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Judge rebukes Alberta for banning enviros from oil sands hearing

An Alberta judge has accused the Alberta government of bias and gross unfairness by actively banning environmental groups from participating in a public oil sands hearing.

The Alberta Court of Queen's bench decision also declared the ban illegal.

Last year, the Oil Sands Environmental Coalition (OSEC), which consists of the Pembina Institute, Alberta Wilderness Association and Fort McMurray Environmental Association, raised concerns about a new steam-assisted gravity drainage tar sands project on the MacKay River.

The project needed 1.7 million litres of groundwater a day and directly impacted the living rooms of woodland caribou, a threatened species in the region. 

But government did not allow OSEC to participate in a public hearing on the grounds that they were not "directly affected."

After OSEC contested the decision, the government submitted a document to the court that it used to ban environmental groups from three other hearings. 

The Alberta Environment 2009 Briefing Note underscored the reason for banning environmental groups: they weren't cooperating with the state.

The note said the OSEC had published "negative media on the oil sands"; had withdrawn from a discredited industry group; and were "less inclined to work cooperatively."

Justice R.P. Marceau found the briefing note breached "all the principles of natural justice."

The judge's decision compared Alberta, which tightly runs all energy hearings, to the authoritarian regime of Maurice Duplessis in Quebec during the 1950s. 

"It is difficult to envision a more direct apprehension of bias unless it is the Premier of Quebec telling the Quebec Liquor Commission to revoke a restaurateur's liquor licence because the proprietor is a Jehovah's Witness as Happened in Roncarelli v Duplessis," the judge wrote in the decision.

The judge also said the government's briefing note "hijacked" the vital object of Alberta's environmental laws, which is "to give the citizens of Alberta as much input as reasonable into the environmental concerns that arise from proposed industrial development."

According to the Pembina Institute, a non-profit energy watchdog, there were over 36,000 energy applications in Alberta, including 410 steam plant applications for bitumen mining, in 2012. "The regulator held only seven hearings on energy-related projects and a single hearing for an in situ oil sands project," it claims.

The Pembina Institute welcomed the court's decision.

"It's deeply troubling that the Government of Alberta would attempt to block participation in the regulatory process on grounds that Pembina has raised concerns of its oil sands management policies," said policy director Simon Dyer in a press release.

"At a time when evidence is mounting that cumulative environmental impacts from oil sands are exceeding regional thresholds, it's essential that directly affected stakeholders with credible information get a fair hearing."

Andrew Nikiforuk is an award-winning journalist who has been writing about the energy industry for two decades and is a contributing editor to The Tyee.

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