Ecojustice Blog – Healthy communities Posted on February 2, 2012 (updated: February 17, 2015)

Another step forward for public participation in Canada

Melissa GorrieLawyer

Alberta’s Court of Appeal has ordered the Energy Resources Conservation Board (ERCB) to reconsider its decision not to award costs to a group of local landowners — represented by Karin Buss and Ecojustice board member Jennifer Klimek — that raised concerns over the health impacts of oil wells being drilled near their properties.

The decision is a boost to Ecojustice’s efforts to make the legal system, which we believe is the most powerful tool for protecting and restoring the environment we rely on — accessible for all Canadians.

The issue of costs, or compensation of legal fees, is especially important when it comes to public access to the courts. Legal proceedings can be expensive and time-consuming, which can deter Canadians without deep pockets from exercising their right to be heard — even when it might be a matter of public interest that will affect their lives.

In this particular case, the ERCB refused to compensate a group of Alberta landowners for the fees they incurred during public hearings into nearby oil-well drilling, during which they came forward with their health concerns.

The board argued that in order to be eligible for a cost award the landowners had to demonstrate that their property had suffered physical damage and that in situations where the use and enjoyment of the property was affected — such as if the landowners experienced health impacts due to emissions from the oil well — costs shouldn’t be awarded.

The ERCB also took the position that determining whether someone is “directly or adversely effected,” and thus eligible for costs, must be determined before the hearing takes place. It further argued that costs should only be awarded if they had been able to prove that they were “directly and adversely affected.”

The court however, disagreed with the ERCB’s stance and directed the ERCB to expand its view of who qualifies for costs. In its decision, the court ruled that it is unreasonable to exclude health considerations as grounds for compensation and that it is unreasonable to make an award of costs overly dependent on the outcome of the hearing.

“In today’s Alberta it is accepted that citizens have a right to provide input on public decisions that will affect their rights,” the court wrote in its decision.

This decision should make it easier for affected individuals to do just that — have a say in decision that affect them — which is really what the public hearings process is all about.

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