Executive Summary: Key Legal and Evidentiary Issues

• The Court considered an application by Sturgeon Lake Cree Nation for permission to intervene in an appeal from a decision of the Alberta Energy Regulator’s chief executive officer cancelling a public hearing under section 42 of the Responsible Energy Development Act.

• The underlying AER proceeding concerns Summit Coal Inc.’s Mine 14 coal project near Grande Cache, for which a hearing panel had previously invited participation and then declined to cancel the hearing before the chief executive officer reconsidered and cancelled it.

• Sturgeon Lake Cree Nation asserted inherent, aboriginal, and treaty rights under Treaty 8 and section 35(1) of the Constitution Act, 1982, alleging that the project is on or near lands traditionally used by its members for cultural purposes and for activities such as fishing, hunting, and trapping.

• The Nation sought to make submissions on: (a) the role of AER hearing processes in identifying and mitigating impacts of energy resource development on Indigenous rights; and (b) the alleged negative impacts of the AER’s and Summit’s proposed interpretation of section 42 on the independence of AER hearing commissioners and the Regulator’s ability to fulfill constitutional obligations to Indigenous peoples.

• The Court applied the intervention framework under the Alberta Rules of Court and prior case law, concluding that Sturgeon Lake Cree Nation would be affected by the interpretation of section 42 of REDA and could bring unique expertise, while recognizing a risk of expanding the issues.

• Permission to intervene was granted subject to conditions limiting the Nation’s submissions to the first question in the order granting permission to appeal, prohibiting new evidence, capping its factum at 10 pages with a set filing deadline, and providing that no costs be awarded to or against it, with no separate costs awarded for the application and no present permission for oral submissions.                                                                                                                                                                                                                                                                                                                                                                                                                                                           

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Background and facts

This case concerns an application to intervene in an appeal arising from an Alberta Energy Regulator decision. The citation is Alberta Wilderness Association v Alberta Energy Regulator, 2026 ABCA 82. The applicant, Sturgeon Lake Cree Nation, sought permission to intervene in an appeal before the Court of Appeal of Alberta. The decision under appeal was made by the chief executive officer of the Alberta Energy Regulator (AER). Relying on section 42 of the Responsible Energy Development Act, SA 2012, c R-17.3 (REDA), the chief executive officer reconsidered a decision of an AER hearing panel and cancelled a public hearing regarding a coal mine project. The reasons specify that the status of the project itself is not under appeal.

The coal project and AER hearing process. Summit Coal Inc applied to the AER to approve its Mine 14 coal project near Grande Cache. A panel of the AER invited interested parties to participate in a hearing. Four Indigenous groups responded and were granted full participation rights; Sturgeon Lake Cree Nation was not among them. Subsequently, the four Indigenous groups advised the panel that they no longer objected to Summit Coal’s application. The appellants, Alberta Wilderness Association and Canadian Parks and Wilderness Society, Northern Alberta, had full participation rights and continued to oppose the application.

The chief executive officer’s reconsideration under section 42 of REDA. After the Indigenous groups withdrew their objections, Summit Coal asked to have the hearing cancelled. The AER hearing panel denied this request. Summit Coal then asked the chief executive officer to reconsider the panel’s decision pursuant to section 42 of REDA. The chief executive officer reconsidered the decision, cancelled the remaining procedural steps, including the hearing, and transferred the proceedings record to the Regulatory Applications branch for a decision.

The proposed intervention by Sturgeon Lake Cree Nation

Sturgeon Lake Cree Nation’s asserted rights and interests. Sturgeon Lake Cree Nation applied to intervene in the appeal. It asserted inherent, aboriginal, and treaty rights under Treaty 8 and section 35(1) of the Constitution Act, 1982. The Nation stated that the coal mine project is on or near lands that its people have traditionally used for cultural purposes and for activities such as fishing, hunting, and trapping.

Issues the Nation proposed to address. The applicant indicated that it intended to make submissions on two issues it said had not been raised by the parties:
a) the critical role that the AER’s hearing processes play in enabling the AER to identify and mitigate the impacts of energy resource development on the rights of Indigenous people; and
b) the negative impacts that the AER’s and Summit’s proposed interpretation of section 42 of REDA will have on the independence of the AER’s hearing commissioners and the Regulator’s ability to fulfill its constitutional obligations to Indigenous people in a manner that upholds the honour of the Crown.

Positions of the parties on the intervention. Summit Coal argued that allowing Sturgeon Lake Cree Nation to intervene would improperly expand the issues before the Court. It submitted that the narrow issue on appeal is whether the chief executive officer has the statutory authority to reconsider a hearing panel decision and cancel a hearing when there are no longer any parties who are directly and adversely affected by, and opposed to, the project. The appellants and the AER did not take a position on the intervention application.

Legal framework for intervention and the court’s analysis

Authority and rules governing intervention. The Court noted that a single justice of the Court of Appeal may grant permission to intervene and impose conditions on the intervention under the Alberta Rules of Court, Alta Reg 124/2010, specifically Rules 14.37(2)(e) and 14.58(1). The reasons also record that, unless otherwise ordered, an intervenor may not raise or argue new issues under Rule 14.58(3).

Criteria for granting intervener status. The Court referred to Papaschase Indian Band (Descendants of) v Canada (Attorney General), 2005 ABCA 320. In that case, the Court stated that, as a general principle, an intervention may be allowed where the proposed intervener is specially affected by the decision facing the Court or has some special expertise or insight to bring to bear on the issues facing the Court. The reasons further cite the Supreme Court of Canada’s decision in R v Morgentaler, [1993] 1 SCR 462, where it was said that the purpose of an intervention is to present the court with submissions that are useful and different from the perspective of a non-party who has a special interest or particular expertise in the subject matter of the appeal.

Application of the test to Sturgeon Lake Cree Nation. The Court reviewed the applicant’s affidavits and concluded that they provide a sufficient basis to find that Sturgeon Lake Cree Nation will be affected by the Court’s interpretation of section 42 of REDA and that it can bring unique expertise to the analysis. The reasons make clear that the Court did not make any finding on the substance of the applicant’s proposed arguments, leaving that question for the appeal panel to determine.

Risk of expanding issues and use of conditions. The justice recognized that there is a risk the intervention could expand the issues before the Court. However, the reasons state that this risk can be managed through the imposition of conditions on the intervener’s participation.

Conditions on the intervention and participation rights

Specific conditions imposed. The Court granted Sturgeon Lake Cree Nation permission to intervene, subject to the following conditions:
a) The applicant’s submissions may address only the first question stated in the order granting permission to appeal.
b) The applicant shall not adduce evidence or supplement the record.
c) The applicant shall file and serve a factum not exceeding 10 pages on or before the appellants’ deadline for filing and serving their factum or factums.
d) No costs shall be awarded to or against the applicant in relation to the appeal.

Oral submissions and costs of the application. At the time of this decision, the Court did not grant the applicant permission to make oral submissions at the appeal hearing. The reasons state that it remains open to the appeal panel to grant such permission at any time before the hearing. For the intervention application itself, the Court ordered that no costs are awarded.

Outcome

Result of the application to intervene. The overall result is that Sturgeon Lake Cree Nation is granted permission to intervene in the appeal concerning the AER chief executive officer’s decision under section 42 of REDA to cancel the public hearing and related procedural steps. The intervention is allowed on the conditional basis described in the reasons, with the scope of submissions limited, no new evidence permitted, a page-limited factum with a specified filing deadline, and no costs awarded to or against the applicant in relation to the appeal or for the application.