When decisions that affect the public resources we all depend on — like our water — are being made, it is important that Canadians have the ability to speak up on behalf of the environment, giving voice to the trees, lakes, rivers and animals that otherwise cannot speak for themselves.
But thanks to the passage of Bill C-38, the 2012 budget bill, only those “directly affected” by a proposed project will now be able to participate in the environmental review process. And if Alberta’s narrow interpretation of who is a “directly affected” person or group is an indication of things to come at the federal level, Canadians will face significant roadblocks in their efforts to stand up for environmental protection.
That’s why we’ve asked the Court of Queen’s Bench of Alberta to examine when a “public interest” test should be applied, rather than the narrow “directly affected” test. Specifically, we are seeking a court order granting our clients, the Alberta Wilderness Association, Trout Unlimited Canada and Water Matters, standing so they can challenge water licence amendments we believe are unlawful and undermine the public interest. The licences in question allow new industrial users to withdraw water from the Bow River Basin, even though it was closed to new licences in 2006.
Unfortunately, this time-consuming extra step is necessary because according to the Alberta Environmental Appeal Board’s standing test, our clients are not “directly affected” and therefore do not have the right to appeal a decision made by the Director of Alberta Environment and Sustainable Resource Development — even though we believe it is contrary to the law. If no one is found to be directly affected and the Court fails to grant public interest standing, then it is impossible to hold the Director accountable for a decision we believe is unlawful and must be challenged.
The flaws of Alberta’s “directly affected” test were on full display when the Milner coal plant expansion was approved last summer without any public input. And Alberta’s Energy Resources Conservation Board has consistently taken a narrow approach to the “directly affected” test, refusing to hear landowners or to compensate them for legal fees incurred while they fought for their right to be heard during oil-well drilling hearings.
While this case isn’t as splashy as some of our other high-profile pieces of work, such as protecting killer whale habitat or speaking out against major pipeline projects, it is no less important. “The devil is in the details,” is a saying you’ll often hear in lawyer circles and this case is a good example of why.
Standing — the right or the ability of an individual or organization to appear before a regulatory board and weigh in on proposed projects or appeal an unlawful approval — is an important tool in protecting democracy, free speech and the rule of law. Standing means that you have the right to appear before decision-makers and submit your concerns and comments to the public record. It is a means of making sure that decision-makers are held accountable for their actions. Shutting people out of decision-making processes that affect their well-being, or limiting who can and cannot be heard, runs contrary to the ideals of democracy. It also makes it easier for government to exploit weak policies that do not do enough to protect people and the environment.
Other jurisdictions, such as the Land and Environment Court in New South Wales, Australia, have “open standing” that allows any interested member of the public to bring a matter before the Court. Fears that open standing would result in the Court being swamped with frivolous claims have been proven wrong. In fact, the Court says that cases brought by interested environmental groups have made a significant contribution to environmental law in New South Wales.
While courts in Australia begin to embrace open standing, Bill C-38 is moving our country in the opposite direction by shutting Canadians out of environmental decision-making. It’s a troublesome development, but there is still reason to be optimistic.
We are hopeful the Alberta Court will confirm the important role public interest groups like Ecojustice and our clients play in upholding the law and helping give voice to concerned citizens and our shared environment. It would be a small, but significant step forward in making sure our Canada remains open and free and that decision-makers are held to account when they err in judgement.