Kelly v. Alberta (Energy Resources Conservation Board).

This appeal comes on the heels of the 2009 Court of Appeal decision that ordered the ERCB to hear Susan Kelly, Lillian Duperron, and Linda McGinn in their opposition to the drilling of two sour gas wells by Grizzly Resources. This earlier 2009 decision turned on the Court’s finding that the applicants resided within the ERCB’s designated "protective action zone" which anticipates the movement of a sour gas plume upon release from a well. The Court ruled that a person who establishes on the evidence that they have the right to consultation under Directives 056 or 071 (for example because they reside within the PAZ) establishes they have a right that may be directly and adversely affected and thus must be heard by the ERCB under section 26(2) of the Energy Resources Conservation Act, R.S.A. 2000, c. E-10. Subsequent to this decision the ERCB revised its formula for calculating the extent of the PAZ. The ERCB hearing ordered by Justice Côté was held in April 2010, wherein the Board after hearing the concerns of Kelly et al confirmed that the well licenses issued in 2009 remained valid (ERCB Decision 2010-028, Grizzly Resources Ltd.) The ERCB subsequently denied an application by Kelly, McGinn and Duperron under section 28 of the Energy Resources Conservation Act, R.S.A. 2000, c.E-10 for a cost award of $36,000 to cover their legal fees and personal time committed to the hearing. (ERCB Cost Decision 2010-007). The Alberta Court of Appeal has released a leave to appeal decision. The court will hear an appeal on the following two issues: (a) Is a person who resides outside the Emergency Planning Zone, but within the zone where a potential exists for hydrogen sulfide levels of 10 ppm, directly and adversely affected as a matter of law, so as to be entitled to standing? (b) Did the Board err by holding that there was no evidence on the record to show that the applicants’ medical conditions would give them a heightened sensitivity to oil and gas well operations in the vicinity of their properties, and if so is that an error of law?