Alberta Energy Regulator completes implementation of new mandate

7 juillet 2014

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In the oil and gas regulatory sphere, Q2 marked the implementation of the third and final phase of the Alberta Energy Regulator’s new mandate under the Responsible Energy Development Act (REDA). In addition to the “energy resources enactments” over which it previously had jurisdiction in its former incarnation as the Energy Resources Conservation Board, the Alberta Energy Regulator (AER) has now assumed jurisdiction over various provisions in certain “specified enactments”, including the Public Lands Act, the Environmental Protection and Enhancement Act and the Water Act insofar as those provisions relate to “energy resources activities” (i.e. oil and gas operations and coal mining, but not power generation or electricity transmission and distribution).

Whereas the proponents of energy resources projects previously obtained Crown surface dispositions and environmental approvals from Alberta Environment and Sustainable Resource Development (AESRD), all requisite approvals can now be obtained under the single umbrella of the AER. Whether this will actually result in the intended efficiency gains of one-stop-shopping remains to be seen as the AER is only just beginning to dig itself out from under the thousands of applications transferred over to it from AESRD.

Of interest in this new regime is the process for the handling of Statements of Concern (SOC) filed under the REDA, previously referred to as “objections” under the former Energy Resources Conservation Act (ERCA). Whereas all persons who could establish that they may be directly and adversely affected by the regulator’s disposition of the application were previously granted standing and could thereby trigger a public hearing with full participatory rights, it is now within the AER’s discretion to “disregard” a SOC under certain circumstances set out in section 6.1 of the AER’s Rules of Practice, including where the AER is of the opinion that the concern has been adequately dealt with or addressed through a hearing or other proceeding under any other enactment or by a decision on another application. 

In response to the new framework, we are now seeing a new series of decisions from the AER dismissing SOCs at the initial stage and resulting Regulatory Appeal requests in which interested parties attempt to establish that they are an “eligible person” capable of triggering a public hearing after the approvals have already been granted and, potentially, relied upon. Generally speaking, an “eligible person” is one who can demonstrate that he or she is directly and adversely affected by the decision (sound familiar?).

It will be interesting to see whether the AER continues to treat the “directly and adversely affected” test as its predecessor previously did under the ERCA, with the result that interested parties who would previously have triggered a hearing prior to the issuance of approvals will now trigger hearings thereafter and what practical implications this may have for AER hearings.

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