Written By Keeley Cameron, Simon Foxcroft, Rayna Lew, Sean Assie, Deidre Sheehan and Adam Williams

Demand for rare earth and critical minerals like lithium, uranium, nickel and vanadium is growing worldwide. Recently, the government of Alberta has taken steps to position the province as a contributor to this emerging global market. As part of this campaign, the government recently introduced the Renewing Alberta's Mineral Future strategy and action plan (the Strategy) and Bill 82.

Bill 82, or the Mineral Resource Development Act (the Bill or the New Act) was introduced by Alberta's Minister of Energy on November 4, 2021. The Bill was drafted in collaboration with the Mineral Advisory Council, which had input from various stakeholders and First Nations, Métis and Indigenous organizations. 

With the New Act, the government intends to provide certainty for the industry, help position the province as a mineral producer and spur growth in the sector. The government has also marketed the New Act as helping to support a future low-carbon economy.

Renewing Alberta’s Mineral Future

The Strategy is designed to help Alberta become a preferred producer of minerals and mineral products. It is intended to establish a path to market success while creating jobs and attracting investment to the province.

Alberta is home to reserves of minerals like lithium, uranium, vanadium, nickel, potash and diamonds. Some of these minerals are important in developing green energy, which the World Bank has predicted will drive a 500% increase in demand for production of minerals by 2050. Rare earth metals like lithium are used in creating batteries, including for electric-powered vehicles, and vanadium can be used for energy storage.

Coal, sand and gravel are not included in the Strategy.

The Strategy also intends to bring Alberta into alignment with the Canadian Minerals and Metals Plan (the Plan). The Plan was created with the intent of keeping Canada positioned as a global mining leader while promoting sustainable development, Indigenous participation and social acceptability.

The Strategy outlines six key areas to achieve its vision:

1. Increase public geoscience;
2. Enhance the fiscal and regulatory environment;
3. Promote responsible development;
4. Advance opportunities for Indigenous Peoples;
5. Develop public awareness and a skilled workforce; and
6. Promote innovation and industrial development.

As the last mineral strategy was written nearly 20 years ago, the New Act will provide an up-to-date and comprehensive regulatory framework for producers in Alberta, following jurisdictions like Saskatchewan, which updated its strategy in the last few years. 

Bill 82: The Mineral Resource Development Act

It is anticipated that the Bill will receive royal assent by the end of 2021. The New Act is intended to establish a regulatory framework for Alberta's critical and rare earth minerals industry, which to date has suffered from regulatory uncertainty.

The New Act will centralize all mineral regulatory functions with the Alberta Energy Regulator (the AER). Currently, regulation of Alberta's mineral resources is fragmented, falling under the purview of multiple agencies.

The New Act provides the AER with the power to make any order or direction that it considers necessary to effect the purposes of the Bill, which include but are not limited to:

• providing for the economic, orderly, efficient and responsible development of mineral resources in Alberta in the public interest;
• securing the observance of safe and efficient practices in the public interest;
• providing for the responsible management of wells, facilities, sites, mines, discard dumps and processing plants;
• controlling pollution and protecting the environment; and
• affording the resource owners the opportunity to obtain the owner's share of the production of mineral resources.

For a complete list of purposes, see section 2 of the Bill.

The powers vested in the AER in relation to minerals would be similar to those that currently exist for regulating the oil and gas sector. To achieve the goal of centralizing regulation of mineral resources, the New Act includes a number of related amendments to other acts. Upon the New Act coming into force, the Environmental Protection and Enhancement Act, RSA 2000 c E-12, the Geothermal Resource Development Act, the Natural Resources Conservation Board Act, RSA 2000, c N-3, the Oil and Gas Conservation Act, the Pipeline Act and the Responsible Energy Development Act, SA 2012, c R-17.3, will be amended. While the amendments are wide-ranging, they are primarily definitional changes and the addition of cross-references to related acts.

Implications of Bill 82

The New Act represents a significant change to the regulatory framework governing Alberta's mineral industry. The following are key takeaways:

• While the amendments should make it easier to seek regulatory approvals, it is unclear how these mineral projects will be impacted by increased regulatory requirements and what adjustments will be made to reflect differences between these projects and the types of projects the AER has historically regulated.
• The New Act may allow for increased ease in repurposing oil and gas wells for mineral projects. When repurposing occurs, the former owner is relieved of its obligations under the orphan fund administered by the AER. The New Act vests the AER with rule- and regulation-making authority respecting funding for the purposes of addressing the abandonment, remediation and reclamation of orphan sites. It is therefore possible that mineral production sites may attract future orphan funding.
• Regulation of existing mineral operations could change significantly with additional regulatory requirements. According to section 3 of the Bill, the New Act will apply to the development of all mineral resources in Alberta, regardless of whether the development commenced before or after the New Act comes into force. If the New Act is enacted in its current form, the mineral sector will be faced with a new regulatory regime as early as the end of this year.
• Application of the AER's closure requirements to mineral developments. The government has stated that regulation in this area is expected to mirror the oil and gas sector. The Strategy was developed in alignment with the National Orphaned or Abandoned Mines Initiative and the province plans to implement strict regimes regulating remediation and abandonment of projects to avoid issues with orphan developments.
• An increased load for the AER. While the one-window approach is expected to provide regulatory clarity and certainty for both industry and investors, regulating this area will mean additional burdens for the AER. Clients should also be aware that the AER will be "new" to regulating many of these minerals.

The Bennett Jones Energy Regulatory group continues to monitor developments in the area of mineral resource regulation, in particular the future of Bill 82. We are available to help organizations consider how these legislative changes may impact their operations.

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