According to the Energy Resources Conservation Act, people who may be “directly and adversely affected” by an ERCB decision on an energy application have the right to participate in a hearing. Where there are no objections to an application by any potentially directly and adversely affected persons, the ERCB will process the application without a hearing. However, the act does not define what it means by “directly and adversely affected.” This status is determined by the ERCB on a case-by-case basis. To date, the ERCB has relied a great deal on the public consultation requirements it imposes on industry, which relate to land ownership and occupation and vary based on proximity to proposed energy projects. It has also taken into account safety, economic and property rights issues, and the significance of the likely effects on a person as compared to the general public.

Many critics feel the ERCB has taken too narrow an approach to interpreting who is “directly and adversely affected,” seeking to minimize the number of hearings it holds. One area that has proven problematic has been where energy development takes place on land owned by the provincial government. In those instances, the government issues the mineral rights but, as the landowner, is often also the only party that might be able to trigger a hearing through objections to the application. Unless the development involves sour oil or gas and may affect private landowners or occupiers nearby, there is little chance that interests other than the developer and the provincial government will have any input to the ERCB.

Canadian case law offers some direction that could be taken by the ERCB to assist it in more fully considering the public interest in its decisions. The general trend in cases dealing with public interest issues across Canada has seen courts assessing whether parties have sufficient genuine interest in the issues to participate in related court proceedings. As part of such an assessment, the court considers the party’s history of involvement in the issue. The ERCB could modify its approach to allow a hearing to be initiated by any person or group that has a legitimate interest that ought to be considered in determining whether an energy application is in the public interest, or that has an established record of legitimate concern for the interest they wish to represent.

Had enough imagining for one day? Before you finish, imagine how energy development decision-making might look if more input on the public interest came from economic, social and environmental perspectives. Imagine if those perspectives came from many sources with diverse interests. How would your Alberta look then? What could our Alberta look like if the ERCB listened more widely in the future?

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Cindy Chiasson is executive director of the Environmental Law Centre. The ELC is a registered charitable organization established in 1982 to provide Albertans with an objective source of information about environmental and natural resources law and policy. Its vision is a clean, healthy and diverse environment protected through informed citizen participation and sound law and policy, effectively applied. The ELC can be reached at 1-800-661-4238 or online at www.elc.ab.ca.

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