NAFTA, Alberta Oil Sands Royalties, and Change: Yes We Can?

Abstract

The Government of Alberta has recently announced that it intends to increase oil sands royalty rates. This article reviews these proposed changes to determine if they comply with the investment protection obligations Canada assumed under c. 11 of the North American Free Trade Agreement (NAFTA). In addition to ensuring non-discriminatory treatment of investors, c. 11 of the NAFTA prohibits expropriation of investments without compensation. What constitutes expropriation under the NAFTA may be broader than the expropriation protection under either American or Canadian domestic law. The result is that American investors in Canada may have greater protection against expropriation than Canadian investors in Alberta. Likewise, Canadian investors in the United States may also be in a preferred position relative to American investors in their own country. The article concludes that the Government of Alberta may have to compensate U.S. investors in Alberta’s oil sands if it carries through with the oil sands royalty changes it has announced.