The Pembina Institute and the Fort McMurray Environmental Association asked for a judicial review of a decision by the Director of Northern Region Alberta Environment and Sustainable Resources Development. The Director had rejected a Statement of Concern filed by the two entities under the Alberta Water Act and the Environmental Protection and Enhancement Act concerning an oil sands project on the McKay River. Justice Richard Marceau decided that the Director took into account improper and irrelevant considerations that tainted the entire decision-making process. He wrote that the Briefing Note provided to the Director contradicted the publicly stated policies of the Environmental Protection and Enhancement Act to encourage public participation in the regulatory process. Further commenting on the Briefing Note , he stated “Since as a matter of policy the Director was told to consider whether the Statement of Concern filer was cooperative and whether it had published negative media about the oil sands in coming to the Director’s conclusion, the reasons are fatally flawed. “ He ruled that the Directors’ decision breached all four of the principles of natural justice:
- a fair and open procedure;
- the right to be heard;
- consideration by the decision-maker tasked with the duty to decide; and
- decisions are to be free from the reasonable apprehension of bias;
and so must be quashed.