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Bulletin 2015-28: The AER Will Be Publishing Participation and Procedural Decisions

Posted in Aboriginal, Administrative Law, Consultation, Environmental, Mining, Oil & Gas Law, Project Development, Project Permitting, Public Utility, Regulatory, Regulatory Compliance
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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 reasons.

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 practice.

Both participation decisions and substantive procedural decisions will be available through the “Applications & Notices” tool of the AER’s website, under the “Decisions” tab.

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.