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Occasional Papers

A Critical Exploration of the South Saskatchewan Regional Plan in Alberta

by Sara L. Jaremko, 2016
57 pp. Occasional Paper #54. $20.00 (softcover)

The Government of Alberta has in recent years been implementing comprehensive land use planning through policy and legislation. This paper will be a critical exploration of the South Saskatchewan Regional Plan (SSRP) under the Alberta Land and Stewardship Act. It will first bring the SSRP into a practical view by describing the South Saskatchewan region, discussing the relevant history of integrated landscape planning, provide an overview of the policy framework, and review the legal nature of the SSRP itself, including its structure and binding nature and interaction with other regulatory management. It will then discuss the SSRP’s status: its effective date being at September 1, 2014, amendments made to the final SSRP, and describe matters remaining to be completed for implementation. It will then discuss the effect the SSRP has had thus far. It will finally provide critical evaluation revisiting the controversy associated with land use planning in general, outlining the plan’s praise and criticism, in light of cumulative effects and other management objectives, refer to previous evaluation criteria, and provide analysis.


Alberta First Nations Consultation & Accommodation Handbook – 
Updated to 2016

by David Laidlaw, 2016
129 pp. Occasional Paper #53. $25 (softcover)

This is an Update to our Alberta First Nations Consultation & Accommodation Handbook published on March 30, 2014 as CIRL Occasional Paper #44 (Handbook). The Handbook was a critical assessment of Alberta’s approach to satisfying the Crown’s duty to consult and accommodate aboriginal people in Alberta under The Government of Alberta’s Policy on Consultation with First Nations on Land and Natural Resource Management, 2013 (Consultation Policy). In the Handbook we reviewed the Consultation Policy, associated legislation and draft Corporate Guidelines as they existed at March 30, 2014.

In this Update, we analyze the finalized guidelines, The Government of Alberta’s Guidelines on Consultation with First Nations on Land and Natural Resource Management (July 28, 2014) (Guidelines) together with relevant developments since March 30, 2014.


Bill C-38 and the Evolution of the National Energy Board: The Changing Role 
of the National Energy Board from 1959 to 2015

by Sonya Savage, 2016
65 pp. Occasional Paper #52. $20.00 (softcover)

This paper will explore how the legislative changes and the torqued political debate surrounding the development and transportation of crude oil is changing the role of the National Energy Board (NEB). It will examine how environmental activists strategically targeted the hearing processes of the NEB and how the Federal government responded with Bill C-38, a “legislative fix” to this activity. It will consider how Bill C-38, in turn, led to more demands for public consultation in the process, parallel provincial processes, more litigation and judicial review and a growing lack of public confidence in the integrity of the process and of the NEB itself. Finally, it will explore how all of this may have led to an evolving activist regulator, sensitive to public opinion far and beyond its role as originally conceived.

This paper will examine the historical roots of the NEB, its role over the past 56 years and how that has evolved as a result of Bill C-38 amendments and the current political storm. It will examine Bill C-38 and conclude that those changes, in and of themselves, did not fundamentally change how the NEB conducts its business or its independence. Instead, the evolving role of the NEB is more connected to building public trust in its role as a regulator and repairing a public perception of a gutted process than to anything that Bill C-38 itself changed. All of this will be examined through four case studies of oil pipeline projects before the Board before and after the 2012 amendments.


Regulating Hydraulic Fracturing: Regulatory Recourse for 
Subsurface Communication

by Kimberly Howard, 2015
46 pp. Occasional Paper #51. $20.00 (softcover)

This paper provides an overview of the legal framework for the regulation of hydraulic fracturing in Alberta and examines the potential regulatory options and liability for subsurface communication caused by hydraulic fracturing activities. Specifically, this paper examines the jurisdiction of the Alberta Energy Regulator (AER) to: (i) order that operations be shut-in or suspended due to communication, (ii) impose obligations on industry to provide notification of hydraulic fracturing activities, including subsurface communication, (iii) order mandatory commingling orders, (iv) encourage production sharing agreements, and (v) impose testing, monitoring, production controls and reporting obligations.

With the widespread use of multistage horizontal hydraulic fracturing, disputes related to subsurface communication will continue to be raised with the AER and in the courts. Thus far the AER has taken a risk management approach through monitoring and testing requirements. Generally, the AER has permitted development to occur by endorsing an approach which relies on the known and inevitable consequences of mining and recovering the minerals. This approach has been justified by the AER on the basis that any production of another’s minerals does not result in irreparable harm. The harm or damaged caused can be identified, quantified and compensation paid.


Linking Emissions Trading Schemes: Analysis and Recommendations for 
EU-Australia and Quebec-California Linkages
by Rolandas Vaiciulis, 2015
63 pp. Occasional Paper #50. $20.00 (softcover)

Since the introduction of international emissions trading by the Kyoto Protocol, the emissions trading mechanism used to reduce greenhouse gas (GHG) emissions appears to regain attention at both, the national and the regional levels. Currently, the European Union (EU), Australia, Japan, some United States (US) states and Canadian provinces, New Zealand, South Korea and China, have already established or are currently developing their emissions trading schemes (ETSs). Considerations for establishing further ETSs are also in progress in Brazil, Chile, Mexico, Ukraine and Turkey.

This paper aims at examining the following question: Will the EU-Australia and Quebec-California be able to achieve an effective linkage with each other? In addressing this question, this paper will first discuss design elements that were identified in the literature review as crucial for the linking of different ETSs, and then consider how each design feature is addressed by the potential linking partners, identifying potential incompatibilities, if any, and outlining what adjustments, if any, might be made to facilitate effective linkages between them.


Calibrating Liquefied Natural Gas Export Life Cycle Assessment: 
Accounting for Legal Boundaries and Post-Export Markets
by Prof. James Coleman, Dr. Adebola S. Kasumu, Jeanne Liendo, Vivian Li, and Dr. Sarah M. Jordaan, 2015.
36 pp. Occasional Paper #49. $20.00 (softcover)

The climate impact of liquefied natural gas (LNG) export from North America is one of the most pressing questions for Canadian and world energy policy today. This paper performs the first life cycle assessment (LCA) of the greenhouse gas emissions from LNG exports from Canada, assuming that importing countries use the natural gas for electricity generation. It shows that the climate impact of LNG depends on
where it is sent. If LNG from Canada displaces electricity in coal-dependent countries, it will likely lower global greenhouse gas emissions. If it
displaces electricity from countries that rely on low carbon sources such as hydroelectricity and nuclear power, it will likely increase global emissions. A broad suite of policy and regulatory measures is discussed for reducing greenhouse gas emissions due to LNG export, from life cycle regulation to facility-level emissions management.


Biodiversity and Conservation Offsets: A Guide for Albertans
by David W. Poulton, 2015.
29 pp. Occasional Paper #48. $15.00 (softcover)

The purpose of this paper is to introduce Albertans to one of these new tools, conservation offsets. Under an offset system the negative environmental impacts of land or resource development may be compensated for by the intentional creation of corresponding positive impacts. This paper describes this tool and the approach that Alberta is taking in policy development respecting offsets. It also offers some comments on the strengths and weaknesses of the approach Alberta is taking.


The Nuclear Fuel Waste Act and Canada’s Plan for the
Long-Term Management of its Nuclear Fuel Waste

by Ramona Sladic, 2015.
26 pp. Occasional Paper #47. $15.00 (softcover)

In 2002, the Government of Canada passed the Nuclear Fuel Waste Act (NFWA) which came into force on November 15 of the same year. The purpose of the NFWA is to “provide a framework to enable the Governor-in-Council to make, from the proposals of the waste management organization, a decision on the management of nuclear fuel waste that is based on a comprehensive, integrated and economically sound approach for Canada.”

This paper will address Canada’s plan for the long-term management of its nuclear fuel waste. In addition to exploring the plan itself, the specific issues for analysis and discussion include a review of the key provisions of the NFWA, which serve as the legislative underpinnings for the development of Canada’s plan; a discussion of the waste management organization created pursuant to the NFWA; identification of the substantive progress that has been made in satisfying the intentions of the NFWA; a review of the legal challenges that have been brought forward involving the NFWA, the waste management organization, and the plan to date; and a hypothetical challenge that could be made to Canada’s plan.


Environmental Sentencing Policy in Alberta: A Critical Review

by Chilenye Nwapi, 2015.
32 pp. Occasional Paper #46. $15.00 (softcover)

This paper reviews the sentencing policy in environmental cases in Alberta, Canada with a view to identifying the underlying theoretical justifications, the prevailing sentencing options and the principles governing their application, and the factors that influence environmental sentencing generally in Alberta. The ultimate goal is to assess the application of the sentencing principles and factors to determine their usefulness and potential effectiveness. After analyzing the legal nature of environmental offences, the paper proceeds to analyze the theories informing environmental sentencing in Alberta. This is followed by a discussion of the available environmental sentencing options in Alberta and lastly by an analysis of the factors considered in the application of those options. A major conclusion of this paper is that there appears to be a deliberate policy towards increased fines – both traditional fines (fines simpliciter) and non-traditional fines (such as fines imposed in the nature of creative sentencing). This policy reflects increasing awareness in Alberta of the need to toughen up on environmental criminals.


Alberta's CO2 Reduction Strategy - Assessing the Environmental
Integrity of Emissions Trading Schemes

by Ana Maria Radu, 2014.
33 pp. Occasional Paper #45. $15.00 (softcover)

National and regional emission trading schemes (ETSs) for greenhouse gas (GHG) emissions represent an essential policy response to climate change around the world. Witnessing a proliferation of carbon pricing schemes in different jurisdictions, the possibility of further reducing compliance costs by allowing allowances to be traded, not just within, the systems become reality. This is commonly referred as linking the systems. This process is not risk-free; as a matter of fact ill-considered links may be counter-productive, to the point that they might undercut the efforts to reduce GHG emissions. This paper signals the need to identify such ill links and points out the danger zones when linking ETSs. The paper proposes a criteria-based analysis in order to determine the degree of environmental integrity.


Alberta First Nations Consultation & Accommodation Handbook

by David Laidlaw and Monique Passelac-Ross, 2014.
118 pp. Occasional Paper #44. $35.00 (softcover)

Alberta has had two attempts to develop a First Nation’s consultation and accommodation process. The first in 2005 was controversial for First Nations and frustrating for resource companies. The First Nation Consultation Policy (2013) was released on August 16, 2013. There were some conceptual improvements such as the centralization of First Nation Consultation and a consultation levy on resource companies. There are notable failures including the process of developing the new policy and the continued misunderstanding of the governing Treaties. Aboriginal consultation in Alberta after the new Policy will still be a frustrating, complicated, and expensive exercise despite government, industry, First Nations’ and public hopes. It need not be so. In this report, this latest attempt is described and critiqued with best practices from other jurisdiction suggested to correct the flaws.


Environmental Assessment of Nuclear Power Plants in Alberta
by Astrid Kalkbrenner, 2013.
41 pp. Occasional Paper #43. $20.00 (softcover)

This paper focuses on the nuclear licensing process which is the environmental impact assessment. In the Alberta context, the jurisdictional power over environmental impact assessments and provincial legislation are analyzed to enhance the understanding of potential conflicts that arise if plans to construct a nuclear power plant in Alberta become real. Although, this approach seems to be of a theoretical nature at present, during nuclear conferences questions centering on the division of power and its consequences were raised by the oil sands industry. Consequently, there is a demand for clarification which this paper attempts to address.


Legal Obstacles to the Development of Geothermal Energy in Alberta
by Grant Van Hal, 2013.
41 pp. Occasional Paper #42. $20.00 (softcover)

Alberta lacks even basic legislation that would allow developers to obtain the permits and leases needed to develop the provinces substantial geothermal resources. Creating the requisite legislative pathway would help the province meet its goal to diversify its energy supply, while simultaneously bringing the province closer to achieving its GHG reduction targets. There are no jurisdictional barriers that would prevent the province from implementing the required legislation. In fact, much of the work could be accomplished through the passage of mere regulation.


Strategies for Cleaning Up Contaminated Sites in Alberta
by Robert K. Omura, 2013.
101 pp. Occasional Paper #41. $25.00 (softcover)

A major obstacle to the goal of sustainable urban development has been the ongoing presence of historic contamination. No one wants to live, work or play next to contaminated land. These so-called brownfield sites often remain abandoned and underutilized lands that could be put to higher or better uses if the longstanding problem of contamination is addressed. This paper identifies key factors underlying the brownfield market failure and discusses ways to correct the market failure. The paper looks at improved information through capacity building, fixing structural problems associated with the regulatory system, such as the way liability rules operate within environmental legislation, and a sustainable development approach through greater municipal action. It attempts to integrate current theories of liability with the regulatory framework under federal, provincial and municipal law, and discusses the rapid expansion of municipal activism as a good approach to an effective brownfield strategy.


A Review of the Environmental Enforcement Culture in Alberta
in Relation to the Oil Sands
by Dr. Chilenye Nwapi, 2013.
49 pp. Occasional Paper #40. $20.00 (softcover)

This paper reviews the environmental enforcement culture in Alberta with a view to ascertaining what mechanisms are in place in Alberta for responding to the commission of environmental offences in the context of the oil sands and the extent to which those mechanisms are being used. The paper identifies and discusses a number of enforcement mechanisms available in Alberta, including administrative penalties, orders, warnings and prosecutions. The paper observes that there is a clear policy towards increased penalties and that creative sentencing is now the norm in the enforcement of environmental offences in Alberta. Lastly, the paper finds that the legal and policy framework for environmental enforcement in Alberta has been offender-focused, with little attention being paid to the plight of victims of environmental offences.


Using Strategic Environmental Assessments to Guide Oil and Gas
Exploration Decisions in the Beaufort Sea: Lessons Learned from
Atlantic Canada

by Meinhard Doelle, Nigel Bankes and Louie Porta, 2012.
27 pp. Occasional Paper #39. $15.00 (softcover)

The 21st century has seen a renewed interest in developing Canadian Arctic oil and gas reserves. Historically, hydrocarbon development efforts focused on land or shallow water hydrocarbon potential. Since 2008 the industry has shifted its attention to the deepwater areas of the Canadian Beaufort Sea — a region that to date has experienced limited exploration and no development. In the wake of the huge Macondo oil spill in the Gulf of Mexico, Canada's National Energy Board (NEB) initiated a public Review of Offshore Drilling in the Canadian Arctic to ensure the regulatory system was prepared to handle the unique challenges of Arctic drilling. There was no similar examination of the adequacy and appropriateness of Canada's Arctic oil and gas rights issuance process. In this paper we argue that a key weakness in the current procedure is the failure of the government to apply state of the art Strategic Environmental Assessments (SEAs) as part of deciding where and when to open new areas to potential oil and gas drilling activities.


Sharing Land Stewardship in Alberta: The Role of Aboriginal Peoples
by David Laidlaw and Monique M. Passelac-Ross, 2012.
53 pp. Occasional Paper #38. $20.00 (softcover)

This paper explores one possibility of revitalizing the relationship between First Nations, the people of Alberta and the lands and waters of Alberta that we all care for. To further this, we propose involving First Nations in the joint management of their traditional lands and resources under formal Joint Stewardship Agreements. We introduce the concept of co-management, which is a means of decentralizing decision-making over land use and resource management from government to local communities. We provide a brief overview of the literature on co-management.


Assessing Where Renewable Energy and Energy Efficiency
Stand in Alberta Policy and Government Organization

by Michael M. Wenig, 2011.
40 pp. Occasional Paper #37. $15.00 (softcover)

Alberta has committed to “set a table” for renewable energy and to “encourage” energy efficiency and conservation. This commitment begs the questions of how fast or much these two sectors are expected to progress and what specific roles the province will play in promoting that progress. This paper addresses these questions by considering the evolution of provincial policy-making with respect to these two sectors and what governmental institutions have been created to specifically address the sectors.


The "Public Interest" in Section 3 of Alberta's Energy Resources
Conservation Act
: Where Do We Stand and Where Do We Go From Here?

by Cecilia A. Low, 2011.
41 pp. Occasional Paper #36. $15.00 (softcover)

Section 3 of the Energy Resources Conservation Act (ERCA) requires the Energy Resources Conservation Board (ERCB) to consider whether a proposed energy resource project is "in the public interest" having regard to three factors, the social and economic effects of the project and its impact on the environment. Although the concept is fundamental to the discharge of the Board's mandate, the phrase "in the public interest" is not defined in the ERCA.

Since little has been written about section 3 of the ERCA and since Alberta Energy propose to change to how the public interest is engaged in the course of regulation of the upstream oil and gas industry, this paper sets out to assess the current state of the interpretation and application of that provision by the ERCB against the background of relevant social science literature on the topic of the public interest and applicable court decisions. The paper concludes with a series of recommendations for the way forward.


Water Stewardship in the Lower Athabasca River: Is the
Alberta Government Paying Attention to Aboriginal Rights to Water?

by Monique Passelac-Ross and Karin Buss, 2011.
61 pp. Occasional Paper #35. $20.00 (softcover)

This paper examines the status of aboriginal rights to water in the Lower Athabasca River Basin. It starts from the premise that Aboriginal peoples living in the Athabasca oil sands region have constitutionally protected water rights, and inquires whether or not these rights are acknowledged and protected by the Alberta government.  


Public Participation in Energy and Natural Resources
Development: A Theory and Criteria for Evaluation
by Rebeca Macias, 2010.
52 pp. Occasional Paper #34. $20.00 (softcover)

The paper focuses on the theoretical foundations of public participation in environmental decision-making and natural resources management, and develops general criteria to assess the effectiveness of both processes and results of participatory proceedings. The foundations of public participation and the justifications for its application are outlined. Habermas' theory of communicative action is used to describe an ideal model of public participation. The author's concepts of fairness and competence are used to shape the notion of effective participation. The study concludes that public participation is one important instrument to improve public policies related to environmental conservation and natural resources management. The proposed criteria incorporate ideas such as previous consensus on the rules of the debate, the increase of citizens' social and political capital, the enhancement of participants' autonomy, and the use of traditional and community knowledge. The appendix includes an analysis of the European Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention), based on the criteria proposed in the paper.


Alberta's Water for Life and Recent Trends in International Law
by J. Owen Saunders and Nickie Vlavianos, 2010.
23 pp. Occasional Paper #33. $15.00 (softcover)  

In 2003, after a period of extended public consultation, the Government of Alberta introduced its Water for Life strategy. The strategy was subsequently updated and refined in 2008 and 2009, and has been the subject of extensive comment elsewhere. While the strategy has received significant attention, this paper addresses one aspect of Water for Life that has not been the subject of comment to date - the intersection of Water for Life with recent trends in international law. 


Institutional Relationships and Alberta's Water for Life Strategy
by J. Owen Saunders, 2010.
31 pp. Occasional Paper #32. $15.00 (softcover)

When it was introduced by the provincial government in November 2003, the Water for Life strategy represented a potentially bold attempt to mark Alberta as the Canadian leader in modern approaches to water management. Indeed, at the time, the government described the strategy as the "most comprehensive of its kind in Canada." The strategy came against the backdrop of increasing stresses on the province's water resources and a recently-completed overhaul of the cornerstone of water management legislation with the introduction in 1996 of a new Water Act. The Act has been the subject of extensive comment elsewhere, but, in summary, it attempted to both preserve the essential core of the province's existing water management regime - which was built on the twin principles of prior allocation and "first-in-time, first-in-right" - and to incorporate modern concepts and tools of water management, as reflected in the foundational concept of ecosystem integrity and protection.

The paper begins with an overview of the Water for Life strategy, as reflected both in its original version and in subsequent refinements in later years. It then describes briefly the institutional context for water management in Alberta, focusing on the provincial agencies that have the primary ongoing responsibilities for water management in the province. The paper then turns to the description of some key planning initiatives undertaken by the province that are relevant to Water for Life, including both broader land-use planning exercises and planning efforts directed at water management more narrowly, together with a discussion of the interrelationship between these exercises and the Water for Life strategy. The final section provides some brief conclusions.


Solar Rights and Renewable Energy in Alberta
by Julie Krivitsky, 2010.
23 pp. Occasional Paper #31. $10.00 (softcover)

In 2008 the Government of Alberta introduced a strategy to address the challenge of climate change. One of the measures in the strategy envisages greening of energy production through the introduction of more sustainable ways of its production and simultaneous increase in the use of renewable sources of energy. Renewable sources of energy include, but are not limited to, such natural phenomena as the sun, wind, and tides.

This paper focuses on solar energy for a number of reasons. Firstly, it is one of the most versatile and arguably the cleanest of all the renewable energy sources. Secondly, Alberta enjoys considerable solar potential compared to many other jurisdictions. Finally, the use of this abundant resource can help to achieve the goal of greening energy production by reducing greenhouse gas emissions, thus promoting the objectives set out in Alberta's 2008 Climate Change Strategy. 


Wind Power and Renewable Energy in Alberta
by Julie Krivitsky, 2010.
28 pp. Occasional Paper #30. $10.00 (softcover)

In 2008 the Government of Alberta proposed a strategy addressing the challenge of climate change. One of the measures proposed in this strategy envisages greening of energy production by the introduction of more sustainable ways of its production and a simultaneous increase in the use of renewable sources of energy. Such sources include, but are not limited to, the energy derived from such natural phenomena as the sun, wind, and tides. This paper focuses on wind as an alternative source of energy for a number of reasons. Firstly, it is one of the cleanest of the renewable energy sources. Secondly, the wind regime in Alberta is particularly abundant compared to many other jurisdictions. Finally, using wind as a source of energy can help to achieve the goal of greening energy production by reducing greenhouse gas emissions, thus promoting the objectives set out in Alberta's 2008 Climate Change Strategy and helping to meet the continually growing demand for electricity in the province.

This paper seeks to describe the regulatory framework governing wind power plants in Alberta and assess the framework's adequacy. The paper is organized as follows. A few preliminary comments about the nature of electricity and the main institutions regulating the electricity industry in Alberta are presented in Section 2. Section 3 reviews characteristics of wind as a source of energy. The regulatory framework governing wind power plants is outlined in Section 4. Section 5 analyses the adequacy of this framework, and Section 6 provides some concluding remarks.


Defining Aboriginal Rights to Water in Alberta: Do
They Still "Exist"? How Extensive are They?
by Monique M. Passelac-Ross and Christina M. Smith, 2010.
41 pp. Occasional Paper #29. $15.00 (softcover)

This report explores some fundamental questions in relation to the water rights of Aboriginal peoples in Alberta. Aboriginal peoples have long asserted that water is essential to life. They view water as the lifeblood of the earth. The perceived threat to the health and integrity of river systems is a threat to their own integrity and survival. They share growing concerns over the future of water supplies in Alberta with non-Aboriginal peoples. They affirm that they have fundamental rights with respect to water, along with responsibilities to ensure that the integrity of waters is protected, responsibilities which they want to share with government and all water users.

There is uncertainty concerning the nature and extent of Aboriginal rights to water, both on reserve and off-reserve. The report addresses only some of the questions that arise in connection with this subject, namely the origin, nature and scope of the rights. The main question that we seek to answer is whether Aboriginal peoples in Alberta can claim rights to water, and if so, what is the status of these rights by comparison with other provincially recognized water rights.


Understanding Local Albertans' Roles in Watershed
Planning - Will the Real Blueprint Please Step Forward?
by Michael M. Wenig, 2010.
28 pp. Occasional Paper #28. $15.00 (softcover)

Alberta's Water for Life Strategy has generally spurred expectations for the development of "watershed management plans" by provincially-sanctioned local community organizations known as "watershed protection and advisory councils" (WPACs). This paper analyses how WPACs' roles have been defined in law and in various provincial policy documents and advisory reports. The analysis focuses particularly on provincial direction as to the extent and scope of WPACs' decision-making authority and on the scope, content, and implementation of the WPACs' watershed management plans. While having broad-based support, WPACs have little provincial direction as to what they must actually accomplish. In some sense, the new land use framework sidesteps these uncertainties by providing a legislative framework for regional planning and for integrating those plans with governmental decision-making across the land and resource management spectra. However, this newer provincial initiative raises even more uncertainty about WPACs' roles.


Looking Through Cloudy Waters - A Historical Analysis
of the Legislative Declarations of Crown Water Rights in Alberta
by Michael M. Wenig, 2010.
16 pp. Occasional Paper #27. $10.00 (softcover)

This paper analyses a keystone of the legislative framework for water rights - the legislative declarations of government or Crown rights to water in Alberta. These declarations originated in the first water rights legislation adopted by Parliament in the late 1800s, but they have been changed numerous times, resulting in a dynamic, complex and arguably confusing evolution. Viewed both individually and collectively through their evolutionary history, these rights declarations arguably raise more questions than they answer. Chief among these questions are: What purpose have they served? What non-legislative public or private rights and public duties have they recognized? Are either the declared rights, or the private rights issued from Crown rights, in the nature of "property"? And finally, is there any current legal effect of the widely varying Crown rights declarations over time? If nothing else, the numerous legislative formulations of this declaration over the years indicate that the concept of Crown rights to water is itself murky and, thus, should be clarified as part of any effort to reform the allocation system.


The Provincial Energy Strategy - An Integrated Approach:
The Challenges Raised by a Two-Board Model for Energy
and Utility Regulation

by Cecilia A. Low, 2009.
34 pp. Occasional Paper #26. $15.00 (softcover)

The government of Alberta introduced the Provincial Energy Strategy in 2008. A key element of the Strategy is integration in planning and decision-making across energy sectors and across energy, the environment and the economy. At the beginning of 2008, the government of Alberta moved away from the single board approach to energy and utility regulation back to a two-board model when it re-created the Energy Resources Conservation Board (ERCB) and created the Alberta Utilities Commission (AUC). The two-board model for energy and utility regulation as established by current legislation will present challenges to the implementation of the Provincial Energy Strategy.

In this paper, the author provides an assessment of the respective roles of the ERCB and the AUC as defined by current legislation as well as an assessment of the roles of the boards in the context of the Provincial Energy Strategy. In particular, the author identifies areas where challenges may arise as well as suggestions for how the two-board model for energy regulation in Alberta can be utilized to implement the Energy Strategy.


Energy and Utility Regulation in Alberta: Like Oil and Water?
by Cecilia A. Low, 2009.
40 pp. Occasional Paper #25. $15.00 (softcover)

Since establishing the Alberta Board of Public Utility Commissioners in 1915, Alberta's approach to energy resource and utility regulation has evolved in response to various pressures and perceived needs. For the most part, regulation of the energy resource and utility sectors has been carried out separately and independently by sector specific entities. Energy resource and utility regulation continued to be carried out independently one from the other even during the period of time when those functions were merged under the Alberta Energy and Utilities Board (AEUB).

At the end of 2007, the AEUB was dissolved and separate energy resource and utilities regulators - the Energy Resources Conservation Board and the Alberta Utilities Commission - were reconstituted. This most recent evolutionary step in energy resource and utility regulation in Alberta raises many questions and while this paper does not provide conclusive answers, it is intended to provide a basis for better understanding the respective roles of energy and utility regulation in Alberta. To that end, this paper begins with a brief, high level discussion of the theory of regulation then provides the following: an overview of the history of energy resource and utility regulation in Alberta; a description of key phases in energy resource and utility regulation in Alberta; an assessment of the significant characteristics of the energy resource and utility regulators as they existed at the time of the 1995 merger; an examination of the policy and regulatory context for the 1995 merger of the PUB and the ERCB as well as for the 2008 split of the AEUB; and, finally, a discussion of some areas of potential strength and weakness in the current two-board model.


Alberta's 2008 Approach to Climate Change: A Step Forward?
by Jenette Poschwatta, 2008.
54 pp. Occasional Paper #24. $20.00 (softcover)

Climate change is upon us and it poses considerable challenges. In January 2008, Alberta released its new action plan (Alberta's 2008 Climate Change Strategy) to address the problem of climate change. The focus of the paper is an analysis of the Alberta approach and asks whether the approach is adequate to the challenge. The paper identifies several key deficiencies including ambivalent targets, undeveloped actions and a lack of integration with existing climate legislation. Finally, the paper cautions that the Alberta approach to the problem of climate change may lead to unintended consequences.


Access to Forest Lands and Resources: The Case of
Aboriginal Peoples in Alberta

by Monique Passelac-Ross, 2008.
30 pp. Occasional Paper #23. $15.00 (softcover)

The development of natural resources is central to the province of Alberta's economic growth and prosperity. Most of these resources - conventional oil and gas, oil sands, forests, coal, water - are owned by the province. They are managed under a highly centralized resource management regime that provides relatively few opportunities for local communities to influence decision-making. This is notably the case with respect to Crown forests, 89% of which are owned by the provincial government and allocated under long-term forest tenures to large integrated forest companies. The paper focuses on the situation of Aboriginal communities located within the commercial forest area of the province. It seeks to assess the extent and scope of their access to Crown forest lands.


Developing a "Comprehensive Energy Strategy" with
a Capital "C"

by Michael M. Wenig and Jenette Poschwatta, 2008.
41 pp. Occasional Paper #22. $15.00 (softcover)

Alberta policy makers are developing a "comprehensive energy strategy" which is sorely needed to guide Alberta through the many energy crossroads that it now faces. This paper focuses on the strategy’s "comprehensive" aspect, by analysing why the energy strategy needs to be "comprehensive", what factors must be considered in developing the strategy, and what components must be included in the strategy, to make it "comprehensive". Our analysis of "comprehensiveness" stems from an energy systems perspective, which attempts to account for all energy forms and all other physical and institutional energy system parameters, and the linkages among those energy forms and system parameters. After identifying these energy system characteristics, and several fundamental policy issues that need to be addressed, the paper cautions that, because of the inherent complexities, the development of a "comprehensive" energy strategy requires a continuous, iterative process and a special focus on cross-cutting tools.


The Legislative and Regulatory Framework for Oil Sands
Development in Alberta: A Detailed Review and Analysis

by Nickie Vlavianos, 2007.
75 pp. Occasional Paper #21. $20.00 (softcover)

This paper provides a detailed review of the current provincial legislative and regulatory framework for oil sands development in Alberta. It does so by moving through the three key stages in the current process - the disposition of rights to develop oil sands; the disposition of rights to access the surface of public land; and the oil sands project review and approval stage. The paper identifies key issues and problem areas that arise at each stage. Many of these issues relate to the lack of clarity, certainty and transparency with respect to certain key decision-making points in the current development process.


Is "Conservation" Worth Conserving? - The Implications
of Alberta's "Energy Resource Conservation" Mandate
for Renewable Energy

by Michael M. Wenig and Michal C. Moore, 2007.
35 pp. Occasional Paper #20. $15.00 (softcover)

Several ongoing energy policy developments in Alberta - including recent provincial commitments to develop a "comprehensive energy strategy" and to split the Energy and Utilities Board into two separate Boards - provide good grounds for a rigorous reassessment of assumptions and principles that currently guide provincial decisions with respect to energy. One prominent basis for the province's current energy decision-making is the objective, in the Energy Resources Conservation Act, to "effect the conservation" (and to "prevent the waste") of Alberta's "energy resources". This paper assesses the implications of this objective for renewable energy sources. After noting the Act's lack of relevant definitions and implementing provisions, the paper assesses the meaning of renewable energy "conservation" by considering several plain meanings of that term. The paper then considers additional clues from the term's use in several fossil fuel "conservation" statutes, as well as from the extensive historical record of oil and gas "conservation" programs in North America. This analysis concludes that, while the meaning of oil and gas "conservation" is itself ambiguous, the oil and gas "conservation" record provides several lessons or principles that could be applied in the renewable energy context. Finally, the paper suggests that, because of these ambiguities in the meaning of "conservation", and the lack of full cost, life cycle considerations in "conservation" decision-making, the province's energy resource "conservation" mandate should either be overhauled, or completely replaced.


Crown Consultation with Aboriginal Peoples in Oil Sands
Development: Is it Adequate, Is it Legal?

by Monique M. Passelac-Ross and Verónica Potes, 2007.
52 pp. Occasional Paper #19. $15.00 (softcover)

The environmental and social impacts of oil sands development are generally well documented. As the development intensifies, concerns over these impacts have multiplied. Because oil sands operations in the Athabasca region are located on lands traditionally and currently used by First Nation and Métis peoples, these impacts particularly affect the local Aboriginal communities. Aboriginal peoples have raised concerns about environmental and socio-economic impacts since the early days of oil sands development in the 1960s. Unfortunately, these effects are not well understood and are only beginning to be documented. The question this paper seeks to address is the following: how is Alberta fulfilling its constitutional obligations to consult and accommodate Aboriginal peoples in the oil sands development process?


Closing the Performance Gap: The Challenge for Cumulative
Effects Management in Alberta's Athabasca Oil Sands Region

by Steven A. Kennett, 2007.
61 pp. Occasional Paper #18. $20.00 (softcover)

This paper comments on the origins and record of the multi-stakeholder Cumulative Environmental Management Association (CEMA) and the Regional Sustainable Development Strategy for the Athabasca Oil Sands Area, initiatives launched in the late 1990s to address the cumulative environmental effects of oil sands development in Alberta. There is clear evidence of a growing gap between expectations regarding these initiatives and their performance. Opportunities for closing this gap include improvements in the efficiency and effectiveness of CEMA, a stronger role for the Government of Alberta in providing leadership and support, and attention to underlying obstacles to cumulative effects management.


Integrated Landscape Management in Canada: Getting from
Here to There

by Steven A. Kennett, 2006.
49 pp. Occasional Paper #17. $15.00 (softcover)

Integrated landscape management (ILM) has been proposed as means of overcoming the fragmentation and incrementalism in decision-making that present virtually insurmountable obstacles to cumulative effects management across much of Canada and in other jurisdictions worldwide. In common with concepts such as integrated resource management and ecosystem-based management, ILM adopts a holistic and forward-looking approach to managing the land and resource uses that may affect ecological, social, cultural and economic values. The analysis and practical examples presented in this paper are intended to provide specific guidance for moving forward with the implementation of ILM.


Wildlife Corridors and the Three Sisters Decision: Lessons
and Recommendations for Implementing NRCB Project Approvals

by Steven A. Kennett, 2005.
33 pp. Occasional Paper #16. $15.00 (softcover)

The Three Sisters decision, issued by Alberta’s Natural Resources Conservation Board (NRCB) in 1992, approved a major recreational, tourism and residential development in the Town of Canmore. One condition of approval was that wildlife movement corridors be maintained across the Three Sisters property. This paper describes the origins and evolution of the controversy surrounding this requirement and presents recommendations for strengthening the implementation process for NRCB decisions.


The Trapping Rights of Aboriginal Peoples in Northern Alberta
by Monique M. Passelac-Ross, 2005.
79 pp. Occasional Paper #15. $20.00 (softcover)

This paper investigates the legal nature of the trapping rights of treaty beneficiaries in Alberta, with a focus on Treaty 8, signed in 1899. It examines different interpretations of the right adopted by the courts, by Aboriginal peoples, by government and by various experts and documents the erosion of the right resulting from government regulation and resource development. Finally, it suggests a more generous interpretation of the trapping right as a right to sustain a moderate livelihood.


Spinning Wheels in the Castle: A lost Decade for Sustainability
in Southwestern Alberta

by Steven A. Kennett, 2003.
55 pp. Occasional Paper #14. $15.00 (softcover)

This paper reviews four important land-use decisions that have occurred in the Castle River area of southwestern Alberta over the past ten years. These decisions highlight risks to ecosystem sustainability in the Castle and significant deficiencies in the existing management regime. The paper then turns to recent and ongoing management initiatives, evaluating the extent to which the Government of Alberta has responded to the recommendations and conclusions from the past decade of decision-making. It concludes that that Alberta government appears content to spin its wheels on the implementation of its ‘commitment’ to sustainable resource and environmental management in the Castle, while allowing incremental development and increasingly intense human activity to threaten important environmental values.


Oil Sands, Carbon Sinks and Emissions Offsets: Towards
a Legal and Policy Framework

by Steven A. Kennett, 2003.
24 pp. Occasional Paper #13. $15.00 (softcover)

The development of Alberta's oil sands will result in significant greenhouse gas (GHG) emissions. This paper summarizes the implications of this development for Canada's emissions profile and reviews briefly the rationale for biotic carbon sequestration as a means of offsetting GHG emissions. The paper then turns to eight important issues for sinks-based offsets. These issues are: (1) the legal foundation for biotic carbon sequestration; (2) the risk of project failure and leakage; (3) monitoring and verification; (4) market intermediaries; (5) environmental risks; (6) land-use conflicts; (7) the alignment of regulatory requirements, policies and incentives; and (8) collateral benefits and strategic objectives. While some of these issues were identified in the federal and Alberta climate change plans released in 2002, these plans fall far short of establishing a comprehensive legal and policy framework for sinks-based offsets. The paper concludes by arguing that this framework should include carbon rights legislation, a regulatory and certification regime, and non-market mechanisms to increase biotic carbon sequestration. The promotion of sinks-based offsets should also occur as part of an integrated approach to resource and environmental management.


Aboriginal Peoples and Resource Development in Northern
Alberta

by Monique M. Ross, 2003.
32 pp. Occasional Paper #12. $15.00 (softcover)

This paper is the final component of a multifaceted research project on legal and institutional responses to land and resource use conflicts in Northern Alberta. The paper evaluates the situation of forest-based Aboriginal communities faced with intensifying resource development in the northern boreal region of Alberta. It considers the extent to which the rights and interests of Aboriginal Peoples are acknowledged, protected and accommodated in the provincial resource allocation and development process.


Integrated Resource Management in Alberta: Past, Present
and Benchmarks for the Future

by Steven A. Kennett, 2002.
35 pp. Occasional Paper #11. $15.00 (softcover)

Integrated resource management (IRM) is currently being promoted in Alberta in response to resource-use conflicts and the challenges relating to cumulative environmental effects. The Alberta government's ongoing IRM initiative was launched in 1999. An important component of that initiative has been the development of "regional strategies" in two areas of the province. The release in January 2002 of a draft provincial framework for regional strategies marks an important advance for IRM. If approved and implemented, this framework will lead to additional regional strategies across Alberta. This paper argues that the history of IRM in Alberta provides some important lessons that are directly relevant to the current IRM initiative.


Legal and Institutional Responses to Conflicts Involving the
Oil and Gas and Forestry Sectors

by Monique M. Ross, 2002.
38 pp. Occasional Paper #10. $15.00 (softcover)

This paper examines the inter-sectoral conflicts and ecological impacts resulting from the development of oil and gas and forestry resources in Alberta's boreal forest region and evaluates the legal regime under which the two resource sectors operate. It argues that current policies, legislation and regulations are inadequate to meet the challenge of intensifying resource use and increasing ecological impacts. Structural reforms to the legal and policy regime and clear political leadership are required in order to achieve the effective integration and sustainable development of oil and gas and forest resources. Integration of development activities is seen as a way to minimize the collective industrial footprint on the landscape and protect the health of ecosystems, as well as to reduce operational and planning costs and resolve inter-sectoral disputes.


The Evolution of Wildlife Law in Canada
by John Donihee, 2000.
73 pp. Occasional Paper #9. $15.00 (softcover)

Wildlife law evolves in response to the ecological status of wildlife populations, changing values and societal objectives for wildlife and changes to the domestic and international legal context within which wildlife is managed. Canadian wildlife law has changed significantly since the time of Confederation.  This study briefly explores the constitutional framework for and common law sources of Canadian wildlife law. It then develops a series of criteria which distinguished three distinct eras in our wildlife law.


 Towards a New Paradigm for Cumulative Effects Management
by Steven A. Kennett, 1999.
53 pp. Occasional Paper #8. $15.00 (softcover)

Cumulative environmental effects are increasingly recognized as a major challenge for environmental and resource management in Canada. At the present time, cumulative effects assessment (CEA) in the context of project-specific environmental assessment is the de facto instrument of choice for addressing cumulative effects. This paper argues that a fundamental paradigm shift is required.


Recent Developments in Oil and Gas Law
by Nigel Bankes, 1999.
68 pp. Occasional Paper #7. $15.00 (softcover)

The paper covers cases handed down during 1998 that will be of interest to the oil and gas industry. The cases are treated under three general headings: doctrinal development, litigation against the Crown or the regulator, and aboriginal oil and gas litigation. The paper concludes with a review of recent legislative developments in Yukon and British Columbia.


Resource Developments on Traditional Lands: The Duty
to Consult

by Cheryl Sharvit, Michael Robinson and Monique M. Ross, 1999.
26 pp. Occasional Paper #6 $10.00 (softcover)

Recent Canadian court decisions have scrutinized the way in which governments, when their actions or decisions may infringe on Aboriginal or treaty rights, consult with potentially affected Aboriginal people. Consultation is a key consideration in the justification analysis developed by the Supreme Court of Canada in the Sparrow decision to determine whether government is justified in infringing those rights. This paper contrasts the type of consultation that often prevails in practice with the duty to consult emerging from the case law.


In Search of Public Land Law in Alberta
by Steven A. Kennett and Monique M. Ross, 1998.
56 pp. Occasional Paper #5. $15.00 (softcover)

Public land management has been the subject of much debate in Alberta, a province richly endowed with natural resources and heavily dependent on a variety of land and resource uses for its economic well-being. Over time, with the pace of development increasing, this debate has become more acrimonious. At issue are fundamental values and interests and critical policy and institutional choices that will affect the long-term ecological, economic and social sustainability of Alberta's land and resource base. This paper is intended to contribute to the discussion of legal and policy options for public land management in Alberta. The analysis is based on two premises: (1) there is a critical need for an integrated approach to managing the public domain; and (2) law has a fundamental role to play in structuring decision-making regarding the use of public land and resources. The objective is to assess the extent to which Alberta's land and resource legislation provides a solid legal basis for an integrated approach to public land management.

To this end, a template for integrated public land law is used as the standard against which legislation is evaluated.


New Directions for Public Land Law
by Steven A. Kennett, 1998.
51 pp. Occasional Paper #4. $15.00 (softcover)

This paper examines the role and characteristics of public land law as the basis for public land management in Canada. It argues that the establishment of coherent legal regimes for public land management should involve much more than simply the aggregation of discrete statutes and regulations dealing with land use, resource management, and environmental protection.


Towards Sustainable Private Woodlots in Alberta
by Monique Ross, 1997.
25 pp. Occasional Paper #3. $10.00 (softcover)

This paper provides an update in regard to the situation of private woodlots in the province, outlines the applicable legislative and tax regime, and underlines the need for a concerted effort on the part of government departments to actively promote sustainable management of private woodlots. At a time when issues of forest sustainability are being widely debated in international, national and provincial fora, this paper is aimed at drawing attention to the particular situation of private woodlots in Alberta as well as furthering discussion in regard to policy and legal tools which could enhance woodlot conservation and sustainable management.


A History of Forest Legislation in Canada 1867-1996
by Monique Ross, 1997.
50 pp. Occasional Paper #2. $15.00 (softcover)

This occasional paper provides a historical outline of the development of forest legislation in Canada, setting out the various stages in the evolution of provincial and federal policies and legislation, as well as recent developments and trends which may influence this evolution in the near future. An annotated chronological listing of forest legislation for each jurisdiction is found in the Annex. This chronology includes the most significant legislative and policy developments which have occurred during each of the transitional phases in the evolution of provincial and federal forest policies.


Pipeline Jurisdiction in Canada: The Case of NOVA Gas
Transmission Ltd.

by Steven A. Kennett, 1996.
45 pp. Occasional Paper #1. $15.00 (softcover)

Current uncertainty regarding pipeline jurisdiction in Canada has significant regulatory implications. The predictability and stability of the legal regime governing Canada's pipeline system is of critical importance to the energy industry, regulatory agencies, governments, and others with an interest in energy matters. There are increasing indications, however, of unpredictability and potential instability in this area. Ongoing litigation indicates that important jurisdictional issues remain unresolved in the minds of industry and regulatory authorities. This paper proposes a new interpretation of the relevant constitutional provisions. While the specific focus is NOVA Gas Transmission Ltd., the analysis has implications for pipeline regulation throughout Canada. The suggested approach would significantly increase jurisdictional certainty. It renders intelligible an otherwise confusing body of case law and provides a clear basis for predicting outcomes in new cases.