In Pembina Institute v. Alberta (Environment and Sustainable Resource Development), the Alberta Court of Queen’s Bench held that Alberta Environment and Sustainable Resource Development (“AESRD”) violated principles of natural justice when it applied a policy of denying the Oilsands Environmental Coalition (“OSEC”) standing to file “statements of concern” regarding oilsands project proposals.
Under Alberta law, third parties that file statements of concern may participate in the process leading to a decision by the Director on an application for approval. Significantly, only those third parties that have filed such statements subsequently have standing to appeal the Director’s decision to the Alberta Environmental Appeals Board (“EAB”). Consequently, if a statement of concern is not accepted by the Director, the person wishing to voice that concern will not have the opportunity to make his or her case to the Director or to the EAB.
In this case, OSEC was seeking to provide input on an application for approval to build a steam assisted gravity drainage oilsands project next to the Fort MacKay River in the Fort McMurray area of the Province. The Director rejected OSEC’s statement of concern on the basis that the organization lacked standing. According to the Director, neither OSEC nor its members were directly affected by the proposed project, as required by law.
OSEC sought judicial review of the Director’s decision. As part of its disclosure, the department produced a copy of an AESRD briefing note addressed to the Deputy Minister of Environment titled “Statement of Concern Rejection of Oilsands Environmental Coalition.” The briefing note had been prepared in connection with a different project but was disclosed in these proceedings as part of the Director’s Record. The document explained why AESRD had decided not to accept statements of concern from the OSEC. After examining the briefing note, the Court held that it amounted to a policy of not accepting any statements of concern filed by OSEC or its members, apparently on the basis that the organization has a history of being uncooperative in the regulatory process and that at least one of its members had published “negative media on the oil sands.”
Regarding standing, the Court found that it was not unreasonable for non-legal entities, such as OSEC, to present a single statement of concern on behalf of their members, thereby avoiding several duplicative pleadings. Regarding the “directly affected” test, the Court concluded that the Director ought to be afforded deference when interpreting his own statute, i.e. who may be a statement of concern filer. However, the Court also found that the process of identifying directly affected parties should not be subject to rigid rules of interpretation at the statement of concern stage. Rather, the more rigid application of the directly affected test is to be applied by the EAB when determining which parties have standing for an appeal before that board.
The Court then took issue with several aspects of the briefing note. It found that one of the objects of the Alberta Environmental Protection and Enhancement Act - to give citizens of Alberta the opportunity to voice concerns about proposed industrial development projects - was hijacked by the briefing note.
“That note basically says the interpretation of ‘directly affected’ will be changed in such a way that OSEC will no longer qualify as a Statement of Concern filer for oil sands projects.”
The Court further held that “it is difficult to envision a more direct apprehension of bias…” It then went on to find that “[…] the entire process in this case is so tainted by the ‘Briefing Note’ that in arriving at my decision, I need only refer to the applicants’ contention that the Director has breached the principles of natural justice by taking into account improper and irrelevant considerations.” The Court went on to find that the briefing note and the Director’s decision breached all four principles of natural Justice set forth in Baker v. Canada.
On November 13, 2013, AESRD Minister Diana McQueen issued a press release stating that the Province will not be appealing the decision.
The Alberta Court of Queen’s Bench has sent a clear message that the principles of natural justice must be upheld by the Director when AESRD makes decisions regarding third party participation in the regulatory approval process. Everyone involved can learn something from this decision.
About the Author
Stuart W. Chambers is a partner and Sean D. Parker is an associate with McLennan Ross LLP in Edmonton.