Leave to Appeal – Delegated Authority – Uncertain Decision – Procedural Fairness
AER Pipeline Approval Decision
Pembina Pipeline Corp. (“Pembina”) applied to the AER for permits to construct two pipelines from Fox Creek to Namao, Alberta (the “Pipelines”). The AER approved Pembina’s pipeline application in AER Decision 2016 ABAER 004, and accordingly, issued licences to construct and operate the Pipelines to Pembina (the “AER Decision”).
Appeal to Alberta Court of Appeal (“ABCA”)
In Bokenfohr v Pembina Pipeline Corp. (the “ABCA Decision”), the ABCA considered the Grassroots Alberta Landowner Association’s (the “Association”) application for permission to appeal the AER Decision. In the ABCA Decision, the ABCA dismissed the Association’s appeal application on the basis that it failed to identify any pure question of law, on which permission to appeal could be granted.
Association’s Concerns and Grounds of Appeal
The Association members collectively owned about one-third of the land along the proposed right-of-way for the Pipelines.
In the AER proceedings, the Association did not oppose the pipelines per se, but raised a number of specific concerns, including the width of the right-of-way, depth of cover, weed control, construction monitoring and precise routing.
The Association sought permission to appeal the AER Decision, on the grounds that the AER erred in law by:
(a) failing to exercise its delegated authority when granting the licences to Pembina (approving incomplete application);
(b) making a decision that caused uncertainty in its application and effect; and
(c) breaching procedural fairness at the hearing, resulting in an unfair effect on the Association.
Test for Permission to Appeal AER Decision to ABCA
Section 45(1) of the Responsible Energy Development Act (“REDA”) provides for appeals from an AER decision to the ABCA on questions of law or jurisdiction. In order to bring an appeal, an applicant must first be granted permission to appeal from the ABCA. On an application for permission to appeal, the ABCA considers the following factors:
(a) Is the issue of general importance?
(b) Is the point raised of significance to the decision itself?
(c) Does the appeal have arguable merit?
(d) What standard of review is likely to be applied? and
(e) Will the appeal unduly hinder the progress of the proceedings?
(See permission to appeal test as also set out in Highpine Oil & Gas Ltd., Re, 2009 ABCA 158; (Regional Municipality) v Alberta (Energy & Utilities Board), 2007 ABCA 192.)
Did the AER Fail to Exercise its Delegated Authority?
The Association submitted that the AER panel failed to exercise its authority, because it relied on “commitments”, which it indicated it could not directly enforce, rather than on enforceable “conditions.” The Association argued that by failing to include additional conditions, the panel effectively abdicated its responsibility to Pembina.
The ABCA rejected this argument, holding that what conditions should or should not be imposed is within the mandate of the AER. Rejecting some proposed conditions is an exercise of delegated authority, not a failure to exercise delegated authority.
The ABCA concluded that the first ground of appeal did not raise an issue of law for which appeal could be sought.
Did the AER Err by Making an Uncertain Decision?
The Association argued that by attaching an appendix to the approval containing numerous “commitments” (the “Commitments Appendix”), the panel rendered an uncertain decision.
The ABCA rejected this argument, holding that the fact that conditions or commitments might require some interpretation, does not render them so uncertain as to disclose an error of law. The ABCA characterized the attachment of the Commitments Appendix as a “particular method of providing its decision.” The ABCA acknowledged that the method, chosen by the AER to provide its decision, may require some interpretation as to the precise meaning and effect of the Commitments Appendix. However, the ABCA noted that the same can be said of any licence with conditions.
Procedural Fairness
The ABCA also rejected the Association’s third ground of appeal, asserting that the AER breached procedural fairness. The ABCA held that none of the concerns raised by the Association regarding procedural fairness demonstrated a viable issue that would justify granting permission to appeal.
