Laying Down the Law in the Oilpatch
Prosecution is one option when companies skirt the AER’s rules
With over 174 000 operating wells, 431 000 kilometres of pipeline, 9 oil sands mines, more than 50 in situ oil sands sites, and over 50 000 oil and gas facilities, policing Alberta’s energy industry is serious business. Incidents happen, leaving it up to the Alberta Energy Regulator’s (AER’s) investigators to gather evidence when companies appear to have skirted the rules.
“The AER‘s investigators are peace officers; they have the authority to apply for search warrants, lay charges, and serve companies or people court summonses,” says Greg Jones, manager of the AER’s major investigations team. “These people are law enforcement.”
Greg Jones, manager of investigations
By law, the AER has two years to take enforcement action against a company. Enforcement can include issuing warning letters, administrative penalties, or orders, or laying criminal regulatory charges.
While prosecutions take place in a courtroom, AER investigators draft the court documents that list the charges and include a summons requiring the company to appear in court by law. Once these documents are signed by a justice of the peace, they become official, and an AER investigator delivers them, in person, to the company.
Jones notes that while in most cases the company knows it’s being investigated by the AER, this is often the first time it learns that charges have been laid against it.
“With any court proceeding, we can’t release the details of our investigation until the court has made its decision,” adds Jones. “If we do, the company’s right to a fair trial is at risk.”
When charges are laid, both the Crown prosecutor and defence counsel get to review the entire AER investigation file. If a trial is held, AER investigators testify about their involvement in the matter. At the end of the day, the court, not the AER, is responsible for deciding what happens.
“We have to give the court the full story of what happened,” says Jones. “Our job isn’t to determine if a company is guilty; that’s the court’s responsibility.”
In the end, the decision to penalize a company resides with a judge. Penalties usually include a fine that is paid directly to the court; creative sentencing is another option. With a creative sentence, the court can require companies to refrain from actions that could result in more incidents, take steps to prevent further harm, publish the facts of the conviction, notify affected parties, submit additional reports, compensate the government, or perform community service.
As part of performing community service, a portion of an assessed fine is often diverted to special projects. For example, companies may be ordered to fund air monitoring programs in areas with air quality concerns, or fund programs that focus on incident prevention. When creative sentencing is used, the AER holds the funds paid by the company in trust and is responsible for ensuring the court’s order is met.
AER investigators keep busy collecting evidence to understand how incidents occurred, and both the AER and the court have their role in applying the right enforcement option to prevent similar incidents from happening.