Kearl Oil Sands Project

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in Ketch Resources Ltd.: ERCB Decision 2005-129. In that decision, the Board said, at 7 and 8, that
applicants must provide “complete and credible alternatives for consideration by the local
community, affected residents and the Board” and that “where applicants claim that a proposed
course of action will provide significant benefit over another, the board expects substantiating
evidence.”
[10] Although the alleged difference in the Board’s positions might be of interest to the practice,
I note that the doctrine of stare decisis is not applicable to administrative tribunals: see Ontario
(Minister of Municipal Affairs and Housing) v Transcanada Pipelines Ltd (2000),186 DLR (4th)
403, 137 OAC 201 (Ont CA).
[11] The Board heard considerable evidence relating to trunkline routing and possible routing
alternatives: ERCB Decision 2010-022:16-24. The amount of information and thoroughness of
analysis that must be provided in relation to reasonable alternatives is an important aspect of
preparing a Board application. Here, the Board considered some evidence relative to alternate routes
and found that it was sufficient to show that they were unworkable. The Board accepted Suncor’s
evidence that the proposed route was, in fact, the only reasonable possible route if the Sullivan field
were to be developed. This is a question of mixed fact and law, and there is no pure legal question
which can be extricated. Moreover, the Board’s decision was a discretionary decision within its
expertise and would attract considerable deference on appeal. Accordingly, the applicants have not
satisfied the requirements for leave to appeal on this ground.
B. Adequacy of Consultation Regarding Alternate Routes
[12] The Big Loop and Pekisko groups submit that Suncor failed to adequately consult with other
stakeholders. They say that failing to provide more detailed information concerning alternate routes
left the interveners at a disadvantage in being able to contest Suncor’s preferred route. They contend
that this violated their right to be informed of facts or allegations contrary to their interests, and the
right to cross-examine on those allegations, under sections 4 and 5 of the Administrative Procedures
and Jurisdiction Act, RSA 2000, c A-3 (APJA). They further submit that Suncor failed to meet the
requirement of a “thorough and effective public consultation program that goes well beyond the
normal consultation process because of the potential sensitivity of the eastern slopes area” as set out
in Informational Letter IL 93-9 (IL 93-9).
[13] The Board found that Suncor conducted a thorough and accessible public consultation
program that met the requirements of Directive 056 and IL 93-9. However, the Board recognized
that there was a lack of consultation prior to the hearing and that consultation about alternatives in
advance of the hearing might have “made the hearing more efficient” and clarified the issues: ERCB
Decision 2010-022:10. It is not uncommon that defects in consultation are addressed at the hearing
itself. Suncor submits that in this case there was a complete exchange of views about alternative
routes at the hearing, where the parties fully canvassed the issues relevant to routing, and had ample
opportunity to state their concerns.