3rd edition
Authors:	Duncan Kenyon, Nikki Way, Andrew Read, Barend Dronkers, Benjamin Israel, Binnu Jeyakumar, Nina Lothian
Publisher:	Pembina Institute
Publish Date:	October 2016
PDF Download:	[Landowners' Guide]              [Landowners' Primer]
Initiation Phase
Exploration Phase
Development Phase
Pipelines and Other Infrastructure
Environmental Impacts
Abandonment and Reclamation
Compensation, Rights, and Hearings                Compensation for Wells, Facilities and                 Pipelines                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                 Board Hearings
Appendices

The Hearing

Once the formal hearing begins, a panel of one or more AER hearing commissioners listens to the views and arguments of all parties. The process begins with opening remarks and dealing with any preliminary matters. After opening remarks, they will hear first from the company (always referred to as “the applicant”). The applicant will usually have a witness panel that will speak to and be able to answer questions about their evidence. Then other participants can question the applicant or witness panel, as can AER staff and hearing panel members. Following this, the other participants will have the opportunity to present their own cases and witnesses in turn. After each participant has presented their arguments, the applicant is given an opportunity to cross-examine. After each party has presented their position and been cross-examined by the other parties, the AER may ask additional questions of the other parties. Once all participants have presented their evidence and the cross-examination is completed, the parties present their final arguments. The AER will then adjourn the hearing to deliberate on its ruling. The AER requires that all evidence presented in the hearing process must have been provided according to the schedule of submissions to the hearing; new evidence introduced late in the hearing process may not be permitted. For more details about each step in the hearing, see Manual 003: The Hearing Process for the Alberta Energy Regulator.

The AER may take several weeks and up to 90 days to reach a decision. This will then be published as a decision report. Within 90 days of the hearing, a copy of the decision document will be sent to those who participated in the hearing, or to their lawyer, and be published on the AER website. If a hearing has been completed, the AER’s decision is final and the opportunity to appeal is very limited (see Post-Decision Follow-Up).

AER hearings are transcribed by a court reported, and are made available at the AER library in Calgary. Reviewing transcripts of previous hearings may be helpful for a party or a lawyer preparing to cross-examine a company. If you have to purchase a transcript, you can include this in your cost claim (see Funding and Participant Costs).

Funding and Participant Costs

Hearing participants can apply for costs to compensate them for the expenses they incur when preparing for, and participating in, a hearing before the AER. The AER may award costs to anyone who it allows to participate in a hearing. The Rules of Practice outline a number of factors that it may consider when deciding whether to grant costs, and it would be beneficial for you to know what the AER may decide to cover. Many of the considerations are different from the former ERCB cost considerations, which focused on the type of contributions participants made, the usefulness of their evidence and participation, and their willingness to cooperate with other participants. Now there are many new considerations that Regulator may consider, such as whether the participant was willing to attend an alternative dispute resolution, or the extent of their efforts to resolve issues with the applicant beforehand. Notably, there is an emphasis that the Regulator may consider if there is a compelling reason for the participant to bear their own costs, and whether the participant has made an adequate attempt to use other funding sources.

Full details about applying for costs are set out in AER Directive 031: REDA Energy Cost Claims, including outlining the different cost claim forms that are necessary to complete. As Directive 031 explains, the costs have to be

• reasonable and directly related to the hearing
• actual expenditures incurred and paid out of pocket by the participants or, in some cases, other costs for which there was no actual out of pocket expense (such as an honorarium for participation in a hearing)
• properly documented, with receipts for all costs incurred.

The AER may award costs incurred when the hearing participants engage a lawyer or a consultant who helps provide evidence for the hearing. Additionally, it may consider other associated costs of a hearing such as accommodations, transportation, and meals, meeting room rentals, and long-distance phone calls. The AER may award basic participant costs based on an honorarium of $100 per half day of a hearing. Merely attending the hearing does not qualify for costs, but an participant who takes an active part in a hearing, e.g., by giving evidence and being cross-examined, may claim for time spent at the hearing, as outlined in Manual 003 and Directive 031. This may also include public interest groups or associations, if the hearing panel has granted them participation in the hearing.

The AER will usually only cover costs incurred after a notice of hearing is given, but there may be a situation where the AER considers it reasonable for some costs to accrue before a hearing notice is given. Additionally, the AER may also grant advance funding to enable you to engage the experts you need for a hearing. If you submit such a request you will need to provide a detailed estimate of the costs you expect to incur and, if appropriate, why this information is needed for the hearing. You will still have to prove afterwards, with receipts, that those costs were actually incurred. Section 4 of Directive 031 outlines interim costs in more detail.

The applicant is responsible for covering the costs of the participants. The AER does not review every cost claim submitted to them after a hearing. When a cost is in dispute between the participant and the applicant, then the AER will review that aspect in dispute. Otherwise, the AER will expect the parties to act in good faith, but can audit a cost claim at any time at its discretion. After the AER has awarded costs, the applicant must pay the participant within 30 days, or they will be subject to enforcement measures by the AER.

For more details on claimant costs, please refer to Directive 031 to help you interpret the section of the AER Rules of Practice that deals with costs. It is also useful to review previous cost order decisions made by the AER to better understand criteria used to determine what is determined to be acceptable in other hearings.

Post-Decision Follow-Up

Following a hearing or other decision, the AER expects the company to comply with the decision. Conditions set in the hearing decision may also be incorporated into the company’s licence or permit. In some cases, a company may make commitments to interveners that are not specifically spelled out in the licence or permit.

If you have any evidence that a company is not complying with these commitments you should bring this to the attention of the AER (see What the Alberta Energy Regulator does). The AER will then decide on the appropriate action, which will be determined by the severity of the infringement. It is also a good idea to keep an ongoing record of any problems you experience as a result of a company’s activities, even if the company is acting in accordance with its licence or permit. You then have evidence that you can submit to the AER at a later date, should the company want to extend, amend or renew its activities on your land or in the area.

Reconsiderations and Legal Challenges to Hearing Decisions

When the AER has made a decision after a hearing, it is final. You cannot appeal the actual decision to the AER if you do not like it. An appeal on the AER decision made by a hearing panel can only be made to the Alberta Court of Appeal on matters of law and jurisdiction. Any appeal must be made within one month of the date on which the decision was issued by the AER. Sometimes several days elapse between the AER signing the decision and the actual announcement, so check the deadline carefully. Section 45 of REDA sets out exactly what is required in the appeal process. When preparing for an appeal, it may also be helpful to review the transcripts of other cases that have gone to appeal.

The AER has the power to confirm, vary, suspend, or revoke any decision that it has made, which is considered a reconsideration. Should you discover new evidence not available at the time of the initial hearing, you could ask the AER to reconsider its decision, citing section 42 of REDA. This situation, in which a hearing is held after the AER has approved a project, might arise where a company did not fully inform the public about a proposed development before applying to the AER for approval. The AER might then issue a licence or permit without realizing that there were serious public concerns. Other grounds for reconsideration include if substantial new information has come to light that is pertinent to health and safety or to environmental aspects of the approved project.

You can request a reconsideration on any AER decision, made with or without a hearing. The AER rarely reconsiders its decisions, so it is important to carefully construct your case to make the best argument as to why new facts or information could have had an impact on the hearing panel’s decision. If the Regulator has decided to reconsider its decision, it can do so with or without holding a hearing.

Regulatory Appeals for AER Decisions Made Without a Hearing

Depending on the type of approval, AER decisions that were made without a hearing can be challenged by requesting the AER to conduct a regulatory appeal of the decision. Any decision made by a hearing panel cannot be appealed to the AER, but you may submit a request for reconsideration to the AER, which could lead to a hearing (see Reconsiderations and Legal Challenges to Hearing Decisions).

In addition to requesting a reconsideration, you may be able to request an appeal on a decision defined as a ‘appealable decision’ under REDA section 36. Your eligibility to appeal depends on the type of decision. Examples of decisions that may be appealed if they were made without a hearing include:

• An approval or an amendment, addition or deletion of an application under the Environmental Protection and Enhancement Act
• The issuance of a environmental protection order
• The issuance of a reclamation or remediation certificate
• An amendment or issuance of an approval or a renewal of a licence that formerly was a public review under the Water Act
• Any decision of the Regulator under an energy resource enactment (see Energy Resource Laws Administered by the AER)

The length of time that you have to appeal varies with each type of decision. In the case of a decision by the Regulator to issue an approval under the Environmental Protection and Enhancement Act (EPEA), you must appeal within 30 days of an approval being given (EPEA, section 91(4)(c)), though there are different time limits for other appeals. In the case of a reclamation certificate, the company, or any person who has received a copy of the reclamation certificate, has up to a year to file a notice of appeal (EPEA, section 91). In a case where the Regulator refused to issue a reclamation certificate, the company also has 30 days to appeal. The AER also deals with appeals against other AER decisions, including enforcement orders, environmental protection orders, and the designation of a contaminated site. A company is usually more likely to bring an appeal against such decisions, but a landowner may want to take part in the appeal process, to tell the AER why it should not revoke a decision or order, for example.

An appeal to the AER does not usually prevent a company from proceeding with any action allowed by the approval that is being appealed. The person(s) appealing the decision must request a “stay” if they want a project put on hold. While the AER will consider an application for a stay, it is not automatically granted. The AER can only consider granting a stay where it is requested.

If the Regulator decides to proceed with an appeal, it will proceed to the chief hearing commissioner, who will establish a panel. Alternatively, the Regulator may encourage the issue to be dealt with through its Alternative Dispute Resolution process (see Working with the Alberta Energy Regulator).

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