Canadian Lawyer InHouse

Apr/May 2013

Legal news and trends for Canadian in-house counsel and c-suite executives

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You wonder if the government tried to do too much — not just (create) a new regulator, but also try to deal with things like standing and getting rid of the idea of public interest and changing rules around appeals. Michael Styzcen, Davis LLP "It's a pretty complex undertaking," says John Olynyk, head of Lawson Lundell's aboriginal law Group and a member of the firm's energy law, environmental law, and climate change groups. "One of the reasons the Alberta government is interested in streamlining things is because there are tens of thousands of energy-related approvals granted every year — it doesn't take a whole lot of inefficiency to add up to a big problem just given the volume." Bill 2 means there would be one stop for project approvals. "(Government and industry) feel provisions related to a single energy regulator provide those stakeholders with more certainty," says Pat Burgess, head of the Calgary energy infrastructure and mining industry group with Gowling Lafleur Henderson LLP. The idea is this will speed up the process of project approvals for industry participants. It will help industry engaged in projects — as well as opponents to those projects —  to better identify their issues up front, prior to projects starting. Currently, when there are problems or perceived problems, those are addressed while the projects are already in course. The legislation could provide more certainty in terms of how and when oil and gas companies can get their petroleum products to coastlines. "Without certainty investors and pricing become issues," says Burgess. "Certainty is very important for getting projects done and moving things forward." One of the concerns a proponent of an energy project has is that "you go down to 34 • a pr il 2013 INHOUSE the ERCB and have a public hearing on an oil sands project and are beaten to death by various parties and get approval with a bunch of conditions," says Michael Styczen, an associate with Davis LLP in Calgary, practicing corporate and commercial law in the energy sector. Then the proponent has to get a number of smaller approvals from different regulators, who in some cases may want to go over the whole approval process again. The substance of the law isn't changing; approvals will still be made on the same basis. "What's changing is government is monkeying around with the process by which approvals would be granted," says Styczen. While they're consolidating processes under a single regulator, this will also involve writing new rules and new processes. "I don't know if I'd want to be the first energy project to go under a new process like this," says Styzcen. "In the past, even if it was complicated, at least the rules were well known and tested in the courts." A new regulator with a new mandate and new rules is ripe for various stakeholders taking a run at all sorts of procedures. "One thing they haven't done is set out standard timeframes for getting approvals," added Styzcen. Currently it can take a long time to get an approval, "but even more frustrating is you don't know how long it could take —  six weeks or six years." When the federal government rewrote the rules around pipeline approvals, it required approvals to be given in 18 months to two years. "That's something the provincial government hasn't done," says Styzcen. For those opposed to the legislation, one of the concerns is under the current system they have a number of places to go for an appeal. Under the new legislation, there's one single point of contact for appeals. So, if a landowner believes he hasn't been rightly compensated, he'd have to ask for reconsideration of that decision by the same board that made the decision in the first place. On the plus side, the act will allow private landowners to register their agreements with the new regulator, which today are considered private documents. "Today those agreements cannot be enforced by the ERCB," says Olynyk. "It doesn't have jurisdiction." Not only will landowners be able to register these agreements with the new regulator, but the regulator can also enforce those agreements, which gives landowners a certain level of protection, he added. Another concern is the new legislation limits who has standing at the board. Currently, anyone affected by a project would have the right to appear at the proceedings; under the new legislation this will be limited to those who are "directly and adversely affected." "I'm guessing that might cut back on public interest litigants," says Styzcen. "Under the old rules it had been hashed out and people knew who had standing and who didn't have standing." Not having all of those voices at the table might lead to litigation, he added. "Under the old act, one of the primary goals of the regulator was to consider whether the project was in the public interest," says Styzcen. In the new act, the language has changed. "The new regulator's mandate is significantly narrower under section 2 of the act. I thought it was an interesting change that they took out the words 'public interest' as a primary consideration of the regulator. I wonder if the objective is to foster energy projects and push projects along, and provide a process that's favourable to industry." It's a subtle change, he added, but it changes the focus of the regulator. Another concern is that the way the new authority is set up, the provincial

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