Appeal No. 98-243

Date of Decision - February 9, 1999

 

IN THE MATTER OF sections 67, 84, 87 and 92.1 of the Environmental Protection and Enhancement Act, (SA 1992, ch. E-13.3 as amended);

-and-

IN THE MATTER OF an appeal filed by Mr. Richard Stelter on August 27, 1998 and by Mr. Richard Secord on behalf of Mr. Stelter on August 28, 1998 with respect to Variation of Approval No.1069-01-00 issued to GMB Property Rentals Ltd. by the Director, Environmental Sciences Division, Alberta Environmental Protection.

Cite as: Stelter v. Director, Environmental Sciences Division, Alberta Environmental Protection, re: GMB Property Rentals Ltd.

 

TABLE OF CONTENTS

BACKGROUND  1
THE BOARD'S ANALYSIS  3
The Ministerial Order 3
The Board's Jurisdiction 5
Are There Other Remedies? 7
Conclusion 8
DECISION  8

 

BACKGROUND

 

[1] The Environmental Appeal Board (Board) received an appeal from Mr. Richard Stelter dated August 27, 1998 and an appeal from Mr. Richard Secord dated August 28, 1998 on behalf of Mr. Richard Stelter (Appellant). The Appellant objects to Variation of Approval No. 1069-01-00 issued by the Director, Environmental Sciences Division (Director), Alberta Environmental Protection (Department) on July 30, 1998 to GMB Property Rentals Ltd. (Approval Holder). The Director issued the Variation of Approval in response to a Ministerial Order for the operation of a Class 1 wastewater treatment plant. The Ministerial Order followed from a previous Board hearing on an appeal by Mr. Stelter of Approval No. 1069-01-00.

[2] As a result of Mr. Stelter's new appeal, the Board wrote to the parties on September 11, 1998 requesting further information and clarification. In a response to the Board's request, the Appellant clarified that he intended to file a new appeal with respect to the Variation decision and did not intend to re-open his prior appeal (No. 97-051) to address the Variation decision; and, finally, as stated in item III of his letter:

"The issue is extremely simple. In the Board's previous decision in Approval No. 97-051, it stated in Paragraph 44

'The obligations on the Director to protect the environment under the Act are met as well, if not better, with a requirement to discharge directly to the McLeod River...'

The Variation of Approval No. 1069-01-00 gives GMB Property Rentals Ltd. the option of discharging sewage into the unnamed creek."

[3] The Director responded on September 18, 1998, submitting:

"...that the Board does not have the jurisdiction to hear this matter. The Variation of Decision pursuant to section 98 of the Environmental Protection and Enhancement Act (the "Act") is the Director's implementation of the Ministerial Order made following an EAB hearing. It is not appealable. The Director has taken no action pursuant to section 67 of the Act. Section 84 of the Act does not provide for an Appeal of the decision of the Minister and its implementation..."

[4] The Appellant responded to the Director's letter of September 18, 1998 by stating that the Board does have the jurisdiction to hear this matter and that a mediation would be worthwhile. He further stated, "The alternative would appear to be filing an Originating Notice of Motion in the Court of Queen's Bench to seek judicial review of the Director's Decision."(1)

[5] On November 24, 1998, the Board advised all parties that it would be proceeding to a preliminary meeting. The Board requested clarification on:

1. "...whether or not the issues presented could be dealt with through written arguments and any rebuttal through the means of an oral presentation.

2. [whether] written arguments could be filed by December 29, 1998, for a preliminary meeting tentatively set for January 11, 1999."

[6] The Appellant advised in a letter of November 25, 1998 that it was agreeable to the Board's procedure. The Director then further advised on November 30, 1998 that "the issue of jurisdiction may be disposed of entirely in writing and that there may be no need for an oral presentation by any of the parties."

[7] After consultation with the parties, on December 1, 1998 the Board decided to proceed on the basis of written arguments due on December 29, 1998 with rebuttal arguments, if any, due January 11, 1999. Parties were advised on December 29, 1998 that further to a request made by one of the parties, and after consulting with the remaining parties, rebuttal arguments were due on January 18, 1999.

[8] Written arguments and rebuttal arguments were received by the Board from all the parties. On January 20, 1999, the Board requested the Appellant provide any final reply comments to the submissions of the Director and Approval Holder prior to it making a decision on whether or not to proceed with the appeal. The Appellant advised he had no further comments.

BOARD'S ANALYSIS

[9] Briefly, the issues raised by this new appeal position can be described as follows. The Director grants an approval. An affected party appeals the approval to the Board. The Board, following a hearing, recommends to the Minister that the approval be amended. The Minister adopts the Board's recommendations. The Director varies his previous approval, purporting to act on the basis of the Minister's Order. The affected party objects, arguing that the amended approval does not in fact reflect the Minister's Order, but instead contradicts that Order. The affected party, characterizing the Director's July 30, 1998 amendment as a new Director's decision, launches a second appeal to the Board.

[10] The question to be answered is this: Where it is alleged that a Director varies an approval based on a Ministerial Order arising from the Board's Report and Recommendations, but does so in a way that allegedly impugns that Order and its underlying Report and Recommendations, does the Board have jurisdiction to entertain a new appeal?

The Ministerial Order

[11] The Director in this case purports only to implement the Minister's Order. While the Director might, in some circumstances, issue an amendment of his own volition and based on his own discretion, this case is different: he purports to act solely as a consequence of the Ministerial Order that followed a previous Board hearing. Whether the Director followed the Ministerial Order may or may not be true. Indeed, this is the main thrust of the Appellant's argument:

"… the Board should look to the substance of the Director's decision and not its form. Notwithstanding that the amendment is referred to as being made pursuant to Ministerial Order, in substance it is not such an amendment. Because the amendment does not comply with Minister's Order and in fact, is contrary to it, we state that the amendment is indeed made pursuant to s. 67(3) of the Act; the only possible conclusion is that the Director made this amendment based upon his own opinion and initiative."

[12] The Board finds nothing in the Act that specifically contemplates a Director amending an approval after variation by Ministerial Order. In fact, the legislation contemplates that the Minister's Order (based on an underlying Board Report and Recommendations)(2) stands on its own. Section 92(1) of the Act provides:

92(1) On receiving the report of the Board the Minister may, by order,

(a) confirm, reverse or vary the decision appealed and make any decision that the person whose decision was appealed could make,

(b) make any direction that the Minister considers appropriate as to the forfeiture or return of any security provided under section 89(3)(b), and

(c) make any further order that the Minister considers necessary for the purpose of carrying out the decision.

[13] The Minister's decision is thus a decision established by law in its own right; it is not merely a direction that the Director ought to make some change to the original approval, dependent for its operation on the Director deciding whether or not he should carry out the Minister's direction. The Director has no choice but to do so.

[14] This view is reinforced by section 93.1 of the Act, introduced in 1996, which makes decisions of the Minister under section 92 enforceable in Court. Section 93.1 states:

93.1 An order of the Board under section 88 or 89, a decision of the Board under section 90 and a decision of the Minister under section 92 may be filed with the clerk of the Court of Queen's Bench and, on filing, are enforceable as if they were judgments of the Court. (emphasis added)

[15] One can take a broad or a narrow view of section 92. Section 92(1) allows the Minister to "confirm, reverse or vary the decision appealed" and "make any decision that the person whose decision was appealed could make." Read narrowly, this would only empower the Minister to make the decision himself, not to refer the matter to the Director for the further exercise of discretion. However, the Minister possesses a power to delegate his authority to any Departmental employee under section 17(1)(a) of the Act. Arguably, section 92(1)(a), either alone (and more expansively) or in conjunction with section 17, allows the Minister to vary a decision by delegating his authority and by directing that a new decision be taken. That decision, once made, replaces the original decision appealed from, not on the Director's own authority, but by virtue of authority delegated by the Minister through his decision.

The Board's Jurisdiction

[16] It is trite to say that all appeals must be founded on the words of the statute, since the Board has no inherent jurisdiction. The Board's initial jurisdiction over appeals arises from a notice of appeal validly filed under section 84(1).(3)

[17] Each of subsections 84(1)(a)-(c) refer back to the Director's exercise of his powers under specific subsections of section 67 of the Act, as follows. Section 65(1) gives the Director the basic power to issue or refuse to issue an approval. Either decision can be appealed, under section 84(1)(a)(i) and 84(1)(b)(i) respectively. The situation in this case clearly does not involve an original approval or refusal to approve and neither of these appeal jurisdictions would apply.

[18] If the rights to appeal do not arise from an original approval or refusal under section 65, then, under section 84(1)(a)-(c), they must relate to a Director's decision under section 67. This is so because each subclause of 84(1)(a)-(c) other than 84(1)(a)(i) and (b)(i) refer specifically to the provisions of section 67.(4)

[19] And each of the section 84 subsections is quite specific. From section 84 we learn that the Director's powers under section 67 can be exercised in two circumstances:

1. Under section 67(1) "on application by an approval … holder …", and

2. Under section 67(3) "… on his own initiative …" if the Director considers it "appropriate to do so."

It is obvious here that no "application" has been made. So, if section 67 applies at all, it can only be through section 67(3).(5)

[20] But that does not work in this case. There is no appeal from a decision under 67(3)(c). And no cancellation or suspension is involved, so section 84(1)(c) does not apply either. This just leaves the section 84(1)(a)(iii) jurisdiction which depends upon a decision being made under section 67(3)(a).

[21] The Appellant urges that the Director's decision (since it allegedly failed to comply with the Minister's Order) must have been on the Director's own initiative because he considered it appropriate to do so. This conclusion does not account though for the limiting words in section 67(3): the Director can only act "in accordance with the regulations." That essentially defeats the Appellant's claim.(6)

Are There Other Remedies?

[22] What then are the rights that arise if the Director makes an amendment that fails to comply with the Ministerial Order? Put another way, is Mr. Stelter without a remedy?

[23] If the Director's amendment does not comply with the Ministerial Order, it may simply be invalid. As such, it might be open to a party to obtain a Court's declaration to that effect. This might be done by an Originating Notice of Motion in the Court of Queen's Bench for a declaration, or it might be sought as part of a proceeding brought to enforce the Minister's own Order under section 93.1 set out above.(7) In saying this, the Board is not commenting on the merits of initiating such actions, only that they are a possibility. In fact, the Respondents submit the Appellant has already launched an attack on the Director's Order in the Court, although by way of judicial review rather than under section 93.1.

Conclusion

[24] The Act gives the Board jurisdiction to hear appeals for specific exercises of statutory authority by the Director. But there is no plenary right of appeal from all decisions of the Director. In particular, the Act is not designed to allow a new appeal to the Board from a variation of an approval due to a Ministerial Order.

DECISION

[25] The appeal is therefore dismissed.

Dated on February 9, 1999 at Edmonton, Alberta.

Dr. William A. Tilleman

 


Footnotes

1. In the Director's letter of September 25, 1998, he advised that he had no further submissions to make to the Board and that the Board dismiss the appeal for lack of jurisdiction. On October 14, 1998, the Board received further comments from the Appellant to the Director's letter of September 18, 1998 stating that the Board does have jurisdiction.

2. In this case the EAB Recommendation was adopted without revision by the Minister. It reads:

"The Board recommends that the appeal be allowed to the extent that the Approval be varied to require, by amendment, a means of wastewater discharge to the McLeod River which does not infringe the valid interests of the Appellant and which avoids the fisheries concerns which were raised by Departmental staff."

3. Only subsection 84(1)(a)-(c) need to be reviewed, since subsection (d)-(l) relate to the exercise of different statutory powers.

4. Section 84(1)(a)(ii) refers to Section 67(1)(a)

Section 84(1)(a)(iii) refers to Section 67(3)(a)

Section 84(1)(b)(ii) refers to Section 67(1)(a)

Section 84(1)(c) refers to Section 67(3)(b)

5. 67(3) If the Director considers it appropriate to do so, the Director may on his own initiative in accordance with the regulations

(a) amend a term or condition of, add a term or condition to or delete a term or condition from an approval

(i) if in the Director's opinion an adverse effect that was not reasonably foreseeable at the time the approval was issued has occurred, is occurring or may occur,

(ii) if the term or condition relates to a monitoring or reporting requirement,

(iii) where the purpose of the amendment, addition or deletion is to address matters related to a temporary suspension of the activity by the approval holder, or

(iv) where the approval is transferred, sold, leased, assigned or otherwise disposed of under section 72,

(b) cancel or suspend an approval or registration, or

(c) correct a clerical error in an approval or registration.

6. It is significant that certain Regulations set out specific notice and other procedural provisions for the exercise of the amendment power on application plus the Director's own amending power under section 67(3)(a). See particularly Alberta Regulation 113/93, Approvals and Registration Procedure Regulation, section 8, and Alberta Regulation 118/93, Environmental Protection and Enhancement (Miscellaneous) Regulation, section 3(2). Nothing in these Regulations contemplates an amendment as a result of a Ministerial Order following an appeal to the Board.

Subsections 67(3)(a)(i)-(iv) also impose preconditions to the Director exercising his section 67(3) powers. And none of these preconditions fit with the decision in this case. Unless those subsubsections apply, the Director has no jurisdiction to vary under section 67(3)(a). And, if the Director's authority to act did not derive from that section, then section 84(1)(a)(iii) is inapplicable and the Board does not have jurisdiction.

7. One of the purposes of providing for Court filing is to provide a remedy if any party fails to comply with a Ministerial Order. The usual enforcement procedure would be to apply for a mandatory injunction or for contempt to secure compliance with the filed order.

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