Professor David Mullan’s annual review of “Developments in Administrative Law Relevant to Energy Law and Regulation” is eagerly anticipated within the energy regulation community. This, the first issue of the tenth volume of Energy Regulation Quarterly, opens with his review of 2021 developments.

The review provides a detailed analysis of a significant decision of the Alberta Court of Appeal that Professor Mullan concludes “almost certainly will have implications for the way in which the Alberta Utilities Commission…deals with matters engaging the rights, claims, and interests of Indigenous peoples as a component of its public interest jurisdiction.”

Professor Mullan’s review also revisits two “lingering issues” following from the 2019 leading decision of the Supreme Court of Canada in Vavilov v Canada (Minister of Citizenship and Immigration)^[1]: firstly, the standard of review that appeal courts should apply to their scrutiny of judicial review or appellate judgments; and, secondly, “does jurisdiction (or a very close approximation) still have legs in the Vavilovian era of judicial review?”

His review concludes with a comment, arising from a recent proceeding before the Alberta Utilities Commission on an application by the Commission’s Enforcement Branch, on “the obligations of regulated sectors towards those who are charged with regulating them.”

Amidst the controversy surrounding the enactment of Bill C-69, little attention was paid to the introduction, as part of the Canadian Energy Regulator Act^[2], of a federal regulatory framework for the development of offshore renewable energy (ORE). As long ago as 1973, Gérard V. La Forest (later Mr. Justice La Forest of the Supreme Court of Canada) wrote that “full and rational development” of the ORE sector in Atlantic Canada required effective federal legislative involvement. It would take more than 35 years for such involvement to materialize, in the form of a regulatory scheme for the permitting of ORE projects and offshore power lines, administered by the Commission of the newly-established Canadian Regulatory Agency.

In “The Regulation of Offshore Renewable Energy under the Canadian Energy Regulator Act: Towards Full and Rational Development of ORE in Atlantic Canada”, Daniel Watt and Lucia Westin provide a comprehensive introduction to both the potential of ORE and the regulatory framework that now governs its development.

As has been discussed in past issues of ERQ^[3], the establishment of the Alberta Energy Regulator in 2012 introduced a new “tripartite” model for regulatory tribunals in Canada that has since been adopted federally (with the replacement of the National Energy Board by the Canadian Energy Regulator) and for the Ontario Energy Board. The origins of the model and the reasons for its adoption are unclear. More importantly, several questions arise about the appropriateness of the model and its implications for the integrity and effectiveness of energy regulation. Robert B. Warren’s article on “The Governance of Regulatory Agencies – A Further Case Study of the Ontario Energy Board” offers an important contribution to the ongoing discussion.

This issue of ERQ closes with two book reviews by Kenneth A. Barry. The books — Dr. Steven E. Koonin’s Unsettled (2021) and Saul Griffith’s Electrify: An Optimist’s Playbook for Our Clean Energy Future (2021) — are described by Barry as “bookends in the ongoing debate over whether society should dramatically ramp down its dependence on hydrocarbons to meet its energy needs as the linchpin for stabilizing the presence of greenhouse gases…in the atmosphere.”

1. 2019 SCC 65.
2. SC 2019, c 28, s 10, replacing the former National Energy Board Act, RSC 1985, c N-7.
3. See e.g. Rowland J. Harrison QC, Neil McCrank QC and Ron Wallace, “The Structure of the Canadian Energy Regulator: A Questionable New Model for Governance of Energy Regulation Tribunals?” (2020) 8:1 Energy Regulation Q 48.