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|Authors:||Duncan Kenyon, Nikki Way, Andrew Read, Barend Dronkers, Benjamin Israel, Binnu Jeyakumar, Nina Lothian|
|Publish Date:||October 2016|
|PDF Download:||[Landowners' Guide] [Landowners' Primer]|
|Pipelines and Other Infrastructure|
|Abandonment and Reclamation|
|Compensation, Rights, and Hearings|
Alberta Energy Regulator
Other Alberta Departments
Energy Industry Associations
Provincial Non-profit Organizations
Surface Rights and Local Groups
Responsible Energy Development Act
AER Oil and Gas Related Legislation
AER Energy Related Legislation
Other Provincial Acts
Glossary of Terms
It may be useful for you to understand the legal requirements of oil and gas development in Alberta that this guide has referenced throughout previous sections. This appendix provides a summary of some of the main pieces of legislation that relate to the management of the oil and gas industry in Alberta. This section only provides an introduction and explanation of how these may relate to oil and gas development, and should not be used as a replacement for the acts and regulations themselves. Additionally, this section does not summarize the directives that the Alberta Energy Regulator administers and maintains.
This appendix provides a summary of some of the main pieces of legislation that relate to the management of the oil and gas industry in Alberta. The legislation is listed under the name of the main board or department responsible for implementing that piece of legislation. The summaries are intended to help you identify which legislation deals with a specific subject. However, before citing any act or regulation, please refer to the full text.
|Alberta acts and regulations are available at the Queen’s Printer Laws Online/Catalogue: http://www.qp.alberta.ca/Laws_Online.cfm|
If you are researching a government act or regulation and are uncertain about who the legislation applies to, refer to the definitions, which usually appear at the beginning of the document.
It is worth noting the significant changes to the framework in place to regulate Alberta’s oil and gas industry. Specifically, the introduction of the Responsible Energy Development Act (REDA) in 2013 set in motion the creation of a “single regulator” of all energy resource development in Alberta, known as the Alberta Energy Regulator (AER). The AER has assumed responsibilities from the Government of Alberta’s Ministry of Environment and Parks (AEP) and the former Energy Resource Conservation Board (ERCB), and is now solely responsible for regulating the full life cycle of energy sector activities. However, it is not responsible for policy development, which still remains within the purview of the Government of Alberta.
These energy resource activities include the development of oil, bitumen, natural gas, coal, and provincial pipelines. For these activities, the Regulator oversees each stage: project application, exploration, construction, development, abandonment, reclamation and remediation. The Regulator does not have jurisdiction over renewable energy development; auctioning tenure for petroleum and natural gas rights; electricity generation, distribution or pricing; or gasoline or refined petroleum products. Pipelines that cross provincial or national borders are under the jurisdiction of the National Energy Board (see Alberta Geological Survey).
This represents a significant shift from the regulatory environment prior to the creation of the AER. In the previous regime, the former ERCB was solely responsible for administrating the acts, regulations and rules that governed all energy resource development in Alberta. Simultaneously, Alberta Environment and Sustainable Resource Development was the sole body responsible for administering the acts, regulations and rules that governed environmental and development concerns, including non-energy resource development. For a single energy resource project, Alberta Environment and Sustainable Resource Development would administer relevant legislation such as the Water Act and the Environmental Protection and Enhancement Act, while the ERCB would administer legislation such as the Oil and Gas Conservation Act.
This new structure has created a need for caution while reading relevant specified enactment legislation. When referring to the Environmental Protection and Enhancement Act for example, this act is to be read in conjunction with the Responsible Energy Development Act and the rules and regulations associated with it, as all decision-making processes described in the specified enactments are modified by the rules set out in REDA, but only in respect to energy resource development.
In simpler terms, the responsibility for the Environmental Protection and Enhancement Act, the Water Act, the Public Lands Act, and Part 8 of the Mines and Minerals Act, along with all associated regulations, is split between the AER when it is a decision regarding an energy resource activity, and Alberta Environment and Parks when the decision is not related to energy resource activity. When it is under the AER’s jurisdiction, the AER will substitute its own process of application and decision-making, which in certain circumstances will be different than the application and decision- making process laid out in each specified enactment. The AER’s Rules of Practice, and
Specified Enactment (Jurisdiction) Regulation lay out much of how REDA affects these decision-making processes (see Responsible Energy Development Act). Therefore, the following summaries include all specified enactments that fall under the jurisdiction of the AER when in consideration of an energy resource activity. For other non-energy resource cases, these specified enactments are under the jurisdiction of other regulatory bodies and are not covered in this guide.
Energy resource enactments and specified enactments relevant to the AER under REDA are listed below with the responsible regulatory body. Other relevant legislation not under the AER’s mandate is also included.
Table 7. Energy resource legislation and responsible bodies
Responsible Energy Development Act
|Alberta Energy Regulator (this legislation establishes the Regulator)|
Oil and Gas Conservation Act
Oil Sands Conservation Act
|Alberta Energy Regulator (formerly Alberta Environment and Sustainable Resource Development (ESRD))|
Environmental Protection and Enhancement Act
Mines and Minerals Act Part 8
Public Lands Act
|Alberta Energy Regulator (energy resource activities only)|
Alberta Environment and Parks (for regulating non-energy resource activities)
|Surface Rights Act||Surface Rights Board|
|Mines and Minerals Act Part 4||Alberta Energy|
|Alberta Land Stewardship Act||Alberta Environment and Parks|
The Responsible Energy and Development Act (SA 2012, c R-17.3) (REDA) establishes the AER, and sets out its mandate to regulate the energy sector. The AER’s mandate is to “provide for the efficient, safe, orderly and environmentally responsible development of energy resources in Alberta”, and to regulate “the disposition and management of public lands, the protection of the environment, and the conservation and management of water, including the wise allocation and use of water” (section 2 (1)).
Under REDA, the AER is tasked with regulating:
To this end, REDA enables the Regulator to interpret “energy resource enactments” such as the Pipelines Act and the Oil Sands Conservation Act, which deal solely with regulating the energy industry. Additionally, the AER is responsible for relevant non- energy resource legislation known as “specified enactments”, such as the Public Lands Act and the Water Act (section 2 (2)). These specified enactments as they pertain to non-energy industries are under the mandate of other regulatory bodies such as Alberta Energy and Alberta Environment and Parks.
Part 1 The Alberta Energy Regulator (sections 3–29)
This section establishes the Alberta Energy Regulator, and the governance structure of its board and CEO (Division 1), and hearing commissioners (Division 2). Part 1 clarifies the position that the Regulator is not a crown agent, but instead an arm’s-length corporation empowered by the Alberta Government (section 3(1), and 4).
Division 3 outlines the general powers, duties and functions of the Regulator, including the ability to [conduct] inquiries (section 17) and hearings (section 12); [prepare] studies and reports (section 17); “ [apply] to the Court of Queen’s Bench for an order prohibiting an activity until the required approval, order or direction has been obtained” (section 19(2)); and “[enforce] compliance with a term or condition of an AER decision” (section 19 (3)). This part also specifies that REDA must act in accordance of applicable Alberta Land Stewardship Act regional plans (section 20 (1)(refer to Responsible Energy Development Act), and that the Regulator “has no jurisdiction with respect to assessing the adequacy of Crown consultation associated with the rights of aboriginal peoples as recognized and affirmed under Part II of the Constitution Act, 1982” (section 21).
Division 4 gives power to the Regulator to assume “all powers, duties and functions of officials set out in a specified enactment” in the case of all energy resource activities (section 24 (a) and (b)), and clarifies that any references to Ministers or Directors in all specified enactments are to be read as references to the Regulator (section 24 (e)).
Part 2 Applications, Hearings, Regulatory Appeals and Other Proceedings (sections 30–61)
Part 2 outlines the process where all energy resource development project applications must be made to the Regulator, including any statement of concern by a directly and adversely affected person (section 32) (see When the Application is Filed: Submitting a Statement of Concern of this guide for more information on filing a statement of concern). Division 2 outlines when the Regulator must conduct a hearing, and who is entitled to be heard at this hearing (section 35). The Regulator must make a written decision after the completion of a hearing, and give notice of its decision to the person who made the application, and anyone who participated in the hearing (section 35 (1) and (2)).
Division 3 outlines that the only appealable decisions are those to which a person would otherwise be entitled to submit a notice of appeal under EPEA, the Water Act, or the Public Lands Act if the decisions was made without a hearing; a decision made without a hearing under an energy resource enactment; or other decisions described in the regulations (section 36 (a)). Section 39 and 40 outline how a regulatory appeal must be conducted, and who can be heard at a regulatory appeal hearing. Division 4 outlines when decisions will be reconsidered by the Regulator. Division 5 describes the process to appeal to the Court of Appeal.
REDA does not require the Regulator to explain in writing on a decision what parts of the Act give it jurisdiction to make that decision, if or when proceedings took place, or what notice was given in the process of deciding (section 54).
See Alberta Energy Regulator Hearings of this guide for more information on and explanation of regulatory hearings and the Alberta Court of Appeal, and Alternative Dispute Resolution for Alternative Dispute Resolutions.
Part 3 Enforcement of Private Surface Agreements (Sections 62–66)
REDA Section 63 permits owners or occupants of land to register with the Regulator a private surface agreement between landowners and operators made after November 30, 2013 (section 62(2)). The Regulator can enforce terms or conditions of a registered private surface agreement upon request of the owner or occupant of the land in question (section 64(1)), but ultimately the Regulator determines what activities are in compliance with a private surface agreement. Making this request does not limit your ability to pursue other remedies in respect of the agreement. Terms and conditions in a private surface agreement that conflict with Part 3, such as a requirement to keep the agreement confidential, are not enforceable (section 64(2)).
Part 5 Enforcement (Sections 69–77)
Part 5 outlines the Regulator’s power of inspections and investigates, power to impose an administrative penalty, and the power to impose daily penalties.
The Alberta Energy Regulator Rules of Practice outline the specific rules regarding the AER’s decision-making process, filling in many of the details not laid out by REDA. These are explained in more detail in Sections 2 and 11, while detailing a statement of concern, the Alternative Dispute Resolution process, and the hearing process.
Part 1 of the Rules outlines how an application to the Regulator will be submitted, including the information that must be included by an operator in an application for a proposed project (section 3). The Regulator must ensure that at minimum, a public notice of application contains contact information for the applicant; a description of the project and approval sought; the legal GPS coordinates of the proposed project location; the time period for filing a statement of concern (if different than in the rules); and where interested parties can find more information about the project (section 5(1)). The Regulator cannot make a decision on an application until the time period for filing a statement of concern has elapsed (section 5.2 (1)); however, there are exceptions laid out in section 5.2 (2), and smaller or less controversial projects may be processed as a routine application before the standard 30 days.
The process for submitting a statement of concern is laid out in sections 5.3 through 6.2, including when the Regulator can disregard a statement of concern (it would be helpful to review these if you plan to submit a statement of concern). Section 7 outlines the considerations the Regulator may consider in order to hold a hearing on an application, including whether or not the application “will have minimal or adverse effect on the environment” and whether the applicant and the persons who have filed a statement of concern has “made efforts to resolve the issues in dispute directly with each other through a dispute resolution meeting or otherwise.” Sections 7.2 through 7.5 outline the minimum of who the Regulator must notify on a decision, and how the Regulator must do it.
For information on submitting a statement of concern, refer to Filing a Statement of Concern.
The AER may encourage parties to go through an Alternative Dispute Resolution (ADR) process before a project application is submitted, following the submission of an application, at the instigation of a hearing, or before the AER will consider an appeal process. The ADR process is typically voluntary but the Regulator may direct a person to attend a dispute resolution meeting. Section 7.6 outlines how the Regulator will decide who will participate, the scope of the meeting, and how and by whom the meeting will be conducted. The Regulator has the discretion to choose what form the ADR process can take: it may be a facilitated process by the Regulator, a mediation by the Regulator or a hearing commissioner, or a binding alternative dispute resolution by a hearing commissioner (section 7.6(5)). The ADR process is confidential, and all related discussions are not admissible in a hearing or other proceedings without consent from all parties (section 7.7(3)). If the process takes form of a binding alternative dispute resolution, a party of the ADR cannot request a regulatory appeal on the final decision (section 7.9 (1)).
Part 2 includes rules outlining the hearing process of the Regulator, once there is a decision to hold a hearing. Section 9 outlines who might participate, or “intervene,” in a hearing, and the criteria that they need to meet in order to do so (section 9(2)). This section also specifies when the Regulator can refuse to allow a person to participate in a hearing (section 9(3)). First, the person must include their statement of concern, or an explanation of why they did not file a statement of concern (section 9(2)(a)). They must also include how they are directly and adversely affected by the decision (the standard that typically must be met to trigger a hearing), or if they may not be directly and adversely affected, the nature of their interest in the matter, and a reason why they should be permitted to participate. The request to participate should explain how their “participation will materially assist the Regulator in deciding the matter”; how the person has “a tangible interest in the subject-matter”; how the “person’s participation will not unnecessarily delay the hearing”; and an explanation of how the “person will not repeat or duplicate evidence presented by other parties” (section 9 (2c)). The Regulator requires all of these pieces to be explained in the request to participate. Section 18 gives the Regulator has the broad discretion to hold a hearing in writing, electronically, or orally, or any combination thereof, and Section 9.1 gives the AER discretion to determine how a person will participate in the hearing. The Regulator must make a written decision, which must be published within 90 days of the conclusion of the hearing (section 28). For more information on participating in a hearing, refer to Alberta Energy Regulator Hearings of this guide.
If you are not satisfied with a decision by the AER, you may be able to file a regulatory appeal. To be eligible, you must prove that you are directly and adversely affected. Generally, regulatory appeals will only be heard on decisions that were made without a hearing (in the case of a decision under an energy enactment), or when the AER makes a decision on an appealable decision under a specified enactment (defined in REDA, section 36). Regulatory appeals cannot be made over decisions made through an alternative dispute resolution. Section 30 outlines what must be included in the form of the request for a regulatory appeal and the timeframe for submitting a request (it differs between each energy or specified enactment, refer to section 30 (3)). In order to be considered for a regulatory appeal, you must include proof that you have filed a statement of concern or an explanation why you did not file one (Section 30 (2)). For more information, see Section 11.2.
The AER may review a previous decision or order, either on its own initiative or as a result of an application for a review (section 42 of REDA). Likewise, the AER may grant a rehearing, if they consider one is required. The AER is required to publish a notice of their decision within 90 days (section 35).
The Crown can request reconsideration of an AER decision to address “potential impacts, and the means to mitigate the impacts, to Aboriginal peoples” (section 34.1). However, the Regulator has discretion whether or not it will reconsider its decision under section 42.
Part 5 outlines general matters of the AER, such as criteria for hearing commissioners, notice of hearings, and filing a motion in a hearing (Division 1). Division 2 sets out the AER’s powers to award costs, the criterion that must be met to grant an advance of funds for the hearing (section 58.1), and how a participant can claim costs (section 62(1)).
This regulation outlines general and administrative matters about the AER’s decisions under energy resource enactments (not specified enactments). It specifies that when making a decision under an energy resource enactment (such as an application, regulatory appeal, reconsideration or inquiry), the Regulator must consider the “social and economic effects of the energy resource activity”; “the effects of the energy resource activity on the environment”; and “the impact on a landowner as a result of the use of the land on which the energy resource activity is or will be located” (section 3).
This regulation outlines the AER’s authority to govern and apply all specified enactments. It begins to clearly define when the AER’s rules and decision-making authority are to be used, and when the AER either has no responsibility (such as instances where there is federal jurisdiction) or when the AER has shared responsibility (such as in instances of emergency response). Section 19 outlines instances where the specified enactments are modified by REDA.