Regulations Amending the Fort McKay First Nation Oil Sands Regulations: SOR/2023-280

Canada Gazette, Part II, Volume 158, Number 1

Registration
SOR/2023-280 December 19, 2023

FIRST NATIONS COMMERCIAL AND INDUSTRIAL DEVELOPMENT ACT

P.C. 2023-1300 December 15, 2023

Her Excellency the Governor General in Council, on the recommendation of the Minister of Indigenous Services, makes the annexed Regulations Amending the Fort McKay First Nation Oil Sands Regulations under section 3footnote a of the First Nations Commercial and Industrial Development Act footnote b.

Regulations Amending the Fort McKay First Nation Oil Sands Regulations

Amendments

1 (1) The definitions federal Minister and project lands in subsection 1(1) of the Fort McKay First Nation Oil Sands Regulations footnote 1 are replaced by the following:

federal Minister
means the Minister of Indigenous Services. (ministre fédéral)
project lands
means the lands in Alberta in Theoretical Township 96, Range 9, West of the 4th Meridian that are part of the Fort McKay Indian Reserve No. 174C and are shown on the Plan Showing Survey of Fort McKay Settlement (Oil Sands Lands) recorded in the Canada Lands Surveys Records under number 90264 and registered at the Land Titles Office in Edmonton under number 052 2726, containing 3381.48 hectares (8355.8 acres) more or less and more particularly described as follows:
  • (a) Lot 1, Block 1 1304.11 ha (3222.5 ac);
  • (b) Lot 1, Block 2 830.57 ha (2052.4 ac);
  • (c) Lot 2, Block 2 1109.11 ha (2740.7 ac); and
  • (d) Lot 3, Block 2 137.69 ha (340.2 ac). (terres du projet)

(2) Subsection 1(1) of the Regulations is amended by adding the following in alphabetical order:

incorporated laws
means the laws of Alberta specified in Schedule 1, as amended from time to time, with the adaptations specified in Schedule 2. (texte législatif incorporé)

(3) Subsection 1(2) of the Regulations is replaced by the following:

Interpretation Act of Alberta

(2) The incorporated laws that apply with respect to the project lands under section 3 must be interpreted in accordance with the Interpretation Act of Alberta, RSA 2000, c. I-8, as amended from time to time.

Enactment

(3) For the purposes of the Interpretation Act of Alberta (RSA 2000, c. I-8), a reference to “enactment” in that Act is to be read to include the incorporated laws.

Provincial offences

(4) For the purposes of enforcing these Regulations, a reference to “enactment” in provincial offences procedures laws is to be read to include the incorporated laws.

2 Section 3 of the Regulations is replaced by the following:

Incorporation by reference

3 (1) Subject to subsection (2), the incorporated laws apply with respect to the project lands.

Restriction — laws in force

(2) A provision of an incorporated law applies only if it is in force.

3 Section 8 of the Regulations is repealed.

4 Schedules 1 and 2 to the Regulations are replaced by the Schedules 1 and 2 set out in the schedule to these Regulations.

Coming into Force

5 These Regulations come into force on the day on which they are registered.

SCHEDULE

(Section 4)

SCHEDULE 1

(Subsection 1(1) and section 4)

Incorporated Laws

SCHEDULE 2

(Subsection 1(1) and section 4)

Adaptations

PART 1
Adaptations Applicable to Incorporated Laws

Interpretation in French version

1 An English term that is printed in a combination of parentheses and quotation marks in a provision of the French version of this Schedule is defined in the law that is adapted by that provision.

Interpretation of incorporated laws

2 Incorporated laws are to be read without reference to provisions authorizing any person, provincial official or provincial body to expropriate any interest in lands.

Fee or charge

3 Any obligation to pay a fee or charge under any incorporated law does not apply to His Majesty in right of Canada.

No liability of His Majesty

4 (1) Any obligation or liability of an owner or a registered owner of land, buildings, structures or fixtures under any incorporated law does not apply to His Majesty in right of Canada.

Approval of owner

(2) If a consent, authorization or other approval of an owner or a registered owner of land is required under any incorporated law, it may only be given by the First Nation.

Notice to federal Minister and First Nation

(3) If a notice or document is required to be given to an owner or a registered owner of land under any incorporated law, it must be given to both the federal Minister and the First Nation.

Financial requirements under lease

5 If the incorporated laws require a cash deposit or other financial security to be given, this requirement applies in addition to any other requirements that may apply to the project lands in relation to cash deposits or other financial security.

Limitation on searches and inspections

6 (1) A power to search or make inspections under an incorporated law, including the power to enter a place, does not include a power to enter or search a federal government office, or to inspect anything in that office, without the consent of the person who is or appears to be in charge of that office.

Limitation on production of documents

(2) A power to seize, remove or compel the production of documents under an incorporated law does not include a power to seize, remove or compel the production of a document in the possession of the federal government without the consent of the person in possession of the document.

Person indebted

7 A reference to “person who is indebted to the Government” or “person who is indebted to the Crown” under any incorporated law is to be read as to include a reference to a person who is indebted to the Government of Alberta, the Crown in right of Alberta, His Majesty in right of Canada or the First Nation.

Person responsible

8 A reference to “person responsible” under any incorporated law does not include His Majesty in right of Canada.

Surface Rights Act exclusions

9 Any provision referring to the Surface Rights Act of Alberta, RSA 2000, c. S-24, or to rights under that Act does not apply with respect to the project lands.

Public Lands Act exclusions

10 Any provision referring to the Public Lands Act of Alberta, RSA 2000, c. P-40, or to rights under that Act does not apply with respect to the project lands.

Emergency response plan

11 Where an emergency response plan is required to be filed, submitted or otherwise made available to any person or body under any incorporated law, the person having the obligation to do so must, without delay,

PART 2
Adaptations to the Administrative Procedures and Jurisdiction Act of Alberta

Statutory power

12 A reference to “statute” in the definition statutory power in clause 1(c) of the Administrative Procedures and Jurisdiction Act of Alberta, RSA 2000, c. A-3, is to be read as including a reference to any statute of Alberta that applies with respect to the project lands by virtue of these Regulations.

PART 3
Adaptations to the Alberta Utilities Commission Act

Definition of Act

13 In this Part, Act means the Alberta Utilities Commission Act, SA 2007, c. A-37.2.

Affecting rights

14 A Commission decision or order specific to the project lands referred to in section 9 of the Act is deemed to directly and adversely affect the rights of the federal Minister and the First Nation.

Person

15 A reference to “person” in sections 9 and 10 and in subsection 24(2) of the Act includes the federal Minister and the First Nation.

Entitled to file

16 The federal Minister and the First Nation are deemed to be persons entitled to file applications for the purposes of section 10 and subsection 24(2) of the Act.

Costs — His Majesty

17 The Commission cannot direct that His Majesty in right of Canada pay any costs, money, expenses or penalties under sections 21 and 25 of the Act.

Registered order — lien

18 In subsection 26(2) of the Act, the reference to “interest in land” is to be read as a reference to “leasehold interest in land”.

PART 4
Adaptations to the Environmental Protection and Enhancement Act of Alberta and to the Regulations Made Under It

Definitions

19 The following definitions apply in this Part:

Act
means the Environmental Protection and Enhancement Act of Alberta, RSA 2000, c. E-12. (Loi)
Regulation
means the Conservation and Reclamation Regulation of Alberta, AR 115/1993. (Règlement)

DIVISION 1
Adaptations to the Environmental Protection and Enhancement Act of Alberta

Person directly affected

20 A reference to “any person who is directly affected” in the Act is to be read as including the federal Minister and the First Nation.

Person responsible

21 A reference to “person responsible” or “person responsible for the contaminated site” in the Act is to be read as excluding the First Nation.

Programs for use of economic instruments

22 No programs or other measures established under section 13 of the Act apply with respect to the project lands without the agreement of the federal Minister and the First Nation.

Local authority

23 (1) A reference to “local authority” in sections 27 and 28, subsections 110(3) and 115(3), sections 126, 130 and 220, subsection 233(1) and section 249 of the Act is to be read as including the First Nation and the Regional Municipality of Wood Buffalo.

Band council

(2) A reference to “council” in subsection 233(1) of the Act is to be read as including the band council of the First Nation.

Reference to Minister

24 The reference to “Minister” in subsection 99(1) of the Act is to read as including a reference to the federal Minister.

Effective on agreement

25 For the purposes of subsection 100(1) of the Act, an order of the Minister is effective on the agreement in writing of the federal Minister.

Reports and notices

26 A report or notice required under subsection 110(1), 110(3) or 115(3) or section 130 of the Act is to also be given without delay to the federal Minister and to the First Nation.

Enforceablility of charge

27 The reference to “mortgage or other security on land” in section 216 of the Act, is to be read as a reference to “mortgage or other security on a leasehold interest in land”.

DIVISION 2
Adaptations to the Conservation and Reclamation Regulation of Alberta

Inspectors

28 Any designation of a member of the band council of the First Nation or the council of the Regional Municipality of Wood Buffalo as an inspector under the Regulation has no effect with respect to the project lands.

Local authority

29 A reference to “local authority” in subsection 4(2) and in section 17.1 of the Regulation is to be read as including the First Nation and the Regional Municipality of Wood Buffalo.

Exclusion

30 (1) Section 24 of the Regulation is to be read without clause (2)(b) or subsection (4) or (7).

Replacement of reference

(2) A reference to subsection 24(4) of the Regulation is to be read as a reference to subsection 24(3).

Adaptation to subsection 24(3)

(3) Subsection 24(3) of the Regulation is to be read as follows:

(3) The Alberta Energy Regulator shall use security forfeited under subsection (1) to carry out the conservation and reclamation of the specified land in accordance with the Act and the regulations.

Adaptation to subsection 24(5)

(4) The reference to “Minister” in subsection 24(5) of the Regulation is to be read as a reference to “Alberta Energy Regulator”.

PART 5
Adaptations to the Geothermal Resource Development Act of Alberta

Definition of Act

31 In this Part, Act means the Geothermal Resource Development Act of Alberta, SA 2020, c. G-5.5.

Approval

32 An order or direction of the Regulator made under section 5 of the Act must also be approved by the federal Minister.

Inquiry, examination or investigation

33 For the purposes of section 11 of the Act,

Costs — His Majesty

34 The Regulator cannot direct that His Majesty in right of Canada pay costs or expenses under section 17 or subsection 21(3) or 24(4) of the Act.

Enforcement of lien

35 The reference to “interests in land” in subsection 23(2) of the Act is to be read as a reference to “leasehold interests in land”.

Entry on land

36 Any regulation made under the Act with respect to entry on a person’s land without the person’s agreement does not apply with respect to the project lands.

PART 6
Adaptations to the Historical Resources Act of Alberta

Definition of Act

37 In this Part, Act means the Historical Resources Act of Alberta, RSA 2000, c. H-9.

Agreement of federal Minister

38 Before exercising, or giving notice of an intention to exercise, any power with respect to historic resources, archaeological resources or palaeontological resources under sections 16, 20, 30, 33, 34 and 37 of the Act within the project lands, the Minister must obtain the agreement of the federal Minister and the First Nation.

Existing rights

39 The Act does not apply to affect the property in any archaeological resource or palaeontological resource within the project lands.

Property in records

40 For greater certainty, the property in any record relating to historic resources prepared by the Crown in right of Alberta is vested in the Crown in right of Alberta.

Disposition of resources

41 Any regulation made under the Act respecting the sale, lease, exchange or disposition of archaeological resources or palaeontological resources does not apply with respect to the project lands.

PART 7
Adaptations to the Hydro and Electric Energy Act of Alberta

Definition of Act

42 In this Part, Act means the Hydro and Electric Energy Act of Alberta, RSA 2000, c. H-16.

Application

43 The Act applies to

Public highway

44 The definition public highway in clause 1(1)(l) of the Act is to be read without reference to the words “owned by the Crown or a local authority”.

Approval of federal Minister

45 Only the federal Minister or the First Nation may give an approval under subsection 34(2) of the Act.

Entry on land

46 Any regulation made under the Act with respect to entry on a person’s land without that person’s agreement does not apply with respect to the project lands.

PART 8
Adaptations to the Oil and Gas Conservation Act of Alberta and to the Regulations Made Under It

Definition of Act

47 In this Part, Act means the Oil and Gas Conservation Act of Alberta, RSA 2000, c. O-6.

DIVISION 1
Adaptations to the Oil and Gas Conservation Act of Alberta

Effective on agreement

48 For the purposes of subsection 18(2) of the Act, a direction of the Lieutenant Governor in Council of Alberta is effective on the agreement in writing of both the federal Minister and the First Nation.

Enforcement of lien

49 A reference to a “debtor” in section 103 of the Act does not include His Majesty in right of Canada or the First Nation.

Costs — His Majesty

50 The Regulator cannot direct that His Majesty in right of Canada pay costs or expenses under subsection 104(3) or 105(4) of the Act.

Enforcement of orders

51 An enforcement action under section 105 of the Act with respect to land can only be taken with respect to the leasehold interest in the project lands.

DIVISION 2
Adaptations to the Oil and Gas Conservation Rules of Alberta

Alberta Land Surveyor

52 A reference to “Alberta Land Surveyor” in clause 2.020(3.1)(c) of the of Alberta, AR 151/1971, is to be read as a reference to a Canada Lands Surveyor as defined in section 2 of the Canada Lands Surveyors Act.

PART 9
Adaptations to the Oil Sands Conservation Act of Alberta

Definition of Act

53 In this Part, Act means the Oil Sands Conservation Act of Alberta, RSA 2000, c. O-7.

Lieutenant Governor in Council

54 A reference to “the Lieutenant Governor in Council” in subsection 9(1) and in sub-clause 17(a)(ii) of the Act is to be read as a reference to the Lieutenant Governor in Council of Alberta, the federal Minister or the First Nation.

Failure to comply with orders

55 For the purposes of section 14 of the Act,

Notice

56 (1) The notice under clause 15(3)(a) of the Act to rectify a default must also be given to the First Nation.

Notice and opportunity to be heard

(2) The notice and the opportunity to be heard under clause 15(3)(b) of the Act must also be given to the First Nation.

Scheme — project lands

57 (1) A scheme referred to in section 18 of the Act cannot include lands that are not entirely within the project lands.

Effective on agreement

(2) For the purposes of section 18 of the Act, a scheme is effective on the agreement in writing of both the federal Minister and the First Nation.

PART 10
Adaptations to the Pipeline Act of Alberta and to the Regulations Made Under It

Definition of Act

58 In this Part, Act means the Pipeline Act of Alberta, RSA 2000, c. P-15.

DIVISION 1
Adaptations to the Pipeline Act

Application

59 The Act applies to pipelines that are used for, or in connection with, oil sands mining activities on the project lands.

Road

60 The definition road in clause 1(1)(y) of the Act is to be read as meaning land that is used or surveyed for use as a public road, street, lane or other public way, but does not include a highway.

Costs — His Majesty

61 The Regulator cannot order that His Majesty in right of Canada pay any costs under subsection 33(2) of the Act.

Report

62 A report under subsection 35(5) of the Act must also immediately be given to the federal Minister and the First Nation.

Effective on agreement

63 For the purposes of section 38 of the Act, an approval of the Minister set out in the section is effective on the agreement in writing of the First Nation.

Local authority

64 A reference to “the local authority concerned” in section 39 of the Act is to be read as a reference to the First Nation.

Entry on land

65 Any regulation made under the Act with respect to entry on a person’s land without that person’s agreement does not apply with respect to the project lands.

DIVISION 2
Adaptations to the Pipeline Rules of Alberta

Surveys Act

66 The reference to “Surveys Act” in subsection 4(1) of the Pipeline Rules of Alberta, AR 91/2005 is to be read as a reference to the Canada Lands Surveys Act.

PART 11
Adaptations to the Responsible Energy Development Act of Alberta and to the Regulations Made Under It

Definition of Act

67 In this Part, Act means the Responsible Energy Development Act of Alberta, SA 2012, c. R-17.3.

Limited incorporation

68 With respect to the acts and regulations listed in the definitions energy resource enactment and specified enactment in subsection 1(1) of the Act, only those that are expressly set out in Schedule 1 of these Regulations are incorporated under these Regulations.

Landowners

69 The reference to “landowners” in section 15 of the Act is to be read to include the First Nation.

Crown

70 A reference to “Crown” in subsection 50(3) of the Act is to be read as including a reference to “Crown in right of Canada”.

Person affected

71 Any reference to “person who may be directly and adversely affected” or “person who is directly and adversely affected” or “person who believes that the person may be directly and adversely affected” in the Act or in the regulations made under it is to be read as including the federal Minister and the First Nation.

PART 12
Adaptations to the Safety Codes Act of Alberta

Notice

72 A written notice under clauses 55(1)(b) and 56(1)(b) of the Safety Codes Act of Alberta, RSA 2000, c. S-1, must be given to the First Nation.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The Fort McKay First Nation Oil Sands Regulations (SOR/2007-79) [the Regulations] came into force in 2007 under the First Nations Commercial and Industrial Development Act (FNCIDA). The Regulations were developed at the request of Fort McKay First Nation to enable oil sands mining on Fort McKay First Nation Indian Reserve No. 174C (Fort McKay 174C).

Updates to the Regulations are required to align with changes to Alberta legislation since 2007 so they can function seamlessly with the current provincial oil sands regulatory regime that applies to off-reserve lands.

Background

First Nations Commercial and Industrial Development Act

In 2006, FNCIDA came into force to address regulatory gaps between on- and off-reserve economic activities. FNCIDA enables the Governor in Council to establish a regulatory regime for a specific project, on specific parcels of reserve land, at the request of the Council of a First Nation, by replicating (through incorporation by reference) relevant provincial laws and regulations. The process is designed to provide a familiar regulatory framework to potential project investors, operators and the First Nation. By establishing an on-reserve regulatory framework that is compatible with the province’s off-reserve regulatory environment, regulations created under FNCIDA open up opportunities for economic development projects that will generate prosperity for First Nations.

Fort McKay First Nation oil sands development

In 2003, members of the Fort McKay First Nation voted to accept 23 000 acres of land as part of a Treaty Land Entitlement Settlement Agreement. Approximately 8 200 acres of those lands contain significant oil sands deposits. Section 7.7 of the Settlement Agreement provides that the uses of the Fort McKay 174C lands are limited to those consistent with oil sands development. A capital investment for a potential oil sands mining project of this scale and complexity requires Fort McKay First Nation to partner with a private sector company already operating in the region. In 2007, the First Nation formed a partnership for an oil sands project, however the project ultimately did not move forward. Fort McKay First Nation is looking to move forward with an oil sands project and is finalizing an agreement with a new private sector partner.

Fort McKay First Nation Oil Sands Regulations

The 2007 Fort McKay First Nation Oil Sands Regulations incorporate by reference Alberta legislation and regulations governing oil sands mining projects in the province so that an oil sands mining project on Fort McKay 174C would be subject to similar rules and regulations as a project off-reserve. The Regulations were made because there was no existing federal legislation to address the regulation of an oil sands mining project on reserve lands. The Regulations establish a full life-cycle management regulatory regime substantially similar to the regime employed on provincial land in Alberta by incorporating by reference, with some minor adaptations, Alberta’s oil sands mining regulatory regime.

Since the Regulations came into force 15 years ago, the Province of Alberta has significantly changed its oil sands mining regulatory regime, scope of provincial oil sands mining regulations, model for cost recovery and responsibilities expected of the industry operator. Fort McKay First Nation is seeking updates to the Regulations to reflect these changes and provide regulatory certainty to its new private sector partner in the development of an oil sands mining project.

Objective

The objectives of the amendments to the Fort McKay First Nation Oil Sands Regulations are to

The regulatory amendments align with the Indigenous Services Canada’s broader policy goals of supporting Indigenous economic development, reconciliation and self-determination. The amendments to the Fort McKay First Nation Oil Sands Regulations will support Fort McKay First Nation in finalizing agreements with its investment and operating partner.

Description

The amended Regulations update the incorporation by reference of Alberta statutes and regulations currently listed in the Schedule of incorporated laws in order to reflect changes made to those laws since the Regulations first came into force in 2007. The amendments also incorporate by reference new provincial laws, some of which were enacted after the Regulations came into force in 2007. The more substantive amendments are listed below.

The original and amended regulations do not address land tenure or royalties. These matters will be addressed through other instruments or regulatory proposals at a later date.

Responsible Energy Development Act

Alberta repealed its Energy Resources Conservation Act and replaced it with the Responsible Energy Development Act in 2013. The new legislation established the Alberta Energy Regulator (AER), which operates at arm’s length from the Government of Alberta and is the single regulator for upstream oil, gas, oil sands and coal projects off reserve. All regulatory functions previously carried out by the Energy Resources Conservation Board under the former Energy Resources Conservation Act were taken over by the AER to provide full life cycle regulatory oversight of energy resource development in Alberta. The AER makes decisions regarding energy development applications, fees, compliance, enforcement, monitoring and project closure. It is responsible for regulating energy development in a way that is modern and efficient, while protecting people and the environment.

Alberta Utilities Commission Act

The Alberta Utilities Commission Act replaces the repealed Alberta Energy and Utilities Board Act. This Act establishes the Alberta Utilities Commission (AUC) — a quasi-judicial agency that regulates the utilities sector, natural gas and electricity markets — and sets out its powers and functions. This Act also establishes the powers and functions of the Market Surveillance Administrator, a surveillance, investigative and enforcement entity.

Safety Codes Act

The Safety Codes Act is a provincial statute that was not incorporated in the 2007 Regulations. It establishes the legislative framework for the development of safety codes and the delivery of safety code services for municipalities, industry and the public in Alberta.

Geothermal Resource Development Act

The Geothermal Resource Development Act establishes a regulatory regime, administered by the AER, that governs the responsible development of geothermal resources and related wells and facilities in Alberta.

Oil and Gas Conservation Act

The Oil and Gas Conservation Act establishes a regulatory regime administered by the AER for the development of oil and gas resources and related facilities. The amendments to the Regulations update the list of exclusions under the Act to reflect the revocation of the Energy Resources Conservation Board Order No. MISC 8003 and repeal of the Section 43 Exemption Regulation.

General application clauses

The amendments to the Regulations expand the definition of project lands to include the remaining parcel of Fort McKay 174C (Block 1, Lot 1) and simplify the definition by referring to the survey plan registered in the Canada Lands Survey System. They make general adaptations to limit powers of provincial officials under an incorporated law to search, inspect and expropriate federal government offices without consent, and implement minor administrative changes. The amendments also reflect the Fort McKay First Nation’s shift to managing their reserve lands under the Framework Agreement on First Nation Land Management and their Land Code effective March 1, 2023.

Regulatory development

Consultation

The amended Regulations apply to Fort McKay 174C. As required under FNCIDA, the Fort McKay First Nation passed a Band Council Resolution with respect to the making of the Regulations. In 2020, Fort McKay First Nation requested amendments to the Fort McKay First Nation Oil Sands Regulations to reflect the current provincial regulatory framework in Alberta.

In 2020, representatives from Canada, Alberta and Fort McKay First Nation determined that the Alberta legislation had changed to a degree that could not be adequately addressed by dynamic incorporation (“as amended from time to time”), and that amendments would be required to align the Regulations with the modernized Alberta oil sands regulatory regime.

Fort McKay First Nation, Canada and the Province of Alberta were involved throughout the planning, negotiation and drafting of the amendments to the Fort McKay First Nation Oil Sands Regulations and associated intergovernmental agreements. The Fort McKay First Nation-Alberta-Canada and the Alberta-Canada agreements describe how the regulations will be implemented.

Fort McKay First Nation conducted major community consultations in July 2021 and in 2023. Ten sessions occurred involving various demographics and community groups. During those sessions, the community supported moving forward with a new oil sands mining project on Fort McKay 174C. The amended Regulations support this project.

The amendments to the Regulations incorporate by reference the updated provincial regulatory regime, with adaptations that reflect that the project is on reserve lands, and expand application of the Regulations to additional Fort McKay 174C lands as supported by a 2023 Band Council Resolution.

As such, these amendments were not prepublished in the Canada Gazette, Part I.

Modern treaty obligations and Indigenous engagement and consultation

There are no potential modern treaty implications resulting from this initiative. Fort McKay First Nation is a signatory to Treaty 8, but is not a modern treaty or self-government partner.

These regulatory amendments respond to a request made by the Fort McKay First Nation and support the needs and interests of the First Nation in relation to an oil sand project on their reserve lands. These amendments do not require the Government of Canada to undertake additional consultation or engagement beyond that which has already been undertaken with the Fort McKay First Nation.

Instrument choice

Prior to the Regulations coming into force in 2007, Canada and Fort McKay First Nation considered imposing regulatory standards as terms and conditions of an Indian Act lease, rather than developing federal regulations. This option was rejected as the limited remedies available under contract law are not sufficient to adequately protect the interests of the First Nation, its members, the environment and Canada for an oil sands mining project of this scale and complexity.

The option of leaving the Regulations as is, without amendment, was rejected. Without amendment, the extensive changes to Alberta’s regulatory regime give rise to uncertainty and confusion around what rules apply, and this impedes Fort McKay First Nation’s ability to finalize agreements with its commercial partner. Without amendment, this uncertainty would also introduce problems for the Province of Alberta in administration and enforcement. Amending the Regulations is consistent with Canada’s broader policy on regulatory development, which states “regulators must monitor and review material that is incorporated by reference to ensure that the material continues to remain accessible and relevant.”

Late in the development of these regulatory amendments, Fort McKay First Nation ratified their Land Code and became operational under the Framework Agreement on First Nation Land Management. However, rather than develop their own laws to govern oil sands mining on their reserve lands, the Fort McKay First Nation prefers to maintain the regulatory certainty and familiarity under updated Fort McKay First Nation Oil Sands Regulations that their commercial partner seeks.

The amended Fort McKay First Nation Oil Sands Regulations restore the consistency and seamless function between the federal and provincial regulatory systems, support Fort McKay First Nation in developing a large-scale oil sands mining project, and create certainty for monitoring and enforcement of a project.

Regulatory analysis

Benefits and costs

The regulatory amendments incorporate by reference new and amended Alberta legislation, as well as make other technical, minor and administrative changes to the Regulations. Incremental costs arising from the amendments are not expected to be significant.

Given their administrative nature, amendments related to the following Alberta legislation impose no incremental costs or benefits: Alberta Energy and Utilities Board Act; Oil and Gas Conservation Act; Surface Rights Act; Oil Sands Conservation Act; Public Lands Act; Environmental Protection and Enhancement Act; and Historical Resources Act. The same also applies to the amendments to general application clauses to the Regulations.

Only the following amendments impose minor incremental cost and/or benefit impacts.

Table 1: Incremental impacts

2007 Regulations — Incorporated by reference

Amendments and effect

Incremental cost or benefits

Energy Resources Conservation Act, RSA 2000, c EA-10 (ERCA)

ERCA was replaced with the Responsible Energy Development Act, SA 2012, c R-17.3 (REDA) and its regulations with some adaptations for application on reserve lands.

REDA is a new statute that was enacted after the Fort McKay First Nation Oil Sands Regulations came into force. It creates the Alberta Energy Regulator (AER) to administer energy development in Alberta.

No significant incremental change. The AER is expected to charge fees to administer the Regulations for the on-reserve oil sands mining project in a similar manner as would have occurred under the ERCA. These fees will be paid by the operator, as is the case for projects on lands off reserve.

Alberta officials will continue to carry out administration and enforcement functions under the amended Regulations, with no significant change to anticipated costs.

There are existing regulations in force that have administration and enforcement costs associated with them. Although costs may arise with the amended regulations, there is no reason to believe that administration and enforcement costs under the amended regulations will be any greater than those under the existing regulations. As the amended regulations establish greater clarity and certainty about applicable laws and regulatory bodies, costs to both operators and governments may be reduced.

Administration and enforcement costs vary depending on the nature and scope of project activities and can only be estimated by Alberta officials when there is a thorough understanding of the details of the planned on-reserve oil sands mining project.
These details are not yet available. A
Canada-Alberta agreement addresses Alberta’s costs for administration and enforcement of the Regulations. These are unforeseen and ad hoc costs and are expected to be between a few thousand to low hundreds of thousands of dollars in any one year.

Hydro and Electric Energy Act, RSA 2000, c H-16

The amendment broadens adaptation under the Regulations Part 5, s. 22 so that the Hydro and Electric Energy Act applies to transmission lines used for oil sands mining on the project lands and power plants on the project lands. It also adds Fort McKay First Nation as approver.

Incremental costs as a result of the amended adaptation regarding this incorporated legislation are expected to be minor. Given the current assumptions about the project activities, these unforeseen and ad hoc administration and enforcement costs are expected to be between a few thousand to low hundreds of thousands of dollars in any one year.

The fees referred to under the Alberta Utilities Act will not apply to this project.

Not existing

The Alberta Utilities Commission Act, SA 2007, c A-37.2 established the Alberta Utilities Commission (AUC) and was enacted after the Fort McKay First Nation Oil Sands Regulations came into force. It is to be incorporated with adaptations.

It is necessary to incorporate the Alberta Utilities Commission Act because the AUC also administers the Hydro and Electric Energy Act.

Incremental costs as a result of the amended adaptation regarding this incorporated legislation are expected to be minor. Given the current assumptions about the project activities, these unforeseen and ad hoc administration and enforcement costs are expected to be between a few thousand to low hundreds of thousands of dollars in any one year.

The fees referred to under the Alberta Utilities Act will not apply to this project.

Not existing

Geothermal Resource Development Act, SA 2020, c G-5.5 and the regulations made under it, as this is a newer statute that was enacted after the Fort McKay First Nation Oil Sands Regulations.

It applies to the project lands, to maintain flexibility of future development related to oil sands mining and offsetting CO2 emissions from it.

Incorporated with adaptation for entry by officials onto reserve lands consistent with existing Regulations Schedule 2, s. 25 and 39 (Entry on lands).

This Act is administered and enforced by the AER who is expected to charge fees to administer any possible geothermal project. These fees will be paid by the operator, as is the case for projects on lands off reserve.

This change may result in some incremental monitoring, enforcement and compliance costs. Costs will vary depending on the nature and scope of project activities and can only be estimated by Alberta officials when there is a thorough understanding of the details of a project. These details are not available. A Canada-Alberta agreement addresses Alberta’s costs for administration and enforcement of the Regulations. These are unforeseen and ad hoc costs and are expected to be between a few thousand to low hundreds of thousands of dollars in any one year.

Not existing

Safety Codes Act, RSA 2000, c S-1 is an additional statute to be incorporated with adaptations.

Parts of this Act would already have applied of their own force, as Alberta law, to activities on reserve lands. Incremental costs to operators and the Governments of Alberta or Canada are not anticipated to be significant. Incremental costs can not be estimated in the absence of project details and will likely only arise in cases of violations of the Safety Codes Act provisions.

A Canada-Alberta bilateral agreement addresses Alberta’s costs for administration and enforcement of the Regulations. These are unforeseen and ad hoc costs and are expected to be between a few thousand to low hundreds of thousands of dollars in any one year.

Small business lens

Analysis under the small business lens concluded that the amendments will not impact Canadian small businesses.

One-for-one rule

The one-for-one rule does not apply to this proposal. The existing regulatory framework incorporates provincial statutes by reference, and the amendments update these references to point to the current relevant statutes. Normally, any incremental administrative burden stemming from requirements incorporated by reference must be identified and counted under the one-for-one rule. However, in this instance, the regulatory regime is established and enforced by the provincial regulator, and there is no regulatory role for federal departments or agencies. As a result, the provincial regulator is deemed to be the regulator and not the federal government, and the amendment is considered to be out of scope of the one-for-one rule.

Regulatory cooperation and alignment

These Regulations align laws and regulations governing the project lands on reserve with the laws and regulations of Alberta. The Regulations incorporate by reference essential elements of the provincial regime into federal regulations, which creates regulatory harmony between governments, as well as increased regulatory compatibility between similar projects on and off reserve.

Multiple ministries within the Province of Alberta were involved in the development of the amended Regulations. A Fort McKay First Nation–Alberta–Canada agreement describes how the amended Regulations will be implemented. A management committee, comprised of the Fort McKay First Nation, the Province of Alberta and Canada, established in 2007, ensures efficient implementation of the Regulations and addresses any issues that may arise.

No inconsistencies or interference with activities of other federal departments have been identified.

The amended Regulations align with Articles 3, 5, 21 and 23 of the United Nations Declaration on the Rights of Indigenous Peoples. Article 3 states that “Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” Article 5 states that “Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while maintaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.” Article 21(1) states that “Indigenous peoples have the right, without discrimination, to the improvement of their economic and social conditions.” Article 23 states that “Indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development” and this includes economic programs.

The amended Regulations also support Canada’s commitment to the United Nations Sustainable Development Goals, specifically Goals 8 and 9. Goal 8 — Decent Work and Economic Growth — is to “promote sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all.” Goal 9 — Industry, Innovation and Infrastructure — is to “build resilient infrastructure, promote inclusive and sustainable industrialization and foster innovation.”

Given that crude petroleum is one of Canada’s main exports, Alberta’s energy sector, including the Fort McKay First Nation’s future oil sands project, will benefit from the Canada–United States–Mexico Agreement (CUSMA), which is anticipated to increase investment in the energy sector and increase Canada’s export of crude petroleum.

Canada announced that it is committed to achieving net-zero emissions by 2050. Fort McKay has shown interest in utilizing efficient and environmentally friendly technologies, where possible. They are engaging with sustainability consultants to identify ways to partially or completely offset their emissions footprint.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment was not required for the amended Regulations.

Gender-based analysis plus

No gender-based analysis plus (GBA+) impacts have been identified for the amended Regulations.

The Fort McKay First Nation is located in northeast Alberta, along the banks of the Athabasca River roughly 60 km north of Fort McMurray. There are approximately 900 band members of Dene, Cree and Métis descent with 500 members who live on reserve. The population has near equal distribution of women and men.

Fort McKay First Nation is the main group impacted by the amendments to Fort McKay First Nation Oil Sands Regulations. Fort McKay First Nation is engaging their community about the proposed oil sands mining project and has engaged with the community on these regulatory amendments. They are doing so in ways that are appropriate for their cultural context and language, and in a manner that will allow for an assessment of any impact inequalities that members may experience including violence against Indigenous women associated with resource extraction projects, as identified in the National Inquiry into Missing and Murdered Indigenous Women and Girls’ Final Report. In discussions with Indigenous Services Canada, Fort McKay First Nation has explained that they are actively addressing these issues through policies, social programs, bylaws, enforcement activities and collaboration with oil sands companies to improve community security. Given that this project is occurring in an area that has had much larger active oil sands mines for approximately 50 years, Fort McKay First Nation does not anticipate any significant incremental adverse impacts arising from the proposed on-reserve project. While Indigenous Services Canada will not be responsible for monitoring or implementing the oil sands mining project, through its role on the management committee, it can provide support on issues related to the safety of women, girls, and 2SLGBTQQIA people if requested by Fort McKay First Nation. No impacts are identified specifically to this regulatory proposal.

Implementation, compliance and enforcement, and service standards

The amended Regulations come into force on the day they are registered.

Consistent with the 2007 Regulations and associated tripartite agreement, these amended Regulations provide for administration, monitoring and enforcement by Alberta officials. Under the tripartite agreement associated with the Regulations, the Management Committee comprised of representatives of the Government of Canada, the Province of Alberta and the Fort McKay First Nation will monitor the performance of the Regulations, address potential issues and propose changes as required.

Contact

Jessica Wong
Acting Director
Statutory, Legislative, and Policy Implementation
Economic Policy Development Branch
Lands and Economic Development Sector
Email: jessica.wong2@sac-isc.gc.ca