On June 30, 2014, the Alberta Court of Appeal, in Stewart Estate (Re), 2014 ABCA 222, denied an application by the Freehold Petroleum and Natural Gas Owners Association (FPNGOA) to intervene in an appeal from a decision of the Alberta Court of Queen's Bench dismissing a claim that certain freehold leases had terminated. In a short judgment, the Honourable Madam Justice Rowbotham confirmed that an applicant seeking leave to intervene in an appeal must establish that it has a special interest or particular expertise in the subject matter of the appeal, and must bring fresh information or a fresh perspective to the appeal.
FPNGOA, which was cited as a not-for-profit corporation with a mandate to, among other things, act as a "common voice" for freehold mineral owners in Canada, sought to intervene in support of the appellants to make submissions on three questions of law (including the interpretation of the lease at issue in the appeal), and to make submissions about the nature of petroleum and natural gas leases, the form of lease at issue, the historical intent and purpose of parties that have entered into such leases, and the fiduciary nature of the relationship between the mineral lessor and lessee. The Court held that FPNGOA had no special expertise on the legal issues and that the legal issues could be adequately addressed by the appellants. The Court also rejected FPNGOA's application to introduce hearsay evidence about the intention of lessors generally in entering into freehold leases. The Court noted that it was not the place for an intervener to bring new arguments or evidence not raised in the court below.
In this era of increased attempts by special interest groups and non-governmental organizations to intervene and participate in the regulatory and judicial process related to the development of the oil and gas industry in Canada, this succinct decision confirms that the Alberta Court of Appeal will not lightly entertain attempts at intervention before the Court of Appeal which appear to raise new issues or introduce inadmissible or unreliable evidence, which appear largely to be a disguised attempt to bolster or repeat legal arguments which can readily be made by the parties to the appeal, or where the proposed intervener does not have a special interest or fresh perspective to bring to the appeal. It is a reminder that the court system has more restricted rights of participation than regulatory bodies such as the Alberta Energy Regulator and the National Energy Board. The Court will not allow intervention to transform the court into a political arena.
The full decision of Madam Justice Rowbotham can be viewed here. The lengthy trial decision under appeal, which addresses many issues that arise in the context of cases of alleged lease termination, can be viewed here. The appeal is currently scheduled to be heard in September 2014 and should continue to develop the law in oil and gas lease termination cases in Alberta.