Alberta Court Of Appeal Confirms That Specific Evidence Is Essential To Establish Standing Before The AER

The Alberta Court of Appeal reaffirms that standing before the Alberta Energy Regulator (AER) requires specific evidence – not vague assertions – to establish that an approval could directly and adversely affect the exercise of Indigenous rights and traditional uses. The decision also confirms that standing focuses on the effects of the specific approval in question. Cumulative effects of past resource development do not, on their own, confer standing or eliminate the need to demonstrate that the approval in question could impair the exercise of rights.¹

Background

This case involves an oilfield waste management facility that occupies a small portion of a 35-hectare median between the northbound and southbound lanes of Highway 63. The facility site lies within 10 km of the Fort McMurray 268 First Nation's reserves.

The First Nation requested a regulatory appeal of the facility approvals, submitting that the approvals may adversely affect members' exercise of rights and that cumulative effects of past development had already affected those rights. The regulatory appeal was supported by a consultant's report providing an overview of potential impact pathways. The report was not a facility-specific traditional knowledge study but drew on studies completed for other projects and past discussions with members.

The AER dismissed the First Nation's request for regulatory appeal, concluding that it lacked standing. Under the Responsible Energy Development Act (REDA), a person has standing to request a regulatory appeal if they are "directly and adversely affected" by a decision.² The AER found the evidence "insufficiently specific" about the nature of the rights at issue, when and where they were exercised and how the facility would affect those rights. The AER did not consider the cumulative effects argument given its finding on standing.

The Court decision

On appeal, the Court explained that whether a person is "directly and adversely affected" is largely a question of fact for the AER to decide. The phrase is not defined in REDA, and the breadth of the language "indicates a legislative intention to confer broad discretion on the AER to determine whether a person is sufficiently affected by an approval decision to have standing to appeal it."³

The Court referred to its 2005 decision in Dene Tha',⁴ and subsequent cases to guide its interpretation of the "directly and adversely affected" standard. In Dene Tha', the issue was whether a First Nation had provided sufficient information to establish that an oil and gas development adjacent to its reserve could adversely affect members' rights. The predecessor to the AER determined there was insufficient information to establish standing. The Court upheld that determination, explaining that the required degree of "location or connection between the work proposed and the right asserted" is a question of fact.

The Court applied Dene Tha' and determined that "the evidence [presented by the First Nation] was insufficiently specific to show how the facility could affect members' exercise of treaty rights and traditional uses."⁵ The Court rejected the First Nation's argument that the AER applied too high a standard of proof, concluding that the AER accurately applied the standard in Kelly⁶ and did not err in law.

The Court also explained that "[s]ince no legal rule prescribes the degree of specificity needed to establish standing, the AER did not err in law by concluding that the First Nation's evidence lacked sufficient specificity."⁷ Any challenge to that conclusion would, at most, raise a question of fact or mixed fact and law. Since appeals under section 45 of REDA are limited to questions of law or jurisdiction, such challenges fall outside the Court's appellate jurisdiction.

Regarding cumulative effects, the Court held that "[a]s the AER concluded that the evidence failed to show that the Approvals could adversely affect the asserted rights, the further question of how serious the effects might be – to which cumulative effects may be relevant – did not arise."⁸

Takeaways

This decision reaffirms the established framework for determining standing under REDA. By applying Dene Tha' and Kelly, the Court confirms that the "directly and adversely affected" test requires applicants to provide sufficiently specific evidence demonstrating a connection between the proposed activity and the rights asserted. The decision underscores that while the threshold for standing remains low, it is not nonexistent: general assertions about potential impacts, without particulars as to when, where and how rights are exercised and may be affected, will not suffice.

Footnotes

1. Fort McMurray 468 First Nation v Alberta Energy Regulator, 2026 ABCA 197 [Fort McMurray]. 

2. Responsible Energy Development Act, SA 2012, c R-17.3, s 36(b)(ii). 

3. Fort McMurray at para 44. 

4. Dene Tha' First Nation v Alberta (Energy and Utilities Board), 2005 ABCA 68. 

5. Fort McMurray at para 54. 

6. Kelly v Alberta (Energy Resources Conservation Board), 2011 ABCA 325. 

7. Fort McMurray at para 66. 

8. Fort McMurray at para 79.