HALIFAX — Both the solicitor for the Margaree Environmental Association (MEA) and the Crown struggled to make their case with a dearth of evidence Wednesday as the Nova Scotia Supreme Court heard an appeal to the Environment Minister’s decision to permit exploratory oil drilling near Lake Ainslie.
Justice A. David MacAdam, who presided over the case, interrupted the lawyers repeatedly trying to sort out the binders upon binders of documents that, he argued, provided him with little information.
“If the minister had no basis to make his decision, then I have no basis to make my decision,” he said at one point during appellant Derek Simon’s submission, which centered on the minister failing to meet a standard of reasonableness and correctness in reviewing the MEA’s first appeal.
Simon’s argument hinged, in part, on the idea that the minister was not provided with sufficient information about the proposed site before issuing the permit to Petroworth Resources Inc., and in reviewing his decision in response to the first appeal. Therefore, he could not have reasonably made an appropriate choice in denying the appeal.
Simon said a lack of information led the minister to incorrectly define a brook that passes close by the site as a “drainage conveyance” as opposed to a “watercourse.” Environmental regulations state that an oil well cannot be placed within 100m of a watercourse.
The Nova Scotia's Environment Act defines a watercourse as “the bed and shore of every river, stream, lake, creek, pond, spring, lagoon or other natural body of water, and the water therein, within the jurisdiction of the Province, whether it contains water or not, and…all ground water.” Simon did not have any expert testimony confirming that the brook is indeed a watercourse.
He instead pointed to departmental operating procedures that state aerial photographs, maps and an on-site investigation are required to answer a series of questions to determine whether or not a watercourses exists. Although several site visits were conducted before the permit issuance and during the first appeal, the results of such an assessment are missing.
Crown attorney Aleta Cromwell agreed the procedures weren’t followed, but for good reason. She said the assessment is only required if there is a question as to whether a watercourse exists or not. The first inspection revealed no watercourse — end of story. It was only during the inspection conducted after the first appeal was filed that a department staffer discovered the brook and the issue over its definition arose.
Cromwell said the correct labeling of the brook is insignificant at this stage of appeal, as it should only be the minister’s reasonableness in decision-making under review, not his correctness in determining such matters.
But Simon’s submission took a hard stab at the minister’s reasonableness as well. He noted the contradictions between the denial of MEA’s appeal and minister’s duty to uphold the Environment Act. In particular, he cited two of the Act’s purposes: “maintaining environmental protection as essential to the integrity of ecosystems, human health and the socio-economic well-being of society” and “maintaining the principles of sustainable development.”
Simon then went into detail as to the considerations the minister failed to adequately address in his review of the appeal, including the proximity of the proposed oil well to homes and water supplies, and the potential for water, air and noise pollution.
MacAdam asked how he could judge what is “adequate” when no experts in the field have provided the court with their own environmental assessment of the proposed site.
Simon expressed his the frustration over making a case without sufficient evidence, especially since no new material could be introduced at the appeal stage.
He said more information would have been submitted by MEA had the minister communicated properly with the public and interested parties about Petroworth’s application (following gray guidelines known as “procedural fairness”) during the permit issuance stage and the first appeal process.
He argued that the government did not hold any public consultations of its own regarding the proposed oil well (although Petroworth did) and that the public did not have sufficient ability to express their concerns to the environment department.
He also said no notice of the permit issuance was immediately provided to interested parties, save Petroworth, and MEA members had to unearth this information for themselves before it was publicly announced several months after the decision was made.
When MEA chose to appeal the decision, two residents living close to the proposed drill site had to make a Freedom of Information request to acquire documents pertaining to the permit issuance.
“In the absence of the records, it is very difficult for the appellant to determine what information in their possession will be relevant,” said Simon in response to the judge’s repeated concerns over the lack of documentation before him.
Cromwell, however, flipped through plenty of papers pointing to a different story. She first noted that in her interpretation procedural fairness is owed only to the party who submitted an application, that is, Petroworth. She said the government’s initial muteness on the application is due to it balancing privacy concerns with maintaining a “general procedural fairness toward other related parties.”
She also pointed to letter and email correspondence between the public and the environment department, as well as Facebook posts by MEA members, to show that these other parties were better informed of the status of the permit and the appeal than Simon led the judge to believe.
“Overall, the public was provided with the opportunity to voice their concerns and the concerns were heard by the department. They might not have been accepted in every instance, but they were considered,” said Cromwell.
The question now is whether MacAdam accepts them. The trial continues July 17.