On September 23, 2015, the Alberta Energy Regulator released Bulletin 2015-28: "Posting of
Participation and Procedural Decisions" a significant
change in the AER's practice with respect to the publishing of
its decisions. Until now, relatively few AER decisions were
directly available on the AER's website. To date, only five AER
decisions from 2015 have been published. The inaccessibility of AER
decisions has been previously criticized by some observers. The Bulletin announces that,
effective immediately, the AER will post both participation
decisions and substantive procedural decisions made by AER hearing
panels on the AER's website.
The Bulletin explains that when the AER decides to hold a
hearing, it must consider any requests to participate in the
hearing and decide on the nature and scope of participation. These
decisions, previously known as "standing decisions", are
referred to by the AER as participation decisions. Participation
decisions also include the AER's decisions on requests for
regulatory appeals. The AER will consider these requests, in
accordance with the Responsible Energy Development Act,
its rules and regulations, and issue a written decision with
Substantive procedural decisions determine the course of a
proceeding or the filing of information for a proceeding. Examples
include confidentiality orders, the setting or extending of
deadlines and determining the scope of issues to be discussed in a
hearing. The Bulletin clarifies that this category of decision
reflects the AER's interpretation and application of the
Alberta Energy Regulator Rules of Practice.
The AER will continue to provide both participation decisions
and substantive procedural decisions directly to applicants,
participants and persons directly affected by a decision. However,
statements of concern and other documents filed in relation to a
proceeding will not be posted, and will only be available by filing
an information request with the AER, in accordance with previous
Both participation decisions and substantive procedural
decisions will be available through the "Applications &
Notices" tool of the AER's website, under the
For many in Alberta's energy sector, the posting of AER
participation and procedural decisions, often seen in letter
format, has been a long-awaited step in the AER's promise to
deliver greater transparency and accountability in its
decision-making process. The publication of these participation and
procedural decisions will provide industry and stakeholders with
greater access to the AER's interpretation of its home statute,
rules, regulations and directives.
Some categories of decisions and documents, filed in the course
of application proceedings, are not covered by the Bulletin. As
noted, statements of concern continue to be unavailable directly on
the AER's website. Also, the Bulletin does not indicate whether
the AER's decisions in response to statements of concern or its
decisions on whether to hold a hearing are considered
"participation decisions" and will be made available on
the AER's website. Finally, it is also unclear whether the
Bulletin will have retrospective effect; in other words, whether
past participation and procedural decisions of the AER will be made
available. Nonetheless, publication of participation decisions and
substantive procedural decisions represents a helpful step forward
for industry and stakeholders.
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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