Alberta Court of Appeal dismisses O’Chiese application to appeal AER decision

December 10, 2015. The Alberta Court of Appeal has dismissed two applications by the O’Chiese First Nation for leave to appeal regulatory licence decisions by the Alberta Energy Regulator made in favour of Shell Canada Limited. The decision clarifies that a right to a regulatory appeal is not automatic simply because development is occurring on treaty lands. The decision also clarifies that a party must offer specific evidence to demonstrate that it is directly and adversely affected by an AER decision as a pre-condition to be accorded a regulatory appeal. O’Chiese First Nation had taken issue with AER’s approval of Shell’s application for two natural gas pipelines, and application for a mineral surface lease and a license to occupy a petroleum and natural gas site and road. While this decision does not clarify the nature of the evidence that would satisfy the directly and adversely affected test, this case makes it clear that location or proximity between the work proposed and the rights asserted is not enough. The O’Chiese First Nation reserve is located 16-20 kilometers from the land covered by the AER approvals.