Recent court decisions and legislative changes have marked
significant changes to the regulatory approval process. This
month, Alberta courts rendered decisions with respect to Alberta
energy resource development projects by Brion Energy Corporation
(Brion) and Southern Pacific Resource Corp. (Southern Pacific).
Furthermore, the federal government finalized amendments to
the Regulations Designating Physical Activities
(Regulations) and the Alberta government (Alberta) tabled the
Protecting Alberta's Environment Act (Act).
In the Brion decision, the Alberta Court of Appeal granted leave
to Fort McKay First Nation to appeal the Alberta Energy
Regulator's (AER) decision approving Brion's application
for a bitumen recovery project. The leave was granted on the
issue of the AER's interpretation of its power to decide
constitutional issues, including whether the AER is required to
address any limits to Alberta's constitutional power over the
diminution of Aboriginal treaty rights when issuing its
In the Southern Pacific ruling, the Alberta Court of Queen's
Bench quashed a 2012 Alberta decision to prevent a coalition of
four environmental groups from participating in the regulatory
approval process for a proposed expansion of Southern Pacific's
in situ oil sands project. The Court quashed the decision due
to improper considerations taken into account by Alberta, including
the coalition's past criticism of oil sands development.
On October 24, 2013, amendments were made to the Regulations so
that certain projects that once required a federal EA now no longer
do (heavy oil and oil sands processing facilities, pipelines and
electrical transmission lines that are not regulated by the
National Energy Board, groundwater extraction facilities,
industrial facilities) and conversely, certain projects that did
not require a federal EA now do require a federal EA (diamond
mines, oil sands mine expansion, offshore exploratory wells).
Most notably, in situ oil sands projects will not be subject to
routine federal EAs.
On October 28, 2013, Alberta tabled the Act which will create an
arm's length environmental monitoring agency to monitor the
environmental impact of the oil sands by collecting and publically
releasing data on water, air, land and biodiversity. However,
details are not clear in the Act on whether the agency will engage
independent scientific experts or Aboriginal traditional knowledge
to collect the scientific data or how and when the data will be
These recent decisions and legislative changes have changed the
landscape of the regulatory approval process:
The recent Alberta court decisions indicate that participatory
rights in the regulatory approval process will be heavily protected
by the courts.
The federal legislative changes illustrate that the federal
government continues to place emphasis on providing predictability
and clarity to the regulatory review process and to reducing
The introduction of the Act signals Alberta's commitment to
raising its international credibility on environmental
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Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
The Government of Alberta recently announced a number of policy changes that will impact the Alberta Electricity Market, composed of its generators, transmitters, distributors, retailers, electricity consumers and wholesale electricity market.
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