CALGARY
LAW REVIEW
a special publication on business law by the calgary herald
www.calgaryherald.com/business/lawreview
NOVEMBER, 2012
‘Don’t
hamstring
energy deals
with demands
on China’
by brian burton
T
Power of
attorney
Calgary litigator,
mother of four, spouse
and university instructor
— you can have it all,
says Maureen Killoran,
managing partner for
Osler Hoskin Harcourt
INTERVIEW BY BRIAN BURTON • PHOTOS BY WIL ANDRUSCHAK
Litigator, Calgary managing partner
for Osler Hoskin Harcourt, winner
of a Women in Law leadership award
from the Association of Women Lawyers; mother of four and university
instructor: Maureen Killoran never
started out to be a downtown, power
attorney for one of the biggest law
firms in Canada. Killoran says it all
came from taking a flexible approach
to finding out what she was good at
— and a rather more rigid approach
to setting priorities.
When and how did you decide you
were going to become a lawyer?
I did my degree in English and history at Queens and I knew I didn’t want
to be a teacher. I wasn’t really quite sure
what I wanted to do and I was resisting
my parents’ advice. As two people who
grew up in the Depression, they told all
four of their kids to get a professional
degree, doctor, lawyer, engineer, and
you’re set for life.
So after my degree I actually worked
for a couple of years and then ultimately decided to apply to law school.
The reason it took me so long is, I actually didn’t think it was going to be my
thing. And I was so pleasantly surprised
in law school by how much I liked it.
That’s a big jump to take when you’re
of two minds.
Yeah, I guess it was. I thought,
INSIDE:
well, if I’m going to practice law, it
doesn’t mean I have to do it in the
traditional way. I don’t have to be
with a big Toronto, Bay Street firm.
If you’d asked me, in first year, I
probably thought I would do something a little left of centre and something more human rights oriented.
I worked with LEAF (the Women’s
Legal Education and Action Fund)
and one of our professors was really
involved in the Bosnia Herzegovina
war crimes trial, so I did some work
with her on that.
And then I summered at a law firm
and was shocked at how much I liked
the actual practice of it. So I went
from thinking I was going to be a
left-of-centre human rights lawyer to
being at a Bay Street firm.
What was it that appealed to you
about corporate law?
It’s the problem solving, I think. It’s all
about trying to find the business answer
for your client, with the help of the law.
I think I was really encouraged to see
how 99.9 per cent of the time, your gut
feeling was actually the right answer
and that the courts give you case law
that’s really based on common sense.
You’re a litigator. That’s a very winor-lose kind of thing. What attracted
you to litigation?
I took kind of a circuitous route
and, again, wasn’t entirely sure
that I wanted to be on the corporate side of litigation. I started
off doing quite a bit of medical
malpractice defence when I was a
lawyer at Bennett Jones. And, once
again, the reason I turned to that
was because I found the material
interesting, the interaction with
people interesting. And after a
short period of time, I found it not
so interesting.
You dealt with people whose lives
had really been compromised by
some awful event. Sometimes children. And, to be perfectly frank, when
you do energy law, as I do, or corporate litigation, you’re not dealing with
life and death situations and people
whose lives have been turned upside
down, plaintiffs who are weeping. It’s
just about money.
It’s about being creative. Sometimes, finding a solution that
everybody will buy into, that’s a
moderate compromise, is the way
to go.
And sometimes it’s adversarial
and it’s aggressive. I think I pride
myself on working really hard
for my clients and taking the hard
stand. But never in such a way that
my credibility is compromised …
because that’s what I have to offer
my clients — my reputation with
the judges and with the other law-
yers in town. That’s the most meaningful thing to me.
I remember when my kids were
little, somebody asked them what
their mom did for a living and they
said, “She goes to an office and she
yells at people on the telephone.”
(Laughs) And some days it feels like
that. (Laughs) But most days it’s
pretty civilized.
You’re now managing partner for a
big, corporate law firm. How did that
happen?
I have no idea. (Laughs) I missed
a meeting, I think. It certainly wasn’t
anything I aspired to be. But I think,
when your partners ask you to fulfill
the role, it’s one that you ought to step
up and fulfill. And we’d had someone
in the position for eight years, Tris
(Tristram) Mallett, and he’d done a
fantastic job.
At Osler, the firm feels very
strongly that you ought to continue
to practice while you manage
— and I feel very strongly that I
don’t want to give up my practice.
I want to do 100 per cent of it and
I do. If a great file comes in, I’m
going to do it. I really love my practice. I love litigating and I’m not
going to give any of it up.
See KIDS, Page 2
he Canadian government should
use caution and a modicum of
historical perspective before
demanding strict reciprocity from China
in foreign investment, oil and gas lawyers say.
It’s worth making the point with
the Chinese government about equal
access to markets, they say, but big
energy deals in Calgary shouldn’t be
hamstrung by direct linkages to specific Canadian efforts to buy into companies in China.
“It’s harder (for us) to make investments there than it is (for them) to
make investments here,” concedes
Peter Glossop, a
competition and
antitrust specialist
with Osler Hoskin
Harcourt.
But Glossop says
Canadians need
only look back to
the National Energy
Peter Glossop
Program of 1980 to
recall a time when
Canada sought to
control foreign
ownership in its oil
industry.
Now, as Canada
promotes foreign
investment to accelerate enormous
energy developFrank Turner
ments in this
country, and as
state-owned enterprises (SOEs) in
China have responded with more than
$30 billion worth of energy investment
in the past four years, Glossop suggests
we should cut China some slack on
the principle of equal access to their
economy.
“In a perfect world, everybody would
be perfectly reciprocal,” he says.
But attempting to use access to Canadian energy as a lever to open up the
Chinese economy to Canadian investment might be expecting too much of a
country going through rapid change, he
warns.
“I think it’s better, on balance, to have
capital coming into this country than
not.”
Osler colleague Frank Turner agrees
that huge inbound energy investments
could be needlessly complicated by
horse trading on unrelated Canadian
investments in China.
Turner is a Calgary-based mergers and acquisitions (M&A) expert
and he and Glossop have worked on
several mega deals in which the Chinese have acquired energy assets in
Canada.
“It’s well recognized by both industry and government that we need billions and billions of dollars to develop
our resources and Canadian capital
markets just aren’t big enough,”
Turner says. “There are only a very
small number of capital pools that
are big enough to do these deals” and
Chinese SOEs are an important part of
that picture.
Glossop adds that there is also a limit
to the amount of investment exposure
multinational oil companies want to
have in any one country and companies
such as Exxon and Shell may well be
near those limits with the investments
they’ve already made and proposed in
Canada.
The obvious and eager alternative is
Asian SOEs.
Turner says Canada also badly needs
to diversify and expand markets for its
increasing oilsands output.
See EXPORTS, Page 2
eyeing the
arctic for
resources
ENERGY LAW
PROGRAM CROSSES
BORDERS
SOCIAL MEDIA,
THE GOOD
AND THE cautious
PROFILES
OF CALGARY
LAWYERS
P4
P6
P6
3, 5, 7
2 CALGARY LAW REVIEW
KIDS, from page 1
How many kids do you have?
Four. All boys. (Arran, 23; Fraser, 21; Josh,
14; and Liam, 13.)
So, you’ve got the managing partner gig,
you’ve got a full case load, a very full home
life, obviously, and you teach at U of C.
I probably will this year. The first year I think I
missed was last year — that’s 2012. So I’ll be on
the schedule again in 2013. I generally try to do
the intensive trial advocacy courses. That’s instructing trial lawyers in town on trial skills. And
then they have a similar one at the University
of Calgary. The third-year class is put through a
one-week intensive program. I usually instructed
that. The other one I do is at the University of
Notre Dame in South Bend, Ind. I try to do that
once a year, which is another trial advocacy intensive training course.
How did you come to teach at an American
university?
I met Jim Seckinger, a professor at Notre
Dame Law School, while I was teaching trial
skills at the University of Calgary about five
years ago. He has a great intensive trial skills
course that he offers his students twice per
year. It’s taught by trial lawyers from all over
the States — lots of hard-nosed Chicago litigators. He invites me down to ND to instruct
annually. Jim is especially tickled to compare
the U.S. trial lawyers with their Canadian
counterparts. As you might expect, Canadians
are much more polite — but equally effective.
There are lots of women graduating law schools,
but if you look at senior partners, not so many.
We’re still losing women. It’s a difficult issue, especially as a woman who … who beat
those odds. And if you ask me how, I’m not
sure I could give you an answer. Other than,
I really loved what I did in the day. I think it
makes me a better parent.
You’ve got to explain that!
Not better than other parents. Just better than I
would be, otherwise. For me, it’s the right choice. I
have a lot of energy — and I’m probably attention
deficit. I need tons of stimulation and I’m not good
at taking things slow. I go home — and it’s been
this way ever since my boys arrived — and I am
energized and completely focused on making the
most of every moment I have with them. And I’ve
done what I’ve done by being, not just organized
with my time, but absolutely rigid when it comes
to my priorities.
Actions speak louder than words. So, for
me, when I’m home with my kids I’m interacting and I play a big role in their lives — and
they in mine. And it wasn’t always easy.
Especially when they’re little and they’re saying, “How come you don’t stay home, like
my friend’s mom does?” But the two youngest guys are now 13 and 14. Their powers of
observation are such that they say, “Wow. You
volunteered at my kindergarten classes.”
Sometimes I think I couldn’t have done it in
another city. I mean, in Calgary, you can hop
in your car and in 10 minutes flat I was at their
preschool, at the hockey arenas and soccer
arenas. And I think, if I were in Toronto, it just
would have been an awful lot tougher to do it.
As managing partner, have you been able to do
anything that makes a difference for women?
I’m thinking of that in light of your award for
Women in Law (2011).
You know, naturally as you sort of ascend
through the ranks of a law firm, you tend to
identify more with the women who come to
work for you. And I think all of us who’ve
reached a level of seniority tend to take a special interest in the women beneath us, to say,
“You can have it all.” And when I say that, I
really mean you can do it without sacrificing
your priorities. You can be a great parent. You
can be a great spouse. You probably have to
have a great spouse. (Laughs) Like I do. He
(Ray Daniels, senior vice-president, operations, Enerplus) and I made a commitment
to each other that we are raising these kids
together and they’re our priority.
Sometimes stuff hits the fan and we pull out our
Blackberries and say, “Whose day is more important and who can cancel things?” You have to have
an equal partner at home, but you can do it.
On at least one occasion, you’ve been to the
London Court of International Arbitration.
Whose rules do you play by there?
Usually you’ll find, especially in oil and gas
contracts, the contract will (specify) the London
Court of International Arbitration. But more
often than not, I’m still dealing with Alberta law.
So, we’re seen as a jurisdiction with so much
experience in energy and in oil and gas contracts
and operations, that you’ll find, internationally,
parties are okay with choosing Alberta law.
Chinese M&A (mergers and acquisitions) in
town — have you acted on any of those?
Lot’s of them. Usually, I will be asked to take a
look at an arbitration clause in one of the agreements or take a look at some of the litigation that
may be exposed in the due diligence process.
We have acted for many of those in-bound
investments. We were on the transaction where
we sold ConocoPhillips’ interest in Syncrude.
($4.5 billion sale to Sinopec.)
There’s been recent speculation that’s there’s
a great deal of foreign M&A going on behind
the scenes besides the Nexen deal that’s currently getting all the press. Is that accurate?
Yes. There have been stories that there’s a
whole bunch of activity out there and I would
certainly say that that’s our view, as well. And
this Nexen deal is a pretty important one, right?
Depending on how the government decides, it’s
really going to set the tone for our market and
what’s going to happen in the next few years.
— Calgary Herald Archive
The Chinese National Offshore Oil Corp.’s bid to buy Calgary oil producer Nexen Inc. is just one of the
moves by China to invest in Canadian resources.
EXPORTS, from page 1
Currently, Canada sells its oil
and gas exports exclusively to
the United States but pipeline
constraints and rising tight-oil
production in the U.S. have
caused sharp discounts on
prices paid for Canadian oil.
The Canadian Imperial Bank
of Commerce has estimated
Canadian producers will take
an $18-billion hit on prices this
year alone and Turner says the
alternative is to develop Asian
markets.
But that will require major
pipeline projects to carry oil to
West Coast shipping terminals.
Natural gas also badly needs a
West Coast outlet to Asian markets — and that means Canada
needs still more foreign investment in pipelines and massive
liquefaction plants.
“The Chinese believe they understand the (investment) rules
here,” Turner says, and it would
be a potential setback for Canada
if demands for mathematical
reciprocity changed that.
Much has been made of
China’s $30-billion buy into
Canadian energy, but Glossop says Chinese investment
shouldn’t be seen as aggressive
or threatening.
He notes it’s small compared
with Chinese investments in
Australia and Russia and minute
compared with the $300 million
annual investment made by U.S.
companies in Canada.
The Calgary office of global
law firm Norton Rose has also
acted in major joint ventures
involving Chinese SOEs, as
well as a friendly takeover of a
failing Canadian oil company
by a Chinese state-owned enterprise.
Norton Rose is currently
establishing a Canada Desk
in China to support Chinese
investment here and a China
Desk in Canada to assist Canadian companies seeking
Chinese investment or needing
legal support for investments
in China.
This effort is backed by
senior partner and former Canadian prime minister Brian
Mulroney, who recently visited
Beijing and Shanghai with
senior Norton Rose colleagues
to help raise the firm’s profile
there.
Norton Rose partner and
Calgary-based M&A specialist
Craig Hoskins says Mulroney’s
status as a former head of government is a major door opener
throughout Asia.
He says that, while huge
energy deals involving SOEs
grab the headlines, a “wave”
of more modest, “normal
course” M&A investments is
taking shape as private capital
from mainland China seeks
investment opportunities in
Canadian energy.
At the same time, Canadian
oilsands producers are approaching Norton Rose seeking
Chinese partners for projects.
Where they can, he says, energy companies are dodging
the volatility of stock markets
and turning to private capital
for more patient investment in
energy joint ventures.
Where major deals with
SOEs are concerned, Hoskins
says, “a mirror image analysis of reciprocity is probably
not the best way of looking at
things.
“China is an enormous
country with enormous issues
and undergoing enormous
changes. To think that Canada
is going to push them (on investment policy) is likely fallacious.”
Hoskins suggests it’s better
to engage with China on energy
investments than to wait until
its market and legal reforms are
completed to Western standards
because Canada’s energy opportunity is now.
“File-by-file reciprocity may
be like throwing the baby out
with the bath water and we
could forego a lot of investment
without speeding change.” But
he adds that now is likely a good
time to make the Chinese aware
that Canada is keeping score on
reciprocity.
Turner and Hoskins decline
to comment on whether either
of their firms was among those
warned by the Canadian Security Intelligence Service (CSIS)
about systematic hacking efforts
based in China and aimed at
seven Canadian law firms. But
Hoskins dismisses hacking as a
“red herring” where investment
is concerned.
“Canada needs to engage
with the world and it will
encounter a whole myriad of
risks,” he says.
“You manage those risks. You
don’t eliminate them by closing
off investment.”
China’s thirst for oil
unquenchable
— Wil Andruschak photo
Osler Hoskin Harcourt managing partner and litigator Maureen Killoran at her firm’s offices
located in Calgary’s TransCanada Tower.
CALGARY LAW REVIEW
Calgary Law Review is a special publication of the Calgary Herald
Special Projects Manager/Editor: Barb Livingstone, 403-235-7339,
[email protected]
Co-ordinator: Jennifer Worley
There’s a reason China’s
state-owned oil companies are
rapidly becoming some of the
biggest clients of Calgary’s top
law firms.
It’s because, in some ways,
the two vast countries are mirror opposites of each other. Put
simply, each has what the other
lacks.
Canada has the world’s
second-largest oil reserves, at
170 billion barrels — and the
largest reserves open to foreign
investment. (Saudi reserves and
production are state owned, as
are those of many other major
exporters.) Canada also has a
very small population and correspondingly smallish capital
formation capacity from which
to fund identified opportunities
for some $200 billon worth of
energy projects. And Canada
is learning that it needs export
alternatives to the U.S.
Conversely, China is the
world’s second-largest and
fastest-growing oil importer
and its emergence as an economic powerhouse has given
it immense cash reserves with
which to buy oil and gas properties, projects or entire energy
companies.
China’s vehicle fleet is the
world’s second largest, growing
20-fold in the decade ending in
2010 and now totalling 78 million units. It’s also the world’s
largest vehicle manufacturer,
producing 18.4 million units
in 2011. By 2050, the Chinese
fleet is predicted to surpass 500
million vehicles, easily making
it the largest in the world.
Every day, China produces
about four million barrels of
oil and consumes about 10 million. By 2017, Chinese daily
consumption is forecast to reach
12 million barrels per day, pushing imports to nine million bpd
as domestic deliveries decline.
And by 2050, consumption is
expected to reach 20 million
barrels per day, most of it coming from offshore.
Seen in this light, it’s not hard
to understand why Chinese
state-owned oil companies are
willing to spend a few billion
dollars out of China’s $3 trillion in depreciating foreign
exchange reserves to buy oil
sands assets that are likely to
appreciate in value. Fees paid to
Calgary law firms, running into
millions of dollars, are simply
inconsequential as the Chinese
government seeks to maintain
domestic economic growth
and, thereby, it’s own political
legitimacy.
The same logic applies to
Canadian natural gas reserves
— but with two added incentives for Chinese investment.
Gas is the lowest-carbon fossil
fuel in an increasingly carbonconstrained world.
And North American natural
gas prices, depressed by a continental glut, are running about
one-tenth of the price natural
gas commands in Asia.
Producing gas in Alberta and
British Columbia, pipelining it
to the West Coast and liquefying
it for shipment to China would
produce a huge and ongoing
savings in energy costs on
whatever reserves China might
acquire.
In the process, China would
help to fund development of
more than $100 billion worth
of proposed projects in the oilsands and a somewhat smaller
number of proposed liquefied
natural gas projects in Alberta
and B.C. Each deal would require armies of construction
workers — and smaller armies
of Calgary lawyers.
3
CALGARY LAW REVIEW
PROFILE: PAT Maguire, bennett jones
Pat Maguire is a partner at Bennett Jones, where
he serves as co-head of the corporate department. A member of the firm’s energy practice
group. Maguire acts for energy companies on
a broad range of commercial transactions, in
Canada and internationally.
Born in the U.S., Maguire grew up in the town
of Millet, Alta. He obtained his law degree from
the University of Alberta and articled at Bennett
Jones in Calgary in 1991, where he worked until
1996 before moving on to Nexen. While at Nexen,
Maguire took on a variety of international assignments, including spending a couple of years
in Yemen.
Because he particularly enjoyed the international environment and wanted to expand his
understanding of the business world, Maguire
headed back to university to do an MBA at Cambridge University in 2000. He wrote his thesis
while living in the south of France, and travelled
the world before rejoining Bennett Jones in 2001.
“The job is increasingly international,” notes
Maguire, 46. “Our firm has offices in China and
in the Middle East, and that provides me with
great opportunities, as I have always been internationally focused. Most recently, Bennett Jones
has been acting in connection with a lot of Asian
investment into Canada.”
Q: How would you describe yourself?
A: There are different kinds of lawyers.
Some are great technical practitioners,
and some are very business oriented. I
would describe myself as being a balance
of the best of those. I want to get the deal
done, but I want to get it done right.
Q: What was your first job?
A: My first job was as a maintenance
person for the County of Wetaskiwin. It
incented me greatly to go to law school.
My first legal job was at Bennett Jones,
where I articled in 1991.
Q: What attracted you to your area of
specialization?
A: The economics in Alberta are really based on the energy industry, and it
seemed to be the obvious place for me to
practise. My area of specialty is in commercial transactions, which is not overly
bound by procedural rules, and provides
room for a great degree of creativity.
Q: What’s the best part of your job?
A: I am lucky to work at Bennett Jones with
some very smart, engaged people. These
are some of the best lawyers in the field and
they are leaders in the community. It is a
fantastic environment to be in. It challenges
me every day and is really rewarding.
Q: What’s the most challenging part of
your job?
A: Time management is definitely the
biggest challenge. It’s not uncommon
to have clients asking for more of your
time than you have to give. I occasionally
over-commit, based on the time I have
available.
Q: What makes a good lawyer?
A: The right balance of brains, technical expertise, business sense and personal skills.
Q: Whom do you admire?
A: Nelson Mandela. His ability to always
see there is a path forward into the future
that will be better than where we’re at
today, has been awe-inspiring. On a professional level, a senior regulatory lawyer
at Bennett Jones who mentored me in the
early years, taught me how to be a good
lawyer, a good business adviser and a
good partner.
Q: What are you most passionate about?
A: Family, friends, my colleagues and my
clients. Within the day, each of them will
have priority.
Q: What does a great day off look like for
you?
A: Spending time with the family, skiing,
golfing, and in the evening, a good bottle
of red wine and a nice meal.
— Jacqueline Louie
nortonrose.com
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unmatched international platform allows us to help our clients achieve new heights - all with a
significant local presence.
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4 CALGARY LAW REVIEW
— Calgary Herald Archive
Greenland is being eyed by countries around the world for the rich resources that lay beneath the barren island, which is a quarter the size of the U.S.
Climate change brings Arctic resources closer
by brian burton
E
very kid knows the North Pole
is hallowed ground, free of
the grasping claims of nation
states. Santa, after all, is a law unto
himself, who, presumably, has scant
need for the services of lawyers and
other mortals.
And, in fact, the latest map documenting the territorial ambitions of
Canada, Russia, Denmark, Norway
and the United States shows an area
adjacent to the pole that is, at least
notionally, unclaimed. Think of it as
Santa Land — for now, anyway. The
rest of the vast seabed between Canada
and Russia is more or less up for grabs,
as five nations around the pole seek
legal extensions
of their territorial
waters beyond
the established
200-nautical-mile
limit.
Claims are made
to the United Nations Commission
Wylie Spicer
on the Limits of
the Continental
Shelf (CLCS). The commission is
guided by the UN Convention on the
Law of the Sea (UNCLOS) and in
particular by Article 82 of the Law of
the Sea Treaty. Article 82 allows extensions “with respect to the exploitation
of the continental shelf ” — from
200 to as much as 350 nautical miles
— with certain important provisos.
Article 82, then, is where Santa Land
ends and the laws of men take over.
Wylie Spicer, Calgary-based expert
on Arctic and maritime law with Norton Rose, explains that Article 82 is
based on the concept that the seafloor
beyond the 200-mile limit is part of the
“common heritage of mankind.”
Regardless of who succeeds in
claiming various extended tracts of
seafloor and the resources under them,
Article 82 specifies that the first royalties, up to seven per cent of revenues,
will be shared “equitably” between
162 nations who are signatories to
UNCLOS.
“This article has been sort of a
sleeping giant and no one has made
payments under it, so far,” Spicer says.
But global warming is bringing Arctic
resources within reach and the U.S.
Geological Survey has estimated that
oil reserves alone could exceed 90
billion barrels or $7 trillion, at today’s
prices.
“Obviously, resource companies
should be very aware of agreements
governing these extensions of seabed
boundaries,” Spicer observes.
The International Seabed Authority
(ISA) — a creature of UNCLOS based
in Kingston, Jamaica — is charged
with distributing royalty revenues
from extensions of seabed rights.
Under Article 82, the ISA is directed
to distribute royalties, up to seven per
cent of production or revenues, “taking
into account the interests and needs
of developing States, particularly the
least developed and the landlocked
among them.”
In Canadian terms, think of it as an
equalization payment, redistributing
a portion of the wealth from richer
jurisdictions to poorer ones. But, un-
like Canadian law, which gives each
province undivided right to its own
resources, UNCLOS and ISA use
resources as the source for revenue
redistribution.
Nations which succeed in extending their claims beyond 200 miles
will, in effect, become paid managers of subsea resources, overseeing
their development on behalf of the
162 UNCLOS signatories, remitting
the first seven-per-cent of revenues
to ISA for the “least developed” nations and, hopefully, retaining any
royalties beyond seven per cent.
The unanswered question, in an
extremely remote and hostile environment, is whether there will be
any room for royalties to rise beyond
seven per cent.
Spicer describes Canada as a contented signatory to UNCLOS, willing
to abide by its terms and see first royalties go to developing nations. The U.S.,
meanwhile, has not signed on to UNCLOS. In July, 34 Republican senators once again indicated opposition
to signing the Law of the Sea Treaty,
denying the two-thirds Senate majority
that international treaties need for U.S.
ratification.
Ironically, Spicer says, in the much
more developed Gulf of Mexico, the
U.S. has drafted detailed regulations
for remitting royalties to ISA in the
extension zone between 200 and 350
miles offshore. Canada, meanwhile,
has no corresponding royalty regulations for the high Arctic or off Newfoundland. While there is some active
exploration in the extension zone off
Newfoundland, no drillers are active in
the area above the Arctic Archipelago.
“As oil and gas become rarer and
rarer, 51 countries have applied for
extensions in various areas around the
world.” With that, Spicer says, the Article-82 sleeping giant is edging closer
to an awakening.
The first stirrings took place during
an UNCLOS conference in Beijing,
where Spicer attended and monitored
issues important to Canada, including
how resource royalties will be calculated, who controls the Lomonosov
Ridge under the Arctic Ocean, who
controls a section of the Beaufort Sea
and how pollution management will
be extended to the 350-nautical mile
limit.
“We stand to be huge winners on
the extended continental shelf issues,”
Spicer says.
Canada and the U.S. are contesting
control of a sliver of the Beaufort Sea
—about the size of Lake Ontario —
that the National Energy Board (NEB)
has estimated could contain some 10
billion barrels of oil. Canada bases its
claim on a straight-line extension of
the Alaska/Yukon border as delineated
in an 1825 treaty between Russia and
Great Britain, while the U.S. bases
its claim on a line drawn equidistant
from both coasts. Both countries are
reviewing offshore drilling regulations
in light of the blowout in the Gulf of
Mexico. And both have publicly suggested a resolution may lie in the fact
that, beyond the 200-mile limit, the
American line appears to be better for
Canada, while the Canadian line appears to be better for the U.S.
In 2001, Russia submitted a formal
claim to extend its territory in a way
that would project far onto the Canadian side of the pole, based on the
huge Lomonosov Ridge having arisen
from the European continental shelf.
Canada says the ridge, some 1,800
kilometres long and up to 200 km
wide, arose from the North American
continental shelf and properly falls
under Canadian jurisdiction. Russia
says it has spent $50 million researching its claim, while Canada has spent
$109 million on a 10-year mapping
project. Canada has until 2013 to submit its counterclaim, but with seabed
extension disputes going on all over
the world, there’s no telling when a ruling might be made. (Denmark has also
signaled an interest in the Lomonosov
issue, based on its ownership of Greenland.)
Additionally, Spicer says the issue
of resource royalty calculations requires considerable refinement, even
though most countries have signed
on to general terms. It’s not known,
for instance, whether royalties will
be calculated before or after production companies recover the costs of
hugely expensive arctic development
projects.
From recent public hearings of the
National Energy Board in Inuvik,
Spicer says, he learned that Northerners are generally supportive of development — but the ocean is a primary
food source and they want very close
regulation to ensure that pollution will
be prevented.
“An oil spill under the sea ice would
be catastrophic and the NEB got that
message, loud and clear,” he says.
Law faculty distinctively ‘Calgarian’
by Jacqueline louie
— Calgary Herald Archive
Ian Holloway, U of C’s dean of law.
The University of Calgary’s law faculty has a clear and simple goal: to be
‘Calgary’s law school.’
“We want our programs to be reflective of the needs of our community. We
want to be a central part of Calgary and
its future. We want our graduates to go
on to be leaders within the community,
and we want to be a part of the professional fabric of Calgary,” says dean of
law, Ian Holloway, Q.C.
That’s why, when the U of C’s faculty
of law recently launched a new development campaign, it brought together
a diverse, broadly representative group
from Calgary’s legal community to
help reach its goal.
“The level of government support
for legal education has not been keep-
ing up with inflation, and so increasingly law schools at every university in
Canada have to turn to external sources
of support,” Holloway says.
“Trying to put those two things
together — a need for resources, and
a desire to be more reflective of our
community — led us to put together
what we call a campaign cabinet — a
group of women and men who are
leaders within the legal profession in
Calgary.
They include senior people from
law firms, but also include corporate
counsel people from industry — and
that’s unique. One of the things that
makes Calgary such a special city,
at least from the perspective of the
legal profession, is the extent to which
corporate counsel are involved in
things. On our committee, we’ve got a
wonderful blend of lawyers in private
practice and corporate counsel.”
The honorary co-chairs of the U of C
law school’s development campaign are
Rick George, former Suncor CEO; and
Jim Palmer, Q.C., chairman emeritus of
law firm Burnet, Duckworth & Palmer.
Senior leaders on the committee are
Brian Felesky, Q.C., managing director of Credit Suisse Securities; Kerry
Dyte, Q.C., executive vice-president
of Cenovus; and Eric Miller, vicepresident of Agrium.
Approximately 20 people are part of
the campaign cabinet, which includes
managing partners or senior partners
of most of the major law firms in Calgary, as well as senior executives from
a number of corporations, including
companies such as Nexen, TransCanada Pipelines, Talisman Energy,
Enbridge, Precision Drilling, Total,
Chevron and others.
“The makeup of our cabinet is really unique amongst law schools in
North America,” Holloway says. “To
have such a blend of lawyers in private
practice and business executives, is
not something that you (typically) see
in North American law school campaigns. We are very proud of it. It really does say something special about
this city, and the level of civic pride
and engagement in Calgary.”
The development campaign’s objective, is to raise $20 million over the
next five years.
In addition to raising additional resources, the development campaign also
seeks to integrate the U of C’s law school
more closely with Calgary’s legal and
professional community.
5
CALGARY LAW REVIEW
PROFILE: keith byblow, McCarthy Tétrault
When he was 19 years old, Keith Byblow
sold all his belongings and went to Hollywood to be a rock star.
While his dreams of Hollywood music stardom didn’t pan out, Byblow has found his
calling in oil and gas law.
Born and raised in Calgary, with a law
degree from the University of Calgary (and
a bachelor of music degree in jazz performance from St. Francis Xavier University),
Byblow is a partner in McCarthy Tétrault’s
Energy Department of Business Law
Group, with a practice that includes a wide
range of domestic and international transactions. Byblow, 41, also counsels clients on
structuring and negotiating international
joint ventures and partnerships for the acquisition, exploration and development of
oil and gas assets abroad.
Q: How would you describe yourself?
A: Cliché Type A, hopefully not to a
fault, but enough to do my job well. I
am a fairly social person. Thankfully
my wife Carla is very outgoing, and
I have learned from her to be a little
more outgoing. Q: What was your first job?
A: A paper route and washing dishes
at a Bonanza restaurant. I was 14. I
don’t think there is a job that I haven’t
done in one capacity or another — I
like to think that keeps me grounded.
Q: What attracted you to your area of
specialization?
A: The first clue was my interest
in property and oil and gas law
courses in law school. Once I articled and realized I did not want to
be a litigator or a securities lawyer,
I joined our oil and gas group as
an associate — and once I was
in, I was hooked. Reading Daniel
Yergin’s The Prize really cinched
it. I am fascinated by the industry,
and how this commodity is so fundamental to every social and economic element of our lives.
Q: What’s the best part of your job?
A: The people I work with, both
clients and the people at McCarthy
Tétrault. Also, I really enjoy putting
deals together, particularly those that
are atypical and require you to take a
client’s ideas and issues, and build the
structure from scratch. That is very
rewarding. That, and the fact that the
challenges in this profession are constantly changing.
Q: What’s the most challenging part
of your job?
A: Substantively, the most challeng-
ing parts are also what make the
job most interesting and rewarding. Staying up-to-date on industry and
market trends, and finding innovative ways to deliver the service
at the caliber that we do is very
demanding. Logistically, there are
always competing forces on your
time, given how demanding and
competitive the service element is. It
makes all the difference to have a
family that understands and is supportive. They make a lot of sacrifices
behind the scenes.
that you add value and are a business
facilitator. What you are ultimately
trying to build at the end of the day,
is trust.
Q: What makes a good lawyer?
A: Of course, the highest level of
competence substantively. What
sets you apart, is your approach to
service and how your expertise is
delivered. You need to listen and
hear what your clients are saying so
Q: What are you most passionate
about?
A: My kids. I am most passionate
about providing them with opportunity and seeing them be happy.
Q: Whom do you admire?
A: So many of my colleagues and
friends. You can learn something
from pretty much any person and
situation if you watch for it and are
self-aware. If I had to pick only a
few, I would have to say my parents,
for their tremendous work ethic and
selflessness.
You talk. We listen.
A relentless focus on client success is at the heart of our firm.
Business achievement begins with the right team, asking
the right questions. Our team integrates legal expertise,
industry insight, and legal project management to deliver
more value to our clients. We not only help clients achieve
success – we make the journey better.
mccarthy.ca
McCarthy Tétrault LLP
— Jacqueline Louie
6 CALGARY LAW REVIEW
Calgary, Houston connect
for dual degree program
by JACQUELINE LOUIE
U
of C law student Barrett
Schitka has had a whirlwind
of a semester so far. He’s
in Houston, enrolled in the International Energy Lawyers Program — a
new joint degree program offered
by the University of Calgary and the
University of Houston which allows
law students at the U of C and the
University of Houston Law Center
to earn Canadian and American law
degrees in four years. Students will
spend two years at each institution,
and at the end of the program will
be able to apply for admission to bar
associations in both the U.S. and
Canada.
“That’s a flagship program that
we developed in partnership with
the University of Houston, reflective of the Houston-Calgary axis,
which is really the backbone of the
North American energy industry,”
says Ian Holloway, dean of the U of
C’s faculty of law.
Schitka, who was admitted to
the program in July and moved to
Houston in August, is the program’s
first and — so far only — student.
“There are a few other dual degree
programs in Canada. What’s unique
about this program, is its focus on
energy and natural resources law,”
he says.
Born and raised in Calgary, Schitka,
24, has always had an interest in law.
A student in the International Baccalaureate program at St. Mary’s High
School in Calgary, he enjoyed debating, and was a competitive athlete for
many years.
At the same time, he is also very
strong in math and the sciences, and
opted to study chemical engineering,
choosing the best program he could
find: at the University of Waterloo,
where he obtained two degrees
concurrently: a bachelor of applied
science degree in chemical engineering, with an option in management
science, and a bachelor of arts degree
in Spanish.
Another draw for Schitka, was
Waterloo’s co-operative education
program, which allows students to
spend every four months alternating
between a study term and a work term.
Over the five years that Schitka spent
on his engineering degree, he received
a year-and-a-half of industry work
experience, doing everything from
waste water treatment and research and
development, to engineering simulation software. During his first term, he
worked as a research assistant at the
National University of Engineering
in Lima, Peru, and in his third year he
worked for a Sarnia, Ont. petrochemical company that was renegotiating
some of its service agreements. As a
co-op student, Schitka went through
contracts and production data, and
participated in some of the negotiations and strategy processes that were
going on.
“That’s when I started to see that
maybe there was a way to put the two
together — law and engineering. The
more I looked into things, spoke with
people and did research, I knew that
that was what I wanted to do, and I
never looked back.”
Schitka returned to Calgary in 2011
to attend law school, where the drawing factor was the U of C’s energy and
natural resources focus. Since his acceptance into the International Energy
Lawyers Program, he has continued to
pack his schedule.
Among other things, Schitka was
selected to participate in the Philip C.
Jessup International Law Moot Court
Competition, the largest, and one of the
most prestigious moot court competitions in the world. In the case of the
Jessup competition, moot court is a
simulation of arguments done before
the International Court of Justice. The
student teams participating in the competition represent fictional countries
involved in an international dispute,
and present and argue their case in
front of a panel of judges.
Schitka is also a member of the editorial boards of two student-published
journals: the Alberta Law Review,
and the Houston Journal of Health
Law and Policy. “We put out journals
throughout the year. We do everything
from article selection to copy editing
to note writing — every element of
the publication process,” he explains.
The journals, which go into law libraries around the world, feature articles
written by law faculty and legal scholars nation-wide.
Through the joint degree program,
Schitka is gaining an understanding of the U.S. and other countries
“on a more fundamental level. You
start to understand why the U.S. has
evolved the way it has, why laws
have evolved the way they have, and
how decisions made 100 years ago
have an impact today,” he says. “You
start to see things on both sides of the
border that you may not have seen
before. Both countries have the same
English common law roots, but it’s
seeing things from a slightly different angle.”
After he graduates from law school,
Schitka would like to develop an
energy practice. “I’m not quite sure
yet whether it will be a transactionalbased practice or a litigation-based
practice — there are elements of
both that I very much enjoy,” he says.
“My intention is to have some sort of
international flavour to it, whether it
be domestic clients with international
interests, or international clients.
Hopefully one day as I continue to develop, grow, work and learn, I’ll be at
the forefront of that sort of industry.”
— Courtesy Jessica Franklin, UHLC
University of Calgary law student Barrett Schitka is the first student in the International
Energy Lawyers program, a new joint degree program between the U of C and the University of Houston.
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CALGARY LAW REVIEW
7
PROFILE: DALE SPACKMAN, PARLEE McLAWS
Dale Spackman, Q.C., is a partner at
Parlee McLaws LLP in Calgary, where he
has been a lawyer for 32 years. Born and
raised in Calgary, Spackman, 58, is a thirdgeneration southern Albertan. He and his
wife have two grown children.
Q: How would you describe yourself?
A: I’m a people person. I try to do the
right thing and work hard.
Q: What was your first job?
A: As a Calgary Herald delivery boy,
when I was about 15. I had one of the
largest paper routes in Calgary.
Q: What attracted you to your area of
specialization?
A: Early on, I wanted to focus my
practice on solicitor’s work — corporate and commercial law. I took a lot
of satisfaction in advising clients and
working through complicated corporate and commercial transactions,
and seeing the transactions come to
a satisfactory conclusion. My expertise in aviation law, which is the
main area of my practice now, really
came out about as a consequence of
circumstance. One of the first clients
I had obtained as a young lawyer was
a commercial air service company.
I really enjoyed that work and developed a lot of relationships in that
industry, and it just grew from there.
My other main area of specialization
is banking law.
Q: What’s the best part of your job?
A: The interaction I have with clients,
and the satisfaction I get from helping them with their legal needs. Add
to that the intellectual challenges and
the opportunity to continually gain
new knowledge and skills. I love to
learn and problem solve and I find the
law gives you a really great opportunity to do that in a practical setting.
Q: What’s the most challenging part
of your job?
A: Juggling the competing demands
of clients and keeping them all happy.
The other very challenging part of
the job is keeping up on the law in my
areas of specialization because it’s
continually evolving.
Q: What makes a good lawyer?
A: In no particular order of importance: intelligence, common sense,
excellent communication skills,
integrity, courtesy, humility and extremely hard work.
Q: Whom do you admire?
A: I admire anyone who is hardworking, genuine and makes a positive
difference in other people’s lives.
Some of the people I admire the most,
are those closest to me. For example, my
wife Cathy, because she has all of the
qualities that I admire in people. She is a
professional accountant, she is the CFO
of a large public corporation and she
always spends an enormous amount of
time helping the community.
Q: What type of volunteering do
you do?
A: I started doing things like coaching sports teams and refereeing
sports when in high school and
carried that through into my professional career. I’ve done everything
from being a Boy Scout leader and
coaching my kids’ sports teams and
other sports teams to coaching and
serving on the board of directors of
the Calgary Minor Soccer Association for eight years. I was a member
of the board of directors of the Law
Society of Alberta for eight years —
and lots of other stuff.
Q: What are you most passionate
about?
A: My family would come first, and
secondly the law. I am also passionate about sports, especially hockey
and football. And I am passionate
about children. That’s why I got so
involved in coaching and minor soccer. I am a real believer in team sports
— that it’s one of the most important
things a child can participate in, to
help them in their adult life.
Q: What does a great day off look
like for you?
A: Spending time with my family, especially at our cabin at Pigeon Lake.
— Jacqueline Louie
8 CALGARY LAW REVIEW
Social media: good, bad and ... cautious
by barbara balfour
A
fter months agonizing over
whether he should delete his
Facebook profile, Sander
Duncanson was pleasantly surprised
when, on his first day as a summer
student at a law firm, he was given
instructions on how to set up his own
LinkedIn account.
It was 2009, a time when profiles on
Facebook and other social media were
as ubiquitous as they were potentially
incriminating. “I always thought social
media would be discouraged because of
certain things in your personal life that
law firms didn’t want you broadcasting to the world,” says the 29-year-old
associate at Osler, Hoskin & Harcourt.
“Instead, the marketing manager said,
‘Here are the basics you should have —
now get out there and use them.
“‘This will be the most important
tool you have to develop your personal
brand as you go through your career.’”
The use of social media to grow a firm’s
reputation, share legal resources, and provide instant updates is only one example
of how much and how quickly technology
has changed lawyers’ approach to their
practice.Yet as younger lawyers are more
likely to take for granted the accessibility
and speed of today’s digital world, senior
colleagues are reminding them that technology is not infallible.
“When you’re dealing with a legal area
you’re not familiar with, your first response is to see what comes up on Google,
but that information is not always reliable,” says Claire Stilwell, a 20-something
lawyer at Norton Rose who specializes in
technology and innovation.
“I was directed by a senior colleague
to actually take out a textbook at the start
of my research to become more familiar
with this area of law. When I had that extra context, it made my searching much
more efficient — I knew what was useful
and what wasn’t. I don’t think I would
have had that approach otherwise.”
Stilwell also credits her older colleagues for stressing the importance
of face-to-face time with clients when
— Wil Andruschak photo
Claire Stilwell, a lawyer at Norton Rose specializing in technology and innovation, says Google and Facebook are no substitute for researching law or staying in touch with
clients. Textbook research and face-to-face time with clients are still critical.
relationships are often maintained in a
virtual world.
“We’ve heard a lot of discussion about
what it really means to have 500 friends
within the context of Facebook.You
can use Facebook to keep in touch with
people, but it’s no substitute for sitting
down with a client and taking them out
for lunch. And sometimes, you can get so
much more done by picking up the phone
than by sending a million e-mails.”
As a way of reaching younger audiences and potential clients, Facebook is
also integral in trial preparation. Family
law attorney Lisa Tose often educates
her clients on the damage their online
profiles can do to their case.
“It’s very commonplace for Facebook postings to be brought into the
trial or hearing, especially when children are involved,” says Tose, 40.
“I always advise my clients to eliminate Facebook altogether prior to a trial
or while we’re having an ongoing issue.
This is regardless of privacy settings
— they may believe they have locked it
down or unfriended the ex-partner, but
their information is still available through
other people on their friends list.
“I can get a lot more information
about the opposing party than I ever
used to be able to before.”
In 1998, when Tose first started practicing, she would have never dared to
bring a cellphone into the courtroom.
“Now judges expect you to have it
handy to look up queries for them,
quickly use applications to access case
law or do child support calculations,”
says Tose, 40. “I couldn’t imagine
going into a trial without my phone
charged and ready to go.”
At legal firms such as Field Law,
remote access usage is encouraged
so lawyers are not confined to their
offices — they can practice using a
virtual desktop anytime, anywhere,
says insurance defence lawyer Alex
Yiu, 31. “Nearly 100 per cent of our
lawyers use a mobile device and nearly
a quarter of our members use an iPad
as a staple in their everyday usage.”
Other examples where technology comes into play include affidavit
records and legal cases now available
in digital format and even full-blown
trials that are run electronically in
“smart” courtooms, says Yiu.
While being connected to the office
when outside of it physically can give
lawyers more freedom, it can also add
more pressure. “When I was just starting out, fax
machines had become the big thing
and lawyers were bemoaning that
clients expected to hear back within a
day,” says Robert Hawkes, 51, a partner at JS Barristers who specializes
in commercial litigation and class ac-
tions. Today, Hawkes will often spend
time even while on vacation fielding
urgent matters electronically.
“With e-mail, clients expect to hear
back within the hour if not within
minutes.”
At the same time, some lawyers have
noted a general reluctance to rely on technology too much. “I go to a lot of hearings,
and my tendency is to put all the files I
need on a USB key, take my laptop, and
I’m good to go,” says Duncanson.
“Most senior lawyers will say,
‘That’s great, but make sure you always
have a hard copy.’ It may seem excessive but every once in a while computers crash and I have had that happen.
When technology fails, you still have
to be able to continue your practice.
“The older generation has learned
to practice law without that technology so they still make sure they can do
without it.”
N
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