WHEREAS the ERCB requires energy companies to reimburse local interveners for their costs and expenses arising from participation in ERCB hearings;

and WHEREAS section 28(2) of the Energy Resources Conservation Act defines a local intervener as a person or group or association of persons who has an interest in or is in actual occupation of or is entitled to occupy land that is or may be directly and adversely affected by a decision of the ERCB or as a result of a proceeding before it;

and WHEREAS municipalities can be directly and adversely affected by decisions of the ERCB to approve oil and gas wells and energy projects within a municipality;

and WHEREAS in those past cases where municipalities have been able to obtain standing from the ERCB to participate in hearings, each municipality was denied the right to reimbursement of its expenses and access to intervener funding;

and WHEREAS it is beneficial to the ERCB decision-making process that municipalities participate in ERCB hearings to help the Board understand the impacts of certain energy projects;

and WHEREAS it would be to the benefit of all municipalities in Alberta to have access to funding to allow municipalities to choose to participate as interveners in proceedings before the ERCB in respect of proposed energy resource projects which may adversely impact them;

THEREFORE BE IT RESOLVED that the Alberta Association of Municipal Districts and Counties request that the Government of Alberta provide financial assistance to municipalities in Alberta who participate in proceedings before the ERCB/NRCB in respect of proposed energy resource projects within the municipality. Financial assistance to the municipalities could be in the form of either special grant funding from the Province of Alberta or through changes to the intervener cost recovery provisions of the relevant ERCB/NRCB legislation.

Parkland County received notification of another application for three wells proposed in the Tomahawk area; this time, the Hamlet of Tomahawk was within the EPZ. Further, the surface location of one of the wells is on Parkland County lands. Therefore, Parkland County was granted intervener standing at the upcoming hearings as it is directly impacted by the development. However, as stated in EUB Energy Cost Order 2005-14, the Board does not interpret “the cost recovery sections of the ERCA … to award costs to such bodies when their respective statutory duties require them to participate in a Board process.” This is further advanced in EUB Energy Cost Order 2007-001, when it states, “In the Board’s view, the intervention by the [Regional Municipality of Wood Buffalo] was undertaken consistent with its statutory mandate to defend and advance the collective interests of the residents that the RMWB Council and other officials represent. That is not the kind of intervention that the Legislature intended the Board to compensate with an award of local intervener costs.”

Section 28(1) of the Energy Resources Conservation Act reads as follows:

Local interveners’ cost
28(1)  In this section, “local intervener” means a person or a group or association of persons who, in the opinion of the Board,

(a) has an interest in, or
(b) is in actual occupation of or is entitled to occupy land that is or may be directly and adversely affected by a decision of the Board in or as a result of a proceeding before it, but, unless otherwise authorized by the Board, does not include a person or group or association of persons whose business includes the trading in or transportation or recovery of any energy resource.

Parkland County continues to advance its position that a municipality is a local intervener as it has an interest in the lands, whether it is its own municipal lands as in the upcoming hearing, or whether it is the impact of land values and taxation or restrictions on land development, as well as the global responsibility outlined in Section 3 of the Municipal Government Act, “to develop and maintain safe and viable communities.”

Although the Board has suggested it is the municipality’s duty to participate in a Board process, the Board continues to argue that intervener funding should not be granted to a municipality when acting in respect of its statutory duties. By that comment, the Board seems to suggest that it is incumbent upon a municipality to engage the necessary resources and expend funds from the general tax base in order to participate in Board Hearings.

However, there is no provision within existing ERCB legislation that imposes the duty upon a municipality to participate in a Board process. Should the legislation be amended to grant a municipality automatic intervener standing, the intervener funding provisions should still apply, with the same consideration given to other interveners.

Resolution 12-08S: THEREFORE BE IT RESOLVED that the Alberta Association of Municipal Districts and Counties request the Government of Alberta to provide financial assistance to the MUSH sector (municipalities, universities, schools and hospitals) in Alberta to intervene in proceedings before the EUB in respect of proposed energy resource projects which may impact them, either through special grant funding or through changes to the cost recovery provisions of the relevant legislation.

Resolution 1-05S advocates a similar issue to the the Natural Resources Conservation Board to provide financial compensation to interveners who find it necessary to defend municipal or public positions in relation to appeal hearings dealing with applications for confined feeding operations.

Energy: The Energy Resources Conservation Board (ERCB) (formerly the Alberta Energy and Utilities Board) is governed by provisions of the Energy Resources Conservation Act (ERCA) regarding the awarding of costs to interveners in ERCB proceedings.  In order to qualify for funding under section 28 of the ERCA, a party must have an interest in or occupy land that is directly and adversely affected by a decision of the ERCB. 
The ERCB has found that the cost provisions in the ERCA were not intended to apply to municipalities or health regions, as they are statutorily created bodies whose mandates require them to participate in the ERCB process.  In order for such bodies to qualify in a certain situation, the ERCB would have to be persuaded to use its discretion in terms of granting an exceptional award of costs (see, for example EUB Energy Cost Order 2005 014, available on the ERCB’s website at www.ercb.ca).

Sustainable Resource Development: Alberta Sustainable Resource Development was asked to comment on this resolution because it is similar to previous AAMDC resolution 1-05S.  This previous resolution requested the Natural Resources Conservation Board (NRCB) to provide financial compensation to interveners defending municipal or public positions in relation to appeal hearings on applications for confined feeding operations.
Prior to the NRCB assuming responsibility for administering the Agricultural Operations Procedure Act (AOPA) and regulating confined feeding operations, municipalities regulated these operations and did not award costs to interveners.  The issue of intervener funding was thoroughly reviewed during development of the AOPA, and it was decided that the NRCB should not award costs to interveners.
If the Act allowed for intervener funding, the cost would have to be borne by the owners of confined feeding operations being appealed.  Many are family-owned operations that cannot afford the cost of funding interveners.
The NRCB administers the AOPA, but Alberta Agriculture and Rural Development is responsible for this legislation.  Any AOPA changes require thorough consultation with the confined feeding industry and municipalities.

This resolution specifically asks for financial assistance for municipalities who participate in ERCB or NRCB proceedings, but this suggestion has been refused by government responses to date, and there is no indication that further action is being considered. In light of this, the AAMDC will continue to urge Alberta Energy to provide such assistance to municipalties. This position was communicated to the government during recent consultations for the Regulatory Enhancement Project, specifically as it relates to the single energy regulator being proposed. The AAMDC also urges Alberta Agriculture and Rural Development to amend the AOPA to reflect the resolution’s request for financial assistance related to the NRCB.