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These articles by our expert team cover the details of various decisions made by the Alberta Energy Regulator (AER), Alberta Utilities Commision (AUC), and Canada Energy Regulator (CER). Browse our searchable archive below to learn more about the results we’ve achieved for our clients.

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Athabasca Chipewyan First Nation v. Alberta (2018 ABQB 262)

In this decision, the Alberta Court of Queen’s Bench (“ABQB”) considered an application for judicial review of a decision of the Aboriginal Consultation Office (“ACO”), dated July 17, 2014 (the “ACO Decision”). The ACO Decision found that a duty to consult with the Athabasca Chipewyan First Nation (“ACFN”) was not triggered in relation to a pipeline project. The pipeline project, entitled Grand Rapids, (the “Project”), was proposed in Treaty 8 territory, and the ACFN is a Treaty 8 First Nation. The Project was proposed by TransCanada Pipelines Limited and Phoenix Energy Holdings Limited (“TransCanada”).

Amended Notice of Question of Constitutional Law – Prosper Petroleum Ltd. Rigel Project (AER Procedural Decision, Proceeding ID 350)

On June 22, 2017, Fort McKay First Nation (“FMFN”) filed a Notice of Question of Constitutional Law (the “Notice”) pursuant to the Administrative Procedures and Jurisdiction Act (“APJA”).

In this decision, the AER panel determined that it could not consider the questions or refer them to court because:

(a)     FMFN did not satisfy the notice requirements of the APJA; and

(b)     FMFN did not raise questions of constitutional law that fell within the AER’s jurisdiction.

Tsleil-Waututh Nation v. Canada (Attorney General) (2017 FCA 174)

The FCA granted British Columbia leave to intervene, subject to conditions regarding the scope of its participation. The FCA cautioned that while British Columbia may have been “blasé” in approaching its motion to intervene, it must be vigilant in complying with the conditions. The FCA warned that if any were breached, the FCA panel hearing the appeal could revoke British Columbia’s status as an
intervener.

Tsleil-Waututh Nation v. Canada (Attorney General) (2017 FCA 116)

The FCA found that all of the background statements objected to, were admissible for the limited purpose of orienting the court, but not as evidence of what actually happened below. The FCA stated that evidence of what actually happened below was to be found exclusively in the record of the administrative proceedings. The FCA stated that it would seek submissions from the parties on whether reply evidence needs to be filed with respect to Aboriginal engagement and consultation activities that occurred after the Governor in Council’s decision approving the project.

Request for Regulatory Appeal by Braun Land Owners (AER Appeal No. 1869031)

The AER found that the Landowners had not established that they may be directly and adversely impacted by the AER Decision issuing the Approval. The AER held that the Landowners are not an “eligible person” under REDA section 38 and therefore dismissed the appeal request pursuant to REDA section 39(4).

Tseil-Wautuh Nation v National Energy Board (2016 FCA 219)

The Tsleil-Waututh Nation (“TWN”) appealed from three interlocutory decisions of the NEB in the context of the NEB’s review of Trans Mountain Pipeline ULC (“TM”)’s application for the construction of a pipeline project (the “Project”).

Gitxaala Nation v Canada, 2016 FCA 187

The FCA held that reliance on an administrative or regulatory tribunal can fulfill Canada’s duty to consult. However, the FCA held that because Canada planned further consultations beyond the FCA process, Canada had not inappropriately delegated or relied on the JRP process to fulfill its duty to consult. Accordingly, the FCA dismissed this alleged flaw in the consultation process, holding that Canada’s efforts were reasonable.

Canadian Natural Resources Limited Regulatory Appeal of a Reclamation Certificate Refusal Boundary Lake South Field Proceeding No. 1837447 (AER Decision 2016 ABAER 006)

The AER dismissed the appeal, finding that the did not meet the 2010 Reclamation Criteria and that CNRL’s reclamation certificate application was accordingly incomplete. The AER therefore refused to issue a reclamation certificate for the 11-9 Site, but invited CNRL to apply for a reclamation certificate once the site met the 2010 Reclamation Criteria.

NEB Releases Preliminary Timeline for Energy East

The NEB announced the release of a preliminary schedule and timeline to hear the application of Energy East Pipeline Ltd. (“Energy East”) for a 4,500 km crude oil pipeline system running from Alberta to New Brunswick (the “Energy East Project”).

Grand Rapids Pipeline GP Ltd. Compliance with Condition 11 of Decision 2014 ABAER 012 (2016 ABAER 001)

The AER cancelled the public hearing on the compliance of Grand Rapids Pipeline GP Ltd. with condition 11 from Decision 2014 ABAER 012  regarding routing issues. The AER was satisfied that the intent of condition 11 has been met by the route amendment proposed by Grand Rapids and by MEG Energy Corp.’s withdrawal of its objection. The panel therefore directed Grand Rapids to proceed with filing its proposed route amendment for a portion of line 21 under its licence.

Nexen Long Lake Pipeline Failure Environmental Protection Order

On July 17, 2015, the AER issued an environmental protection order (“EPO”) to Nexen Energy ULC (“Nexen”), after a failure on Nexen’s pipeline licence number 54767 (the “Pipeline”) which occurred on July 15, 2015. The Pipeline leaked approximately 5,000 cubic metres of emulsion consisting of 75 percent water and 25 percent bitumen into the surrounding right of way.