Matter Commented on: Alberta Energy Regulator, Bulletin 2026-22: New Editions of the Alberta Energy Regulator Rules of Practice and Directive 031 and Alberta Energy Regulator Rules of Practice, Alta Reg 99/2013, as amended by Alta Reg 88/2026.

PDF Version: Alberta Energy Regulator Makes Rule Changes Aimed At Gutting Participation by ENGOs

Last month (May 2026) the Alberta Energy Regulator (AER) issued a Bulletin announcing changes to its Rules of Practice. The AER made these changes on February 5, 2026 and filed them April 30, 2026; they were gazetted “for information purposes” in the Alberta Gazette, Part 2, May 15, 2026. The AER Bulletin is dated May 5, 2026. The AER has the authority to make the Rules of Practice under s 61 of the Responsible Energy Development Act, SA 2012 c R-17.3  (REDA) but only, of course, to the extent that such Rules are consistent with the Act and with any regulations made under the Act (see REDA, ss 60 and 61). So far as I know, the AER made these Rule changes without following any notice and comment procedure. In other words, the AER provided no advance notice of its intention to make these amendments, no supporting rationale for the amendments, and no opportunity for anybody to comment on the amendments. The amendments appear to be part of a systematic effort by the AER to limit the right of those trying to speak for the environment and public lands to participate in the AER’s decision-making processes. Whether or not the AER was prodded into making these changes by industry or by the Department or Minister of Energy and Minerals will likely only be revealed by a responsive access to information filing.

Some of the changes are evidently designed to institutionalize the authority of the AER’s chief executive officer (CEO) over AER hearing commissioners. The CEO first usurped this authority last year in Summit Coal’s Mine 14 application (see ABlawg posts here and here, and the Court of Appeal’s decision granting permission to appeal: Alberta Wilderness Association v Alberta Energy Regulator, 2025 ABCA 389 (CanLII); the appeal itself is pending)

This post examines some of these Rule changes and concludes with some comments on the judicial review of AER rule-making powers.

The Changes

For present purposes I will focus on three main changes: (1) cancellation of hearings when no parties are directly and adversely affected, (2) the decision to deny not-for-profits access to the costs provisions of the Rules, and (3) Crown requests to expedite matters. I also discuss one other change which allows supporters of projects to file statements of concern as to the potential adverse effects that they may suffer if the AER were to reject a project application. This is certainly a significant Rule change but it is harder to assess its implications.

Cancellation of Hearings When No Parties are Directly and Adversely Affected

Most applications to the AER for regulatory approvals are dealt with administratively and without a hearing. Occasionally, the executive branch of the AER will refer an application to a hearing by AER hearing commissioners appointed under Division 2 of Part 1 of REDA. When this happens, the chief hearing commissioner sends a boilerplate letter to the applicant (or counsel for the applicant) informing them of the decision to hold a hearing and further advising that:

A hearing will be held unless the issues are resolved in some other manner, such as by alternative dispute resolution (ADR). Hearings are led by hearing commissioners who are independent from the day-to-day operations of the AER. I assign one or more hearing commissioners to sit on hearing panels to decide matters sent to them by the AER. Their decisions may only be reviewed by the Court of Appeal of Alberta …(at 1, emphasis added). [This example is excerpted from the letter sent to counsel for Summit in the Mine 14 matter, October 7, 2024]

Once a decision to hold a hearing is made, the hearing commissioners invite participation and through that process may decide to grant interested parties full participation rights (including the right to present evidence, cross examine and provide final argument), or more limited participation rights. Parties that the Panel considers to be “directly or adversely affected” will generally be granted full participation rights whereas those speaking to environmental and public lands values (e.g. environmental non-governmental organizations (ENGOs)) may be relegated to more limited participation rights (e.g. the right to make a short oral or written submission to the Panel). In some cases, however, the Panel may grant an ENGO full participation rights. Such was the case in Summit’s Mine 14 application. There, the hearing Panel granted full participation rights to both the Alberta Wilderness Association (AWA) and Canadian Parks and Wilderness Society (Northern Alberta Chapter) (CPAWS-NAB).

The issue in the Mine 14 case, however, was what happens when parties who have full participation rights based on direct and adverse effects withdraw from the hearing, leaving as the only full participants ENGOs who could not claim to be directly and adversely affected? The Mine 14 Panel gave a reasoned decision to continue with the hearing, thereby allowing AWA and CPAWS-NAB to present evidence and test the evidence of Summit. That decision prompted Summit and its parent company to effectively lobby for a different outcome by directly approaching the AER’s CEO. The CEO intervened to overrule the hearing Panel, cancel the hearing, and have the application considered administratively. The legality of that decision (as noted above) is currently on appeal. See the earlier ABlawg posts referenced above for additional details.

In the meantime, while awaiting the outcome of that appeal, the AER has evidently decided to shore up its position (at least prospectively) by amending its Rules to add a new s 9.01 which provides, so far as relevant here, that:

(2) If each person whom the Regulator has permitted to participate in a hearing on an application on the grounds that the person may be directly and adversely affected by the Regulator’s decision on the application withdraws their request to participate in accordance with subsection (1), the Regulator shall discontinue the hearing and make a decision on the application without conducting or completing the hearing.

(3) For greater certainty, the Regulator shall discontinue a hearing under subsection (2) regardless of whether the Regulator has permitted a person other than a person described in subsection (2) to participate in the hearing.

This is a bright line rule. It removes from the hearing Panel any discretion to continue the hearing, and any discretion to assess whether the contributions of those left with full participation rights are important enough to outweigh a proponent’s interest in expediting the application process. A Panel’s responsibility is to impartially assess the public interest in these matters, not just to defer to the proponent’s self-interest. This Rule change fundamentally undermines the independence of a hearing Panel.

Not-for-profits Denied Access to the Costs Provisions of the Rules

Shaun Fluker and Eric Dalke have provided an excellent overview of the history of costs awards by the AER and its predecessor the Energy Resources Conservation Board (ERCB) in this article: “An Analysis of Costs Awards by the Alberta Energy Regulator” (2018) 55:3 Alta L Rev 805. With the adoption of REDA and costs awards under the Rules, awards have been made not only to those directly and adversely affected (which was the case under the rules governing the ERCB (see Kelly v Alberta (Energy Resources Conservation Board), 2012 ABCA 19 (CanLII))but also to other parties participating in hearings, at least to the extent that the AER considers that the participant has contributed to the proceeding.

To this point, the only category of parties that has been precluded from making a costs application is “a person or group or association of persons whose business includes the trading in or transportation or recovery of any energy resource” (see definition of “participant” in s 58(1)(c) of the Rules). For an example of recent costs award see the costs award to the AWA and CPAWS-NAB in the Summit Coal case: AER Costs Order, 2026-01, February 5, 2026. That decision granted the ENGOs’ costs requests at least in part. The order is otherwise unremarkable except for the decision of the hearing commissioners to deny the costs claims incurred by the two ENGOs as a direct result of Summit’s successful efforts to do an end-run around the hearing Panel by approaching the CEO directly. This tied the Panel’s hands to the detriment of the interveners:

We disallow the legal fees claimed by AWA and CPAWS NAB in relation to Summit’s reconsideration motion to the CEO of the AER. Section 5.1 of Directive 031 states that “a submission for costs will not include arguments about things not being considered or not related to the application.” The reconsideration motion was not before the panel and was not part of this proceeding. (Ibid at para 41, emphasis added).

While technically correct, this decision was also perverse and profoundly unjust.

In any event, with this change to the Rules the AER has simply made ENGOs like AWA and CPAWS-NAB ineligible to make any costs claim whatsoever. The AER has achieved this result by adding the following to the excluded class of ineligible applicants (or participants):

… a person or group or association of persons organized as a non-profit organization, soliciting or receiving contributions for the purpose of carrying out the non-profit organization’s objects or purposes; (new s 58(1)(c))

This new categorical exemption is subject to two exceptions. First, the AER has retained the discretion to otherwise so order (“unless otherwise authorized”), and second, such a non-profit or person may be eligible to claims costs if such organization or person is also determined by the AER to be directly and adversely affected (new s 58(1.1)). I note that while the AER has retained its discretion to “otherwise authorize”, the new edition of Directive 031, REDA Energy Cost Claims, which was released with the new Rules, provides no guidance as to when and how the AER may so authorize.

The AER’s authority to make Rules regarding costs is found in s 61(r) of REDA. The AER may make rules:

(r) governing costs in respect of a hearing on an application, regulatory appeal or reconsideration, including, without limitation, rules respecting

(i) the awarding of costs,

(ii) the making of advances of costs,

(iii) the liability of persons to pay costs,

(iv) the review of costs awarded, and

(v) the enforcement of costs awarded;

The combination of the narrow directly affected standing test (rather than a more open public interest standing test) and this new exclusionary Rule on costs makes the AER an increasingly hostile environment for Alberta ENGOs and other seeking to speak for nature, public lands and public interest values more generally. It also contradicts the mutual commitment to public participation reflected in the recently concluded (April 2, 2026) Co-Operation Agreement on Environmental and Impact Assessment between Canada and Alberta. Not only will the new Rule generally preclude organizations like AWA and CPAWS-NAB from recovering the costs of legal representation, it will also preclude them and other similarly situated ENGOs from recovering the costs of retaining experts to review the evidence presented by a proponent and to present their own evidence. For examples of the types of expert evidence an ENGO might wish to present to assist a hearing panel in assessing an application, see AER Costs Order, 2021-004 for the Benga (now Northback) Grassy Mountain Coal Project (1.0) here.

Crown Requests to Expedite Matters

REDA contemplates that the Crown may intervene directly in AER proceedings in some limited circumstances. Thus, in addition to the ability of the Minister to give the AER directions under s 67, the Crown may also participate in hearings (s 49). The former edition of the Rules also contemplated that the Crown might request that the AER hold a hearing to assess impacts on Indigenous people (s 7) or to request a reconsideration for similar reasons (s 34.1).

The new version of the Rules enhances the power of the Crown to request special consideration. Thus, in deciding whether or not to hold a hearing the AER must have regard to

… whether the Crown has requested that a decision on the application be made immediately or on an expedited basis to mitigate an adverse impact to the energy resource activity referred to in the application that may result if the Regulator’s decision on the application is delayed in order to conduct a hearing; (new s 7(f.1)).

There is a similar amendment in relation to whether or not the AER should conduct a re-hearing (new s 34.1(b)). It is important to observe that, according to the Gazette, these amended Rules were apparently adopted by the AER on February 5, 2026, well before Bill 30: Expedited 120 Day Approvals Act was given first reading on April 14, 2026 (see ABlawg post on Bill 30 here.) It is not immediately obvious where the AER finds the power to grant enhanced standing to the Crown by adopting new Rules which further privilege the Crown beyond the provisions of REDA itself.

Statement of Concern in Support of Granting an Application

Until the current rule change, the Rules only contemplated the filing of a statement of concern (SOC) by a party who objected to an application. The rule change will, in addition, allow a party to file a SOC “that advocates in favour of the approval sought by the applicant” (new s 6(1)(c)(ii)). Such a SOC should indicate

(I) why the person believes that the person may be directly and adversely affected by a decision of the Regulator not to issue an approval in respect of the application,

(II) the nature of the person’s support of the application, including the benefits which the person believes the person may gain if an approval is issued …. (ibid)

In sum, the SOC has principally been used by parties seeking to protect the status quo and the existing distribution of costs and benefits associated with that status quo. Now, SOCs may be filed by those who stand to gain from a project’s implementation. Such parties will presumably still have to show a sufficient degree of connection that is not too speculative in order to establish the risk of a direct and adverse effect, but that may well prove easier to establish than in the case of a person objecting to a change in the status quo. It seems, for example, that it might be established by somebody who stands to receive a contractual or other economic benefit if an application were to be granted. If this is correct, then it may stack the deck inappropriately in favour of applicants – especially if such persons have access (unlike ENGOs adverse in interest to a project) to the costs provisions of the Rules.

Challenging the Exercise of a Regulation-making Power

 A regulation-making power is ordinarily a legislative function and, as a result, typically cannot be challenged on procedural fairness grounds Att Gen of Can v Inuit Tapirisat et al., 1980 CanLII 21 (SCC), [1980] 2 SCR 735. Such a decision can however be challenged on reasonableness grounds as the Supreme Court of Canada recently confirmed in two cases originating from Alberta:  Auer v Auer, 2024 SCC 36 (CanLII) and TransAlta Generation Partnership v Alberta, 2024 SCC 37 (CanLII). Those decisions also confirmed that the standard of review for challenging a regulation or similar subordinate legislation is reasonableness. This standard would apply to the AER rule making powers since such rules would be challenged in the Court of King’s Bench and not in the Court of Appeal using the permission to appeal process contemplated by s 45 of REDA (see Giant Grosmont Petroleums Ltd. v Gulf Canada Resources Ltd., 2001 ABCA 174 (CanLII)).

According to Vavilov there are two types of fundamental flaws that would make an administrative decision unreasonable: (1) there is a failure of rationality internal to the reasoning process; or (2) the decision is untenable in light of the factual and legal constraints that bear on it (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (CanLII) at para 101 and Auer at para 51). The legal constraints include the overall structure of the legislation authorizing the rule-making power. To give but one example: suppose that the applicants in the ongoing Alberta Court of Appeal decision questioning the CEO’s decision to cancel the Mine 14 hearing can successfully argue that that decision was unreasonable since it is inconsistent with the deep structure of REDA which maintains a separation between matters that are dealt with administratively within the AER, and those matters that are assigned to a hearing Panel (see this ABlawg post for an outline of the argument). If that were the case, it should also be possible to argue that the adoption of a new Rule of Practice that interferes with the autonomy of decision-making of a hearing Panel might also be considered unreasonable.

The decisions in Auer and TransAlta Generation theoretically have made it easier to contest the validity of regulations since it is no longer necessary to show that such regulations are  “irrelevant”, “extraneous” or “completely unrelated” to the purpose of the legislation (see Katz Group Canada Inc. v Ontario (Health and Long?Term Care), 2013 SCC 64 (CanLII) at para 28), but successful cases are few and far between. For example, neither applicant prevailed in Auer or TransAlta. That said, we have also seen some cases decided in favour of the applicant including the high profile public order emergency decision in the Federal Court of Appeal: Canada (Attorney General) v Canadian Civil Liberties Association, 2026 FCA 6 (CanLII) and, in Alberta we have Lukaszuk’s case successfully questioning the authority of the chief electoral officer to require petition canvassers to swear out affidavits: Lukaszuk v McClure, 2025 ABKB 570 (CanLII).

Conclusions

The AER has changed its Rules of Practice in a manner that will have a significant negative effect on organizations, like ENGOs, that seek to participate in AER proceedings in order to protect important public interest values, public lands and waters, and the environment. The AER has done so with zero public participation or consultation.

Insofar as these changes will make it costlier and riskier to participate in these proceedings (costlier because there will be no cost recovery from proponents, and riskier because a hearing may be cancelled even when an ENGO has invested time and resources in preparing for a hearing), it may discourage ENGO participation. This may in turn encourage proponents to cut corners, hoping that their application will not be tested in a public hearing because of the barriers to participation faced by ENGOs and others.

This is a giant step backwards for the AER that will simply reinforce the impression of many Albertans that the AER is too beholden to industry in its decision-making. Perhaps the AER needs reminding of the advice it received from Alberta’s Court of Appeal over a decade ago in the Kelly case cited above. At that time the regulator, then the ERCB, had less control over the costs awards than it does now, and thus the Court’s advice is now even more pertinent:

In the process of development, the Board is, in part, involved in balancing the interests of the province as a whole, the resource companies, and the neighbours who are adversely affected … Granting standing and holding hearings is an important part of the process that leads to development of Alberta’s resources. The openness, inclusiveness, accessibility, and effectiveness of the hearing process is an end unto itself.  Realistically speaking, the cost of intervening in regulatory hearings is a strain on the resources of most ordinary Albertans, and an award of costs may well be a practical necessity if the Board is to discharge its mandate of providing a forum in which people can be heard. In other words, the Board may well be “thwarted” in discharging its mandate if the policy on costs is applied too restrictively. It is not unreasonable that the costs of intervention be borne by the resource companies who will reap the rewards of resource development. (Kelly, at para 34.)

The AER has clearly either forgotten that advice or has chosen to ignore it.

This post may be cited as: Nigel Bankes, “Alberta Energy Regulator Makes Rule Changes Aimed At Gutting Participation by ENGOs” (8 June 2026), online: ABlawg, http://ablawg.ca/wp-content/uploads/2026/06/Blog_NB_AERChanges.pdf

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Matter Commented On: Decision by AER re: Request for Regulatory Appeal filed on behalf of the Athabasca River Basin, 22 October 2025.

PDF Version: Standing in the Athabasca: AER Denies Nature Procedural Personhood in Alberta

In February 2025, the Alberta Energy Regulator (AER) provided public notice that it had an application from Canadian Natural Upgrading Limited (CNUL) for the renewal of the Jackpine Oilsands Mine, located beside the Athabasca River in northeastern Alberta. In response, the Alberta Wilderness Association (AWA), the Keepers of the Water (the Keepers), and the Athabasca River Basin submitted a Statement of Concern (“SOC”, see here) to the AER, each as a “directly and adversely affected person” pursuant to sections 36 and 38 of the Responsible Energy Development Act (REDA), SA 2021, c R-17.3. In March 2025, the AER informed the filers of the SOC that the AER approved the renewals without a public hearing, declining to rule on the Athabasca’s legal status because it deemed such a determination “not necessary” after considering the content of the filed concerns (see here at 3). In April 2025, Ecojustice filed a request on behalf of the Athabasca River for a regulatory appeal of the AER’s decision to approve the renewals without a hearing (see here).

In the October 2025 decision, which is the subject of this post, the AER dismissed the appeal request on the grounds that the Athabasca River is not an “eligible person” under REDA. The AER ruled that it has no jurisdiction to expand the definition of “person” to include a natural feature such as a river, asserting that only the Alberta Legislature has the power to expand “person” under the REDA. The AER further emphasized that because the riverbed and all surface water in the province legally belong to the Crown, the request for a regulatory appeal was an attempt to usurp the Crown’s fiduciary role in managing public resources. Finally, the AER determined that the Athabasca River failed to establish that it may be “directly and adversely affected” by the CNUL renewal, concluding that the environmental concerns raised were general and vague rather than specific to the renewal decision.

The Athabasca

The Athabasca River (Athabasca) begins in the Columbia Icefield and runs north through Jasper, Hinton, Whitecourt, Athabasca and Fort McMurray before emptying into Lake Athabasca and the Peace-Athabasca Delta. It is the second largest river in Alberta; the basin itself covers 159,000 square kilometers, representing nearly one quarter of Alberta’s landmass (24%). At Fort McMurray, the river annually discharges over twenty billion cubic meters of water. This amount would fill Sylvan Lake over fifty times. The basin is an interconnected river system that includes the McLeod, Pembina, Lesser Slave and Clearwater Rivers, as well as extensive wetlands. It provides habitat for countless species. It is also the anchor of Alberta’s industrial heartland. 

Figure 1: Map of Athabasca River Basin within Alberta

(Source: Jacobs, D (2007). Athabasca River Image Bank)

Reasons for the AER’s Decision

The AER rejected the request for regulatory appeal submitted by Ecojustice on behalf of the Athabasca and upheld the decision to approve the Jackpine mine renewals. They provided several reasons for the decision.

Firstly, the AER found that “the Athabasca is neither a natural person (a human), nor is it a legal person as that term is defined” (see here at 3). They acknowledged that there was no definition of “person” included within REDA and that section 28(1)(nn) of the Interpretation Act, RSA 2000, c I-8 requires an “inclusive rather than exclusive or prescriptive” definition of “person”, however they concluded that “inclusive wording does not confer upon the AER the liberty to prescribe any meaning it chooses” (at 3).

The AER rejected Ecojustice’s argument that recognizing the Athabasca’s personhood was “necessary to support the purposes of [the Environmental Protection and Enhancement Act] and the Water Act” (at 3). They asserted that the Alberta Legislature had not given the AER the authority to “endow a natural feature with legal personhood” as part of these Acts’ purpose to “protect the environment through public engagement” (at 3). The AER concluded that if the personhood of the Athabasca were recognized, then the correct representation for the Athabasca would be determined by the Crown because all surface and groundwater in the province is Crown property, and that Ecojustice would therefore have no authority to represent the Athabasca (at 4).

Finally, the AER determined that even if the Athabasca were to be considered a person for the purposes of submitting a regulatory appeal request, it would not be considered “directly and adversely affected” by the decision and would therefore be ineligible to make the request on that basis. They cited the test as requiring a person to demonstrate that a “potential or reasonable probability that he or she may be harmed by the approved project” exists, but found that the submission provided by Ecojustice regarding the environmental harms faced by the Athabasca as a result of the approval were “general and vague and not clearly linked to any actual and specific adverse effects of the Decision” (at 4). Furthermore, the impacts asserted by Ecojustice arise from the presence of the Jackpine Mine Project, and the AER has previously established “that renewal applications do not invite a full review of the project’s potential effects” (at 4). On these grounds, the AER dismissed the regulatory appeal request. 

Not Full Personhood, but Procedural Standing

There is little Canadian precedent recognizing a natural feature as a “person” and in that sense the recognition of the Athabasca River as such would be precedent setting. While the AER is correct that recognizing the Athabasca River as a legal person would be novel, novelty is not the same as impossibility. Section 28(1) of the Interpretation Act, RSA 2000, c I-8 provides an inclusive, non-exhaustive definition of “person” that “includes a corporation and the heirs, executors, administrators or other legal representatives of a person.” This statutory definition should be interpreted as expanding the ordinary meaning of person, not as limiting it. An exhaustive definition would use wording such as “means” or “means only.”  Further to that point, section 14 of REDA authorizes the AER to do all things necessary to carry out its mandate, and this arguably includes using its discretion to apply a broad definition of “person” when a narrow definition would prevent the fulfilment of its mandate.

The AER acknowledged that the statutory Interpretation Act definition of “person” was inclusive (at 3), but its reasons fail to apply the term as such and instead apply the narrowest available interpretation. The statute did not compel that narrowness. In fact, the opposite was the case, and that tension weakens the coherence of the AER’s reasoning. Refusal to recognize these living ecosystems is simply interpretive timidness. Canadian law already treats corporations and municipalities as “persons” with standing (see e.g. section 2(1) of the Canada Business Corporations Act, RSC 1985, c C-44). A broad interpretation of personhood ensures that a broad category of “persons” can provide necessary information which would otherwise be excluded from the decision making processes of courts and tribunals. This helps operationalize the principles of sustainability, integration and participation in Alberta’s decision-making bodies.

In this case, the AER framed the issues as if it were being asked to confer full legal personhood status on the Athabasca. It concluded that it lacked jurisdiction to expand the definition of “person” and that such authority rested solely with the legislature (at 3). However, the procedural type of legal personhood being asserted in this case differs significantly from the full legal personhood status for which the authority of the legislature is required.

Legal Personhood

In most other common law jurisdictions where legal personhood rights for natural features such as rivers and watersheds have been established, recognition typically arises through legislation that details the specific rights held by the natural feature and establishes a body responsible for representing its interests. One of the more well-known international examples of this approach is the Whanganui River in Aotearoa/New Zealand, which has its legal personhood recognized in Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, 2017 No 7. This Act specifies the legal personhood status of the river as well as the M?ori and the Crown’s joint jurisdiction and responsibilities in regard to the river.

The best-known Canadian example is the Muteshekau-shipu or Magpie River in Quebec (Canadian Environmental Law Association, “Quebec’s Magpie River Is Now A Legal Person – A Monumental Moment in Canadian Environmental Law” (15 July 2021)). The Magpie River derives its personhood from sister resolutions passed by the Innu Council of Ekuanitshit (see here) and the municipality of Minganie (see here) which recognized the legal personhood of the river and nine specified rights (see Elizabeth Benner, “This pristine Canadian river has legal personhood, a new approach to conserving nature”, CBC (1 February 2024), and Eco Jurisprudence Monitor, Minganie (Canada) Municipal Resolution: rights of the Magpie River ). 

Figure 2: Magpie River

(Source: Nature Canada)

In some jurisdictions, natural features have been granted legal personhood rights through judicial declarations rather than legislation. For example, in India, the High Court of Uttarakhand recognized legal personhood for natural features in Mohd. Salim v State of Uttarakhand, WPPIL 126/2014 and Lalit Miglani v State of Uttarakhand, WPPIL, 140/2015. In these cases, the court relied on the duties of the State and citizens to protect the environment as outlined in articles 48-A and 51-A(g) of the Constitution of India and the doctrine of parens patriae as the basis for their recognition. In Canada, there is no explicit constitutional duty of environmental protection, and there is minimal precedent for the application of parens patriae to environmental protection compared to other jurisdictions (British Columbia v Canadian Forest Products Ltd., 2004 SCC 38 (CanLII) at paras 69 and 78-80). Ultimately, Mohd. Salim v State of Uttarakhand was stayed by India’s Supreme Court. Moreover, the High Court’s decisions have been criticized for not clarifying the nature of the new rights and imposing new and unclear responsibilities on the government (see “India’s Ganges and Yamuna rivers are ‘not living entities’”, BBC (7 July 2017)).

Given that there was no pre-existing legislation or resolution asserting the legal personhood of the Athabasca River and detailing its rights, the statute-based type of legal personhood granted to the Whanganui was not applicable in this instance. Part of Ecojustice’s argument to the AER was based on the personhood status of the Magpie River (see here at para 16). They used this to demonstrate that precedent exists in Canadian law for the recognition of rivers as “persons”. One of the problems with this approach is that unlike the Athabasca, the Magpie River’s personhood was established by resolutions which included specific details regarding its rights and management. The AER was unwilling to declare recognition for the Athabasca’s personhood without legislative support and specifics as to what that recognition would mean (at 3). Much like the response to the High Court of Uttarakhand’s decisions, the AER was likely concerned about the unclear implications associated with recognizing the Athabasca as a legal person. However, the Athabasca was not seeking specific rights or protections beyond those already recognized in Canadian law. Rather than the rights-granting type of legal personhood, the AWA and the Keepers were arguing for the Athabasca’s procedural personhood, or in other words its ability to represent itself in the process that impacts its livelihood. While recognition of a natural feature as a person eligible to request regulatory appeal would also be precedent setting under Canadian law, other non-human entities or “persons” such as corporations and trusts presently enjoy such recognition.

The “Directly and Adversely Affected” Threshold

The AER’s decision turned on a narrow reading of “directly and adversely affected”. Under section 38 of the REDA, an eligible person may request a regulatory appeal. Section 36 defines an eligible person to include a person directly and adversely affected by a decision.  The AER accepted CNUL’s position that the relevant harm had to be tied specifically to the renewal decision, instead of the Jackpine Mine’s ongoing operations (at 4). On that basis, it characterized the Athabasca River’s concerns surrounding water withdrawal, contaminants, wastewater, wetland destruction, leakage, and cumulative ecological effects as too general, too vague and too connected to the existing operation, rather than to the renewal application itself (at 4).

That approach is difficult to reconcile with Normtek (Normtek Radiation Services Ltd v Alberta Environmental Appeal Board, 2020 ABCA 456 (CanLII)). In that case, the Alberta Court of Appeal held that “directly affected” must be interpreted using the modern approach to statutory interpretation and read in light of the scheme and purposes of the legislation (Normtek at para 75). The Court accepted that the phrase “directly” limits who may appeal, but stressed that its general wording also leaves the tribunal broad discretion to determine who is directly affected in the circumstances of a particular case (at para. 77). It rejected per se rules and made clear that there is no single formula that can be mechanically applied across all of Alberta’s environmental approvals (at paras 78, 80, 88).  It also held that “directly” requires a causal connection that is not remote or speculative, but not one so narrow that standing disappears whenever there are intermediate links between the approval and the harm (at paras 81, 99).

Applied to the Athabasca, the causal chain is not remote or speculative at all. The renewal approvals are the legal instruments that allow the Jackpine Mine to continue operating. If the mine cannot lawfully continue without those approvals, then the renewal decision is not meaningfully separate from the physical effects said to follow from continued operation. From the Athabasca’s perspective, these effects include ongoing water withdrawals from the river, contamination, wastewater impacts, leakage, and cumulative effects. The renewal is not an administrative formality sitting beside the harm, it is the legal authorization that permits the harm to continue. That is enough, at minimum, to support an arguable direct adverse effect under the broader, fact-specific approach endorsed in Normtek (at para 88).

Normtek’s reasoning also undercuts the AER’s attempt to separate standing from substance. The Court held that standing and merits are often intertwined, and that a tribunal acts unreasonably when it refuses to consider evidence relevant to standing simply because that same evidence also bears on the merits of the appeal (Normtek at paras 132 – 136). The Athabasca’s evidence about hydrology, contamination, water use, and cumulative effects was not collateral to the standing issue. It was the very material that was said to show how the renewal decision may directly harm the Basin. However, the AER dismisses these concerns as too general and too tied to the broader project, adopting the narrow and formalistic approach that Normtek rejected (see here at 4).

The threshold should not have been difficult to meet. Normtek’s reasoning says that all the Athabasca had to do was show a real and non-speculative possibility that the renewal would directly and adversely affect it. The Athabasca could indeed demonstrate such a possibility, given that the river is the ecological system receiving the withdrawals, discharges, and cumulative impacts of the Jackpine project. The river was not asserting a generalized public interest in environmental protection. It was asserting that the specific decision to renew the approvals would continue to alter the river system itself. That is precisely the kind of practical, fact-specific claim that should be heard and not screened out at the threshold.

Conclusion

Legal personhood for natural features in Canada continues to face real structural limits. Canadian courts have yet to recognize rivers or other natural features as legal persons in the way some foreign courts have, and there is no clear Canadian constitutional provision equivalent to the environmental duties relied on in jurisdictions such as New Zealand or India. The most durable path for full rights-of-nature regimes will likely be legislation that defines the rights of the natural feature, identifies its representatives, and sets out the remedies available when those rights are breached. Currently, no such legislation exists for the Athabasca.

However, the request made on behalf of the Athabasca did not require the AER to create a complete rights-of-nature regime. It required the AER to decide whether REDA’s existing standing provisions could be interpreted broadly enough to let a directly affected river basin be represented in a process authorizing continued industrial impacts. The answer did not need to settle the full legal status of the Athabasca River for all purposes. It only needed to determine whether the River could be heard in this regulatory proceeding.

By treating procedural standing as though it were full legal personhood, the AER misconstrued the issue and avoided the narrower question of whether the Athabasca should have standing. The result is a decision which preserves a rigid boundary between environmental harm and legal participation, and which allows for haphazard approvals of operations that withdraw from, discharge into, and cumulatively affect a river that the province of Alberta relies on. The Athabasca River was not asserting a generalized public interest in environmental protection. Rather, it argued that the decision to renew the Jackpine approvals would continue to alter the Basin itself. Such an assertion is the kind of direct, practical, and fact-specific claim Alberta’s environmental statutory bodies should be capable of hearing.

This post may be cited as: Hunter Folster & Shane Lethaby, “Standing in the Athabasca: AER Denies Nature Procedural Personhood in Alberta” (01 Jun 2026), online: ABlawg, http://ablawg.ca/wp-content/uploads/2026/06/Blog_HF_AthabascaStanding.pdf

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Matter Commented On: Study on the opportunities and challenges of artificial intelligence (AI) in the information and communication technology sector, Standing Senate Committee on Transport and Communications

PDF Version: Submission on Artificial Intelligence (AI) to the Standing Senate Committee on Transport and Communications

Author’s Note:

In April I had the opportunity to testify before the Standing Senate Committee on Transport and Communications on the opportunities and challenges of artificial intelligence (AI) in the information and communication technology sector.

The focus of the Committee study is broadly on the use of AI in the communications sector, the implications of AI to intellectual property, and risks related to AI-generated deepfakes. With my time I focused on two things: (1) the building blocks of a healthy, resilient AI ecosystem for Canada and (2) the unique threats posed by deepfakes.

The Senate Committee also requested written submissions for May 1st and mine deviates slightly from my oral testimony. I wanted to step back from the questions asked during the Committee meeting and offer a big-picture view of the opportunities and threats of AI and where law can add value. I recently published a co-edited volume with Florian Martin-Bariteau, Security of Self: A Human-Centric Approach to Cybersecurity, which has framed the lens through which I am thinking about AI governance, which I am continuing to develop in my research.

Here is the full version of my written submission, and here is a link to the transcript and video of Committee meeting, which also includes excellent contributions of colleagues Brent Arnold, representing our board, the Canadian Internet Society, and Matt Hatfield, executive director of OpenMedia.

This post may be cited as: Emily Laidlaw, “Submission on Artificial Intelligence (AI) to the Standing Senate Committee on Transport and Communications” (29 May 2026), online: ABlawg, http://ablawg.ca/wp-content/uploads/2026/05/Blog_EL_ArtificialIntelligence_Submission.pdf

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Decision Commented On: Flowers v Persist Oil and Gas Inc, 2026 ABCA 172 (CanLII)

PDF Version: Bitcoin Real Property Law

In this decision, Alberta’s Court of Appeal has confirmed Justice Christopher Rickards’ decision of the Court of King’s Bench on this matter. 2025 ABKB 142 (CanLII). Both levels of court concluded that neither a surface lease nor a right of entry order provide the operator with the necessary proprietary authorization to run a bitcoin mining operation on the leased lands using natural gas from a compressor located on the lands and licensed by the Alberta Energy Regulator (AER). I refer readers to my ABlawg post on Justice Rickards’ decision for a more detailed examination of the background as well as two related decisions of Alberta’s Land and Property Rights Tribunal.

The decisions of both levels of court largely turn on the interpretation of the granting clause of the surface lease. That clause provided as follows:

…to be held by the Lessee as tenant…for any and all purposes and uses as may be necessary for the exploration, development and production of oil, gas, related hydrocarbons or substances produced in association therewith, including the right to lay a pipeline or pipelines, construct and operate a sweet natural gas compressor facility, remediation and reclamation. (ABCA at para 32).

While the appellant, Persist, sought to argue that “bitcoin mining is necessary … to avoid shutting in natural gas production when natural gas prices are low” and that “by extracting natural gas, developing it into electricity to power data processors, and producing bitcoin for value, it is acting within the purpose of the surface rights lease” (at paras 33 and 35), the Court of Appeal was not convinced that the trial judge had erred in rejecting these arguments:

The chambers judge was mindful of the appellant’s arguments. He did not err in interpreting the words of the surface rights lease in their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the lease. Given that bitcoin mining only began in 2009, it cannot be inferred that the wording of the lease, which dates back to 1999, was intended to contemplate the use proposed by the appellant. The lease language is certainly broad enough to encompass changes in the industry, such as novel enhanced hydrocarbon recovery techniques or new technology for the separation or compression of gas. But it is limited to purposes necessary for the exploration, development and production of hydrocarbons or substances produced in association therewith. The bitcoin mining operation is not an industry improvement or a modification to processes or equipment that is necessary for the exploration, development and production of hydrocarbons. (ABCA at para 36)

And even if Persist could claim to be in occupation of the lands in the later period under the terms of a right of entry order rather than under the terms of a surface lease (a matter I discuss in more detail in my earlier post), the Court seems to have been of the view that Persist could still not claim to be engaged in an authorized activity:

The Right of Entry order simply granted the appellant the right to access and operate the compressor station. The Land and Property Rights Tribunal expressly stated it had no jurisdiction to address the bitcoin mining issue. Its order cannot be interpreted as a tacit approval of the bitcoin mining activity as being “incidental” to operating the compressor station. The operations are distinct undertakings, differing in purpose and character. (ABCA at para 37)

Neither could the appellant claim any support for its position on the basis of the AER authorization that it held for the compressor, or the authorization that it had (belatedly) acquired from the Alberta Utilities Commission for the generating units that it had brought on to the land. These authorizations and associated regulatory guidance were not relevant to the interpretation of the lease, and, in my view, dealt with regulatory matters rather than matters of proprietary entitlement.

Finally, the Court agreed that this was an appropriate case for a permanent injunction.

Conclusion

This decision may have involved a novel point of law but at the end of the day it is simply a lease interpretation decision. Parties to a surface lease are free to provide an operator with a broader set of rights than the rights associated with exploring for, extracting and processing hydrocarbons, but unless and until they do so, an operator has no proprietary authority to engage in generating electricity for data processing activities that have no connection with hydrocarbon producing activities. Furthermore, since a right of entry order is necessarily limited by the governing legislation (the Surface Rights Act, RSA 2000, c S-24) it must follow, as I argued in my post on Justice Rickard’s decision, that neither could such an order authorize bitcoin mining activities.

This post may be cited as: Nigel Bankes, “Bitcoin Real Property Law” (26 May 2026), online: ABlawg, http://ablawg.ca/wp-content/uploads/2026/05/Blog_NB_BitcoinProperty.pdf

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Report Commented On: Alberta Law Reform Institute, Residential Tenancies Act: Before and During a Tenancy, Issue Paper 7

PDF Version: Can a Landlord Double Your Rent?

Imagine that you are currently a tenant who has been renting an apartment for $825 per month. You have been paying the same monthly rent since 2016. One day, your landlord serves you with a three-month notice of rent increase, which raises your rent to $1,650. Facing a 100% increase in rent, you believe that you are being economically evicted because you are unable to pay the rent. These are the facts of Re 24012190, 2024 ABRTDRS 20 (CanLII), a 2024 decision of the Residential Tenancy Dispute Resolution Service (RTDRS), a tribunal that can resolve certain kinds of disputes between landlords and tenants.

While Alberta is not a rent-controlled market, a landlord cannot use a rent increase to underhandedly force a tenant out. This is also known as an economic eviction. Conversely, an inflated housing market places landlords in a difficult position to keep rental prices competitive. As such, navigating a rent increase can be difficult for both landlords and tenants. While Canada’s housing market is stabilizing, Albertans will continue to face these challenges when the market inevitably shifts again.

The Alberta Law Reform Institute (ALRI) raises this issue in Chapter 5 of Residential Tenancies Act: Before and During a Tenancy, Issue Paper 7 (2026) (at 55-57). Issue 19 in this paper asks: should legislation include guidance about resolving rent increase disputes? This post explores this question, outlining the current legislative gap and how these disputes have been resolved at the RTDRS and the courts.

Legislation

Section 14(4) of the Residential Tenancies Act, SA 2004, c R-17.1 (RTA) and section 3(1) of the Residential Tenancies Ministerial Regulation, Alta Reg 211/2004, provide that a landlord can only increase rent once every 365 days.

Section 14 of the RTA also outlines rules for notifying a tenant of an increase. The rules about notifying a tenant apply only to periodic tenancies (i.e., tenancies for an indefinite time). They state that a landlord can only increase rent once they have served the tenant with a signed and dated notice of increase in rent within the prescribed notice period. The notice period is dependent upon the type of periodic tenancy:

• weekly tenants must be given at least 12 weeks’ notice,
• monthly tenants must be given at least 3 months’ notice, and
• any other periodic tenants must be given at least 90 days’ notice.

The legislation does not require notice of rent increases when renewing a fixed term tenancy. Fixed term tenancies are distinct from periodic tenancies, as they have a specific start and end date, and automatically terminate at noon of the final tenancy day (see section 1(e) of the RTA).

The Courts

There are a few decisions from Alberta courts which interpret rent increases made under the Mobile Home Sites Tenancies Act, RSA 2000, c M?20 (MHSTA). These cases are considered precedent for rent increases made under the RTA because the MHSTA has similar provisions and principles (see 23001188 (Re), 2023 ABRTDRS 3 (CanLII)). Bill 31 will also soon change the MHSTA’s rent increase notice period from once every 180 days to once every 365 days, aligning it more closely with the RTA’s rent increase rules.

Joma Sailaway Enterprises Partnership v Holden, 2009 ABQB 739 (CanLII) provides helpful discussion on how legislation has attempted to strike a balance with respect to rent increase provisions. The Court analyzed Hansard evidence when the Alberta legislature first introduced the MHSTA. The Court found that rent increase provisions are intended to balance tenant protections and the property rights of landlords. While landlords are entitled to raise the rent, tenants must be given meaningful notice and an opportunity to terminate the lease (at paras 16-20).

In Milner’s Aloha Mobile Home Park (1998) Ltd v Jenkins, 2014 ABQB 229 (CanLII) (Milner’s Aloha), a landlord attempted to force the tenant of a mobile home site to vacate the premises by tripling their monthly rent from $310 to $930 (at paras 7-8). The Court assessed the validity of this increase by completing a statutory interpretation analysis of the MHSTA. The Court found that the MHSTA creates some consumer protection for tenants without specifying what happens when a landlord raises the rent to bypass these protections (at para 39). Given the protective purpose of the MHSTA, legislators would not have intended to allow a landlord to impose a significant rent increase to evict a tenant (at para 41). The 300% rent increase was invalid as it was selectively applied to only one tenant and was not justifiable in the mobile home site market (at paras 37-38).

Boisselle v Maple Leaf Property Management Inc., 2024 ABCJ 35 (CanLII) (Boisselle) similarly dealt with a mobile home site tenant’s rent being raised from $800 to $1,800 (at para 123). The rent increase was not applied equally to all mobile home tenants and the landlord could not provide a reason for the rent increase (at para 144). Other evidence revealed that the rent increase was actually to address legal costs which arose as a result of a separate dispute with the same tenant (at para 144-145). As the rent increase lacked a bona fide economic rationale, the rent increase was found to be invalid (at paras 150-151).

In summary, these decisions set out two rules for residential rent increases in Alberta:

1. they can’t be selectively applied, and;
2. they must have a bona fide economic rationale.

The RTDRS

A handful of written RTDRS decisions have grappled with rent increase disputes in the context of RTA matters. These decisions often cite the reasoning articulated in Milner’s Aloha and Boisselle to assess the validity of an increase. They also demonstrate the practical challenges that both landlords and tenants face when navigating these disputes.

In 23013513 (Re), 2024 ABRTDRS 6 (CanLII),  the landlord admitted he did not complete any market research on rental rates prior to serving a notice which increased rent from $1,500 to $2,000 (note pinpoints are not available for RTDRS decisions). In 23010532 (Re), 2024 ABRTDRS 9 (CanLII), a landlord increased a tenant’s rent from $2,100 to $2,900 and then advertised the same unit at a lower rental rate. In each of these cases, the landlords did not know the proper rent increase rules and were found to have economically evicted their tenants.

Conversely, the rent increase rules can also be unclear to tenants. In 24012190 (Re), 2024 ABRTDRS 20 (CanLII), a tenant mistakenly believed she was being economically evicted because her rent was increased from $825 to $1,650 and she couldn’t afford to pay the increase. The landlord provided evidence that the rent increase was aligned with market rates and other rental units in the same building. In 24005158 (Re), 2024 ABRTDRS 14 (CanLII), a landlord increased rent from $995 to $1,450. The tenant believed that the most important consideration for validating a rent increase was not market rates, but rather if she was paying more in rent than her neighbours. Evidence showed that the increase aligned with market rates. The landlord also advertised a similar unit in the building for $1,695 which was nearly $250 more than the tenant’s unit. In each of these cases, the rent increases were found valid because the landlords were able to provide valid economic rationales.

For a tenant, misunderstanding the rent increase rules can leave them in a vulnerable position. In 24003992 (Re), 2024 ABRTDRS 10 (CanLII), a tenant believed a notice which increased her rent from $1,300 to $1,700 was illegal and continued paying the original rent rate. When it was determined to be a lawful increase, she was found to have substantially breached section 21(a) of the RTA for failing to pay rent when it was due. While the tenant was not evicted in this case, the written decision clarified that withholding rent was not the proper procedure for a tenant if they believed they were being economically evicted. Rather, the tenant should pay the increased rent rate and then make an application to the RTDRS or the Courts for rent abatement.

In 24005158 (Re), 2024 ABRTDRS 14 (CanLII), the Tenancy Dispute Officer built upon the principles set out in Milner’s Aloha and Boiselle, outlining the following three-part test to distinguish a valid rent increase from an economic eviction:

1. Whether the relationship between the landlord and tenant, or other circumstances, show that the landlord has a motive to evict the tenant.
2. Whether the rent increase is part of a broader program of rent increases the landlord is pursuing, or whether the tenant facing the rent increase is being singled out.
3. The amount of the rent increase should be considered in the context of the rental rate for similar units in a similar location (particularly other similar units in the same building), and whether there is a rationale that could justify the amount of the rent increase, such as a change in the market or upgrades to the unit or building in question.

This same test was applied in 24012190 (Re), 2024 ABRTDRS 20 (CanLII) to assess the validity of a rent increase. As RTDRS decisions do not create binding precedent, there is no guarantee that this test will continue to be followed in future rent increase cases. However, the fact that this test came from the RTDRS may suggest the need for further direction on how to assess these disputes.

Concluding Remarks

Legislation is silent on what rent increases are appropriate. The current limitations on rent increases have been set by the courts and RTDRS based on market conditions and fairness. However, RTDRS decisions are fact driven and do not create binding precedent. Only some RTDRS hearings are also published as written decisions (see Jonnette Watson Hamilton’s discussions in “Tenant’s Insurance, Ministerial Order No SA:005/2020 and Evictions of Residential Tenants” and “Setting Aside and Varying Orders of the Residential Tenancies Dispute Resolution Service for Procedural Unfairness”). Given Alberta’s rapidly evolving housing market, it may be beneficial to provide all parties with further legislative guidance on how to navigate these disputes when they inevitably arise in the future.

ALRI’s work is focused on long-term reform, rather than attached to a particular moment in time. We are currently working on a Residential Tenancies Act Project, and Issue Paper 7 is part of a three-part series which details various issues in the RTA (see Residential Tenancies Act: General Issues, Issue Paper 6 and a previous blog about Issue Paper 6 here). This project will continue with consultation on possible solutions and recommendations for the issues identified. If you have found this article interesting, subscribe to ALRI News to stay informed.

This post may be cited as: Susan Emam, “Can a Landlord Double Your Rent?” (25 May 2026), online: ABlawg, http://ablawg.ca/wp-content/uploads/2026/05/Blog_SE_RentIncreases.pdf

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Decisions Commented On: Athabasca Chipewyan First Nation v Alberta (Chief Electoral Officer), 2026 ABKB 375 (CanLII) and Athabasca Chipewyan First Nation v Alberta (Chief Electoral Officer), 2026 ABKB 278 (CanLII).

PDF Version: When is a Citizen Initiative Petition a Dead Parrot?

In the main decision that is the subject of this post, Athabasca Chipewyan First Nation v Alberta (Chief Electoral Officer), 2026 ABKB 375 (CanLII) (ACFN) Justice Shaina Leonard of the Court of King’s Bench quashed the decision of Alberta’s Chief Electoral Officer (CEO) to issue an initiative petition to Mr. Mitch Sylvestre (the Proponent) under the Citizen Initiative Act, SA 2021, c C-13.2 (the CIA) on January 2, 2026. Sylvestre’s petition was a constitutional referendum proposal within the meaning of the CIA. The petition aimed to gather affirmative signatures for the following question: “Do you agree that the Province of Alberta should cease to be a part of Canada to become an independent state?”

Justice Leonard gave three reasons for her decision.

First, the CEO’s interpretation and application of the Transitional Provisions embedded in the amendments to the CIA adopted in December 2025 in Bill 14, particularly s 71.1(1), was an error of law rendering the CEO’s Decision unreasonable. Second, the CEO’s decision not to reject Sylvestre’s petition in the face of Justice Colin Feasby’s earlier decision in Chief Electoral Officer of Alberta v Sylvestre, 2025 ABKB 712 (CanLII) (Sylvestre) was an error rendering the CEO’s Decision unreasonable. Third, the Crown failed to meet its duty to consult with the parties bringing this application for judicial review – namely the Athabasca Chipewyan First Nation (ACFN) and the Piikani Nation, Siksika Nation and Blood Tribe (Blackfoot Nations) (collectively the applicants) (ACFN at para 245). Justice Leonard had previously granted the applicants a limited stay enjoining the CEO from certifying the results of Sylvestre’s collection of signatories to his petition pending the Court’s decision on the merits of the applicants’ request for judicial review: Athabasca Chipewyan First Nation v Alberta (Chief Electoral Officer), 2026 ABKB 278 (CanLII).

This post examines each of these grounds of decision, but before doing so it is necessary to provide some additional background.

Background

Alberta’s CIA is an experiment in direct democracy. It allows a voter to initiate one of three types of citizen initiative petitions: (1) a policy proposal, (2) a legislative proposal, or (3) a constitutional referendum proposal. As noted above, Mr. Sylvestre’s initiative is a constitutional initiative (or a constitutional referendum proposal) which the CIA effectively defines as “a proposed question relating to the Constitution of Canada or relating to or arising out of a possible change to the Constitution of Canada” (CIA, s 1.1(2)(g)). First enacted in 2021, the CIA has been amended several times in its short life, and in ways that are material to this judicial review application.

Mr. Sylvestre’s quest to initiate a constitutional citizen initiative petition on the issue of secession of Alberta from Canada began on July 4, 2025, shortly after the CIA was amended by Bill 54 to lower the threshold for constitutional initiatives (see ABlawg post here). Prior to the amendments effected by Bill 54 (in force May 15, 2025, SA 2025 c7) a constitutional initiative petition required the following before it could proceed to the next stage in the process (presentation to the legislature): a threshold of 20% of eligible electors in at least 2/3 of all electoral divisions (see prior version of CIA here, ss 6(2) and 6(3)). With that amendment the threshold became 10% of the votes cast in the last election (see now CIA, s 6(2)).  Mr. Sylvestre’s question at that time was the following: “Do you agree that the Province of Alberta shall become a sovereign country and cease to be a province in Canada?” (the First Proposal).

The version of the CIA in force at the time of the First Proposal also allowed the CEO to state a question for the Court of King’s Bench on whether a proposal “conforms with the requirements of section 2(3) and (4), as applicable.” At the time, s 2(4) stated that “[a]n initiative petition proposal must not contravene sections 1 to 35.1 of the Constitution Act, 1982.” The CEO exercised their discretion to state a case, asking the Court to assess the question embodied in the First Proposal against these constitutional texts.

The matter came on before Justice Feasby who concluded in Sylvestre that secession and independence as contemplated by the petition would contravene both Charter rights and constitutionally protected treaty rights (at paras 244, 245). Justice Feasby did not express an opinion on whether the Crown might also be in breach of its duty to consult and, if necessary, to accommodate Indigenous people. Justice Feasby rendered his judgment on December 5, 2025 the day after Bill 14, Justice Statutes Amendment Act, 2025, which proposed yet more amendments to the CIA, received first reading. Following Justice Feasby’s decision, the CEO formally rejected the First Proposal on December 8, 2025 on the basis that it did not comply with the Act.

Bill 14, ultimately enacted as SA 2025 c 22 and proclaimed in force December 11, 2025, removed the right of the CEO to state a question for the Court. Importantly for present purposes it also contained a transitional provision addressing the legal effect of the enactment on pending petitions including, potentially, Sylvestre’s First proposal, as well as a legislative petition proposing to ban new coal mining activities on the eastern slopes sponsored by Corb Lund. Corb Lund also refiled his initiative relying on the transitional provision of Bill 14: for details of that petition (which is still collecting signatures until June 10, 2026) see here.

Transitional

71.1(1)  An application for the issuance of an initiative petition made before the coming into force of this section for which an initiative petition has not been issued under section 3(3)(a) as of the coming into force of this section is deemed to have never been made.

(2)  If an application is deemed to have never been made under subsection (1), the applicant may submit a notice of intent with the same subject?matter as the application deemed to have never been made, and if the applicant does so within 30 days of the coming into force of this section, the application fee required under section 2(2)(h) is waived in respect of a new application submitted in respect of the notice of intent.

(3)  If the Chief Electoral Officer has stated a question in the form of a special case to the Court under section 2.1 as it read immediately before the coming into force of this section, the special case is discontinued without costs to any party or any person granted status to intervene in the special case.

(4)  Except as otherwise provided in this section, this Act as it read when an application for the issuance of an initiative petition was submitted shall apply in respect of that application and any resulting initiative petition.

Sylvestre considered that this transitional provision applied to his First Proposal and he wasted no time in filing a notice of intent with the CEO with a slightly re-stated question on December 11, 2025. The re-stated question (the “second proposal”) was as follows: “Do you agree that the Province of Alberta should cease to be a part of Canada to become an independent state?”

Under the current CIA as amended by Bill 14 the initial steps of the petition process consist of the following:

• Elector submits to the CEO a notice of intent to apply for the issuance of an initiative petition: s 1.1(1).
• CEO acknowledges receipt and publishes information on the website: s 1.1(5).
• Within 30 days of receipt of acknowledgement from the CEO, a proponent applies to the CEO for issuance of the petition: s 2(1).
• CEO determines if the requirements of the legislation have been met and if they have, the CEO provides a copy of the application to the Minister of Justice and concurrently provides notice to the proponent: s 2.2.
• If satisfied that the proponent has appointed an eligible chief financial officer, the CEO issues the petition: s 3(3).

Under these new rules there is no statutory pre-condition of conformity with the Constitution, and, as already noted, no opportunity for the CEO to state a case to the Court of King’s Bench. But this of course does not prevent a person or persons, with standing, from bringing an ordinary application for judicial review of a statutory decision on either or both administrative law or constitutional grounds (see CIA, s 53). And that was what the applicants did in the ACFN case that is the subject of this post.

The applicants’ administrative law arguments focused on whether the CEO made a reviewable error when they approved the application for issuance of the petition on December 22, 2025 and more specifically when they issued the petition for the second proposal on January 2, 2026. This in turn engaged the interpretation of the transitional provision of Bill 14, quoted above. The constitutional law arguments dealt with treaty rights and the duty to consult and accommodate.

The Administrative Law Issues

The first step in assessing whether or not the CEO made a reviewable error in issuing the petition for the second proposal was to establish the applicable standard of review for the CEO’s decision. Justice Leonard concluded that the standard of review for the administrative law question was that of reasonableness: ACFN at para 99, citing Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (CanLII). Vavilov instructs that the starting point for assessing the reasonableness of a decision is the reasons given by the decision-maker. In this case the CEO provided no formal reasons for the decision to accept the application and issue the petition, but Justice Leonard concluded that the CEO must have applied the transitional provision of Bill 14 as part of their decision-making for the following reasons:

1. There is no dispute that the First Proposal and the Second Proposal are substantially the same questions.
2. On July 4, 2025, the Proponent submitted an application related to the First Proposal, along with the prescribed fee of $500. A handwritten notation on a letter dated December 11, 2025, from counsel for Mr. Sylvestre to the CEO indicates that there was a request to apply the $500 fee from the previous application to the second application.
3. The evidence before the Court includes an admission by the CEO to the effect that he “applied the transitional provisions in Bill 14 to apply the application fee from Mr. Sylvestre’s first application to the Notice of Intent contained in the Certified Record in the present proceedings.”
4. Absent the Transitional Provisions, the application fee was not otherwise refundable in these circumstances (Citizen Initiative Regulation, Alta Reg 54/2022 (in effect between 2022-04-05 and 2026-01-06), s 2(3)). (ACFN at para 97)

The issue for the Court therefore was whether the CEO could reasonably have concluded that Sylvestre’s first application was “deemed never to have been made” under s 71.1(1) and was therefore entitled to the benefit of s 71.1(2). Vavilov instructs that “[t]he party challenging the decision bears the burden of demonstrating that the decision is unreasonable” (Vavilov at para 100) and that:

There are two types of fundamental flaw: the first is a failure of rationality internal to the reasoning process; and the second arises when a decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it (Vavilov at para 101). (ACFN at para 88)

The reasonableness of a statutory decision-maker’s interpretation of its own statute is carried out in light of ordinary principles of statutory interpretation that require attention to the text, context and purpose of the statutory provisions at issue (ACFN at paras 100 – 107).

In this case, the text supported the applicants. At the time Bill 14 entered into force there was no live application pending before the CEO because the CEO, acting on the basis of Justice Feasby’s judgment in Sylvestre, had rejected Sylvestre’s application:

Simply put, the First Proposal was not pending when the amendments came into force. It had been rejected and had come to an end. (ACFN at para 115)

It was a dead parrot. Bereft of life. Expired.

The context for s 71.1(1) and (2) included subsection (3), which provided for the discontinuance of any stated case. That provision may have dissolved any possibility of an appeal, but it did not address the status of an application that had already been rejected. There is nothing in the section that revives such an application such that it can benefit from the deeming provision in subsection (1). No doubt the legislature could have so provided but it did not do so.

As for purpose, Justice Leonard seems to have focused on the purpose of Bill 14 more generally rather than s 71.1 specifically since she held that the purpose of the amendments was “to expedite the [petition] process and ensure referendum proposals were not delayed by Court proceedings” (ACFN at para 141 and more generally at paras 141 – 150). That said, Justice Leonard also seems to have understood that perhaps one of the purposes of the transitional provision was to benefit a person in the position of Sylvestre (see her comments on “context” at paras 120 – 126); the question for the Court  was whether the provisions of  s 71.1 were capable of achieving that result (ACFN at para 126.) Overall, it seems that Justice Leonard was of the view that such an inferred purpose could not overwhelm the plain meaning of the text. In sum:

The CEO erred in law in applying the Transitional Provisions to the First Proposal. That error was central to the CEO Decision and undermines the rationality of the decision. The CEO did not interpret the Transitional Provisions in a manner consistent with the text, context and purpose which he was required to do. The Transitional Provisions, properly interpreted, did not permit the Transitional Provisions to apply to the First Proposal. The CEO’s failure to consider the text, context and purpose, key elements, affected the outcome and renders the CEO Decision unreasonable. (ACFN at para 155)

That was enough to decide the judicial review application in favour of the applicants. It is notable that this reason for decision was based on a pure administrative law argument. The argument could have been mounted by any party with standing. It is not an argument that required an Indigenous applicant.

But while that was enough to decide the case, Justice Leaonard went on to consider an additional ground for review raised by the Blackfoot Nations as well as a duty to consult argument raised by both applicants.

The additional Blackfoot Nations argument is best thought of as an administrative law argument informed by constitutional law. Essentially, the argument is that the constitution constrains all administrative decision-making, and, in this case, Justice Feasby had already concluded in Sylvestre that a citizen initiative question, very much like the revised question before the CEO, was inconsistent with the constitutionally protected treaty rights of the treaty nations of Alberta. While Justice Feasby reached that conclusion in the context of applying the CIA as it stood at the time, and while the Act no longer expressly requires a consideration of the constitutionality of a proposal before it can be accepted, Justice Leonard agreed with the Blackfoot Nations that the CEO’s failure to grapple with the implications of Feasby J’s decision rendered the CEO’s decision unreasonable:

[The decision of Justice Feasby in Sylvestre] is information that formed part of the context and record before the CEO, and that he, as an administrative decision-maker, had to consider. The omission of the CEO to consider Sylvestre and the findings within do not inspire confidence in the outcome reached by the CEO (Vavilov at para 122). Approving the Second Proposal, in the face of the findings in Sylvestre, was unreasonable and the CEO erred in granting the approval. (ACFN at para 164)

In sum, I think that this falls short of concluding that the revised question is also unconstitutional, but it is instead a conclusion of administrative law to the effect that the CEO’s failure to grapple with the obvious constitutional issue (obvious because of the relevant background facts and circumstances including the Sylvestre decision) made the CEO’s decision unreasonable because it was incompletely reasoned and failed to recognize possible constraints on the exercise of the statutory discretion.

The Duty to Consult

The applicants also argued that the CEO’s decision to allow the petition to proceed engaged the duty to consult. The argument seems to have ranged across a number of different formulations including the following: did the decision trigger a duty to consult; did the CEO have a duty to consult; did the CEO have a duty to satisfy themselves that the duty if triggered had been discharged by the Crown (ACFN at paras 165 – 170).

In the end, Justice Leonard (largely following Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43 (CanLII); for ABlawg comment see here) concluded that the CEO had the implied power to determine questions of law (after all the CEO must decide whether a petition is a policy petition, a constitutional petition or a legislative petition) and therefore also the power to determine questions of constitutional law unless the legislature had chosen to limit that power. While the province pointed to the Administrative Procedures and Jurisdiction Act, RSA 2000, c A-3 (APJA) and the Designation of Constitutional Decision Makers Regulation, Alta Reg 69/2006, Schedule 1 as evidence that the CEO had no power to determine a question of constitutional law, Justice Leonard seems to have been of the view that at least some of the duty to consult issues fell outside the relevant branch of the definition of a “question of constitutional law” i.e. “a determination of any right under the Constitution of Canada” (at para 188) – perhaps because the duty is rooted in the honour of the Crown rather than any specific provision of the Constitution. As such Justice Leonard concluded that:

… the CEO had jurisdiction to consider whether the duty to consult was engaged. The CEO failed to recognize this jurisdiction and assess whether the duty to consult was triggered in this case. (ACFN at para 196)

That still left the question of whether the duty to consult was triggered. The parties agreed on the relevant test for this question and the standard of review (correctness) (ACFN at paras 91 – 93), but not its application. The agreed test is as follows:

1. Crown’s real or constructive knowledge of an Aboriginal or Treaty right;
2. Contemplated Crown conduct;
3. Potential adverse effects on the right arising from the Crown conduct issue. (ACFN at para 205)

Given the background to this case, including the Sylvestre decision, the notoriety of treaty rights (Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69 (CanLII)) and the CEO’s notification to the Minster of the amended petition, it was fairly easy for Justice Leonard to conclude that the Crown had the requisite knowledge. And, notwithstanding the status of the CEO as an officer of the Legislature (Election Act, RSA 2000, c E-1, s 2(2)) independent of Crown control, Justice Leonard also found that the CEO’s actions could amount to Crown conduct for the purposes of the duty to consult. Justice Leonard reached this conclusion partly on the basis of the Court’s decision in Clyde River (Hamlet) v Petroleum Geo-Services Inc, 2017 SCC 40 (CanLII) (AFCN at para 234 and see ABlawg post here) but also on the basis of earlier analysis in the judgment where Justice Leonard noted the inexorable nature of the constitutional referendum proposal provisions of the CIA:

… I have already found that the framework of the Amended CIA provides that upon the CEO verifying that the Second Proposal complies with statutory requirements, including verifying that the signature thresholds are met, it is mandatory for the executive to undertake the subsequent actions outlined in the Amended CIA and the Referendum Act. This means, once an initiative petition is approved and the required signatures are obtained, the executive must hold a referendum and must implement the results of the referendum. (ACFN at para 232)

There was also, given the findings in Sylvestre and the inexorable nature of the process once initiated, potential for adverse effects arising from the Crown conduct (ACFN at para 238).

In sum, the CEO’s decision triggered the Crown’s duty to consult. As noted by Justice Leonard: “No consultation occurred. Alberta breached its duty to consult with the Applicants” (ACFN at para 241). This did not mean that the CEO had a duty to consult: “The CEO does not represent the Crown for the purpose of fulfilling the duty to consult. It is Government, as the party that would implement secession that must engage in consultation” (ACFN at para 240).

Subsequent Events and Commentary

Justice Leonard’s decision has already (and predictably) attracted criticism from pro-separatist forces as well as those who think that the courts should not serve as “gatekeepers” to the exercise of direct democracy. For example, the ink was barely dry on the decision before Premier Danielle Smith weighed in, describing the decision as anti-democratic and promising to appeal it. The promise to appeal in turn attracted the ire of others who thought that an appeal could be left in the hands of the separatists, rather than spending public money to once again further the separatist cause. Bruce Mcallister, the Executive Director of the Premier’s Office, also weighed in yoking criticism of Justice Leonard’s judgment to partisan comments on “Trudeau appointed judges” thus harkening back to the Premier’s earlier proposals to carve out a larger provincial role in judicial appointments through an additional referendum question. And for a variety of different views on Justice Leonard’s ruling see a recent issue of the Walrus here.

There is also talk (see here and here) that Premier Smith will simply decide to put a separatist question on the fall referendum ballot, completely independent of the Sylvestre initiative. Section 1 of the Referendum Act, RSA 2000, c R-8.4 provides authority for this, but any effort to use this mechanism is likely equally vulnerable to the duty to consult and breach of treaty arguments illustrated in both Sylvestre and ACFN, as well as possible international law arguments as articulated in Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 SCR 217. Alberta First Nations are clearly anticipating such a move. Indeed, ACFN has already taken steps to protect its position and put the Province on notice of its legal position with an extensive brief to Cabinet which it has also posted on its website.

This post may be cited as: Nigel Bankes, “When is a Citizen Initiative Petition a Dead Parrot?” (21 May 2026), online: ABlawg, http://ablawg.ca/wp-content/uploads/2026/05/ Blog_NB_DeadParrot.pdf

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