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Judge quashes Alberta’s decision to bar environmentalists from oil sands hearing

Steam generating plants at Cenovus Energy’s oil sands operation in Christina Lake, Alberta.


An Alberta court ruling has quashed the province's decision to exclude environmental groups from an oil sands project review process last year.

In a judgment handed down this week, Alberta Court of Queen's Bench Justice Richard Marceau threw out a 2012 decision by Alberta Environment to prevent a coalition of four environmental groups from participating in the regulatory approval process for a proposed expansion to a Southern Pacific Resource Corp.'s in situ-oil sands project near Fort McMurray.

The case is likely to contribute to the increased scrutiny of Alberta's environmental laws and regulations at a time when both the province and Ottawa are seeking to export more of Canada's massive bitumen resources to markets in the United States and around the globe.

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Justice Marceau said an internal government briefing note "tainted" the Alberta government's regulatory process in this case. The note showed government officials have taken "improper and irrelevant considerations" – such as environmental groups' past criticism of oil sands development – into account as they determine whether the groups should be allowed to participate in the oil sands approval processes.

The government said in 2012 that it made the decision in this case based on its determination that there was no proof that the members of the environmental coalition were "directly affected" by the Southern Pacific Resource application.

But the Pembina Institute – one of the environmental groups involved in the court action against the government and the company – said a ministry briefing note obtained through a provincial Freedom of Information request suggest other factors were at play.

The document shows that during the regulatory process for another oil sands project in 2009, government officials had noted Pembina's criticism of oil sands development in the province, and had said the environmental coalition was "less inclined to work co-operatively" than it once had been.

Although the coalition had regularly been allowed to file statements of concern on oil sands projects up until that point, the document said on a go-forward basis – and more consistent with the province's laws – the coalition should be asked to prove how they're directly affected by project proposals in each case.

Court documents also note Southern Pacific Resource wrote the government in 2012 and asked that the environmental groups' statement of concern not be accepted.

Pembina Institute policy director Simon Dyer said environmental laws should encourage public participation rather than deter it.

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"It's not the job of the government of Alberta to run interference for oil sands companies," Mr. Dyer said. "That's why those briefing notes are so troubling to us."

Alberta Environment spokeswoman Jessica Potter said the government is still deciding whether to appeal the court's decision. However, she said as a result of the ruling, the department will prepare another assessment for the Southern Pacific Resource project.

"When we're reviewing a proposed oil sands project, our department looks at who is going to be directly impacted," Ms. Potter noted.

The environmental coalition maintains it leases land directly downstream from the Southern Pacific Resource site for recreational purposes, such as hiking, canoeing and swimming.

The groups are objecting to the Southern Pacific Resource expansion based on concerns including the project's requirement for up to 1.7 million litres of fresh groundwater every day, and their belief the expansion would interfere with in the habitat of a threatened caribou herd.

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