Monetary benefits of these projects are widely acknowledged, and my concern is not with how the Alberta government decides to allocate royalty revenue. In my view ERCA section 3 positions the ERCB as a key land-use decision maker in Alberta with a legal obligation to consider the socio-ecological effects of energy projects. The ERCB interprets its section 3 obligation as requiring a cost/benefit analysis. Not all land-use decisions should be made using a cost/benefit approach. For one thing, this utilitarian approach devalues non-quantifiable interests (such as many social and environmental concerns). Mitigation is an appropriate consideration, but not always an appropriate result. The ERCB has been making decisions this way for decades - even prior to the enactment of section 3 in 1993. Back then, the Board held that the enactment of section 3 simply codified existing practice. I strongly disagree with this. The Alberta Court of Appeal rarely hears this matter (and has dodged the issue in my view in those cases it has heard). Of note, the Court of Appeal recently granted leave in a case where the Board’s section 3 obligation is in question (ATCO Midstream Ltd. v. Alberta (ERCB), 2008 ABCA 231).

In a case such as this where everyone agrees the Alberta government is dragging its feet on socio-ecological issues associated with energy projects, the ERCB’s section 3 obligation has to be more than simply recommend the government stop dragging its feet.