Privative Clauses vs. Statutory Rights of Appeal under Alberta’s Responsible Energy Development Act

This blog post addresses the recently issued decision of the Alberta Court of King’s Bench, Stoney Nakoda Nations v His Majesty the King In Right of Alberta As Represented by the Minister of Aboriginal Relations (Aboriginal Consultation Office), 2023 ABKB 700, which considers the availability of judicial review under Alberta’s  Responsible Energy Development Act, SA 2012, c R-17.3  (“REDA” or the “Act”) in light of the Act’s privative clause and statutory right of appeal.

In this case, the Alberta Energy Regulator (“AER”) sought to dismiss several judicial review applications filed by Northback Holdings Corporation, Stoney Nakoda Nations, and Piikani Nation (together the “Applicants”).

The Applicants’ underlying judicial review applications sought to challenge the AER’s decision under REDA to deny approval of Northback’s Grassy Mountain Coal Project. The Applicants had previously sought to challenge the AER’s denial of the project at the Alberta Court of Appeal (“ABCA”) pursuant to s. 45 of REDA. Section 45 of REDA permits appeals of AER decisions to the ABCA on questions of jurisdiction (whether the decision maker had the authority to make the decision) or on questions of law (whether the issue relates to the understanding of legal principles). After having lost at the ABCA, the Applicants then tried to challenge the AER’s denial of the Project at the Alberta Court of the King’s Bench on questions of fact and mixed fact and law (ie. whether the decision maker made an error in respect of the fact, or the application of legal principles to a set of facts).

The AER sought to dismiss the applications on the basis of s. 56 of REDA, a privative clause which states that subject to sections 38, 42 (neither of which are relevant for this case) and 45, “every decision of the Regulator or a person carrying out the powers, duties and functions of the Regulator is final and shall not be questioned or reviewed in any court by application for judicial review or otherwise” (emphasis added). The AER argued that the Applicants, through their challenge under s. 45 of REDA, had already exhausted their right to have the decision reviewed, and that further review was prohibited by the s. 56 privative clause.

Conversely, the Applicants asserted their constitutional right to judicial review under s. 96 of the Constitution Act, 1867, and argued that, pursuant to the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“Vavilov”), legislatures cannot shield administrative decisions from judicial scrutiny. The Applicants thus argued that neither s. 56 of REDA, nor the circumscribed right of appeal under s. 45 could be used to prevent it from pursuing judicial review of the AER’s decision on questions of fact and mixed fact and law.

The Court sided with the AER and found that the statutory right of appeal at s. 45 of REDA provided the Applicants with sufficient opportunity to have the AER decision reviewed. The Court reasoned that while legislatures cannot shield administrative decisions entirely from judicial scrutiny, they can shield them to some extent. The Court found that because REDA contains a statutory right of appeal (s. 45, which in this case had already been exercised by the applicants), s. 56 of REDA did not completely insulate the AER’s decision from judicial scrutiny. The Court held that because AER decisions are not entirely shielded from review, s. 56 is not inconsistent with the SCC’s ruling in Vavilov, or the Applicants’ constitutional right to judicial review.

Those practicing in the area of Alberta regulatory law will already be familiar with the constraints on challenging decisions of the AER. This case provides further clarity in respect of those limits, definitively foreclosing the Alberta Court of King’s Bench as an avenue for challenging decisions of the AER.