|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 negotiations have failed and you want the AER to formally address your concerns after the company has submitted their application, the next step is to submit a statement of concern to the AER about an application or project. It is important for you to submit a statement of concern at this stage of the process, or your concerns will not be considered when the AER makes a decision on the application.
When submitting a statement of concern, you need to concisely explain why you believe you are both directly and adversely affected by the Regulator’s decision, the nature of your objection to the application, and the outcome you advocate for. You need to include other relevant details, such as your contact info, and your location relative to the location of the proposed energy resource activity.
It is important to submit your statement of concern within the filing period and carefully make your case as to why you are both directly and adversely affected. The AER must consider all statements of concern that it accepts when making a decision on an application, and determine if it is necessary to hold a hearing. You should review recent participatory and procedural decisions that are listed on the AER website, as they will give you a good sense of how the AER decides who is directly and adversely affected, what concerns they will address, and what information is useful to the AER when deciding to hold a hearing. Currently, the AER has a fairly narrow interpretation of who is directly and adversely affected, and typically does not include people who don’t live or own the land where the project will be located, or who cannot establish that they are negatively impacted.
The types of concerns that might be raised include potential impacts on air quality, groundwater and surface water quality; noise; waste; risk from emergency blowouts; and concerns about conservation and reclamation issues. However, it’s not enough to simply raise a concern; you must explain how you will be directly and adversely impacted based on your concern. For example, it may not be enough to say you are concerned about an emergency blowout. But, if you are required to evacuate through an unsafe zone in the event of an emergency, your statement of concern is more likely to be considered. You shouldn’t assume that the AER will have this information unless you provide it in your statement of concern. The AER considers each case on its own merits when it decides whether a hearing is required and does not work on precedent. Be sure to provide all the legitimate arguments you can and give as much detail as possible. Make it as easy as possible for the AER to follow your arguments by putting each specific concern about an application in a separate, numbered paragraph.
Calling the Regulator does not count as submitting a statement, as it must be in writing. You must submit your statement before the date specified in the notice (the time for comment can be as short as 10 days or as long as 30 days). In some cases there is no time set, such as when the project is filed as an expedited application (also known as a routine application). In these cases, the Regulator may make a decision on the application immediately. When the project is filed as a non-expedited (or non-routine) application, the Regulator must wait for the period for filing a statement of concern to pass before they will approve a project. Companies are allowed to fill an expedited application if they do not require regulatory leniency, and only if there are no outstanding concerns at the time of application. If the Regulator does not receive any statements of concern, they are very unlikely to hold a hearing. If the Regulator has already made a decision on an application, then they can’t consider a statement of concern, so it is important to submit your statement as soon as possible.
The Regulator has considerable discretion to hold a hearing, and there are very few instances where the Regulator is required to hold a hearing. Additionally, under the legislation that enables the AER, there is no longer a formal right to a hearing for those who are directly and adversely affected. Therefore, you need to make your case for a hearing as strong as possible by being as specific as possible, and presenting all the main arguments in your statement of concern. However, if the Regulator decides to hold a hearing, according to the Responsible Energy Development Act (see Responsible Energy Development Act), you may be entitled as a directly and adversely person to be heard in a hearing.
Any statement of concern you submit will be publicly posted on the AER website, so you should not include personal, medical, financial, or otherwise confidential information in your statement. If it is important that the AER consider your personal private information, you can request that information be held confidential. However, it may be enough for you to describe the information and offer further details if necessary. You don’t have to prove you are directly and adversely affected for the AER to consider your statement of concern, just that you may be directly and adversely affected.
If the AER decides to hold a hearing, the branch of the AER that would approve the application forwards the file to the chief hearing commissioner. The chief hearing commissioner will send a letter people who have filed statements of concern, advising them that the file has been sent to the hearing commissioner’s office. A hearing panel will be assigned to the file, and if considered beneficial, a second panel will be assigned to conduct an ADR process. The hearing panel and the ADR panel work separately, to avoid unduly influencing the hearing process if it proceeds.
Once the hearing panel believes the matter is ready to proceed to a hearing, it will issue a notice of a hearing. The notice will be sent to all those who submitted a statement of concern and to all those listed in the application, and will be posted on the AER’s Notices web page. Additional information and documentation will be posted on the AER’s website. The AER may also publish notices in local or provincial newspapers. The notice will outline relevant details about the hearing, such as the subject of the hearing, where to see copies of the relevant documents to the application, and how to request to participate.
Even if you have submitted a statement of concern for the original application, you must submit a request to participate, also known as a written submission, within the time laid out in the hearing notice. You should submit:
If you are representing a group or association, you should explain the nature of your membership with that group. See the AER’s Rules of Practice to look over everything you are expected to include, to ensure your concern is accepted by the Regulator.
If you are not considered directly and adversely affected, you can still apply to participate in a hearing. For example, landowner groups, or residents who live outside of a notification zone, may be granted participation status. When applying, you need to be careful to explain the nature of your interest and why you should be allowed to participate. Additionally, you need to elaborate on how your participating will materially assist the hearing panel to make its decision; what tangible interest you have in the subject matter; and how your participation won’t delay the hearing or duplicate evidence of the other parties. The panel has the ability to grant partial participation and may limit your participation to an electronic submission, or determine the issues you are allowed to speak to.
Even if you did not submit a statement of concern, you may still be allowed to participate. It is best to respond to the Notice of Hearing and make a written submission. If you did not submit a request to participate, you can still attend the hearing, however you will not be permitted to submit any evidence or make a submission.
Before preparing and submitting your request, it is useful to review the Alberta Energy Regulator Rules of Practice (Alberta Regulation 99/2013), and Manual 003: The Hearing Process for the Alberta Energy Regulator. The rules set out the key steps that you must follow in preparing and submitting a request, and what the Regulator will consider in deciding a hearing. The Manual was written to assist participants in AER hearings. Additionally, you can contact the hearing services office, or attend an information session if you are unclear about the process.