Canada: Government Of Alberta Approves Lower Athabasca Regional Plan

Introduction

On August 22, 2012, the Government of Alberta approved the Lower Athabasca Regional Plan (LARP) which will come into effect on September 1, 2012.  The LARP is the first regional plan to be developed under the Alberta Land Stewardship Act of 2009, which empowers Cabinet to make land-use plans for each of the seven regions in the province. These plans allow the Cabinet to prescribe conditions, strategies and objectives for development in each region of the province. The LARP covers the northeast corner of Alberta and the entirety of the Athabasca oil sands region.

Two previous drafts of the LARP were released in 2011, each of which were the subject of previous Osler Updates (April 7, 2011 and October 12, 2011). The final and approved version of the LARP is substantially similar to the latest draft from August 2011.

Key Changes in the LARP

In our view, the most significant aspects of the LARP for resource developers in Alberta are: (1) the creation of conservation areas, and (2) the establishment of fixed thresholds for various environmental components.

Conservation Areas

The LARP will establish six new conservation areas for the Lower Athabasca Region, bringing the total conserved land in the region to two million hectares, or 22% of the total area. These areas are intended to maintain ecological systems and biodiversity in the region while allowing oil sands development to continue. Conservation areas will be closed off to most types of future development, including oil sands, although existing tenures will remain valid and will be honoured. Any approvals governing existing tenures in conservation areas will also remain valid and may be renewed, however expansions or significant modifications to existing projects in conservation areas may be deemed incompatible with the purposes of the LARP and may be denied.

Regional Biophysical Thresholds

The LARP will also establish "Management Frameworks" – a variety of fixed limits or thresholds for environmental receptors in the region, such as air quality and water quality, that are not to be exceeded. The Minister of Environment and Sustainable Resource Development is required under the LARP to establish monitoring programs in the region and if the Minister determines that that one or more of the defined limits has been exceeded, the Minister is required to issue a notice specifying, amongst other things:

a. the activities that in the opinion of the Minister are reasonably expected to have a direct or indirect effect on the limit in question;

b. the anticipated duration of the exceedance;

c. the actions to be taken by affected decision-makers and affected local government bodies in response to the exceedance; and

d. that no statutory consent shall be issued in respect of a proposed activity referred to in (a).

Notices of the Minister will be binding on all affected decision-makers (e.g., the Energy Resources Conservation Board) and local government bodies.

This aspect of the LARP will be particularly important for oil sands developers to monitor and understand. If any threshold has been exceeded or is close to being exceeded, the Minister may be compelled to release a notice that prevents the developer from proceeding with their particular project (or at least delays it until the exceedance is addressed). This will apply equally to expansions and renewals of existing projects as well as to new greenfield developments. At the same time, however, these fixed thresholds for the region will support the province's recently announced monitoring initiatives with the federal government and its efforts to address national and international criticisms of the oil sands.

Implications of the LARP for Resource Developers

The LARP will introduce an additional layer of environmental scrutiny and compliance into the oil sands region. Resource developers need to be aware of how their existing operations and proposed projects will be affected by the new operating constraints, and how obligations under existing regulatory approvals will interact with the new conservation areas and Management Frameworks.  If any biophysical thresholds established in the LARP are exceeded in the future, this could create significant challenges for any future oil sands regulatory application.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.