September 4, 2015
By Gillian Steward
Albertans may own the billions of barrels of bitumen that lie beneath the northern part of the province, but it’s extremely difficult for them or anyone else to have a say about how it is developed or how that may affect everything from the air to precious caribou herds.
The regulatory process is so tightly controlled that hundreds of vast, complex extraction projects have been given the green light by regulators over the past 15 years without authorities hearing from anyone but the company proposing the project.
According to the Alberta Energy Regulator (AER), in 2014 there where 104 applications for oilsands mining projects and 337 applications related to in situ ones.
In situ is the process in which steam and other solvents are driven underground in order to melt the puck-hard bitumen so it can be pumped to the surface.
Some in situ operations use more than a million litres of water daily, water drawn from rivers and lakes in northern Alberta.
But the AER did not call even one public hearing to look into in situ extraction applications, even though they are the fastest-growing sector of oilsands development.
There have been no public hearings so far this year either.
In 2013, the Harper government exempted all oilsands in situ projects from federal environmental impact assessments even though 80 per cent of oilsands bitumen will have to be recovered using in situ processes.
Shaun Fluker, a professor with the University of Calgary’s faculty of law, has been investigating public participation in the regulatory process for several years.
“The AER has basically shut down public participation,” says Fluker. “Anyone who wants to raise questions or concerns must be able to present expert evidence. This can cost an intervenor up to $20,000, double that if a lawyer is involved.”
“It’s very hard to intervene now,” says Alvaro Pinto, director of sustainability for the Fort McKay First Nation, which sits in the middle of some of the biggest oilsands mining and in situ projects. “Rights to go to a hearing have been curtailed. Project approvals are now faster, cheaper and easier for the companies.”
The Alberta Wilderness Association has been working to protect wildlife, forests, grasses and water in Alberta for 50 years and has about 7,000 members. But according to the AER’s rules for intervenor status, the organization is not considered to have relevant expertise because it is not “directly affected” by the extraction projects seeking approval.
“Other oilsands companies can get standing as intervenors if the proposed project interferes with their projects, but organizations like ours can’t,” says Carolyn Campbell, a conservation specialist with the Alberta Wilderness Association.
The same goes for the Pembina Institute, an Alberta-based environmental NGO with a solid reputation, as well as for NGOs such as Ecojustice and Greenpeace.
The AER’s most important criterion for participation is direct impact. In general that means an intervenor must own land that will be infringed upon or damaged if the project goes ahead.
Aboriginal groups who object because the project infringes on their traditional hunting territory (as opposed to their reserve lands), or an expert in the impact of cumulative greenhouse emissions, are not considered to be directly affected and do not have the right to participate.
The AER can invite such participation but is not obligated to do so.
As a consequence, most projects go ahead without input from people who might have a financial interest (that would be all Albertans because the resources are owned by them), an environmental concern (impact on downstream river water), a social concern (number of employees housed in the area) or a claim on wilderness territory for hunting, trapping or traditional gatherings.
In addition, each proposal is considered separately, so cumulative impacts are not taken into account, whether they are greenhouse gas emissions or the incursion into caribou ranges.
And project proponents seek approval from the AER long after they have already leased land, cut down trees, built roads, erected worker housing and explored that land to determine where best to locate the massive and complicated marvels of engineering that will extract millions of barrels of tarry oil from the ground before transporting it to refineries.
Sometimes, proposed projects are so enormous and the impacts so widespread they require a federal environmental assessment as well as approval by the provincial regulator. In those cases, federal and provincial authorities collaborate in order to streamline the approval process.
The University of Calgary’s Fluker recently conducted a study of four public hearings that involved the National Energy Board, the federal government’s environmental agency and provincial regulators in B.C. and Alberta. The review panels were established after the federal government tightened public participation standards for environmental assessments in 2012 through its Canadian Environmental Assessment Act.
Fluker found that the three panels overseeing public hearings in B.C. were far more generous in opening up the process to the public. The B.C. public hearings dealt with a gold mine, a hydro project and the Trans Mountain Pipeline, which would carry bitumen from Alberta to the Pacific coast.
The Alberta public hearing was called to examine the expansion of the Jackpine operation, proposed by a consortium led by Shell Canada, which would increase production of bitumen from 100,000 barrels to 300,000 barrels a day. The project included surface mining with giant trucks and shovels, expanded tailings ponds, river diversions, two bridges, power plants, bitumen processing plants and petroleum storage tanks.
Over its 34-year lifetime, the project would mine 6,536 million tonnes of oilsands and disturb 132 square kilometres of land. It would also permanently destroy thousands of hectares of wetlands.
And yet only 16 intervenors of the 852 who applied were approved to make submissions to the joint review panel. In B.C., hundreds of intervenors participated in each of the public hearings.
In Alberta, parties had just six weeks to submit an application to participate and were told whether they had been approved only 12 days before the hearing started.
In B.C., participants were given much more time to apply.
Legal counsel for the Jackpine expansion and the Trans Mountain Pipeline were adamant that the review panels should stick to the letter of federal environmental assessment laws when it came to public participation and not open up the process.
“Allowing individuals and organizations, prompted by Internet forms, to participate in the hearings that have no direct interest in the project and have no relevant information or expertise will create precisely the type of inefficiencies that the legislators sought to avoid through the enactment of (the Canadian Environmental Assessment Act) in 2012,” stated a letter to the panel from Osler, Hoskin & Harcourt, a prominent Calgary law firm, dated a month before the hearing got underway and before applicants had been notified about whether they would be allowed to participate.
The letter went on to assert that a representative from Greenpeace and two academics from York University in Toronto did not qualify to participate.
A letter from the same firm to the NEB panel reviewing the Trans Mountain Pipeline proposal went even further and listed specific qualifications that should be required of intervenors, such as “specific concerns and detailed interest rather than general interest.”
Most of all, legal counsel wanted the review panel to stick to the letter of the new federal statutes and ensure that “participants be directly affected by the project or have relevant expertise with a demonstrable connection to the project” — criteria that now align perfectly with Alberta’s legislation.
“How are ordinary people or NGOs supposed to be able to compete with top-notch law firms working for the oil companies?” asks Fluker.
The Trans Mountain public hearings continue. But the panel reviewing Shell’s Jackpine mine expansion recommended approval, concluding the economic benefits to Alberta and Canada trumped the irreversible damage to wetlands, wildlife habitat and waterways, damage that Shell could not effectively mitigate.
The panel also concluded that the cumulative effects of existing, approved and planned projects would also significantly impact old growth forest-reliant species at risk, caribou and the rights and culture of aboriginal people in the region.
The 400-page report imposed 22 conditions on Shell and made 88 recommendations to the Alberta and federal governments, among them ensuring aboriginal participation in oilsands projects and toxin-free water.
Nevertheless, in December 2013 the federal government gave the project the green light.
Shell has yet to decide if it will proceed.
The Alberta government is currently developing a regional land use plan for the area. The Lower Athabasca Regional Plan would expand conservation areas, develop a biodiversity framework and establish rules for tailings ponds. But with so many bitumen-producing projects under construction or in the planning stages, it’s like closing the barn door after the horses are long gone.