Canada: Updated Draft Lower Athabasca Regional Plan Released

On August 29, 2011, the Alberta government released its updated draft Lower Athabasca Regional Plan (LARP), which identifies strategic directions for land use in the Lower Athabasca Region over the next 10 years.

LARP was revised as a result of a public comment and consultation period that followed the government's release of the first draft Plan in April 2011. For more detail on the original draft LARP, please see the previous Bennett Jones Update, Alberta Releases Its Draft Lower Athabasca Regional Plan (April 07, 2011).

The updated draft LARP does not contain significant substantive changes but does include some amendments that may be of interest to industry. Overall, the updated LARP clarifies some issues raised by the first draft regarding the implementation and implications of LARP.

Changes to the updated LARP include:

  • Revised conservation area boundaries that appear to impact fewer oil sands leases;
  • Revised legal mechanism for the creation of conservation areas;
  • Some clarification regarding the status of new and existing Petroleum and Natural Gas (P&NG) leases – these "clarifications" unfortunately create new uncertainties; and
  • Clarification regarding the implementation of air and water quality management frameworks.

In the updated draft LARP, the boundaries of two newly created conservation areas have been adjusted. One adjustment was to the Birch River Conservation Area, which the government has said was adjusted by shifting two townships of land, each totaling approximately 15.5 square km, in an area that contained several oil sands leases. The Richardson Wildland Park boundary was also reduced in the area near Fort Chipewyan. The new conservation areas still encompass approximately 16 percent of the region's land base but appear to have been revised based on industry feedback.

Any mention of the cancellation of existing tenures has been removed from LARP, as has discussion surrounding compensation for cancelled tenures. This appears to be a result of the revised conservation area boundaries, as well as a change in how the conservation areas will be created and legislated. Under the prior draft version of LARP, the LARP Regulations themselves established the conservation areas, rescinded oil sands and metallic and industrial mineral agreements in the areas, and stated that the holders of statutory consents could seek compensation under the Mines and Minerals Act. Now, the updated draft LARP states that the conservation areas will be created under existing legislation, specifically the Provincial Parks Act and the Public Lands Act, rather than established under the legal framework of LARP.

While the prior draft LARP stated that new P&NG leases would be honoured and new P&NG leases granted in conservation areas, with restrictions on surface access, the updated draft Plan raises questions about whether new P&NG leases will be granted in conservation areas. The updated LARP Strategic Plan still states that "any new petroleum and natural gas tenure sold in a conservation area will include a restriction that prohibits surface access." However, Schedule B to the updated LARP Implementation Plan indicates that P&NG leases will not be issued for existing and new conservation areas. As such, it is unclear whether the government will issue new P&NG leases in conservation areas.

While the new draft LARP creates some confusion as to the status of new P&NG leases in conservation areas, the newly drafted Regulatory Details Plan, the section of LARP that is legally binding, provides a legal mechanism for the renewal of P&NG leases in conservation areas and states that a statutory consent may be renewed in a conservation area, even if the statutory consent is inconsistent with or non-compliant with LARP, provided the statutory consent is an agreement under the Mines and Minerals Act or a disposition under the Public Lands Act that is valid and subsisting at the time LARP comes into force. In addition, the new draft Plan clarifies that P&NG leases in provincial recreation areas will be honoured, clarifying confusion that resulted from the prior draft LARP, which referred to cancelled tenures in these areas.

The updated draft LARP also clarifies the roles and implementation of management frameworks for air quality, surface water quality and groundwater quality and quantity. It was unclear in the prior draft Plan what the legal effect of these management frameworks was, so the updated draft LARP clarifies that the air quality, surface water quality and groundwater management frameworks are intended to complement and add to, and not to replace, existing laws and policies. The prior draft Plan also left some question as to what role decision-makers such as the Energy Resources Conservation Board (ERCB) had in implementing and enforcing the management frameworks, as well as to how the Minister of Environment would respond to triggers or limits being exceeded. The updated LARP clarifies these processes. The Regulatory Details Plan for the air quality and surface water quality management frameworks states that in the event an air quality or surface water quality limit is exceeded, the Minister of Environment must issue a notice specifying the limit that has been exceeded, the types of activities that are reasonably expected to have an effect on the limit, the areas and decision-makers affected by the notice, and the action to be taken by the decision-makers in response. Such notice must also state that no statutory consents in respect of the enumerated activities may be issued. All recipients of such notice are bound by the notice.

The updated draft LARP clarifies that, unlike the more established air quality and surface water quality management frameworks, the groundwater management framework contains only interim regional triggers and limits. As such, a management response, such as mitigation, further modeling or monitoring, will not be mandatory under LARP for exceedances of groundwater triggers and limits until final triggers and limits are established. In addition, the Regulatory Details Plan states that the Minister has discretion in terms of whether to require a groundwater approval holder to establish a groundwater management plan. The first draft of LARP had stated that such groundwater management plans would be mandatory.

According to the updated LARP, once implemented, the Plan will be assessed and updated if necessary every five years to maintain relevance and effectiveness. Subsequent revisions to the Plan would require consultation with Albertans.

The next step in the implementation of the draft LARP is to table the draft Plan with the Office of the Clerk of the Legislature prior to submitting it to Cabinet for approval. It is worth noting that several of the leadership candidates for the provincial Progressive Conservative Party have publicly stated that the Land-Use Framework and LARP should be re-thought. As such, it is possible that LARP may be reworked or abandoned altogether following the September 17, 2011, leadership vote.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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