Preliminary Meeting: May 1 and May 6, 1997
Date of Decision - May 13, 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 Ms. Selma Kelm with respect to Approval No. 639-01-04 issued by the Director, Air and Water Approvals Division, Alberta Environmental Protection to the Mayor, City of Edmonton.
Cite as: Selma Kelm v. Director of Air and Water Approvals Division, Alberta Environmental Protection.
PRELIMINARY MEETING BEFORE:
Dr. John P. Ogilvie, Panel Chair
Dr. Ted W. Best
Mr. Ron Peiluck
(May 1, 1997) Appellant: Ms. Selma Kelm
Other Parties: Director, Air and Water Approvals Division, Alberta Environmental Protection, represented by Mr. Asoke Weerasinghe, and Mr. William McDonald (counsel).
Mr. Darrell Lopushinsky, City of Edmonton Law Department; Mr. John Cairns and Ms. Katherine O'Connell, Drainage, City of Edmonton.
(May 6, 1997) Appellant: Ms. Selma Kelm
Other Parties: Director, Air and Water Approvals Division, Alberta Environmental Protection, represented by Mr. Asoke Weerasinghe, Mr. Larry Williams, and Mr. Raymond Bodnarek (counsel).
Mr. John Cairns and Ms. Katherine O'Connell, Drainage, City of Edmonton
On March 26, 1997, the Director of Air and Water Approvals, Alberta Environmental Protection issued Amending Approval No. 639-01-04 (Approval) amending an existing approval to the City of Edmonton for the planning, design, construction and operation of a drainage system to include: a class IV wastewater (sanitary sewage) treatment plant, a class IV wastewater (sanitary sewage) collection system, and stormwater drainage system. The Approval was amended and stated as follows:
Department of Environmental Protection and Enhancement Act Approval No. 639-01-00 is hereby further amended as follows:
1.The storm drainage system shall consist of,
(a) a storm water collection system
(b) existing and proposed storm water management lakes and storage facilities as listed in Appendix II, [of Approval 639-01-00].
(c) existing and proposed storm outfalls to the North Saskatchewan River and its tributaries as listed in Appendix III, [of Approval 639-01-00].
2.The approval holder shall construct the storm water pond and drainage improvements to Fulton Creek as part of the construction/extension of Whitemud Drive to Highway 14, (Fulton Creek at Whitemud Drive and 17th Street) according to the plans and specifications as per the plans and reports received from the City of Edmonton on October 2 and December 5, 1996 and January 29, March 17 and March 21, 1997.
3.If construction does not commence on or before November 1, 1998 the approval holder shall apply to the Director and receive an amendment to this approval prior to commencing construction.
On April 9, 1997, Ms. Selma Kelm of Edmonton, filed an appeal of the Amending Approval with the Environmental Appeal Board (Board).
The Board advised the Director and the City of Edmonton that the Amending Approval had been appealed, and the Director was asked to provide copies of the application and the Approval. On April 14, 1997, the Board wrote to the Natural Resources Conservation Board (NRCB), and the Alberta Energy and Utilities Board (AEUB) asking whether the matter was the subject of a public hearing or review under their Boards.
Responses were received from both the NRCB and the AEUB informing the Board that the matter had not been the subject of a review or hearing under their Boards.
The Appellant also requested in her appeal that a Stay of the decision be granted until a public hearing was held.
THE PRELIMINARY MEETING
The Board held a preliminary meeting on May 1, 1997. The purpose of this preliminary meeting was to deal with the jurisdiction of the Board to hear the issues raised by the Appellant, and accordingly, whether or not the Board should proceed with consideration of the appeal or with the request for a Stay. This meeting was held pursuant to s. 87 of the Act.
Following this meeting the Board requested that all parties re-convene on May 6, 1997, to further supply the Board information on the following issues:
- Clarification on the exact location of Ms. Kelm's property relative to Mill Creek, and;
- The purpose, use and/or enjoyment of that property by Ms. Kelm, and how the amending approval directly affects her.
SUBMISSIONS BY THE PARTIES
On May 1, 1997, and more specifically on May 6, 1997, Ms. Kelm responded to the question of directly affected. She claimed that the project would directly impact on the enjoyment of her property and the nature of the community in the Mill Creek area. Ms. Kelm expressed further concerns about the effects that may occur to the Mill Creek Ravine, that she overlooked the Creek, and that she used the Creek for recreation and personal enjoyment. She also raised the issue of having a water well at her Fulton Creek residence that might be impacted by the wet pond proposed for the Whitemud Drive drainage system. Her residence is approximately one and a half kilometers northeast of the proposed wet pond.
The City responded to the Board's question on May 1 and May 6, 1997, by stating that it did not believe that the Appellant would be directly affected by the project. This position was based on the information that Ms. Kelm's residence near Fulton Creek was upstream of the proposed location of the wet pond and that there was enough of a clay barrier that which provide itself as a liner, decreasing any seepage that may occur. The City also based its position on the distance between Ms. Kelm's residence near Fulton Creek and the proposed location of the wet pond. Further, the City pointed out that Ms. Kelm's property in the Mill Creek area is across the street from the Ravine which is City property, not hers.
The Director took a formal position regarding Ms. Kelm's standing stating that she was not directly affected as she had a more general public interest in the matter. Also, the effect of the Amending Approval did not bear any effect on the Mill Creek property due to the wet pond's location in the County of Strathcona. The Director felt there would be no causal effect from the wet pond to the Ravine.(1)
This would restrict the jurisdiction of the Board then to only deal with the issues dealt with through the Act, and not those dealing with the Water Resources Division.
It is the submission of Ms. Kelm that her geographic proximity should satisfy any test of "directly affected" required or established by this Board as her Mill Creek property is separated by a public road and is only 11 metres of public land from the top of the Ravine containing Mill Creek.
The Board identifies the following preliminary issues in this appeal:
- Is the Appellant "directly affected" by the Director's decision to issue the Approval?
- Should the Board grant a Stay of the Director's decision?
Thus, before proceeding with the merits of Ms. Kelm's appeal, including the Stay, the Board must decide whether or not she is directly affected by the Director's decision to issue the Amending Approval to the City of Edmonton.
CONSIDERATIONS OF THE BOARD
Ms. Kelm filed her appeal pursuant to section 84(4) of the Environmental Protection and Enhancement Act (the "Act") which is the section setting out the time limits for filing a notice of objection. Section 84 (1)(a)(v) of the Act states that a notice of objection may be submitted:
by the approval holder or by any person who is directly affected by the Director's decision, in a case where no notice of the application or proposed changes was provided by reason of the operation of section 69(3).
There is no simple test to determine whether a person is directly affected within s. 84 of the Act. This Board has stated in Fred J. Wessley v. Director of Environmental Protection,(2) this determination must be made on a case by case basis, taking into account the particular facts and circumstances of each appeal.
In Dr. Martha Kostuch v. Director, Air and Water Approvals Division, Alberta Environmental Protection(3), the Board reviewed the principles and authorities concerning the meaning of "directly affected". The Board stated that the word "directly" requires an appellant to establish that a direct personal or private interest of an economic, environmental or other nature is likely to be impacted or caused proximately by the approval in question. The impact or proximate cause on the appellant must be greater than on the general public. Generalized concerns or grievances will not be sufficient. The Board concluded its analysis by stating:
"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 than 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.
Second, a person will be more readily found to be "directly affected" if the interest in question relates to one of the policies underlying the Act. This second issue raises a question of law, i.e., whether the person's interest is supported by the statute in question. The Act requires an appropriate balance between a broad range of interests, primarily environmental and economic."(4)
The first paragraph of the passage was quoted with approval by Marceau J. in a judicial review application(5) brought to challenge the Board's decision on "directly affected" in the Dr. Martha Kostuch appeal. The court was satisfied that the Board applied the correct test(6) and dismissed the application.
The Board's interpretation of "directly affected" was influenced by the January 1996 decisions of the Alberta Court of Appeal in CUPE Loc. 30 et al v. W.M.I. Waste Management of Canada Inc.(7);
and Friends of the Athabasca Environmental Association et. al v. Public Health Advisory and Appeal Board.(8) In these cases, the court considered the meaning of s. 4(2) of the Alberta Public Health Act which gives a person who is "directly affected" by a decision of a local board of health, the right to appeal to the Public Health Advisory and Appeal Board. In the W.M.I. case, the court stated:
"The phrase 'directly affected' must mean something more than "affected". However, it cannot be given an expanded meaning simply by virtue of expanding social consciousness: Canada (A.G.) v. Mossop (1993) 100 DLR (4th) 658 (SCC).
In our view, the inclusion of the word "directly" signals a legislative intent to further circumscribe a right of appeal. When considered in the context of the regulatory scheme, it is apparent that the right of appeal is confined to persons having a personal rather than a community interest in the matter."(9)
Further, in both cases the Court of Appeal rejected the view that notwithstanding the words "directly affected", standing to appeal could be based on the principles of discretionary public interest standing that were outlined by the Federal Court in Friends of the Island v. Canada (Minister of Public Works).(10) In the Friends of the Athabasca case, the Court of Appeal stated:
"The Appellants urge the application of the principle in Friends of the Island, which held that courts have a broad discretion to grant standing to apply for judicial review. We specifically rejected that proposition in WMI Waste Management. The mandate of an administrative tribunal and its legal process must be construed in accordance with the legislative intent. In our view, that intent is clear. The use of the modifier "directly" with the word "affected" indicates an intent on the part of the Legislature to distinguish between persons directly affected and indirectly affected. An interpretation that would include any person who has a genuine interest would render the word "directly" meaningless, thus violating fundamental principles of statutory interpretation: Subilomar Properties (Dundas) Ltd. v. Cloverdale Shopping Centre Ltd. (1973) 35 DLR (d) 1 (SCC) at 5. An interpretation that would import expanding concepts of judicial discretion, contrary to the intention of the Legislature, would engage the sort of interpretive exercise expressly rejected by the Supreme Court in Canada (Attorney-General) v. Mossop (1993) 100 DLR (4th) 658 at 673."(11)
Persons who file notices of objection bear the onus of establishing that they are directly affected by the application.(12) However, in Hazeldean Community League and Two Citizens of Edmonton v. Director of Air and Water Approvals, Alberta Environmental Protection,(13) the Board found it important to note, that in special circumstances this onus may be discharged without proof of direct causation.
Our task is to determine at this preliminary stage of the proceeding whether on a balance of probabilities there is a potential, that is, a reasonable possibility, that the Appellant will be directly affected by the application.
In order for a non-approval holder to have standing to appeal to this Board, one must be directly affected by the decision made by the Director and by the specific activity approved by the Director.
To be directly affected under section 84(1)(a)(v), this Board believes the person who appeals must have a substantial interest in the outcome of the approval that surpasses the common interests of all residents who are affected by the approval (see the Board's earlier decision in Maurice Boucher v. Director, Alberta Environmental Protection). "Directly affected" depends upon the chain of causality between the specific activity approved (the wet pond) and the environmental effect upon the person who seeks to appeal the decision.
In our opinion, the facts underlying Ms. Kelm's appeal retard the establishment of a causal connection between the wet pond and the associated drainage system and herself. First, her residence is located approximately one and a half kilometres northeast of the wet pond and upstream of it.
Second, her land along Mill Creek does not border the Creek or the associated Ravine. Her property is actually some 30 horizontal metres from the edge of the Creek. There is a roadway plus some 11 metres of city-owned land between her property and the edge of the Ravine, and the City owns the banks of the Ravine. The Board does not see how the use and enjoyment of her Mill Creek property is sufficiently related to the wet pond, or dependent upon the water quality or quantity of the Mill Creek. While she walks along the paths beside the Creek and her enjoyment of these walks may well be affected by the drainage system and any erosion caused by it, the effects for her are no greater than for any of the other residents along Mill Creek.
The Board recognizes that the quality of the Mill Creek Ravine is very important to all Albertans and, in particular, to recreational users of the Mill Creek Ravine. However, this Board now decides that a general interest in the protection of the quality of the Mill Creek is not sufficient to allow a person to appeal the Amending Approval unless that person can show how he or she will be directly affected by the approval granted. Unfortunately, Ms. Kelm has not persuaded us of the causal link between the wet pond and herself. She has not established that her interest in the approval is greater than the interests of those in the general community. We note that this reasoning is not inconsistent with the decision of Mr. Justice Agrios in the WMI case.(14)
The Board dismisses Ms. Kelm's appeal as she is not directly affected by the Director's decision to amend the approval to the drainage system. In reaching this decision, the Board has carefully considered all of the submissions filed by all of the parties, whether or not their evidence was specifically referred to herein.
Ms. Kelm requested a stay of the Director's decision on April 9, 1997, pending the completion of this appeal. In light of the decision above, no Stay will be granted.
The Board feels compelled to mention some concerns it has with drainage system approvals. Storm water capital works projects use both natural channels and constructed features to control runoff. Many cities in the world can trace their origins to land adjacent a water course. Consequently, planners and engineers must deal with the challenge of the ever-expanding land development upstream in the watershed coupled with the cumulative impacts to the primary tributaries downstream. While in reality it would be impractical to completely deal with these two issues at the same time, the Board is of the view that greater efforts should be made by the City of Edmonton to inform the public of plans to address problems throughout the drainage system.
Environmental issues commonly tend to generate significant levels of emotion and misunderstandings are common. Downstream drainage tends to traverse through mature old growth biological environments and is usually associated with popular park and trail systems. Such is the case with Mill Creek. As was the case of this Appeal, the failure to clearly present the total package of improvements together with the related timing and budget commitments can lead to costly delays.
The consideration of environmental issues in public and private development proposals has about a 40 year history in Canada. While the evolution of the related legislation and regulations has been dramatic, the fundamental approach governing the approval process has remained much the same.
The preliminary phase of this process involves a proposed project being subjected to an environmental impact assessment. The process then allows for a dialogue between the designers and those identifying the impacts with an objective to modify certain aspects of the proposal and reduce the impacts. This phase usually involves some form of public participation. On balance, the revised design package including the major construction works as well as the ameliorating environmental considerations can lead to a project with more and improved overall benefits to the public compared to the original concept. The public have come to accept this approach as "The Norm" in terms of accepting or rejecting projects of this nature.
In the case of this Appeal, the City of Edmonton adopted an approach of presenting detailed construction plans of the retainam modifications without the comprehensive package of environmental improvements. While timing considerations were obviously a factor, the Board contends that this approach greatly increases the probability of misunderstanding by the public and potential for costly delays.
Detailed designs, budgetary allocations and scheduling of the ameliorating portion of a project demonstrate a commitment to the environment and validate public participation throughout the process.
Dated on May 13, 1997, at Edmonton, Alberta.
Dr. John P. Ogilvie, Panel Chair
Dr. Ted W. Best
Mr. Ron Peiluck
(1) It was also pointed out that the Amending Approval that was issued contained a typographical error and should read something more to the effect of the following:
Pursuant to Part 2, Division 2 of the Environmental Protection and Enhancement Act, S.A. 1992, c.E-13.3, as amended from time to time, the approval for the following activity:
Construction of a storm water management pond located on Fulton Creek as per the attached terms, conditions and requirements.
- Existing and proposed storm water management lakes and storage facilities to include the Fulton Creek storm water management pond as listed in Appendix II.
- The approval holder shall construct the storm water pond and drainage improvements to Fulton Creek as part of the construction/extension of Whitemud Drive to Highway 14, (Fulton Creek at Whitemud Drive and 17th Street) according to the plans and specifications as per the plans and reports received from the City of Edmonton on October 2 and December 5, 1996 and January 29, March 17 and March 21, 1997.
- If construction of does not commence on or before November 1, 1998 the approval holder shall apply to the Director and receive an amendment to this approval prior to commencing construction.
(2) Appeal No. 94-001, February 2, 1994.
(3)(1995), 17 C.E.L.R. (NS) 246.
(4)Ibid., at p. 257.
(5)Kostuch v. Alberta Environmental Appeal Board, Alberta Queen's Bench, Action No. 9503-19741, March 28, 1996
(6)Ibid., at p.11
(7)Appeal No. 9403-0228-AC.
(8)Appeal No. 9403-0365-AC.
(9)Ibid., at p. 8.
(10)(1993), 102 D.L.R. (4th) 696 (F.C.T.D.).
(11)Ibid., at p. 4.
(12)Environmental Appeal Board, Rules of Practice, Section IV, K, Burden of Proof, at p. 12.
(13)Decision Report (May 11, 1995) EAB Appeal No. 95-002 at p.4 (Alta. EAB).
(14)Supra, note 2.