Executive Summary: Key Legal and Evidentiary Issues

• Fort McMurray 468 First Nation sought standing to request a regulatory appeal of AER approvals for an oilfield waste management facility located approximately 35 kilometres from Fort McMurray, arguing the approvals could adversely affect members' treaty and Aboriginal rights.
   
• Standing under the Responsible Energy Development Act (SA 2012, c R-17.3) (REDA) requires an "eligible person," defined as someone who is "directly and adversely affected" by the decision at issue.
   
• Central to the dispute was whether the AER applied the correct legal standard in finding the First Nation's evidence too generalized to establish the requisite connection between the approvals and the asserted treaty and Aboriginal rights.
   
• Evidentiary shortcomings in the First Nation's technical report (the Dillon Report) — including vague location references and reliance on studies conducted for other projects — formed the basis of the AER's finding that standing had not been established.
   
• The Court of Appeal held that whether evidence meets the specificity threshold is a question of fact, not law, placing the issue outside the appellate court's jurisdiction under s 45(1) of the REDA.
   
• Dismissal of the First Nation's argument regarding cumulative effects of past resource development turned on the principle that standing depends on whether the specific approval decisions could adversely affect treaty or Aboriginal rights, not on prior resource development alone.

Facts of the case

Fort McMurray 468 First Nation (the First Nation), a Treaty 8 nation, holds treaty and Aboriginal rights — including hunting, fishing, trapping, harvesting, and traditional cultural and spiritual practices — in the area surrounding its four reserves near Fort McMurray, Alberta. In 2022, the Alberta Energy Regulator (AER) granted AdhMor Ltd. initial approvals for an oilfield waste management facility located approximately 35 kilometres from Fort McMurray, situated in the median between the northbound and southbound lanes of Highway 63. The median covers 35 hectares, of which the facility occupies 1.08 hectares. The facility receives, processes, and disposes of oilfield waste from upstream oil operations, separating it into process fluids, residual oil, and residual solids. The First Nation did not challenge those initial approvals.

In 2023, AdhMor sought further approvals: a Facility Approval under the Oil and Gas Conservation Act (RSA 2000, c O-6) issued on September 21, 2023, Well Licence Amendments to extend drilling commencement deadlines to the end of July 2024 (also granted September 21, 2023), and a Miscellaneous Lease under the Public Lands Act (RSA 2000, c P-40) — a conversion from the earlier Mineral Surface Lease to authorize operation of the waste management facility. These three approvals (collectively, the Approvals) form the subject of the appeals. The facility site lies eight kilometres from the First Nation's most populous reserve and within a 10-kilometre radius of its four reserves. The site had previously been forested until Highway 63 was twinned in 2015, when Alberta Transportation cleared 88 acres of trees, topsoil, and clay. By 2023, the site was already highly disturbed and situated between the lanes of a busy highway carrying approximately 4,000 vehicles per day.

Statutory framework and provisions at issue

Regulatory appeals of AER decisions are governed by s 38 of the REDA, which requires both an "appealable decision" and an "eligible person." Section 36(b) of the REDA defines an "eligible person" as one who is "directly and adversely affected" by a decision. For decisions made under the Oil and Gas Conservation Act, every decision made without a hearing constitutes an "appealable decision": s 36(a)(iv). For decisions under the Public Lands Act, an "appealable decision" requires both that it was made without a hearing and that the person requesting the appeal is "directly and adversely affected" by it: s 36(a)(iii) of the REDA, read with s 121 of the Public Lands Act and ss 211(a) and 212(1)(b) of the Public Lands Administration Regulation, Alta Reg 187/2011. In practical effect, the "directly and adversely affected" requirement governs eligibility under both regimes. The phrase is not defined in the REDA, and its breadth signals a legislative intention to confer broad discretion on the AER to assess whether a person is sufficiently affected.

Reasoning and analysis

In the summer and fall of 2023, the First Nation filed requests for a regulatory appeal under s 38 of the REDA, supported by submissions about potential adverse effects on members' constitutionally protected rights. The First Nation commissioned a technical report — the Dillon Report — which provided an overview of potential impact pathways on members' rights. The Dillon Report drew on studies completed for other projects and past discussions with First Nation members rather than facility-specific traditional knowledge and land use data. It referred to a "heat map" showing moderate to high engagement in traditional uses within 30 kilometres of the facility site between 2006 and 2024, and noted that generations of members had engaged in hunting, trapping, and berry picking in areas along what is now Highway 63. However, it did not identify specific traditional use sites, the particular practices engaged in, the timing of those practices, or how the Approvals would affect them. It also acknowledged that traditional uses along Highway 63 ceased when the land was cleared during the 2015 twinning project.

In March 2025, the AER dismissed both requests for a regulatory appeal, finding the First Nation was not an "eligible person" with respect to any of the Approvals and that the Miscellaneous Lease was not an "appealable decision." The AER framed the central issue as whether the First Nation had shown that its members exercise rights on or in proximity to the facility such that those rights may be affected by the Approvals. Finding the Dillon Report too generalized — vague about location, timing, and the nature of specific traditional uses — the AER concluded the evidence was insufficient to establish the requisite connection. It declined to consider cumulative effects arguments, finding them unnecessary given that the more basic question of whether the Approvals could affect the asserted rights had not been answered.

The First Nation obtained permission to appeal to the Court of Appeal in Fort McMurray 468 First Nation v Alberta Energy Regulator, 2025 ABCA 242, granted by Antonio J.A. on June 30, 2025, on the basis that the proposed grounds raised arguable questions of law of sufficient importance concerning the interpretation of the "directly and adversely affected" test and the role of Ministerial Order 53/2014. The First Nation advanced two grounds on appeal: first, that the AER applied an unduly restrictive interpretation of the "directly and adversely affected" requirement; and second, that the AER erred in refusing to consider the cumulative impacts of the Approvals on treaty rights and traditional uses.

The Court of Appeal (Ho, Feth, and Shaner JJ.A.) dismissed both grounds. On the first ground, the Court confirmed that determining whether a person is "directly and adversely affected" is largely a question of fact for the AER. Drawing on Dene Tha' First Nation v Alberta (Energy and Utilities Board), 2005 ABCA 68, the Court affirmed that the AER cannot find standing without evidence showing some degree of location or connection between the proposed work and the asserted rights, and that the required degree of specificity is itself a factual question. The Court found no extricable error of law in the AER's specificity assessment: no fixed legal rule prescribes the level of specificity required, meaning any error would be one of fact or mixed fact and law — outside this Court's jurisdiction under s 45(1) of the REDA. The Court also rejected the First Nation's argument that the AER had applied an excessively high standard of proof, finding the AER had correctly framed the standard as whether the evidence showed the members' rights "may be affected" by the Approvals.

On the second ground, the Court confirmed that standing under s 36 of the REDA depends on whether the specific approval decisions could adversely affect treaty or Aboriginal rights, not on the cumulative effects of prior resource development standing alone. While cumulative effects may be relevant to the seriousness of adverse effects once standing is otherwise established, they do not substitute for evidence showing the specific Approvals could impair rights. The Court found that the AER did not take an unduly narrow view of cumulative effects — it simply concluded the threshold showing had not been met and that the cumulative effects analysis was therefore unnecessary. The Court was equally unpersuaded that the AER conflated the standing test with the higher standard for treaty infringement, finding the AER's reasons showed it understood the inquiry was the more basic one of whether the Approvals could adversely affect the asserted rights.

Ruling and overall outcome

The Court of Appeal dismissed the appeal in its entirety. Alberta Energy Regulator and AdhMor Ltd. were the successful parties. The Court confirmed that the AER applied the correct legal framework governing the "directly and adversely affected" requirement for standing under the REDA, and that no error of law was disclosed in either the AER's specificity assessment or its decision not to address cumulative effects. No monetary award or costs order is specified in the decision.