff when a borrower goes bankrupt. The problem is that the chaff is the abandonment and reclamation of non-producing wells.

ABlawg (University of Calgary, Faculty of Law), 2016

The Negotiator, 2015

Model contracts play a principal role in reducing transaction costs. They offer parties a series ... more Model contracts play a principal role in reducing transaction costs. They offer parties a series of rules, which allocates risk so that delays, disagreements, over-expenditures, and under-capitalizations can be managed (or avoided altogether). The best model contracts are highly responsive, adapting to new realities. Accordingly, top drafters are pressed to doggedly re-evaluate whether or not their model rules are optimal in light of the ever-changing nature of law and technology. Modern hydraulic fracturing is a disruptive technology that shifted the incentives within oil and gas joint venture projects. Drafters are adjusting their contracts to adapt. Experimentation with model rules is presently occurring in jurisdictions such as Australia, the United States and Canada, where unconventional resources abound. This adaptation of model contracts has created a debate as to which model rules will be best for unconventional shale projects. As a contribution, this article first introduces how modern hydraulic fracturing has changed risk allocation in joint ventures, and then considers a couple of the central debates over what changes might need to be made so that model contracts can most successfully adjust to this new reality.

ABlawg (University of Calgary, Faculty of Law), 2015

The Negotiator, 2015

The primary purpose of the Surface Rights Act is to avoid litigation when an obstinate landowner ... more The primary purpose of the Surface Rights Act is to avoid litigation when an obstinate landowner rejects all reasonable offers for compensation in exchange for access to their property. When negotiations breakdown, the Surface Rights Board intervenes and establishes the terms, including compensation, of the surface lease. By offering an alternative to a privately negotiated lease, the Act promises to break deadlocks between lessor-landowners and lessee-operators resulting in expedited energy projects. Further, it is hoped that by providing an alternative to the more adversarial judicial system, more amicable relations between landowners and operators will develop even in less than ideal circumstances. Unfortunately, Section 27 of the Surface Rights Act appears to be undermining the goal of facilitating amicable relations. Section 27 aspires to initiate the renegotiation of a surface lease every 5 years. Such renegotiations are necessary so that the parties can review the compensation payable in light of variables arising and evolving over the lease term. These variables include: the compensation that other landowners recently received, the per acre value of the land, the actual loss of use, and other adverse effects such as damages. The problem lies in Section 27's requirement that obliges the operator to notify the landowner of the opportunity to renegotiate the lease. Predictably, the landowners rely upon this notification requirement. The Act, however, provides no punitive measure for non-compliance; this, in turn, leaves the operator to follow market incentives. Since renegotiating a lease usually costs the operator more through additional compensation payouts, this incentive encourages the operator, as a rational market actor, to ignore the notification requirement. Non-compliance with the requirement frustrates the landowner when he or she discovers they were short changed by the operator; this ultimately undermines the goal of amicable relations. Undermining amicable relations is precisely what the drafters of the Surface Rights Act were attempting to avoid. In contemplation of this regulatory failure, this article explores the pitfalls of this legal quagmire for landowners, the Alberta government, and even the operators who appear to be profiting from the situation.

ABlawg (University of Calgary, Faculty of Law), 2015

Saturday Morning at The Law School, 2019

This presentation was made to the public as part of a special lecture series by the University of... more This presentation was made to the public as part of a special lecture series by the University of Calgary, Faculty of Law in partnership with the Alberta Law Foundation. The presentation was given on May 11th, 2019.

School of Public Policy, 2019

This presentation was made at the University of Calgary's School of Public Policy on February 26t... more This presentation was made at the University of Calgary's School of Public Policy on February 26th, 2019 and addresses the Supreme Court of Canada's decision in Orphan Well Association v Grant Thornton Limited.

16th Annual Review of Insolvency Law, Montréal, Québec, 2019

The following is a presentation I made at the 16th Annual Review of Insolvency Law hosted by the ... more The following is a presentation I made at the 16th Annual Review of Insolvency Law hosted by the UBC Centre for Business Law & the Allard School of Law in Montréal, Québec on Feb 1st, 2019. The topic area was the test for - and impacts of - lifting a stay over the exercise of contractual rights during insolvency proceeding. The specific context was the rights of non-operators in Oil and Gas Joint Ventures.

Measuring the Impacts of Energy Infrastructure, Ottawa, Canada, 2018

This presentation explains my new chapter in "Measuring The Impacts of Energy Infrastructure", wh... more This presentation explains my new chapter in "Measuring The Impacts of Energy Infrastructure", which introduces how the Canadian Constitution directs the governance of energy systems (i.e., Canadian Energy Federalism). Part II of the chapter provides insight into how recent conflict over Canadian Energy Federalism changed in recent years, becoming the focus on national attention. Part III outlines how Canadian Energy Federalism works on paper. Part IV explores how Canadian Energy Federalism plays out in practice and how it could change in the future. Part V will provide some concluding thought.

Symposium on Environment in the Courtroom: Enforcing Canadian GHG Emissions Laws, 2018

This presentation was made at the Symposium on Environment in the Courtroom: Enforcing Canadian G... more This presentation was made at the Symposium on Environment in the Courtroom: Enforcing Canadian GHG Emissions Laws at Laval University, Québec, QC, Canada, on October 25, 2018.

Oklahoma Conference: Global Land & Resources Colloquium, 2018

This Presentation was made at the "Oklahoma Conference: Global Land & Resources Colloquium" at th... more This Presentation was made at the "Oklahoma Conference: Global Land & Resources Colloquium" at the University of Oklahoma on October 12th, 2018.

Current Affair Policy Discussion Series – The School of Public Policy, 2018

This presentation was made to the public as per of the Current Affair Policy Discussion Series, w... more This presentation was made to the public as per of the Current Affair Policy Discussion Series, which is hosted by the University of Calgary's School of Public Policy. The event was held at the Fairmont Palliser Hotel (Calgary, Alberta) on Wednesday, May 30, 2018. The topic was Bill C69, which replaces Canada's National Energy Board with two new regulators. My talk provided a background primer on the events leading to the reform. I then talked in general terms about the Bill, which just finished the Committee Stage at the House of Commons on May 29th.

The 2018 Energy Regulatory Forum, 2018

This presentation was made to Alberta's regulatory community during a session of The 2018 Energy ... more This presentation was made to Alberta's regulatory community during a session of The 2018 Energy Regulatory Forum at the Fairmont Palliser Hotel (Calgary, Alberta) on Monday, May 28, 2018. The topic was on the constitutional considerations arising from the dispute between the Canadian federal government and the province of British Columbia over the construction of the Trans Mountain Expansion (TMX) pipeline.

2018 AIPN International Petroleum Workshop, 2018

This presentation was made to the 2018 AIPN International Petroleum Scholars Workshop. The presen... more This presentation was made to the 2018 AIPN International Petroleum Scholars Workshop. The presentation was primarily focused on the challenges that energy transport federalism imposes upon Canada’s ambitions to enhance its global oil export capacity. The presentation was held at Sidley Austin, LLP, Woolgate Exchange, 25 Basinghall Street, London on April 26h.

Canadian Bar Association, Alberta South, 2018

This presentation was made to multiple sections of the Canadian Bar Association, Alberta South (i... more This presentation was made to multiple sections of the Canadian Bar Association, Alberta South (including the Environmental Law, Civil Litigation, Insolvency Law, & Natural Resources Sections). The panel discussion was primarily focused on the Supreme Courts of Canada's pending decision (Grant Thornton) on the relationship between the Federal Bankruptcy and Insolvency Act and Alberta's environmental protection regime for oil and gas well reclamation, but also considered what life after Grant Thornton might look like for il and gas well reclamation in Alberta. The presentation was held at the Calgary Petroleum Club on April 18th.

Presentation to University of Calgary's Environmental Law Society, 2018

This slide presentation explains some of the constitutional elements in Orphan Well Association v... more This slide presentation explains some of the constitutional elements in Orphan Well Association v Grant Thornton Ltd. Oral arguments for this case were heard by the Supreme Court of Canada case on February 15th, 2018. The case will prove to be a central precedent for Canadian Energy Federalism. Canadian Energy Federalism is a subset of Canadian Federalism, which focuses on the compact between provinces and the Federal Government that designates the rights and responsibilities associated with energy resource production, management, and transport.