How will CEAA review panels interpret “directly affected” and “interested party”? Alberta provides some clues

November 12th, 2012 by Laura Bowman

The new federal Canadian Environmental Assessment Act, 2012 (CEAA 2012) has adopted new criteria for standing at review panel hearings that includes the words “directly affected”.  The Kelly series of cases from Alberta help shed some light on the meaning of that requirement and how it might develop at the federal level.  Under CEAA 2012 review panels will decide what it means, but will be subject to supervision by the courts.

Some are aware that Alberta has narrowly interpreted the term “directly affected” historically.  The Kelly cases shed some light on things review panels will need to be mindful about in interpreting standing under CEAA 2012.  The Kelly cases arise from Alberta landowner Susan Kelly’s incredible battle for standing before the Alberta Energy Resources Conservation Board (ERCB) to oppose nearby sour gas wells that the ERCB openly acknowledged could kill her in an accident.  The ERCB denied her standing at these hearings on the grounds that her rights were not directly and adversely affected by the risk of death. (The actual response the ERCB gave her denying standing is at para 13 of this ABCA decision in which the standing decision of the ERCB was overturned.) These Alberta Court of Appeal cases are slowly eroding the narrow interpretation of the terms in the ERCB legislation and have implications for how the interpretation of similar terms found in the standing provisions under CEAA 2012.

The latest Kelly case revolved around the ERCB’s interpretation of s.28 of the Energy Resources Conservation Act (RSA 2000, c E-10) which provides the ERCB with authority to award costs to hearing participants.  The ERCB had denied a cost award to Kelly et al on the basis that section 28 only provides the Board with authority to grant costs to a hearing participant where there is evidence to demonstrate an energy project may have a “direct and adverse impact” on that person’s land.  The peculiar result of this ERCB ruling was the Board’s view that a hearing participant who could only demonstrate potential impacts to her health or safety or use of her own land, but not harm to the land itself would not qualify for a costs award.

The Court of Appeal issued its decision in Kelly v Alberta (Energy Resources Conservation Board), 2012 ABCA 19 on January 23, 2012.  The Court ruled that the ERCB’s interpretation of section 28 was unreasonable.  The Court also provided commentary as follows:

…  In today’s Alberta it is accepted that citizens have a right to provide input on public decisions that will affect their rights.

In the process of development, the Board is, in part, involved in balancing the interest of the province as a whole, the resource companies, and the neighbors who are adversely affected: Re Suncor Energy Inc., Energy Cost Order 2007-001 at pp. 10-11.  Granting standing and holding hearings is an important part of the process that leads to development of Alberta’s resources.  The openness, inclusiveness, accessibility, and effectiveness of the hearing process is an end unto itself.  …  [emphasis added at paras 33, 34]

Although the language of the ERCB statute is different from CEAA 2012, the Alberta Court of Appeal has developed an important body of recent caselaw around standing and costs at environmental hearings that will be increasingly relevant to broadening the interpretation of standing requirements at the federal level.  For more on the Kelly cases before the Alberta Court of Appeal see Shawn Fluker’s very interesting blog at U Calgary.  Also significant may be the pending Judicial Review of a decision by the Alberta Environmental Appeals Board (EAB) in Alberta Wilderness Association et al. v. Environmental Appeals Board  to be heard by the court on January 8, 2013.   This case will cover how to proceed when no parties are directly affected under the EAB’s statute.

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