Appeal No. 98-003

Date of Decision: April 3, 1998

IN THE MATTER OF Section 84, 85, 87 and 90 of the Environmental Protection and Enhancement Act, (S.A. 1992, ch. E-13.3 as amended);

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IN THE MATTER OF an appeal filed by Mr. Mike J. Aiken, Consolidated Metis Locals of the Municipality of Wood Buffalo with respect to Approval No. 48275-00-00 issued by the Director of Air and Water Approvals Division, Alberta Environmental Protection to Shell Canada Limited.

Cite as: Consolidated Metis Locals of the Municipality of Wood Buffalo v. Director of Air and Water Approvals Division, Alberta Environmental Protection.

TABLE OF CONTENTS

BACKGROUND 1

DECISION OF THE BOARD 4

I. BACKGROUND

[1] On February 11, 1998 the Environmental Appeal Board [Board] received via fax a Notice of Appeal dated January 28, 1997, from Mr. Mike J. Aiken, Chief Negotiator, Consolidated Metis Locals of the Municipality of Wood Buffalo. Mr. Aiken objected to Approval 48275-00-00 issued to Shell Canada Limited by the Director of Air and Water Approvals Division, Department of Environmental Protection [Department] on December 22, 1997 for the construction, operation and reclamation of the Lease 13 experimental oil sands processing plant.

[2] The Appellant stated his grounds for appeal as follows:

"As stated by our attached Position Paper, the Consolidated Metis Locals (CML) of the Regional Municipality of Wood Buffalo affirm the position that any Environmental Impact Assessment that does not include a commitment to a Regional Development Impact Fund (RDIF) is deficient.

Without a commitment to such a fund, CML does not consider the development as sustainable.

Our objection applies not only to this application but; to every development application involving resource utilization requiring a [sic] EIA where such an assessment does not include a commitment to a RDIF."

[3] The Board wrote to Mr. Aiken on February 11, 1998, acknowledging receipt of the appeal and by copy of that letter requested all related correspondence, documents and materials from the Department of Environmental Protection.

[4] The Board also wrote to Mr. John Broadhurst of Shell Canada Limited on the same date and provided him with a copy of the appeal filed by Mr. Aiken with respect to the Approval issued to Shell Canada Limited.

[5] According to standard practice, on February 11, 1998, the Board 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. On February 27, 1998 the NRCB advised that the appeal did not deal with a matter that had been the subject of a review. On March 11, 1998 AEUB advised that they issued an approval for Shell Canada Limited's experimental oil sands scheme on Lease 13 on December 13, 1997 and that no objections to the application were brought forward by the Consolidated Metis Locals of the Municipality of Wood Buffalo.

[6] On February 23, 1998 the Board received a letter from Mr. Shawn Denstedt representing Shell Canada Limited. Mr. Denstedt requested that the appeal be dismissed and concluded that:

"Pursuant to section 84(4)(c) of the Environmental Protection and Enhancement Act, notice of objection must be submitted to the Board not later than 30 days after the provision of notice of the decision objected to. The objection period in respect of Shell's experimental facility expired on January 23, 1998. The objection filed was out of time by 18 days.

Shell has completed preliminary ground work on site for the Experimental Plant and is committed financially to the modules (in excess of $8 Million) which will comprise the plant. You should also be aware from AEP that Shell received letters of "no objection" from those parties who were potentially directly affected. As a result, Shell would be significantly prejudiced if this objection was allowed to proceed even though it is out of time and we ask that you reject this Notice of Objection on the basis that it has not been filed within the legislated time limit."

[7] On February 23, 1998, the Board received a letter from counsel for the Department stating:

"The letter and position paper from the Consolidated Metis Locals of the Municipality of Wood Buffalo to the EAB dated January 28, falls outside of the approval process of the Environmental Protection and Enhancement Act. For example, the position that indigenous peoples have a priority right to benefit from resource allocation and should receive special allocations of money, is not within the jurisdiction of the Director to address. With respect, it appears that the appellant has chosen the wrong forum."

[8] In a letter dated March 4, 1998 (sent via fax and confirmed) the Board wrote to Mr. Aiken requesting the following:

"Before proceeding further, the Board wishes you to provide your written comments in reply to both letters. In particular, please respond in detail to Mr. Denstedt's letter regarding filing time and provide an explanation as to the delay noted in this letter. You are referred to sections 84(4)(c) and 84(5) of the Environmental Protection and Enhancement Act which state:

84 (4) A notice of objection must be submitted to the Board

(c) not later than 30 days after receipt of notice of the decision objected to or the last provision of notice of the decision objected to, as the case may be, in any other case.

. . .

84 (5) The Board may, on application made before or after the expiry of the period referred to in subsection (4), extend that period, where the Board is of the opinion that there are sufficient grounds to do so.

Your written comments should be received by March 13, 1998 with copies to the Board and to all other participants. The Board will allow Shell Canada and the Department until March 23, 1998 to then reply in writing to your comments. The Board will decide on the manner in which to proceed with this file following careful consideration of all responses.

. . .

You should be aware that the Board has the ability to dismiss an appeal if you do not provide all of the information which is needed and which is sought 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."

[9] The Board did not receive a response from Mr. Aiken with respect to the March 4, 1998 letter. In result, the Board requested again by letter dated March 25, 1998 (sent via fax and confirmed). This letter stated:

"On March 4, 1998, the Board requested that you provide a reply to correspondence from the above noted approval holder and the Department of Environmental Protection. Further to that letter, two subsequent phone messages were left by this office on March 13, 1998, and March 25, 1998. To date, no written or verbal response has been received from your office.

Please advise the Board by noon, Friday, March 27, 1998 of your reply to the above in order that the Board may deal with your appeal. As noted in the March 4, 1998 letter, the Board has the ability to dismiss an appeal if you do not provide all of the information which is needed and sought at this time. Failure to respond to this request may result in the Board's dismissal of your appeal."

DECISION OF THE BOARD

[10] Mr. Aiken has filed his Notice of Appeal outside of the time lines pursuant to section 84(4)(c) without justification or excuse that would cause the Board to exercise its discretion to proceed with this appeal. Further, Mr. Aiken failed to provide the Board with written information when requested to do so.

[11] The appeal is, therefore, dismissed pursuant to section 87(5)(a) of the Act.

Dated on April 3, 1998, at Edmonton, Alberta


Dr. William A. Tilleman

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