Alberta Court of Appeal to consider two more decisions on standing before the ERCB

19 Nov Alberta Court of Appeal to consider two more decisions on standing before the ERCB

Alberta Court of Appeal to consider two more decisions on standing before the ERCB

By Laura Bowman, Staff Counsel

Leave to Appeal Granted in Kelly #2

Kelly v. Alberta (Energy Resources Conservation Board), 2010 ABCA 307 (CanLII) (Kelly #2)

On October 15, 2010 the Alberta Court of Appeal released a leave to appeal decision in Kelly #2.  The court will hear an appeal on the following two issues:

(a)       Is a person who resides outside the Emergency Planning Zone, but within the zone where a potential exists for hydrogen sulfide levels of 10 ppm, directly and adversely affected as a matter of law, so as to be entitled to standing?

(b)      Did the Board err by holding that there was no evidence on the record to show that the applicants’ medical conditions would give them a heightened sensitivity to oil and gas well operations in the vicinity of their properties, and if so is that an error of law?

In Kelly #1 the Alberta Court of Appeal found that Kelly had wrongly been denied standing, residing in the Protective Action Zone (PAZ) Kelly v. Alberta (Energy Resources Conservation Board), 2009 ABCA 349 (CanLII) (Kelly #1)

Subsequent to this decision the ERCB revised its formula for calculating the extent of the PAZ.  Notably a new decision on costs arising out of Kelly #1 raises interesting questions and issues about who is a “local intervener” under the ERCB’s governing legislation. That decision states:

In considering the application of the test under Section 28(1) of the ERCA to the Kelly Interveners, the Board arrives at two conclusions. First, the Board finds that the evidence clearly demonstrates that each of the Kelly Interveners has an interest in, occupies, or is entitled to occupy certain land whose location in relation to the Grizzly wells is known. Second, the evidence before the Board in the review hearing provided no indication of possible effect on any of the Kelly Interveners arising from the drilling or operation of the wells. The concerns raised by the Kelly Interveners at the hearing related to their health and safety (including the potential for adverse effects) resulting from the approval of Grizzly’s applications to the Board.

As discussed in Decision 2010-028, the evidence presented demonstrated no connection between those concerns and the drilling or operation of the Grizzly wells. The Board was satisfied that the evidence in the review hearing demonstrated no potential for effect on the Kelly Interveners from the approval of the Grizzly applications. Further, no evidence was presented at the review hearing or in this cost proceeding to demonstrate a potential for the Grizzly wells to directly and adversely affect lands that the Kelly Interveners have an interest in, occupy, or are entitled to occupy. It therefore follows that the second half of the local intervener test is not satisfied, and the Board finds that the Kelly Interveners are not local interveners as defined by Section 28(1) of the ERCA.

Leave to appeal may well be sought for this decision too.  It will be interesting to see how far the Alberta Court of Appeal is willing to go to defend the rights of persons to standing when their health is put at risk by the operation of energy facilities.

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