Canada: Judd v. Alberta (Energy Resources Conservation Board), 2011 ABCA 159

This largely procedural decision arises out of the 1995 construction by Shell Canada Ltd. (Shell Canada) of a 32 kilometre steel pipeline from wells in the upper Carbondale River area of Alberta to Shell's Waterton gas plant. Construction of the pipeline had resulted in leaks, odours and emissions which became a source of concern for area residents and community groups.

In this particular case, Shell had applied to the Alberta Energy Resources Conservation Board (Board) for, among other things, an exploratory well and a fuel gas compressor. Mike Judd, an area landowner, had participated in the hearing as an intervener. Six days before the hearing began, and more than a month after the Board's deadline for intervener submissions, another intervener sought to file an addendum to an expert report shared with Judd. The addendum suggested that there was a grizzly bear den on Judd's property roughly one kilometre from the site of the proposed exploratory well. Notably, the addendum did not suggest that the den would be destroyed or disturbed by the well, and Judd refused to allow Shell Canada onto his property to investigate.

The Board ruled the addendum inadmissible and granted Shell's application for the exploratory well and fuel gas compressor. Judd then sought leave to appeal the decision on the basis that the Board had erred in law by, among other things, failing to give effect to the legal status of the grizzly bear as an endangered species under the Alberta's Wildlife Act, and failing to satisfy itself that Shell's mineral lease met the requirements of the Alberta Department of Sustainable Resource Development.

The Alberta Court of Appeal denied leave to appeal. With respect to the grizzly bear issue, the Court of Appeal confirmed the Board's ability to control its own process, and determined that the Board's decision to exclude the addendum was a discretionary decision, with which no extricable error of law had been made in order to justify leave to appeal. The Court noted that the Board's decision was based on "fundamental fairness," arising from Judd's refusal to allow Shell Canada to investigate and its consequent inability to rebut the evidence. The Court also noted that Judd's position may have been stronger if there had in fact been evidence of harm to the grizzly bear den. However, the Board had not ignored the grizzly bear issue. After balancing various factors, the Board had concluded that the loss of grizzly bear habitat due to the exploratory well would not be significant.

With respect to Judd's argument about Shell's mineral lease, the Court of Appeal noted that the Board did not issue mineral leases and that such an issue did not raise a question of law or jurisdiction in respect of the Board's decision. Accordingly, leave to appeal was denied.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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