Request for Regulatory Appeal
In this decision the AER considered a request for a regulatory appeal filed by Canadian Natural Resources Limited (“CNRL”), under section 38 of the Responsible Energy Development Act (“REDA”), of the Enhanced Oil Recovery Approval No. 12888 made by the AER on June 10, 2019, pursuant to the Oil and Gas Conservation Act (“OGCA”) in favour of Marlboro Energy Ltd. (“Marlboro”). The AER dismissed the regulatory appeal request.
Section 38 of REDA states:
38(1) An eligible person may request a regulatory appeal of an appealable decision by filing a request for regulatory appeal with the Regulator in accordance with the rules.
Under section 36(a)(iv), an “appealable decision” includes:
(iv) a decision of the Regulator that was made under an energy resource enactment, if that decision was made without a hearing.
Under section 36(b)(ii) of REDA, “eligible person” includes:
(ii) a person who is directly and adversely affected by a decision referred to in clause (a)(iv).
The applicable deadline in the circumstances for filing a request for regulatory appeal is provided in section 30(3) the Alberta Energy Regulator Rules of Practice (the “Rules”):
(m) in the case of a regulatory appeal in respect of any other appealable decision, no later than 30 calendar days after notice of the decision is issued.
CNRL filed its regulatory appeal request on October 2, 2019, which was outside of the 30-day deadline since the decision was issued on June 10, 2019.
Reasons for Decision
The request for regulatory appeal raised the following issues:
1. Whether to Allow CNRL to File the Late Regulatory Appeal Request
The AER determined that Marlboro did not provide CNRL with notice of or otherwise advise CNRL that it was going to or had filed an application with the AER. CNRL was, therefore, unaware of the application and was not able to file a statement of concern in accordance with the prescribed deadline. Consequently, the AER decided to accept CNRL’s late filing of the request for a regulatory appeal.
2. If Not, Whether There Were Exceptional Circumstances Warranting a Reconsideration of the Decision in Question
Since the answer to the first issue was in the affirmative, there was no need to consider this issue.
3. Whether the AER Should Stay the Decision
Given Marlboro agreed to voluntarily stay the approval that is the subject matter of this regulatory appeal and all of the associated activities until the issuance of this decision, there was no need to address the stay issue.
4. If So, Whether to Grant the Regulatory Appeal and Refer the Matter to a Hearing
Since the answer to the first issue was in the affirmative, i.e. the late filing of the regulatory request was allowed, the AER considered the legal test for a regulatory appeal request.
The decision that was the subject matter of this appeal request was an approval issued pursuant to the OGCA, which is, in accordance with section 1(1)(j) of REDA, an energy resource enactment. Since the decision was made without a hearing, it was an appealable decision under section 36(a) of REDA.
CNRL asserted that, as a joint interest holder of eight percent of the associated PNG rights within the project Section 04-039-016W4M and a 21 percent interest holder in the adjoining Section to the south 32-039-16W4, it would be directly and potentially adversely impacted by the activities approved in the decision. CNRL also provided some technical concerns regarding the approved scheme and the potential for adverse impacts to its existing and future production, as well as Marlboro’s complete disregard for AER requirements and its joint ownership agreements.
The AUC noted that the Court of Appeal in Dene Tha’ First Nation v. Alberta (Energy and Utilities Board) provided guidance on what indicates a person may be directly and adversely affected. In particular, the AER must consider the “degree of location or connection” between the project or its effects and the person, and whether that connection is sufficient to demonstrate the person may be directly and adversely affected by the proposed activity. Reliable information is required that demonstrates a reasonable potential or probability that the person asserting the impact will be affected.
The AER noted that there is no dispute that CNRL is a joint interest holder of the PNG rights within relevant sections that are subject to the approval.
The AER found that CNRL had not provided sufficient information to establish that it will or may be directly and adversely affected by the approval.
The AER found that CNRL was not directly and adversely affected by the decision. Consequently, CNRL was not an eligible person under section 36(b)(ii) of REDA, and the request for a regulatory appeal was dismissed.