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 decisions.
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 publically released.
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 regulatory duplication.
The introduction of the Act signals Alberta’s commitment to raising its international credibility on environmental protection.