Regulatory Appeal – Denied
In this decision, the AER considered O’Chiese First Nation (“OCFN”)’s request under section 38 of the Responsible Energy Development Act (“REDA”) for a regulatory appeal of the AER’s decisions to issue Well Licences 0475456 and 0475457 (the “Well Licences”) to Shell Canada Limited (“Shell”).
The AER denied OCFN’s request for regulatory appeal, finding that OCFN was not eligible to request a regulatory appeal.
Background
OCFN is a Treaty No. 6 First Nation. OCFN stated that the lands upon which the wells were located are Crown lands subject to the terms of Treaty No. 6 and the rights of OCFN recognized by the Natural Resources Transfer Agreement.
Legislation
The applicable provision of REDA regarding regulatory appeals is section 38, which states that an eligible person may request a regulatory appeal of an appealable decision by filing a request for regulatory appeal with the AER in accordance with the rules.
Section 36(a)(iv) of the REDA defines “appealable decision” as a decision of the Regulator that was made under an energy resource enactment if that decision was made without a hearing. “Eligible person” is defined in section 36(b)(ii) of REDA as a person who is directly and adversely affected by a decision referred to in clause 36(a)(iv).
Reasons for Decision
The AER determined that the decision was an appealable decision. However, the AER found that OCFN was not “a person who is directly and adversely affected.”
Appealable Decision
The Well Licences applications were filed pursuant to the Oil and Gas Conservation Act, which is an energy resource enactment as defined under the REDA, and were approved without a hearing. Therefore, those decisions were appealable decisions.
Directly and Adversely Affected
The AER found that OCFN did not provide the information that was needed to establish that OCFN or its members were directly and adversely affected by the AER’s decisions to issue the Well Licences. The AER noted that OCFN took the position that it was not required to provide any detailed information regarding impacts to the First Nation.
The AER explained that it must consider whether there is a “degree of location or connection” between the work proposed and the person, and whether that connection is sufficient to demonstrate the person may be directly adversely affected by the proposed activity (citing the Alberta Court of Appeal (“ABCA”) in Dene Tha’ First Nation v. Alberta (Energy and Utilities Board)).
Specifically, the AER found that:
(a) OCFN failed to demonstrate the required degree of location or connection between the Well Licences and a potential for direct and adverse impacts on the OCFN or its members to establish that the OCFN was an “eligible person” under section 38 of REDA;
(b) OCFN merely asserted rights without detailing how those rights were connected to locations within or in proximity to the surface locations of the wells, which was not sufficient;
(c) the ABCA rejected a similar position taken by OCFN in O’Chiese First Nation v. Alberta Energy Regulator, 2015 ABCA 348, where the ABCA found that a mere assertion was not sufficient to establish that a person was directly and adversely affected, and that evidence of “directly and adversely affected” must be adduced; and
(d) none of the information provided by OCFN showed if or how its members were present or active at locations within or in proximity to the surface locations of the wells approved by the AER.
Failure to Consider the Rocky Exploration Project as One Project
The AER also rejected OCFN’s submission that in discharging its obligations to consider the potential adverse impacts on OCFN, the AER should have considered the Well Licences applications in the context of all of Shell’s Rocky Exploration Project applications, as a single energy resource project. OCFN stated that it is clear that the public land dispositions are part of an overall scheme to develop what Shell described as its “Rocky Exploration Project.”
The AER noted that it has discretion under section 30(2) of REDA to combine applications where the AER considers it appropriate; however, it is not required to do so.
Summary
The AER denied the request for regulatory appeal, based on finding that OCFN was not directly and adversely affected by the AER’s decisions to issue the Well Licences and, therefore, not an “eligible person” as defined by section 36(b)(ii) of REDA.
