Shaun Fluker on Bill 2 in Alberta: Implications for Landowner Participation

Click on the following link to read a comment by University of Calgary Assistant Professor Shaun Fluker on Alberta Bill 2 (Responsible Energy Development Act) and it implications for landowner participation: Bill 2 and its implications for landowner participation in energy project decision-making.  Fluker's observations on the bill include the following:

Bill 2 contains no statutory obligation on the Regulator to conduct a hearing either before or after it makes a decision on whether to approve a proposed energy project.  Bill 2 repeals the statutory hearing rights provided to a landonwer in section 26(2) of the ERCA to contest an energy project application, and does not replace them.

Plains Midstream complains that some media using images from 2011 spill, not the latest spill

Plains Midstream Canada cautions the public on its website that, "You may have seen some shocking images circulating over the last couple days.  While we appreciate that images are an important part of telling a story, some of them are incorrect.  We have seen images online, on t.v. and in the news that are not related to the Rangeland pipeline incident at all, such as images that depict oil saturated wetlands and oil slicks.  Some of the images depict the Rainbow pipeline spill from 2011 ... We have contracted both photographers and videographers to create a visual portrait of the release site."

A spill of light sour crude oil into a tributary of the Red Deer River near Sundre, Alberta was discovered on June 7.  Preliminary estimates suggested a release of between 1,000 and 3,000 barrels of oil into the environment.  Plains Midstream is warning residents that "water drawn directly from the Red Deer River north of Sundre to the Gleniffer Reservoir should not be used for human or animal consumption".  Plains Midstream is still cleaning up from last year's 4.5 million-litre oil leak in a remote area northeast of Peace River.

Alberta Court of Appeal increases setback of sour gas pipeline from Native Reserve

Alberta's Energy Resources Conservation Board (ERCB) approved an application by Suncor to construct two pipelines, one of which would carry sour gas.  The lines were proposed to cross in the vicinity of the Stoney Nakoda/Eden Valley Reserve, which consists of 100 separate homes and approximately 650 residents.  The Stoney Indian Band appealed the ERCB decision to the Alberta Court of Appeal on the basis that the ERCB had erred in failing to characterize the Reserve as an "urban centre" (in which case the setback requirements would be more stringent).

Setback requirements for level three sour gas pipelines in Alberta are listed in Directive 056: Energy Development Applications and Schedules as follows:

0.1 km to an individual permanent dwelling up to eight dwellings per quarter section;

0.5 km to an unrestricted country development;

1.5 km to an urban centre or public facility.

Urban centre is defined as: “a city, town, new town, village, summer village, hamlet with not fewer than 50 separate buildings, each of which must be an occupied dwelling, or similar development the [Board] may designate as an urban centre”.

Before the hearing, in response to a request from Suncor, the ERCB staff found that the Reserve was not an urban centre. This was challenged at the hearing. The ERCB did not change the designation. It reaffirmed that the Reserve did not qualify as an urban centre because “the area of the [Reserve] nearest the trunk line has an estimated average residence density of five residences per quarter section, less than the residence density of eight residences per square section necessary to qualify for an urban centre designation.”

The Court found that the fact that the Board embarked on a “density analysis” was not in and of itself problematic as it may have served as a relevant factor to the Board’s analysis, given the Board’s statutory discretion.  However, it could not be the only relevant factor. Simply looking at the “density criteria” is incomplete and insufficient. The definition of urban centre in Directive 056 requires two considerations. First, is it a “city, town, new town, village, summer village, hamlet with not fewer than 50 separate buildings, each of which must be an occupied dwelling”, or, second, a “similar development”? In analyzing whether the Reserve was a “similar development”, the Board had to have recourse to the concepts of “city, town, new town, village, summer village, and hamlet”, which are not defined in Directive 056, but in the Municipal Government Act, RSA 2000, c. M-26.

A hamlet is defined in section 59 of the MGA as a community which “(a) consists of 5 or more buildings used as dwellings, a majority of which are on parcels of land smaller than 1850 square meters, (b) has a generally accepted boundary and name, and (c) contains parcels of land that are used for non-residential purposes.” The Reserve has more than 100 homes and houses schools, a church, band offices and a food bank.

The Court allowed the appeal and remitted the matter back to the ERCB for its consideration and redetermination in accordance with the Court of Appeal ruling.

Read the decision at: Big Loop Cattle Co. Ltd. v. Alberta (Energy Resources Conservation Board).

Sarg Oils Limited well abandonment saga continues

Professor Nigel Bankes of the University of Calgary has posted a comment on a recent review decision by the Energy Resources Conservation Board (ERCB).  The decision relates to a failure by Sarg Oils Limited to pay the costs of abandoning oil and gas wells in Alberta.  Sarg had failed to abandon the facilities itself, so the ERCB conducted the abandonment and then sought to recover its costs from Sarg.  Bankes points out the possibility that the Orphan Well Fund may end up having to cover costs of further abandonments.  He notes that, although the oil and gas industry is supposed to cover the cost of the Fund, the Alberta government injected $30,000,000 into the Orphan Fund as part of a package of incentives for the energy industry in 2009.

Read the comment at: Nigel Bankes' comment on Sarg Oils Limited.

Enbridge plans to twin 345 km Athabasca oil pipeline

Enbridge Athabasca has announced its proposal to develop a new crude oil pipeline project called the Athabasca Pipeline Twinning Project in response to increased oil production in the Kirby Lake area in Alberta.  Enbridge says that the pipeline will "generally follow" the existing Athabasca Pipeline right-of-way.  Two new pump stations will also be added.  Enbridge anticipates construction to begin in the winter of 2013/2014 and in-service by early 2015.

Case comment on Omers Energy oil and gas lease case available

Professor Nigel Bankes of the University of Calgary has posted a case commentary at ABlawg.ca on the recent Alberta Court of Appeal decision in Omers Energy Inc. v. Alberta (ERCB): case comment.  I posted a brief note on this case last week.

Standing at the ERCB without an interest in land, but “no costs for you!”

Standing at the ERCB without an interest in land, but “no costs for you!”

Click on the link above to read an article by Assistant Professor Shaun Fluker of the University of Calgary, Faculty of Law about participation rights before the Alberta Energy Resources Conservation Board (ERCB):

Standing at the ERCB without an interest in land, but “no costs for you!”

          Written by: Shaun Fluker

Case considered: Freehold Petroleum and Natural Gas Owners Association v. Alberta (Energy Resources Conservation Board), 2010 ABCA 125

In Freehold Petroleum and Natural Gas Owners Association, Madam Justice Elizabeth McFayden dismisses an application for leave to appeal an Energy Resources Conservation Board (ERCB) hearing costs decision that relates to an earlier ERCB decision concerning a mineral lease dispute. This Court of Appeal decision and the underlying ERCB decisions are noteworthy to me for two reasons: (1) the ERCB granted full hearing participation rights to the Freehold Petroleum and Natural Gas Owners Association (the Freehold Owners Association) despite the fact it does not have an interest in land; and (2) the Court of Appeal defers to the ERCB on what I consider to be an unreasonable exercise of its discretion on the costs matter. I will comment on each of these points in turn after briefly summarizing the facts. [...]