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
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.
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