Date of Decision - May 23, 1997
IN THE MATTER OF Sections 84, 85, 86, 87 and 90 of the Environmental Protection and Enhancement Act, (S.A. 1992, ch. E-13.3 as amended);
IN THE MATTER OF an appeal filed by Bill Lucey, Confederation of Regions Political Party (Federal) dated April 1, 1997, with respect to Amending Approval No. 11115-02-04 (OS-4-94) issued to Amoco Canada Petroleum Company Ltd. (Amoco), by Mr. Larry Brocke, Director, Land Reclamation Division, Department of Environmental Protection on March 27, 1997.
Cite as: Lucey v. Director of Land Reclamation, Alberta Environmental Protection.
Mr. Bill Lucey, leader of the Confederation of Regions Political Party (CORE), filed a notice of appeal with the Environmental Appeal Board (Board) on April 10, 1997. Mr. Lucey objected to Amending Approval No. 11115-02-04 (OS-4-94) issued to Amoco Canada Petroleum Company Ltd. (Amoco) by Mr. Larry Brocke, Director, Land Reclamation, Department of Environmental Protection (Department) on March 27, 1997. The appeal was filed within the 30 day time limit prescribed by section 84(4)(c) of the Environmental Protection and Enhancement Act (Act).
The Approval issued to Amoco was an amendment of an earlier Approval. The Amending Approval is for the construction, operation and reclamation of the multi well drilling pads in Sections 15, 21, 22, 27, 28, 33 and 34 Township 67, Range 4, West of the 4th Meridian (Primrose Commercial Project) and SW 1/4 of Section 2, Township 66, Range 5, West of the 4th Meridian (Wolf Lake Commercial Project) and associated infrastructure (access roads, pipelines, etc.).(1)
On April 10, 1997, the Board informed Amoco Canada Petroleum Company Ltd., that an appeal had been filed by Mr. Lucey and provided them with a copy of Mr. Lucey's appeal.
After receiving Mr. Lucey's written appeal, the Board, in a letter dated April 28, 1997, asked Mr. Lucey to respond to the following questions:
- Explain how you are "directly affected" by the decision issued by the Director [regarding Approval No. 11115-02-04].
- Explain in more detail the environmental concerns you have with the decision issued by the Director [regarding Approval No. 11115-02-04].
- Explain in detail the purpose that a two year halt would serve to this project and the impact on the environment.
The Board asked both the Department and Mr. Lucey to respond to the following:
- In the event that the Board decides to proceed with this appeal, do you wish to have a mediation meeting under section 11 of the Environmental Appeal Board Regulation? If so, what would you contemplate to be the agenda for that meeting?
- In your opinion, are there any other persons who have an interest in this matter?
A portion of this letter stressed the need to provide further information and to be as thorough as possible.(2)
Responses were requested and received by all parties by May 12, 1997.
According to standard practice, on April 28, 1997, the Board also wrote to the Alberta Energy and Utilities Board (AEUB) and the Natural Resources Conservation Board (NRCB) requesting that both advise whether the matter was the subject of a public hearing or a review under either of their legislation. In a letter dated April 29, 1997, the NRCB advised that the appeal did not deal with a matter that had been the subject of any hearing or review under their Board. On May 1, 1997, the AEUB replied with a qualified answer.(3)
The Board identifies the primary issue in this appeal to be whether Mr. Lucey or CORE is directly affected by the Director's decision. A secondary issue is whether or not he responded adequately to the Board's written request for additional information.
THE BOARD'S CONSIDERATIONS
Is Mr. Lucey or CORE directly affected and therefore properly before the Board?
The Board received information from Mr. Lucey in two instalments: (1) his first written objection and a copy of an article published in The Financial Post by Mr. John Geddes un-dated (the "first submission"); and (2) supplementary material provided to the Board on May 8, 1997 (the "second submission").
As noted above, the Board asked Mr. Lucey to respond to a number of questions. These questions were, along with his reply, as follows:
Q1. Explain how you are "directly affected" by the decision issued by the Director in the above noted approval.
Reply: "(A1) with leaking oil well caseings [sic] at these vast sites, we compare this area to a 'war zone' with irreparable environmental damage, (Gas cap problems must be resolved also) (RULE 17-B)"
Q2. Explain in more detail the environmental concerns you have with the decision issued by the Director in the above noted approval.
Reply: "(A2) we are contemplating a class action law suit [sic] in [sic] behalf of all Albertans, for the total assets of all produceing [sic] companys [sic] operating in this area of Alberta."
Q3. Explain in detail the purpose that a two year halt would serve to this project and the impact on the environment.
Reply: "(A3) according to Dr. David Suszuki [sic] (Nature of Things program) Vancover [sic] B.C., Northern Alberta has reached at [sic] "no return" point because of industrial activety [sic]."
Q4. In the event that the Board decides to proceed with this appeal, do you wish to have a mediation meeting under section 11 of the Environmental Appeal Board Regulation? If so, what would you contemplate to be the agenda for that meeting?
Reply: "B1 - yes - general"
Q5. In your opinion, are there any other persons who have an interest in this matter?
Reply: "B2 - yes, all thinking Albertans, its their country, Amoco lives in Indiana U.S.A."
Considering Mr. Lucey's replies to the Board's questions, the Board does not see how he can be deemed to be directly affected. In fact, his statement that the specific environmental issue is a "war zone" leaves a clear impression that his focus broaches policy or political issues beyond the specific environmental matter potentially raised by this Amending Approval.
Mr. Lucey obviously believes all Albertans are affected by this Amending Approval. Yet surely, from an environmental perspective, the effect on different Albertans (in different cities, for example) is distinguishable from the effect on him. As Amoco points out in its written response, Mr. Lucey lives 500 km from the site. Further, there is nothing in the information we have that suggests Mr. Lucey uses the area covered by this Amending Approval nor do we have any information that other members of CORE are affected by this Amending Approval, assuming, for purposes of argument, that members of a political party are capable of being directly affected on the basis of policy considerations.
The Board concludes that neither Mr. Lucey or CORE are directly affected. Last year, the Honourable Mr. Justice Marceau discussed the Board's test on directly affected:
"Two ideas emerge from this analysis about standing. First, the possibility that any given interest will suffice to confer standing diminishes as the causal connection between an approval and the effect on that interest becomes more remote. This first issue is a question of fact, i.e., the extent of the causal connection between the approval and how much it affects a person's interest. This is an important point; the Act requires that individual appellants demonstrate a personal interest that is directly impacted by the approval granted. This would require a discernible effect, i.e., some interest other that the abstract interest of all Albertans in generalized goals of environmental protection. 'Directly' means the person claiming to be 'affected' must show causation of the harm to her particular interest by the approval challenged on appeal. As a general rule, there must be an unbroken connection between one and the other."(4)
Mr. Lucey does not meet the first part of the test referred to by the court. His interest in the Amending Approval is either political or representative as an agent for others who intend to bring a class action. If true, his forum is either political or judicial, but not administrative. The legislation under which we operate specifically requires individual appellants to demonstrate a personal interest with a direct link to the decision appealed.
DECISION OF THE BOARD
Mr. Lucey's notice of appeal does not meet any of the criteria necessary for the Board to continue its jurisdiction. Specifically, Mr. Lucey fails to raise specific environmental matters related to Amoco's Amending Approval; he has failed to provide written comments to the Board to substantiate his concerns and assist the Board in better understanding his appeal; he has not shown that either he or the Confederation of Regions Political Party (Federal) or any of its members are plausibly directly affected by the Director's decision.
This appeal is dismissed.
Dated on May 23, 1997 at Edmonton, Alberta.
Dr. William A. Tilleman
(1) The following terms and conditions apply:
- Subsection 3.2.1 (a)(ii) [of the original Approval] is repealed and the following is substituted: 3.2.1 (a)(ii) the sixteen 52.7 MW steam generator exhaust stacks.
- Subsection 3.2.1 (b)(iv) [of the original Approval] is repealed and the following is substituted: 3.2.1 (b)(iv) the 29 MW boiler exhaust stack.
(2) For example, the Board stated:
"You should be aware that the Board has the ability to dismiss an appeal if you do not provide us with all of the information which we need and which we seek at this time. Accordingly, please answer all of the questions as thoroughly as possible and send them to this office within the deadline. Failure to respond to this request may result in the Board's dismissal of your appeal."
"The Board must decide whether there are issues raised in this matter which will be included in any hearing of the appeal. This is your opportunity to address that issue. A failure to address this issue adequately may result in the Board deciding, without further notice, that some or all of the issues raised will not be included in the appeal."
(3) The AEUB stated in their letter:
"Further to 28 April 1997 letter, the above noted project was approved by the Alberta Energy & Utilities Board (EUB) on 3 April 1997 pursuant to Amoco's EUB application number 960958, without a hearing but with the approval of the Lieutenant Governor in Council. A copy of that approval is attached to this letter.
Also attached are copies of correspondence relating to Mr. Lucey's objections to the said project. As you will read, the EUB determined that Amoco provided satisfactory responses to Mr. Lucey's "broken and leaking oil well casings" and other concerns, and subsequently dismissed Mr. Lucey's objections under section 17(b) of our Rules of Practice, A.R. 149/71, as amended."
(4) Martha Kostuch v. The Environmental Appeal Board and the Director of Air and Water Approvals Division, 35 Admin L.R. (2d) 160 (Q.B. March 28, 1996); the original decision is found at 17 C.E.L.R. (N.S.) 246 (EAB, August 23, 1995).