Citizen Rights and Responsibilities under the Alberta Environmental Protection and Enhancement Act

Clearly, under the Environmental Protection and Enhancement Act (EPEA-excerpts quoted below), every Albertan has not only the Right, but also the Duty and the Responsibility to bring any concerns regarding environmental issues to the attention of the Alberta Government.

The Preamble to the Act states:

“The purpose of the Act is to support and promote the protection, enhancement and wise use of the environment while recognizing the following: (excerpts)

(a) the protection of the environment is essential to the integrity of ecosystems and human health and to the well-being of society;

(c) 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;

(d) the importance of preventing and mitigating the environmental impact of development and of government policies, programs and decisions;

(f) the shared responsibility of all Alberta citizens for ensuring the protection, enhancement and wise use of the environment through individual actions;

(g) the opportunity made available through this Act for citizens to provide advice on decisions affecting the environment;”

The formal mechanism to provide input into environmental Approvals is by submitting a Statement of Concern. Only those Albertans who are considered “directly affected” by a proposed activity may submit such a Statement. The Policy (ES-99-PP3, February 2000) which governs Statements of Concern is fairly comprehensive. Two points are particularly relevant to anybody who would like to gain “standing”, that is, be considered “directly affected”:

“(i) directly affected – Anyone living in the geographic vicinity of the activity will be considered directly affected (note: for small facilities with minimum potential for offsite impact, geographic vicinity may be considered as encompassing an area of only a few kms in radius from the site whereas for larger activities the area may be much larger – this will have to be assessed on a case-specific basis). Any organization that has a portion of its members living in the geographic vicinity of the activity will also be considered directly affected, e.g. a community league. In general, associations representing the general public or people who just periodically visit the geographic vicinity of an activity will not be considered directly affected”; (Big Lake Environment Support Society-BLESS was BLESSdecision)

“(v) rejection/acceptance of Statements of Concern – Judgement may have to be exercised in determining what constitutes a valid Statement of Concern, and where there is any doubt the concern should be considered a Statement of Concern.

The fact is that it is almost impossible for any Albertan to gain standing in environmental approval issues. The interpretation of policies tends to favour development/exploration activities. The greater picture, such as the cumulative impact of several relatively small-scale or “minor” activities, over time and space, is not generally considered.

I have tried three times to file Statements of Concern objecting to activities in the Big Lake/Sturgeon River valley which threatened to have impact on surface and groundwater. Once, I took the matter to the Environmental Appeal Board to object to a fill-in approval of a section of the floodplain of Big Lake and the Sturgeon River Valley.

The appeal was lost primarily because the site was privately owned.
Decdecision

The Position of the Appellant The evidence that has been presented to the Board with respect to the importance of the Big Lake area to Ms. Blodgett has been powerful. In over 800 appeals, it may very well be that Ms. Blodgett has been the most eloquent and moving in presenting a case that she is personally and emotionally directly affected by the decision of the Director. The Board has no doubts whatsoever about her commitment and the importance to her of protecting the environment generally and in protecting Big Lake in particular. The Board commends her for this work. The Board also has no doubt that Ms. Blodgett regularly and consistently uses Big Lake area and that the natural environment in general and the Big Lake area in particular is the inspiration for Ms. Blodgett’s artistic endeavours. We wish more Albertans had her love and commitment to the environment. [49] However, at law, the Board does not accept that, in this case, this is sufficient for her to be directly affected by the Director”s decision to issue this Approval within the meaning of section 115(1)(a)(i) of the Water Act.

The decision was appealed and the appeal was also lost. Junedecision

It is obvious that it is almost impossible to establish “directly affected status” for any areas that can still be considered “natural areas”, such as wetlands, shores of lakes and rivers, wooded or mountainous parts of the Province, etc. Only those who own property close to an area of proposed activity have a chance of gaining standing. Landownership seems to grant the right to do as one pleases with one’s land. If nobody lives within the radius of the proposed activity that is found acceptable by the policies, there is no way that the ordinary Albertan can live up to his responsibility to call attention to threats to the environment, whether it be on public or private property. It is equally obvious that it is impossible to prove—and that is a requirement—that one is more affected than any other individual by such an activity.

The investment in time, in money (from legal fees to presentation material, to the risk of being charged costs of the appeal process), added to the emotional stress of the hearing and cross examination by aggressive proponent lawyers, of coping with the threats of a SLAPP suit (Strategic Lawsuit Against Public Participation), is more than most people are able or willing to deal with. Everything is set up to discourage citizen participation. Interpretation of the law seems to be arbitrary and precedent does not seem to influence the Board’s decisions.

The general principle is that the Board believes “that the definition of which persons are “directly affected” is flexible and will depend upon the circumstances of each case.’ (re Wessley). The Board “made it clear, at a very early stage in the Board’s history, that it must determine on a case-by-case basis whether an appellant is sufficiently ‘affected’ to have standing.” (Bildson, 26)

However, the Board has made Decisions cases which, if they had been accepted as precedent, might have supported my claims of being “directly affected”.

For example, certain rulings by the Board agree that an interest in an Approval does not have to be “unique in kind or in magnitude in order to warrant standing” (Bildson, 25, re Kostuch), and that “to deny standing to certain individuals on the basis that many other individuals will also be directly affected is illogical” (Bildson 25)

The Board further agrees that “one might be led to the conclusion that no person would have standing to appeal because of his inability to differentiate the affect [sic] upon him as opposed to his neighbour. This is unreasonable and is not in keeping with the intent of the Act to involve the public in the making of environmental decisions which may affect them.” (Bildson 25, footnote 27, Hazeldean)

Even ownership of adjacent property is not a prerequisite (Bildson, 29), “interest” is not limited to legal rights or entitlements. It does not matter where one owns property in the area if “there is extensive use of the public lands adjacent to the open waters”. (Bildson 29, note 34) It happens that the Big Lake/Sturgeon River flood plain area approved for fill-in for housing has long been intended to become part of the St. Albert Red Willow Park system: a public park.

It is, however, “extremely significant”, and the appellant must show it, that “the approved project will harm a natural resource (e.g. air, water, wildlife) which the appellant uses, or that the approval project will harm the appellant’s use of a natural resource,” not that the appellant personally will be harmed directly by the Approval. (Bildson 33) Furthermore, the appellant only needs to prove that a “potential” or “reasonable probability” for harm exists. A “preponderance of evidence that he will in fact be harmed by the project in question” is not required.

One last point: the Board does not imply that only physical effects are valid for standing purposes. “For example, a violation to an appellant’s aesthetic enjoyment of a natural resource might be sufficient, if adequately proven, to demonstrate that the appellant has standing under the ‘directly affected’ test. (Iwaskow, 24). It suffices “to establish direct or private interests (economic, environmental, or otherwise)”. (Kostuch) “Otherwise” would leave the door open wide to legal interpretation

Ironically, the Genstar Areas Structure Plan which was based on the fill- approval of part of the flood fringes of Big Lake and the Sturgeon River is now held in abeyance, awaiting the construction of an expressway and river crossing which will destroy far more of the floodway and wetlands of the lake and river

My objections still stand: the considerable cumulative effects of the proposed activities, be they the river crossing/ expressway system or the residential subdivision or both, have never been considered, whether they be environmental, economical or affect our quality of life. We have been informed that public hearings and a promised plebiscite on the Road Issue are not to be held.

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Elke Blodgett