Judge Criticizes Biased Alberta Oil Sands Environmental Procedures

In a notable ruling on October 1, a judge overturned an Alberta government decision to reject a Statement of Concern filed by a coalition of environmental groups for an ‘in situ’ oil sands project. The judge was sharply critical of Alberta’s department of Environment and Sustainable Resource Development (ESRD) for using “improper and irrelevant considerations” that showed an unjust bias against environmental groups who had been critical of oil sands development. The judge also noted his concern that legitimate environmental organizations do not seem to be allowed a voice as filers of Statement of Concerns in Alberta and observed that there is room to be more flexible in defining ‘directly affected’ parties.

In 2012, the Oil Sands Environmental Coalition (OSEC), which included Pembina Institute, Fort McMurray Environmental Association and Alberta Wilderness Association, filed a Statement of Concern (SOC) for Southern Pacific Resource Corp.’s ‘in situ’ bitumen extraction project northwest of Fort McMurray. The proposed tar sands project would further increase disturbance of threatened woodland caribou habitat beyond thresholds established by the federal caribou recovery strategy. The project’s impacts on surface water and groundwater are also of concern, particularly given cumulative impacts of other developments. OSEC’s Statement of Concern was rejected by the ESRD Director on the grounds that OSEC members did not meet the test of being directly affected. Pembina Institute and Fort McMurray Environmental Association have an agreement with the Fort McKay Métis local for recreational access to some of their lands along the MacKay River downstream of the project, and they filed a request for a judicial review of ESRD’s decision.

Justice Marceau in his review overturned the ESRD Director’s decision to reject OSEC’s Statement of Concern. He found the entire case was tainted by ESRD’s application of a 2009 Briefing Note to Alberta Environment’s Deputy Minister. The Briefing Note, reproduced in full in the decision, stated that OSEC henceforth shouldn’t be accepted as a Statement of Concern filer, even though it had been earlier, essentially because Pembina Institute published materials critical of oil sands development and was now regarded as “uncooperative.” According to Justice Marceau, “[t]he Briefing Note contradicts the publicly stated policies of the EPEA (Environmental Protection and Enhancement Act) encouraging public participation in the regulatory process” and in applying it “the Director breached the principles of natural justice by taking into account improper and irrelevant considerations.”

The judge found use of the Briefing Note violated principles of fair and open procedure, the right to be heard, and absence of perceived bias. He writes: “It is difficult to envision a more direct apprehension of bias,” but then suggests a comparable example from the authoritarian reign of Quebec’s Premier Duplessis in 1959.