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Natural Resources Law - OIL AND GAS - Conservation and licensing - Provincial regulation - Alberta - Pipelines - Intra-provincial

Thursday, February 23, 2017 @ 7:00 PM  


Application by landowners for permission to appeal a decision by the Alberta Energy Regulator granting approvals in favour of Pembina Pipeline Corporation. Pembina applied for permits to construct two pipelines. The applicants were landowners along the proposed right-of-way. Collectively, they owned approximately one-third of the land traversed by the proposed pipelines. During the public hearing process, the applicants raised several site-specific concerns related to routing, depth, width, and monitoring. Pembina provided a spreadsheet that listed each landowner, a legal description of their land, that landowner’s particular concerns, and the company’s response to those concerns with related information. Pembina made representatives available for cross-examination on the information provided. Following the evidentiary portion of the process, Pembina updated the spreadsheet to list commitments it was prepared to take with respect to some of the site-specific concerns. Further cross-examination on the added commitments was refused. The Regulator approved the pipelines, subject to certain conditions. The Regulator stated that the conditions reflected some of the commitments made by Pembina, and noted the ability of individual landowners to negotiate directly with Pembina where appropriate. The applicants sought permission to appeal to the Court of Appeal.

HELD: Application dismissed. The issues of whether the pipelines were in the public interest, or whether particular conditions and routing were appropriate, were, at best, mixed questions of fact, law and policy that fell within the mandate of the Alberta Energy Regulator. Any alleged non-compliance by Pembina with its licence conditions was a matter of enforcement that did not reflect any error of law underlying the issuance of the licences. The fact that the issuance of the licences entitled Pembina to obtain surface rights entry orders was a legal consequence of any licence, and did not reflect an error of law underlying the licences. The Regulator’s recognition that Pembina’s commitments could be negotiated directly with landowners was not an improper delegation or failure to exercise authority. The applicants failed to identify any pure question of law on which permission to appeal could be granted. They were unable to demonstrate that their dissatisfaction with the permit process resulted from an error of law by the Regulator. In the absence of any extricable error of law, permission to appeal was refused.