July 26th, 2021

Participation in AER decisions not guaranteed


By Al Beeber on June 16, 2021.

LETHBRIDGE HERALDabeeber@lethbridgeherald.com

Public participation in decision-making by the Alberta Energy Regulator is not guranteed, an online session of the Southern Alberta Council on Public Affairs was told Thursday.
Guest speaker was Shaun Fluker, an associated professor in the Faculty of Law at the University of Calgary.
According to a SACPA brief, “his research includes examining legal frameworks governing public participation and transparency in resources and environmental decision-making.
He has written extensively on procedural and substantive rules governing access to legal process, judicial review and access to information.
“His article “The Right to Public Participation in Resources and Environmental Decision-Making in Alberta” (2015) provides a critical assessment of these issues specifically in relation to the AER and its predecessors, and he writes frequently on current developments in public participation at the Faculty of Law’s blog.”
Fluker also told the audience a key part of public participation in decisions involving oil, gas and coal projects is notice.
“It’s hard to participate if you know don’t about it,” he said.
And finding notice about energy development projects requires the public to check the AER website where notices will be listed for 30 days, he said.
“The key aspect of public participation in any decision-making process is notice. So in other words, it’s hard to participate in a decision-making process if you don’t know about it.
“And so effective notice is really an essential component of any meaningful public participation. And when it comes to the Alberta Energy Regulator, that generally means keeping your eye on the Alberta Energy Regulator’s website.
“The AER will publish notice of applications on its website for 30 days and so again the contingency here is if you’re not actively following that page, you’re not actually going to get notice of applications. A landowner who faces the prospect of an oil and gas application facility on their land is obviously going to know about it because the company is going to have approached them well in advance of even making the application. But for public participation, participation generally, in relation to applications, public actually has to rely on this website because the public itself is not going to get notice any other way,” he said.
“If you go onto that site, you’ll see notices get issued every day. . .”
And to engage in the decision-making process, the public needs to file a Statement of Concern with the AER, which Fluker said “is the starting point.”
“There’s a specific process for how you do that. ..if you do not file a Statement of Concern it is almost a certainty you will not have any opportunity to give any input in relation to an application,” he said.
“Notice is important because it triggers the 30-day requirement to file a statement of concern and Step 2 is to file a Statement of Concern.”
Statement of Concern forms are available on the AER website and basically ask the public for their name, their concern and what they want the regulator to do and whether they are directly and adversely affected by any development.
“The key with public participation in specific project decision-making at the AER is this question of are you directly and adversely affected. This again is a test for participation or standing, as we call it in legal circles, which is common across various regulatory frameworks.
“But in relation to the Alberta Energy Regulator, a person who files a Statement of Concern has to demonstrate that they may be directly and adversely affected by that project and that’s typically construed in a very narrow way.
“So in other words, a member of the public who cannot demonstrate any sort of personal impact on them in relation to a specific application is frankly going to have a very difficult time meeting this test. And this is one of the reasons why tLocalNewsTemplate 6he AER doesn’t actually hold very many public hearings anymore in relation to resource project decisions,” Fluker said.
The AER lists on its website all its Statement of Concern decisions, he said, “and (with) the majority of these Statement of Concern the AER will respond to a Statement of Concern filer indicating we received your Statement of Concern, here’s your response to it.”
Letters are published on the AER website, which he said was an improvement from years past.
“The bottom line on public participation at the AER is no member of the public has a right to participate.
“You can be invited to participate but that comes at the discretion of the regulator.
” You must absolutely file a Statement of Concern with the regulator if you want any opportunity to participate but again, whether the regulator accepts that Statement of Concern and takes your feedback into account depends on the regulator making a number of favourable determinations.
“Most landowners facing applications on their land can certainly demonstrate they’re directly and adversely affected by a project but they can rarely demonstrate their concerns haven’t been addressed by the company and part of that is an information problem,” he said.
“The information you’re left to work with as a Statement of Concern filer can actually be very deficient which I think makes it difficult for people sometimes to accurately state their case for a hearing” or other form of participation, he added.
“The AER holds very, very few actual hearings in relation to energy project applications these days and the reason why is because it’s very difficult to get through the gate of public participation.”

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