Category Archives: Energy

Hamlet of Clyde River and Chippewas of the Thames First Nation – Impact on Alberta’s Administrative Tribunals: Alberta Energy Regulator, Alberta Utilities Commission, Natural Resources Conservation Board, National Energy Board

Presenters: Martin Ignasiak, Partner, Osler Hoskin & Harcourt LLP; Sandy Carpenter, Partner, Blake, Cassels & Graydon LLP

PDF Version: Hamlet of Clyde River and Chippewas of the Thames First Nation – Impact on Alberta’s Administrative Tribunals: Alberta Energy Regulator, Alberta Utilities Commission, Natural Resources Conservation Board, National Energy Board

Summarized by: Moira Lavoie (JD Candidate, University of Alberta)

Editor’s Note: This is the second in a series of blog posts that provides summaries of presentations from the ninth annual Energy Regulatory Forum, held in Calgary on May 28, 2018, as summarized by student attendees.

In July 2017, the Supreme Court of Canada released a set of decisions dealing with the duty to consult where an administrative agency serves as the final decision maker: Clyde River (Hamlet) v. Petroleum Geoservices Inc. 2017 SCC 40 (CanLII) and Chippewas of the Thames First Nation v Enbridge Pipelines Inc. 2017 SCC 41 (CanLII). Sandy Carpenter, counsel for the proponent in Clyde River, and Martin Ignasiak, counsel for Suncor in Chippewas, provided an overview of the two decisions and their implications for administrative agencies moving forward. In both cases the National Energy Board (NEB) was the final decision-maker on the proposed projects. The Crown was not involved in making the decision nor as a project proponent in either case.

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Electricity Aspects of the Low Carbon Policy, Including Capacity Market Developments

Editor’s Note:

On May 28, 2018, regulatory law practitioners, representatives from regulatory bodies, and academics met in Calgary for the ninth annual Energy Regulatory Forum to discuss the state of regulatory law in Canada. These discussions focused on updates on recent judicial decisions, forecasting future solutions to Canadian regulatory law, and closed with updates from major energy agencies.

This will be the first of a series of blog posts, which will provide summaries of presentations from the forum, as summarized by student attendees.

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Electricity Aspects of the Low Carbon Policy, Including Capacity Market Developments

PDF Version: Electricity Aspects of the Low Carbon Policy, Including Capacity Market Developments

Presenter: Miranda Keating Erickson (Vice-President, Markets, Alberta Electric System Operator)

Summarized by: Logan Lazurko (JD Candidate 2020, University of Calgary)

On May 28, 2018, Miranda Keating Erickson, Alberta Electric System Operator (AESO) , presented at the annual Alberta Regulators Forum. Ms. Erickson spoke on AESO’s core responsibilities, Alberta’s evolving electricity industry, the renewable energy program, and the capacity market transition.

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Wind Energy Development on Public Lands in Alberta: A Missed Opportunity

By: Allan Ingelson

PDF Version: Wind Energy Development on Public Lands in Alberta: A Missed Opportunity

To date, most of the wind energy development in Alberta has been on private lands in the southern part of the province. As a result, private landowners and wind farm developers on private lands have reaped the financial benefits from electricity production. In 2010, we posed the following question: in light of the significant revenues secured by the Alberta government for decades from leasing public lands for hydrocarbon development, why has the provincial government not yet leased public lands for wind energy development? (Allan Ingelson & Ryan Kalt, Wind Farms on Alberta Crown Lands?, International Resources Industries & Sustainability Centre, University of Calgary, IRIS Executive Brief #10-02, March 17, 2010). Eight years later the Alberta Government has not yet adopted a wind energy rights disposition system to facilitate investment and the development of wind farms on public lands in the province. Unlike the governments of Ontario, B.C., Quebec, Nova Scotia, Saskatchewan, Manitoba, and New Brunswick, the Government of Alberta has thus far missed out on the revenue-generating opportunity from leasing public lands to develop wind farms and generate electricity. Years ago, other provincial governments created and adopted wind energy lease systems for public lands, but Alberta has failed to do so and as a result wind farms are located on private lands.

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Duty to Consult in the Bigstone Pipeline Case: A Northern Gateway Sequel and TMX Prequel?

By: David. V Wright

PDF Version: Duty to Consult in the Bigstone Pipeline Case: A Northern Gateway Sequel and TMX Prequel?

Case commented on: Bigstone Cree Nation v. Nova Gas Transmission Ltd., 2018 FCA 89

While all eyes are on the Trans Mountain Expansion (TMX) pipeline saga, especially the political spats and constitutional law dimensions (clear as much of that law may be), the Federal Court of Appeal (FCA) released a decision in early May that is directly on-point with respect to legal challenges brought by Indigenous groups against the TMX project approval (consolidated by the FCA into one case). Bigstone Cree Nation v. Nova Gas Transmission Ltd. engages the same legislative scheme as the court challenges against the Northern Gateway Project (NGP), which was decided by the Court in Gitxaala Nation v. Canada, 2016 FCA 187, and at issue in TMX – i.e. the post-2012 integrated NEB Act – CEAA 2012 review and approval regime. This post has two parts. In the first part, I focus on a few notable points of law that the FCA reiterated in Bigstone. In the second part, I move on to discuss how this appears to be an important duty to consult trilogy in the making, with this latest case providing hints toward the FCA upholding the TMX Order in Council (OIC) and Certificate of Public Convenience and Necessity (CPCN or certificate). The FCA’s TMX decision is due out soon.

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Bills C-68 and C-69 and the Consideration of Sex, Gender and Other Identity Factors

By: Jennifer Koshan

PDF Version: Bills C-68 and C-69 and the Consideration of Sex, Gender and Other Identity Factors

Legislation Commented On: An Act to amend the Fisheries Act and other Acts in consequence (Bill C-68) and An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts (Bill C-69)

Over the past couple of months, several of my colleagues have posted comments on Bill C-68 and Bill C-69 (see here). My focus in this post is on one section that is common to Bills C-68 and C-69, which provides that when making a decision under the relevant Act, the decision-maker may or indeed must consider, among other things, “the intersection of sex and gender with other identity factors” (see proposed section 2.5(i) of the Fisheries Act (“may”), section 22(1)(s) of the proposed Impact Assessment Act (“must”), and sections 183(2)(c), 262(2)(c) and 298(3)(c) of the proposed Canadian Energy Regulator Act (“must”)). The preamble of Bill C-69 also states that “the Government of Canada is committed to assessing how groups of women, men and gender-diverse people may experience policies, programs and projects and to taking actions that contribute to an inclusive and democratic society and allow all Canadians to participate fully in all spheres of their lives.”

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