Government of Alberta Proposes Single Energy Regulator29-Oct-12
On October 24, 2012 the Government of Alberta introduced legislation to create a single regulator for upstream energy resource activities involving oil, gas, oilsands and coal.
Bill 2, the Responsible Energy Development Act, will create a one window approach for permitting of upstream energy projects and will oversee project development from initial application to reclamation, according to the Government’s new release.
The new Bill will create a single regulator that will assume the regulatory functions of the Energy Resources Conservation Board, which will be dissolved. It will also take on the regulatory functions of Alberta Environment and Sustainable Resource Development in relation to energy projects.
The single regulator will use a corporate structure and will be governed by a board of directors with a chief executive officer. A separate roster of “hearing commissioners” will be created for the purpose of holding regulatory hearings. It is anticipated that the single regulator will be operational by June 2013.
Although there appear to be similarities with the current regulatory regime there are several notable changes, including:
- A single regulator will be responsible for approvals pursuant to the Public Land Act, the Water Act and the Environmental Protection and Enhancement Act in respect of energy resource activities;
- The creation of a registry to allow landowners to register private surface agreements which can then be enforced;
- Removal of the explicit reference to consideration of the public interest currently found in section 3 of the Energy Resources Conservation Act (“ERCA”) in proceedings before the proposed Regulator; and
- Granting the Crown a right to file a statement in a hearing or inquiry before the Regulator without presenting a witness to speak to the statement which is not subject to a right of cross examination, unless presented by a witness.
- A repeal of legislated standing rights for landowners pursuant to section 26(2) of the ERCA. Instead, the regulator will decide (in accordance with the yet to be released rules and regulations) whether to conduct a hearing upon receiving a statement of concern from a person who may be directly and adversely affected.
Appeals from decisions of the single regulator will continue to be limited to questions of law or jurisdiction with leave from the Court of Appeal.
It is noteworthy that the Bill as currently drafted contemplates that the new regulator will not have the jurisdiction to assess the adequacy of Crown consultation associated with the rights of aboriginal peoples.
Given the early stage of the legislation and the lack of associated regulations, including rules of practice, it is too early to tell how all of the proposed changes will actually look once the Bill becomes law and the single regulator is established.
McLennan Ross will continue to monitor the Bill as it makes its way through the legislative process towards becoming law.