01-17-13;03;22PM; Andrew C L Sims Q, C, Couxt of Queen's bench of ~lbexta Cicat~o~a: Alberta Wilderness Association v Alberta (Enviromzaeatal ,p~ppcal Board),Z 0~.3 ABQB 44
Bctwe~~: Alberta•~V'ildcrreas ,,4,,ssoc~at~o~n,'~'tro~t Uul~~ited Canada and Water Matters Society of Alberta
The Environmental A~pea~s Board, Director, Southe~ru Region, Alberta Environment aid Susta~~~b~c Resouxce Dovelop~aomt, how R~vet~ X~rr~ggtion A~strict, Weste~~ Yrrigation District and the Minirster of Justice amd ,4ttoraey General ~oX Alberta ],tespoz~dent5
Reasons for Judgment o£ the I~onourab~e Mr. Justice R, J, Hall
[1) 'I~his matter comes before zne for Judicial ~teview ova dcci~sxon o:~the ~116ez~a Envirot~men`a1 Ap~ea~s hoard (the "Board") oP7une 2,2 012, wherein the Board issued a decision dez~yi~g public irnerest standing to the Applicants in a series of ag~eals which the ,Applicanu wished to file." xhe App~~cants wished to appeal the decision o~the Director off' Alberta. Envixor.~~r~t and Sustainable Resource Jaevelopment {"~4ESRD") wherein he approved amendments'~ to water licences hold by the Res~~ndemcs WeSte~rn Iz~c'igatioi~ Aisvict {"WID'~ and the Bow River Yrrigatior~ Aistri~t( "BRIA'.) [2J Applic~ti4ns were made t4 AL~SRD by B~.tIA and WID to annend certain water licences. The Appliea~ts filed St~texn~nts o~ Concern with respect to those applications, and did so inn a
;7804236813 # 2/ C~.ERK OF T.'~~ CpURT JAN 1 7 201 CALGARY,A l.E3ERTA
Aate: Docket: 1201 07570 . Registry: Calgary Applicants a~ad
01-17-13;03:22PM;Andrew C L Sims Q.C. ;7804236813 # 3/ Page: 2 timely manner. Tk~e Director of AESRA gave notice to tl~,c Applicants that he did mot consider them to be directly af#'ect~d by the ap~azeatioas a~rad that their submissions wed wpuld not be considered 2►S a Statement of Cot~cem undez tt~c YYater Act. [3J The Dizector of AESRD approved tk~e ap~lication.s to amend the BRZD at~d ~lVZA water licences. The Applicants then c3ch filed Notices of Appeal with the Board, appealing the DxTector's approval o~'those applications. [4] The aaa~d xx~vzted submissions from the parties om the ~re~aminary 9uestion of whether the Applicants were directed affected by the licence a~uenci~rxe~au. ~,i their subm~,ssions on the preliminary questions, the Applicants azgued that they were duectly affected by the licence amendments. In the a~cernative, they argued that'they should be granted public interest ste~ndir~g to bring the appeals. (SJ The $oazd determined that the Applicants were not directly affected by the licence amendments, ui this judicial Ytevxew, the ,P~pplicants have not attacked that decision, and that issue is got bo£oxe me. [6a ~e Board also dete~xaed tk~at ~t did not have jurisdxctioz~ to grant public intcresc ste~nding, stating in its decision at paragz~apbs 134 and 135: 134 , .. Tha Board's ar~abliz~g Aegi.slaiipx~ does not provide it with the powers to determu►e public xz~terest staxiding, bn order for the Board to have jurisdiction to hear ant a~~ea~, th,e ~egis~~oa requires the appeal to be filed by someone who has filed a Statement of Concern and'is directly affected by the Director's dacisaoz~. This is $preliminary znattex that'tk~e hoard must determine before it carx proceed to a substantive hearing, but it does not give the Board the ability to detern~,~z~e if an Appellant should b~ granted pubic interest sta,~diz~g. 141 The Board ca~ot Azad will not graa~t public intoxest standing to'the Appellants in, tk~esc circumstances. Grantzng pubic interest staadin,g is not Within ~che Board's jurisdiction.
[7] It is this det~rm~~.ation by tha hoard, that it does not have jurisdiction to grant public interest standing, that is tk~e subject of this Judicial ~,Zeview. [8] If, i~a Ibis Judicial Review, my f~adu~gs accord with that of the Board, then tk~at ends this review. If, however,I d ~cxde coatTary to the Board, thenI a nust thereaRer determi~,e wl~etha~c, in eirct~rc~stauces, public interest sta~diag sY~ould 'have been grated by one Board, or these altemative~y direct the matter back to t~,e Aoard for its consideration o~ whether public interest standing should bo granted in these paTtieular matters.
01-17-13;03:22PM;Andrew C L Sims Q, C, ;7804236813 # 4/ Page: 3 Standard of Review [9) xhc A~plic~ts u=$e upo~a me that, with respect to the question o~ the ~oaacd's jutisdict~on, the standard o~ review should be co~xectn~ss. With respect to the Board's decision that public interest standing sbou~d not be granted in this matter, tl~e standard o~tavxew should be ~oasonab~e~ess.
C14J The ~cspondez~ts argue mat,i n respect oFeach oFthe twQ issues, the Sterldard Of review should be reaSoz~ableness. They ague, in respect oft he first issue, that the Boazd is called upon tune-and-time again to rc~ake d~cisxoxss as to wk~~th~~ au appe~Iant has Standing to brink an appeal. 'I'~ey note that the Board is constituted pwrsuant to tic~e Environmental Frorecr Enhance►nen~ Act, c~nd that section 142 o~that Act ~s a fu11 pz~vative clause. They argue tk,,at this Court should show great deference to the decision o~ the Board in respect to the ~xst $toted issue, ~ weld as in regard t0 the second stated issue.
~1~ 1 True questions of jurisdi~ciion or vires, attract the correctness standard of review. The Supreme CouR of Canada in Dunsmutr v New Brunswick (Board ofM anagement) 2008 SCC 9, [2008] 1. SCR 190 cells us, at pa~'agraph 59: "Jutisdi~ct~oz~" is iuA,tcndGd i~ the narrow sezise o~ wk~ether ox not the tzibunal had the authority to make tlae inquiry. In other words, true jurisdiction questions arise whez~e the trxbut~I ~'iust explicitly dctezmine whether its statutory granted dower gives it tie authority to decide the particular m~etter. [12J To my mind, issue niunber 1 is exactly what is described i~ Dwts~nz~ir above. Accordingly, Y end tk~a~ the standard 4~' xev~ew xe~axding issue number 1. is correctness. (13J The parties agree that the standard of review regarding issue number 2 is reasonableness. Y9Sl~C ~ (1a~ Aoes tZ'te Board have jurisdiction to hear an appeal from Appl~eants who were not d~reetly a~'ected by the decision of the'Director, oz~ the basis mat the App~ica~ots aze to be granted public ir~terest standing? [15j The Ditecto~'s decision is ome made pursuant to the Wazer Act, of Alberea, The Wares Act p~ovidcs the cizcurnstances under which such a deeisio~ may be appealed. Section 1~ 5(~)(c}(i) of the Water Act states:
115(1,)(e)(i} A ~ohce of appeal under this Act iz~,ay be sub~mxtted to the Envi~oamental Appeals Board by the following ~ersaz~,s is the following circumstances:
01-17-13;03:22PM;Andrew C L Sims Q, C. ;7804236813 # 5/ 9 ~~ge: 4 (c) if a pzelixninaxy certi~iGate bas not bey issued witk~ respect to a licence and the Director issues or amends a liccmce, a notice o~ appeal may be submitted
(i) by the licensee or by any person wk~o pr~::;,usly submitted a statex~n,c~t off'c ox~~ez~ ire accordara,ce wx~,S Gctioz~ 109 who is direct~yaffected by the Directpr's decision, if notice oft he a~p~~catio~n ox ~z~opvsed e~a~ges was pz~ev~ously provided under section 108... [16] It is to be noted that tk►er~ is no pxovisivn ire the Water Act that a~~ows for an appeal of a Director's decision beyond the ~rovis~ons of Section ~~5(1)(c)(x). most izz~porcandy, #hPae is rip provision tk~at provides chat a notice o~ appeal maybe subzr~atted by any other Berson, not described in that section. Ti~ere is no provision iz3 the Water ~(ct allowing tb,e Board to pez~aat any person not described in the section to submit a notice of appeal. [17J The Board ~s constituted wader tb,e Environmental Aroi'ee~io~ Enhane~ment,h(ct ("F,~P£A"). Ceu'tain powers ire giva~ to the Hoard under that Act. However, the Bvard's jurisdictxoz~ ar►d authority to sit in appeal in relation to matters arising out of the Warsr Act comes not &oxn the EPEA, but from the TYater dct. t~8] Section 115(1)(c)(i) is very clear as to who rtiay give ~otiee of ap~eal.'],'bat person or organization must b~ve sttbmiMed a statozaex~[ o£ cox~cem to the Director. Z~ this instance, such stat~mez~ts oP ebncetn were submitted, ar~d the Applieazus ~,uali~y on that b~is. [19] In addition, the person wiskung to subz~xt a uocice of appeal must be a peFson why is direat~y affected by the Directoz~'s decision. (20~ A,s stated 8bove, the hoard has determined that the ,~4p~lieants k~~xeita w~xe mot directly affccccd by the Director's decision, the Ap~lica~ts have not sought Tudicial Review of that determination, and tkaat determination stands for purposes of this Judicial Review. (2~,J A,ecoxdizxgly, the Appiicants do not qualify as persorts who z~nay submit a notice of appeal under Section 115(1)(e)(i) of tk~e Warer Aer. [22] The A~plicarits, however, argue that the hoard leas the power to grant public interest standing. The .+~~~~icar►ts argue by ana~agy frorra cases where ~c Court has deten»ined that, ~uisuanc to the Court's i~herez~t jurisdiction, tt~e Court can grant public interest standing. [23) While Courts knave uthercnt juu~isdicCion it is clew' law tk~at administrative tzibunals do z~ot. Their jwritsdiction is solely derived T~rom tt~e statute that provides that jurisdiction. In this case, that statute is tlac Wader Act. The Wirer Act does not provzde their► with at►y jurisdiction to $r~lt pab~ic interest standing.
01-17-13;03:22PM;Andrew C L Sims Q.C. ,7804236813 # 6/ Page: 5 [24] 'fhe A~~licants argue that section 9S(5) of the EPEA provides the discxction to tie Boazd to grant public intezest standing. Section 95(5) o~ tlzo EPF,~4 xeads as follows: 9S(5) The $oaxd {a) ~a~y dismiss a notice o~ appeal if (i) it considers the Notice of a~~ea1 to b~ &~ivolous or vexatious or without zz~erit, (ix) in the case of a notice p~ appeal submitted under section ~1(1)(a){x) or (ii), {g)(ii) or {~►) or this Act or section 115(l)(a)(i) Or (ii), (b)(i) oX (ii), (c)(i) or (ii), (e) or (r) of the Water Act, the Board is o~ the opinion that the ~eTson submitvag the nociea o~ appeal ~s ~,ot directly ~£ected by the decision or designation, (x~i) for any othc~ xeason~ tk~e Board considers the z~otiee of ~ppea~ is nvt properly before it, (iv) the pejson w1~o submitted the motice of appeal faxes to comply with a wx~~te~ z~ot~ce wador section 92, or (v) the person who subrx~tted the nonce o~ a~s~eai ~ai~s to provide security in accordance with an order under section 97(3)(v) and (b) sLa1~ dismiss a notice of appeal if in the Board's opinion (i) the person submitting the notice of appeaa received notice of or participated in or had the vppominity to parricipate in one or more hearings or reviews under dart II of the Agriculnual O~eration5 ~'xaei~ccs pct, under the Nahual Resources Conservation Board Act or any A,ct admiz~istezed by the Energy Resources Canse~rvat~on Board ox'tha Alberta ~(7tiiities Coizunission at which all of the smatters iz~eluded in the n~vtico of ap~ea~ wera adequately dealt with, or (ix) the government hss participated in a public review under the Canadian Bn~irozunent~i Aissessxn~z~t Act (Canada) in respect of all o~the ~z►atters incI.uded ire tie notice of a~~eal. (waphasis added)
01-17-13;03:22PM;Andrew C L Sims Q, C, ;7804236813 # 7/ Page;6 [2S) The A~plicar►~t9 say that sec~,on 9S(5)(a) of the EPF„~l provides the Board with discretion, in that it indicates what the Board "mad' dismiss a n~otioG o~ appeal. Tbey say that ~s to be distinguished from the circun~stauces described in, 95(5)(b) which, sCts out when the Board ̀ shall" dismiss a not~cc of appeal.
(26~ Because the provisions of section, 95(5) ase per~nissi~e, tk~e Appl~canis azgue that the Board k~as a d~screiion as to whether or not to dismiss a~n sppea~; and that therefore the Boa,~d his discretion to decide w~~ther to allow an appeal to proceed. 'The „A„pplieants m~iz~taim, therefoze, that section 95{5)(a) o~tl~e .FPF.,~1 gives the Board discretion to allow an a~~eal to proceed (oz de~exrnine not to dismiss an a~~eal), where tha Ap~lieat~ts are not d~zectly affected by the decision bur z~pxese~,t a public interest in respect of that decision. [27] X do not agzee. With respect to am appeal of the Aixector's decisions to zu~x~end water licences, the Boasd only has the jurisdiction that was granted to it by the provisions of the Wirer Acr. The Water Act did not grant tkxe Board ckle jurisdiction, to hoa,~r pubic interest appeals, It can o~r~ly hear appeals fico~m parties directly affected by the decisions of the Diurector. The Board receives its jurisdictioa~ from the provisioxis of the Water pct. It is a 1Ggaslated jurisdiction. The Board cennat exceed thiat jurisdiction. The $oard has ao inhere~nt,jurisdiction. [281 Section 95(S)(a) of tie EPEA gives the Board latitude with xes~eet to dismissing appeals that have been filed for the reasons enumerated therein, including that the ~pplicanVA,ppel~ant wag not directly affected by the decision beiz~,g appealed, Tt is a mechanism whereby tlae Board may eoruidex, as a praliminary rr~atter. whether the Applicand~►ppelIeunt ha.s stand'ung, before searing a £u11 appeal. Tt does not, and cannot add jurisdic~on to the Boazd in respect of matters arising out of the Waxer Act tkuat was z~4t gxancad to the hoard by th~c provisions o~ the Water Acr, [29] X Find that the decision of the hoard as to its jurisdxct~an to k~ear the proposed appeals is ca~~ck
(30] 'mat bou~g the case, issue number two, is never reached and is rr~oot. [31) T~ the result, ~che ap~ticatioz~ is desucd. Cost9 [32l 'I'k~e Ap~lica~ts subm~xt, win ox loso, that each ~axiy to this .judicial Review should bear its own costs. They refer to ,Pauli v ,t1,ce Jne Insurance Company 2004 ABCA 253 where the Court of Appeal sek out four factors to be considered when dcCid~ng'whethex to exercise judicial discr~tzam to depart from the normal ~cv~e that costs follow The overt: (a) Whether the case is oz~e of public interest; (b) Whether the case raises a novel ~oi~nt of law; (c) Whether tl~e case is a #est case; and
01-17-13;03:22PM;Andrew C L Sims Q, C, pagc: 7 (d) Whe~er awarding costs wound dcr~y access tq justice.
[33] The ~tespondents, the Environmental Appeals ~oaxd ar~d the Direceor, Southey Region, , 4lberta En~viXonment sand Sustainable Resource Development have not sou~i costs gin, this mater, but have ~guad tkiat, if they aze unsueoess~u~ they should nevertheless not have costs awarded against them. They have beep successfv~. Thcy do snot seek costs. ~1'o cos'tS are awarded. [34] Thy Respo~adent BRID and WID ague that the general zv~e ins that costs ought to follow the avcnt, and there ~s ~o genexaa, principle that shields the public interest lxtxgant from costs, citing Sierra Ciub of Western Canada v British Columbia (Chief.Forester), 5,995 C~rswea~ BC 302 at paragraphs 41 - 46.
[35] The Applicants knave brougk~t a somewhat novel argument be~'ore the Couxi, upon w}uc~ thtre was no direct auth4xiry. Tie docie~an in ~th~e case is oz~e o~ public inuxest. The ~1,p~lica~u argue that it is a test case as to whether this Board has the power to pxant public interest startling. '~k~e A,~,~aieat~ts ague that an adverse Lost award would place a relatively significa~ot financial burden on the ,Applicants and "e£feetively punish th,t Applicaz~ts for seeking to uphold tkie ~~z~eap~e off' legality and the rule o~ law." X36] ~ do not accept those axgumenu in respect to the costs ofH ~ and WAD. While the argument put: foa~th was a novel vr~e, it was an attempt to find ju~xsdiction where none was greuctted under the •Water Acr. Tb~~ ,Applicants rocs final WID and BRID were only named as Respondents because they requested to be so natrx~,ed. Tt is natural fog V~~D aid BAD to take the position, as it is their ~~ce~scc amendments tkiat are ixi issue." ~iey would have beep granted status to argue in this Judicial Review had they not been n~ned as R~spondca~ts. They were proper'Respondents to the applicetioz~. They have incurred costs ~n defending this application.' ~~y have been sucoess~'ul, [37] The Respondents BRID and WID are e~t~t~ed to Qnc set of costs from the Applicants in r t, d elation to these pzoceedingS ~w~suant to secrion 8(1) v~ Schedule C of the .Rules ofC our an I set hose costs in Column 5 o~that Sck~edule. Heard on the 8th day of 7ar►,uazy, 2Q 1, ~ , dated at the City of Calgary, Alberta thfs 17th tiny of Yanu<uy, 2013. .---~ ~, ~' .'r~r ;U/%''. Y2, ~, mall J.C.Q.B.A.
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01-17-13;03:22PM;Andrew C L Sims Q, C, ;7804236813 # 9/ 9 0 Page: 8 Al,ppearances: Barry ~tobinson for the Alberta Wildezuess ,Assoaiatioz~ et al A. Sims, Q.C, for the Ez~vironmentsl Appeals Board I~, Altmiks and C. Qraham for the Director
C. R, Jones an;d G. M. Maaanangeli for the Western Irrigation District