ABLawg

By: Amy Matychuk

PDF Version: The Alberta Energy Regulator Grants Rare Participation Rights to Three Indigenous Groups

Decision Commented On: The Alberta Energy Regulator decision on participation in the hearing of Prosper Petroleum Ltd.’s Rigel Project, March 16 2017

On March 16, 2017, the Alberta Energy Regulator (AER) held that three indigenous communities were directly and adversely affected by the Prosper Petroleum Rigel Oil Sands Project and granted these groups participation rights in the hearing on Prosper’s project application.

The AER has been publishing its participation and procedural decisions since September 2015. Since then, there have been 42 decisions dealing with claims by First Nations or Métis communities that they are directly and adversely affected by a proposed project. The AER has denied every claim until now. This decision only gives the three indigenous communities the right to participate in the hearing where the AER will decide whether to green light Prosper’s applications. It does not ensure that their lands or traditional activities will actually be protected, only that they will have the opportunity to explain how the project will affect them. However, given the pattern of decisions since 2015, this is a significant development.

Update on the Rights of Farm and Ranch Workers in Alberta

By Jennifer Koshan

On April 3, 2017

In Constitutional, Labour/Employment

By: Jennifer Koshan

PDF Version: Update on the Rights of Farm and Ranch Workers in Alberta

Legislation and Reports Commented on: Bill 6, The Enhanced Protection for Farm and Ranch Workers Act; Report to Ministers – Technical Working Group: Employment Standards Code; Report to Ministers – Technical Working Group: Labour Relations Code

Bill 6, The Enhanced Protection for Farm and Ranch Workers Act, made amendments removing the exclusion of farm and ranch workers from Alberta’s labour and employment legislation in January 2016, with varying timelines for implementation (for earlier posts on Bill 6 see here and here). Some of those timelines allowed for a consultation process to work through the details for including these workers in the relevant legislation. Technical working groups (TWGs) were established to make recommendations regarding the inclusion of farm and ranch workers in the Employment Standards Code, RSA 2000, c E-9, Labour Relations Code, RSA 2000, c L-1, and Occupational Health and Safety Act, RSA 2000, c O-2. Two of the TWGs have now reported, and this post will provide a brief summary of those reports, as well as the current state of inclusion / exclusion of farm and ranch workers in the legislation.

As a result of Bill 6, farm and ranch workers are now included in the Workers’ Compensation Act, RSA 2000, c W-15 (WCA), when they do paid work for farm or ranch employers. Unpaid workers, family members and children are not covered under the WCA unless their employer opts in. Recent statistics show that since Bill 6 came into force, 763 claims for workers compensation from agricultural workers have been processed, including 407 that involved a disabling injury.

The End of Economic Withholding in Alberta’s Electricity Market?

By Nigel Bankes

On March 30, 2017

In Energy

By: Nigel Bankes

PDF Version: The End of Economic Withholding in Alberta’s Electricity Market?

Matter Commented On: Market Surveillance Administrator, Notice to Participants and Stakeholders Re: Consultation re Revocation of Offer Behaviour Enforcement Guidelines, March 17, 2017

On March 17, 2017 Alberta’s Market Surveillance Administrator (MSA) issued a Notice to market participants in Alberta’s electricity market triggering a consultation with respect to the possible revocation of an important set of guidelines known as the Offer Behaviour Enforcement Guidelines (the OBEG Guidelines). These Guidelines provide guidance to market participants as to, inter alia, how they offer generation into Alberta’s wholesale power market (the power pool) with a view to ensuring a fair, efficient and openly competitive market (the FEOC principle). The OBEG Guidelines do not currently prohibit economic withholding. This Notice indicates that the MSA is reconsidering its position on this in light of a number of developments including the competition jurisprudence of the Alberta Utilities Commission (AUC) and proposals to supplement Alberta’s energy-only market with a capacity market. For an earlier post on the capacity market proposals see here.

The Rule of Law in Canada 150 Years After Confederation: Re-Imagining the Rule of Law and Recognizing Indigenous Peoples as Founders of Canada

By Kathleen Mahoney

On March 29, 2017

In Aboriginal, Rule of Law

By: Kathleen Mahoney

PDF Version: The Rule of Law in Canada 150 Years After Confederation: Re-Imagining the Rule of Law and Recognizing Indigenous Peoples as Founders of Canada

The 150^th anniversary of Confederation is upon us. The starting point for nation-wide celebrations will be Canada’s origin story, namely, that we are a nation founded by 2 peoples, the British and the French. Their concept of a nation, British North America Act, is held up as a monumental achievement forming the constitutional bedrock of our Canadian identity as well as the foundation for the rule of law and the free and democratic nation we believe ourselves to be.

But here’s the problem: our origin story is incomplete and misleading. In 1996, the Royal Commission on Aboriginal Peoples wrote, “A country cannot be built on a living lie.” (Vol II, at 1) My argument is that Canada’s origin story must be corrected through legislation that will recognize Canada as a country of three founding peoples, the British, the French, and the Indigenous. The rule of law is at the very root of Confederation but its application to indigenous peoples for the past 150 years has been dysfunctional, mired in racism and inequality. It must be re-imagined.

Tolling Methodologies On Federally Regulated Pipelines In Northeast British Columbia

By Admin

On March 27, 2017

In Administrative Law, Energy, Oil & Gas

By: Nigel Bankes

PDF Version: Tolling Methodologies On Federally Regulated Pipelines In Northeast British Columbia

Matters Commented On: (1) National Energy Board (NEB), Letter decision on the Application of Westcoast Energy Inc for Review of the Decision of Members Ballem and Lytle, in Report GH-003-2015 (Towerbirch Report), Respecting the Toll Treatment of the Tower Lake Section (TLS), and (2) NEB letter to NOVA Gas Transmission Ltd (NGTL), Westcoast Energy Inc (Westcoast) and Alliance Pipeline Ltd (Alliance), re Examination to Determine Whether to Undertake an Inquiry of the Tolling Methodologies, Tariff Provisions and Competition in Northeast BC, 16 March 2017 (the Tolling Methodology Process Letter).

Northeast British Columbia is an area of expanding natural gas production due to a number of significant shale gas plays in the area including Horn River, Liard, and Montney.

Historically this area of the province was first served for conventional sour gas production by Westcoast Transmission. Westcoast offered producers a bundled service including sour gas processing as well as mainline transmission down to the lower mainland and on to serve markets in the Pacific Northwest. This entire system has long been federally regulated by the National Energy Board (NEB), a practice that was legally and constitutionally confirmed by the majority judgement of the Supreme Court of Canada in Westcoast Energy Inc. v. Canada (National Energy Board), [1998] 1 SCR 322, 1998 CanLII 813 (SCC). More recently the area has also come to be served by Alliance’s “bullet pipeline” and by extension of the NGTL system from Alberta into BC. The Alliance Pipeline is a point-to-point pipeline which transports liquids rich gas from this area and northwest Alberta to the Chicago market hub. Alliance came on stream in 2000. Its construction was backed by 15 year contracts. Few shippers elected to renew and “accordingly, Alliance developed its New Services Offering (NSO), which incorporated new services and tolling methodologies on the pipeline. Alliance applied for Board approval of the NSO in 2014.” The Board’s Reasons for Decision on that matter (RH-002-2014) are available here. The NGTL system is the old NOVA intraprovincial transmission system which began life in the 1950s under the name Alberta Gas Trunk Line (AGTL) and subsequently morphed into NOVA before merging with TransCanada PipeLines (TCPL) in 1998. Historically, AGTL and NOVA were provincially regulated until brought under federal regulation in 2009: see ABlawg post here. The AGTL\NOVA business model was quite different from that of Westcoast. NOVA focused its attention on the transmission system and left the producers to assume responsibility for owning and constructing in-field processing facilities to produce pipeline quality gas for delivery to the AGTL\NOVA system.

The result of these developments is that the natural gas transmission scene in northeast BC no longer looks like a natural monopoly, and has not for some long time. Instead, there is competition for natural gas production and competition to fill transmission systems with gas. No pipeline system feels this more acutely than the NGTL system and its sister, the TCPL mainline, which needs additional volumes of gas to make up for the declines in conventional gas production in the western Canadian Sedimentary Basin (WCSB).