Canada: Energy @ Gowlings- September 19, 2012 - Volume 10, Number 13

Last Updated: September 20 2012
Article by Lisa Jamieson, Weiqing Jin and Lana Tarnovetskaia

Edited by Paul H. Harricks

Lower Athabasca Regional Plan comes into effect

On August 22, 2012 the Government of Alberta approved the Lower Athabasca Regional Plan (LARP), making it the first regional plan to be completed under Alberta's Land-use Framework.  The plan came into effect on September 1, 2012.

Alberta's Land-use Framework (LUF), released in December 2008, set out an approach to managing Alberta's land and natural resources to achieve its long-term economic, environmental and social goals. The LUF established seven new land-use regions and calls for the development of a regional plan for each.

The Alberta Land Stewardship Act supports the LUF and establishes the legal basis for the development of regional plans.  The first of the regional plans, the LARP, was released in draft form on April 5, 2011.  The region covers approximately 93,212 square kilometres and is located in the northeast corner of Alberta. It is bordered to the north by the Northwest Territories and to the south by the County of Vermilion River, the County of St. Paul and Smoky Lake County. To the east, it is bordered by Saskatchewan and to the west by Wood Buffalo National Park, MacKenzie County and the Municipal District of Opportunity.

The development of the LARP used a three-phase consultation process which gathered:

  • input on the region's issues;
  • feedback on the advice from the Lower Athabasca Regional Advisory Council; and
  • feedback on the Government of Alberta's Draft Lower Athabasca Integrated Regional Plan.

The Lower Athabasca Regional Plan:

  • Establishes a long-term vision for the region;
  • Aligns provincial policies at the regional level to balance Alberta's economic, environmental and social goals;
  • Reflects ongoing commitment to engage Albertans, including aboriginal peoples, in land-use planning;
  • Uses a cumulative effects management approach to balance economic development opportunities and social and environmental considerations;
  • Sets desired economic, environmental and social outcomes and objectives for the region;
  • Describes the strategies, actions, approaches and tools required to achieve the desired outcomes and objectives;
  • Establishes monitoring, evaluation and reporting commitments to assess progress; and
  • Provides guidance to provincial and local decision-makers regarding land-use management for the region.

The Lower Athabasca Regional Plan has four key components:

  • Introduction – includes the purpose of the regional plan, land-use planning and decision-making in Alberta, and how the regional plan will inform land-use decisions.
  • Strategic Plan – includes a stated vision for the future of the region along with desired regional outcomes. Builds on existing policies and initiatives by establishing a set of strategic directions that help achieve the regional vision and outcomes.
  • Implementation Plan – includes regional objectives, strategies and actions that will be undertaken to support achievement of the regional vision and outcomes and indicators to measure and evaluate progress.
  • Regulatory Details Plan – designed to make it possible to achieve the strategic direction and strategies and actions.

Up to 19 oil sands leases that are currently undeveloped will be cancelled to provide for conservation areas.  While the matter of compensation for these leases is likely to be an important issue in the coming months, there is presently a lack of clarity surrounding particulars as to what that compensation will look like. 

While there are relatively few substantial changes from the draft version of the LARP released a year ago, one significant change involves the Dillon River Conservation Area, which stretches along the eastern border of the province north of the Cold Lake Air Weapons Range. The final revisions call for this area to be increased by 27,000 hectares to a total of 191,500 hectares and to receive greater protection by being designated a Wildland Provincial Park.  This particular area is considered key habitat for woodland caribou.

A copy of the LARP is available at:
https://www.landuse.alberta.ca/RegionalPlans/LowerAthabascaRegion/Pages/default.aspx

A copy of the LARP 2012-2022 Map can be accessed at the Government of Alberta's Land-use Framework website, located at:
https://www.landuse.alberta.ca/RegionalPlans/LowerAthabascaRegion/Pages/default.aspx



Canada and China Sign Investment Treaty

On September 8, 2012, Canada and the People's Republic of China signed the Canada-China Foreign Investment Promotion and Protection Agreement (Canada-China FIPA). The specific provisions of the Canada-China FIPA will not become public until the treaty is tabled in Parliament for ratification. In general terms, however, bilateral investment treaties of this kind are reciprocal international legal agreements that states enter into to provide their national investors with protection against arbitrary or discriminatory government actions when investing abroad, while at the same time promoting their domestic market as an investment destination.

These treaties oblige host states to adhere to a certain standard of treatment with regard to counterparty foreign investors and their investments, and often set out arbitral mechanisms to resolve any disputes that arise related to such investments to ensure foreign investors receive impartial judicial treatment. The execution of the Canada-China FIPA marks the formal end of a series of negotiations that spanned an 18-year period, with efforts beginning in 1994, tapering prior to China's accession to the World Trade Organization and redoubling from 2004 onward.

Scope of Agreement

China has historically negotiated bilateral investment treaties characterized by significant limitations with regard to non-discrimination and dispute resolution. The Canada-China FIPA may reflect China's recent tack toward allowing more robust protections in its international investment treaties, as evidenced in its recent bilateral investment treaties with Germany and the Netherlands. 

It is likely that the Canada-China FIPA will include substantive investor protections by providing for:

  • non-discrimination rights, such that investors and their investments are not disadvantaged relative to investors from the counterparty or other countries;
  • a minimum standard of treatment to be accorded to investments, consistent with international law;
  • transparency in the passage of laws or decisions that have an impact on investors and their investments;
  • the ability to transfer funds arising from investments; and
  • compensation for expropriation of investments.

Additionally, Canada's Department of Foreign Affairs and International Trade (DFAIT) notes that the Canada-China FIPA will grant investors access to "investor-state" dispute settlement arbitration. Dispute settlement mechanisms of this sort allow aggrieved foreign investors to seek remedies against the host country outside of national court systems, pursuant to the rules and procedures of one of the various international arbitration regimes, such as the International Centre for Settlement of Investment Disputes (ICSID). Canadian bilateral investment treaties (referred to in Canada as Foreign Investment Promotion and Protection Agreements or FIPAs) typically include robust investor-state dispute resolution provisions that feature detailed rules on standing of the investor, procedural requirements and judgment enforcement 

Strengthening Economic Ties

The signing of the Canada-China FIPA comes amid a period of intensification in Sino-Canadian investment activity. Examples of this activity include CNOOC Limited's proposed $15.1-billion acquisition of Nexen Inc. and the Bank of Nova Scotia's pending purchase of the Bank of Ghuangzhou. This milestone is also reflective of a deepening economic relationship between the countries, noted in the August 15, 2012 release of a joint Canada-China study that recommended fostering even deeper trade links. To this effect, before the end of the year, Canada and China may announce the beginning of formal negotiations to strengthen their bilateral trade relationship through a free trade agreement.

Ratification and Implementation

Now that the parties have signed the Canada-China FIPA, Canada and China will subject the treaty to their respective ratification processes. In Canada, the ratification process will involve a 21-sitting-day period, during which the Canada-China FIPA will be tabled in the House of Commons for examination and debate. The treaty will be brought into force pursuant to an Order-in-Council authorized by the Governor General, Canada's head of state. Prime Minister Stephen Harper indicated that the Canada-China FIPA will be tabled during the fall session of Parliament. We have no reason to believe that it will not be ratified and implemented by Canada.

Companies that have made or are considering investments in Canada or China would be well served to educate themselves about international investment treaty protections that the Canada-China FIPA will afford. The Canada-China FIPA will be particularly helpful to Canadian businesses looking for greater certainty and security when making investments in China.

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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