Request for Regulatory Appeal – Granted
In this decision, the AER considered the Elizabeth Métis Settlement (“EMS”)’s request for a regulatory appeal of the AER’s decisions to issue Approval Nos.: 73534-01-02 under the Environmental Protection and Enhancement Act (“EPEA”) (the “EPEA Approval”) and 8558MM under the Oil Sands Conservation Act (“OSCA”) (the “OSCA Approval) (collectively, the “Approvals”) to Imperial Oil Resources Ltd. (“Imperial”).
The AER granted the request for regulatory appeal, finding that EMS was an eligible person under section 38 of the Responsible Energy Development Act (“REDA”).
Background
The Approvals related to an expansion of Imperial’s Cold Lake thermal oil sands in-situ recovery project. The expansion project involved construction of a central processing facility, solvent-assisted steam assisted gravity drainage (“SAGD”), and other related infrastructure to connect wells to the central processing facility and pipeline connections (the “Expansion Project”).
Legal Framework
Section 38 of REDA provides that an eligible person may request a regulatory appeal of an appealable decision by filing a request for regulatory appeal.
The test has three components:
(a) the decision must be an appealable decision;
(b) the requester must be an eligible person; and
(c) the request must be filed in accordance with the rules.
Appealable Decision
The AER found that the decision to issue the EPEA Approval and the decision to issue the OSCA Approval were both appealable decisions under REDA.
The AER found that the decision to issue the OSCA Approval was an appealable decision under REDA section 36(a)(iv), since it was made under the OSCA, “an energy resource enactment,” and was made without a hearing.
The AER found that the decision to issue the EPEA Approval was an appealable decision under REDA section 36(a)(i), since it was a decision for which a person would otherwise be entitled to submit a notice of appeal under section 91(1) of the EPEA and was made without a hearing.
Eligible Person
Under REDA section 36(b)(ii), for energy resource enactment decisions, an eligible person is a person who is directly and adversely affected by such a decision made without a hearing. For an EPEA amendment approval decision, an eligible person is defined, under REDA section 36(b)(i), as including a person who previously submitted a statement of concern and who is directly affected by the decision
The AER found that EMS might be directly and adversely affected by the Approvals, and was, therefore, an eligible person, based on the following findings:
(a) EMS had demonstrated in its Traditional Land Use Study that there was overlap between the Expansion Project area and the use of parts of the area by certain EMS members for hunting, gathering, trapping, and fishing. These activities by its members were ongoing and continuous.
(b) The Environmental Impact Assessment for the expansion project confirmed that it would affect large areas of high and good quality animal habitat, including habitat for some species specifically identified by EMS as species which they hunt in the Expansion Project area.
The AER explained its approach to assessing adversely and directly affected as follows:
-
Where the development or activity in question has not yet occurred, and the actual impacts are not yet known the phrase “is directly and adversely affected” or “is directly affected” does not require certain proof that the person will be affected.
-
What is required, is reliable information in the regulatory appeal request that demonstrates a “reasonable potential or probability” that the person asserting the impact will be affected.
The AER cited from the Alberta Court of Appeal (“ABCA”) decision Dene Tha’ First Nation v. Alberta (“Dene”), in which the ABCA provided guidance on what an aboriginal group must do to meet the factual part of the directly and adversely affected test. In Dene, the ABCA held that a person or group that asserts that he or she may be directly and adversely affected by the AER’s decision on an application must demonstrate a degree of location or connection with that application, or its effects, in order to bring himself or herself within the bounds of the legislative provision.
The AER found that EMS had satisfied this test
Stay
The AER decided to temporarily stay the Approvals, pending its final decision on the stay request. The AER directed EMS and Imperial to file submissions regarding the stay request before it makes a decision on the stay.
Under REDA section 39(2), the AER may, on the request of a party to a regulatory appeal, stay the appealable decision.
The AER determined that a short-duration, interim stay of the Approvals was the best mechanism to ensure fairness and certainty of the stay decision timing for both parties. The AER found that a short-term stay pending final determination of the full stay request would not prejudice Imperial, and would ensure that EMS was not prejudiced by Imperial commencing construction and operations.
Summary
The AER granted the requests for regulatory appeals.
The AER decided to temporarily stay the Approvals, pending final determination of the full stay request.
