Appeal No. 99-012-016, 99-019-126 & 00-001-002

 

Date of Discontinuance of Proceedings - April 26, 2000

 

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 appeals filed by Mr. Roy Haugen, Director and Acting Secretary, on behalf of himself and the Concerned Citizens of West Central Lloydminster, Ms. Leola Brost, Mr. Mattheus Brost, Mr. Gerald Henry Duncan Smith, and Mr. Joe and Ms. Patricia Rooks. The appeals are with respect to Approval 144-01-00 and Amending Approval 144-01-01 issued to ADM Agri-Industries Ltd. by the Director, Parkland Region, Alberta Environment.

Cite as: Haugen et al. v. Director, Parkland Region, Alberta Environment re: ADM Agri-Industries Ltd.

 

TABLE OF CONTENTS

BACKGROUND 1
DECISION 9
 

BACKGROUND

[1] On March 29, 1999, the Director, Parkland Region, Alberta Environment (Department), issued Approval 144-01-00 to ADM Agri-Industries Ltd. (Approval Holder) for the construction, operation and reclamation of an oil seed processing plant in the City of Lloydminster. On December 10, 1999, the same Director issued Amending Approval 144-01-01 to ADM Agri-Industries Ltd. authorizing the expansion of the existing oilseed processing plant in Lloydminster. The Board received 113 Notices of Appeal with respect to Approval 144-01-00 and two Notices of Appeal with respect to Amending Approval 144-01-01.

[2] Between the dates of April 10, 1999 and April 30, 2000, the Environmental Appeal Board (Board) received 113 Notices of Appeal, from Mr. Roy Haugen, on behalf of himself and the Concerned Citizens of West Central Lloydminster(1), Mr. Mattheus Brost, Ms. Leola Brost and, Mr. Gerald Henry Duncan Smith (Appellants), objecting to the March 31, 2009, expiry date of Approval 144-01-00. On January 10, 2000 and January 14, 2000 the Board received Notices of Appeal from Mr. Joe and Ms. Patricia Rooks, and from Mr. Roy Haugen on behalf of himself and the Concerned Citizens of West Central Lloydminster (Appellants), objecting to Amending Approval No. 144-01-01.

[3] From April 14, 1999 to April 26, 1999, the Board acknowledged receipt of the Notices of Appeal from Mr. Haugen et al., Mr. Brost, Ms. Brost and Mr. Smith. On January 12, 2000, the Board acknowledged receipt of the Notices of Appeal from Mr. Haugen et al. and Mr. and Ms. Rooks, regarding Amending Approval 144-01-01. At that time, the Board also requested a copy of all correspondence, documents, and materials relative to the appeals from the Department. On the same date, the Board also wrote to ADM Agri-Industries Ltd. advising them of the appeals and provided them with a copy of the Notices of Appeal.

[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 the NRCB and the AEUB stating that they did not hold any hearing or review under their respective legislation.

[5] On July 7, 1999, copies of the documents requested by the Board were provided by the Department and copies were forwarded to the Approval Holder and all the Appellants in a letter dated July 8, 1999. In these same letters to the parties, the Board asked the parties if they wished to have a mediation meeting under section 11 of the Environmental Appeal Board Regulation(2) and if there were any other persons who may have an interest in the appeals.

[6] On July 12, 1999, the Board received a letter from the Department indicating that they were prepared to participate in a mediation. On July 15, 1999, the Board received a letter from Mr. Roy A. Haugen, Director and Acting Secretary of the Concerned Citizens of West Central Lloydminster, advising that the Appellants, would be available to attend a mediation. On July 15, 1999, the Approval Holder responded to the Board's letter of July 8, 1999, advising that they too would be available to participate in a mediation. The Board subsequently advised the parties in a letter dated July 22, 1999, that a mediation meeting had been set for August 26, 1999, in Lloydminster. Following the mediation meeting on August 26, 1999, a second mediation meeting was scheduled for September 28, 1999, in Lloydminster.

[7] On September 23, 1999, the Board received a letter from the Approval Holder requesting that the mediation scheduled for September 28, 1999, be re-scheduled to October 14 or 19, 1999, as they were assembling a draft resolution document for discussion with the Appellants. After consultation with the parties, the Board scheduled the second mediation meeting for November 4, 1999.

[8] Following the mediation meeting on November 4, 1999, the Board wrote to the parties in a letter dated November 5, 1999. The letter stated:

"As discussed at the mediation meeting, Mr. McInnes will continue to draft an agreement and forward to this office on November 15, 1999. In turn, it will be distributed to all other parties for their review and asks that you provide your written comments soon thereafter to this office.

As also discussed, a third mediation meeting will be scheduled for November 30, 1999 upon confirmation from all parties that this date is agreeable. ..."

[9] On November 17, 1999, the Board received a letter from the Approval Holder stating:

"As discussed this morning, other commitments and a need for review of the concepts presented at the November 4th mediation meeting has delayed my consolidation of the issues into a discussion document. I hope to have a document available by next Wednesday, November 24th, 1999. I apologize for the extra time requested."

[10] Mr. Haugen wrote to the Board on November 18, 1999, in a letter stating:

"On behalf of the 110 appellants that I represent I wish to thank the Mediator, Dr. John Ogilvie for his professional approach and effort in trying to arrive at a solution by mediation.

If a solution is not realized, it will not be with any fault to Dr. Ogilvie.

We, however, are most concerned with the time that has been taken up with the mediation process.

We now ask that the earliest possible date/dates be set for the Appeal hearing."

[11] On November 19, 1999, the Board received the draft resolution document from the Approval Holder and distributed to the other parties to the appeals.

[12] The Appellants, wrote to the Board on November 22, 1999, in a letter stating:

"We appreciate and are thankful for the effort and work that Mr. McInnes and others have put into the preparation of the "discussion document. ..."

Further to our letter of November 18, 1999 in which we asked that the earliest date/dates be set for the appeal hearing. We believe that sufficient mediation time has been allowed to all parties.

The "discussion document" does not meet with our bottom line requirements for us to withdraw our "Notices of Appeal."

We do not believe that a mediation meeting on November 30, would result in an agreement and may not be necessary. ..."

[13] The Board wrote to all parties to the appeals on November 23, 1999, stating the following:

"Further to our conversation with Mr. Roy Haugen, the Board requests the parties confirm that the mediation meeting scheduled for November 30, 1999, will proceed. The Board also requests that the parties provide their available dates for January 2000, for an appeal hearing in this matter, by November 25, 1999."

[14] The Department replied to the Board on November 25, 1999, suggesting that unless there was some indication from the parties that a resolution was possible, it may be more appropriate to proceed with the appeal process. The Department also suggested, if the parties were in agreement, it may be more appropriate to schedule a preliminary meeting to determine the issues for the appeal hearing and to discuss any necessary procedural issues.

[15] The Approval Holder responded to the Board in a letter dated November 26, 1999, advising in their view a further mediation meeting would not be successful, and suggested steps be taken to proceed with the appeal. They also suggested that a preliminary meeting would be useful in order to determine the issues and to review any other matters which may be deemed necessary.

[16] The Board informed the parties in a letter dated November 26, 1999, that the mediation meeting set for November 30, 1999, would be cancelled as the Board did not have consent from all parties to proceed.

[17] On November 29, 1999, the Board received a letter from Mr. Haugen stating that Mr. Ron Girvitz would now be representing all the Appellants that Mr. Haugen represented as well as Mr. Haugen, Mr. Smith and Mr. and Ms. Brost.

[18] On January 4, 2000, the Board scheduled a preliminary meeting in this matter for January 31, 2000, in Calgary, and at the same time scheduled an appeal hearing in Lloydminster for April 25 - 28, 2000.

[19] On January 12, 2000, the Board received Notices of Appeal from Mr. Joe and Ms. Patricia Rooks and from Mr. Roy Haugen on behalf of the Concerned Citizens of West Central Lloydminster, with respect to Amending Approval 144-01-01.

[20] The preliminary meeting took place as scheduled on January 31, 2000, in Calgary. Following the preliminary meeting on January 31, 2000, the Board issued a decision dated March 1, 2000. Included in this decision, the Board wrote that it would consolidate the appeals of Approval 144-01-00 and Amending Approval 144-01-01. The Board also requested the parties submit a schedule for the conduct of the remainder of the appeals scheduled for April 25 - 28, 2000, in Lloydminster.

[21] The Board received a letter from Mr. Haugen, on behalf of the Concerned Citizens of West Central Lloydminster, dated March 4, 2000, requesting interim costs in order for their lawyer, Mr. Girvitz, to do the necessary research and attend the hearing at Lloydminster. After consultation with the parties, the Board declined the Appellants' application for interim costs in its letter of March 20, 2000. The Board received a letter March 28, 2000, from Mr. Girvitz advising that he no longer acted on behalf of the Appellants and to direct all future correspondence to Mr. Haugen.

[22] On March 31, 2000, the Board wrote to the parties stating the following:

"The Board acknowledges receipt of letters from Mr. McInnes dated March 8, 2000, and Mr. Haugen and Ms. Smart dated March 28, 2000, regarding the proposed schedule for the appeal hearing...

Further to the telephone conference of today between myself, Mr. Haugen and Ms. Smart, and through voice mail confirmation with Mr. McInnes, the attached reflects the new filing schedule. ..."

[23] On April 3, 2000, Mr. Haugen wrote to the Board stating:

"The information describing "advise by Mr. Girvitz" does not now represent our position in that we do not have legal assistance.

While we do not at present have any intention to call expert witnesses it may become necessary, in response to information by other parties.

We ask that the words "reports etc." be removed from the schedule. We will be dealing with many reports during the hearing, including the health risk reports, and others that we will provide with our documentation".

[24] Mr. Haugen again wrote to the Board on April 10, 2000, advising that future submissions made by Mr. Haugen with regard to the conduct and procedures of the appeal hearing would be on behalf of Mr. Haugen, Mr. Smith and Ms. Brost.

[25] On April 12, 2000, the Board wrote to the parties advising the following:

"Pursuant to section 11 of the Environmental Appeal Board Regulations, the Board on its own motion, is establishing a date for a mediation meeting/settlement conference for Tuesday, April 25, 2000. It is proposed that Dr. William Tilleman, Q.C., serve as the Board's mediator. ..."

The mediation, however, did not take place as consensus could not be reached among the parties.(3)

[26] On April 17, 2000, the Board wrote to the parties confirming the commencement of the appeal hearing on April 25, 2000, and in the same letter also reminded the parties of the deadline for filing their written submissions.

[27] The Board received written submissions from the Appellants between the dates of April 5 - 12, 2000. The Board forwarded the Appellants written submissions to the Approval Holder and the Department. The Board received written submissions from the Department and the Approval holder on April 18, 2000.

[28] On April 19, 2000, the Board received a letter from Mr. Haugen stating:

"April 18, 2000 was the date set by others as the dated that final submissions would be provided to all parties to the hearing.

At the end of normal business hours April 18, 2000 we felt that since there were no further submissions to be received, and that there was a possibility that we could put together enough information to make a reasonable contribution to the hearing.

At 4:30 p.m. the writer received a 28 page fax from Joanne Smart of Alberta Justice. There was no indication on the fax that Mr. Joe and Ms. Pat Rooks, Mr. Mattheus and Ms. Leola Brost, and Gerald H.D. Smith had been properly notified within the time period specified.

With respect to the Alberta Environmental Appeal Board:

On behalf of the appellants that I/we represent and in the search for normal justice I believe that we may be the victims of unusual procedures by others, and we request that the hearing scheduled for April 25 to 28, 2000 be set aside until:

1. that our request for adequate interim costs is provided in order for us to get competent legal help since we can not get justice if we try to represent ourselves considering the other parties have a total of four lawyers.

2. that we be allowed time for a lawyer to prepare a proper submission.

We emphasize that the request above is submitted with respect to the Board and in no way is there any fault with the Board.

However if our request can not be accommodated then we have no alternative but to consider the withdrawal of our notices of appeal, under protest."

[29] The Board replied on April 20, 2000, to Mr. Haugen's letter of April 19, 2000, advising the Appellants that they would not grant their requests, that the Board's prior decision with respect to interim costs still stands and that the Board believes the Appellants had ample time to prepare their submissions.

[30] On April 20, 2000, the Board received a letter via fax from Mr. Roy Haugen, withdrawing the appeals. The fax stated:

"On behalf of the above appellants I, with regret, but with strong protest, withdraw all the Notices of Appeal of the appellants that I represent..."

The Board also received letters on April 20, 2000, from Mr. Smith, Ms. Brost, and Mr. and Ms. Rooks, advising that they too would be withdrawing their Notices of Appeal.

DECISION

[31] Pursuant to Section 87(7) of the Environmental Protection and Enhancement Act, and based on Mr. Haugen, Mr. Smith, Ms. Brost, and Mr. and Ms. Rooks' letters of April 20, 2000, the Board hereby discontinues its proceedings in Appeal No's. 99-012-016, 99-019-126 and 00-001-002 respectively, and will be closing its files.

Dated April 26, 2000, at Edmonton, Alberta.

Dr. William A. Tilleman, Q.C.


FOOTNOTES

1. Mr. Roy A. Haugen, Director and Acting Secretary, Concerned Citizens of West Central Lloydminster representing Appellants: Katherine Mary Smith, Anne Drummond, William Drummond, Donald Smith, Loretta Smith, O.P. Gupta, Shane Gustavsen, Linda Gustavsen, George Bailey, Phyllis Milne, Rose Meyers, Doris Blize, Oscar Blize, J. Stenlyk, Kevin Mills, Chris Stevens, Ray Stevens, Dennis Polischuk, Patricia Polischuk, Margaret Haugen, Leona Necember, Steve Necember, Henry M. Knitter, Jean Knitter, Barbara Vert, Clifford Vert, Harold Hathaway, Louise Hathaway, EA Holmes, J. Louise Swanson, Ralph Swanson, J. James Manarey, Anne Willard, Roy Lowenberg, Marilyn Lowenberg, Eunice Brazdil, Brian Watchel, Lori Watchel, Jim Walsh, Olga Walsh, Tonya MacPhaden, Gordon Meunier, Darlene Meunier, David Watchel, Shirley Watchel, Joe Halbach, Dawnella Carpendale, Belinda Halbach, William Scott Alexander, Katherine Alexander, Adrian Beauvais, Tracy Mills, Janet Kirsop, Tara Wenzel, Annie Hafstein, Helen Manarey, Vivian Scott, Darryl Thiessen, Mildred Okerstrom, Dianne Sakowsky, Emil Sakowsky, Beatrice McNeil, C. McNeil, Nancy Utley, Jim Utley, Susan Chaurin, Jacques Chaurin, Margaret Dalton, Donald Dalton, James King, Vic Ostertag, Jean Ostertag, Jay Ostertag, Helen Wenzel, Emil Wenzel, Joe Rooks, Patricia Rooks, John Berry, Eileen Berry, Margaret Lightfoot, R.H. Lightfoot, Donna Sander, Ann Babyn, Mark Snider, Margaret Lonsdale, S. Locke Lonsdale, Jim Bonnar, Ervin Wenzel, Hilda Bonnar, Margaret Gallagher, Don Spence, Doris Spence, Modni Sookram, Barb Sookram, Donna Germann, Jerry Germann, Brenda Smyth, Richard Smyth, C.H. Hollington, Mildred Payne, George Payne, Robert Ringland, Gary Bennett, Gloria Bennett, William Kuzyk, Mary Kuzyk, Earl Hegedus, John Dow, Susan Dow.

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

3. Significantly, on April 13, 2000, the Board received the following letter from Ms. Joanne Smart representing the Department:

"Further to the Board's letter of April 12, 2000, the Director would be pleased to attend a further mediation with the parties on the 25th of April in Lloydminster. For clarity, the Director has not been a party to any mediation discussions with the Board as suggested.

The Director does not consent to the mediator being a member of the panel that may need to hear the appeal. The Director would be concerned about the potential for apprehensions of bias."

In a further letter of April 14, 2000, she stated on behalf of the Department:

"Further to the Board's fax of today respecting further mediation, the Director is not available next week to participate in a mediation. The Director would be available on the 25th as the Board initially suggested.

The Director will not agree to have the mediator sit as a member of a panel."

 

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