A new agreement between Alberta and Ottawa aims to address long-standing concerns about how major projects including oil sands, pipelines and carbon capture are reviewed.

It supports recently introduced provincial legislation to ensure approvals for qualified projects are completed within 120 days.

By reducing duplication without compromising environmental protection, the intent is to make Alberta projects more attractive to investors, says Brad Gilmour, partner in the Regulatory, Indigenous and Environmental Group of Osler’s Calgary office.

Here’s what Gilmour had to say about what the agreement means.

CEC: What is environmental assessment, and how does it apply to major projects?

BG: Environmental assessment is a process right at the beginning stages to gather information about a project and incorporate that into [regulatory] decision-making, but it’s not the end of the process in terms of protection of the environment. It is really the beginning. 

There has historically been a problem where we’ve got comprehensive environmental assessment legislation at the provincial level and at the federal level, and both statutes apply. You’re inevitably reviewing the same types of issues, and that creates significant inefficiencies and adds to delays, uncertainty and complexity of the process. 

The key is who really regulates these activities, generally, on a day-to-day basis. In so many cases, it’s the province, so that’s where the expertise is. We have expert regulatory authorities that oversee the life cycle of these activities, not merely at the environmental assessment stage.

The more the province and the federal government can work together to avoid duplication, create a higher degree of certainty and reduce timelines, the more that’s going to incentivize investors to look at doing projects in Alberta.

CEC: What kinds of projects does this agreement impact?

BG: It would include oil sands projects, electrical generation projects, things like carbon capture and storage projects and mining projects. 

It’s pretty much everything we do in the natural resources and energy sectors in Alberta, with the exception of things like pipelines that cross provincial boundaries or international boundaries, which are areas of federal jurisdiction. In those cases, the federal government will also cooperate with the province. 

CEC: What does this agreement change?

BG: Number one, it signals greater cooperation between the province and the federal government in terms of environmental assessment, which is ultimately a good thing. 

The regulation of environmental assessment between the two jurisdictions has been contentious over the last several years, including ongoing litigation with respect to the constitutionality of the Impact Assessment Act. 

Importantly, the agreement creates a single environmental assessment process. It follows that one-project, one-assessment model that both levels of government have been talking about. 

It makes Alberta the lead on environmental assessments for projects that are primarily regulated by the province. It places the responsibility primarily in the appropriate jurisdiction, and with the regulators that have the greatest degree of expertise over those activities. 

There are other provinces that have similar agreements with the federal government: Nova Scotia, Prince Edward Island, Ontario, New Brunswick and British Columbia.

CEC: Does the agreement make environmental protection requirements more lenient?

BG: It doesn’t, in my view, do anything to take away from environmental protection. What it does is it focuses the environmental assessment process, avoids duplication, and lets the jurisdiction with the primary expertise lead the process.

For most of what we do in the energy and natural resources sector, the environmental effects are not a mystery, and often our environmental assessment processes treat them as if they are a mystery. But they’re well understood, as well as the means to mitigate them throughout the entire life cycle of the activity. 

CEC: Does the agreement change consultation with Indigenous communities?

BG: Both levels of government are very clear in the agreement that they will continue to be committed to meaningful participation of Indigenous groups in the assessment process and to respect their rights that are protected under Section 35 of the constitution. 

What it signals is a bit of a change that is consistent with the idea that the primary regulatory authority takes the lead. It recognizes that where a project is primarily regulated by the province, that the province is best placed to undertake the consultation with Indigenous peoples in relation to that activity. 

CEC: Does the agreement impact Alberta’s constitutional challenge of the federal Impact Assessment Act?

BG: It does not. In fact, the agreement specifically acknowledges that Alberta is challenging the constitutionality of the Impact Assessment Act and that the matter is before the courts. 

The province’s concern – that the federal government was overreaching in terms of its jurisdiction over environmental matters through the Impact Assessment Act – was validated in the October 2023 decision of the Supreme Court of Canada, and now the Act has been amended. 

That is now again being challenged by the province, being heard by the Alberta Court of Appeal. A decision in that regard is pending.

The unaltered reproduction of this content is free of charge with attribution to the Canadian Energy Centre.