Editorials

Editorial

Authors:  and | December 2025 – Volume 13, Issue 4, 2025

Since the publication of our last issue of ERQ, there has been no shortage of matters relating to energy regulation, economics and the interplay between law and policy that are at the focus of this publication. We are monitoring various significant developments that continue to advance, including the August 7 decision of the Supreme Court of British Columbia (Cowichan Tribes v Canada (Attorney General)[1], the September Alberta Court of Appeal decision in Mikisew Cree First Nation v Alberta[2], the June 2023 application by Trans Mountain Pipeline ULC to the Canadian Energy Regulator for Interim Final Tolls, and the regulatory and legal issues relating to Enbridge Inc.’s Line 5 crude oil pipeline.

After the passage of Bill C-5 “An Act to enact the Free Trade and Labour Mobility in Canada Act and the Building Canada Act”[3] in June, Prime Minister Mark Carney announced the creation of a Major Projects Office (“MPO”) at the end of August.[4] The MPO, headquartered in Calgary, is meant to be “a single point of contact to get nation-building projects built faster”[5], which it will do “by streamlining and accelerating regulatory approval processes” as well as “co-ordinat[ing] financing of these projects as needed.”[6] Calgary’s own Dawn Farrell, a veteran energy executive, was appointed to be the first CEO of the MPO. The Prime Minister also appointed an Indigenous Advisory Council (“IAC”) for the MPO, consisting of “eleven representatives from First Nations, Inuit, Métis, and Modern Treaty and Self-Governing communities”[7], the purpose of which is to provide “expert advice on policy, operational practices, and process improvements related to the inclusion of Indigenous perspectives on and interests in major projects”[8].

In early September, a list of 32 potential infrastructure projects under consideration by the federal government for inclusion as Projects of National Interest was leaked to the press[9] and on September 11, in Edmonton, Alberta, Prime Minister Carney announced a list of five projects for consideration by the MPO.[10] These are:

  1. Phase 2 of LNG Canada in Kitimat, British Columbia: This project would double LNG Canada’s production of liquefied natural gas and create one of the largest LNG facilities in the world.
  2. Darlington New Nuclear Project in Bowmanville, Ontario: This project would see the development of a small modular reactor (“SMR”), which would make Canada the first G7 country to have an operational SMR.
  3. Contrecœur Terminal Container Project in Contrecœur, Québec: This project would expand the Port of Montréal’s capacity by approximately 60 per cent.
  4. McIlvenna Bay Foran Copper Mine Project in East-Central Saskatchewan: This project would see the development of a copper and zinc mine in collaboration with the Peter Ballantyne Cree Nation.
  5. Red Chris Mine expansion in Northwest British Columbia: This project will see the mine’s lifespan expanded and its production increased.[11]

Absent from the initial announcement was any decision a new pipeline from Alberta to the west coast.[12] Alberta Premier Danielle Smith, nonetheless, seemed optimistic that such a project would make it to the MPO at some point in the future.[13] Despite the apparent omission, the Prime Minister’s announcement contained several projects that could be referred to the MPO in the future, among them, the Pathways carbon capture project in Alberta.[14] If this project is ultimately referred to the MPO, a new pipeline to tide water on the west coast could also be on track for the streamlined regulatory process. Other projects that the Prime Minister is considering include:

  1. Critical Minerals Strategy: Ontario’s Ring of Fire region could finally get the green light for development.
  2. Wind West Atlantic Energy: Over 60 GW of wind power in Nova Scotia and Atlantic Canada could be developed under this initiative.
  3. Arctic Economic and Security Corridor: Development of northern mineral exploration linked to Canada’s armed forces would be the theme of this project.
  4. Port of Churchill Plus: Manitoba’s Port of Churchill would be upgraded and access to it improved to allow for more trade with Europe and the world.
  5. Alto High-Speed Rail: A high-speed railway connecting Toronto to Québec City could be on the fast track for approval.[15]

Although there has been intense focus on the streamlined process set out in the Building Canada Act, both the Federal and British Columbia provincial government announced mid-September that the Ksi Lisims LNG project had received joint approval under the Impact Assessment Act (“IAA”), which means that the project can move to the next stage of seeking permits and authorizations.[16]

The flurry of positive announcements aside, geopolitical issues remain — with potentially serious consequences for multi-jurisdictional energy infrastructure, Canada’s economic growth, and the nation’s imperative for new trading and security partners. South of the border, challenges continue on the imposition of tariffs and the independence of the U.S. Federal Reserve. The question of whether the tariffs are even legal remains unresolved, as one United States federal appeals court has struck down the tariffs. The United States Supreme Court will now hear this question in November, and a decision could be issued next year.[17] Uncertainty continues to be one of the enduring features of the second Trump presidency.

Perhaps the best illustration of the change in approach required to meet Canada’s pressing challenges is the September resolution by Ontario’s NDP to “modernize its electricity policy in support of a low-carbon, good-jobs future for Ontarians”[18]. The resolution reverses a decades long position opposing nuclear energy and recognizes the well discussed made-in-Canada value chain for nuclear energy and its associated benefits.

This edition of ERQ begins with an article by Roy Hrab and Avi Lipsitz that considers recent decisions of the Ontario Energy Board (“OEB”) with respect to certain applications by Enbridge Gas Inc., the response to those decisions by the government of Ontario and the OEB itself, and the resulting legislative attempts to clearly set out the future role of natural gas in Ontario’s energy system. Hrab and Lipsitz effectively illustrate the consequences of regulatory determinations that do not give the appropriate weight to the policies of the government from whom the agency has received delegated authorities and powers to decide; the need for clear policy statements to guide delegated decision making, including a provincial statutory emissions reduction target; and general confusion about what constitutes “independence” for a regulator that has the dual responsibilities of implementing government policy and making adjudicative decisions within the context of that policy.

In the article “CEO of the Alberta Energy Regulator (“AER”) Denies Public Hearing Rights on a Coal Application”, authors Nigel Bankes, Professor Emeritus, and Shaun Fluker, Professor, both of the Faculty of Law, University of Calgary, delve into the unusual decision by the CEO of the Alberta Energy Regulator to overrule a decision by a Panel seized to hear an application by Summit Coal Inc. Bankes and Fluker analyze the decision made by the AER panel on standing to require a public hearing for Summit’s application and the CEO’s decision to reverse the decision of the Panel. The discussion focuses on the subject of standing to trigger an AER public hearing, in the context of a regulatory framework in which hearings to consider an application are relatively rare. The authors also discuss the possible implications of the decision to override the Panel on future applications and potential hearings.

Nancy Rubin, KC and Brianne Rudderham, both of Stewart McKelvey in Nova Scotia, explore a series of recent decisions by the Nova Scotia Utility and Review Board and the Nova Scotia Energy Board that attempt to balance customer and utility interests with respect to higher-than-expected cost of utility service. In this series of cases, significantly higher costs of power due to delays in the delivery of renewable energy to Nova Scotia from Muskrat Falls. Rubin and Rudderham write that the decisions illustrate a number of key regulatory principles, including intergenerational equity and the beneficiary-pays doctrine. They also assert that cooperative federalism and government financial aid when combined with thoughtful regulation can mitigate the cost pressures arising from the modernization and decarbonization of the electricity grid.

Professor Adebayo Majekolagbe comments on the International Court of Justice’s (“ICJ”) recent advisory opinion outlining states’ legal responsibilities on climate change under treaties and customary international law. The opinion, which is not legally binding, carries significant persuasive authority, especially for Canada. The opinion reinforces Canada’s obligations to reduce emissions, regulate corporate environmental impact, and support vulnerable nations. Majekolagbe argues that failure to meet these duties could result in international legal liability and financial reparations for climate-related harm.

Issue 4 concludes with an article by Ruppa Louissaint, the Director of Markets at Alberta’s Electric System Operator (“AESO”), providing an overview of Alberta’s new Restructured Energy Market (“REM”). Louissaint explains that the main goals of the AESO are to ensure reliability, affordability, and investment attractiveness while facing challenges from changing generation sources, rising demand, and transmission needs while reflecting Alberta’s unique grid characteristics. Addressing the transition to renewable and dispatchable generation while trying to strengthen investor confidence as well as modernize congestion management and pricing means that the AESO had to reexamine many of its market policies. The REM was officially launched in August 2025, and this article provides a succinct statement of the new plan.

« Previous

Leave a Reply