Regulatory Appeal – Irreparable Harm
In this decision, the Alberta Energy Regulator (“AER”) approved an application from the Lac Ste. Anne Métis community (“LSAM”) for an extension of the timeline to file a request for regulatory appeal (“RRA”) of Approval No. RTF 216384 (“Temporary Access Disposition”). The AER however denied the request from LSAM to stay Approval No. 1934267 (the “Facility Licence”).
The AER noted that the applications for the temporary field authorization (“TFA”) were submitted as routine and were therefore approved expeditiously. The AER further noted that this significantly reduced LSAM’s opportunity to file a statement of concern. In this proceeding, LSAM filed their request for regulatory appeal seven days late. Bonavista Energy Corporation (“Bonavista”) has not alleged that this delay would prejudice them. Moreover, this delay allowed for the Facility Licence and the TFA to be filed together, which is more efficient administratively. The AER therefore granted the request to file the request for a regulatory appeal of the TFA late.
The AER may grant a stay on the request of a party to a regulatory appeal under section 39(2) of the Responsible Energy Development Act. The applicant for a stay must demonstrate that there is a serious question to be tried, that there will be irreparable harm if the stay is not granted, and that the balance of convenience favours granting a stay of the original decision.
The AER was unable to properly determine if the participant involvement requirements had been met. As a result, and because Bonavista’s activities occur in proximity to areas confirmed by LSAM to be critically important, the AER was satisfied that there is a serious issue to be tried and that the requested appeal is not frivolous or vexatious.
Irreparable harm will occur if the stay applicant is adversely affected by the conduct the stay would prevent if the applicant ultimately prevailed on the regulatory appeal. The harm must be of a nature that cannot be remedied through damages or otherwise cured. It must be of such a nature that to refuse the stay would be a denial of justice.
The AER found that LSAM did not demonstrate that they may suffer any harm at all because of the stay not being granted.The AER found that LSAM did not provide any evidence on how the facility would cause irreparable harm. This was supported by the fact that the facility licence would only be adding to an existing mineral surface lease. LSAM provided only general arguments as to how industry activities may affect traditional land use. LSAM did show that its traditional land use rights could be affected by the permanent installation of the facility. However, LSAM did not provide evidence that the facility was a permanent fixture of the land that could not be uninstalled and remediated if LSAM was ultimately successful in its appeal.
Balance of Convenience
The balance of convenience involves examining which party will suffer more harm from granting or refusing the stay. The AER must weigh the burden the stay would impose on Bonavista against the benefit LSAM will receive from a stay. This requires the AER to consider significant factors and not just perform a cost-benefit analysis. The AER determined that LSAM did not demonstrate that a balance of convenience favours the AER granting the stay. The AER noted that a stay on the facility license would require changes to how the existing wells would be produced. Considering the benefit to LSAM, the AUC held that it was unclear how the facility’s construction, pending the result of the appeal, would affect the rights of LSAM any more than Bonavista’s already existing developments on the site