Category: Natural Resources Page 15 of 21

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.

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

By Shaun Fluker

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.

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

By Shaun Fluker

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).

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

By Nickie Nikolaou

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.

TransCanada’s Alberta Pipeline System now under federal regulatory authority

By Nigel Bankes

On March 23, 2009

In Constitutional, Energy, Natural Resources, Oil & Gas

Cases Considered: National Energy Board, Reasons for Decision, TransCanada PipeLines Limited, GH-5-2008, Jurisdiction and Facilities, February 2008 (posted to the NEB website February 26, 2009)

PDF Version: TransCanada’s Alberta Pipeline System now under federal regulatory authority

It’s official. The intra-provincial natural gas transmission system (the Alberta System), originally built by Alberta Gas Trunk Line Limited, latterly known as NOVA, and part of the TransCanada PipeLines (TCPL) empire since 1998, will henceforward be regulated by the National Energy Board rather than the provincial regulators, the Energy Resources Conservation Board (ERCB) (for pipeline construction etc) and the Alberta Utilities Commission (AUC) (for tolls and tariffs etc).

Category: Natural Resources Page 15 of 21

The Rubber Hits the Road on Provincial Jurisdiction over Transportation Undertakings

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

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

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

TransCanada’s Alberta Pipeline System now under federal regulatory authority