Decisions May Pave Way For Challenge Of ERCB Licences

For the second time in recent months, the Alberta Court of Appeal has granted leave to appeal an ERCB decision to landowners who faced relatively light scrutiny of the merits of their case. These leave decisions illustrate that the "prima facie meritorious" component of the "serious and arguable" test for leave to appeal is not being rigorously applied by the court. As a result, ERCB licences may be challenged more readily by landowners in the future.

On February 12, 2008 the Alberta Court of Appeal granted leave to appeal in Kelly v. Alberta (Energy and Utilities Board) (Kelly), a decision of the Energy Resources and Conservation Board (the ERCB) approving two sour gas wells near the hamlet of Rocky Rapids. The two successful grounds of appeal were that Directive 56 requirements are legally binding on the ERCB and therefore should have been followed by the ERCB, and that granting the well licenses