Approval-Based Regimes:

Approvals under Alberta’s

Environmental Protection and
Enhancement Act

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 Learning Goals:
• Explain who is “the Director” and what they do
• Explain the difference between approvals, registrations
under the Environmental Protection and Enhancement
Act (EPEA)
• Explain the function of the Environmental Appeals
Board
• Explain the function of judicial review

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 Certain EPEA files require an
Environmental Assessment (EA)
Approvals

EA* and approval only,

approval no EA required

N.B. The EA makes sense to study in conjunction with the

federal impact assessment regime in a later class. AND we
are not talking about the AER process, yet!
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 Approval-based regimes
In Canada, environmental law is an “approval-based
regime”. For example, Alberta’s Environmental Protection
and Enhancement Act (EPEA), sections 60 and 61:

• Prohibition
– 60 No person shall knowingly commence or continue any
activity that is designated by the regulations as requiring an
approval or registration…unless that person holds the
required approval or registration.

• Prohibition
– 61 No person shall commence or continue any activity that
is designated by the regulations as requiring an approval or
registration… unless that person holds the required
approval or registration.
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 What is an approval?
An approval is government permission to do
something that is otherwise illegal that is
– set out in an enactment, and
– legally binding

It may also be called an:

– authorization,
– licence,
– registration,
– disposition,
– permit, etc.

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 EPEA Approval Water Act Approval & Licence
E&P (prov.) E&P (prov.)

Development
permit
Municipal

Fisheries Act authorization

DFO (federal)

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Public Lands Act Disposition
E&P (prov.) E.g. Pulp and Paper Mill 6
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 Split jurisdiction
Alberta Energy Regulator (AER) Government Department
• energy resource activities • activities that are not an “energy
resource activity”
• an activity that may only be carried out
under an approval issued under an • under the following statutes:
energy resource enactment o EPEA
o Water Act
• energy resource enactment includes o Public Lands Act
(i) Coal Conservation Act o (and other Acts which we may
(ii) Gas Resources Preservation Act discuss later in class)
(iii) Oil and Gas Conservation Act
(iv) Oil Sands Conservation Act
(v) Pipeline Act

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 The Director
The director has the delegation from the minister
to make decisions under an enactment, such as:
– EPEA
– Water Act
– Public Lands Act

• The Director makes the

decision to issue,
amend, or revoke the
approval

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 EPEA
The Legislature listed “activities” under EPEA
that may impact the environment

Cabinet – via the Activities Designation

Regulation – decided which activities require
– a registration, or
– an approval
depending on the level of impact to the
environment

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 Registrations under EPEA
Required for activities with moderate impact on the
environment
• types of activities listed under EPEA’s Activities
Designation Regulation, Schedule 2
• not site-specific, usually governed by a Code of
Practice
• some oversight by the Government Department
• no opportunity for public input
• no right to appeal
• The Director may require an approval instead
(section 66.1 of EPEA)

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 Registrations under EPEA
Examples include: the construction,
operation or reclamation of:
• compost facility accepting <20,000
tonnes waste/year
• landfill with <10,000 tonnes of
disposal capacity/year
• asphalt paving plant
• concrete producing plant
• certain waterworks systems
• sweet gas processing plant * (AER)
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 Approvals under EPEA
Required for activities that significantly
impact the environment
• types of activities listed under EPEA’s Activities
Designation Regulation, Schedule 1
• site-specific
• lots of oversight by the Department (Environment &
Parks)
• opportunities for public input (statements of concern)
• right to appeal decision to the Environmental Appeals
Board (EAB)
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 Approvals under EPEA
Examples include the construction,
operation or reclamation of:
• chemical, fertilizer, pesticide, and explosives
manufacturing facilities
• food or food by-product plants, meat plants,
oil seed processing plants or distilleries
• foundries (metal casings), lead smelters or
metal manufacturing plants
• power plants
• wood treatment plants
• pulp and paper manufacturing plants
• certain wastewater treatment plants and
facilities
• oil refineries, sour gas processing plants, and
oil sands processing plants* (AER)
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 Approvals under EPEA
Usually issued for a term of ten years, then
approval holder applies for renewal
• You can see the approvals of the Alberta
Energy Regulator or the relevant Alberta
Government Department in the “approval
viewer”
– https: //avw.alberta.ca/ApprovalViewer.aspx

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 Approvals process

Step 1: Applicant submits application to Director

Step 2: Notice is of application is provided

Step 3: Director reviews application and

Opportunities statements of concern (SOCs)
for public input who is directly affected?
or notice
Step 4: Director makes decision on SOCs and
whether to issue approval or not

Step 5: Decision on approval may be appealed

to the EAB

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 Approvals process

Step 1:
• Applicant submits application in a manner
provided for in the regulations
• regulation sets out what the application must
include
• Director has broad discretion to ask for any
additional info the Director considers
necessary

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 Approvals process
Step 2:
• Director’s duty to provide notice or directs the
applicant to provide notice
• regulation sets out how it must be done – usually
in newspaper
• individual or group may submit a Statement of
Concern (SOC)
• SOCs must be submitted within 30 days under
EPEA
– SOC is a prerequisite for appealing the decision!

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 Approvals process
Step 3:
• The Director reviews
– the application
– SOCs will be considered by persons who the Director finds
are “directly affected”
• those living in the geographic vicinity of the activity
• effect the person
• effect will be direct
• reasonable probability of effect occurring
• use of an area will be considered, but not determinative

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 Approvals process
Step 4:
• Director’s decision
• Director may issue the approval and add any
terms and conditions the Director’s considers
appropriate
• Director must provide notice of the decision to
• the applicant/approval holder
• directly affected parties
• Director may provide notice of the decision to
any other person
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 Approvals process
• Step 5:
• Appealing the Director’s decision (section 90
of EPEA)
– Environmental Appeals Board (EAB) is established under
EPEA
– administrative tribunal/board
– hears appeals primarily from decisions under EPEA and
Water Act

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 The Environmental
Appeals Board and
Judicial Review

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 Your got your EPEA approval (or
didn’t get your approval), but your
are unhappy about it…
• “Meh…. I did not get my disposition or approvals,
what can I do?”
• Alternatively… “Meh… my neighbour go her
disposition or approval , and I don’t want her to
have it!”
• An appeal differs from a judicial review!
• Most importantly, the EAB is a tribunal, not a
court.

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 Courts Tribunals
Purpose - interpret and apply the constitution - apply statutory framework
- interpret, apply and enforce laws - e.g. EAB hears appeals of Director’s decisions
-create and apply common law under EPEA and the Water Act
- resolve disputes between parties - some tribunals make the initial decision and
- review administrative decisions (judicial review!) hear the appeal! (e.g. the AER)

Method - adversarial - inquisitorial and adversarial

Participants - judge - tribunal members

- parties (plaintiff & defendant in civil matters; - parties (applicant/approval holder, the
Crown and accused in criminal matters; applicant Director, “directly affected” persons)
and respondent in judicial review) - may include intervenors
- may include intervenors

Outcome - judgment in favour of the “winner” - decision “in the public interest” or in
accordance with statutory framework

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 Appeal Process

Intervenors
Submit Notice may apply
of Appeal
Hearing
Mediation
(optional) - oral hearing
Preliminary - written submissions
Timelines for Motions
Filing notice Notice of
EPEA approval - 30 days hearing

Hearing

Report &
Recommend
Reasons the appeal may to Minister Costs
be dismissed before it is
heard on its merits

Is someone directly affected?

-If yes: the appeal proceeds Judicial Review
- If no: the appeal is dismissed No appeal of the Minister’s
decision on the
recommendation

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 Appeals before the EAB
Who can appeal? (section 91 of EPEA)
–If the approval is issued:
• the approval holder (formerly the applicant)
• “directly affected” person who submitted SOC

–If the approval is refused:

• the applicant

• Registrations and EIAs cannot be appealed.

– You must judicially review these.
• Unlike at PLAB, this is not an appeal on the record.

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 Appeals before the EAB
On preliminary motions – EAB makes the final
decision (e.g. decision on standing/who is
directly affected)
– No right to appeal a Board decision
– Judicial review possible

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 Appeals before the EAB
On the merits of the approval being appealed,
EAB submits a report and recommendations to
the Minister to make the final decision to
confirm, vary, or reverse Director’s decision
– Minister does not have to follow EAB
recommendations, but if she/he doesn’t, must
provide reasons
– No right to appeal Minister’s decision
– Judicial review possible

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 Grounds for Challenging Decisions
If you are unhappy with an administrative or tribunal decision, you
may challenge it. The most common grounds for challenges include
that the board, tribunal, or other administrative decision maker:
– acted outside its jurisdiction
– failed to take an action that it was legally obligated to
take
– improperly delegated a decision
– failed to consider options it was obliged to consider in
exercising its discretion
– misinterpreted the applicable law
– acted in bad faith
– failed to follow fair procedures
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 Effect of a Challenge on Compliance
with the Decision
• A stay is an order issued by a tribunal/court suspending
the decision being challenged
– In most cases, a challenge does not automatically stay the
operation of an order. PLAB seems to issue an automatic stay.
• A tribunal or court will usually stay a decision until the
challenge has been decided or abandoned
• Test for granting a stay:
– The decision-maker must be convinced that:
1. There is a serious issue to be determined;
2. Irreparable harm will be suffered if a stay is not granted; and
3. The balance of convenience favours granting a stay.

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 Specific Review Mechanisms
• Review by the tribunal itself
– Known as reconsideration, reopening, or rehearing
– Regulatory appeal process in Alberta before the Alberta
Energy Regulator
• Appeals
– Permitted only where authorized by statute
– Only a final decision may be appealed
– A party must appeal before applying for judicial
review

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 So, what is judicial Review?
Judicial Review Appeal
Purpose - ensure administrative decisions made according to - to review a decision (e.g. the Director’s
principles of natural justice (i.e. they are “fair”) decision)

Venue - Court of King’s Bench - tribunal (e.g. EAB) or

- court (e.g. Court of Appeal)

Authority - inherent jurisdiction of the court - set out in statute (e.g. EPEA)

Standing - public interest standing available - “directly affected” or whatever the

statute says

Grounds - decision-maker exceeded jurisdiction (i.e. ultra - disagree w/ decision or whatever the
(reasons for vires) statute says (statute can place limits on
- breached rules of natural justice appeal e.g. only questions of law)
bringing
challenge) - made an error of law

Remedies - quash the decision (certiorari) and send back to
initial decision-maker
- order action (mandamus)
- prohibit an action (prohibition)
- declare rights (declaration)
- confirm, reverse or vary the decision
appealed
- send back to initial decision-maker

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 Government Hates Judicial Review
• David Allen Green, Financial Times, Opinion: how
the government wants to limit judicial review
– https://www.ft.com/video/1b556897-c5a9-4392-bfcd-
ea3b91e65f7d
• Judicial review in the UK by C. Weaver (Cantb.):
– https://youtu.be/Mlmz288pArQ
• This is for more information only. It is not mandatory to watch.
• Do not get caught up on the specifics from the
video.

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 Judicial Review
• Courts have discretion to accept applications
• Review is sought on the grounds that a
tribunal or official exceeded its jurisdiction
• Evidence on review is generally limited to the
facts in the tribunal’s record

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 Who May Appeal or Seek Judicial
Review
Common law determines the right to initiate
judicial review
– Parties in a tribunal proceeding can usually apply
– Interveners may be permitted to apply at the
discretion of the court
– For decisions of non-tribunals, the applicant must
generally have a direct and substantial interest
– Limited public interest standing

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