ENVIRONMENTAL. Decision APPEAL BOARD ALBERTA. of Preliminary Meeting: March 25, 2002 Date. Regional. Regional. Appeal Nos , 098 and 101-D

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1 Appeal Nos , 098 and 101-D ALBERTA APPEAL BOARD ENVIRONMENTAL THE MATTER OF sections 91, 94 and 95 of IN Protection and Enhancement Act, R.S.A. 2000, c. Environmental issued by Director, Approvals, Sourn Region, Services, Alberta Environment to Lafarge Canada Inc. Regional as: Preliminary Motions: Kievit et al. v. Director, Approvals, Sourn Region, Cite Services, Alberta Environment re." Lafarge Canada Inc. Regional Decision of Preliminary Meeting: March 25, 2002 Date of Decision: April 16, 2002 Date E-12; -and- THE MATTER OF Notices of Appeal filed by James Kievit, IN Adams, and Jeff Eamon, with respect to Approval No Paul

2 Alberta Environment issued an Amending Approval to Lafarge Canada Inc. for its cement plant near Exshaw, Alberta. The Amending Approval permits Lafarge to change manufacturing fuel supply for part of plant from natural gas to coal. The Environmental Appeal Board particulates; and reporting- Approval Clauses and ; monitoring environmental effects of burning coal on viewscape (limited to visible pollutants, blue haze, and odour); and noise, EXECUTIVE SUMMARY received ten appeals challenging this Amending Approval. Three of se appeals were accepted and remaining seven were dismissed. course of processing remaining three appeals, Board asked for submissions During on issues identified in Notices of Appeal should be included in hearing of appeals. what After reviewing se submissions, Board decided to hold a preliminary meeting to decide what issues would be addressed at heating. The Board decided that following issues would be included in hearing of se appeals: 2. emissions Approval Clauses and ; SO2 and heavy metals; mercury Approval 5. human health impact assessment/vegetation assessment study and ; Clauses potential antagonistic environmental effects of burning tires and coal; any environmental effects of burning coal on natural surroundings. The Board notes that greenhouse gases are not an appropriate issue for hearing of se appeals.

3 MEETING PRELIMINARY BEFORE: Approval Holder: May Mah-Paulson, Director, Approvals, Ms. Region, Regional Services, Alberta Sourn represented by Mr. William Environment, and Ms. Charlene Graham, Alberta McDonald Tribal Council (Stoney Nakoda First Stoney represented by Mr. Tibor Osvath, Rae Nation), William A. Tilleman, Q.C., Chair. APPEARANCES: Appellants: James Kievit, Dr. Paul Adams, and Mr. Mr. Eamon, represented by Ms. Jennifer Jeff Klimek. Director: Justice. Canada Ltd. Inc., represented by Mr. Lafarge Kruhlak and Mr. Corbin Devlin, Ronald McLennan Ross. Or Parties: and Company.

4 Interventions 4 Preliminary Meeting 6 Scope of Review 8 1. Tires Viewscape and Natural Surroundings Greenhouse Gases Municipal District of Bighorn 16 I. Stoney Nakoda First Nation Scheduling 18 TABLE OF CONTENTS I. BACKGROUND 1 Ao Procedural History II. SUBMISSION OF THE PARTIES 6 III. BOARD'S ANALYSIS 7 A. Issues 7 B. Intervenor Requests 15 Co Miscellaneous Matters 18 IV. DECISION 22 Ao Issues to be Addressed at Hearing 22 B. Intervenor Status 23 C. Scheduling 23 D. Miscellaneous 23 V. APPENDIX 1 PARTIES AGREE 24 VI. APPENDIX 2 PARTIES DO NOT AGREE 27 VII. APPENDIX 3 CHIPEWYAN PRAIRIE FIRST NATION CASE 29

5 This decision deals with Amending Approval No ( "Approval") [2] Environmental Protection and Enhancement Act, R.S.A. 2000, c. E-12 ("EPEA") under Holder to make modifications to permit burning of coal as a On November 21 and 22, 2001, Environmental Appeal Board ( "Board") [4] ten Notices of Appeal expressing concerns with Fuel Flexibility Project. 4 The received Environmental Protection and Enhancement Act, R.S.A. 2000, c. E-12 replaced Environmental The and Enhancement Act, S.A. 1992, c. E-13.3 on January 1, Protection Pembina Institute for Appropriate Development, Dr. Tracey Henderson, Ms. Amy Taylor, and Mr. Gary and Parkstrom. -1- BACKGROUND The purpose of this decision is to decide which issues included in Notices of [1] properly before Board will be considered at hearing of se appeals. The Board Appeal also consider intervenor requests and timing of submissions in preparation for will heating. issued by Director, Approvals, Sourn Region, Regional Services, Alberta Environment "Director") on October 22, 2001, to Lafarge Canada Inc. ( "Approval Holder" or ( with respect to its cement manufacturing plant at Exshaw, Alberta ( "Plant") near "Lafarge") entrance to Banff National Park. The Plant was originally constructed 96 years ago, in In May 1997, [3] was granted an approval ( "Original Approval") z under EPEA. The plant is currently Plant fueled by natural gas. In last few years price of natural gas has been unstable. This has resulted in economic difficulties at Plant such that during one period in last few years, two-thirds of Plant had to be shut down and cement had to be imported from outside Apparently, in response to se unstable natural gas prices, Approval Holder province? to Director for an amendment ( Approval) to Original Approval to allow what applied is referred to as "Fuel Flexibility Project". The Fuel Flexibility Project allows Approval fuel source in part of Plant. A. Procedural History The Amending Approval amends Original Approval (Approval No ). The Board notes that it did not receive any appeals in relation to Original Approval. Oral Submission of Approval Holder, dated March 25, The Notices of Appeal 4 received from Mr. James Kievit, Dr. Paul Adams, Mr. Marlo Raynolds, Ms. were Nadine Raynolds, Mr. Jeff Eamon and Ms. Anne Wilson, Mr. Hal Retzer, Bow Valley Citizens for Clean Air

6 an Industrial Development Permit to Approval Holder. 6 of a separate decision. subject The Board will consider effect of AEUB's Industrial Development Permit 6 se appeals in a on decision. separate The Stoney Nakoda First Nation have also identified mselves in or correspondence with Board 7 as Stoney Tribal Council and Stoney First Nation. See: Letter from Approval Holder dated January 3, Board acknowledged se appeals on November 21 and 23, 2001, and requested a copy of records ( "Record") from Director. The Board also asked if re were any or persons who may have an interest in se appeals. The Board subsequently determined, based on an agreement reached by [5] to this appeal, that it would accept Notices of Appeal filed by Mr. James Kievit, Drl Parties Paul Adams, and Mr. Jeff Eamon (collectively "Appellants"). According to standard practice, Board wrote to Natural Resources [6] Board and Alberta Energy and Utilities Board ("AEUB") asking wher this Conservation matter had been subject of a hearing or review under ir respective legislation. The Natural Resources Conservation Board responded in negative. The AEUB advised that it had issued On December 10, 2001, Board received a copy of Record, which was [7] to those involved in appeals on December 11, distributed On December 21, 2001, Director notified Board that Municipal District [8] Bighorn and Stoney Nakoda First Nation might have an interest in appeals. On of 9, 2002, Board wrote to Municipal District of Bighorn and Stoney Nakoda January Nation, advising m of appeals. First On January 3, 2002, Board was advised that Parties were close to an [9] with respect to a number of preliminary matters, including issues to be considered agreement in se appeals. The Board subsequently requested a written status report respecting this by January 31, On January 31, 2002, Board received a letter from agreement advising that y were close to an agreement with Director and Approval Holder Appellants on preliminary matters. 5 The Board's decision to accept Notices of Appeals of Mr. Kievit, Dr. Adams, and Mr. Eamon is

7 matters, including which Notices of Appeal should be accepted by Board. However, this issues in this appeal and should be reference point for this appeal. If that is not Notice of Public Hearing advised that if any person wished to make representations before [13] On March 5, 2002, Board wrote to Parties on several outstanding issues. 1 Leader. 10 The Board's Notice of Public Hearing was published in Okotoks Western Wheel and Canmore Board stated: The 95 of Environmental Protection and Enhancement Act, R.S.A. 2000, c. E-12 "Section provides: Prior to conducting a '(2) hearing of an appeal, Board may, in accordance with regulations, which matters included in notices of appeal properly before it will be included in determine of appeal, and in making that determination Board may consider following: hearing wher matter was subject of a public hearing or review under Part (a) of Agricultural Operation Practices Act, under Natural Resources 2 Board Act or under any Act administered by Energy Resources Conservation Board and wher person submitting notice of appeal Conservation notice of and participated in or had opportunity to participate in received or review; hearing wher Government has participated in a public review in respect of (b) under Canadian Environmental Assessment Act (Canada); matter 3 On February 11, 2002, Board received a letter from Approval Holder [10] that Parties had reached an agreement with respect to a number of preliminary stating did not appear to include issues that should be considered by Board at agreement of se appeals. hearing On February 15, 2002, Board wrote Parties and asked m to provide a [11] outlining ir agreement. On February 20, 2002, Appellants wrote to Board letter stating that Bow Valley Citizens for Clean Air's '... Notice of Appeal succinctly summarizes I would appreciate an opportunity to address above issue." It was not clear to acceptable, wher Parties had reached an agreement in this regard. Board On March 4, 2002, Board advised Parties that hearing was scheduled [12] April 24 and 25, 2002, and provided a copy of Board's Notice of Public Hearing. 9 The for Board, y should submit a request in writing by March 20, On March 4, 2002, Board a copy of Board's Notice of Public Hearing to Municipal District of Bighorn provided Stoney Nakoda First Nation. and (c) wher Director has complied with section 68(4)(a);

8 As a result, Board requested comments from Parties on Appellants' approval." to have full arguments heard on degree to which Original Approval can be request 15] On March 19, 2002, Board received an intervenor request from Municipal [ of Bighorn. The Municipal District indicated that Plant is located in municipality District wher any new information will be presented to Board that is relevant (d) decision appealed from and was not available to person who made to at time decision was made; decision any or criteria specified in regulations. (e) Prior to making a decision under subsection (2), Board may, in accordance with (3) give to a person who has submitted a notice of appeal and to any or person regulations, matters should be included in hearing of appeal. which Where Board determines that a matter will not be included in hearing of an appeal, no (4) may be made on that matter at hearing.' representations in order to ensure that we are able to proceed to a hearing as planned for April 24 and Therefore, 2002 Board is requesting submissions from parties with respect to which matters 25, in notices of appeal properly before it (Adams, Eamon, and Kievit) will be included in included hearing of appeals. The Board would like to receive submissions on this question removed.) (Emphasis Original Approval. consider The Board 2 understands that this response was provided as a result of a typographical error in now -4- The Parties gubsequently provided submissions requested by Board. A [14] matter addressed by Parties was fact that Approval before Board was in fact key an amendment of Original Approval issued in May The Appellants' response dated March 13, 2002, stated that "...re appears to be a disagreement on submission, jurisdiction, it is an issue before Board and full argument should be heard on it. ''1 Director's On March 18, 2002, Board received a furr response from Appellants. 2 The Board written submissions respecting issues and, in a letter dated March 18, 2002, reviewed that Appellants presented "... view that.an appeal of an amendment to an approval noted can include a review of '...entire scope of approved operation The Board went on to note that opposing Parties argued that re is no "...jurisdiction to 'open up' entire considered. B. Interventions and that its residents are affected by Approval. The Municipal District identified "...efforts and process implemented by Exshaw Community Environment Committee in Board considers appropriate, an opportunity to make representations to Board with respect to 1 This disagreement related to degree to which an appeal of an amending approval ( Approval) could Board letter of March 14, Please see Board's letter of March 22, 2002, for an explanation of this matter.

9 examine any witnesses,,3 Stoney Nakoda [First] Nation and [ Federal Crown in regard to with Approval]. Failure of Approval Holder and Environment Alberta to obtain consent and 2. for Approval from Stoney Nakoda [First] Nation and [ Federal approval Crown]. Failure of Approval Holder and Environment Alberta to properly consider, study and 3. health and environmental impacts of Approval on members of assess Nakoda [First] Nation. Stoney Failure of Approval Holder and Environment Alberta to properly consider, study and 4. impact of Amending Approval on vegetation and wildlife located on both assess Lands and Traditional Lands, including Stoney Nakoda [First] Nation's Reserve and livestock. agriculture Failure of Approval Holder and Environment Alberta to properly consider, study and 5. impact of Approval on Stoney Nakoda [First] Nation's Iraditional land assess on both Reserve Lands and Traditional Lands. use of Environment Alberta to ensure that a copy of Approval Holder's annual Failure and report be provided to Stoney Nakoda [First] Nation [and Federal summary Crown.]" -5- of air quality and or related environmental issues The Municipal District monitoring that y wished to present evidence regarding Exshaw Community Environmental indicated Committee. On March 19, 2002, Board also received an intervenor request fi'om [16] Nakoda First Nation. The Stoney Nakoda First Nation indicated that in ir view Stoney Alberta Environment nor Alberta Environmental Appeal Board ( 'Board') had "...neir have jurisdiction to issue, amend or approve [ Approval] in so far as or may impact upon Stoney Nakoda [First] Nation, without, at a minimum, Approval of Stoney Nakoda [First] Nation." However, Stoney Nakoda First Nation went approval on to say that since "... ir interests are directly affected and impacted by Approval and appeal of said Approval that is before Board, please be advised that [y wish] to intervene and present both written and oral submissions, as well as reserving right to cross- On March 20, 2002, Board wrote to Parties and requested comments on [17] participation of Stoney Nakoda First Nation and Municipal District of Bighorn prior to Board making a decision regarding ir interventions. (These comments were subsequently received on March 26, 2002.) The Stoney Nakoda First Nation stated that y wished 13 address following issues: to Failure of Approval Holder, Lafarge Canada Inc., to consult, or adequately consult "1.

10 [18] On March 20, 2002, Board received submissions from Parties in response Original Approval can be opened up. unless "... Board process achieves finality, responses and counter-responses can continue to timing of Affidavits and written submissions, and any or preliminary hearing, The Board went on to say that it "...would principally like to hear arguments from matters." Parties, in Board's letter of March 22, 2002, Board scheduled Preliminary with for March 25, 2002, in Board's offices in Edmonton. The letter detailed Meeting Board received a agreement 16 particulates; and reporting- Approval Clauses and ; and monitoring Holder, Director, and Stoney Nakoda First Nation. Approval See Appendix 1. (Comparison of Issues 6 which Parties Agree.) on -6- to concern that "...full arguments should be heard..." on question of extent to which In her submission, Director expressed concern that be received." Preliminary Meeting C. In response to this concern and cross-submissions of Parties, Board [19] decided to call a Preliminary Meeting ".. to hear submissions on issues to be dealt with at with respect to inclusion of greenhouse gases as an issue and to what extent parties approval can be considered at heating of se appeals. '' 4 Following consultation original for Preliminary Meeting and indicated that Municipal District of Bighorn and procedure Stoney Nakoda First Nation were invited to attend if y chose. On March 22, 2002, letter from Stoney Nakoda First Nation advising that y would attend Preliminary Meeting. 5 II. SUBMISSION OF THE PARTIES Based on Preliminary Meeting submissions, it is clear that Parties are not [20] apart on what issues should be considered at heating. To illustrate, Parties are in far following issues should be included in hearing of se appeals: that 2. emissions Approval Clauses and ; SO2 and heavy metals; mercury See Board's letter of March 22, On March 25, 2002, Board convened Preliminary Meeting. In attendance 5 Appellants, were

11 human health impact assessment/vegetation assessment study-approval and Clause Approval Holder. of tires (Approval Clause ); burning and natural surroundings; and viewscape greenhouse gases. Prior to conducting a heating of an appeal, Board may, in accordance "(2) regulations, determine which matters included in notices of appeal with Natural Resources Conservation Board Act or under any under administered by Energy Resources Conservation Board Act hearing or review; wher Government has participated in a public review in (b) The Board notes that Appellants have not advanced issue regarding ESP Performance Enhancement Action Plan (Approval Clause ) that was identified by Director and Beyond se five issues, Parties' positions and ir views of basic [21] to be applied are similar with respect to outstanding issues. These issues 7 are: principles III. BOARD'S ANALYSIS This decision answers four matters: (1) issues to be addressed at heating; [22] intervenor requests; (3) scheduling for filing submissions; and (4) miscellaneous (2) matters. A. Issues Section 95 of EPEA permits Board to determine issues to be addressed at [23] hearing. Section 95 provides: properly before it will be included in hearing of appeal, and in making that Board may consider following: determination wher matter was subject of a public hearing or (a) review under Part 2 of Agricultural Operation Practices Act, wher person submitting notice of appeal received and of and participated in or had opportunity to participate in notice of matter under Canadian Environmental respect Act (Canada); Assessment 7 See Appendix 2. (Comparison oflssues on which.parties Do Not Agee.)

12 is relevant to decision appealed from and was not available that person who made decision at time decision was to Prior to making a decision under subsection (2), Board may, in accordance (3) regulations, give to a person who has submitted a notice of appeal and to with or person Board considers appropriate, an opportunity to make any to Board with respect to which matters should be included in representations heating.of appeal. Where Board determines that a matter will not be included in hearing (4) an appeal, no representations may be made on that matter at hearing." of There are three issues on which Parties are unable to agree: (1) burning tires; [24] presented "... view that an appeal of an amendment to an approval can include a 2(b) Section The Appellants, Director, and Approval Holder all began ir analysis [27] -8- wher Director has complied with section 68(4)(a); (c) wher any new information will be presented, to Board (d) made; any or criteria specified in regulations. (e) viewscape and natural surroundings; and (3) greenhouse gases. The dispute between (2) in relation to burning of tires and viewscape and natural surroundings relates to Parties scope of review. 1. Scope of Review As stated above, when Board reviewed written submissions of Parties [25] respect to issues, Board noted, in a letter dated March 18, 2002, that Appellants with review of '...entire scope of approved operation The Board notes that or Parties argued that appeal of an amendment to an approval does not give Director "...jurisdiction to 'open up' entire approval." But, by Preliminary Hearing, Parties had refined ir views and were in [26] agreement as to jurisdiction of Director and Board to review an substantial amendment to Lafarge's approval ( Approval). with section 2(b) of EPEA. This provision of EPEA provides that: purpose of this Act is to support and promote protection, enhancement "The wise use of environment while recognizing (b) need for Alberta's and economic growth and prosperity in an environmentally responsible manner and

13 need to integrate environmental protection and economic decisions in stages of planning earliest view that scope of review should be very broad, and that Director should use an protection and economic decisions in earliest stages of planning..." supports view that of review should be narrow, and that in order to support environmental and economic scope planning should be focused on development of Original Approval. certainty, plant. The appellants in this case argued that canola crushing plant (authorized crushing original approval) and canola oil refinery (authorized under amending under approval) "...should be treated as one operating unit and subject matter of this appeal. ''19 argued "...that existing plant site for both crushing plant and new refinery appellants not appropriate. ''2 was In Walker, Board considered at some length fact that original approval [30] canola crushing plant was issued under predecessor legislation to EPEA and how this for predecessor legislation is not relevant with respect to matter currently before Board, but 005. Walker and Haugen 9 al. v. Director of Standards and Approvals (May 17, 1994), E.A.B. Appeal No. 93- et at page Walker and Haugen 2o al. v. Director of Standards and Approvals (May 17, 1994), E.A.B. Appeal No. 93- et -9- In interpreting section 2(b), Appellants argued that "... integration of [28] protection and economic decisions in environmental earliest stages of planning..." supports amendment to an approval as an opportunity to make early planning decisions. The Director and Approval Holder, on or hand, argued that "... integration of environmental The Walker Case The next step of all Parties was an analysis of previous decision of [29] in Walker. 18 Walker involved a number of appeals regarding a canola oil refinery near Board Alberta by United Oil Seed Products ("UOP"). UOP operated an existing canola Lloydminster, plant on site, and canola crushing plant's original approval (issued under crushing legislation to EPEA) was amended (by way of an amending approval issued under predecessor to permit construction and operation of canola oil refinery adjacent to EPEA) The interacted with amending approval for canola oil refinery. The discussion regarding s Walker and Haugen et al v. Director of Standards and Approvals (May 17, 1994), E.A.B. Appeal No at page 2.

14 ongoing facilities seek additions.or changes to operations and do so "Where amendments to old licences, test is not to rule out environmental through of all pre-act facilities, as a matter of law, simply because re is a pre- effects facility involved. This is potentially unfair because re may be a link Act existing facility and new facility sought by amendment. In between words, existing facility may indeed have environmental effects that are or synergistically or antagonistically to new facility. Depending on which tied of appeal a party finds itself, it will want to argue this synergism or side determination of how existing plant's activities factual directly linked to new approval from an environmental effects are ''2 (Emphasis in original.) perspective. Board n went on to say: The said, Board wishes to be clear that unless legislation specifically "That it (and Act does not), Board will not make a decision that unfairly requires existing status or accrued rights of persons who hold pre-act affects ''22 licences. for example, appellants raise a prima facie case that pre-existing "If, from ongoing activities compound emissions given by a new emissions The Board stated "... Board's proper approach is to focus on existing crushing refinery. only to extent that it helps determine environmental acceptability of new plant refinery. ''24 at page Walker and Haugen et al 22 Director of Standards and Approvals (May 17, 1994), E.A.B. Appeal No. 93- v. at page Walker and Haugen et al. 23 Director of Standards and Approvals (May 17, 1994), E.A.B. Appeal No. 93- v. at page Walker and Haugen et al. 24 Director of Standards and Approvals (May 17, 1994), E.A.B. Appeal No. 93- v what is relevant is finding by. Board regarding interaction between an original approval and an amending approval: of environmental effects. antagonism transitional matters arise between old and new facilities, resolution Where must come by way of a The Board also stated that: Board would hear all of evidence because it is relevant to approval, acceptability of new approval. ''23 environmental The Board ultimately dismissed appeals in Walker on basis that [31] were concerned with existing canola crushing plant not new canola oil appellants Walker and Haugen et al. v. Director of Standards and Approvals (May 17, 1994), E.A.B. Appeal No at page 8.

15 of Appellants Position In Appellants' oral submissions, y reviewed several of points made in [32] Walker decided that you should not rule out effects of existing facility [33] re may be a link between existing facility and new facility.25 The "...because They argue that in this case, however, amendment is being imposed on an old plant and it will effectively become a new physical thing because of amendment. 27 new approval. ''28 at here is emissions given by amendment. That is complaint Appellants looking What will this amended facility emit? What are impacts of those emissions on have. environment? '' 9 licences...",3 Appellants argue that: "What we are asking Board is not to go back and Oral Submission, dated March 25, Appellants' Oral Submission, dated March 25, Appellants' and Haugen et al. v. Director of Standards and Approvals (May 17, 1994), E.A.B. Appeal No. 93- Walker at page Appellants' Oral Submission, dated March 25, Walker and Haugen 30 al. v. Director of Standards and Approvals (May 17, 1994), E.A.B. Appeal No. 93- et -11 Walker and tried to argue that y fell within test outlined in Walker to allow a broader reading to ir Notices of Appeal. responded that: ',In this case re is clearly a link between existing facility and Appellants amended It is same facility. It is going to be emitting substances. ''26 The Appellants one. went on to say that in Walker, plants in question were two separate entities that were not connected physically. In Walker Board also decided that extent that existing approval can be [34] must be made on link between existing approval and amending approval. considered The Board said and we confirm that if "... appellants raise a prima facie case that pre- emissions from ongoing activities compound emissions given by a new approval, existing would hear all of evidence because it is relevant to environmental acceptability of Board Based on this, Appellants in this appeal argued: "And that's what we're With respect to statement in Walker that "... Board will not make a [35] that unfairly affects existing status or accrued rights of persons who hold pre-act decision 25 Walker and Haugen et al. v. Director of Standards and Approvals (May 17, 1994), E.A.B. Appeal No

16 go back and change approval without amendment before you, but our submission is requirements on m because of amendment. ''31 [36] In response to Appellant's arguments, Approval Holder stated: a framework, well first you have to lo0k at coal and if re is an described effect, n that entitles m to address environmental effect environmental is an environmental effect related to using coal as that fuel source. I see that re sort of our answer as it is coal-identified impact, yes, and Director didn't consider it, and y If I guess, raise evidence to suggest that that may have been incorrect, if y can, able to persuade parties. are that doesn't leave it wide open that anything that may have an environmental But effect is necessarily open to review, which perhaps gets us into or areas The Director concurred with basic framework established by Appellants [37] stating: approval, as an opportunity to review operation of existing facility. same Board stated that to extent that re could be a correlation between The process, new activities, and those that appellants were complaining new Board had jurisdiction to look at it. But it was not an opportunity to of, Appellants' Oral Submission, dated March 25, check or determine pre-act rights unless those rights are affected by amendment. You cannot that once y bring in an amendment, y do open up that approval and re may be more stringent Position of Approval Holder could adopt Ms. Klimek's [(counsel for Appellants)] framework because I "I that makes sense. And as I understood from what she described, she think on that issue and consider how Director addressed it. If y have reasons to that it was addressed incorrectly, those are reasonable issues to take suggest Board. But threshold in embarking on this is looking at coal and if before In essence, what Approval Holder said was that environmental effects caused by of coal are proper issues that can be appealed, whereas environmental effects that are not burning by coal are not proper issues that can be appealed. This is a sound legal argument. caused Position of Director that case Walker], it was an application for a new plant on site, a refinery. "In appellants in that case were complaining about odours that originated The existing oilseed crushing operation. They tried to utilize fact that a from process was going to be placed on that site, it was going to be covered by new review that that was circumstances at time that approval, that

17 included in an appeal of amending approval are those environmental effects that directly or result from amendment. And se issues would go to amendment being indirectly reversed, or varied. confirmed, [39] Applying this test to question of burning tires, Board is of view that any potential antagonistic environmental effects of burning tires and coal is an appropriate issue has worked very hard to make sure our operations are in accordance "Lafarge all environmental legislation and furr, acceptance by our neighbors in with Valley. Using an alternative fuel to gas, such as coal, would dramatically Bow our ability to do this affect time'. Coal storage on site would create environmental issues with regards to in black dust created, and run-off from coal pile. The visual impact of a large pile would also be considered negative from an environmental point of view. coal plant is located immediately adjacent to town of Exshaw, and coal The -13- was issued." amendment, Board agrees. The The Board does not intend to go back and change a prior [38] that was subject to its own Statement of Concern, Notice of Appeal, and Judicial approval process. In Board's view, such an approach would not be in keeping with need Review for administrative certainty and fairness in licencing in accordance with section 2 of EPEA. in Board's view, approval holders should be encouraged to bring forth Furr, and upgrades to ir facilities without having to wait for a ten-year approval to improvements If Board were to give an interpretation to appeal provision that resulted in expire. approval being opened up and changed every time re was an amendment to entire this would act as a significant disincentive to such necessary improvements and approval, In Board's view, when an approval is amended, issues that are appropriately upgrades. 2. Tires to be included in hearing of appeals. We say this because coal is an issue that was not in Original Approval. If fact, Board notes that in. applications before contemplated Approval Holder said: AEUB, Solid fuel would have to be stored on site, as opposed to natural gas which is 'just would likely be located within approximately 50M from Exshaw School pile Church. and

18 any decision to move to an alternate fuel would require an extensive Obviously, process with stakeholders in Bow Valley. ''32 consultation Viewscape and Natural Surroundings 3. Applying same test, Board is of view that environmental effects [40] boundaries. It is Board's decision that for se appeals, viewscape is intended to mean Holder pointed to our previous decision in Bailey: 33 Board's view, purpose of a Notice of Appeal is to identify to "In and to or parties, issues or concerns that Appellant has with Board, Re: TransAlta Utilities Corp. (2002), 41 C.E.L.R. (N.S.) 102 (A.E.A.B.), (sub 33 Bailey et al. #2 v. nom. Norrn East Slopes Region, Environmental Services, Alberta Environment, re: TransAlta Utilities Dh'ector, Corporation), E.A.B. Appeal No , 077, 078, and R, paragraph 44. from burning coal on viewscape and environmental effects of burning coal on natural surrounding are appropriate issues to be included in hearing of se appeals. With respect to this issue, Board would like to provide some direction on [41] We are concerned that word "viewscape" as used by Parties has uncertain "viewscape." visible pollutants, blue haze and odour" as described in Notices of Appeal. As a "noise, issue of viewscape is to be limited to noise, visible pollutants, blue haze, and odour result, directly impacted by plant. 4. Greenhouse Gases The dispute between Parties with respect to including greenhouse gases as an [42] centers on fact that greenhouse gases are not expressly raised in three Notices of issue Appeal accepted by Board. The Appellants argued that greenhouse gases should be included as an issue because Notices of Appeal clearly deal with air quality, and greenhouse gases are an air quality impact that will result from burning of coal. The Appellants noted also that gases were identified in many of Statements of Concern as an issue and thus, it greenhouse come as no surprise to Director and Approval Holder if it is an issue included in should hearing of se appeals. An opposing view was presented by Approval Holder and Director, who [43] that re is a need for administrative finality and that it would be unfair and prejudicial argued to include greenhouse gases at this point in time. In support of ir position, Approval 32 Letter from Approval Holder to AEUB, dated May 8, 1998.

19 decision under appeal. It is clear from section 87(2) [(now section 95(2))] of Act [(EPEA)] that Notice of Appeal scopes issues that can be included which matters included in notice of appeal properly before it '...determine be included in hearing of appeal It is Board's view that if a will wishes to advance a concern or issue in hearing of an appeal, that party or issue must be raised in Notice of Appeal in at least very broad concem As a result, greenhouse gases will not be included as a general rule, those persons or groups wishing to intervene must meet "As tests: following ir participation will materially assist Board in deciding appeal providing testimony, cross-examining witnesses, or offering arguments by or evidence directly relevant to appeal; intervenor has a or interest in subject matter of appeal; intervenor will not tangible appellant or respondent; proposed intervenor will not repeat or duplicate evidence presented by or -15- in hearing of appeal. This section of Act provides that Board may terms." Applying Bailey, we decide that and inclusion of greenhouse gases in se [44] would be inappropriate and unfair because it was not included and argued in Notices appeals Appeal. The Board confirms principle of need for administrative finality. In support of our decision, Board notes that Notices of Appeal that were filed were very detailed, of well written, and technically sophisticated, and all Parties are represented by competent and experienced counsel. As noted by Appellants, issue of greenhouse gases was included in of Statements of Concern. As a result, inclusion of issue of greenhouse gases many reasonably ascertainable on part of Appellants. Finally and significantly, Board was notes that Parties reached an agreement as to which Notices of Appeal would be prosecuted and those matters will essentially be heard. an issue. B. Intervenor Requests As stated, Board has received two intervenor requests. The first is from [45] District of Bighorn and second is from Stoney Nakoda First Nation. Municipal [46] Rule 14 of Board's Rules of Practice provides that: unnecessarily delay appeal; intervenor in appeal is substantially supporting or opposing so that Board may know designation of intervenor as a appeal parties."

20 Municipal District of Bighorn 1. On March 19, 2002, in response to Board's Notice of Public Hearing, [47] Plant is located within Municipal District boundary and Municipal District wishes to present evidence regarding Exshaw Community Environmental Committee. So it should. On March 19, 2002, Board received an intervenor request from Stoney [49] First Nation. The Stoney Nakoda First Nation expressed view that neir Nakoda requested to intervene in se appeals to protect ir interests, and y identified ir right to use, occupy and control "Reserve Lands" and ir rights to Therefore, during Municipal District's presentation, Board will expect m to wher y support or oppose Approval before Board, indicate which portions of Approval indicate support and which portions of Approval oppose, or provide a satisfactory explanation as to why are y prepared to take a position. Until it is advised orwise, for purpose of establishing procedure for not Board will infer that Municipal District supports Approval. hearing, -16- Board received an intervenor request from Municipal District of Bighorn. 34 As stated, Taking se comments into account, vis fi vis Municipal District, Board [48] from what we know and in accordance with Rule 14, that Municipal District: (1) concludes be presenting evidence that is directly relevant to.matters included within appeals will Board; (2) being a local government, has by definition, a tangible interest in before matter of se appeals; (3) will not unnecessarily delay appeal; and (4) will not subject or duplicate evidence to be presented. Therefore, we grant Municipal District full repeat as an intervenor to address issues identified by Board as being included in standing of se appeals. In granting Municipal District full standing, Board confirms hearing that it would like to hear specific evidence from Exshaw Community Environmental which is chaired by Municipal District, as it relates to issues to be heard in Committee, appeals. 35 se 2. Stoney Nakoda First Nation nor Board have jurisdiction in this matter as it affects interests of Stoney Director First Nation. The Stoney Nakoda First Nation indicated that it is Her Majesty Queen Nakoda in Right of Canada that has jurisdiction. Notwithstanding, Stoney Nakoda First Nation "Traditional Lands", both of which In response to application by Municipal District to intervene, both Director and Approval 34 advise that y have no objections. Holder The 35 issue that does concern Board is that Municipal District has not taken a position with one to se appeals. As Rule 14 indicates, Board normally expects a party to clearly identify wher y respect support or oppose project.

21 [50] The first two issues duty to consult and requirement to obtain consent this Preliminary Meeting, Chairman offered Stoney Nakoda First Nation same to adjourn this matter and take duty to consult and or federal jurisdictional opportunity Court. However, Stoney Nakoda First Nation declined and indicated that y arguments Environment engaged in extensive consultation with Stoney Nakoda First Nation. The See: Footnote Preliminary Motions 37 Chipewyan Prairie First Nation v. Director, Bow Region, Regional Services, re: -17 are near Plant. Their intervention request went on to identify six "issues" that y wished to address in ir submissions. 36 The latter four issues are environmental issues that are included within issues to be considered at heating of se appeals. are not strictly environmental issues, at least not included within issues to be considered at hearing of se appeals. Therefore, with respect to se two issues, shortly before Board provided copies of our decision in Chipewyan Prairie First Nation, 37 a copy heating, which is attached as Appendix 3 to this decision. In Chipewyan Prairie First Nation, of Board considered its jurisdiction to consider duty to consult in some detaik The Board in that case that Court may be more appropriate forum to address se types concluded issues and Board adjourned Chipewyan Prairie First Nation case for a 30-day period of to permit Chipewyan Prairie First Nation to take matter to Court. During course of wished to proceed with this matter. To be sure, Stoney Nakoda First Nation intervened to protect ir interests. Counsel for Stoney Nakoda First Nation stated: I know that Stoney Nakoda Nation is aware that this Board will do "Well, that it can and I feel that that is primarily main reason why everything Nakoda Nation is, or has authorized me to appear here, is that y are Stoney that this Board will try to do best that it possibly can. If Stoney aware Nakoda First Nation feel that that wasn't case, n we may very well be in front of courts already dealing with this issue." In response to Stoney Nakoda First Nation's application to intervene, [51] advised Board that while she had no concerns with ir intervention, she was Director concerned with first two issues identified in ir application. In Director's view, Alberta Alberta Environment re: Enbridge Pipelines (Athabasca) lnc. (March 22, 2002), E.A.B. Appeal No ID.

22 relevant to matters included within appeals before Board; (2) has or may have a interest in subject matter of this appeal; (3) will not unnecessarily delay appeal tangible y only focus on issue to be addressed; and (4) will not repeat or duplicate because agreement in this regard, which Board affirms: Appellants shall file ir affidavits and submission by 4:30 pm on 1. 5, 2002; April Intervenors ( Municipal District of Bighorn and Stoney Nakoda 2. Nation) shall file ir affidavits and submissions by 4:30 pm on First 8, 2002; April Approval Holder shall file its affidavits and submission by 4:30 pm on 3. 12, 2002; April Director shall file her affidavits and submission by 4:30 pm on April 4. The Approval Holder also noted that had y chosen to, Stoney Nakoda First Nation could likely have 38 an appeal and that ir failure to do so should militate against allowing m to intervene. Furr, filed -18- Holder also advised of extensive consultation efforts with Stoney Nakoda First Approval 38 Nation. Taking se comments into account, Board concludes, in accordance with [52] 14, that Stoney Nakoda First Nation: (1) will be presenting evidence that is directly Rule evidence to be presented. Therefore, it is appropriate to grant Stoney Nakoda First Nation full standing as an intervenor to address issues identified by Board as being included in hearing of se appeals. C. Scheduling At request of Board, Parties discussed matter of schedule for [53] affidavits and submissions in preparation of hearing. The Parties reached an providing 2002; and 15, Appellants shall file ir rebuttal affidavits and submission by 4:30 5. pm on April 19, D. Miscellaneous Matters During course of Preliminary Meeting, Stoney Nakoda First Nation [54] Board that, in support of ir contention that it is federal crown that has advised Holder suggested that if Stoney Nakoda First Nation is permitted to intervene, n ir participation Approval be limited to presenting evidence and making submissions. should

23 Act of Parliament or regulation is to be exercised or performed by a federal authority in or to a project that is to be carried out in Canada and Minister is of opinion that relation in respect of which Indians have interests, lands Minister may refer project to a mediator or a review panel in accordance with section 29 Act of Parliament or regulation is to be exercised or performed by a federal authority in or to a project that is to be carried out on relation lands in a reserve that is set apart for use and benefit of a band and that is subject to (a) Indian Act, lands that are described in a land claims agreement referred to in section 35 of (b) Act, 1982 and that are prescribed, or Constitution lands. those The Minister shall not refer a project to a mediator or a review panel pursuant to (3) respect of federal lands referred to in paragraph (1)(b), federal authority having in of those lands, administration in respect of lands referred to in paragraph (1)(a) or (2)(a), council of band for (b) use and benefit reserve has been set apart, whose in respect of lands referred to in paragraph (1)(c) or (e) or (2)(b), party to (c) or claim representing aboriginal people or that party's successor, or agreement respect of lands that have been set aside for use and benefit of Indians pursuant to in referred to in paragraph (1)(d) or (2)(c), governing body established by legislation legislation, that agreed on anor manner of conducting an assessment of environmental effects of have on or outside those lands, as case may be. project The Minister shall consider wher to make a reference pursuant to subsection (1) or (2) (4) -19- in this matter, y had filed a petition in June 2001 with Federal Minister of jurisdiction pursuant to section 48 of Canadian Environmental Assessment Act, S.C. 1992, Environment c.37 ("CEAA")? Section 48 of CEAA permits Minister undertake an environmental Section 48 of CEAA provides: 39 Where no power, duty or function referred to in section 5 or conferred by or under any "(1) may cause significant adverse environmental effects on project lands in a reserve that is set apart for use and benefit of a band and that is subject to (a) Indian Act, (b) federal lands or than those mentioned in paragraph (a), lands that are described in a land claims agreement referred to in section 35 of (c) Act, 1982 and that are prescribed, Constitution lands that have been set aside for use and benefit of Indians pursuant to legislation (d) relates to self-government of Indians and that are prescribed, or that (e) an assessment of environmental effects of project on those lands. for Where no power, duty or function referred to in section 5 or conferred by or under any (2) lands that have been set aside for use and benefit of Indians pursuant to legislation (c) relates to self-government of Indians and that are prescribed, that Minister is of opinion that project may cause significant adverse environmental and outside those lands, Minister may refer project to a mediator or a review panel in effects accordance with section 29 for an assessment of environmental effects of project outside subsection (1) or (2) where Minister and governments of all interested provinces, and (a) (d) (a) on request of government of any interested province or federal authority

24 having administration of federal lands referred to in paragraph (1)(b); or signed by one or more persons each of whom has an interest in lands on project may cause significant adverse environmental effects, and which accompanied by a concise statement of evidence supporting (ii) of petitioner that project may cause significant adverse contention effects in respect of which a reference may be made pursuant to environmental (1) or (2). subsection At least ten days before a reference is made pursuant to subsection (1) (5) (2), Minister or give notice of intention to do so to shall proponent of project; (a) negotiation under its comprehensive land claims policy and that or Nunavut, have been withdrawn from disposal under Territorial Territories Act for purposes of land claim settlement, or Lands in case of land areas situated in a province, have been agreed on for (ii) by Government of Canada and government of province; and selection land areas that belong to Her Majesty or in respect of which Her Majesty has right to (b) and that have been identified and agreed on by Her Majesty and an Indian band dispose pursuant to specific claims policy of Government of Canada, or band (ii) treaty land entitlement. For purposes of this section, a reference to any lands, land areas or reserves includes a (7) to all waters on and air above those lands, areas or reserves." reference An environmental assessment of a project is required before a federal authority exercises "(1) of following powers or performs one of following duties or functions in respect of a one project, namely, where a is proponent of project and does any act or thing that commits federal (a) to carrying out project in whole or in part; authority makes or authorizes payments or provides (b) guarantee for a loan or any or form of a assistance to proponent for purpose of enabling project to be carried financial in whole or in part, except where financial assistance is in form of any out avoidance, deferral, removal, refund, remission or or form of relief from reduction, of any tax, duty or impost imposed under any Act of Parliament, unless that payment assistance is provided for purpose of enabling financial individual project an specifically name l in Act, regulation or order that provides relief to be carried 20 assessment notwithstanding that re are no formal triggers under CEAA. (Both Director and Lafarge advised that re are no section 5 triggers under CEAA.) 4 The Stoney Nakoda (b) on receipt of a petition that is (i) governments of all interested provinces; (b) any person who signed a petition considered by Minister pursuant to (c) (4); and subsection federal authority, in case of a reference to be made pursuant to paragraph (d) (1)(6). For purposes of this section, 'lands in respect of which Indians have interests' (6) means land areas that are subject to a land claim accepted by Govemment of Canada for (a) in case of land areas situated in Yukon Territory, Northwest (i) transfer to settle claims based on for an outstanding lawful obligation of Her Majesty towards an Indian (i) 40 Section 5 of CEAA provides: federal authority

25 Board may consider following determination wher Government has participated in a public review in respect of (b) out; administration of federal lands and sells, leases or orwise disposes of those has an approval or takes any or action for purpose of enabling project to be grants out in whole or in part. carried any or provision of this Act, Notwithstanding environmental assessment of a project is required before Governor in Council, an under a prescribed pursuant to regulations made under paragraph 59(g), issues provision permit or licence, grants an approval or takes any or action for purpose of a project to be carried out in whole or in part; and enabling federal authority that, directly or through a Minister of Crown in right of Canada, irrevocable decisions are made, before is, for purposes of this Act and regulations, except subsection (ii) and sections 20 and 37, responsible authority in relation to project, 11(2) shall consider applicable reports and comments referred to in (iii) 20 and 37, and sections where applicable, shall perform duties of responsible authority (iv) relation to project under section 38 as if it were responsible authority in relation to project for purposes of paragraphs 20(1)(a) and 37(1)(a)." in -21 First Nation advised that although nine months have passed, y have yet to receive a response from Federal Environment Minister. Of course, CEAA issue is potentially relevant to Board because sections [55] and 95(5)(b)(ii) of EPEA provide: 95(2)(b) Prior to conducting a hearing of an appeal, Board may, in accordance "(2) regulations, determine which matters included in notices of appeal with properly before it will be included in heating of appeal, and in making that matter under Canadian Environmental Assessment Act (Canada) The Board (5) shall dismiss a notice of appeal if in Board's opinion (b) Government has participated in a public review under (it) Canadian Environmental Assessment Act (Canada) in respect of all of matters included in notice of appeal." (c) or any interests in those lands, or u'ansfers adminis 'ation and con 'ol of those lands or interests to Her Majesty in right of a province, for purpose of enabling lands to be carried out in whole or in part; or project a provision prescribed pursuant to paragraph 59(0, issues a permit or licence, under (d) (2) (a) that Governor in Council take an action referred to in paragraph (a) in recommends to that project relation (b) shall ensure that an environmental assessment of project is (i) as early as is practicable in planning stages of project and conducted

26 This is potentially a jurisdictional question. The general intent of se sections of EPEA is to Board to hear se appeals. In or words, Board will not delay its proceeding to await a decision by Federal Government that may never come. However, Board requests that if of Parties become aware of any steps being taken under CEAA to unflertake a review, any are to advise Board immediatelyf y Adams, and Mr. JeffEamon: particulates; 3. monitoring and reporting Approval Clauses and ; permit only one public heating with respect to a project. However, based-on information provided by Parties, we conclude that no [56] review has been undertaken, and as a result, re is no jurisdictional impediment to CEAA IV. DECISION A. Issues to be Addressed at Hearing For reasons stated above, pursuant to section 95(2), Board will hear [57] issues as y relate to Notices of Appeal filed by Mr. James Kievit, Dr. Paul following SO2 emissions -Approval Clauses and ; 1. mercury and heavy metals; 2. human health impact assessment/vegetation assessment study Approval :30 and ; Clause any potential antagonistic environmental effects of burning tires and coal; 6. environmental effects of burning coal on viewscape (limited to 7. visible pollutants, blue haze, and odour); and noise, environmental effects of burning coal on natural surroundings. 8. [58] Greenhouse gases are not an appropriate issue for hearing of se appeals. [59] Pursuant to section 95(4), representations on or matters will not be permitted. 41 The Board notes that this is same request that it made of Parties in its letter of February 15, 2002, in response to Stoney Nakoda First Nation's first contact with Board requesting information.

27 The Municipal District of Bighorn and Stoney Nakoda First Nation are The Board requests that if any of Parties become aware of any steps being [62] under CEAA to undertake a review, y are to advise Board immediately. taken 23 BJ Intervenor Status [60] granted full intervenor status to address issues identified by Board. C. Scheduling The Parties shall submit ir affidavits and submissions in accordance with [61] reached by Parties at Preliminary Meeting. agreement D. Miscellaneous Dated on April 16, 2002, at Edmonton, Alberta. William A. Tilleman, Q.C. Chair

28 V, Appendix I Parties Agree -24-

29 -25-

30 -26-

31 VI. Appendix 2 Parties Do Not Agree

32 -28-

33 Appendix 3 Chipewyan Prairie First Nation Case ALBERTA APPEAL ENVIRONMENTAL Appeal No. THE MATTER OF sections 91, 92 and 95 of IN Protection and Enhancement Act, R.S.A. 2000, c. Environmental THE MATTER OF an appeal filed by Chipewyan Prairie IN Nation with respect to Approval issued on First as: Preliminary Motions re: Chipewyan Prairie First Nation v. Director, Bow Region, Cite Services, Alberta Environment re: Enbridge Pipelines (Athabasca) lnc. Regional 29 OI-llO-ID Procedural Decisi:on Date of Decision March 22, 2002 E-12; -and- 7, 2001, under Environmental Protection and December Act by Director, Bow Region, Regional Services, Enhancement Alberta Environment, to Enbridge Pipelines (Athabasea) Inc.

34 The Board received a alleged infringement of those rights; and alleged duty of Alberta Environment to Board asked for submissions from Parties The questions: on What steps, if any, have CPFN taken, since it first knew of request "1. Approval that is subject of this appeal, to enforce rights to for it now asks Board to give effect? which Given nature of rights CPFN seeks to enforce, and 2. of controversy between parties over existence, extent likelihood deal with se issues as opposed to ordinary courts, which to among or powers, power to grant appropriate interim possesses Alberta Environment to restrain granting of permission to proceed with pipeline against If such an injunction is granted, Board will immediately review it and consider project. Again, Board will be guided by decision of Court, whatever it may be. EXECUTIVE SUMMARY Notice of Appeal from Chipewyan Prairie First Nation (CPFN) with to an Approval issued under Environmental Protection and Enhancement Act to respect Pipelines (Athabasca) hac. for construction and reclamation of Enbridge pipeline near a Christina Lake, Alberta. CPFN asked for a Stay of Approval pending resolution of ir appeal. Alberta Environment argued that Board does not have jurisdiction or expertise to decide constitutional issues relating to: validity of alleged aboriginal and treaty rights of CPFN; consult with CPFN. On this basis, Alberta Environment argues that appeal should be dismissed. and consequences of those rights, why is Board appropriate forum relief?." its review of se submissions, Board has decided to adjourn request for Following a for 30 days to allow CPFN to commence an action in Court to enforce rights that y Stay are claiming, should y wish to do so. As part of such an action, CPFN can seek an order for a Stay in light of terms of such an injunction. CPFN may instead seek a request injunction requiring that consultation mandatory y are requesting be carried out. measures

35 May Mah-Paulson, Director, Bow Region, Ms. Services, Alberta Environment, Regional by Ms. Hear Veale and Ms. represented Hammermeister, Alberta Justice. Gloria Energy Corporation, represented PanCanadian Mr. Brian O'Ferrall, Bennett Jones. by BEFORE: William A. Tilleman, Q.C., Chair WRITTEN SUBMISSIONS: Appellants: Prairie First Nation, represented by Chipewyan Jeffi-ey Rath and Ms. Allisun Rana, Rath & Mr. Company. Director: Holder: Enbridge Pipelines (Athabasca) Inc., Approval by Mr. Stephen Lee, Borden represented Ladner Gervais. Intervenor:

36 I. BACKGROUND 1 DIS CUS S ION 4 Framework 4 Can Board Rule? 9 Should Board Determine this Constitutional Question? 13 III. DECISION 15 TABLE OF CONTENTS II. Ao B. C. The Duty to Consult 12 D. The Approval Holder's Objections..i.i 12 E.

37 [1] Environment [2] The Environmental Appeal Board ( "Board") received a Notice of Appeal and Board on January 17, 2002, and advised "...on July 3, 2001, Board routinely issued a that Appellants provide a submission with respect to ir Application for a Stay. requested Board's letter advised that: The Board decide that CPFN has presented sufficient argument for "Should to consider issuing a Stay, Enbridge Pipelines and Alberta Environment Board Environmental Protection and Enhancement Act, R.S.A 2000, c. E-12, replaced Environmental The and Enhancement Act, S.A. 1993, c. E-I 3.3 Protection January 1, on -1- BACKGROUND On December 7, 2001, Director, Bow Region, Regional Services, Alberta "Director") issued Approval ( "Approval") under ( Protection and Enhancement Act, R.S.A. 2000, Environmental E-12 ("EPEA") to Enbridge c. (Athabasca) Inc. ( "Approval Holder") authorizing construction and reclamation Pipelines a pipeline, being Christina Lake Pipeline Project, near Christina Lake, Alberta. of an Application for a Stay dated December 21, 2001, fi-om Chipewyan Prairie First Nation "Appellants" or "CPFN"). The Appellants provided furr information regarding ( of Appeal on December 27, Notice The Board acknowledged Notice of Appeal and Application for a Stay [3] on 27 and 31, 2001, respectively, and requested that Director provide records ( December "'Records") related to appeal. The Parties to this appeal were requested to provide Board with available dates for a mediation meeting and settlement conference or hearing. According to standard practice, Board wrote to Natural Resources [4] Board and Alberta Energy and Utilities Board asking wher this matter had Conservation been subject of a hearing or review under ir respective legislation. The Natural Resources Conservation Board responded in negative. The Alberta Energy and Utilities Board wrote to pipeline approval to Enbridge Pipelines (Athabasca) Inc. for Christina Lake Pipeline Project. The Board held no public hearing or review into this matter." In ir notice of appeal, Appellants requested that Board grant [5] Stay of a Approval until appeal is heard. The Board, by way of a letter dated December 31, 2001,

38 Director)] will be given [( opportunity to respond to CPFN's submission an to Board making its final decision respecting Stay. You should also prior that before Board will grant a Stay, it must be satisfied that CPFN has note (i.e. is directly affected) in this appeal." standing On January 14, 2002, Board received [7] letter from PanCanadian Energy a requesting intervenor status in this appeal. The Board acknowledged receipt of ("PanCanadian") On January 14, 2002, Board received Record from Director. /n [8] letter Director advised that: accompanying Director respectfully submits that CPFN's notice of appeal also raises "The factual and legal, issues that are not properly before Board since y complex outside scope of Board's jurisdiction and expertise to decide. are it is Director's position, that Board does not have Specifically, or expertise to decide constitutional issues regarding validity of jurisdiction alleged aboriginal and treaty rights of CPFN, alleged infringement of those rights and alleged duty to consult with CPFN. ''2 2 The Director's letter also advised: Director's position that EAB Appeal No should be dismissed pursuant to section and/or (iii) oft he Environmental Protection and Enhancement Act, R.S.A. 2000, 95(5)(a)(ii) E- c. (EPEA). In this regard, Director respectfully requests that 12 preliminary meeting be a a statement of concern in accordance with section 73 of Act and is directly affected submitted Director's decision. Section 73(2) of Act stipulates that by statement of concern must be a to Director within 30 days after last providing of notice submitted within any longer or specified by Director in notice. period Notice of Application for above-noted project The published in Fort McMurray Today was Edmonton Journal on Friday, September 7, The final date for submitting statements of and was October 8, CPFN submitted a letter to Director on November 6, 2001, concern one month after thirty day period established by section 73(2) of Act had approximately The Director rejected letter expired. a statement of concern. as 73(1) of Act also requires that Section person filing a statement of concern must be directly a To date, it appears that CPFN has not provided specific information to establish that affected. are in fact directly affected by Director's decision." y 95(5) of EPEA provides: Section Board (a) may dismiss a "The -2- On January: 11, 2002, Board acknowledged [6] with respect to Application for submission Stay. a receipt of Appellants' letter from PanCanadian and advised it would consider ir request. "It is to determine wher EAB Appeal No should be dismissed scheduled Director respectfully submits that Chipewyan Prairie First Nation (CPFN) has not filed The a notice of appeal for following reasons set out below. valid 91(1)(a)(i) of EPEA provides that Section appeal may be filed by a person who previously an notice of appeal if...

39 [9] On January 21, 2002, Board acknowledged receipt of Record and a copy was subsequently provided to Appellant, Approval Holder and PanCanadian. ha same warrant furr consideration of ir Stay request." The Board advised Parties that a preliminary meeting to deal with Stay and or preliminary issues would be held. On January 22, 2002, Appellants advised Board that co truction [10] on was ongoing and requested that consideration of.- Application for pipeline Stay be a letter, Approval Holder advised that a preliminary meeting in this matter would "...result in On January 29, 2002, Appellants advised Board that Preliminary [12] date of February 15, 2002 that was being discussed by Parties would be "...highly Meeting ha response, on January 29, 2002, Board wrote to parties and posed two [13] to Appellants: questions What steps, if any, have CPFN taken, since it first knew of request "1. Approval that is subject of this appeal, to enforce rights to for Given nature of rights CPFN seeks to enforce, and 2. of controversy between parties likelihood existence, extent over -3- Board advised Parties to this appeal that "...with respect to Stay request filed letter, Chipewyan Prairie First Nation (CPFN), CPFN has presented sufficient information to by conducted on an expedited basis. On January 25, 2002, Approval Holder asked Board to "...include [11] a of Alberta Justice's motion to dismiss EAB appeal No ". ha this consideration same more efficient use of parties' time and resources, avoid unnecessary expenses and afford Board opportunity to hear parties' submissions on all preliminary issues and how such issues may interrelate." prejudicial to constitutional rights of CPFN." which it now asks Board to give effect? and consequences of those rights, why is Board appropriate forum to deal with se issues as opposed to ordinary courts, which in case of a notice of appeal submitted under section 91(l)(a)(i) (ii) (ii), (g)(ii) or (rn), or is of opinion that person submitting notice of appeal is not directly affected by Board decision or designation, for any or reason Board considers that notice of appeal is not properly before it (iii)

40 among.or powers, power to grant appropriate interim possesses relief?." is required in order to set record straight and to ensure that Board is not misled by a Subject to subsection (2), submitting a notice of appeal does not operate to "(1) decision objected to. stay The Board may, on application of a party to a proceeding before (2) stay a decision in respect of which a notice of appeal has been Board, The Appellants are a First Nation located in vicinity of pipeline project [17] built by Approval Holder for PanCanadian. To construct such a pipeline, it is necessary being The Board..requested that Appellants and or Parties to this appeal respond to se and provide ir comments to Board by January 31, The Board questions received a telephone call from Appellants and, in a letter dated January 30, subsequently Board extended -submission deadline to February 1, , On February 1, 2002, Board received submissions from Appellants, [14] Approval Holder, and PanCanadian responding to questions posed in Director, letter of January 29, Board's On February 4, 2002, Board received a letter from Appellants which stated [15] acknowledge that we do not have an official right of reply, [however,] we feel a response "...we number of points raised in..." Director's letter. The Board acknowledged receipt of letter on February 5, 2002, and advised that furr correspondence would be forthcoming. II. DISCUSSION A. Framework The Board has before it an application by Appellants for a Stay of [16] for construction and reclamation of a pipeline called Christina Lake Pipeline Approval The Appellants want Stay pending hearing of appeal that y have Project. in this matter. If appeal is validly before Board, something both Director commenced and Approval Holder dispute, Board has power to grant a Stay of Approval. The power to grant a Stay is discretionary, and authorized by section 97 of EPEA which provides: submitted." to obtain an approval from Director.

41 EPEA provides for a public notice and consultation process before such approvals [18] issued. Once an approval is issued, persons who filed Statements of Concern with are question could have, or perhaps ought to have, made in first instance. counsel retained to represent Minister, or Crown in a more general sense, when separate for. called [21] for a EPEA section 99(1) of EPEA which provides: See case of a notice of appeal referred to in section 91(1)(a) to (m) of this Act Board "In within 30 days after completion of hearing of appeal shall submit shall report to a including its recommendations and representations or a summary of Minister, that were made to it." representations See section 100(1) of EPEA Director, but who feel ir concerns have not been adequately dealt with, are entitled to file and pursue an appeal before this Board. The Board, upon receiving such an appeal may, in end make a Report and Recommendations to Minister of Environment about what result, be done. 3 On receipt of such a Report and Recommendations, Minister may: should "(a) reverse or vary decision appealed and make any decision that confirm, person whose decision was appealed could make, make any furr order that Minister considers necessary for (c) of carrying out decision. ''4 purpose The scope of Board's Report and Recommendations is thus customarily to [19] a recommendation for a Ministerial decision in line with decision that Director in provide The Director, acting under EPEA, is a statutory delegate with [20] specific and a scope of authority, and specific responsibilities. Before Board (and if necessary limited before Courts) Director in question is customarily represented by her own counsel, with In this case, Approval Holder applied to Director for an approval under; Conservation The Approval Holder submitted a detailed application called a pipeline. Reclamation.Application. The Approval Holder published notice of and These notices called for application in newspapers circulating in area on September 7, submissions (Statements of Concern) to be made to Director within a 30-day time flame This recognizes that Board, and thus Minster, 5 well have benefit of additional information may fuller argument than was available to Dilector at time decision and initially made. (See section 95(2) was of EPEA.)

42 nor conceded in this case. In addition, Approval Holder and Director both allege proven Appellants failed to meet 30-day time limit for submitting ir Statement of that 91 (1)(a) of EPEA provides: Section notice of appeal may be submitted to Board by following persons in following "A circumstances: where Director issues an approval, makes an amendment, addition or deletion pursuant to (a) application under section 70(1)(a) or makes an amendment, addition or deletion pursuant to an 70(3)(a), a notice of appeal may be submitted section by approval holder or by any person who previously submitted a (i) of concern in accordance with section 73 and is directly affected by statement Director's decision, in a case where notice of application or proposed was provided under section 72(1) or (2) changes 73(1) of EPEA provides: Section notice is provided under section 72(1) or (2), any person who is directly affected by "Where setting out that person's concerns with respect to application or proposed concern addition, deletion or change." amendment, -6- by October.8, 2001) by those with concems. Valid Statements of Concern under EPEA (here Director to consider objector's position. They also create an entitlement to appeal. 6 oblige Section 73(1) of EPEA requires that person submitting a Statement of [22] must establish that y are "directly affected," a status that so far has neir been Concern Concern. It was only on November 6, 2001 almost 30 days after deadline had passed that Appellants wrote to Director raising objections to Approval, which had not, at that point, been granted. The objection as stated in Appellants' Statement of Concern, and asserted [23] in se proceedings, is that Appellants have a constitutional right to be consulted about again a of this nature and, in violation of that right and Crown's fiduciary duty towards project Crown in Right of Alberta has failed to consult, sufficiently or at all, with Appellants, Appellants about proposed approval. The Director was Of view that November 6, 2001 letter, being outside [24] provided timefi-ame, was not validly before her as a Statement of Concern. statutorily Noneless some correspondence ensued over Appellants' concerns. Ultimately, however, Director issued Approval on December 7, or proposed amendment, addition, deletion or change, including approval application in a case referred to in section 72(2), may submit to Director a written statement of holder

43 [25] Notice of Appeal describes details of decision objected to in following terms: decision does not address concerns that CPFN related to decision- "The with regard to potential impact project would have maker on to-hunt, trap and fish. The decision does not include mitigative rights measures in consultation with CPFN to ensure that ir treaty fights designed impacted are little as possible as required by law. Furr, decision was made without as fulfilling its constitutional obligation to consult with CPFN." Crown Federal Court of Canada, Trial Division in Mikisew Cree First Nation v. Director's position, put briefly, The that appeal is ineffective because it is not based is any valid Statement of Concern and on because Appellants have failed to establish ir "directly affected" status. However, on a broader note, as stated, Director goes on to say: Director respectfully submits that CPFN's notice of appeal also raises "The factual and legal issues that are not properly before Board since y complex outside scope of Board's jurisdiction and expertise to decide. are it is Director's position, that Board does not have Specifically, which is off-reserve land, has not been used for hunting. The Approval Holder's own consultation with Band Elders, it asserts, suggest ir traditional hunting grounds have been In addition, Approval Holder objects that Appellants [28] using appeal are an improper purpose. It alleges that Appellants for raising constitutional rights are 9 The Board has yet to formally determine status of PanCanadian. -7- On December 20, 2001, Appellants submitted ir Notice of Appeal. The environment and ability of members of CPFN to exercise ir treaty The Appellants cited in support of ir, claim, among or cases, recent, decision of Sheila Copps, Minister Canadian Heritage, and Thebacha Road Society. s of The respondents in this appeal, [26] far, are Director and Enbridge. 9 The so Crown, through Attorney General, has not been notified. or expertise to decide constitutional issues regarding validity of jurisdiction alleged aboriginal and treaty rights of CPFN, alleged infringement of those and alleged duty to consult with CPFN." rights The Approval Holder raises quite different [27] It too relies on lack of concerns. status and un-timeliness. However, it goes on to suggest it has evidence that land in question, confined to an area north of proposed project. Mikisew Cree First Nation 8 Sheila Copps, Minister of Canadian Heritage, and Thebacha Road v. [2001] FCT 1426, [2001] F.C.J. No. 187, [2002] C.N.L.R Society,

44 only to slow down regulatory approval process. This is to increase ir bargaining argument in an effort to secure a sole source labour supply agreement with Approval Holder for power project. The Approval Holder objects to Board's processes being used in such a manner. The right Appellants [29] asserting is not a right that springs from EPEA. are it is a claim to a broader and constitutionally entrenched aboriginal and treaty right. It is Rar, existing aboriginal and treaty rights of aboriginal peoples of Canada "The are recognized and affirmed." hereby Before deciding existence, scope [31] breach of an alleged duty of consultation, or must first determine existence and infringement of asserted aboriginal rights. one The Appellants do not [32] processes under EPEA as being appropriate see for Crown to fulfill its duties towards m. Instead, y argue Crown's fiduciary way calls for a separate process. The Appellants argue that consultation by Crown, with duty Nations such as mselves, is an essential prerequisite to granting Approval. It is not First The Director relies upon time limits and or statutory and regulatory [33] that flow from EPEA to support her position that appeal is untimely and that procedures Appellants have failed to establish that y are directly affected. The Appellants' answer is that 403, [2000] O.J. No. 1066, [2000] 3 C.N.L.R. 153 (Ont.C.A.). See also: Haida Nation (4th) British Columbia v. of Forests), [2002] BCCA 147, [2002] B.C.J. No (Minister -8- We caution that Board is making no finding whatsoever-on this point, given preliminary state of proceedings. a right that, if established, would fall under umbrella of section 35(1) of Constitution Act, This section provides: The Appellants furr assert that alleged duty to consult is a part of [30] an constitutionally entrenched section 35(1) right existing part of a broad fiduciary duty owed by or Provincial Crown to Appellants. that Director failed to consult saying a part of statutory approval process, but that as approval process and any resulting approval are invalid if it trenches upon statutory Appellants' broader rights. See: Taku River Tlingit First Nation 0 Tulsequah Chief Mine Project, [2002] BCCA 59, [2002] B.C.J. No. v. but 155; Ontario (Minister of Municipal Affairs and Housing) v. TransCanada Pipelines Ltd. (2000), 186 D.L.R. see

45 consulted and not, refore, to be constrained by time limits and statutory separately EPEA imposes. The Appellants do not accept that Director's consultation under procedures Rar, Appellants argue that Approval cannot be given at all until separate consultation So far this has only been a summary review of Parties' main points. What [34] seek through ir Application for Appellants Stay is what amounts to an. interim injunction a pipeline construction from proceeding pending determination if appeal. prohibiting Appellants seek to accomplish this indirectly by staying Approval that is necessary for The Does this Board have authority to adjudicate all issues necessary to 1. this matter? determine Assuming Board has sufficient statutory authority to do 2. (and all our so arises solely from statute), is Board appropriate forum for authority exclusive) does not mean that it should rule on such issues if anor forum can provide a fuller rights issues. have established test to determine when a tribunal's statutory authority is sufficient to vest it with authority to decide a Charter matter. 11 Section 52(1) of Constitution Act, 1982 provides: -9- right it claims, to be consulted, is not one arising from statute at all. It is a right to be EPEA, or indeed any resulting appeal hearing, will constitute required consultation. occurs. development to proceed. [35] The Director's objection requires Board to assess two questions: se issues? resolving finding that Board can rule on such issues (assuming its jurisdiction in matter is not. A or fairer process. These are administrative and constitutional law issues rar than aboriginal no Can Board Rule? The Courts have ruled that [36] administrative tribunals do have mandate to some upon Charter and constitutional questions that arise in rule of ir proceedings. They course No administrative tribunal has [37] independent source of jurisdiction pursuant to an 52(1) of Constitution Act, I The essential question facing section Court is wher a

46 of law. If a tribunal does have power to consider questions of law, n it follows questions operation of section 52(1) that it must be able to address constitutional issues, including by until Crown (in fullest sense and not just Director) has met whatever its granted obligation may be. constitutional underlying an administrative tribunal's jurisdiction to consider principles of its enabling statute [T]he inquiry must begin with constitutionality an of mandate given to particular tribunal by legislature. examination If a tribunal does have power to consider questions of law, n it [46] by operation of s. 52(1) that it must be able to address constitutional follows including constitutional validity of its enabling statute. This principle issues, agree that re is no provision in Act that expressly confers on parties a general power to consider questions of law. There being no such Commission authority, it becomes necessary to determine wher Parliament has express it implicit jurisdiction to consider such questions. As stated in Cuddy granted tribunal by its enabling statute or orwise. This fundamental holds true regardless of nature of issue before principle body. Thus, a tribunal prepared to address a administrative issue must already have jurisdiction over whole of Charter Constitution of Canada is supreme law of Canada, and any law that is inconsistent with "The provisions of Constitution is, to extent of inconsistency, of force or effect." no Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22, 81 D.L.R. (4th) 358; and Cooper v. v. (Human Rights Commission), [1996] 3 S.C.R. 854, 140 D.L.R. (4th) 193. Canada 3 Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, 140 D.L.R. (4th) 193 at p. 45. administrative tribunal, through its enabling statute, has been granted power to determine constitutional validity of its enabling statute. 2 The question in this case is not directly about constitutional validity of [38] a ofepea. EPEA can co-exist with Appellants' position so long as provision approvals are no The Supreme Court of Canada in Cooper 3 said following about [39] an tribunal's authority to consider Charter matters: administrative In three prrvious cases, Douglas College, supra, Cuddy Chicks, supra, "[45] Tetreault-Gadoury, supra, this Court has had opportunity to address and clearly enunciated by this Court in Cuddy Chicks, supra, at pp was is no doubt that power to consider questions of law can be bestowed on There an administrative tribunaleir explicitly or implicitly by legislature. All supra, at p. 14: Chicks, must have expressly or impliedly been conferred on [J]urisdiction See: Douglas/Kwantlen Faculty Association 2 Douglas College, [1990] 3 S.C.R. 570, 77 D.L.R. (4th) 94; v. Chicks Ltd. v. Ontario (Labour Relations Board), S.C.R. 5, 81 D.L.R. (4th) 121; T treault-gadoury Cuddy

47 In considering wher a tribunal has jurisdiction over parties, [47] matter before it, and remedy sought by parties, it is appropriate to subject take into account various practical matters such as tribunal, procedure before tribunal, appeal route from of and ext ertise ofihe tribunal. These practical considerations, in so far tribunal, y reflect scheme of enabling statute, provide an insight into as given to administrative tribunal by legislature. At same time mandate may be pragmatic and functional policy concerns that argue for or against re tribunal having constitutional competence, though such concerns can never intention of legislature." supplant The Courts have already considered wher this Board can rule on questions of [40] ].n Director, Prairie Region, Environmental Service, Alberta Environment 14 Environmental Appeal Board v. Foods (Canada) Ltd. (2000), 22 C.E.L.R. (N.S.) 258 (Alta.Q.B.), Court held at paragraph 20 that: andmccain result of pragmatic and functional analysis [as set out in Union des employes de service "The 298 v. Bibeault [1988] 2 S.C.R. 1048] leads to conclusion that that Board does have Loc. jurisdiction to consider and recommend to Minister wher or not Director acted his jurisdiction in including Condition in approval. The Act gives Board broad within and Minister to deal with se issues through strong privitive clause. There is no Board why Board should not be able to decide preliminary question of jurisdiction to hear reason an appeal." such also: Kostuch v. Alberta (Director, Air and Water Approvals Division, Environmental Protection) (1997), 21 See ('N.S.) 257 (Alta. Q.B.); Chem-Security (Alberta) Ltd. v. Environmental Appeal Board (Alberta) (1997), 22 C.E.L.R. 141 (Alta.Q.B.), Medhurst J.; and Chem-Security (Alberta) Ltd. v. Environmental Appeal Board C.E.L.R.(N.S.) (1997), 23 C.E.L.R.fN.S.) 165 (Alta.C.A), Berger J.A. (Alberta) But 15 Paul v. Forest Appeals Commission, [2001] BCCA 411, [2001] B.C.J. No. 1227, [2001] 4 see: 210. In this case Mr. Paul cut three trees, possessed four trees, and claimed he had an aboriginal right to C.N.L.R. trees. This cutting and possession was without authorization under British Columbia Forest Practices Code. British Columbia Court of Appeal reasoned that a determination of this question by Forest Appeals The was unconstitutional because Legislature cannot grant authority to determine matters under section Commission of Constitution Act, This case determined that Legislature of British Columbia had 91(24) no capacity to confer upon British Columbia Forest Appeals Commission (or District Forest constitutional of Forest Appeals Commission. powers 91 (24) of Constitution Act, 1867 provides: Section before it, namely, parties, subject matter and remedy matter sought. composition and structure law that properly arise in its proceedings. The latest statement to that effect is contained in Prairie Region, Environmental Service, Alberta Environment v. Alberta Environmental Director, Board and McCain Foods (Canada) Ltd. TM While EPEA contains.no express provision to Appeal that effect, Courts have held it to be implicit in Board's statutory mandate. 5 powers on appeal which are not specifically limited. The Board is an expert tribunal established to consider appeals from environmental approvals. The Legislature has signalled its intention for or Administrative Review Panel) jurisdiction to decide questions of aboriginal rights and title, Manager questions of entitlement, infringement and justification, and past extinguishment when deciding appeals including about alleged violations of British Columbia Forest Practices Code. This case was determined on question of application of Division of Powers under Constitution Act, 1867 rar than scope of quasi-judicial