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government appoints a board, and the board appoints a CEO. So, while it's independent of government, it's still appointed by the government, and that has some groups concerned. A press release states the new regulator will operate at arm's length and not as part of government, with a strong, independent board of directors. "On the other hand they've given themselves the power to set the direction for the regulator and what the regulator ought to consider," says Styzcen. So while government can't direct the day-to-day operations of the new regulator, it can ensure the regulator's decisionmaking is consistent with government policy. "I don't know if that's a bad thing or not — you don't want a regulator doing anything it wants, but this is pretty explicit in giving directions to implement government policy," says Styzcen. Perhaps one of the biggest concerns relates to consultation with First Nations. As a matter of law, it's possible for tribunals to make a determination as to whether the Crown provided adequate consultation with First Nations. But with Bill 2, government clearly states in the legislation under s. 21 the new regulator will not have the authority to make determinations as to the adequacy of Crown consultations. What that means is if aboriginal groups are concerned they haven't been adequately consulted in the process, they can't take their complaint to the new regulator to make a determination. Instead they'll have to wait until a decision is made and then take that decision to court, says Olynyk. Though the new regulator may not have jurisdiction in this area, aboriginal groups are likely to participate in hearings so they aren't vulnerable to the charge they turned down the opportunity to have their concerns addressed through the regulatory process — should they consequently launch an appeal. "I don't think many aboriginal groups are happy about it because it does force them to go to court," says Olynyk. "It was open to the Government of Alberta to leave (it in); it was a conscious decision on government's part to expressly state they do not have that jurisdiction." Government is "almost inviting First Nations to start court proceedings separate from this," says Styzcen. "It will be another area ripe for challenge." It's likely the new legislation will require tweaking to deal with any gaps or oversights. So far, proposed amendments include restoring the right of Albertans to be notified and have a hearing if they would be directly affected by an energy project, as well as legislating a standard timeline for project applications. "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," says Styzcen. "Taking on a smaller project might have been a better approach than rewriting all the rules all at once." But, he adds, there's something to be said for one-stop shopping — and that is likely to appeal to almost everyone involved. IH ENHANCE YOUR EXPERTISE – AND YOUR VALUE – WITH A PROFESSIONAL LLM FROM OSGOODE. Put the focus on what interests you most. With leading academics, top practitioners and senior judges among our internationally renowned faculty, our programs offer you the unparalleled flexibility to study with a network of your peers while practising full time. Customize your studies to suit your needs, either onsite at our convenient downtown Toronto facility, or via videoconference from anywhere around the world. Osgoode 1/2 island reflecting on your specialty reflects well on you NOW ACCEPTING APPLICATIONS FOR THE 2013/2014 STARTS IN 14 OF 17 SPECIALIZATIONS: > Administrative Law > Alternative Dispute Resolution > Banking and Financial Services Law > Bankruptcy and Insolvency Law > Business Law > Civil Litigation and Dispute Resolution > Constitutional Law > Criminal Law and Procedure > Energy and Infrastructure Law > Family Law > General LLM > Intellectual Property Law > Real Property Law > Tax Law Professional legal education the way it was meant to be. To learn more or to register for an Information Session, visit www.osgoodepd.ca today. A WORLD LEADER IN LAW SCHOOL LIFELONG LEARNING w w w. c a n a d i a n law y er m a g . c o m / i n h o u s E ntitled-2 1 april 2013 • 35 13-02-27 5:55 PM

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