Case information

Administrative law — Judicial review — Privative clause — Whether judicial review on questions of fact or mixed fact and law barred by privative clause — Responsible Energy Development Act, S.A. 2012, c. R-17.3, ss. 45, 56

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The applicant, Piikani Nation, supports the development of an open pit coal extraction project in Alberta. Pursuant to the Responsible Energy Development Act (the “REDA”), the project required the approval of the respondent Alberta Energy Regulator (the “AER”). The AER denied the project. The applicant exercised their right under s. 45 of the REDA to seek leave to appeal the AER’s decision to the Court of Appeal of Alberta on a question of law. This application was dismissed, as was an application for leave to appeal to this Court. The applicant then pursued an application for judicial review of the AER’s decision. The AER moved to strike this application based on the privative clause in s. 56 of the REDA, which bars review of the AER’s decisions except through the statutory right of appeal.

The application judge granted the motion and dismissed the application for judicial review, holding that the limited right of appeal and privative clause in the REDA, the constitutionality of which the applicant did not challenge, were institutional design choices that reviewing courts must respect. The Court of Appeal dismissed an appeal, holding that the applicant’s arguments amounted to a constitutional challenge that it was inappropriate to adjudicate for the first time on appeal, in the absence of a factual record.