Occasional Papers: 20-29

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.