For two days, the Court of Quebec has heard the lawsuit filed by Gaspé Énergies against the Minister of Energy and Natural Resources, Jonatan julien, on its refusal to authorize the exploration of hydrocarbons within 1000 m of a water medium.
Gaspé Énergies is also asking the Court of Quebec to invalidate section 23 of the Regulation respecting the exploration, production and storage of hydrocarbons on land.
The prosecution also asked the court to judge the defense filed by Minister Julien to be abusive.
By refusing, on October 13, an authorization to drill on the Galt site, near Gaspé, the Minister of Natural Resources was thus testing the regulations, particularly with regard to water protection.
The issue had already been the subject of numerous debates between Quebec and the municipalities as well as a legal action by the firm Gastem against the Municipality of Ristigouche-Sud-Est in 2018.
Adopted under gag order in 2016 by the Liberal government of Philippe Couillard, the law governing the exploitation of hydrocarbons and its subsequent regulations, published shortly before the 2018 elections, henceforth prohibit any drilling within 1000 m of a water medium.
Only the Minister can reduce this distance, on condition that “the planned activities do not compromise the integrity and conservation of the water environment”.
The article stipulates that an independent study, requested by the minister, can be submitted by a company in order to allow it to demonstrate that the drilling will not disturb the rivers located nearby.
After the testimony of Minister Jonatan Julien on Monday, it was the pleadings of the applicants on Tuesday.
The prosecuting attorney, Me Eric Orlup, questioned the limits of the discretionary power conferred on the Minister by regulation.
The evidence, according to him, shows that good understanding reigned between the Ministry of Energy and Natural Resources (MERN) and Gaspé Énergies and that, in the minds of officials, the drilling authorization should have been granted. “We want projects to happen. The MERN is a ministry of economic development, ”commented the prosecutor.
According to Me Orlup, the Activa-Environnement and Technorem study filed by Gaspé Énergies confirmed that the site’s water environments would not be compromised by the drilling work.
The environmental technical study, according to the lawsuit, reinforced and confirmed the technical information given by Gaspé Energies to the Ministry in support of its request in the previous months.
The role of the minister, continued the prosecutor, was to receive the study and verify whether section 23 was respected.
In an email, sent in mid-August by the director of the Ministry’s hydrocarbons office, Marie-Eve Bergeron, we can read the promise of the issuance of a drilling authorization in the following days.
The prosecutor also argued that the associate deputy minister, Luce Asselin, had indicated, during an out-of-court testimony and in certain notes filed in evidence, having told the Minister that according to the study, the integrity and conservation of the water environment would not be compromised.
According to counsel for Gaspé Énergies, the minister should therefore have followed his department’s recommendations and trusted the specialists and scientists who had the knowledge to assess the matter.
A contested version
During his appearance on Monday, Minister Julien admitted not having read the study, but made his decision following a presentation in early September, in which the persistence of low risks concerning the impact of drilling on hydrous environments.
During his plea, Me Éric Orlup observed that zero risk did not exist and that the concept of low risks was not the one to use in order to analyze the scope of the article, but rather compliance with the integrity and conservation of water environments, which was demonstrated by the study.
The prosecution attempted to demonstrate that the Minister’s decision was taken before September, thus casting doubt on the Minister’s version.
The thesis defended by the prosecutor is that Minister Julien would have made his decision to refuse the drilling on political considerations, thus thwarting a decision taken by his officials.
For his demonstration, Mr. Orlup noted many notes on the political context of decision which questioned in particular the appropriateness of relaunching a debate on hydrocarbons at a time when the government wishes to put forward its green plan. “The simple fact of asking this question in the context of issuing a permit is wrong,” pleaded Mr. Orlup.
Without this interference, the lawyer believes that Gaspé Énergies would have received its permit in early September 2020.
The prosecution then questioned the legality of the power assigned to himself by the Minister as well as the exercise of the discretionary power he gives himself in the interpretation of the regulation.
An unreasonable and arbitrary power, observed the lawyer for the prosecution, Me Julie Dorion, especially since the Minister never provided the reasons justifying his decision. “It is impossible to know for Gaspé Énergies how to comply with article 23”, illustrated the lawyer.
For prosecution, the minister’s power is linked to compliance with regulatory requirements and to the officials’ assessment of the file’s compliance. Otherwise, section 23 should be struck down, argued the lawyer.
Prosecutors are also contesting the 1000 m limit since technically, the article becomes a ban on drilling in a land environment and not a protective measure. This is also the case for Gaspé Énergies; almost all the drilling possibilities at the Galt site are located within 1000 m of a water medium.
Environmentalists on the lookout
Gaspé Énergies is not the only one to question the scope of section 23.
On the sidelines of the hearings, Gaspé environmental groups are calling for a complete review of the Hydrocarbons Act.
Solidarité Gaspésie, Environnement vert-plus and the group La Planète invite themselves to Parliament – Gaspé section argue that this law is indeed based on the discretionary power of the minister, which makes the minister’s decision extremely vulnerable to legal proceedings.
These fears had been manifested as soon as the regulation was adopted.
“It is absolutely, completely in the hands of the minister who is in office. The one who was at the helm yesterday, Minister Jonatan Julien told us that his appetite for risk was very limited, but if we have a Minister of Energy who has a much greater risk appetite, we will end up with a decision which is quite different, ”emphasizes Pascal Bergeron, of Environnement vert-plus.
Environmental groups are also concerned that engineers may consider that a low risk does not compromise the integrity and conservation of a water environment. “We could end up authorizing boreholes 100 m from water environments, with the same technical-environmental study that was presented at the trial”, observes Pascal Bergeron.
Environmentalists believe that the current law gives precedence to the regulatory framework and the predictability of the business environment over social acceptability.
Gaspé environmental groups want all oil exploration and exploitation projects to be banned in Quebec and are calling for the full and final end of the Galt project.
Gaspé Énergies, a subsidiary of Utica Resources, now holds the drilling rights to the Galt site, which formerly belonged to Junex. It was on this site, at well No. 4, that Junex was able to produce, five years ago, enough oil to hope for commercial production.
The argument of counsel for the Minister of Energy and Natural Resources will be heard on Wednesday.