Regulatory Appeal – Eligible Person – Tailings Management Plan Request – Request Dismissed
In this decision, the AER considered Fort McKay First Nation’s (“FMFN”) request under section 38 of the Responsible Energy Development Act (“REDA”) for a regulatory appeal of the AER’s decision approving CNRL’s tailings management plan (“TMP”) application for the Horizon Oil Sands Processing Plant and Mine (the “Horizon Mine”) under its Oil Sands Conservation Act, RSA 2000, c. O-7 (“OSCA”) Commercial Scheme Approval No. 9752E (the “Horizon Approval”). The Decision was an amendment to the existing Horizon Approval (the “Decision”).
The AER found that FMFN was not eligible to request a regulatory appeal and, therefore, the AER denied the regulatory appeal request.
Legislation
REDA section 38 regarding regulatory appeals states:
38(1) An eligible person may request a regulatory appeal of an appealable decision by filing a request for regulatory appeal with the Regulator in accordance with the rules.
The term “eligible person” is defined in section 36(b)(ii) of REDA to include:
a person who is directly and adversely affected by a decision [made under an energy resource enactment]…
Reasons for Decision
The AER denied the regulatory appeal request based on its finding that the FMFN failed to identify any specific direct and adverse impacts to it resulting from the Decision.
The AER explained that the Decision dealt with how tailings are managed on the existing approved mine site footprint. The AER found that:
(a) the scope of the amendment application was limited to terms and conditions relating to the TMP submitted by CNRL; and
(b) therefore, the question for the purposes of section 36(b)(ii) of REDA was what effect, if any, did the amendments to the Horizon Approval (and the resulting consequential changes to CNRL’s activities) have on FMFN.
The AER further found that:
(a) the Decision dealt with the existing Horizon Mine and no new lands outside of CNRL’s lease would be used or impacted as a result of the TMP amendments;
(b) the potential impacts to air, land and water etc. were previously assessed as part of the review of the original oil sands mine application by the joint review panel;
(c) the use of CNRL’s main technologies was either already approved or contemplated prior to the TMP amendments;
(d) the TMP amendments confirmed that CNRL could continue already approved activities; and
(e) there were no discernible changes to the ‘already assessed and approved’ risks or impacts of Horizon arising from the approval of CNRL’s TMP.
The AER rejected FMFN’s assertion that it was directly and adversely affected by the failure of the TMP to require a reclamation plan. The AER found that:
(a) Directive 085: Fluid Tailings Management for Oil Sands Mining Projects sets out the application requirements for tailings management plans and does not require reclamation plans;
(b) the Decision was confined to amendments to the Horizon Approval, which was issued under the OSCA; and
(c) reclamation plans were out of scope of the TMP application, as reclamation plans are administered separately under the Environmental Protection and Enhancement Act.
Decision
Based on the above, the AER concluded FMFN failed to establish that it had been directly and adversely impacted by the Decision. As a result, the AER dismissed the request for Regulatory Appeal.
