Canada: I Can See Clearly Now…AER Furthers Transparency Objective By Making Wider Variety Of Decisions Publicly Available

Last Updated: October 5 2015
Article by Michael G. Massicotte, Alan Ross and Michael A. Marion

Most Read Contributor in Canada, September 2016

As set out in AER Bulletin 2015-28 (found here), effective September 23, 2015, the AER will begin posting on its website "participation decisions" and "substantive procedural decisions". These types of decisions had previously only been made available to the parties affected.

The types of decisions which will now be publicly available on the Decision webpage of the AER's website (link found here) are as follows:

  • participation decisions – formerly known as "standing decisions", these will include:
    • whether to hold a hearing following the filing of a Statement of Concern;
    • if a Notice of Hearing is issued, the nature and scope of participation to be afforded to hearing participants; and
    • whether to grant all or part of the relief requested in a regulatory appeal; and
  • substantive procedural decisions – in addition to pre-hearing meeting decision reports, which often contained procedural decisions and which had always been publicly posted, the additional types of substantive procedural decisions which will be posted will include:
    • confidentiality orders;
    • orders setting or extending filing deadlines; and
    • scoping orders, identifying the issues to be addressed at a hearing.

While the decisions themselves will be posted, the documents underlying those decisions will not be, but will continue to be available upon submission of an information request (the procedure for which is outlined here).

Industry Implications

In its 2014-2017 Strategic Plan (found here), the AER identified credibility as a strategic priority, and open, transparent communication as a theme for that priority. This was carried forward in the AER's 2014/15 Annual Report (found here) which references, among other things:

  • the AER's new Compliance Dashboard (link found here), which includes information regarding incidents, investigations, compliance activities and enforcement actions (in respect of which Jim Ellis, AER CEO, stated "We wanted this information online- easy to access, easy to read, easy to search. It's a spotlight, not just on industry, but on the AER as well.") [page 29];
  • the establishment of best practices, new guidelines  and checklists for various applications, published on the AER's website , in respect of which the AER stated "By making these items accessible to everyone, we are being clear and transparent with Albertans about the applications we receive and how they are reviewed." [pages 45 and 46]; and
  • the addition of the AER's new quarterly Newsletter, AER Focus, available online (found here), which is "meant to inform our public, industry, and other stakeholders about projects and activities that demonstrate how we're meeting the goals of ours strategic plan." [page 55].

Posting a wider variety of decisions on its website which set out "the reasons behind the decision, demonstrating how the AER applies the sections relating to the holding of hearings or regulatory appeals", and which "reflect the AER's interpretation and application of the Alberta Energy Regulator's Rules of Practice and the principles of fairness and natural justice" (as set out in Bulletin 2015-28), is consistent with and furthers the objective of open, transparent communication. While some may criticize the AER for not going far enough (identifying other types of decisions which should also be made publicly available), industry should enthusiastically welcome this new initiative. Among other things, it provides greater insight as to the how the AER intends to address various issues and applications before it. More significantly however, viewed internationally by most as the industry environmental watchdog, the AER's increased transparency may assist in industry's acquisition of the often elusive social license, critical in order for energy resource developments, both proposed and existing, to proceed and to continue operating. This latest AER initiative may serve to somewhat quell the suggestion by some that the AER is pro-industry, and by others calling for an ambitious and comprehensive examination of Alberta's energy regulatory framework, including a possible split of the AER, given its role as both "a promoter of energy and the primary vehicle of environmental protection" (see further our prior July 3, 2015 blog posting found here, and our July 3, 2015 National Post article, found here).

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