It is increasingly being recognized that, among the many challenges in implementing measures to address government emission reduction targets, the development of innovative regulatory approaches will be critical. In the lead article in this issue of Energy Regulation Quarterly, titled “Agile Regulation for Clean Energy Innovation: Examining the Early Experience of Two Canadian Institutions,” Colleen Kaiser and Geoff McCarney assert that Canada’s energy regulators “must become more agile in nature” in order to accelerate the transition to a low carbon economy and capture a larger portion of the clean growth market. The article examines the early experience of two leading examples of “agile regulatory institutions”: the Ontario Energy Board Sandbox and the Vancouver Zero Emission Building Exchange.

Another daunting challenge in moving towards a low carbon economy is developing and implementing specific measures that move beyond the adoption of mere aspirational targets. It is perhaps not surprising that what are put forward as implementation actions sometimes, on critical examination, fall well short of the mark. Such appears to be the case with the recently enacted Canadian Net-Zero Emissions Accountability Act.[1] The Act prescribes a greenhouse gas emissions target for 2050 of “net-zero emissions,” without enacting any measures by which that target might be achieved. In his critical analysis, subtitled “A Legislative Placebo?”, Andrew Roman concludes that the Act “wrongly pretends that legislating the target will be a useful and effective new law for making the world livable for Canadians’ children and grandchildren…This is not so much a law as a public relations statement presented as law.”

Judicial developments with respect to Indigenous rights continue, with particular relevance to resource development and energy infrastructure projects. In their article “Cumulative Effects can Infringe Treaty Rights,” Wally Braul et al. analyze a recent decision of the B.C. Superior Court holding that British Columbia had infringed the Blueberry River First Nation’s rights under Treaty 8 by allowing decades of industrial development in the Nation’s traditional territory. The authors conclude that the Court’s interpretation of the law governing infringement of treaty rights, and of the Crown’s obligations under Treaty 8 is likely to inform other Canadian courts adjudicating claims of treaty right infringement by cumulative adverse impacts arising from Crown decisions authorizing resource development: “As such, this decision has potentially far reaching implications across the country.”

Much of the jurisprudence on Indigenous rights has revolved around the duty to consult and, where appropriate, accommodate. In “Reconciliation: The Public Interest and a Fair Deal,” Gordon E. Kaiser[2] analyzes a recent decision of the Alberta Court of Appeal that considers the role of reconciliation in the context of the public interest responsibility of the Alberta Utilities Commission. He concludes that “for all practical purposes a Canadian energy regulator in determining the public interest where aboriginal land interests are involved must make a determination if the economic settlement arrived at between the aboriginal interests and the utility is a fair agreement.”

The contents of the last issue of ERQ reflected the significant role of hydrogen in the list of emerging technologies aimed at advancing decarbonization, noting that Canada has a federal hydrogen program and reviewing British Columbia’s hydrogen program. In this issue, Bob Heggie reviews Alberta’s recently announced Hydrogen Roadmap in “Alberta Joins the Canadian Hydrogen Race.”

This issue of ERQ also includes reports on two recent cross-border webinars sponsored by the Canadian Chapter of the Energy Bar Association. In “Is Alberta the next Texas? – Lessons Learned from the Texas Energy Crisis,” referring to the Texas electricity crisis in February 2021, Bob Heggie reports on insights into the crisis from two former Chairs of the Federal Energy Regulatory Commission, a former Chair of the Alberta Energy and Utilities Board and a former President of the Alberta Electric System Operator. Gordon E. Kaiser reports on “Can Canada and the United States Agree on a Carbon Tariff?”

The issue closes with a review by Kenneth A. Barry of Bill Gates How to Avoid a Climate Crisis. Barry summarizes: “Gates has provided a determined yet realistic vision, a goldmine of facts, and an arsenal of recommendations of the indubitably complex task of confronting climate change across its many fronts…As an entry-level guide to the morass of information, predictions, and political hurdles surrounding climate change, it is ideal.”

  1.  SC 2021, c 22, assented to June 29, 2021.
  2. Gordon E. Kaiser is Co-Editor of Energy Regulation Quarterly.

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