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Still More Questions about Standing before the ERCB

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On July 16, 2010

In Aboriginal, Intervenors and Standing, Natural Resources

PDF version: Still More Questions about Standing before the ERCB 

Case Considered: Prince v. Alberta (Energy Resources Conservation Board), 2010 ABCA 214

Leave to appeal applications from standing decisions of the Energy Resources Conservation Board (ERCB) continue to be heard almost, it seems, regularly. Some cases raise questions about the first part of the standing test, whether a “right” has been established that may be affected by a proposed energy project. Others focus on the second part of the test, whether possible direct and adverse effects have been demonstrated. Sometimes the Court of Appeal grants leave; sometimes it does not. Prince v. Alberta (ERCB) is another case of leave denied. It is also yet another case that raises important questions about the proper interpretation of the test for standing. Isn’t it time for legislative direction?

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The Rubber Hits the Road on Provincial Jurisdiction over Transportation Undertakings

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On March 8, 2010

In Constitutional, Natural Resources

Case Considered: Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters, 2009 SCC 53

PDF version:  The Rubber Hits the Road on Provincial Jurisdiction over Transportation Undertakings

The Supreme Court of Canada, in a 6-3 decision late last year, came down squarely in favour of provincial jurisdiction over transportation undertakings such as freight forwarding companies not themselves involved in interprovincial transportation. Shippers do not become subject to federal jurisdiction under s.92(10)(a) of the Constitution Act, 1867 merely by contracting for interprovincial transportation of goods, even if the company’s service includes delivery of goods in a receiving province. A recent post on The Court considered the implications of this case for division of powers analysis; my post will consider the Court’s interpretive approach in a modern natural resources context.

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The problem of Locus Standi at the Energy Resources Conservation Board: A Diceyan solution

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On November 17, 2009

In Administrative Law, Natural Resources

Case considered: Kelly v. Alberta (Energy Resources Conservation Board, 2009 ABCA 349

PDF Version: The problem of Locus Standi at the Energy Resources Conservation Board: A Diceyan solution

Introduction
A person must have ‘standing’ to oppose an energy project being considered for approval by the Alberta Energy Resources Conservation Board (ERCB). In January 2009 the ERCB denied standing to Susan Kelly, Linda McGinn, and Lillian Duperron in relation to an application by Grizzly Resources to drill two sour gas wells near their residences. All three applicants reside outside the designated 2.11 km area emergency planning zone (EPZ) surrounding the gas wells and designated by Grizzly pursuant to ERCB Directive 071 – Emergency Preparedness and Response Requirements for the Petroleum Industry. Directive 071 defines an EPZ as the area surrounding a sour gas well that due to its proximity requires an emergency response plan from the well licensee. The delineation of an EPZ by and large defines the applicant’s consultation requirements set by the ERCB and, as I note below, it also informs the ERCB’s interpretation of the standing test in section 26(2) of the Energy Resources Conservation Act, R.S.A. 2000, c. E – 10. The distinguishing feature in this case involves the relatively new requirement in Directive 071 for sour gas well licensees to model a protective action zone (PAZ) which anticipates the movement of a sour gas plume upon release from the well. Kelly, McGinn and Duperron reside within the designated PAZ modelled by Grizzly, which covered a larger area than the EPZ. This fact proved significant in the subsequent Alberta Court of Appeal proceedings.

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Narrowing the prospect of obtaining leave to appeal an ERCB decision: The troublesome aspect of judicial deference

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On June 10, 2009

In Administrative Law, Natural Resources

Case considered: Berger v. Alberta (Energy Resources Conservation Board), 2009 ABCA 158 

PDF version: Narrowing the prospect of obtaining leave to appeal an ERCB decision: The troublesome aspect of judicial deference

The Court of Appeal routinely decides applications for leave to appeal an Energy Resources Conservation Board (ERCB) decision on questions of law or jurisdiction pursuant to section 41 of the Energy Resources Conservation Act, R.S.A. 2000, c. E-10 (ERCA). In Berger v. Alberta (Energy Resources Conservation Board), Mr. Justice Frans Slatter denies a request from several applicants for leave to appeal a December 2008 ERCB approval issued to Highpine Oil and Gas to drill 3 sour gas wells in Parkland County west of Edmonton (ERCB decision 2008-135).

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Charter and Oil and Gas Issues to Await Another Day: A Disappointing End to the Kelly Appeal?

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On June 3, 2009

In Environmental, Natural Resources, Oil & Gas

Case Considered: Kelly v. Alberta (Energy and Utilities Board), 2009 ABCA 161

PDF version: Charter and Oil and Gas Issues to Await Another Day: A Disappointing End to the Kelly Appeal?

In an earlier post, I suggested that a recent development in the Kelly appeal would likely lead the Court of Appeal to declare the appeal moot (see “An Important Development in the Kelly Appeal“). I also suggested that, although this would not be a surprising decision, it would amount to a disappointing end for an appeal which held out promises of elucidating important legal issues. The Court of Appeal has indeed dismissed the Kelly appeal as moot. Although this result is certainly disappointing from a legal point of view, it is perhaps less so from a societal and public participation point of view.

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