Author: Shaun Fluker Page 32 of 38

B.Comm. (Alberta), LL.B. (Victoria), LL.M. (Calgary).
Associate Professor.
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A couple weeks ago on ABlawg I suggested that the law governing standing to contest an energy project in front of the Energy Resources Conservation Board (ERCB) is becoming unglued (see The problem of costs at the Energy Resources Conservation Board: Leave to appeal granted in Kelly #4).The first change came out of the Court of Appeal’s October 2009 decision in Kelly v. Alberta (Energy Resources Conservation Board, 2009 ABCA 349, (and see The Problem of Locus Standi at the Energy Resources Conservation Board: A Diceyan Solution). The Court of Appeal has subsequently granted two leave applications made by Susan Kelly that concern the interpretation of sections 26 and 28 of the Energy Resources Conservation Act (ERCA), R.S.A. 2000, c. E-10. These additional appeals have yet to be heard, but I am certain the Court’s ruling in both matters will result in further changes to the law concerning who must be heard at the ERCB. The ERCB’s recent standing ruling in West Energy/Daylight Energy Section 39 Review Decision, 2011 ABERCB 002 suggests to me that the Board has lost its way on how to apply section 26(2) of the ERCA.

The problem of costs at the Energy Resources Conservation Board: Leave to appeal granted in Kelly #4

By Shaun Fluker

On January 26, 2011

In Environmental, Intervenors and Standing

PDF version: The problem of costs at the Energy Resources Conservation Board: Leave to appeal granted in Kelly #4

Case considered: Kelly v. Alberta (Energy Resources Conservation Board), 2011 ABCA 19

The Court of Appeal has granted leave on a matter that I believe has the potential to produce one of the most significant decisions from the Court in some time concerning energy and environmental law in Alberta. This outcome is largely due to the persistence of Susan Kelly and many other residents, along with their counsel Jennifer Klimek, who have appeared in front of the Court numerous times in recent years seeking leave to appeal decisions by the Energy Resources Conservation Board (ERCB) that issue sour gas well licences near their homes in the Drayton Valley region southwest of Edmonton. Kelly et al have been very successful in obtaining the Court’s permission to appeal several ERCB decisions, and one result of their efforts is that the law governing the ERCB is changing. (See my previous ABlawg posts The Problem of Locus Standi at the Energy Resources Conservation Board: A Diceyan Solution and The Problem of Locus Standi at the Energy Resources Conservation Board: Leave to appeal granted in Kelly #2.

What is the applicable standard of review in assessing the adequacy of reasons?

By Shaun Fluker

On December 13, 2010

In Administrative Law, Municipal Law

PDF version: What is the applicable standard of review in assessing the adequacy of reasons?

Case considered: Calgary (City) v Alberta (Municipal Government Board), 2010 ABQB 719

This decision concerns an appeal by the City of Calgary from an order of the Municipal Government Board that set aside a business tax assessment on underground parking facilities owned by BTC Properties II in the downtown area. The Municipal Government Act, RSA 2000, c M-26 and applicable City bylaws provide that a business tax is assessable on those persons who operate a business in premises located in Calgary. The issue at the Municipal Government Board was essentially whether BTC is in the business of selling parking, and one particular item of dispute was whether the fact that BTC charges its tenants a separate and additional fee for parking space is decisive evidence that it is in the parking business. The Municipal Government Board concluded that BTC did not operate a parking business, and accordingly set aside the City’s business tax assessment. The City was unsuccessful in seeking judicial review at the Court of Queen’s Bench. One ground of appeal argued by the City was that the Board did not provide adequate reasons in its decision to set aside the tax assessment. My comment here focuses solely on this issue, and in particular examines the following question: What is the applicable standard of review to be applied by a reviewing court in assessing the adequacy of reasons provided by an administrative decision-maker? Madam Justice Romaine confirms that this issue is not settled law in Alberta (at para 42).

Alberta proposes to consolidate its protected areas legislation

By Shaun Fluker

On November 8, 2010

In Environmental, Protection of Spaces

PDF version: Alberta proposes to consolidate its protected areas legislation

Legislation commented on: Bill 29, Alberta Parks Act, The Legislative Assembly of Alberta, Third Session, 27th Legislature, 59 Elizabeth II

On November 4, 2010 the Minister of Tourism, Parks and Recreation introduced Bill 29, the Alberta Parks Act, for first reading in the Legislature. Bill 29 proposes to replace existing protected areas legislation in Alberta including the Provincial Parks Act, RSA 2000, c. P-35, and the Wilderness Areas, Ecological Reserves, Natural Areas and Heritage Rangelands Act, RSA 2000 cW-9. If the legislature enacts Bill 29 into law in its current form, the Alberta Parks Act will simplify the categorizations for protected areas in Alberta but the enactment will also delegate most legal authority over protected areas to Cabinet or the Minister. These are significant changes to the existing framework.

The problem of Locus Standi at the Energy Resources Conservation Board: Leave to appeal granted in Kelly #2

By Shaun Fluker

On October 25, 2010

In Environmental, Intervenors and Standing

PDF version: The problem of Locus Standi at the Energy Resources Conservation Board: Leave to appeal granted in Kelly #2

Case Considered: Kelly v. Alberta (Energy Resources Conservation Board), 2010 ABCA 307

On October 15, 2010 the Court of Appeal granted leave to Susan Kelly and Lillian Duperron to appeal the decision of the Energy Resources Conservation Board (ERCB) denying them an opportunity to oppose the drilling of a sour gas well. West Energy proposes to drill the well at a location approximately 6 kilometers from their respective residences. Justice Frans Slatter granted leave to appeal on two questions, one of which concerns the proximity between a residence and the contested well and its application towards whether a person’s rights may be directly and adversely affected by the well. Readers not familiar with the law concerning standing to oppose an energy project being considered by the ERCB may wish to consult previous ABlawg posts for background on this matter (For an overview and links to previous postings see Nickie Vlavianos’ July 2010 ABlawg post, “Still more questions about standing before the ERCB“).

Author: Shaun Fluker Page 32 of 38

The continuing mystery of standing at the Energy Resources Conservation Board

The problem of costs at the Energy Resources Conservation Board: Leave to appeal granted in Kelly #4

What is the applicable standard of review in assessing the adequacy of reasons?

Alberta proposes to consolidate its protected areas legislation

The problem of Locus Standi at the Energy Resources Conservation Board: Leave to appeal granted in Kelly #2