Kelly v. Alberta (Energy Resources Conservation Board).

Three landowners living near two proposed sour gas wells had been held by the ERCB not to be potentially directly and adversely affected and thus ineligible for standing. All three lived outside the emergency planning zone (EPZ), a zone designated around a facility that requires emergency response planning by the operator. An EPZ is significant for standing purposes because it is often used as reference in determining proximity for consultation requirements for sour oil and gas wells and by the ERCB in determining standing. However, these people based their claim for standing on their location in the protective action zone (PAZ) as modelled by the operator in its licence applications. The PAZ is defined as "an area downwind of a hazardous release where outdoor pollutant concentrations may result in life threatening or serious and possibly irreversible health effects on the public". The landowners asserted that the possibility of exposure to life threatening or serious health effects from well releases, due to their location in the PAZ, meant that they could be directly and adversely affected by the ERCB’s decision to issue the well licences. In response, the ERCB held that this information was not sufficient to establish standing, indicating that the landowners had not shown that they would be affected to a greater degree than the general public nor had they provided any further evidence, beyond residence in the PAZ, regarding potential effects on their rights. Upon review, the Court of Appeal found that the ERCB had erred in its consideration of the landowners’ claim for standing, with respect to the test for standing itself and the evidence necessary to establish possible adverse effect on their rights. It overturned the ERCB’s decision that the landowners did not have standing and returned the matter to the ERCB for consideration and redetermination, attaching various directions to the ERCB. Of note in the decision are the following matters: The Court held that the test for standing before the ERCB does not include a requirement for a person to show a potential effect to a different or greater degree than the general public; The landowners’ location in the PAZ was adequate evidence to establish standing and the right to be consulted or notified under ERCB directives may also suffice to give persons standing; The drilling and completion of the wells did not render the landowners’ appeal moot, citing the continuing adversarial relationship between the parties and a concession made by the operator of ongoing health and safety risk during well operation. Unlike many other administrative appeals where the matter has simply been remitted to the board or tribunal for reconsideration, the Court here placed a number of specific directions on its referral of the matter back to the ERCB, related to standing, treatment of evidence and the potential scope of the ERCB’s decision on the wells in question. The Court also found that applicants must include residents within the PAZ in their participant involvement programs under Energy Resources Conservation Board (ERCB/Board) Directive 056: Energy Development Applications and Schedules.