Filing an Appeal under the Environmental Protection and Enhancement Act (Part 4), the Water Act (Part 9), the Emissions Management and Climate Resilience Act (Section 42) & the Government Organization Act (Schedule 5)

What is an appeal?

An appeal is an objection to certain decisions made by Alberta Environment and Protected Areas.

What sort of decisions can be appealed?

Appealable decisions include the issuing, canceling or amendment of an approval to operate a process or water licence, the issuing or failure to issue a remediation certificate regarding reclaimed land, the issuing of an enforcement order, environmental protection order, the designation of a contaminated site, or the issuing of an administrative penalty.

Who may commence an appeal?

A person who is directly affected by certain decisions made by Alberta Environment and Protected Areas.

What does "directly affected" mean?

Whether or not a person is directly affected will vary from case to case and from decision to decision depending on the effects of that decision. In general, to be directly affected a person must prove that the effects upon them are greater than the average Albertan.

How do I appeal?

An appeal is filed with the Environmental Appeals Board on a form provided for that purpose which is available from the Board office (780-427-6207 and [email protected]) or online. Failure to have filed a Statement of Concern with Alberta Environment and Protected Areas may affect the right to file an appeal with the Board.

Are there time limits for filing an appeal?

Yes. There are different time limits depending upon what type of decision is being appealed. A Notice of Appeal must be filed within 30 days of receiving notice of a decision regarding an approval, remediation certificate, or designation of a contaminated site under the Environmental Protection and Enhancement Act, a licence under the Water Act, or an administrative penalty under the Environmental Protection and Enhancement Act, the Water Act or the Emissions Management and Climate Resilience Act. A Notice of Appeal with respect to various orders issued under the Environmental Protection and Enhancement Act, the Water Act, the Emissions Management and Climate Resilience Act and the Government Organization Act, and approvals issued under the Water Act must be filed within 7 days of receiving notice of the decision.

What does a Notice of Appeal contain?

A Notice of Appeal form should contain: the name, address, email, and phone number of the person filing the appeal; the name and title of the Alberta Environment and Protected Areas person whose decision is being appealed; a description of the relief requested by the person appealing; the signature of the person appealing, or the person's lawyer or other agent; and an address for service for the person appealing.

The information collected in the Notice of Appeal is necessary for the Environmental Appeals Board to perform its function. The information is collected under the authority of the Freedom of Information and Protection of Privacy Act, section 33(c). Section 33(c) provides that personal information may only be collected if that information relates directly to and is necessary for the processing of an appeal. The information you provide is a matter of public record. For more information, please contact the Board.

What happens if the Notice of Appeal is not complete?

The Board will send a letter explaining the deficiencies. Until they are corrected, the Board is not obliged to proceed with the appeal.

Does filing an appeal stop Alberta Environment and Protected Areas' decision until the Board decides the appeal?

No. An appeal does not "stay" the decision of Alberta Environment and Protected Areas. A request for a "stay" must be made to the Board. The Board will then decide whether or not to grant the stay. Refer to section 97(1) of the Environmental Protection and Enhancement Act and item 7 of the Board's Rules of Practice.

Can I get involved in an existing appeal?

If you are affected by the decision, the Board may provide you with the opportunity to be added as an intervenor to the appeal and will determine how you can participate. The Board will give the other parties an opportunity to comment before making a decision.

How does the Board process an appeal?

The Board's process essentially consists of 3 stages.

The first stage occurs when the Board receives a Notice of Appeal. As the Board has no information, it proceeds to collect information from the participants and Alberta Environment and Parks in order to understand the nature of the appeal. During this stage, any of the participants may bring preliminary motions before the Board to determine matters such as whether the Appellant is directly affected, whether the Appellant filed a statement of concern with Alberta Environment and Protected Areas, whether the Notice of Appeal was filed on time, or whether the matter had previously been dealt with by the Natural Resources Conservation Board, the Alberta Energy Regulator or the Alberta Utilities Commission (where all of the issues contained in the Notice of Appeal were adequately dealt with). During this stage, the Board may also deal with other preliminary matters such as the issues to be dealt with at a subsequent hearing, should one be held. Written submissions will be requested by the Board in advance of the preliminary motions hearing.

The second stage of the process involves mediation. Most appeals are referred for mediation. In the Board's mediation process, a Board member works to facilitate a resolution of the appeal between the participants that is of their own making. Should the mediation meeting be unsuccessful, the Board member who facilitates the mediation meeting will not participate further in the appeal. A mediation meeting is not the hearing of an appeal as contemplated under the Environmental Protection and Enhancement Act. Mediation meetings always take place without prejudice to the ability of the participants or the Board to address preliminary motions later in the proceedings. If the mediation is unsuccessful, the participants may raise any preliminary motions provided they are raised prior to any preliminary motions hearing or substantive hearing being held.

Please note that parts of stage 1 and stage 2 may occur at the same time.

The third stage of the Board's process is the hearing stage. If a mediation is not successful or if an appeal is not mediated, then the Board may proceed to a hearing. If the Board proceeds to a hearing, it will hear the substantive issue of the appeal and either make a decision or forward a Report and Recommendations to the Minister of Alberta Environment and Protected Areas. The Board will request written submissions from the participants prior to the hearing. Each participant will be permitted to give an opening statement, state their case, question those adverse in interest to them, and give a closing statement. Where the Board makes a Report and Recommendations to the Minister, the Minister is the final decision-maker and he will make the decision by issuing a Ministerial Order advising of their decision to confirm, reverse or vary the decision appealed.

How does the Board hear an appeal?

The Board has wide discretion in deciding how to hear an appeal. An appeal may be conducted by way of written submissions, oral hearing, or a combination of both. Preliminary motions hearings and substantive hearings are open to the public for viewing. The Board will decide if the matter will be heard in-person or virtually. Hearings of appeals can consist of a panel of one to three members.

A written hearing will involve written submissions being made by all participants, followed by an opportunity for participants to comment on the submissions and evidence provided by the other participants.

At an oral hearing each participant will have a chance to present evidence and submissions, call and cross-examine witnesses adverse in interest to them, and explain their case to the Board. Regardless of the type of hearing conducted, the Board is required by law to follow the "rules of natural justice". Each participant to the appeal will be given a fair chance to present their case. The Board will decide each appeal on its individual merits. It is important to note that the burden of proof will always rest with the person filing the appeal.

Do I need a lawyer?

No, but participants to an appeal may use one if they wish.

When will I be informed of the Board's decision?

The Board will not make a decision at the close of the hearing. In the case of both an oral and written hearing, the final decision will be made within the legislated time frame required after the hearing closes.

What type of decision can the Board make?

Following a Report and Recommendations to the Minister of Alberta Environment and Protected Areas or its own decision in those cases that apply, the Board may confirm, vary or rescind the decision being appealed; send the matter back to the person who made the decision, with directions; or make any decision that the person whose decision is appealed could have made.

Does the Board assess costs related to an appeal?

Any party to an appeal before the Board may make an application in writing to the Board for an award of costs prior to the close of a hearing of the appeal but after the Board has determined all parties to the appeal. The Board may make an award of final costs subject to the terms and conditions it considers appropriate. Any decision to award costs to a party is at the discretion of the Board.

This web page addresses how to file an appeal with the Environmental Appeals Board under the Environmental Protection and Enhancement Act, the Water Act, the Emissions Management and Climate Resilience Act and the Government Organization Act. However, it is only a summary of the process. For more detailed information, please refer to the Acts, the Environmental Appeal Board Regulation and the Board's Rules of Practice. You may also contact the Board at 780-427-6207 and [email protected].