Court forces ERCB, Suncor to reconsider Eden Valley designation

Five months of waiting has proven worthwhile for the Stoney Nakoda Nation.

Earlier this month, the Alberta Court of Appeal vacated the Energy Resources Conservation Board’s decision that Eden Valley reserve did not require the same setbacks established for an urban centre.  The decision was made by the ERCB on Suncor Energy Inc.’s application for the Sullivan development.

In the four-page decision released March 2, the three judges stated that the ERCB’s decision was not made in a “justifiable, transparent or intelligible way. Its decision not to qualify the reserve as an urban centre falls outside of the range of acceptable and rational outcomes that are defensible in respect of the facts and law.”

The ERCB must now reconsider its decision, said Douglas Rae, counsel for the Stoney Nakoda Nation.

“The Court of Appeal set out in its decision the other factors that the board the first time around did not look at,” said Rae.

“Simply looking at the ‘density criteria’ is incomplete and insufficient,” said the judges.

In October 2011, the Stoney Nakoda Nation along with five ranching companies appealed the ERCB’s decision, with Suncor Energy as a party to the ERCB, solely on the grounds that the ERCB had failed to designate Eden Valley reserve as an urban centre.

The ERCB’s ruling in June 2011 cleared Suncor from having to restrict its Sullivan development to 1.5 km from the reserve boundary. The Sullivan development consists of 11 sour gas wells, pipelines, and other facilities. A portion of the pipeline carrying sour gas would be located 320 m from the reserve’s boundary.

The ERCB based its decision on its finding that Eden Valley was not defined as an urban centre under ERCB regulations. This decision was challenged by the Stoney Nakoda Nation at an ERCB hearing, but the ERCB upheld the designation. Under ERCB Directive 056 an urban centre is defined as “a city, town, new town, village, summer village, hamlet with not fewer than 50 separate buildings….” As the reserve falls under federal jurisdiction, it cannot be defined as a city, town, new town, village, summer village, hamlet. Directive 056 also allows the ERCB the discretion to designate a similar development as an urban centre.

Approximately 40 per cent of the Bearspaw First Nation’s residents live in Eden Valley with approximately 100 separate homes and 650 residents. Bearspaw, Chiniki and Wesley First Nations comprise the Stoney Nakoda Nations.

“The decision shows that we should be entitled to the same safety concerns as off-reserves or anywhere else in Alberta,” said Robert Shotclose, CEO for Bearspaw First Nation. He added that regulations needed to be developed that took safety of both provincial and federal communities into consideration.

The reserve is “compact,” said Shotclose, and has a band office, arena, health centre, and school. Eden Valley, he noted, is larger than Longview, the nearest municipality.
Shotclose said Stoney Tribe and Bearspaw First Nation are willing to meet with Suncor officials as well as the area ranchers, who also opposed the pipeline locations, to discuss how both parties can be accommodated by the First Nation.

“Suncor could have run (the pipeline) east. They could have made it farther west, but the most economical, and I guess they claim the most environmentally best way, they said was the way they did it. But there are people there. We don’t want it that close, five times closer than what the provincial standards would allow,” said Shotclose.

The Sullivan development was originally a Petro Canada project. Suncor Energy later took it over.