Public Participation in Environmental Decision-Making
Energy and environmental statutes in Alberta have a “directly affected” test to determine who may participate in decision-making on matters such as mines, oil and gas wells, pipelines, utility infrastructure, renewable energy projects, commercial development in protected areas, and tourism projects. The need to establish a “direct affect” has traditionally meant that a person who seeks to participate in a decision must show how a development or project will adversely affect a natural resource they use or their use of a natural resource. In practice, this standing test has meant that only landowners in proximity to a project are likely to be entitled to participate in a decision, thereby excluding most Albertans from participating or having any say in government decisions that have implications for energy development and the environment. Clinic projects focus on facilitating opportunities for public participation and input into environmental decision-making by public officials in Alberta under environmental and resources legislation.
The Clinic was retained by the Canadian Parks and Wilderness Society (CPAWS) to advise and assist on appearing before the panel in Calgary to present concerns on how environmental assessments were being conducted in national parks and other federal protected terrestrial and marine areas under CEAA 2012. A particular concern for CPAWS was that CEAA 2012 removed the legislated requirement for Parks Canada to conduct transparent environmental assessments for projects in national parks. The Clinic undertook legal research and made access to information requests to assist CPAWS in preparing a written submission to the panel. In November 2016, the Clinic appeared before the panel as legal counsel for CPAWS to make a submission on deficiencies with environmental assessment under CEAA 2012 and recommendations for legislative reform to enhance transparency and legal accountability in the federal environmental assessment process.
In July 2017, the Clinic agreed to assist an individual conducting research into the outcomes of creative environmental sentences, including one of the largest environmental sentences ever imposed in Canada (R v Syncrude, 2010 ABPC 229), with accessing information on how or why creative sentencing orders are made and how remediation or research projects are selected for funding by these orders. The Clinic filed a request for records under the Freedom of Information and Protection of Privacy Act (Alberta) with Alberta Justice in relation to a creative environmental sentence imposed in June 2017 for the release of hydrocarbons into the North Saskatchewan River in Edmonton. The Clinic received only 35 out of 857 pages of responsive records from Alberta Justice, and accordingly the Clinic filed an application with the Office of the Information and Privacy Commissioner seeking an order for full disclosure. In 2021 the Commissioner granted disclosure of the records, denying claims by Alberta Justice that the records were properly withheld based on solicitor-client privilege.
Normtek retained the Clinic as legal counsel to represent and advise Normtek on seeking to appeal the Alberta Environment decision at the Alberta Environmental Appeals Board (Board) under the Environmental Protection and Enhancement Act (Alberta). The Board denied Normtek standing to appeal the landfill approval on the basis that Normtek was not ‘directly affected’ by the Alberta Environment approval. Normtek sought judicial review of this standing determination, arguing that the narrow reading of ‘directly affected’ employed by the Board to determine who may challenge an Alberta Environment decision is inconsistent with the participatory objectives of the Environmental Protection and Enhancement Act and the rule of law. The Chambers Justice rejected these arguments and dismissed the judicial review application. The appeal of the Chambers Justice’s decision was successful, and in December 2020 the Alberta Court of Appeal found in favour of Normtek and ordered the Board to reconsider Normtek’s standing to challenge the landfill authorization. The Clinic served as legal counsel to Normtek in these judicial proceedings.
The Canadian Parks and Wilderness Society (CPAWS) retained the Clinic as legal counsel to represent CPAWS at the impact assessment hearing which took place in the Fall of 2018. As legal counsel, the Clinic advised and assisted CPAWS with hearing preparation, written argument, evidence submission, preparation of witnesses, cross-examination, final argument, and cost submissions.
The Canadian Parks and Wilderness Society (CPAWS) retained the Clinic as legal counsel to represent CPAWS at the impact assessment hearing which took place in the Fall 2020. As legal counsel, the Clinic advised and assisted CPAWS with hearing preparation, written argument, evidence submission, preparation of witnesses, cross-examination, final argument, and cost submissions.
The Clinic was retained by the Canadian Parks and Wilderness Society (CPAWS). As legal counsel, the Clinic advised and assisted CPAWS in applying for and obtaining intervener status in the judicial review proceedings. Clinic students worked with volunteer lawyers to conduct legal research, prepare affidavits, and draft legal arguments.
The Clinic was retained by a resident who lives in the Waterton field near the Hamlet of Beaver Mines and is opposed to a new sour gas pipeline which was approved by the AER in September 2021. Among other environmental and safety concerns, our client believes the licensee for the pipeline does not meet the capacity requirements for end-of-life-liability required by the new Framework and associated AER rules.
This is an access to information project for the Clinic. Over the past several years, Clinic staff and students have filed numerous requests for records under the Freedom of Information and Protection of Privacy Act (Alberta). Records produced by these requests, together with other relevant materials such as OWA annual reports, have been reviewed and considered by Clinic students. This research is intended to inform democratic dialogue on how the levy is set and develop recommendations for law reform.
The Yellowstone to Yukon Conservation Initiative Society (Y2Y) retained the Clinic as legal counsel to advise Y2Y on seeking intervener status in the Fall of 2021 and to represent Y2Y in the Tribunal appeal proceedings which took place remotely in March 2022. As legal counsel, the Clinic assisted Y2Y with hearing preparation, written argument, evidence submission, preparation of witnesses, and final argument.
Bighill Creek Preservation Society is a non-profit organization with a mandate to advocate for the protection of the Bighill Creek watershed. The Society filed a statement of concern under the Water Act (Alberta) to oppose the gravel mine. The Clinic has provided the Society with assistance in filing its statement of concern and has informed the Society about its opportunities to participate in the decision-making process under applicable legislation.
In Fall 2022, the Clinic was retained by the Canadian Association of Physicians for the Environment (CAPE). CAPE is a national non-profit organization of physicians and healthcare professionals that aims to improve human health and equality through evidence-based advocacy in addressing the ecological and climate crises. CAPE believes that consideration of GHG emissions on climate change is key to securing human and planetary health for current and future generations.