Thomson: Environmental ruling likely to sour European trip defending oilsands

By Graham Thomson, Edmonton Journal October 3, 2013 7:29 AM

EDMONTON – Imagine for a moment you are Alberta’s environment minister.

Better yet, you’re the environment minister on a whirlwind tour of Europe this week that includes stops in Paris, Athens and Stockholm.

That’s the good news.

The bad news is the trip is part of your difficult task convincing the European Union the oilsands is an environmentally sustainable source of energy and Alberta has an environmentally responsible government.

Then you get some really bad news. On Wednesday, just moments after touching down in Athens, you receive word that Court of Queen’s Bench Justice Richard Marceau has released a damning ruling against the government’s environmental assessment process.

Terms in the ruling used to describe the process include “tainted,” “fatally flawed,” and a “direct apprehension of bias.”

His ruling, which was filed with the court Tuesday, deals with a complaint in 2012 launched by two environmental organizations — the Pembina Institute and the Fort McMurray Environmental Association — who felt they were unfairly barred from participating in an environmental hearing dealing with an application by the Southern Pacific Resource group to expand its oilsands project near Fort McKay.

The organizations were concerned about the impact on the environment because the project would require up to 1.7 million litres of fresh groundwater each day and contribute to declining air quality.

However, the government rejected the organizations’ request to file what’s called a “Statement of Concern” to give them official status in the review process.

The government didn’t spell out clearly why it barred the organizations. At least not publicly.

But it did in a scheming internal “Briefing Note” that only came to light during the court proceedings. Putting it bluntly, the note said the government was only interested in hearing from organizations that were relatively friendly to the oilsands and wanted to bar organizations deemed to be unfriendly. The briefing note, written by the director of the northern region for Alberta Environment, says people who are “relatively simple to work with” are those who have “never filed an appeal” of a department ruling.

The Pembina Institute, on the other hand, is singled out for its “publication of negative media on the oilsands.”

It is important to point out the note was written in 2009, three years before the Southern Pacific kerfuffle, and actually deals with a different oilsands project. However, Marceau reproduced the whole document in his ruling because it reveals the government’s mindset in determining who it will allow into the environmental review process. In other words, the note reveals a bias against anyone who is critical of the oilsands.

Marceau says that in his view, “the entire process is so tainted by the ‘Briefing Note,’” that he sympathized with the environmental organizations’ complaints that the government “breached the principles of natural justice.” It also appeared to have breached its own regulations.

He goes on to say that nowhere in the province’s Environmental Protection and Enhancement Act does it permit the government to “reject Statements of Concern from those persons or groups who voice negative statements about proposed oilsands development.”

That kind of reasoning, he says, is “fatally flawed.”

It is a highly critical decision that calls into question Alberta’s entire environmental review process.

NDP MLA Rachel Notley demanded Environment Minister Diana McQueen cut short her European trip. “The minister needs to pack her bags, get on a flight, and explain to Albertans when she knew about this memo that contradicts and breaks environmental law,” said Notley, who also demanded Jim Ellis, who was deputy minister of environment in 2009 when the memo was written, should resign his current position as CEO of the Alberta Energy Regulator, which oversees oilsands projects.

This is bad news for the government all around. It calls into question the government’s commitment to environmental stewardship at a time it’s trying to convince the world that Alberta deserves a social licence to exploit the oilsands.

On Wednesday, Alberta Environment scrambled to provide a response and then decided not to provide any response at all.

Department officials said they are still “reviewing the decision.”

As for the minister, the officials pointed out McQueen wasn’t the minister back in 2009 when the memo was written. It was Rob Renner, who is no longer in government. So, no comment, except to say the minister won’t be flying home early.

Simon Dyer of the Pembina Institute is celebrating the ruling, sort of. He’s happy the judge has sided with his organization and he’s hopeful now the government will be forced to accept Pembina’s Statement of Concern not only for this project, but for three other projects that were rejected previously. But he says the province has once again given itself a black eye environmentally.

“I think it’s also damaging to Alberta’s credibility around oilsands environmental management that public participation is actively discouraged,” said Dyer. “There is also the risk that if stakeholders don’t think the process is fair, they will take their concerns outside the process, which will be more damaging to oilsands development in the long run.”

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