Request for Reconsideration – REDA Section 42 – Tailings Management Plan
In the decision, the AER considered Canadian Natural Resources Ltd.’s (“CNRL”) request under section 42 of the Responsible Energy Development Act (“REDA”) for reconsideration of AER Decision No. 20171218A (the “Original AER Decision”) and the Commercial Scheme Approval No. 9752E (the “Approval”).
Test under Section 42 of the REDA
REDA section 42 provides the AER’s authority to reconsider a decision. It states:
42 The Regulator may, in its sole discretion, reconsider a decision made by it and may confirm, vary, suspend or revoke the decision.
With respect to the AER’s consideration of a request to reconsider a decision pursuant to REDA section 42, the AER found that:
(a) as indicated in the words of REDA section 42, it is at the AER’s sole discretion whether to reconsider one of its decisions;
(b) REDA section 42 does not provide an appeal mechanism, whereas other provisions of REDA are available for that purpose; and
(c) given the other specific appeal processes available under the REDA, and the need for finality and certainty in its decisions, the AER will only exercise its discretion to reconsider a decision in extraordinary circumstances and where it is satisfied that there are exceptional and compelling grounds to do so.
The AER noted that the request included an alternative to reconsideration, which the AER found to be, in essence, CNRL requesting clarification of the Approval. Therefore, the AER concluded that reconsideration of the Approval was not necessary to address CNRL’s concerns in light of the clarification provided below:
(a) the AER recognized that extensive research on water-capped tailings continues and the Government of Alberta (“GOA”) would be developing policy and ready-to-reclaim performance criteria for water-capped tailings deposits as a feature of closure landscapes;
(b) the AER clarified and confirmed that, with respect to clause 48 of the Approval, if the feasibility of water-capped tailings was demonstrated and the GOA implemented applicable policies permitting their use, operators could apply to the AER to amend existing approvals to seek authorization to implement water-capped fluid tailings; and
(c) in CNRL’s case, clause 55 of the Approval expressly contemplated future amendment of the Approval to permit placement of water above treated or untreated tailings to create a pit lake.
The AER confirmed that CNRL could continue to plan on the basis that water-capped tailings was an option unless such methods proved unfeasible and/or GOA policy prohibited it.
