In today’s blog, we take a closer look at how the public participation regime at provincial agencies or tribunals is controlled – primarily through rules around standing. Standing refers to the ability to appear before a court or tribunal, and standing rules refer to the rules as set out in legislation or caselaw limiting or restricting these appearances. In comparison with the municipal public participation process, if provincial legislation delegates decision making to a provincial level tribunal, public participation rules will be set out in the governing statute. Generally speaking; however, standing before provincial agencies or tribunals is limited to those who are considered ‘directly affected’. This is in stark contrast to participation before a municipal council which is available to everyone. This difference is important because we have seen a shift of decision-making away from municipalities to provincial level decision makers and there are several instances where a provincial approval will prevail over any municipal decision-making. Considering this supremacy, this blog considers how the public can, or cannot, have their voices heard. We go through public participation and standing requirements in environmental decision-making processes before Alberta Environment and Protected Areas, the Environmental Appeals Board, the Alberta Energy Regulator, the Natural Resources Conservation Board, and the Alberta Utilities Commission.
Standing at Provincial Agencies vs Municipalities & Why it Matters?
All of the provincial agencies and tribunals that make decisions about resource projects and environmental decision-making have legislation that “grants participatory rights to those persons who can demonstrate they may be directly [or directly and adversely] affected by the resource development project in question.”[1] Caselaw, both by these decision makers and the court system more generally, has interpreted each of these ‘directly affected’ provisions in similar ways with, as Professor Fluker points out, two general observations:[2]
- A person who seeks to participate must demonstrate how the project may affect them personally; and
- The right to participation is a function of causal proximity between the affected person and the location of the project in question – the closer one is to the project or the more apparent the causal link between the alleged impact and the project, the more likely that person will be entitled to participate in the decision-making process.
The challenge is that this interpretation is often conducted quite narrowly thereby limiting the number of people who are eligible to participate in these significant decisions affecting their province and community. In his analysis, Fluker suggests that this has gotten more restrictive over time with “a clear shift away from participation in a pluralist sense” to “essentially then a means to safeguard private interests against harm emanating from the exercise of public authority.”[3] This is a shift that has occurred despite the “public interest character of resource development” which is also specifically recognized in legislation.[4] Although a balance between participation and efficiency before decision-makers must be met, it is clear this shift away from public accountability and participation is making decisions more opaque and less responsive to community needs. Particularly, as we move decision-making out of the hands of local municipalities, these limits on participation become relevant as we consider who gets a say in the development of our environment and natural resources.
For example, as highlighted in our past blog post here, Bill 28 largely removes a municipality’s participation in the gravel pit approval process. Even in the off chance that a gravel pit application is moved to the approval process under EPEA (the process during which there is an opportunity for those who are directly affected to submit a statement of concern and appeal) which is not likely, this still significantly changes the opportunity for electors and citizens to engage in an industrial approval process which may have significant impacts in their community.
Appearing before a tribunal includes a hearing process which may be more formal, enable cost recovery, require formal submissions, and include the opportunity to question or cross-examine. In contrast, an appearance before municipal council is more informal with less of these procedural rules, and benefits. Although each system provides benefits and drawbacks, the strict limits on participation before provincial tribunals may still result in less fulsome participation overall. Public interest standing, which we describe below, may provide an opportunity for balance between the two, an expansion of participation opportunities alongside a procedural process which enables benefits such as cost recovery and production of documents; however, it would require a legislative amendment.
Directly Affected Test
Standing before each of these provincial decision makers is restricted by the ‘directly affected test’. Each governing statute specifies that only those who are ‘directly affected’ or ‘directly and adversely affected’ (which is used to determine standing before the Alberta Energy Regulator and Alberta Utilities Commission), can appear to have their concerns heard during an application procedure., Despite its repeated used, none of the relevant pieces of environmental legislation define the term. Rather, the content of the test has been developed through caselaw, and courts have repeatedly emphasized that tribunals retain broad discretion to determine who qualifies for participation on a case-by-case basis, rather than through a fixed legal rule.
Despite this variation, a common structure emerges across the different regimes. Most versions of the test contain two components: (1) a legal or factual component requiring the applicant to demonstrate a personal, private, or legal recognized interest, whether that is economic, environmental, cultural, health/safety related, or proprietary and that is distinct from a general public interest; and (2) a causal or proximity component requiring some connection between that interest and the project or decision in question such that the closer the applicant is to the project or decision, the stronger their claim to directly affected often is. Courts have generally set the standard for the second component low, often requiring that the applicant show a potential effect rather than proof that harm will occur.
The leading decision interpreting the ‘directly affected’ standard comes out of the Alberta Court of Appeal (ABCA) in Normtek Radiation Services Ltd v Alberta Environmental Appeal Board.[5] At issue was the EAB’s decision to decline to hear an appeal of an approval because “it was of the opinion that the party appealing, the appellant herein, was not directly affected by the decision of the Director.”[6] The appeal before the ABCA argued that the application of the phrase ‘directly affected’ was “unreasonably restrictive”.[7]
In Normtek, the ABCA begins their analysis by interpreting the meaning of the phrase ‘directly affected’ finding that while it “must be interpreted as limiting the class of persons who can appeal an approval. But notwithstanding that, the generality of the phrase can also be interpreted as conferring broad discretion on the Board to decide who is directly affected by a Director’s decision.”[8] To help define directly affected, the Court looks to the Board’s canvassing of the ordinary meaning of ‘affected’ and the conclusion that “an appellant must be harmed or impaired by the activity authorized by the approval being appealed. In other words, the Board interpreted ‘affected’ to mean adversely affected.”[9] From there, the Court looks to section 40 of the EPEA which “states that the purpose of environmental assessment, among other things, is to predict the environmental, social, economic and even cultural consequences of a proposed activity and to assess plans to mitigate any adverse impacts resulting from the activity.”[10] Although there was no environmental assessment at issue in this case, the Court takes this to mean that if “the direct effect on the person seeking to appeal a Director’s decision is economic, cultural, safety or health-related or is on a property right, then standing to appeal may be available whether or not there is any connection to an environmental impact to a natural resource proximate to the site of the approval as suggested by the Board and the reviewing court.”[11] This broad swath of options reiterates that the directly affected test must be evaluated on a case by case basis.
The Court also highlights some of the limits on public participation inherent in the process under EPEA.[12] They highlight the short timeline for a “party claiming to be directly affected by a Director’s decision to review that decision or approval once it has been made” as a notice of appeal must be submitted to the EAB no later than 30 days after receipt of notice of the decision.[13] They also note that if “it becomes apparent later, than an appellant whose notice of appeal was dismissed without a hearing is directly and adversely affected, there are few remedies.”[14] Although the Court does not have the authority to alter the legislative regime, they do cite these restrictions as reasons why a higher level decision maker should be cautious in dismissing a directly affected appeal. In the end, the ABCA did not define directly affected, instead remitting it back to the EAB and stating that while it “is the Board’s opinion which is determinative… it must not decide the issue employing [a] restrictive interpretation of ‘directly affected’” and it “must decide the issue having regard to the provisions of the Act and the evidence relevant to the determination to be made.”[15]
Overall, this framework is applied narrowly and maintains significant discretion for each individual agency or tribunal, and it explicitly excludes broader public interest standing thereby significantly limiting who can participate in provincial resource and environmental decision-making. In our drop-down menu below, we examine how this general test has been interpreted and applied by each of Alberta’s key environmental and resource tribunals.
Public Interest Standing
Public interest standing allows groups or individuals to bring their matter forward on behalf of a public interest rather than a specific individual interest, as is required under the directly affected test. So far public interest standing has only applied to judicial reviews in Alberta and has not been adopted by provincial regulatory tribunals.
The test for public interest standing is three parts as follows:[16]
(1) there is a serious justiciable issue;
(2) the party has a genuine interest in the matter; and
(3) the proposed suit is a reasonable and effective manner to bring the issue before the court.
There have been several instances of the Supreme Court of Canada granting and expanding upon the test for public interest standing.[17] However, the Alberta courts have deferred to the language as set out in legislation which limits public interest standing before provincial tribunals. Regulatory appeals have codified tests for standing which do not allow for public interest standing. You can see the Albera Court of Appeal’s (ABCA) interpretation of these limits below.
The ABCA found that despite a recognition of the limits on public participation inherent in the requirement for directly affected, a board or regulatory does not have the discretion to hear an appeal of an approval “by a person who is not directly affected by that approval based on a general public interest standing.” [18] They cite the legislation which states that “only a person who is directly affected by an approval may appeal it to the Environmental Appeals Board.” [19] In revisiting its decision in Normtek (as directed by the ABCA), the Environmental Appeals Board reiterated that the ABCA had specifically ruled out public interest standing focusing on the need “to establish a direct personal or private interest (economic, environmental, or otherwise) that will be impacted by the approval in question. [20]
The legislative decision to limit public interest standing before tribunals further serves to restrict standing to only those individuals who can meet the directly affected standard which has a particularly significant impact on environmental organizations. Often, an environmental organization’s ties to a place or resource will not be sufficient for a finding of directly affected despite other interests that may apply to a development or resource decision. This limitation provides an opportunity for the provincial government to easily expand public participation through the allowance of public interest standing (which still must meet the three part test set out by the Supreme Court of Canada) in legislation or by expanding and clarifying the definition of directly affected.
Having said this, environmental or other public interest organizations may be granted participatory rights before a tribunal. This means, although they lack standing to trigger a hearing, the organization may be granted an opportunity to participate in the process. The extent of the participation allowed may vary from case-to-case.
Processes before Provincial Decision-Makers
In the next section, we describe the process for participation before each specific tribunal or agency and how each piece of legislation has defined and understood ‘directly affected’.
Often, if you wish to participate in a provincial level authorization, the first decision maker that you will encounter will be a delegate from Alberta Environment and Protected Areas (“EPA”). In many cases, particularly if you are dealing with an authorization or decision under the Environmental Protection and Enhancement Act (EPEA) or the Water Act, the authorization decision will be made by EPA.
For example, it is the EPEA which sets out the process for environmental assessments in Alberta. As set out in the Act, the purpose of the environmental assessment process is to support the goals of environmental protection and sustainable development; integrate environmental protection and economic decisions during planning; predict environmental, social, economic, and cultural consequences of proposed activities and assess mitigation; and provide for the involvement of the public, proponents, and government in the review of proposed activities.[21] Projects requiring an environmental assessment or ‘mandatory activities’ are set out in the Environmental Assessment (Mandatory and Exempted Activities) Regulation[22] and in addition to these types of projects, the Director has discretion under the Act to require an environmental assessment for a non-mandatory activity.[23] If the Director decides to initiate the environmental assessment process for a non-mandatory activity or if an activity is a mandatory activity under the regulations, “any person who is directly affected by a proposed activity” may submit a written statement of concern with respect to the proposed activity.[24] The Director must then “give due consideration to all statements of concern that have been submitted.”[25] Although anyone interested can, and should, submit a statement of concern a finding of directly affected is required if the statement of concern is to be considered in the Director’s decision-making process. A finding of directly affected may be based on the evidence as set out in a statement of concern but if this is not found, participation will be limited. As such, involvement of the public is regulated.
Another reference to ‘directly affected’ in the EPEA refers to “an application for an approval or registration” for a project.[26] The Activities Designation Regulation[27] sets out which types of projects must receive either an approval or registration, or for which notice must be given.[28] In this section of the Act, “where the Director receives” application for an approval or if the Director proposed to make an amendment, addition or deletion to an approval, “any person who is directly affected by the application or the proposed amendment, addition, deletion or change” may submit a written statement of concern.[29] This applies to a wide variety of authorizations under EPEA and limits the opportunities to participate in these environmental decisions to a select few of ‘directly affected’ parties.
A similar regime exists under the Water Act. The Water Act also enables AEP to issue several types of authorization decisions for projects. In particular, those projects that require an applicant provide notice of an application for an approval, licence, transfer or amendment of an approval or licence, or a transfer of an allocation of water under a licence provide that a person who is directly affected by the application or proposed amendment may submit a written statement of concern to the Director.[30]
Appeals of these decisions go first to the Environmental Appeals Board which also uses the directly affected standard to determine who has standing to appear.
The Environmental Appeals Board (EAB) is established by Part 4 of the Environmental Protection and Enhancement Act (EPEA) and hears appeals from decisions by the Director under EPEA and the Water Act, as well as from certain decisions under the Emissions Management and Climate Resilience Act, the Government Organization Act, and the All-Seasons Resort Act.[31]
Specifically, section 91(1) of EPEA and Part 9 of the Water Act prescribes when a notice of appeal may be submitted to the EAB for decisions made under the Act. For the purposes of public participation, a person who submitted a Statement of Concern and is directly affected by the Director’s decision may submit a notice of appeal to the EAB. Additionally, under EPEA, any person directly affected by the designation of a contaminated site may submit a notice of appeal.[32] However, the Board may dismiss an appeal if the “Board is of the opinion that the person submitting the notice of appeal is not directly affected by the decision of designation.”[33] Although the Board is “not a project decision-maker per se” it has “considered the question of public participation in resource project decision-making on numerous occasions.”[34]
In a 2025 EAB decision revisiting the Normtek application (described in our section on the directly affected test above) for directly affected, the EAB focused on the need “to establish a direct personal or private interest (economic, environmental, or otherwise) that will be impacted by the approval in question.”[35] The EAB went on to conclude that “[h]aving considered the submissions of the Parties and the direction of the Court in the Normtek Decision, the Board finds the test for directly affected is broadened to include social, economic, cultural, safety, human health adverse effects to, or adverse effects on property rights of, an appellant.”[36] Despite this, the EAB, in considering past Court decisions, retains the focus that while “the long-term environmental impacts” of an Approval may be a concern, these arguments are “of general or public interest” which is not sufficient on its own for a finding of directly affected.[37]
The EAB has also clarified how the “directly affected” test may be met by a collective interest group, association, or community. The original test, known as the Jeans-Moline test, set out six parts as follows:[38]
“1. is there a personal or private interest, consistent with the underlying policies of the applicable statutes, being asserted by persons in the group;
2. is there an adverse effect to the identified interests personal or private interests;
3. is the adverse effect to the identified interests direct;
4. is the direct adverse effect shared by, or common to, the persons in the group who have clearly identified interests;
5. does the nature of the adverse impact render it impossible to prove, or to differentiate, impacts between persons in the group who would clearly be directly affected; and
6.will a majority (more than half) of the persons in the group be directly affected personally, and therefore, have standing in their own right.”
In Keepers of the Water Society v Director, the EAB refined this test stating that “in Jeans-Moline [the Board] clearly distinguished between groups holding a distinctive personal or private interests separate from their members, such as property rights or other recognized interests, and those that do not. Those that hold a distinctive personal or private interest separate from their members would be considered in their own right or merit… and those that do not, would be considered under the six-part Jeans-Moline Test.”[39] In this decision, the EAB was considering the Appellant’s concerns that “the Jeans-Moline Test is too formulaic, and that the requirement that more than half of the persons in the group are directly affected, is completely arbitrary and does not comport with the holdings in Normtek.”[40] In their consideration of the issues, the newly refined test “for a group that does not hold a distinctive personal or private interest separate from its members” includes four questions:[41]
- “Has the group asserted a personal or private interest, relevant to the subject of the appeal, that is greater than the interest of ordinary Albertans?
- Has the group demonstrated how its identified interests are distinct from those of its members?
- Has the group demonstrated that there is an adverse effect to its identified personal or private interests?
- Has the group demonstrated that the adverse effect to its identified interests is direct?”
In their decision, the EAB also considered principles to guide its discretion in the application of the directly affected test. In Jeans-Moline, the Board set out seven principles including: factual circumstances vary; interest; natural resources; adverse effect; direct connection; evidence required; and summary dismissal.[42] Today, three more principles have been added to guide the EAB’s discretion:[43]
- The Board expects the group to show how its interests are directly relevant to the subject matter of the appeal, the local area, the environmental or geographical setting, or the type of activity authorized by the director. General or a province-wide interest in environmental, social, or economic issues is not sufficient to warrant a determination of directly affected.
- The Board expects the group to indicate how many of its members might be directly affected by the director’s decision.
- The Board generally views individuals as more likely to be directly affected by a director’s decision than a group. Therefore, the Board will expect a group to show what interests it has over and above those expressed by its members who have filed appeals.
These tests have helped to refine the EAB’s application of “directly affected” regarding groups, including environmental groups who may wish to participate in a decision.
The Alberta Energy Regulator (AER) was created by the Responsible Energy Development Act (REDA) with a broad mandate to “provide for the efficient, safe, orderly and environmentally responsible development of energy resources and mineral resources in Alberta”.[44] There are several approvals, authorizations, or applications that stem from many acts within the jurisdiction of the AER including those for oil and gas, geothermal, mineral, and pipeline developments. Additionally, certain provisions under the Environmental Protection and Enhancement Act, the Public Lands Act, and the Water Act require AER approvals when related to activities regulated by the AER. Although we will not describe each approval process in turn, there are certain overarching themes that govern public participation before the AER. Primarily, in order for full participation in a proceeding at the AER a person must be ‘directly and adversely affected by an application”.[45] Although anyone may file, and should, a statement of concern with the Regulator, they will evaluate whether that person is directly and adversely affected when making a decision regarding participation.[46] Upon receipt of a statement of concern, the Regulator shall decide whether to conduct a hearing and if they choose to make a decision without a hearing, they shall publish or otherwise make publicly available the decision.[47] If a hearing is held, a person who is directly and adversely affected is entitled to attend.[48]
There are also requirements that the Regulator provide public notice upon receiving an application in accordance with the Rules.[49] Notice of a decision must also be provided to any person who participated in a hearing and decisions and reasons shall be published or publicly available.[50]
The most important part of this is the requirement that a participant submitting a statement of concern or participating in a hearing must be directly and adversely affected by an application to participate. Directly and adversely affected is not defined in the legislation but has been expanded upon through caselaw. A recent 2026 Alberta Court of Appeal (ABCA) decision in Fort McMurray 468 First Nation v Alberta Energy Regulator noted the following:[51]
“The phrase “directly and adversely affected by a decision” is not defined in the REDA. The breadth of the language used, together with the absence of a statutory definition, indicates a legislative intention to confer broad discretion on the AER to determine whether a person is sufficiently affected by an approval decision to have standing to appeal it. As a result, whether a person is “directly and adversely affected” is largely a question of fact, not law, for the AER to decide.”
In elaborating on the definition of directly and adversely affected, the ABCA confirmed that the 2005 case in Dene Tha’ First Nation v Alberta (Energy and Utilities Board), remained authoritative despite being decided under a previous legislation.[52] In Dene Tha’ there was both a legal and factual component to the test; however, in this more recent decision, the Court found that the legal component was “no longer essential to standing to request a regulatory appeal under the REDA because relevant effects are not restricted to effects on legal rights.”[53] With regard to the factual component, the court in Dene Tha’ specified that “some degree of location or connection between the work proposed and the right asserted is reasonable. What degree is a question of fact for the Board.”[54] The Court in Fort McMurray concluded; therefore, that there needs to be some required degree of location or connection which was a question for the AER to determine; however, they also note that it is a standard of proof lower than that of a balance of probabilities.[55]
The Court went on to clarify several points, they found that:
- the nature of a directly and adversely affected test was a causal one with effects necessarily prospective or forward looking;[56]
- when the AEN assessed the evidence, they framed the ‘critical issue’ as “whether the evidence showed ‘that its members exercise rights on or in proximity to the Facility such that it may be affected by the Approvals’” which they find is an accurate statement of the standard of proof required for the directly and adversely affected test;[57] and
- that there is no “fixed legal rule prescrib[ing] the degree of specificity required to show that an approval decision, or the activities it authorizes, could adversely affect the exercise of treaty or Aboriginal rights. Whether the evidence is sufficiently specific about the nature or location of the asserted rights is a question of fact for the AER.”[58]
Finally, the ABCA provided some clarify on the issue of cumulative effects and the directly and adversely affected test. In their decision on this issue, the Court narrowed the opportunity for cumulative effects to be considered in the directly and adversely affected test stating: “[u]nder s 36 of the REDA, standing to request a regulatory appeal depends on whether the First Nation “is directly and adversely affected by a decision”. The focus is on the effects of the approval decision. The cumulative effects of past resource development do not, on their own, give rise to standing. They may inform the assessment of seriousness once it is shown that an approval decision could adversely affect the exercise of treaty or Aboriginal rights, but cumulative effects do not remove the need to show that an approval decision could impair the exercise of those rights.”[59] In other words, first there must be a finding of directly and adversely affected, a fact finding mission, and then cumulative effects may be considered to help establish the seriousness of the effects. This means that cumulative effects are not sufficient for a finding of directly and adversely affected to achieve standing.
While this decision does not necessarily change previous caselaw on the definition of directly and adversely affected, it does clearly limit judicial intervention and suggest broad discretion for the AER to assess evidence in a standing claim.
The main effect of REDA and the court’s interpretation is that public participation in AER decision making is very restricted, particularly in comparison with participation in municipal decision-making. It is a notable difference because section 619(1) of the MGA states that “a licence, permit, approval or other authorization granted by the … AER… prevails, in accordance with this section, over any statutory land use plan, land use bylaw, subdivision decision or development decision by a subdivision authority, development authority, subdivision and development appeal board…”. Similarly, section 619(2) states that if an application is received by a municipality for an authorization or permit and the application is consistent with an approval or authorization granted by the AER, the municipal application must be granted to the extent that it complies with the AER’s authorization. This is a notable restriction because municipal decisions may be overridden despite the fact that the public has less opportunity for participation.
The Natural Resources Conservation Board (NRCB) has a mandate under the Natural Resources Conservation Board Act “to determine whether a natural resource project is in the public interest of Albertans.”[60] The Act states that the purpose of the NRCB is to “provide for an impartial process to review projects that will or may affect the natural resources of Alberta in order to determine whether, in the NRCB’s opinion, the projects are in the public interest, having regard to the social and economic effects of the projects and the effect of the projects on the environment.”[61] Reviewable projects include forest industry projects, recreational or tourism projects, water management projects, and other prescribed projects.[62]
When a hearing is to be conducted, the NRCB “shall give persons who may be directly affected by a proposed project, and may give any other persons it considers necessary” an opportunity to review relevant information, furnish relevant evidence, and adequate opportunity to cross-examine or make representations to the NRCB.[63]
Similar to the AER and EAB, public participation before the NRCB requires a participant to be directly affected; however, there is also an opportunity for the NRCB to expand this participation beyond this limited category. However, there is no definition for directly affected included in the legislation, and we must turn once again to the Alberta Court of Appeal (ABCA) and their decisions in JH Drilling Inc. v Alberta Natural Resources Conservation Board. This case has a complex procedural history; however, we will focus on some of the key findings as they relate to the standard of directly affected. This case is relevant because the initial leave to appeal decision considered whether the NRCB erred in law in finding that JH Drilling (JHD) was not “directly affected” within the meaning of section 8(3) of the Natural Resources Conservation Board Act.[64] The NRCB was “of the view that any dispute between JHD and [the respondent party] were matters for negotiation or litigation between the parties. Accordingly, it concluded that JHD was not a “directly affected” party.”[65] In concluding that JHD was not ‘directly affected’ the NRCB also came to the decision that “since there were no objections to [the respondent’s] application from a person with standing, it was not necessary to hold a public hearing.”[66] In seeking leave to appeal, JHD argues that the decision “affects the contractual, equitable and proprietary interests of JHD in lands that are subject to the Application (as well as some adjacent lands). JHD has a vested interested in [its] SML application” and cited an NRCB fact sheet which states that “[y]ou may also be considered directly affected if you would experience direct financial effects.”[67] The ABCA granted the appeal and as Professor Fluker noted, “[w]hile not a decision on the merits of the issue, this leave decision is significant because the question for appeal will concern the NRCB’s interpretation of ‘directly affected’ in its governing legislation to determine participatory rights before the Board.”[68]
Notably, this decision made its way back to the ABCA and eventually the appeal on the matter of whether JHD was improperly excluded from participation at the NRCB was dropped.[69] As such, there was very little direction from the Court on how directly affected was to be understood for participatory rights in front of the NRCB. However, throughout the JHD procedural saga, significant discretion was awarded to the NRCB to determine a finding of directly affected for their own purposes. Further, regardless of the specifics, participation at the NRCB is still significantly more limited than participation at a municipal council meeting or hearing. This is again notable as section 619(1) of the MGA states that a “[a] licence, permit, approval or other authorization granted by the NRCB… prevails … over any statutory plan, land use bylaw, subdivision decision or development decision by a subdivision authority, development authority, subdivision and development appeal board, or the Land and Property Rights Tribunal.”[70] Fluker highlights the challenge stating that for these types of projects, “[t]he only real opportunity for interested persons to comment on the impact of [a project] is in a project review hearing conducted by the NRCB.”[71] He goes on to highlight the participatory challenges inherent in these tribunal processes stating “[t]he opportunity for public interest groups, in particular, to participate in resource project reviews has been severely compromised by the narrow interpretation given to ‘directly affected’ by statutory agencies. It is difficult to comprehend how these agencies ensure resource development decisions are in the public interest when they seem so reluctant to hear public input and expressly refuse to do so in some cases.”[72] As decisions are moved out of the municipal realm to more provincial processes including the NRCB, this challenge will only be further exacerbated limiting fulsome decision-making and the ability for people to participate in decisions that will have impacts on their lives and livelihoods.
The NRCB does acknowledge the importance of considering municipal planning in major project decisions in their Process Guide which states that: “the NRCB requires proponents to include in their applications a detailed discussion of the municipal land use implications of the proposed project. Applications must include sufficient background information to allow the NRCB to assess the effects on municipal land use, including effects on municipal development plans, area structure plans, land use by-laws, and other municipal by-laws.”[73] However, the NRCB still retains final decision-making power.
The Alberta Utilities Commission (“AUC”) is the regulator responsible for “regulating the electricity industry and all related infrastructure. The AUC’s jurisdiction includes the responsibility to assess whether new electricity facility projects or modifications to existing electricity infrastructure are in the public interest.”[74] The AUC, in making decisions, must meet the ‘public interest test’ as set out in section 17(1) of the Alberta Utilities Commission Act as follows:[75]
17(1) Where the Commission conducts a hearing or other proceeding on an application to construct or operate a hydro development, power plant or transmission line under the Hydro and Electric Energy Act or a gas utility pipeline under the Gas Utilities Act, it shall, in addition to any other matters it may or must consider in conducting the hearing or other proceeding, give consideration to whether construction or operation of the proposed hydro development, power plant, transmission line or gas utility pipeline is in the public interest, having regard to the social and economic effects of the development, plant, line or pipeline and the effects of the development, plant, line or pipeline on the environment.
Public participation is designed to be conducted in the pre-application stage by the project proponent. This stage is intended to ensure that “effective communications take place between the applicant and all potentially affected persons including Indigenous groups, the public, local authorities, agencies, industry and government so that concerns may be raised, properly addressed, and if possible, resolved.”[76]
However, full participation in an AUC hearing is limited to those who are directly and adversely affected, section 9(2) of the AUC Act sets out the test as follows:[77]
“9(2) If it appears to the Commission that its decision or order on an application may directly and adversely affect the rights of a person, the Commission shall
(a) give notice of the application in accordance with the Commission rules,
(b) give the person a reasonable opportunity of learning the facts bearing on the application as presented to the Commission by the applicant and other parties to the application, and
(c) hold a hearing.”
As with other agencies and tribunals, further interpretation of ‘directly and adversely affected’ has been left up to the courts. In Cheyne v Alberta, the ABCA heard an appeal from “a decision of the Alberta Utilities Commission (AUC) (the Cheyne Decision) denying them the right to insist upon a hearing pursuant to section 9(2).”[78] In their submission, the appellants argued that “[t]he landowners feel that the location of the substation visually impacts their current residence. We believe it dramatically affects both the land value and the aesthetic value of planned future subdivisions.”[79] In denying the appellants standing, the AUC set out their two-part test for directly and adversely affected wherein the AUC “will first determine whether a person has a legally recognized interest or right and, second whether the information provided by that person shows that the application before the Commission may directly or adversely affect that right.”[80] The AUC found that part two of the test was not met, finding that there was no evidence to show that “there will be a reduction in the value of the land for future development.”[81] The Court of Appeal considered the AUC decision in their analysis asking whether the Commission erred in law by applying the wrong test under section 9(2) of the Act and confirmed two branches of the test, a legal test and a factual one.[82] In this case, the Appellants argue that the AUC “applied the wrong test in determining whether there was a possibility of a direct and adverse interest” weighing evidence before it to reach a final decision rather than determine whether there was a prima facie case of “potential adverse affect.”[83]
In the next part of the analysis, the Court considers the fact that according to the legislation, the threshold for notice, information and a hearing is the same.[84] This, according to the Court and the evidence, suggests that the prima facie burden is low and that evidence must only establish that an applicant could possibly be directly and adversely affected and need not “establish proof that the undertaking will result” in harm.[85] They conclude that this lower threshold is particularly important “as it will set the standard for the right to notice, information and a hearing.”[86]
If you meet this test as set out in Cheyne, participate in a hearing and disagree with the results, the AUC Rules, specifically Rule 016: Review of Commission Decisions, provide for an opportunity to have the matter reviewed.[87] Section 5 states that the Commission may review its decision if there was an error of fact or mixed fact and law or if there is new information or a change in circumstances that was not available at the time of the hearing or decision.[88]
This year, the ABCA opined on the importance of ensuring that Commission proceedings and decisions, despite being focused on subject matter experts, are available for all Albertans. The Court pointed out that “[a]ll Albertans consume energy and are affected by Commission decisions” and that Commission decisions should be written and released in such a way that they are accessible and legible to Albertans regardless of subject matter expertise and that doing so “would promote the accountability and accessibility of [the Commission’s] regulatory activities for Albertans.”[89]
Once again, this level and opportunity for public participation is important in comparison with opportunities for participation at the municipal level because any AUC decision regarding an energy project that conflicts with a municipal decision will prevail.
Feature Photo by Kym MacKinnon on Unsplash
[1] Shaun Fluker, “The Right to Public Participation in Resources and Environmental Decision-Making in Alberta’ Alberta L Rev (2015) 52:3 at 594 [The Right to Public Participation].
[2] Ibid at 594.
[3] Ibid at 594.
[4] Ibid at 595.
[5] Normtek Radiation Services v Alberta Environmental Appeal Board, 2020 ABCA 456at para 142 [Normtek ABCA].
[6] Ibid at para 2.
[7] Ibid at para 6.
[8] Ibid at para 77.
[9] Ibid at para 79.
[10] Ibid at para 85.
[11] Ibid at para 85.
[12] Ibid at para 139.
[13] Ibid at para 139.
[14] Ibid at para 139.
[15] Ibid at para 154.
[16] Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 at para 37.
[17] See discussion in Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45.
[18] Normtek ABCA at para 142.
[19] Ibid at para 143.
[20] Normtek Radiation Services Ltd. v Director, Red Deer-North Saskatchewan Region, Regulatory Assurance Division, Alberta Environment and Parks re: Secure Energy Services Inc., 2025 ABEAB 2 at paras 327-328 [Normtek ABEAB].
[21] Environmental Protection and Enhancement Act, RSA 2000, c E-12, s 40 [EPEA].
[22] Environmental Assessment (Mandatory and Exempted Activities) Regulation, Alta Reg 111/1993.
[23] EPEA, s 44(1)(b).
[24] Ibid, s 44(6).
[25] Ibid, s 46.
[26] Ibid, s 66.
[27] Activities Designation Regulation, Alta Reg 276/2003.
[28] Ibid, s 5.
[29] EPEA, s 73(1).
[30] Water Act, RSA 2000, c W-3, ss 108(1) & 109(1).
[31] EPEA.
[32] Ibid, ss 91(g)(ii) & (m).
[33] Ibid, s 95(5)(a)(ii).
[34] The Right to Public Participation at 577.
[35] Normtek ABEAB at paras 327-328.
[36] Ibid at para 334.
[37] Ibid at para 341.
[38] Jeans-Moline et al. v Director, North Region, Regulatory Assurance Division, Alberta Environment and Parks, re: Canadian Carmelite Charitable Society Inc., 21-025-026 and 22-001-034, 036-037- ID1, 2023 ABEAB 9 at para 87.
[39] Keepers of the Water Society v Director, North Region, Regulatory Assurance Division, Alberta Environment and Protected Areas, re: SUEZ Canada Waste Services Inc. et al., Appeal No. 23-021-IDl (AEAB), 2024 ABEAB 21 at para 119.
[40] Ibid at para 120.
[41] Ibid at para 121.
[42] Ibid 21 at para 122.
[43] Ibid at para 123.
[44] Responsible Energy Development Act, SA 2012, c R-17.3, s 2(1).
[45] Ibid, s 32.
[46] Ibid, s 32.
[47] Ibid, s 33.
[48] Ibid, s 34(3).
[49] Ibid, s 31.
[50] Ibid, ss 35(2) & (3).
[51] Fort McMurray 468 First Nation v Alberta Energy Regulator, 2026 ABCA 197 at para 44 [Fort McMurray 468 First Nation].
[52] Ibid at para 46 citing Dene Tha’ First Nation v Alberta (Energy and Utilities Board), 2005 ABCA 68.
[53] Fort McMurray 468 First Nation at para 47.
[54] Ibid at para 48 citing Dene Tha’ First Nation v Alberta (Energy and Utilities Board), 2005 ABCA 68 at para 14.
[55] Fort McMurray 468 First Nation at paras 50 & 51.
[56] Ibid at para 58.
[57] Ibid at para 61.
[58] Ibid at para 65.
[59] Ibid at para 78.
[60] NRCB, “Public Participation” online: https://www.nrcb.ca/natural-resource-projects/about-natural-resource-project-reviews/public-partiicpation.
[61] Natural Resources Conservation Board Act, RSA 2000, c N-3, s 2.
[62] Ibid, s 4.
[63] Ibid, s 8.
[64] JH Drilling Inc. v Alberta (Natural Resources Conservation Board), 2014 ABCA 134 at para 15.
[65] Ibid at para 5.
[66] Ibid at para 7.
[67] Ibid at para 9.
[68] Shaun Fluker, “Leave to Appeal Granted in NRCB Case Concerning Participatory Rights and the Interpretation of ‘Directly Affected’ Persons Entitled to a Hearing” (17 Apr 2014) ABlawg online: https://ablawg.ca/2014/04/17/leave-to-appeal-granted-in-nrcb-case-concerning-participatory-rights-and-the-interpretation-of-directly-affected-persons-entitled-to-a-hearing/ [Leave to Appeal Granted].
[69] See para 7 of JH Drilling Inc. v Alberta (Natural Resources Conservation Board), 2014 ABCA 378 for procedural history.
[70] Municipal Government Act, RSA 2000, c M-26, s 619(1).
[71] Leave to Appeal Granted.
[72] Ibid.
[73] Natural Resources Conservation Board, “The Board Review Process Under the NRCB” V 4.2 (2026) at section 5.2 online: https://www.nrcb.ca/public/download/documents/74480.
[74] Indra Maharaj, “A Guide to the Alberta Utilities Commission” (May 2022) Canadian Institute of Resources Law Occasional Paper #79 at 2 online: https://cirl.ca/sites/default/files/teams/1/Occasional%20Papers/Occasional%20Paper%20%2379.pdf.
[75] Alberta Utilities Commission Act, SA 2007, c A-37.2, s 17(1) [AUC Act].
[76] Alberta Utilities Commission, Rule 007, Appendix A1, s 1.2 online: https://media.auc.ab.ca/prd-wp-uploads/regulatory_documents/Consultations/Rule007.pdf.
[77] AUC Act, s 9(2).
[78] Cheyne v Alberta (Utilities Commission), 2009 ABCA 94 at para 1.
[79] Ibid at para 5.
[80] Ibid at para 9.
[81] Ibid at para 9.
[82] Ibid at para 13.
[83] Ibid at para 15.
[84] Ibid at para 17.
[85] Ibid at paras 21-22.
[86] Ibid at para 27.
[87] Alberta Utilities Commission, Rule 016: Review of Commission Decisions (13 Dec 2023) online: https://media.auc.ab.ca/prd-wp-uploads/Shared%20Documents/Rules/Rule016.pdf.
[88] Ibid, s 5.
[89] FortisAlberta Inc v Alberta Utilities Commission, 2026 ABCA 258 at paras 99-102.