On March 29, 2014, the Alberta Energy Regulator (AER) became the
entity responsible for issuing approvals pursuant to the
Environmental Protection and Enhancement Act (EPEA) for
energy projects. However, the authority to direct environmental
impact assessments (EIAs) for these projects, pursuant to the EPEA,
remained with Alberta Environment and Sustainable Resource
Development (ESRD). While the AER and ESRD work together to process
energy development applications in a coordinated manner, the
designated ESRD Director is currently charged with making decisions
and managing the environmental assessment process pursuant to the
Effective October 1, 2014, the AER will assume responsibility
for the EIA process for energy resource activities (defined to
include "any activity that may only be carried out under an
approval issued under any energy resource enactment"). This
jurisdiction over EIAs will apply to energy projects such as:
oil sands mines
commercial oil sands, heavy oil extraction and upgrading or
processing plants "located within the site of an energy
surface coal mines
sour gas processing plants
coal processing plants
large tailings dams
According to the legislative changes, ESRD will retain authority
to direct EIAs for all oil refineries. With respect to oil sands or
heavy oil upgrading or processing plants not associated with
mineral recovery operations, there is some uncertainty as to
whether the AER or ESRD will be responsible for the EIA process.
This is because the construction and operation of these facilities
are, by definition, "energy resource activities," and
thus must occur within the site of an energy resource activity. The
lack of clarity arises from the inclusion of the qualifying phrase
"located within the site of an energy resource activity"
in the amended regulation, which suggests that not all of these
facilities are intended to fall within AER jurisdiction for the
purpose of overseeing the EIA process.
As of October 1, 2014, the AER will assume responsibility for
new EIAs, and EIAs commenced after July 23, 2014 but not completed
by October 1, 2014. EIAs commenced on or before July 23, 2014 will
be continued and completed by the ESRD Director.
Implications for Resource Development
The transfer of responsibility for EIAs to the AER is a positive
change for energy resource development projects. This change is
expected to enhance regulatory efficiency and certainty by ensuring
that the entity responsible for reviewing applications and
associated EIAs will also manage the EIA process at the front-end.
The AER has a mandate to ensure the safe, efficient, orderly and
environmentally responsible development of hydrocarbon resources
over their entire life cycle, and is thus the appropriate body to
ensure that EIAs for energy projects are conducted appropriately.
This transfer of responsibility will close what is viewed by some
as a gap in Alberta's "one window" approach to energy
regulation. However, some uncertainty remains in relation to
proposed stand-alone oil sands and heavy oil upgrading and
processing plants. We expect that guidance from the AER will assist
in clarifying these matters as the effective date
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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In Bank of Montreal v Bumper Development Corporation Ltd, 2016 ABQB 363, the Alberta Court of Queen's Bench enforced the "immediate replacement" provision in the Canadian Association of Petroleum Landmen 2007 Operating Procedure...
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