The challenges that continue to confront Canadian energy regulation are multi-dimensional and complex. It is convenient, however, to address these challenges under three general, interrelated headings: public acceptance (or “social licence”); aboriginal consultation; and climate change. Articles in this issue of Energy Regulation Quarterly offer valuable contributions to the ongoing dialogue in each of these areas.

The approval process for major pipeline projects in particular has become highly politicized, leading some to conclude that the regulatory system is “broken” or, in the preferred terminology of the federal government, must at least be “modernized”. In this environment, there could hardly be a clearer need for evidence-based research and analysis to underpin any reform exercise. Strengthening public confidence in Canadian energy policy, regulation and decision-making through such research and analysis, engagement and recommendations is the mandate of the Positive Energy project at the University of Ottawa, begun in 2015.

ERQ will publish a series of articles based on the research and analysis of the Positive Energy project, beginning in this issue with an overview of the project’s activities and research findings over the last three years. The title of the article by Michael Cleland and Monica Gattinger in this issue, “System Under Stress: Energy Decision-Making in Canada and the Need for Informed Reform”, captures well both the current condition of the energy regulation framework in Canada (“System Under Stress”) and the challenge ahead (“the Need for Informed Reform”).

Further challenges for energy regulators and project proponents arise from the continually emerging law with respect to aboriginal consultation. The implications of two recent significant decisions of the Supreme Court of Canada are discussed by Dwight Newman in his article on “Changing Duty to Consult Expectations for Energy Regulators:  Broader Implications from the Supreme Court of Canada’s Decisions in Chippewas of the Thames and Clyde River.”

Policy and regulatory measures to address climate change also continue to dominate the Canadian energy debate. The most recent developments in Ontario are reviewed by Tyson Dyck, Dennis Mahony, Henry Ren and Caitlin Milne in “Ontario’s Cap and Trade Agreement with Québec and California”, which will take effect on January 1, 2018.

Other contributions to this issue of ERQ cover a range of topics. In “Legislative and Regulatory Changes Governing Hydrocarbons and Pipelines”, Ludovic Fraser reviews recent developments in Québec.

In “Moving Forward with Tariff Reform”, Ahmad Faruqui and Mariko Geronimo Aydin review the four “waves” of electricity tariff reform that they identify as having evolved in the U.S. since the 1980s. The authors suggest that the “next wave of tariff reform is soon to come and it will empower customers with better tools and more information, enabling customers to contribute to efficiency improvements in power supply, and giving customers more control over the type and cost of power they consume.”

This issue of ERQ includes two case comments. Molly Reynolds, Caitlin Morin and Amir Eftekharpour comment on the recent decision of the Ontario Court of Appeal in Orlandis, holding that a utility sharing residents’ energy consumption data with police, which led to a search and criminal charges, violated the residents’ reasonable expectation of privacy. In “Energy Regulators and Cost Overruns: The Nova Scotia Maritime Link Decision”, our co-editor Gordon Kaiser comments on the most recent decision of the Nova Scotia Utility and Review Board arising from the troubled Muskrat Falls project and the Maritime Link.

The issue closes with a review by our co-editor Gordon Kaiser of the third edition of the standard reference Arbitration Law of Canada: Practice and Procedure by J. Brian Casey.


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