Request for Regulatory Appeal – Oil Sands Project
In this decision, the AER considered a request from Fort McKay First Nation (“Fort McKay”) under section 38 of the Responsible Energy Development Act (“REDA”) for a regulatory appeal of the AER’s decision to approve Oils Sands Conservation Act (“OSCA”) Approval No. 9725H and Environmental Protection and Enhancement Act (“EPEA”) Approval No. 014-00149968 (collectively the “Approvals”). The Approvals related to the construction and operation of a High Temperature Paraffinic Froth Treatment Project (“Project”) within Canadian Natural Resources Limited (“Canadian Natural”)’s Horizon oil sands mine and processing plant. The AER decided that Fort McKay was not eligible to request a regulatory appeal in this matter.
Legislative Framework
The applicable provision of REDA in regard to regulatory appeals, section 38, 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. [Emphasis added.]
Reasons for Decision
The AER explained that for energy resource enactment decisions, an eligible person is a person who is directly and adversely affected by a decision made under an energy resource enactment without a hearing (section 36(b)(ii) REDA). For the decision to issue an EPEA approval amendment, an eligible person is a person who previously submitted a statement of concern in response to public notice and who is directly affected by the AER’s decision (section 36(b)(i) REDA).
The AER noted that in Dene Tha’ First Nation v Alberta (Energy and Utilities Board), the Court of Appeal of Alberta provided guidance on what an Aboriginal group must demonstrate in order to meet the factual part of the directly and adversely affected test. Although the decision concerns the test under subsection 26(2) of the former Energy Resources Conservation Act, the AER considers it to be reliable guidance in the question of what information is needed to show that a person may be directly and adversely affected/directly affected, i.e., on the factual question that arises under section 36(b) of the REDA:
[14] It was argued before us that more recent case law on prima facie infringement of aboriginal or treaty rights changed things. But the Board still needed some facts to go on. It is not compelled by this legislation to order intervention and a hearing whenever anyone anywhere in Alberta merely asserts a possible aboriginal or treaty right. Some degree of location or connection between the work proposed and the right asserted is reasonable. What degree is a question of fact for the Board. [Emphasis added.]
The Dene Tha’ approach has been confirmed in a subsequent decision of the Alberta Court of Appeal with respect to the assessment of whether a person is directly and adversely affected as contemplated under the REDA. The court outlined in O’Chiese First Nation v. Alberta Energy Regulator the following:
[43] A decision of the AER can, as a matter of fact, ‘directly and adversely’ affect a party such as the O’Chiese First Nation. Whether it does so or not is to be considered by the AER in light of the evidence properly adduced before it.
[44] What is equally clear however is that the phrase “directly and adversely” is not automatically engaged as a matter of law on the facts of this case. In other words, the mere fact that the developments in question are located within the OCFNCA does not mean that the Approvals “directly and adversely” affect the O’Chiese First Nation.
Fort McKay submitted that the Project would be in an area that Fort McKay uses to exercise its Treaty and Aboriginal rights.
The AER found that Fort McKay’s submissions did not demonstrate that Fort McKay’s traditional land use at a specific site or in proximity to the Project lands could be directly and adversely affected by the approvals. The AER also found that Fort McKay’s submissions did not demonstrate that a member’s use of natural resources may be impacted by the Project in a way that results in a direct and adverse effect on that member.
The AER noted that, while Fort McKay’s submissions were extensive, they did not contain the detail needed to demonstrate a degree of location or connection between the Approvals and the asserted impacts on Fort McKay members that demonstrated a potential for the Approvals to directly and adversely affect a Fort McKay member. As a result, the AER could not conclude that the issuance of the OSCA approval may or will directly and adversely affect Fort McKay and/or its members, or that the issuance of the EPEA amendment could or would directly affect Fort McKay and/or its members.
Conclusion
The AER found that Fort McKay had not met the requirements for a regulatory appeal and decided to dismiss the request for regulatory appeal.
