By Janet Keeping, Leader of the Green Party of Alberta
Alberta’s Environmental Protection and Enhancement Act (EPEA) sets out a decision making process for review of oilsands and other projects which includes the filing of “Statements of Concern.” But the environmental review process doesn’t always work the way it should. On October 1, the Alberta Court of Queen’s Bench issued a judgement deciding that the Pembina Institute and the Ft. McMurray Environmental Association were wrongly denied the opportunity to express concerns about a 2012 proposal for expansion of an oilsands project by filing a Statement of Concern. The court invalidated the government’s decision to exclude them from the environmental review process.
We have to go back a few years to get the full picture of what was going on here. In 2009 Alberta government officials explained in a memo (“Briefing Note”) prepared for the Deputy-Minister of Environment and Sustainable Resources Development why the Oil Sands Environmental Coalition – of which both Pembina and the Ft. McMurray organization are members – was being denied the opportunity to raise concerns about a project then under consideration. When the Department prevented the Pembina Institute and the Ft. McMurray Environmental Association from filing Statements of Concern about the later 2012 proposal, it was applying the approach laid out in the 2009 Briefing Note.
In response the two environmental groups applied to the Court of Queen’s Bench to overturn that refusal. The organizations gave five reasons for their argument that the government had made a legal error by excluding them from the 2012 environmental review process. But Justice Marceau didn’t feel the need to consider all five reasons, one was in his view sufficient: in his written judgement he states that “this case is so tainted by the ‘Briefing Note’ [the 2009 memo] that in arriving at my decision, I need only refer to the applicants’ contention that the Director [government official] breached the principles of natural justice by taking into account improper and irrelevant considerations.”
Canadian law requires that regulatory decisions – for example, on whether an oilsands project may proceed – be made fairly. Decision-makers should not be biased or even appear to be biased. By singling out the Oil Sands Environmental Coalition including Pembina and Ft. McMurray Environmental Association for discriminatory treatment, the Department broke that fundamental legal rule. As the judge wrote, the Briefing Note “contradicts the publicly stated policies of the EPEA encouraging public participation in the regulatory process.” The Briefing Note also attempts to justify excluding the two environmental organizations on the grounds that they were not “simple to work with” and had published “negative media on the oil sands,” both of which reasons the judge said were “improper and irrelevant.”
The court decision is a breath – maybe even a gust – of fresh air. Over the years many Albertans have claimed that in myriad ways the provincial government has sought to stifle dissent, especially – but not only – in connection with oilsands development. And here we have a judge of the Court of Queen’s Bench upholding exactly such a contention and ordering that for government to behave in such a prejudiced, discriminatory way is illegal and therefore cannot stand.
Regardless of our differing views on oilsands development or on any other specific issue, we Albertans should applaud the tenacity and commitment to principle of both the Pembina Institute and the Ft. McMurray Environmental Association in bringing this case forward. It is tragic that some of our public servants adhere to a discriminatory ideology, and it is painfully ironic that there is an anti-environment bias in our department of the environment. But it is very good indeed that there are organizations willing to stand up to such abuse.
Each of us should give deep thanks too for our judiciary which functions independently from the rest of government. Cases such as this one uphold one of the most important democratic principles: it is illegal for government officials to pursue their own vendettas against individuals or organizations. As public servants those officials are legally bound to implement the law as it was intended to operate – in this case, as the court points out, to facilitate public participation in environmental reviews – and not according to their own preferences – which in connection with these two environmental groups was clearly something else, altogether different and far less noble.
This court decision is indexed as Pembina Institute v Alberta (Environment and Sustainable Resources Development), 2013 ABQB 567.
This opinion piece first appeared on the Troy Media website at troymedia.com.