Appeal No. 99-131


Date of Report and Recommendations - February 15, 2000

 

IN THE MATTER OF Sections 84, 85, 87, 92 and 93 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 the Lower Mosquito Creek Water Users Association with respect to Approval 1006-01-00 issued to the Town of Nanton by the Director, Prairie Region, Alberta Environment.

Cite as: Lower Mosquito Creek Water Users Association v. Director, Prairie Region, Alberta Environment re: Town of Nanton.

TABLE OF CONTENTS

BACKGROUND 1
THE MEDIATION MEETING/SETTLEMENT CONFERENCE 5

RECOMMENDATIONS

5
RESOLUTION AGREEMENT 7
ORDER 11

 

 

MEDIATION MEETING BEFORE

 Dr. John P. Ogilvie

APPEARANCES

Appellant: Mr. Michael Swanson, counsel, Beaumont Church, representing Ms. Diana Andrews, Mr. Ron May, Mr. Gerald Lyon, Lower Mosquito Creek Water Users Association

Approval Holder: Mr. Roger Kerans, representing His Worship Mayor Ken Curle, Town of Nanton, Ms. Karen Harty, Administrator, Town of Nanton

Department: Mr. Alan Pentney, Director, Prairie Region, Alberta Environment, Mr. Wayne Williams, Municipal Coordinator, Prairie Region, Alberta Environment

Other Participants: Mr. Les Krasman, Champion Little Bow Water Coop

BACKGROUND

[1] On May 11, 1999, the Director, Prairie Region, Alberta Environment, issued Approval 1006-01-00 to the Town of Nanton for the construction, operation and reclamation of a wastewater system consisting of a Class II wastewater treatment plant, a Class II wastewater collection system, a storm drainage system and snow storage facilities for the Town of Nanton.

[2] On June 8, 1999, the Environmental Appeal Board (Board) received via fax a Notice of Appeal dated June 4, 1999, from Mr. Michael Swanson, counsel, Beaumont Church, on behalf of the Lower Mosquito Creek Water Users Association (Appellant), objecting to the Approval issued to the Town of Nanton (Approval Holder) and requesting a Stay of the Approval.

[3] The Board wrote to the Appellant on June 8, 1999, acknowledging receipt of the Notice of Appeal, and by copy of that letter, requested the Department of Environment (Department) provide copies of all related correspondence, documents and materials related to this matter.

[4] According to standard practice, on June 8, 1999, 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 neither Board held a hearing or review.

[5] On July 14, 1999, the Board wrote to the Appellant, the Approval Holder and the Department requesting that the parties advise whether they wished to have a mediation meeting/settlement conference 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. The Lower Mosquito Creek Water Users Association were asked in their letter from the Board to explain how they were directly affected by the Approval and to explain in more detail the environmental concerns they had with the Approval. The Board also enclosed for the Appellant and the Approval Holder the information received from the Department on July 13, 1999.

[6] The Department responded on July 27, 1999, advising that they were willing to participate in a mediation meeting/settlement conference. In reference to the issue of "directly affected" posed to the Appellant, the Department provided the following concerns:

"1. The ability of the 'community association' to be directly affected by this Approval?

2. The lack of information as to how the individual members of this community association are directly affected by the terms of this Approval?"

Additional comments were provided by the Department in their letter of September 10, 1999.

[7] The Board received a response from the Mayor of the Town of Nanton on July 25, 1999, advising on behalf of the Town that he would be willing to participate in a mediation meeting and that the "Town CAO and Director of Public Works are other town interested persons." On August 11, 1999, the Appellant provided a response to the Board outlining how they were directly affected and explaining in detail their environmental concerns with the Approval. The Appellant also provided a list of several potentially interested persons.(2)

[8] On September 13, 1999, the Board advised the parties that a preliminary meeting would be held on September 23, 1999, in Calgary. In its letter, the Board outlined the procedures for the preliminary meeting and the purpose and advised that it would deal with the following issues:

"(a) the directly affected issue as contemplated by section 84 of the Environmental Protection and Enhancement Act; and

(b) whether or not the approval should be stayed."

[9] In response to the Board's letter on the preliminary meeting procedures and issues, the Department stated on September 16, 1999 that the only mention of an Order staying the approval is in the relief requested section of the Notice of Appeal and that there is no written application for a Stay. The Department further commented that: "It is the Director's position that Section 89(2) contemplates a two-step process. Firstly, a Notice of Appeal has to be filed in a manner, and then a separate application has to be made for a stay. In this matter, no separate written application for a stay has been made to the Board. Given the provisions of the legislation, the Director expects this legislative process to be followed." On September 16, 1999, the Board received a letter and attaching a Notice of Application for Stay of Approval from the Appellant. As a result of the Appellant's September 16, 1999 letter, the Department requested an adjournment of the Stay application scheduled for September 23, 1999. The Board also received a letter from counsel for the Town of Nanton requesting an adjournment of the Stay application.

[10] On September 20, 1999, the Board advised the parties that it would consider the Appellant's application for a Stay through written submissions rather than at the September 23, 1999, preliminary meeting and outlined the schedule for submissions. A further letter was provided to the parties on September 21, 1999, advising that the preliminary meeting set for September 23, 1999, was cancelled. Letters were subsequently received from the Town of Nanton and the Department advising that they would not be disputing the issue of directly affected.

[11] On September 28, 1999, the Board received a letter from the Appellant requesting that their application for a Stay be adjourned sine die. The Board granted this request by way of letter of September 28, 1999, to all the parties and advised that a mediation meeting would be scheduled in consultation with the parties.

[12] The Board scheduled the mediation meeting for December 8, 1999, in Calgary.(3) As a result of Mr. Swanson's request of October 29, 1999, the mediation meeting of December 8, 1999, was postponed.

[13] On November 10, 1999, the Board advised the parties that the mediation meeting has been scheduled for February 9, 2000, in Nanton, Alberta, and hearing for February 23, 2000, in Calgary, Alberta. The Board also provided notice of the hearing to several other persons.(4) A Notice of Mediation Meeting/Settlement Conference and Public Hearing was placed in the Nanton News on November 17, 1999, and the Advocate on November 24, 1999.

[14] The Board received requests for representations from Little Bow Resort Inc., Champion Little Bow Water Co-op and the Plainfield Water Users. On December 2, 1999, the Board requested that the Department, the Approval Holder and the Appellant provided their comments with regard to the requests for participation. The Department advised on December 10, 1999, that they objected to the parties being given intervenor status and the Approval Holder concurred with their position. The Appellant, however, stated in their letter of December 21, 1999, that the Little Bow Resort Inc., Champion Little Bow Water Co-op and the Plainfield Water Users had a genuine interest in the appeal and should be granted intervenor status. The Plainfield Water Users Ltd. withdrew their request for representations in a letter of January 7, 2000. The Board advised the Little Bow Resort and Champion Little Bow Water Co-op that they may participate at the mediation of February 9, 2000, and depending on the outcome of the mediation the Board would then determine if they may participate in the hearing, and if so, the manner in which it would be carried out. On February 7, 2000, the Board received a letter from the Little Bow Resort withdrawing their request for representation.

THE MEDIATION MEETING/SETTLEMENT CONFERENCE

[15] Pursuant to section 11 of the regulations the Board conducted a mediation meeting/settlement conference in Nanton, Alberta on February 9, 2000, with Dr. John Ogilvie as presiding Board member.

[16] According to the Board's standard practice the Board called the mediation meeting in an attempt to mediate or facilitate through a settlement conference 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.

[17] In conducting the mediation meeting, Dr. Ogilvie reviewed the appeal and mediation process and explained the purpose of the mediation meeting. He then circulated copies of the "Participants' Agreement to Mediate" which all participants signed.

[18] Following productive and detailed discussions, a resolution evolved and the attached settlement was signed (pages 7-10 of this report).

[19] On February 15, 2000, the Board received a letter from the Town of Nanton enclosing Council's Resolution. The letter of February 15, 2000, states the following:

"At the Regular Meeting of the Council of the Town of Nanton held Monday, February 14, 2000, Council ratified settlement reached amongst the parties participating in the February 9, 2000, Mediation Meeting regarding the above-described approval. Attached you will find a copy of resolution in Council for your records".

 

RECOMMENDATIONS

[20] The Board recommends that the Minister of Environment approve the conditions of the Resolution contained herein.

[21] Further, with respect to section 92(2) and 93 of the Environmental Protection and Enhancement Act, the Board recommends that copies of this Report and Recommendations and of any decision by the Minister by the Board be sent to the following parties:

Dated February 15, 2000, at Edmonton, Alberta.

Dr. John P. Ogilvie

 

ORDER

I, Gary Mar, Q.C., Minister of Environment, pursuant to Section 92 of the Environmental Protection and Enhancement Act, hereby order make the order in the attached schedule being the Environmental Appeal Board Appeal number 99-131-R Order.

DATED at the City of Edmonton, in the Province of Alberta, this 29th day of February, 2000.

Honourable Gary Mar, Q.C.
Minister of Environment


FOOTNOTES

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

2. Champion West Water Coop, Champion Little Bow Water Coop Ltd., Plainfield Water Users Ltd., Champion East Water Coop, Nine Road Water Coop, Carmangay Water Co-op, Towns of Vulcan, Champion, Carmangay, Enchant, Vauxhall, and Hays, Mr. and Mrs. Glen Faith, Little Bow Hutterite Colony, Carmangay Hutterian Brethren, M.D. of Willow Creek (Clear Lake Recreation Development), Little Bow Provincial Park, Little Bow Resort, Headwaters Regional Health Authority, Chinook Regional Health Authority, NRCB, and the Canadian Environmental Assessment Agency (CEAA).

3. A Notice of Mediation Meeting/Settlement Conference and Public Hearing was placed in the Nanton News on October 27, 1999, stating that a mediation meeting/settlement conference would be taking place on December 8, 1999.

4. Champion West Water Coop, Plainfield Water Users Ltd., Mine Road Water Coop, Town of Vulcan, Village of Carmangay, Mr. and Ms. Glen Fath of Champion, Carmangay Hutterian Brethren, Little Bow Provincial Park, Headwaters Regional Health Authority, Natural Resources Conservation Board, Champion Little Bow Water Coop Ltd., Champion East Water Coop, Carmangay Water Co-op, Village of Champion, Town of Vauxhall, Little Bow Hutterite Colony, M.D. of Willow Creek, Little Bow Resort, Chinook Regional Health Authority, M.D. of Taber and the Alberta Region of the Canadian Environmental Assessment Agency (CEAA).

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