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Oilpatch critics say Alberta energy regulator is denying them right to speak

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An oil worker holds raw tar sand near Fort McMurray, on July 9, 2008. THE CANADIAN PRESS/Jeff McIntosh

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An oil worker holds raw tar sand near Fort McMurray, on July 9, 2008. THE CANADIAN PRESS/Jeff McIntosh

EDMONTON - Critics say Albertans are in danger of being shut out of discussions on how the province's natural resources are developed.

Expert observers and opposition politicians worry Alberta's new energy regulator is drawing the circle of who can speak so tightly that one hearing on a proposed energy project had to be cancelled because no one was allowed to appear.

"They have not widened the circle at all," said Nigel Bankes, a professor of resource law at the University of Calgary.

"I think it sends the overall message that we're not really interested in public review."

The Alberta Energy Regulator is responsible both for holding public hearings on oilsands proposals and other energy developments and for determining who has the right to appear. The regulator is obliged to allow only those "directly and adversely affected" to appear.

The regulator has taken that language too far, said Liberal legislature member Laurie Blakeman.

"Unless you live across the road — literally, across the road — you're not going to get standing."

Bankes and Blakeman point to a recent decision concerning a public hearing scheduled for Canadian Natural Resources Ltd.'s (TSX:CNQ) Kirby oilsands expansion proposal.

Seven First Nations, one individual and one environmental coalition applied for permission to speak. Three of the applicants later withdrew their requests. Of the six remaining, not one met the regulator's criteria.

The hearing into an 85,000-barrel-a-day project was simply cancelled.

"The panel has in fact determined that none of the parties that filed a submission in response to the notice of hearing will be permitted to participate in a hearing and therefore the AER will not be scheduling a hearing," the regulator wrote to one of the applicants on March 27.

Last fall, two aboriginal groups were also denied standing to appear at public hearings on proposed oilsands developments adjacent to their traditional lands.

Decisions on who has the right to speak are not made public.

The regulator has reversed some earlier decisions made by Alberta Environment. It gave the Oilsands Environmental Coalition permission to speak at a Southern Pacific Resources hearing after the group — which includes the Pembina Institute and the Fort McMurray Environmental Coalition — was turned down a second time by the government.

Alberta Energy Regulator spokesman Peter Murchland said the agency makes judgments on a case-by-case basis.

"AER hearings provide a level playing field for all participants and are open to the public to observe," he said. "Submissions to participate in hearings are assessed depending on a number of criteria including whether or not an energy project directly and adversely affects them."

Blakeman said decisions such as what happened with the Kirby project ignore important realities.

"The government seems to believe that the air doesn't move, water doesn't flow and soil doesn't leach," she said.

"There's nothing wrong with making a process move faster or more efficiently. There is something very wrong with it when they design a process that essentially prohibits any other consideration from being on the table."

The position of the regulator and the government appears to conflict with recent Supreme Court rulings, said Bankes.

"The Supreme Court has moved in favour of recognizing what's referred to as public interest standing. If ... you can show that there's a serious issue to be talked about, that there's no other obvious person to raise the issue, then the court can give you standing.

"That's the sort of discretion the AER should be able to exercise. Instead, what it's doing is closing its mind."

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