Alberta Landowners Guide, Filing a Statement of Concern
 3rd edition | |
| Authors: | Duncan Kenyon, Nikki Way, Andrew Read, Barend Dronkers, Benjamin Israel, Binnu Jeyakumar, Nina Lothian |
|---|---|
| Publisher: | Pembina Institute |
| Publish Date: | October 2016 |
| PDF Download: | [Landowners' Guide] [Landowners' Primer] |
| Initiation Phase | |
| Exploration Phase | |
| Development Phase | |
| Pipelines and Other Infrastructure | |
| Environmental Impacts | |
| Abandonment and Reclamation | |
| Compensation, Rights, and Hearings Compensation for Wells, Facilities and Pipelines Surface Rights Board and Surface Agreements Before a Hearing Filing a Statement of Concern Post Hearing and Regulatory Appeals Surface Rights Board and National Energy Board Hearings | |
| Appendices | |
Contents
Filing a Statement of Concern
If negotiations have failed and you want the AER to formally address your concerns after the company has submitted their application, the next step is to submit a statement of concern to the AER about an application or project.[1][2] It is important for you to submit a statement of concern at this stage of the process, or your concerns will not be considered when the AER makes a decision on the application.
When submitting a statement of concern, you need to concisely explain why you believe
you are both directly and adversely affected by the Regulator’s decision, the nature of
your objection to the application, and the outcome you advocate for.[3] You need to
include other relevant details, such as your contact info, and your location relative to
the location of the proposed energy resource activity.
It is important to submit your statement of concern within the filing period and
carefully make your case as to why you are both directly and adversely affected. The
AER must consider all statements of concern that it accepts when making a decision on
an application, and determine if it is necessary to hold a hearing. You should review
recent participatory and procedural decisions that are listed on the AER website, as they
will give you a good sense of how the AER decides who is directly and adversely
affected, what concerns they will address, and what information is useful to the AER
when deciding to hold a hearing.[4] Currently, the AER has a fairly narrow interpretation
of who is directly and adversely affected, and typically does not include people who
don’t live or own the land where the project will be located, or who cannot establish
that they are negatively impacted.
The types of concerns that might be raised include potential impacts on air quality,
groundwater and surface water quality; noise; waste; risk from emergency blowouts; and
concerns about conservation and reclamation issues. However, it’s not enough to
simply raise a concern; you must explain how you will be directly and adversely
impacted based on your concern. For example, it may not be enough to say you are
concerned about an emergency blowout. But, if you are required to evacuate
through an unsafe zone in the event of an emergency, your statement of concern is
more likely to be considered. You shouldn’t assume that the AER will have this
information unless you provide it in your statement of concern. The AER considers
each case on its own merits when it decides whether a hearing is required and does not
work on precedent. Be sure to provide all the legitimate arguments you can and give as
much detail as possible. Make it as easy as possible for the AER to follow your
arguments by putting each specific concern about an application in a separate,
numbered paragraph.
Calling the Regulator does not count as submitting a statement, as it must be in writing.
You must submit your statement before the date specified in the notice (the time for
comment can be as short as 10 days or as long as 30 days). In some cases there is no
time set, such as when the project is filed as an expedited application (also known as a
routine application). In these cases, the Regulator may make a decision on the
application immediately. When the project is filed as a non-expedited (or non-routine)
application, the Regulator must wait for the period for filing a statement of concern to
pass before they will approve a project. Companies are allowed to fill an expedited
application if they do not require regulatory leniency, and only if there are no
outstanding concerns at the time of application.[5] If the Regulator does not receive any
statements of concern, they are very unlikely to hold a hearing. If the Regulator has
already made a decision on an application, then they can’t consider a statement of
concern, so it is important to submit your statement as soon as possible.[6]
The Regulator has considerable discretion to hold a hearing, and there are very few
instances where the Regulator is required to hold a hearing. Additionally, under the
legislation that enables the AER, there is no longer a formal right to a hearing for those
who are directly and adversely affected. Therefore, you need to make your case for a
hearing as strong as possible by being as specific as possible, and presenting all the
main arguments in your statement of concern. However, if the Regulator decides to hold
a hearing, according to the Responsible Energy Development Act (see Responsible Energy Development Act), you may
be entitled as a directly and adversely person to be heard in a hearing.[7]
Any statement of concern you submit will be publicly posted on the AER website, so you
should not include personal, medical, financial, or otherwise confidential information
in your statement. If it is important that the AER consider your personal private
information, you can request that information be held confidential. However, it may be
enough for you to describe the information and offer further details if necessary. You
don’t have to prove you are directly and adversely affected for the AER to consider your
statement of concern, just that you may be directly and adversely affected.
Notice of a hearing and requesting to participate
If the AER decides to hold a hearing, the branch of the AER that would approve the application forwards the file to the chief hearing commissioner. The chief hearing commissioner will send a letter people who have filed statements of concern, advising them that the file has been sent to the hearing commissioner’s office.[8] A hearing panel will be assigned to the file, and if considered beneficial, a second panel will be assigned to conduct an ADR process.[9] The hearing panel and the ADR panel work separately, to avoid unduly influencing the hearing process if it proceeds.
Once the hearing panel believes the matter is ready to proceed to a hearing, it will issue
a notice of a hearing. The notice will be sent to all those who submitted a statement of
concern and to all those listed in the application, and will be posted on the AER’s
Notices web page.[10] Additional information and documentation will be posted on the
AER’s website.[11] The AER may also publish notices in local or provincial newspapers.
The notice will outline relevant details about the hearing, such as the subject of the
hearing, where to see copies of the relevant documents to the application, and how to
request to participate.
Even if you have submitted a statement of concern for the original application, you
must submit a request to participate, also known as a written submission, within the
time laid out in the hearing notice. You should submit:
- a copy of your statement of concern (or an explanation as to why you didn’t file a statement of concern)
- an explanation of how you are directly and adversely affected by the decision of the AER
- the outcome of the application that you advocate for
- how you intend to participate in the hearing
- evidence of your efforts to resolve the issues that you are bringing up in the hearing.
If you are representing a group or association, you should explain the nature of your membership with that group. See the AER’s Rules of Practice to look over everything you are expected to include, to ensure your concern is accepted by the Regulator.[12]
If you are not considered directly and adversely affected, you can still apply to
participate in a hearing. For example, landowner groups, or residents who live outside of
a notification zone, may be granted participation status. When applying, you need to be
careful to explain the nature of your interest and why you should be allowed to
participate. Additionally, you need to elaborate on how your participating will
materially assist the hearing panel to make its decision; what tangible interest you have
in the subject matter; and how your participation won’t delay the hearing or duplicate
evidence of the other parties.[13] The panel has the ability to grant partial participation
and may limit your participation to an electronic submission, or determine the issues
you are allowed to speak to.
Even if you did not submit a statement of concern, you may still be allowed to
participate. It is best to respond to the Notice of Hearing and make a written
submission. If you did not submit a request to participate, you can still attend the
hearing, however you will not be permitted to submit any evidence or make a
submission.
Before preparing and submitting your request, it is useful to review the Alberta Energy
Regulator Rules of Practice (Alberta Regulation 99/2013), and Manual 003: The Hearing
Process for the Alberta Energy Regulator. The rules set out the key steps that you must
follow in preparing and submitting a request, and what the Regulator will consider in
deciding a hearing. The Manual was written to assist participants in AER hearings.
Additionally, you can contact the hearing services office, or attend an information
session if you are unclear about the process.
References
- ↑ This material is from the Pembina Institute publication 'Landowners' Guide to Oil and Gas Development, 3rd edition (2016)'
https://www.pembina.org/pub/landowners - ↑ Notice of applications are found on the AER website, and may also be issued in public newspapers in your area.
- ↑ Alberta Energy Regulator Rules of Practice, s. 6(1).
- ↑ AER, “Participatory/Procedural Decisions”. https://www.aer.ca/regulating-development/project-application/decisions/participatory-procedural-decisions.html. This link has been updated since the 2016 publication; the updated link may no longer contain the original information.
- ↑ Exceptions, including routine applications, are described in Alberta Energy Regulator Rules of Practice, s 5.2(2).
- ↑ Alberta Energy Regulator Rules of Practice, s 6.2(1c)
- ↑ The Regulator may refuse to allow you to participate if they find your request to participate frivolous, vexatious, abuse of process, or without merit; if they are of the opinion that you haven’t demonstrated that you will materially assist the process, have a tangible interest in the manner, not unnecessarily delay the hearing, or not repeat and duplicate evidence. The Regulator has further discretion to refuse participation. Alberta Energy Regulator Rules of Practice, s. 9.1(3).
- ↑ This is not a notice of a hearing, which will be announced at a later time.
- ↑ This ADR differs from earlier stages of ADR, in that they are conducted by hearing commissioners. If ADR had been conducted before the file was sent to the Chief hearing commissioner, then some AER staff from the previous ADR process may be included.
- ↑ Alberta Energy Regulator, “Notices.” https://www.aer.ca/regulating-development/project-application/notices.html. This link has been updated since the 2016 publication; the updated link may no longer contain the original information.
- ↑ Almost all hearing and the associated materials will be posted on this search tool. Sometimes you may see materials for a potential hearing that has not had a notice of hearing issued. Alberta Energy Regulator, “Proceeding Search”
https://www.aer.ca/regulating-development/project-application/hearings/proceeding-search.html. This link has been updated since the 2016 publication; the updated link may no longer contain the original information. - ↑ Alberta Energy Regulator Rules of Practice, s 9.
- ↑ Alberta Energy Regulator Rules of Practice, s 9.
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