Court Overturns Alberta’s Decision to Deny Pembina Institute Standing at Regulatory Hearings

In a case that featured what Justice R.P. Marceau called “direct apprehension of bias” on the part of the Alberta government, the Pembina Institute has won its appeal to overturn the Government of Alberta’s decision to exclude the think tank from the review process for a proposed tar sands project.

Justice Marceau ruled Alberta’s decision was tainted. During the court challenge, the Government of Alberta was required to table documents that revealed that the institute's recent publications concerning tar sands development, as well as a perceived unwillingness to “work cooperatively,” may have contributed to the government’s decision to exclude Pembina from the process.

As part of the Oilsands Environmental Coalition, Pembina filed a Statement of Concern with the Alberta Energy Regulator (formerly the Alberta Energy Resources Conservation Board) to participate in hearings about Southern Pacific Resource Corp’s proposed in situ project on the MacKay River near Fort McMurray. But the application was rejected, prompting Pembina to take its case to Alberta’s Court of Queen’s Bench for appeal.

With this decision, Pembina will now have to reapply to the Alberta Energy Regulator for standing, something Simon Dyer, policy director at Pembina, said has become even more difficult after the so-called streamlining of the regulatory process.

“They actually made changes to make the standing test even more restrictive,” he said. Where parties once had to prove that the project in question would affect them directly, they now have to prove both direct and adverse impact in order to trigger a hearing. “Everything is pushing toward less public participation…in these regulatory processes, which is unfortunate.”

Under this process, the Government of Alberta can effectively stymie public debate by rejecting all statements of concern, keeping alternative perspectives off the official record and pushing projects through without a hearing. Pembina has reported that in 2012, the Government of Alberta received applications for more than 36,000 energy developments, 410 of which were for in situ projects. The AER held only seven hearings.

Dyer said the decision should be a wake-up call to the industry about the accessibility of the regulatory process.

“If the public doesn’t considered the process to be fair, there’s a risk that stakeholders will take their concerns elsewhere and use other means of protest,” he said. “Alberta is travelling the world and saying they’re serious and fair and world-class regulators of environmental management, and I think this case suggests that’s not the case.”

Pembina intends to present evidence to show the adverse impact the Pacific Southern Resource project will have on the area, particularly on the endangered woodland caribou population. Dyer said there are several in situ projects proposed within the range of this species, some in places where the environmental impact of industry already exceeds acceptable levels. The McKay River project also intends to draw 1.7 million litres of ground water per day, a number Dyer says is untenable.

But there is still no guarantee the government will accept its statement.

“It would be ludicrous if we’re not able to get a hearing despite the clear evidence of exceeding of these thresholds.”

Dyer added that, in theory at least, Pembina’s work is conducive to the AER’s mandate of effectively evaluating and monitoring tar sands projects.

“We’ve got a strong catalogue of research work that we use media to promote, and all very much with the goal of seeking to make improvements in oil sands environmental management,” he said. “You’d think our work would actually be useful to the Government of Alberta, but it’s seen as threatening.”

Image Credit: Gord McKenna via Flickr