To Use Discretion or Follow Procedure and Guidelines?
Determining appropriate levels of vague terms such as “adequacy” and “discretion” was before the Nova Scotia Supreme Court Tuesday as the Margaree Environmental Association’s (MEA) appeal against exploratory oil drilling near Lake Ainslie continued.
Crown attorney Aleta Cromwell was the first to take the stand as she continued her case begun June 27 in defense of the environment minister’s decision to reject MEA’s appeal of a permit granted to Petroworth Resources Inc.
She reiterated her stance that the standard of review for the minister’s decision should be reasonableness as opposed to correctness.
She added that the minister’s reasonableness should be analyzed within the context of all the factors relating to the permit approval and subsequent appeal rejection; in other words, that he was attempting to balance the interests of human health, environmental protection and socioeconomic benefit to the province as per his mandate stated in the Nova Scotia Environment Act.
As such, Cromwell argued that the MEA was only deserving of a low level of procedural fairness (governing how the group is involved and to what degree) in dealing with the appeal, which she said the minister delivered on. The group was allowed to submit any records it wanted. She said the minister ensured adequate communication between the environment department and the MEA: specifically, that a site inspector met with a member of the MEA, the department responded to the concerned letters of residents, and it held consultations with the local Mi’kmaq community.
Appellant Derek Simon didn’t buy it. He pointed out that the consultation with the Mi’kmaq people is a constitutional requirement. “It has nothing to do with the minister’s duty to discharge procedural fairness to the public at large,” he said. Simon added that he couldn’t find any evidence that the environment department responded to the public’s concerns, outside of those voiced by the Mi’kmaq community, and as a result changed the terms of the permit approval.
One such concern is a brook passing close by the proposed drilling site and whether it should be defined as a watercourse by Environment Act standards. This debate occupied much of the first day in court, as Simon’s argument hinges largely on the brook’s proximity to the site violating environmental regulations and thus nullifying the permit approval.
“We would argue that the Environment Act does not limit the minister’s discretion; we would argue it shows broad discretion,” said Cromwell in reference to this sticking point.
Cromwell argued that the minister’s passing over the issue of brook during appeal was reasonable, because the definition of a watercourse “can vary case to case” and, in this instance, he found it didn’t apply due to facts presented to him by his staff (who labelled it a drainage conveyance) and an independent investigator (who didn’t note the brook at all).
The presiding Justice A. David MacAdam asked Simon why the investigator’s report did not mention the brook. “They either failed to observe it or failed to include it in their report. I’m curious whether there’s a third option,” said MacAdam, hinting that the brook was insignificant to the case.
Simon replied that the minister trusted the “bald assertion” by the department’s site inspector that the brook was a drainage conveyance and therefore didn’t to address the issue of properly defining the brook during the first appeal.
“The department seems more concerned with the expediency in this matter than what is necessary to protect the environment and public safety,” said Simon.
“There are several layers of environmental protection built into the terms and conditions of the approval,” retorted Cromwell.
She noted that three environment department staffers were involved in developing emergency and environmental plans included in the approval to protect the surrounding area and mitigate risk should any disasters occur. The approval also requires a monitoring program for noise and air emissions, and the proximity of the site to homes was considered. If adverse effects of the drilling are discovered, the approval will be suspended until these have ceased.
Despite these safeguards, Simon still sees in the minister’s decision to reject the appeal a failure to follow his own department’s procedures and guidelines, using instead his own discretion, leading to an ignoring of health and environment concerns.
“How do I determine if it’s adequate?” asked MacAdam of Simon, referring to the minister’s addressing of the MEA’s concerns. “One course in geology does not make me an expert in anything.”
Certainly not, but hopefully his expertise in the law can make for a quick decision. Petroworth has announced it will start drilling before Labour Day. The MEA wants to avoid having to file an injunction against the company should the activity begin before MacAdam returns with a decision.