Only eligible persons under energy development legislation can file appeals of regulator's decisions
The Alberta Court of Appeal has allowed permission to appeal on the interpretation of “eligible person” who can file regulatory appeals of Alberta Energy Regulator decisions.
In Fort McMurray Métis Local Council 1935 v Alberta Energy Regulator, 2022 ABCA 179, Canadian Natural Resources Limited (CNRL) applied to have two oil sands projects integrated: Horizon mine, which CNRL owned, and the Joslyn Mine, which was owned and operated by Total E & P Joslyn Ltd. CNRL did not propose a new project or activity, but merely to use the Horizon Mine’s processing facilities and infrastructures for both sites.
The application required the approval of the Alberta Energy Regulator (AER), which issued a public notice in 2019. A month later, Fort McMurray Métis Local Council 1935 (Fort McMurray Métis) filed a statement of concern claiming that it “would be directly and adversely affected by the proposed development.”
The AER granted CNRL’s application without providing reasons or a hearing.
Fort McMurray Métis sought regulatory appeal of this decision as an eligible person, pursuant to section 38 of Responsible Energy Development Act, SA 2012, c R-17.3 (REDA).
Section 36(b) of the REDA defines an eligible person as one who is entitled notice under the Environmental Protection and Enhancement Act, RSA 2000, c E-12, Water Act, RSA 2000, c W-3, and the Public Lands Act, one who is directly and adversely affected by a decision made without a hearing, or any other person described in the regulations.
In 2021, the AER denied Fort McMurray’s request for regulatory appeal, ruling that Fort McMurray Métis was not an “eligible person” under the REDA.
In its application for permission to appeal, Fort McMurray Métis argued that the AER erred in finding that it was not an “eligible person” and therefore not entitled to regulatory appeal.
The appellate court granted permission to appeal.
Permission to appeal may be granted on questions of law, and the court must consider issues of general importance and significance, whether the appeal has arguable merit, and whether the appeal will delay the proceedings, said the Court of Appeal.
Considering the statutory scheme of the REDA, the correct interpretation of an “eligible person” under the REDA, insofar as it relates to AER’s interpretation of “eligible person” and “directly affected” raised questions of law, said the court.
The appellate court was also satisfied that Fort McMurray Métis raised a serious and important issue. The AER’s interpretation of eligibility raised questions of law that impacted the AER’s decision to deny regulatory appeals, said the court. Further, whether Fort McMurray Métis is directly affected by the decision also has arguable merit, the court determined.
