Request for Regulatory Appeal – Granted
Introduction
In this decision, the AER considered Longshore Resources Ltd.’s (“Longshore”) request for a regulatory appeal of the AER’s decision to refuse to issue Longshore a formal disposition (the “Decision”) for a Licence of Occupation (“LOC”).
Longshore’s request for regulatory appeal was opposed by the AER Oil and Gas Northwest staff (“OGNW”).
The AER granted Longshore’s request for a regulatory appeal.
Eligibility to Apply for Regulatory Appeal
The AER accepted that Longshore was an “eligible person” and that the AER decision was an appealable decision for the purposes of section 38 of the Responsible Energy Development Act (“REDA”).
Whether the Request for Regulatory Appeal was “Frivolous” or “Without Merit”
The OGNW submitted that the regulatory appeal request should be dismissed under section 39(4)(a) as the request was “frivolous” or “without merit.”
Section 39(4) of the REDA states:
39(4) The Regulator may dismiss all or part of a request for regulatory appeal
(a) if the Regulator considers the request to be frivolous, vexatious or without merit,
(b) if the request is in respect of a decision on an application and the eligible person did not file a statement of concern in respect of the application in accordance with the rules, or
(c) if for any other reason the Regulator considers that the request for regulatory appeal is not properly before it.
The AER declined to dismiss Longshore’s request for regulatory appeal under section 39(4) of REDA.
The AER rejected OGNW’s submissions that Longshore failed to provide adequate justification or mitigation for the proposed new connector access road in the applied for location. The AER found that the issue of whether Longshore provided adequate justification or mitigation in its application went to the merits of the regulatory appeal and the panel hearing the regulatory appeal must determine whether it should vary, suspend, or revoke the appealable decision.
The AER also rejected OGNW’s submission that Standard 1014-AS of the Master Schedule of Standards and Conditions (2017) (“MSSC”) document did not allow additional LOC applications if access under disposition already existed. The AER found that there can be exceptions and that it was not prohibited from issuing a second LOC where the circumstances were appropriate. In the AER’s view, a company, such as Longshore, could apply for a second LOC and include acceptable, alternative mitigation or justification as to why a second LOC is needed for access or mitigation strategies for the proposed new LOC. If the applicant could demonstrate that the mitigation or justification met the desired outcomes of the MSSC, the application could be approved by the AER. The AER found that whether Longshore had, in this case, provided sufficient justification or mitigation strategies went to the merits of the application and was a question for the panel hearing the regulatory appeal.
Summary
The AER granted the request for regulatory appeal and stated that it would appoint a panel of hearing commissioners to conduct a hearing of the appeal.
