|Authors:||Duncan Kenyon, Nikki Way, Andrew Read, Barend Dronkers, Benjamin Israel, Binnu Jeyakumar, Nina Lothian|
|Publish Date:||October 2016|
|PDF Download:||[Landowners' Guide] [Landowners' Primer]|
|Pipelines and Other Infrastructure|
|Abandonment and Reclamation|
|Compensation, Rights, and Hearings|
Compensation for Wells, Facilities and
Surface Rights Board and Surface Agreements
Before a Hearing
Filing a Statement of Concern
Post Hearing and Regulatory Appeals
Surface Rights Board and National Energy
If there are concerns about a project that cannot be addressed through negotiation or the alternative dispute resolution process, the Alberta Energy Regulator may hold a public hearing to explore the concerns and make a decision to approve, to approve with conditions or to deny a project. If the issue is around compensation, a hearing may be held by the Surface Rights Board. If the approval is related to pipelines that cross provincial or national borders, the National Energy Board may hold a hearing. As each regulatory body has different mandates and considerations for participation, this section outlines the general hearing process for each and who may participate in these hearings.
It is important to distinguish between the roles of the Alberta Energy Regulator (AER) the Alberta Surface Rights Board, and the National Energy Board.
The AER provides all permits, approvals or licences for energy resource activities in Alberta such as a licence for an operator to drill a well, construct and operate a pipeline, or other energy projects. Any concerns or objections to a project may be brought to the attention of the AER (see Alberta Energy Regulator Hearings) through a pre-application concern (see Public Consultation, Notification and Involvement) or a statement of concern (see Filing a Statement of Concern).
Formerly, appeals on environmental, water and public land approvals related to the energy resources were heard by the Environmental Appeals Board. Since the creation of the AER, all decisions related to energy resource activities including appeals on reclamation certificates, environmental protection orders and enforcement orders are appealed to the AER. The AER has discretion to decide if it will reconsider any of its decisions, and if it will do so with or without a hearing.
The Surface Rights Board has the power to grant a right-of-entry order after a company has received a licence or permit from the AER, even if the owner or occupant refuses access to the property. The Surface Rights Board will then decide on the appropriate compensation, and to whom it should be paid. All concerns about compensation must be brought to the Surface Rights Board, as the AER does not have jurisdiction over compensation (see Regulatory Appeals for AER Decisions Made Without a Hearing).
The National Energy Board has jurisdiction over decisions about interprovincial or international pipelines (see Pipelines Regulated by the National Energy Board). The Alberta Utilities Commission regulates applications for electricity generation and transmission, which is a separate process and is not discussed in this guide.
A hearing is a quasi-judicial and formal public process where the company, landowner(s) and others affected by a proposed development, and/or their legal representatives, can present their views. The panel consists of one or more AER hearing commissioners, and can be completed electronically or in person. The AER then makes a decision on the specific issue(s) at hand, based on the evidence it has received.
If there are outstanding concerns about a proposed development that cannot be addressed through negotiations or the AER’s Alternative Dispute Resolution (ADR) process (see Alternative Dispute Resolution), a person who feels they are directly and adversely affected can submit a statement of concern to the Regulator when a company has submitted their application. If the statement of concern is received before the Regulator makes a decision and before the filing deadline, the AER may recommend the file to the chief hearing commissioner to hold a hearing. Additionally, the AER has the ability to hold a hearing, even if no one has been found to be directly and adversely affected.
If a hearing has been requested, the AER will encourage the parties to continue to reach a negotiated or mediated settlement, either privately or through the ADR process. Since hearings are very expensive and can delay projects, the company may be motivated to resolve concerns, or decrease the number of issues that will be discussed in a hearing. The AER has several documents outlining its hearing process. The public hearing process is set out in the AER’s Rules of Practice but Manual 003: The Hearing Process for the Alberta Energy Regulator describes the process in plainer terms. Additionally, you can contact the AER’s Hearing Services office, who can provide you with more information about the hearing process, and may offer hearing information sessions near the area of the proposed project.
The AER has considerable discretion to determine when to hold a hearing, and more discretion than its predecessor, the ERCB. In very few circumstances it is required by its own regulations to hold a hearing. Most hearings are held when the Regulator receives and accepts a statement of concern about an application, or a regulatory appeal on an AER decision is requested.
Any person who feels they are considered directly and adversely affected by a decision of the AER can attempt to request a hearing by filing a statement of concern (see Filing a Statement of Concern below). When a project is submitted to the Regulator with no outstanding concerns it may be expedited, which allows the Regulator to make a decision immediately. However, if a company is aware of outstanding concerns, they must inform the AER of those concerns and provide those who raised them with a copy of the notice of application. With outstanding concerns, the company is required to file its application as a non-expedited application, and the Regulator must wait until the filing deadline described in the notice of application has passed. It is important to submit your statement of concern within the timelines stated in the public notice of application, or the Regulator may dismiss your statement of concern. In extenuating circumstances, you may be able to request to file a late statement of concern.
As a landowner or occupant of the specific land in question, you can request a hearing by submitting a statement of concern if negotiations have failed and you are unable to reach agreement with a company about a proposed development. Anyone else who is directly and adversely affected, such as neighbours objecting to a well, pipeline or other energy project, can also request a hearing, although they may have a harder time being considered directly and adversely affected by the Regulator. When the AER is reviewing the application it will consider all of the registered statements of concern before making a decision whether to hold a hearing. However, even if a statement of concern has been submitted, the Regulator can decide not to hold a hearing. Typically, the Regulator will not hold a hearing if they don’t find anyone to be directly and adversely affected, or if they consider that concerns have been adequately addressed.
As the AER will only make its decision on the evidence that it has before it, it is important to explain your concerns fully and to clearly outline how you are directly and adversely affected. The AER will ask the company to respond to your statement of concern, and the company will likely try to refute your statement of concern. You may wish to provide more information to the AER about your statement of concern or to refute information provided by company. The AER may accept additional information about registered statements of concern until it makes a decision. Every person who filed an statement of concern will be provided a copy of the AER’s decision.
Once the AER decides to hold a hearing and a hearing panel is assigned, a notice of a hearing will be issued. The notice will provide details on how to request to participate in the hearing. The AER’s Rules of Practice allow those who think they are directly and adversely affected to request to participate. Additionally, those who think they have a tangible interest in the matter and can materially assist the AER in their decision are allowed to request to participate in a hearing, even if they are not considered directly and adversely affected.
The hearing panel will decide who can participate, and determine the scope of participation for those it allows to participate. Certain parties may be automatically granted participation, such as the applicant or a regulatory appeal requestor. However, automatic participation is not given those who submitted a statement of concern. Therefore, if you want to participate in the hearing you must submit a request to participate within the timeline given in the notice, even if you already filed a statement of concern.
A hearing takes a lot of time and is costly to all parties involved. A hearing can last from one day to several weeks, depending on the complexity of the problems to be resolved and the number of participants. If negotiation or mediation has failed, asking for a hearing is another opportunity to have your views heard; however, you can continue negotiations right up until the start of a hearing. Before you decide to ask for a hearing, you may want to talk with other people in your area so you can all work together (see Forming a Group With Landowners and Concerned Citizens).
An AER hearing is a quasi-judicial process so while it is not essential to have a lawyer represent you, it is strongly advisable. Certainly, the company seeking approval for a project will employ a lawyer who will build the company’s case, and try to challenge the legitimacy of yours. The company lawyer may question your eligibility to participate, such as suggesting you may not be directly and adversely affected.
If you wish to provide additional information about your request or to refute the company’s information, generally an AER hearing panel will admit additional information, unless accepting that additional information is unfair to other parties or unnecessarily delays the process. In practice, hearing panels have discretion in how rules and procedures are applied. They may try to accommodate participants who are not represented by a lawyer, while ensuring that the process is fair to everyone.
Preparation for a hearing often involves a lot of technical work. Depending on the issues, you may want to draw on a range of experts. These experts might include a geologist to review drilling plans, someone to critique the gas emission modeling work conducted by the company, an engineer to examine the specifications for the design and materials to be used in constructing a pipe or casing, and a medical person to review the potential impacts of a sour gas release.
Most experienced lawyers will know the best experts and some will provide up-front coverage of costs for you. However, you may also want to look at the written reports of AER decisions from previous cases to give you some idea of the type of evidence presented at a hearing.
You should contact knowledgeable lawyers and experts in the field before you apply for a hearing, so you know the costs involved and whether the experts you wish to hire will be available if the AER decides to hold a hearing. When discussing your case with these individuals, be clear that you are only inquiring, and that you are not engaging their services until it is certain that the AER will hold a hearing. Also, reach an understanding up front about the rates and terms of payment.
Where possible, engage these professionals on a contingency basis, where you agree to apply for participant funding and will pay reasonable fees if costs are awarded to you by the AER. Many professionals will agree to this if it is clear that you are a “directly and adversely affected” party and have a valid case. Some people may also agree to work for lower rates that reflect a contribution to the “public interest,” or ask only that you reimburse out-of-pocket expenses if participant funding is not granted. You can also negotiate directly with the company to ask them to pay reasonable costs or ask the AER for an advance costs award. Without establishing this understanding from the start, you may be exposed to costly professional fees. See Funding and Participant Costs for more details around hearing and participant costs.
Once the AER decides to hold a hearing, it may schedule a pre-hearing. A pre-hearing sorts out details such as the date, time and place of the hearing, submission deadlines, and whether an information request is necessary, and will determine the time available for each party to present evidence and cross examine at the hearing. It will also determine the procedures to be used, and make arrangements for the exchange of exhibits or submissions before the hearing itself begins. The AER tries to avoid postponing hearings to avoid undue delays for all parties, but if you are concerned about the timing or any other process you can make a written request to the hearing panel outlining your concerns and your proposed alternatives. If, for example, you do not think there is enough time to get expert witnesses by the date scheduled for the hearing, you could ask for the hearing to be set for a later date. At a pre-hearing, the AER may encourage participants to join with other local interveners to prepare a joint submission. They will also discuss costs and how to submit a request for advance costs. The AER can choose to hold a hearing electronically (submitting files online), or orally (in person). If the hearing is done in person, the AER will usually plan to hold it as close to the project and participants as possible. Following the pre-hearing, the AER will send all those who attended a written memorandum of decision about the issues dealt with at the pre-hearing.