Kelly v. Alberta (Energy Resources Conservation Board).

The applicants have appeared in front of the Court numerous times in recent years seeking leave to appeal decisions by the Energy Resources Conservation Board (ERCB) that issue sour gas well licences near their homes. The primary issue to be dealt with on this appeal, that has been granted leave, concerns the legal authority of the ERCB to make cost awards in favour of persons contesting an energy project. The ERCB 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. In this case, the ERCB denied the Kelly cost application on the basis that there was no evidence in front of the Board to demonstrate that the Grizzly wells would have a direct and adverse impact on their land. Justice Côté also granted leave specifically on whether the content of an ERCB directive should govern the interpretation of a section in the Energy Resources Conservation Act with general application. In other words, what is the legal status of ERCB directive? The issue specific to this case involves the Board’s application of its Directive 031 to apply section 28 of the legislation. Justice Côté also granted leave to consider whether the ERCB’s legal authority to make cost awards is limited to persons that meet the criteria of a “local intervenor” under section 28(1) of the Energy Resources Conservation Act.