2001 ABEAB 13                                                                                            Appeal No. 01-007-D

                                                                                                                    Date of March 20, 2001

IN THE MATTER OF Sections 84, 85, and 87 of the Environmental Protection and Enhancement Act, S.A. 1992, c.E-13.3.

-and-

IN THE MATTER OF an appeal filed on January 10, 2001 by Mr. Rod and Ms. Bee Van Metre with respect to Approval No. 00141216-00-00 issued under the Water Act to the County of Vermilion River No. 24, by the Director Regional Support, Parkland Region, Natural Resources Service, Alberta Environment, for the exploration of Groundwater on SW 34-052-01-W4.

Cite as:            Van Metre v. Director Regional Support, Parkland Region, Natural Resources Service, Alberta Environment, re:  County of Vermilion River No. 24.

TABLE OF CONTENTS

BACKGROUND......................................................................................................................... 1

Decision................................................................................................................................... 3

BACKGROUND

[1]                    On December 13, 2000, the Manager, Regional Support, Parkland Region, Alberta Environment (the “Director”) issued Approval No. 00141216-00-00, under the Water Act, S.A. 1996, ch. W-3.5, to the County of Vermilion River No. 24 (the “Approval Holder”), authorizing the exploration of groundwater on SW 34-052-01-W4, subject to conditions.

[2]                    On January 10, 2001, the Environmental Appeal Board (the “Board”) received a Notice of Appeal from Mr. Rod and Ms. Bee Van Metre, dated January 9, 2001 (the “Appellant”), appealing the Approval.

[3]                    On January 17, 2001, the Board acknowledged receipt of the Notice of Appeal and at that time requested a copy of all records (the “Records”) related to the appeal from the Director.  On that same date the Board also notified the Approval Holder of the appeal.

[4]                    According to standard practice, on January 17, 2001, the Board wrote to the Natural Resources Conservation Board (the “NRCB”) and the Alberta Energy and Utilities Board (the “AEUB”) asking whether this matter had been the subject of a hearing or review under their respective Board’s legislation.  Replies were subsequently received on January 23, 2001, from the NRCB and from the AEUB on February 2, 2001, indicating that this matter had not been the subject of a public hearing or review under their respective jurisdictions.

[5]                    On January 25, 2001, the Board wrote to the Appellant requesting further clarification regarding their Notice of Appeal, as the concerns expressed in the Notice of Appeal did not “…appear to relate to work that is authorized by the approval to explore that has been issued.  They appear to relate to the licence to divert that has, to the Board’s knowledge, not yet been issued.”  The Board’s letters further stated:

“In order for your appeal to proceed, you need to demonstrate to the Board how you will be directly affected (impacted) by the work that is authorized under the approval… Please note that if you wish to appeal the ‘licence to divert’ you will have to submit a separate appeal of that decision, if and when the licence is issued.  (Emphasis in original.)

[6]                    Also, on January 31, the Board received a letter from the Approval Holder stating:

“The County of Vermilion River #24 will not pursue exploration of water on SW-34-52-01-W4 and therefore will not require the APPROVAL No. 00141216-00-00 Pursuant To the Provisions Of The Water Act.”

[7]                    On February 1, 2001, in response to its request, the Board received the Records related to the appeal from the Director.  On February 6, 2001, the Board acknowledged receipt of the Approval Holder’s letter of January 31, 2001, and the Records from the Director.  Copies of the Records were forwarded to the Appellant and the Approval Holder.  The Board also requested the Director clarify the status of the Approval by February 16, 2001.

[8]                    On February 13, 2001, the Board received a copy of a letter from the Director to the Approval Holder requesting they confirm their intentions to surrender their Approval in order that the Director may cancel the Approval.  The Board acknowledged the letter and requested it be provided a copy of the Approval Holder’s response by February 21, 2001.

[9]                    The Board received confirmation from the Director in a letter dated February 21, 2001 that the Approval had been cancelled.  A copy of the cancellation was attached to the letter and the Board sent a copy to the Appellant in a letter also dated February 21, 2001.  The letter requested that the Appellant confirm whether or not they wished to withdraw their appeal by March 5, 2001.

[10]                  An attempt was made to call the Appellant’s residence on March 6, 2001 at which time a voice message was left asking the Appellant whether or not they would be withdrawing their appeal.  The Appellant phoned on the morning of March 8, 2001 and spoke with Board staff concerning the Approval and whether or not it would be reactivated.  Staff explained that the Approval was cancelled and any new Approval would need to go though an application process.  The Appellant was further informed that the Board did not have the jurisdiction to proceed with an appeal unless there was a valid Approval^[1].  Also in the voice message, staff indicated that the Board wanted to hear from her no later than March 16, 2001 concerning the status of the appeal.

[11]                  A letter was sent by the Board acknowledging the information provided to the Appellant in the voice message of March 12, 2001.  The letter also confirmed that failure to respond to the Board’s request regarding the status of the appeal may result in the dismissal of the appeal.  The letter was faxed to the Appellant on March 15, 2001 requesting a response by noon March 16, 2001. 

[12]                  The Appellant faxed a response to the Board on March 15, 2001 indicating that “At this time we do not wish to withdraw our appeal.  We still have the same afore-mentined concerns; so it would not make sense to with draw our appeal.”

DECISION

[13]                  Section 84 of the Environmental Protection and Enhancement Act (the “Act”) sets out the conditions which must be present before a notice of appeal may be submitted to the Board.  Section 84(1)(a) states:

                        84(1)    A notice of appeal may be submitted to the Board by the following persons in the following circumstances:

(a)    where the Director

(i)                 issues an approval,

(ii)               makes an amendment, addition or deletion pursuant to an application under section 67(1)(a), or

(iii)             makes an amendment, addition or deletion pursuant to section 67(3)(a),

This section essentially determines what conditions are necessary in order for the Board to proceed with an appeal.  In a letter dated February 16, 2001, the Director cancelled the Approval.  This means there is no Approval for the Appellant to appeal.  The Board therefore has no jurisdiction to continue.

[14]                  It should be noted that section 84(1)(c)^[2] allows for the appeal of a cancelled Approval.  This right to appeal however is available to the Approval Holder only.  In this case, if the cancellation were to be appealed, only the County of Vermilion River No. 24, as the former Approval Holder, could appeal.

[15]                  As the condition necessary for the filing of an appeal as premised in section 84(1)(a)(i) of the Act is not present, the Board dismisses Appeal EAB 01-007.

Dated on March 20, 2001, at Edmonton, Alberta.

_____________________

Dr. William A. Tilleman