Appeal No. 98-246 and 98-248

Date of Decision - January 18, 1999

 

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

-and-

IN THE MATTER OF appeals filed by Mr. Buff Parry and Ms. Dale Ladouceur with respect to Approval No. 46972-00-00 issued to Cardinal River Coals Ltd. by Mr. W.S. Macdonald, Regional Director, Northern East Slopes Region, Alberta Environmental Protection.

Cite as: Parry et. al. v. Regional Director, Northern East Slopes Region, Alberta Environmental Protection, re: Cardinal River Coals Ltd.

 

TABLE OF CONTENTS

BACKGROUND  1
THE BOARD'S ANALYSIS  7
The Camp's Appeal 7
Ms. Ladouceur's Appeal 11
DECISION  13

 

BACKGROUND

[1] These appeals concern Approval No. 46972-00-00, issued on September 29, 1998, by W.S. Macdonald, who is the Regional Director of the Northern East Slopes Region, Alberta Environmental Protection.(1) The Director issued the Approval to Cardinal River Coals Ltd. The cover page of the Approval states that it authorizes the "opening up, operation and reclamation" of a coal mine, and the "construction, operation and reclamation" of a coal processing plant; however, the Director apparently intends the Approval to apply only to certain specific "pre-development" activities which represent the first phase of the overall mining project.(2) The Director issued the Approval pursuant to section 65 of the Environmental Protection and Enhancement Act ("EPEA" or "the Act").(3)

[2] The mine and processing plant are part of the "Cheviot mine" project, which is located in the Cardinal River watershed, and approximately 70 km south of Hinton, Alberta, in the Rocky Mountain foothills east of Edmonton. The project is quite controversial due to its proximity to Jasper National Park and to the Rocky Mountain and Foothills bioregions, generally, which are prized for their natural beauty and diverse flora and fauna, as well as their harvestable resources. These appeals are two of apparently several challenges to the Cheviot mine which have been raised in multiple federal and provincial fora.

[3] Appeal No. 98-246 was filed by Mr. Buff Parry, on behalf of the "Rocky Mt. Cree Smallboy Camp" ("the Camp."). Although apparently not opposed to the mine per se, the Camp is concerned about potential harmful environmental effects of extensions of the mine, which the Camp believes are sure to follow if the Approval stands, in the "Red Cap Creek demi-valley." The Camp asserts that its members rely heavily on the valley's natural resources for their spiritual and other activities.(4) However, the substance of the Camp's appeal does not relate directly to the mine's potential impacts on this area; the Camp's sole ground for appeal is that the Director failed to consider a federal court challenge to the mine in deciding whether to issue the Approval.(5)

[4] Appeal No. 98-248, filed by Ms. Dale Ladouceur on her own behalf, concerns the Director's alleged failure to consider "documentation" which, in Ms. Ladouceur's view, shows that the mine's environmental impacts "outweigh" its economic benefits.(6) Although she lives in Edmonton, Ms. Ladouceur states that she visits the Cardinal River region often and that the region provides an "invaluable source of comfort and solace" as well as valuable data for research which she conducts on "Corvids" (ravens, jays, magpies and crows).

[5] Because the two appeals concern the same Approval decision, the Board has consolidated them for purposes of this Decision.(7)

[6] In considering these appeals, the Board is mindful of observations made by the majority of Justices in several decisions of the Supreme Court of Canada. In Friends of the Oldman River Society v. Canada (Minister of Transport), Justice La Forest described the environment's protection "as one of the major challenges of our time."(8) In two more recent cases, a majority of the Court's Justices noted the "'importance'" of environmental protection and that, "'individually and collectively, we are responsible for preserving the natural environment.'"(9) The purposes of EPEA, as reflected in section 2 of the Act, are consistent with and supportive of these judicial observations.(10)

[7] The Board is also mindful of the observations made recently by the Newfoundland Court of Appeal in interpreting federal and provincial environmental assessment legislation in a case involving a "massive" proposed mine at Voisey's Bay, on the North coast of Labrador. In that case, the Newfoundland court noted the "critical need of reconciling the use of the earth's natural resources with the protection of the environment."(11) That court also observed that it must use "care" in interpreting and applying environmental legislation "[i]f the rights of future generations" to a healthy environment are to be "taken seriously, and not to be regarded as mere empty rhetoric. . . ."(12) The court explained that judges, in using such "care," must interpret environmental laws in light of their:

commitment to future generations and against a recognition that, in addressing environmental issues, we often have imperfect knowledge as to the potential impact of activities on the environment. . . .

The legislation, if it is to do its job, must therefore be applied in a manner that will counteract the ability of immediate collective economic and social forces to set their own environmental agendas. It must be regarded as something more than a mere statement of lofty intent. It must be a blueprint for protective action.(13)

The Board believes that the Newfoundland court's observations regarding how to interpret environmental legislation applies in interpreting EPEA, and are reflected in the express purposes of that Act, as listed in note 10 above.

[8] Given EPEA's purposes, and the judicial observations quoted above, the Board takes seriously its own "individual responsibility," through its powers and duties to hear appeals under Part 3 of the Act, to help in reconciling the need to use the Earth's resources with the need to protect the environment and sensible economic progress. The Board also recognizes that its powers are limited to those provided in the Act and, more specifically, that it can hear only those appeals which qualify under the legislative criteria in Part 3. Thus, the Board's first task in any appeal is to determine whether the appeal satisfies those criteria and raises appeal grounds which are otherwise credible under the Act.

[9] Toward this end, following receipt of the Camp's Notice of Appeal, the Board requested that the Camp provide additional information for the Board to determine whether it should proceed to hear the Camp's appeal. Specifically, the Board requested that the Camp address: (1) whether it is "directly affected" by the Approval, for purposes of the Act's "standing" requirement in section 84(1)(a)(iv); (2) whether the Camp's appeal was filed within the time period prescribed by section 84(4)(c); (3) whether the Board is precluded from hearing the appeal in light of the review of the project conducted by the Alberta Energy and Utilities Board ("EUB");(14) and (4) why its ground for appeal is valid under the Act, for purposes of the Board's exercise of its discretion under sections 87(5)(a)(i) and (i.2)(15). The sections allow the Board to dismiss an appeal at the outset if the Board believes that the appeal is "without merit" or is otherwise improper. The Board requested that Ms. Ladouceur provide additional information related to the first of these four matters and that she list the specific issues which she intended to raise on the merits of her appeal.(16)

[10] Following the Camp's response to the Board's inquiries, the Director and Cardinal River Coals requested that the Board dismiss the Camp's appeal for three reasons: lack of standing; the EUB's review of the mine; and, the lack of merit in the Camp's sole ground for appeal.(17) After careful consideration, the Board agrees with the third of these three dismissal claims and, for identical reasons, with the second one as well, as explained in the Board's analysis of the Camp's appeal as noted below; thus for purposes of economy, the Board will not consider the first claim.

[11] Following Ms. Ladouceur's response to the Board's request for additional information, both the Director and Cardinal River Coals requested that the Board dismiss Ms. Ladouceur's appeal for the following reasons: lack of standing; the EUB's review of the mine; failure to file a timely appeal; and, failure to submit a "statement of concern" to the Director prior to the Director's issuance of the Approval.(18) Cardinal River Coals also argued that Ms. Ladouceur's appeal was not filed within the time period prescribed in section 84(4)(c) of the Act.(19) The Board finds that the third of these five grounds for dismissal is valid, as explained in the Board's analysis of Ms. Ladouceur's appeal below; once again, because of this finding, the Board need not address the Director and Cardinal River Coals' other dismissal grounds.

THE BOARD'S ANALYSIS

The Camp's Appeal

[12] In his Notice of Appeal on behalf of the Camp, Mr. Parry lists as his sole ground for appeal that the Director "purposefully ignored" the Camp's federal court claim; accordingly, Mr. Parry requests that the Board prevent Cardinal River Coals from proceeding under the Approval "until a decision is reached with regard to the stated claim in Federal Court."(20) This claim breaks down into several issues: (1) Did the Director consider the Camp's court action? (2) If not, did the Director take reasonable steps to obtain information about the court case? And (3) would knowledge of the nature of claims raised in the pending court case have provided sufficient cause for the Director to forego issuing the Approval until the court case was resolved?

[13] The Board's analysis of the first two of these three issues starts with the following brief history.

[14] Prior to the Director's issuance of the Approval, Mr. Parry submitted a letter to the Director stating his objection to "any issuance of permits" for the Cheviot mine, in part, because "[t]wo court actions, one of the Rocky Mountain Cree Smallboy Camp and the other legal challenge as filed by the Alberta wilderness groups, have passed their first tests of standing." Mr. Parry explained that both court actions are "fettled [sic] to battle the creation of the Cheviot mine for as long and as much as it will take to bring sense back into the minds of the authorities concerned." Without actually explaining the substance of the two court actions, let alone how that substance related to the permits to which Mr. Parry was objecting, Mr. Parry asked: "How could permits be issued in light of two court actions against the Cheviot mine?"(21)

[15] The Director or his staff subsequently prepared a summary of all concerns raised in letters submitted regarding the proposed mine. On one page, this summary refers to Mr. Parry's concern regarding the two court actions and responds in shorthand form that the "Director will not issue approvals until court action [is] clarified."(22) This statement is confusing, because it noted Mr. Parry's reference to two court actions, but then committed the Director to clarify only one of them. It is unclear which of the two actions to which the Director referred, and whether he committed to clarify only one of the two actions because he already knew about the other or for some other reason.

[16] On September 30, 1998, the Director wrote to Mr. Parry informing him of the Director's decision to issue the Approval and responding to Mr. Parry's concerns that "court actions that were underway at the time. . . ." The Director's response to this concern is as follows:

1. Court actions. I am aware that an appeal to the Federal Court of Appeal is currently being pursued with respect to the Cheviot Coal Project. In considering this matter, I note that my authority is received from EPEA and its regulations. As such I am of the view that there is no basis in law that prohibits me from issuing an EPEA approval.(23)

In a subsequent letter, dated after Mr. Parry first contacted this Board, the Director stated that he was "aware" of the Camp's claim, but that he thought the claim was dormant and, at any rate, that it posed "no impediment" to his issuance of the Approval.(24) The Board finds the Director's post hoc explanation potentially problematic, given the Director's failure to refer to that action in his September 30, 1998 letter to Mr. Parry. Thus, it appears from the Director's September 30, 1998 letter that the Director either was unable, or simply chose not, to "clarif[y]" the nature of the second court action referenced in Mr. Parry's February 3, 1998 statement of concern, despite his initial intent to do so as expressed in the summary quoted above.

[17] A phone call directly to Mr. Parry regarding the nature of that second court action might have provided the required clarification. However, even assuming neither the Director nor his staff made the call, the Board is sympathetic to the Director's failure to address this second lawsuit. Mr. Parry's February 3, 1998 letter referred to the Camp's legal action, but without identifying the court in which it was filed or the docket number of the case, and without even explaining the nature of the claims raised in the case. Given this scant information, and Mr. Parry's failure in his February 3, 1998 letter to even explain his connection to the Camp, it was reasonable for the Director to simply ignore Mr. Parry's reference to that court action.

[18] The burden is on the Director to collect sufficient data and other information to support an Approval decision, regardless of whether he receives any statements of concern from the public or other parties. But if a citizen raises an additional item which it claims is worthy of the Director's attention, it is incumbent on the citizen to inform the Director as to the item or at least provide sufficient identifying information so that the Director can readily obtain the relevant information. Providing this additional information is consistent with the "shared responsibility" for protecting the environment, referred to in section 2 of the Act (note 10 above); in other words, there are personal obligations that accompany rights to public participation.

[19] In more practical terms, the Board believes that the Director lacks sufficient resources to investigate the merits of every assertion raised by the public, no matter how vague or ambiguous. For the government to take public concerns seriously, which practice the government should adopt, the public must explain and support its concerns, to the extent possible and reasonable. In this case, Mr. Parry should have had ready access to the requisite information about the nature and relevance of the Camp's court action and, thus, should have provided that information as part of his statement of concern.

[20] More importantly, even if the Director might be considered to have erred by failing to take additional steps to become apprized of the nature of the Camp's legal action, the Board believes any such error is a harmless one, because the claims raised in the Camp's legal action do not provide sufficient grounds for the Director to forego deciding whether to issue the Approval. As the Board understands it, the Camp claims in its court action that its members have aboriginal rights, Indian title, and other legal rights to the Redcap Creek region, and that the federal government has a legal responsibility to protect those rights. The Camp claims that, by allowing the Cheviot mine to proceed, the federal government will be shirking its responsibilities and violating the Camp's legal rights. Accordingly, the Camp seeks among other things to have the court enjoin the federal government "from allowing or permitting any development of any nature including mining" in the Redcap Creek area.(25)

[21] The Board respects the Camp's assertion of these legal claims, whether or not they are ultimately accepted by the courts. However, those claims are with the federal government, not with the Province of Alberta and, in particular, not with the Director's administration of EPEA. A successful outcome of those claims may well render the Director's Approval a supersedeas, if they result in a cancellation of all federal approvals for the mine. However, nothing in EPEA suggests that the filing of these federal claims, which may well take years to resolve, should preclude the Director from proceeding with an Approval under the provincial legislation.(26)

[22] Section 87(5)(a)(i) of EPEA authorizes the Board to dismiss an appeal, even at a preliminary stage, if it considers the appeal to be "without merit." The Board concludes that the Camp's appeal should be dismissed because it is readily apparent that the Camp's sole ground for appeal is without merit, for the reasons given above.(27) Given the lack of merit in the Camp's ground for appeal, the Board also concludes that the EUB "adequately dealt with" that appeal ground, whether or not the EUB ever consciously considered it, for purposes of section 87(5)(b)(i) of the Act.

Ms. Ladouceur's Appeal

[23] As noted previously, section 84(1)(a)(iv) of EPEA provides that a notice of appeal can be filed only by a person "who previously submitted a statement of concern in accordance with section 70. . . ." Ms. Ladouceur clearly did not satisfy this threshold requirement. She submitted a letter of concern, but it referenced, not the EPEA approval, but an application for a Water Resources Act permit (File # 60275) for the construction of a railroad and all-season road in conjunction with the mine.(28)

[24] The Board recognizes that, in its notice to the public regarding Cardinal River Coals' Approval application under EPEA, the AEP also referred to a Water Resources Act permit. But even that permit identified in the notice (File # 60335) is different than the Water Resources Act permit referenced in Ms. Ladouceur's letter. In addition, the addressee identified in Ms. Ladouceur's letter-Water Administration Branch, North East Slopes Region, AEP-is not the same as the addressee listed in the public notice for either the EPEA Approval or the Water Resources Act permit (File # 60335)-Director of Land Reclamation, AEP. Under these circumstances, the Board is unable to conclude that Ms. Ladouceur submitted even the functional equivalent of a "statement of concern in accordance with section 70" of the Act.

[25] Ms. Ladouceur implies that she should not be subject to the section 84(1)(a)(iv) requirement, because she was out of town on the dates the AEP's public notice was published and, thus, she was never apprized of her chance to submit a statement of concern on the EPEA approval "in accordance with section 70."(29) Her implied argument misses the point. As a legal matter, section 84(1)(a)(iv), and sections 70 and 69 which are referenced directly and indirectly through section 84(1)(a)(iv), require that a statement of concern be provided as a prerequisite to filing an appeal if the Director provides "notice." Presumably, "notice" means notice to the public generally rather than notice to particular interested persons, especially those persons of whose identity the Director is unaware; that burden is too much for the Director to carry.(30) In other words, it is irrelevant that the particular appellant may have never actually received the notice, as long as the notice itself was adequate for informing the public generally. And Ms. Ladouceur does not question the sufficiency of the Director's notice to the public generally.

[26] In sum, the Board finds that Ms. Ladouceur never filed a statement of concern regarding Cardinal River Coals' application under EPEA, or anything resembling such a statement, "in accordance with section 70," for purposes of the threshold appeal requirement in section 84(1)(a)(iv) of the Act.

DECISION

[27] For the reasons given above, the Board has decided to dismiss these appeals. In doing so, the Board does not question either the integrity of the appellants' opposition to the Cheviot mine or, of the Director's support for the mine, evidenced by issuance of Approval 46972-00-00. Nor does the Board express an opinion on the merits of the mine itself. The Board simply concludes that these appeals are not properly raised under EPEA.

Dated on January 18, 1999 at Edmonton, Alberta.

Dr. William A. Tilleman

 


Footnotes

1. Hereinafter, Mr. Macdonald and Alberta Environmental Protection will be referred to as "the Director" and "AEP," respectively.

2. See September 29, 1998 "Reasons for Decision by the Director," p. 1 (list of activities covered by the approval).

3. S.A. 1992, ch. E-13.3.

4. See Attachment to November 24, 1998 letter from Mr. Buff Parry, p. 1 (describing how the Camp is "directly affected" by the Approval).

5. October 16, 1998 Notice of Appeal, p. 2, sections IV-V.

6. November 24, 1998 Notice of Appeal, p. 2, Item IV.

7. The Board assumes that Ms. Ladouceur's appeal concerns Approval No. 46972-00-00, although that fact has never been made crystal clear. See November 3, 1998 E-mail message to the Board from Ms. Ladouceur (stating her desire to appeal "the decision to go ahead with the Cheviot mine."); November 24, 1998 Notice of Appeal, p. 2 ("I am appealing the decision of: [blank] dated [blank] issued to Cardinal River Coals Ltd - Cheviot Mine").

8. [1992] 1 S.C.R. 3 at 16-17.

9. R. v. Hydro-Quebec [1997], 151 D.L.R. (4th) 32 at 99-100 (S.C.C.) (citing Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, par. 55). In Hydro-Quebec, the majority also recognized a "'new and emerging'" "'fundamental [environmental] value'" whose "'strands'" include "'quality of life, and stewardship of the natural environment.'" The majority also observed that "'traditional values'" have "'expanded and evolved to include the environment now as an area and interest of direct and primary concern.'" 151 D.L.R. (4th) at 99 - 100 (citation omitted).

10. That section states that the Act's purpose is to "support and promote the protection, enhancement and wise use of the environment while recognizing," among other things: that environmental protection is "essential to the integrity of ecosystems and human health and to the well-being of society"; the need for economic growth and prosperity in an "environmentally responsible manner"; the principle of "sustainable development, which ensures that the use of resources and the environment today does not impair prospects for their use by future generations"; the "importance of preventing and mitigating" environmental impacts; and the "shared responsibility of all Alberta citizens for ensuring the protection, enhancement and wise use of the environment through individual actions. . . ."

11. Labrador Inuit Assn v. Newfoundland (Minister of Environment & Labour) (1997), [1998], 25 C.E.L.R. (N.S.) 232 at 234 (Nfld. C.A.) 155 Nfld & P.E.I.R. 93.. The Court explained the basis for this "need" in terms which are worth quoting:

The need to rationalize these imperatives is a phenomenon of relatively recent origin. This is because for most of the history of humankind the development and sustenance of life has been moulded and controlled by the environment. As Rachel Carson has pointed out, it has only been in the last century that the relationship has been reversed to the extent that humans now possess the power to mould and change the environment in significant ways (Silent Spring Crest Paperback edition, 1962, p. 16). The web of life, which contains and controls the interdependence of living things and beings, both with respect to each other and to their physical surroundings, is not static. Change in one area may profoundly affect life and habitat in other areas and may even threaten its existence in ways that cannot be immediately foreseen.

The foreboding extent of the reality of, to use Carson's words, "the impetuous and heedless pace of man rather than the deliberate pace of nature" now brings a completely new dimension to the implications for change brought about by humankind's activities. As the harmful effects of amazonian deforestation; of damage to the ozone layer; and, of acid rain become increasingly apparent, the urgency of controlling the destruction of the earth's environment is brought home. Ibid. at 234 pars. 4-5.

12. Ibid. at 236 par. 11.

13. Ibid. at 236 pars. 11-12.

14. Section 87(5)(b)(i) of the Act provides that the Board "shall" dismiss an appeal if the appellant "received notice of or participated in or had the opportunity to participate in one or more hearings or reviews" conducted by the EUB. See Bildson v. Acting Director of North Eastern Slopes Region #2, Alberta Environmental Protection re: Smoky River Coal Limited (December 8, 1998), 98-230-D2.

15. See November 20, 1998 letter to Mr. Parry from the Board.

16. November 27, 1998 letter from the Board to Ms. Ladouceur.

17. November 27, 1998 letter from Mr. Stan Rutwind, Alberta Justice, to the Board; November 27, 1998 letter from Mr. Dennis R. Thomas, Q.C., to the Board.

18. This dismissal ground is based on section 84(1)(a)(iv), which provides that a Notice of Appeal may be submitted by any person "who previously submitted a statement of concern in accordance with section 70" of the Act.

19. December 8, 1998 letter from Mr. Stan Rutwind, Alberta Justice; December 9, 1998 letter from Mr. Dennis Thomas, Q.C. Both the Director and Cardinal River Coals also argued that Ms. Ladouceur's appeal should be dismissed for lack of merit, because the appeal raises broad "public interest" concerns which were addressed by the EUB and are beyond the Director's power to consider under EPEA. See December 8, 1998 Rutwind letter, pp. 2-3; December 9, 1998 Thomas letter, p. 2. It is unclear whether this argument is distinguishable from the Director and Cardinal River Coals' argument for dismissal based on the EUB's review, under section 87(5)(b)(i) of the Act. In other words, it is unclear whether those parties would be raising this argument if section 87(5)(b)(i) did not exist or if the EUB had not conducted any review or had clearly not "adequately dealt with" the appellant's so-called "public interest" concerns. To the extent the Director and Cardinal River Coals' "public interest" argument for dismissal is offered independently of their dismissal claim based on section 87(5)(b)(i), the Board advises the parties to see its recent decision in Bildson v. Acting Director of North Eastern Slopes Region #2, Alberta Environmental Protection, re: Smoky River Coal Limited (December 8, 1998), 98-230-D2. In that Decision, the Board concluded that the mere fact than an appeal raises "public interest" considerations is not grounds for the Board to dismiss the appeal, because the Director must consider the "public interest," at least, from the standpoint of EPEA section 2, in deciding whether to issue an Approval under the Act. Ibid. at 10 - 13, pars. 25-31.

20. October 16, 1998 Notice of Appeal, p. 2, items IV & V. See also Mr. Parry's October 8, 1998 letter to the Board (same claim as in the Notice of Appeal).

The federal court claim to which the Camp appears to be referring is the following: Wayne Roan, et. al. v. Canada, T-1576-97 (F.C.T.D.). There is at least one other federal court case involving the Cheviot mine, and in which the Camp is participating, and which has already generated several judicial decisions. See Alberta Wilderness Association, et. al. v. Canada (Minister of Fisheries and Oceans) (1997), 26 C.E.L.R. (N.S.) 238 (F.C.T.D.); [1998] F.C.J. No. 821 (F.C.T.D.); [1998] F.C.J. No. 1746 (F.C.A.); and [1998] F.C.J. No. 1762 (F.C.A.).

21. February 3, 1998 letter from Buff Parry to Director of Land Reclamation, AEP. (Although not the same Director as the Director who issued the Approval, the AEP Land Reclamation Director was designated in AEP's public notice as the person to whom statements of concern on Cardinal River Coals' Approval application should be sent.) The Board notes that, although Mr. Parry filed an appeal on behalf of the Camp, he did not purport to send the February 3, 1998 letter on the Camp's behalf. He sent an additional letter of objection dated February 4, 1998, which did not mention the Camp at all; in addition, the letter objected to Cardinal River Coals' application for permits under the "Water Resources Act" but did not mention the company's application for an Approval under EPEA. Mr. Parry's February 3, 1998 letter likewise referred to the Water Resources Act permits, but did not specifically refer to an EPEA Approval. Nevertheless, AEP staff treated Mr. Parry's February 3, 1998 letter as "expressing concerns about [Cardinal River Coals'] application for approval under [EPEA]" and indicated that AEP would "conside[r]" his concerns in reviewing the company's Approval application. April 17, 1998 letter from Dennis Eriksen/AEP, to Mr. Parry. Given AEP's response, the Board believes that Mr. Parry's February 3, 1998 letter could be viewed as filed "in accordance with section 70," for purposes of the jurisdictional requirement in section 84(1)(a)(iv), even though the letter never actually referred specifically to the Approval which is being appealed. But, there is an additional question as to whether the Camp itself satisfied this requirement, given that Mr. Parry's statement of concern did not purport to be submitted on the Camp's behalf. The Board need not answer this question, because of its finding that the Camp's sole appeal ground is without merit.

22. Excerpt in materials accompanying November 30, 1998 letter from Mr. Grant Sprague to the Board. The Board notes that the excerpt is not dated, although Mr. Sprague's November 30, 1998 cover letter states (p.1) that the excerpt is dated "September, 1998." From the text of the excerpt quoted above, the Board presumes that the excerpt was prepared at least several days before the Director's issuance of the Approval on September 29, 1998.

23. September 30, 1998 letter from the Director to Mr. Parry, pp. 1-2.

24. October 14, 1998 letter from the Director to Mr. Parry.

25. See July 23, 1997 Statement of Claim, Wayne Roan, et al. v. Canada, T-1576-97 (F.C.T.D.).

26. In its dismissal request, Cardinal River Coals suggests that the Director would actually have violated EPEA had he postponed deciding whether to issue an Approval pending the outcome of the Camp's court claim. November 27, 1998 letter from Dennis Thomas, Q.C., to the Board, p. 5. The Board need not decide this issue.

27. Cf., e.g., Schmidt v. Toronto-Dominion Bank, [1995] 24 O.R. 3(d) 1, 82 O.A.C. 233 (Ont. C.A.) (Refusing to dismiss appeal at the outset for lack of merit because the validity of the parties' claims could not be readily determined).

28. December 11, 1997 Ladouceur letter to AEP - "Re: File #60275, Water Resources Act".

29. December 14, 1998 E-mail from Ms. Ladouceur to the Board.

30. See Environmental Protection and Enhancement (Miscellaneous) Regulation, AR 118/93, s. 2(1)(a) (newspaper notice of approval applications is sufficient).

 

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