Appeal No. 98-240

Date of Discontinuance of Proceedings - April 12, 1999

 

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

-and-

IN THE MATTER OF an appeal filed by Mr. Aldo Corti of Solv-Ex Corporation with respect to the refusal to amend Approval 16781-01-02 on July 15, 1998 by the Director, Northeast Boreal Region, Alberta Environmental Protection.

Cite as: Solv-Ex Corporation v. Director, Northeast Boreal Region, Alberta Environmental Protection.

TABLE OF CONTENTS

BACKGROUND 1
THE MEDIATION MEETING 3
DECISION 6


MEDIATION MEETING BEFORE

Dr. Ted W. Best

 

APPEARANCES

Appellant: Mr. Aldo Corti, Solv-Ex Corporation

Department: Mr. Grant Sprague, counsel, Alberta Justice, representing Mr. Jay Nagendran, Director, Alberta Environmental Protection, Ms. Sandra McDougall, Alberta Environmental Protection

Other Parties: Ms. Karin Buss, counsel, Ackroyd, Piasta, Roth & Day, representing Fort McKay Metis Local #122 and Fort McKay First Nation

 

BACKGROUND

[1] On July 15, 1998, the Director, of Northeast Boreal Region, Alberta Environmental Protection, refused to amend Approval 16781-01-02 issued to Solv-Ex Corporation on October 31, 1996 for the construction and operation of a new mineral extraction (chemical manufacturing) plant with a capacity of 206 tonnes/day of alumina for the facility located at the W Half of Section 15 and E Half of Section 16 Township 92 Range 10 W4M (known as the Ruth Lake site near the existing Suncor and Syncrude oil sands plants). Solv-Ex Corporation was refused their request for an extension to the date by which construction must commence to August 1, 1999, to extend some submission dates stipulated in the Approval and to extend the expiry date of the Approval to January 1, 2005.

[2] On August 12, 1998, the Environmental Appeal Board (the Board) received a Notice of Appeal dated August 12, 1998 from Mr. Aldo Corti of Solv-Ex Corporation (the Appellant) advising that he objected to the refusal to amend the Approval.

[3] The Board wrote to Mr. Corti on August 13, 1998, acknowledging receipt of his appeal, and by copy of this letter, requested the Department of Environmental Protection (the Department) provide copies of all related correspondence, documents and materials related to this matter.

[4] According to standard practice, the Board wrote to the Natural Resources Conservation Board (NRCB) and the Alberta Energy and Utilities Board (AEUB) asking whether this matter had been the subject of a hearing or review under their respective Boards' legislation. Replies were subsequently received from both the NRCB and the AEUB stating that they did not hold any hearing or review under either of their Boards' legislation.

[5] On August 20, 1998 the Department forwarded the requested documents and copy of these documents were forwarded to Solv-Ex Corporation on August 27, 1998.

[6] On September 8, 1998, the Board wrote to the Appellant and the Department requesting that the parties advise whether they wished to have a mediation meeting under section 11 of the Environmental Appeal Board Regulation(1) and if there were any other persons who may have an interest in the appeal. In addition, the Board in the same letter requested comments on the following:

"II. Identification of issues

One of the Board's first tasks in conducting an appeal is to identify the legal and factual issues for it to address on the merits of the appeal. It appears from the Board's record compiled to date in this appeal that the general issue is whether the Director was correct in denying the appellant's application to amend Approval No. 16781-00-00 (as amended), by postponing by one year any "commitment" or "deadline" in the Approval. However, in order to facilitate the Board's review of the merits of the appeal, it would be helpful to break this general issue down, if possible, into discrete factual and/or legal components. Toward that end, please provide the Board with a list of discrete issues which you believe the Board should address in considering the merits of this appeal. If you disagree with the Board's statement of the general issue, please provide your view of that issue, as well.

III. Preliminary meeting for establishing hearing procedures; Abeyance

Section 11(b) of the regulations authorizes the Board to hold a preliminary meeting with the parties to address which substantive issues the Board should consider in the hearing on the merits, and various procedural matters governing the conduct of the hearing.

. . .

The Board understands that the Director is currently considering whether to cancel Approval No. 16781-00-00 (as amended). The Board believes that the Director's forthcoming decision could either render this appeal moot or result in an expansion of the scope of this appeal. Given these alternative scenarios, the Board wonders whether it would be worth holding this appeal in abeyance until the Director makes his decision. In your response to this letter, please indicate whether you believe that this appeal should be held in abeyance. The Board will include this matter on an agenda for a preliminary meeting."

A copy of this letter was provided to Mr. Ken Shipley, Director, Industry Relations Corporation on behalf of Fort McKay Metis Local 122 as he had filed a statement of concern. Mr. Sprague's letter said that "the Director is not aware of any other party who should have an interest in this appeal." The Director notes that the Fort McKay Metis Local #122 has filed a statement of concern.

[7] Responses were received from Solv-Ex Corporation and the Department via letters dated September 22, 1998.

[8] On October 5, 1998, the Board wrote to all parties informing them that a mediation meeting would be held on October 21, 1998. A Notice of Mediation and Public Hearing was placed in the Fort McMurray Today on October 9, 1998 stating that a mediation meeting would be taking place on October 21, 1998.

THE MEDIATION MEETING

[9] The Board conducted a mediation meeting in the Board's office on October 21, 1998, with Dr. Ted Best as the presiding Board member.

[10] According to the Board's standard practice, the Board called the mediation meeting in an attempt to mediate or facilitate the resolution of this appeal, or failing that, to structure procedural arrangements for the oral hearing. The Board invited representatives from each party to participate in the mediation meeting.

[11] In conducting the mediation meeting, Dr. Best reviewed the appeal and mediation process and explained the purpose of the mediation meeting. Ms. Buss, representing the Fort McKay Metis Local #122 and Fort McKay First Nation, stated that her participation in the meeting was to elucidate her clients concerns, to be informed of the plans, etc., and to participate in the discussions to reach a solution but not to be a signatory to any mediated agreement, if successfully concluded. Dr. Best and the parties agreed to this process. He then circulated copies of the "Participants' Agreement to Mediate" in which all participants signed.

[12] On October 22, 1998, the Board wrote to the parties stating:

"This letter will confirm that further to the meeting that was held on October 21, 1998, participants agreed that the appeal file will be held in abeyance until December 1, 1998. Parties are asked to provide a status report by December 1, 1998."

[13] Discussions continued between the parties, and the file was held in abeyance.

[14] On December 7, 1998, the Board wrote to the parties requesting an update by December 8, 1998.

[15] In response to the Board's letter, Solv-Ex Corporation provided the following response:

"Mr. White has met and discussed Solv-Ex proposal with Mr. Chris Hale (Forestry Fort McMurray) last Wednesday in Fort McMurray. To date I have not received any feed back...I expect that, as soon as we receive the comments to our proposal, we will be able to meet again and conclude the mediation process."

[16] As agreed to by the parties, the appeal file was further held in abeyance, as indicated in the Board's letter of December 14, 1998.

[17] On January 15, 1999, the Department provided a letter and attachments setting out the Department's position with respect to the lease. The Board forwarded this letter to the Appellant requesting he "provide further clarification on the relief." In addition all parties were requested to provide potential hearing dates, should the file proceed to a full hearing.

[18] On February 25, 1999, Solv-Ex provided available dates for a potential hearing, in addition to the following comment:

"With respect to your letter of January 28, we delayed to reply pending some discussions still in progress with the interested parties. In essence we have appealed the Director's decision not to grant an amendment to AEPEA Approval 16781. At the Mediation Meeting last October, Solv-Ex has also indicated the terms under which it was prepared to withdraw the Appeal. So far, those terms have not been accepted. However, Solv-Ex is confident that the discussions in progress will generate positive results and that the full hearing process may be avoided."

[19] On March 4, 1999, the Board advised the parties that a second mediation meeting would be held on April 20, 1999, in Calgary.

[20] On April 9, 1999, the Board received a letter dated April 9, 1999, from Mr. Aldo Corti of Solv-Ex Corporation:

"I'm pleased to inform you that Solv-Ex has reached an agreement with Mr. Jay Nagendran, Regional Director AEP and with Mr. Neil Barker, Regional Director Land and Forest Service with regards to the issues involving our property north of Fort McMurray.

Solv-Ex has received a letter from Mr. Mel White dated March 31, 1999, and after further clarifications during a telephone conversation Corti/White on April 7, 1999, Solv-Ex accepts and agrees with the terms outlined in the letter. Since Solv-Ex has been granted a three (3) years extension to MLL 960020, until July 30, 2002, Solv-Ex hereby gives notice that it withdraws the Appeal to the Director's decision dated July 15, 1998 regarding Solv-Ex requests for Amendment of Approval No. 006-16781.

I would like to take this opportunity to thank you and Dr. Best for the assistance provided to us during the mediation stage in bringing the matter to a positive conclusion."

 

DECISION

[21] Pursuant to section 87(7) of the Environmental Protection and Enhancement Act, and based on the Solv-Ex letter of April 9, 1999, the Board hereby discontinues its proceedings in appeal 98-240 and will be closing its file.

Dated on April 12, 1999, in Edmonton, Alberta.

Dr. William Tilleman

 

 


Footnotes

1. AR 114/93 (hereinafter "the regulations").

 

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