Executive Summary: Key Legal and Evidentiary Issues

• Legality of the Alberta Energy Regulator’s denial of the Applicant’s regulatory appeal requests.

• Interpretation and application of the “direct and adversely affected” test under the legislation.

• Relevance and legal impact of Ministerial Order 53/2014 in determining standing.

• Jurisdiction of the Alberta Court of Appeal limited to questions of law under section 45(1) of REDA.

• AER’s position on potential procedural delays not raised as a concern.

• Justification for granting leave based on the importance and merit of the proposed legal issues.

Facts and outcome of the case

Fort McMurray 468 First Nation applied to the Alberta Court of Appeal for permission to appeal a decision made by the Alberta Energy Regulator (AER) on March 4, 2025. The AER had denied the Applicant’s Requests for Regulatory Appeal Nos. 1943588 and 1948977. Both the Applicant and the AER submitted written and oral arguments regarding the application for leave. AdhMor Ltd., the other named respondent, did not participate in submissions but stated via letter that it reserved the right to take part in the appeal if leave were granted.

Under section 45(1) of the Responsible Energy Development Act (REDA), the Court may permit appeals from AER decisions on questions of law or jurisdiction. The Court assessed the application based on established factors, including whether the issues raised are of general importance, significant to the decision, arguable on legal grounds, and whether an appeal would hinder the regulatory process. These criteria are drawn from Ranchland (Municipal District No 66) v Alberta Energy Regulator, 2024 ABCA 309 at para 3.

Justice Jolaine Antonio concluded that the appeal met the legal threshold and granted permission. The AER had not argued that the proceedings would be unduly hindered by the appeal, likely due to its limited role as a tribunal respondent. The Court noted that the facts and issues distinguished this case from earlier authorities cited by the respondent and confirmed that the appeal raised legal questions within the Court’s jurisdiction.

The proposed grounds of appeal involved three legal issues, including the interpretation and content of the “direct and adversely affected” test, and the role of Ministerial Order 53/2014. These were deemed to be of sufficient legal significance and merit to justify appellate review by a panel of the Court. The decision made clear that, as leave had been granted, it would be inappropriate to comment further on the substance of the appeal.

Justice Antonio also issued two reminders: first, that the Court of Appeal’s jurisdiction is limited to questions of law, and second, that the AER remains bound by the legal constraints established in Ontario (Energy Board) v Ontario Power Generation Inc, 2015 SCC 44, [2015] 2 SCR 147. The reasons for decision were issued in Calgary, Alberta, on June 30, 2025, following a hearing on May 22, 2025.

The decision does not include any order for monetary awards, costs, or damages.