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TransAlta Corporation v Alberta Energy Regulator, 2023 ABCA 172

Link to Decision Summarized

Oil/Gas – Water – Permission to Appeal

Application

TransAlta Corporation (“TransAlta”) brought three applications for permission to appeal decisions of the Alberta Energy Regulator (“AER”).

Decision

The two applications for permission to appeal with regard to the AER’s approval of Bonterra Energy Corporation (“Bonterra”) well licences were dismissed. The third application, against the AER’s refusal of a regulatory appeal of Subsurface Order No. 6 issued by the AER in May 2019 (“SSO6”) was allowed in part.

Pertinent Issues

Two of the applications were related to well licences issued to Bonterra. The first application was in relation to the AER’s decision to deny TransAlta’s request for a stay of the decision to approve the well licences. The second application was in relation to the AER’s refusal of TransAlta’s requests for a regulatory appeal of the AER’s decision to approve the well licences. Both of these applications for permission to appeal were dismissed. The ABCA stated that the question TransAlta actually sought to have answered concerns not the granting of the well licences but rather whether SSO6 was appropriately issued.

The third application was in relation to the AER’s refusal to allow a regulatory appeal of its decision to issue the SSO6. That order imposes certain fracking restrictions within 5 kilometers of the Brazeau dam and infrastructure, which are owned by TransAlta. The AER refused the request for a regulatory appeal, finding that TransAlta was not an “eligible person” for the purposes of s 38(1) of the Responsible Energy Development Act (“REDA”) because TransAlta is not directly affected by SSO6 and because there was no direct connection between the issuance of SSO6 and the alleged potential impacts. The AER also held that TransAlta’s statements of concern related to well applications for which a notice of hearing had been issued in Proceeding 379 and allowing the requested regulatory appeal of SSO6 to proceed would result in duplicative proceedings and a breach of rule 31(3) of the Alberta Energy Regulator Rules of Practice. Rule 31(3) relates to matters already adequately dealt with through another hearing, regulating appeal or review under any enactment.

The ABCA allowed, in part, the permission to appeal the AER’s decision to refuse the request for a regulatory appeal of the decision to issue SSO6 on the following questions:

(a) whether the AER erred in its interpretation of “eligible person” in s 38(1) of the REDA, and in particular, whether the AER applied an overly narrow interpretation of “directly and adversely affected” in considering TransAlta’s standing; and

(b) whether the AER incorrectly interpreted Rule 31(3) of the Alberta Energy Regulator Rules of Practice in deciding that a regulatory appeal of SSO6 would be duplicative of Proceeding 379.

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