Pembina ruling shines spotlight on need for reform

Pembina ruling shines spotlight on need for reform

This week, the Alberta Court of Queen’s Bench issued a ruling on public engagement in environmental decision-making in Pembina Institute v. Alberta (Environment and Sustainable Resources Development), 2013 ABQB 567. While the decision is noteworthy because it found that Alberta Environment and Sustainable Resource Development (AESRD) breached all the elements of the duty of procedural fairness, it’s more important because it emphasizes the long-standing need to reform Alberta’s legislation on public involvement in environmental regulation.

The Ruling

The Pembina Institute and the Fort McMurray Environmental Association (FMEA) applied for judicial review of a decision by AESRD that they were not “directly affected” persons and thus not entitled to provide input to the process considering applications by Southern Pacific Resource Corp to expand its oil sands extraction activities and divert water to use for that extraction. Under both the Environmental Protection and Enhancement Act (EPEA) and Water Act, oil sands development (and other industrial activities) must apply for authorizations. As part of the authorization process, directly affected persons can submit “statements of concern” to the Director to set out their views and provide input on the proposed activity. Beyond giving initial input, this step has greater significance because only those who have filed a valid statement of concern may later appeal the Director’s decision on an authorization application.

In their submissions to the Director, Pembina and FMEA addressed their links to the area and described concerns about potential impacts of the proposed activity on water quantity and quality, wildlife, air quality and land access. Both parties had been accepted as directly affected persons on various applications in the past, but the Director decided that they were not directly affected by these applications and that their submissions were not valid statements of concern.

Key to the Court’s setting aside the Director’s determination was a 2009 Alberta Environment briefing note addressing rejection of statements of concern from the Oil Sands Environmental Coalition, which included Pembina and FMEA. This briefing note, which was not in the public domain before the judicial review, justified changing the Director’s previous practice of finding these parties directly affected on oil sands development applications, citing a perception that the organizations “are now less inclined to work cooperatively” and referring to Pembina critiques of oil sands development. It also indicated that past acceptance had been tied, at least in part, to parties never having appealed a Director’s decision.

The Court found that this briefing note was a direct demonstration of bias by AESRD and that it contradicted clear direction in both the legislation and public policy documents encouraging public participation in environmental decision-making. Because this briefing note had not been made available to Pembina and FMEA as part of the regulatory process, they could not answer the allegations made in it, which the Court held violated their right to be heard. At the close of the decision, Justice Marceau stated the following concern: “The applicant STP is heard; the Aboriginal interests are well represented; but those who voice environmental concerns including Fort McMurray, Fort McKay and Anzac residents and a major environmental organization, Pembina, are not allowed a voice.”

In this particular case, the Court’s decision has the effect of nullifying the Director’s finding that Pembina and FMEA were not directly affected on Southern Pacific’s applications. This means that the Director must consider these parties’ submissions again and make a new determination on whether they are directly affected. If they are found to be directly affected, the submissions will be considered valid statements of concern and taken into account by the Director in deciding Southern Pacific’s applications. The filing of valid statements of concern will also leave open the opportunity of appeal of the applications decisions to the Environmental Appeals Board.

What Happens Next? The Need for Reform

While this decision opens a door that had been closed to Pembina and FMEA, its greater value is in shedding light on the systemic problems for public involvement in environmental regulation in Alberta. Twenty years ago, EPEA came into effect. At the time, it was touted as providing many ways to more effectively and broadly enable citizens “to provide advice on decisions affecting the environment”. Its stated purposes include:

  • the protection of the environment is essential to the integrity of ecosystems and human health and to the well-being of society;
  • the shared responsibility of all Alberta citizens for ensuring the protection, enhancement and wise use of the environment through individual actions; and
  • the opportunities made available through this Act for citizens to provide advice on decisions affecting the environment.

However, the use and application of the “directly affected” test has been a bone of contention since that time, both before the Director and Environmental Appeals Board. Many years and dollars have been spent fighting over who is considered “directly affected”, to little productive effect and limited discussion of substantive environmental issues and concerns. The term has been narrowly interpreted, giving access mainly to those with direct geographic and economic links to proposed activities, while shutting out those with claims based on recreational use or volunteer stewardship of affected areas or on technical expertise related to issues under consideration.

This interpretation has also been applied (and contested) for many years before the various energy regulators in Alberta, who have used an even more restricted “adversely and directly affected” test. It contradicts the stated legislative intent of public engagement in environmental protection and decision-making and withholds important perspectives and information from bodies and persons charged with making decisions in the public interest. That Alberta decision-makers see the need to narrow participation even further by seeking to screen out those who don’t agree more strongly highlights the flaws in our system.

It’s time to change the conversation and with it, change Alberta’s legislation.

In 2006, as part of a review of the Environmental Appeals Board, we first proposed eliminating “directly affected” and replacing it with criteria that would allow participation by anyone with a legitimate interest in the matter being considered or with an established record of legitimate concern for the interest they seek to represent. Two years later, we recommended that this also be applied to other regulators making decisions in the public interest, such as the Energy Resources Conservation Board and Natural Resources Conservation Board. The Alberta government is in the midst of implementing a new regulatory system for energy development, which will transfer related environmental decision-making from AESRD to the new Alberta Energy Regulator. The time to change is now.

To have a world-class environmental protection system, we need world-class decision-making processes. To make sound decisions in the public interest, the decision-makers need to hear from the broad range of views and concerns, as no one party can represent the entire public interest. To get there, we need to move away from considerations of “directly affected”, from treating diversity of views as something to be avoided, and from shielding regulatory decisions from public scrutiny.

Our environment deserves better. Albertans deserve better.

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