Pipelines –Advance Funds – O’Chiese First Nation
On June 30, 2016, the O’Chiese First Nation (the “OCFN”) filed an application with the AER for $572,650 in advance funds.
In its decisions, the AER discussed the purpose of advance funds and the requirements that must be met for a party to be awarded advance funds. Of the $572,650 requested, the AER ordered Shell Canada Ltd. (“Shell”) to provide the OCFN $25,000.00 in advance funds.
AER Jurisdiction to Award Advance Funding
Sections 58.1 and 59 of the Alberta Energy Regulator Rules of Practice (the “Rules”) set out the AER’s power to award advance funding (s 59) and the factors it must consider in making its decision (s 58.1).
The AER noted that the purpose of the advance funding provisions in the Rules is to assist a party to participate in a proceeding in circumstances where it requires financial assistance in order to make effective submissions. The AER explained that advances are only provided in exceptional circumstances and that an applicant for advance funding must establish financial need.
Information Requirements
In addition to the requirements set out in s 58.1 of the Rules, the AER detailed the more specific requirements set out in Directive 031: REDA Energy Cost Claims (“Directive 031”). The information specified in Directive 031 includes:
• A detailed and itemized budget a participant reasonably and necessarily expects to incur in the presentation of his or her participation;
• If a lawyer, expert, or consultant is a necessary component of participation, a summary of the lawyer’s, expert’s, or consultant’s expertise and detailed description of the work proposed to be done in support of the client’s participation; and
• Information addressing the factors listed in section 58.1 of the Rules.
The AER panel held that the information provided by the OCFN was, for the most part, insufficient for the panel to adequately assess the request for advance funds.
The AER held that the information provided did not provide adequate explanation for why 800 hours of legal services were required for the hearing of an application for a 7km pipeline. Additionally, the OCFN application did not provide an explanation of why it needed funds in advance of the hearing taking place.
The AER also noted that the OCFN provided little information about what work the unnamed experts would do, if any. Although the application included the qualification of a named expert, insufficient information was provided for the AER to assess the reasonableness or necessity of the costs attributed to that expert.
Decision
Despite the significant deficiencies in the application for advance funds, the AER panel concluded that the OCFN would make contributions to the hearing and that OCFN had demonstrated some need for advance funds.
Of the $572,650 requested, the AER ordered Shell to provide OCFN $25,000.00 in advance funds. The AER made clear to OCFN that it would be required to provide detailed accounting of how those advance funds were spent in compliance with Directive 031 (the “Cost Application”). The AER ordered OCFN to submit the Cost Application within 30 days following the close of the hearing.
