Request for Regulatory Appeal – Dismissed
In this decision, the AER considered Joslyn Energy Development Incorporated’s (“JEDI”) request for a regulatory appeal of an AER decision approving Suncor’s requested amendments to its commercial scheme operating approval for its Millennium oil sands mine (the “Amending Approval”).
The AER dismissed JEDI’s request for regulatory appeal, based on its determination that JEDI was not an “eligible person” under section 38 of the Responsible Energy Development Act (“REDA”) and therefore not eligible to request a regulatory appeal.
Amending Approval
The Amending Approval approved amendments to Suncor’s existing approval, issued under the Oil Sands Conservation Act.
The AER noted that the scope of the Amending Approval was limited to terms and conditions relating to Suncor’s tailings management plan (“TMP”) and modifications to Suncor’s Millennium mining operation arising from the TMP.
The Amending Approval authorized implementation by Suncor of its TMP and dealt with tailings management on the mine site, including modifications to Suncor’s Millennium mining operation arising from its TMP.
“Eligible Person”
JEDI was required to establish that it was an “eligible person” to request a regulatory appeal in accordance with section 38 of REDA. As set out in section 36(b)(ii) of REDA, an “eligible person” is a person who is directly and adversely affected by a decision of the AER.
The AER found that:
(a) JEDI was not directly and adversely affected by the Amending Approval; and
(b) therefore, JEDI was not an “eligible person” under section 36(b)(ii) of the Responsible Energy Development Act (“REDA”).
The AER cited the factual part of the test set out by the Alberta Court of Appeal in Dene Tha’ First Nation v Alberta (Energy and Utilities Board) for guidance on what indicates a person that may be directly and adversely affected. In particular, the AER must consider the “degree of location of connection” between the project or its effects and the person, and whether that connection is sufficient to demonstrate that the person may be directly and adversely affected by the proposed activity. Reliable information is required that demonstrates a reasonable potential or probability that the person asserting the impact will be affected.
The AER found that:
(a) the applied for amendments did not include changes to Suncor’s previously approved project boundary, final pit highwall design or the mine pit limits or boundaries, and thus setbacks from lease boundaries remained unchanged from those shown in the previous application; and
(b) intrusion onto Oil Sand Lease 428 did not increase as a result of the Amending Approval.
The AER found that JEDI had an opportunity to raise concerns in relation to Suncor’s previously approved applications when those matters arose. JEDI did not do so. Accordingly, the AER found that JEDI failed to raise these concerns at the appropriate time.
Without information regarding the particulars of JEDI’s future development, the AER found that it was unable to determine that there was a reasonable potential or probability that JEDI would be affected by the Amending Approval.
Decision
The AER dismissed the request for regulatory appeal.
