Environmental groups denied standing on water appeals

25 Apr Environmental groups denied standing on water appeals

Public interest standing:
Environmental groups denied standing on water appeals

Water brokerage puts water conservation at risk.

An appeal by Alberta Wilderness Association, Water Matters and Trout Unlimited  ended when the Alberta Court of Queen’s Bench found that the Environmental Appeals Board (EAB) cannot grant “public interest standing” under the provincial Water Act. The groups sought to challenge a change to the purpose of water licenses that will allow Irrigation Districts to sell water for other uses.

The brief decision in Alberta Wilderness Association v Alberta (Environmental Appeal Board) is far from the policy-driven approach to standing emerging from the Supreme Court of Canada.

A case that could have been a missing link in public interest jurisprudence does little to enrich the law. If the EAB had power to grant standing then it might have been unreasonable not to.

“No Jurisdiction”

The case distinguishes the statutory jurisdiction of administrative tribunals from the inherent jurisdiction of the courts. All parties agreed that the powers of administrative tribunals must fit within statutes.  The question is what fits. The court found that Section 115 of Water Act limits appeals to persons who are “directly affected”.

The environmental groups argued that the EAB is created by the Environmental Protection and Enhancement Act (EPEA).  EPEA distinguishes between when appeals “must” be dismissed and when they “may” be [EPEA Section 95].  Appeals that “must” be dismissed are those that duplicate other agencies’ proceedings.  Not being “directly affected” is a situation where the EAB “may” dismiss appeals.  Other such situations include “frivolous or vexatious” appeals.  EPEA suggests a discretionary approach to appellants that lack legal rights in order to screen out unmeritorious cases.  This approach would be consistent with common law public interest standing.

The Alberta Wilderness case will likely stand for the issue being settled when it really isn’t. Imagine that the EAB granted standing to Alberta Wilderness Association, Trout Unlimited or Water Maters.  Now imagine that the province of Alberta and the Irrigation Districts went to court claiming that the EAB has no power to hear a justiciable issue that falls within its role. Would a Court find that the EAB exceeded its jurisdiction by granting standing?  I have my doubts.

The missing rationales

The purpose of public interest standing is to uphold legality. Perversely, the Alberta Wilderness case enables official decisions to be shielded from scrutiny by the same appeals board whose role is to scrutinize them. It does not consider provincial cases that connect standing to legality, such as Reece v. Edmonton or Reese v. Alberta.

No one argued that “public interst standing” is a right. It is a discretionary move that must balance access to justice against the need to conserve judicial resources. The leading authority is the Supreme Court of Canada (SCC) decision in Downtown Eastside Sex Workers United Against Violence Society. The SCC’s reasoning may recognize that fear of opening the floodgates to litigious busybodies is overblown.  This 2012 ruling has already been applied in one environmental review: the New Prosperity Mine in BC.  The review panel noted that the importance of the public law context in deciding to apply the test for public interest standing.

The conservation of judicial resources acquires a new dimension where appeals tribunals are involved.  Consider this morrass:  Persons who want to challenge the legality of Alberta Environment decisions but fear that they will be denied standing by the EAB may have to file for judicial review of the Alberta Environment official before the EAB makes a decision on standing.  If an EAB hearing proceeds then the court proceedings will be premature. There remains a question of whether persons who are not directly affected could be third person interveners at the EAB, and whether this allows their issue to be heard. The balance between access to justice and conserving everyone’s resources might best be met by granting standing in the first instance. It is hard not to conclude that keeping people out is the real issue.

The missing test:

“No jurisdiction” means the Court did not need to consider the test for standing.  It’s a test that these groups could likely meet:

1.   A serious issue

Irrigation Districts have previously applied to the province to transfer away a portion of their water license allocation.  An example is the Balzac mega-mall north of Calgary which was enabled by a transfer from the WID to the Municipality of Rocky View.

The difference in the Alberta Wilderness case is that a change to the purpose of licenses will allow the Western Irrigation District and the Bow River Irrigation District to directly supply water for non-irrigation purposes.

Whether Alberta Environment has authority to make these amendments is unclear. Irrigation Districts are corporations established by the Irrigation Districts Act (IDA). The purpose of irrigation districts under section 6(1) of the IDA requires that irrigation districts use water according to the terms of their Water Act licenses and deliver it in accordance with the IDA.  Water Act licenses have historically been for irrigation. The IDA provides for agreements for household water use and rural water use but it makes no reference to agreements for larger amounts of water for new developments.

1.  A “genuine interest” or “real stake” in the issue

The interest of the environmental groups are covered in the EAB’s decision and a sister decision featuring the same organizations and the Eastern Irrigation District (EID). Alberta Wilderness Association is the oldest conservation organization in the province and has a large membership in the Bow Basin. Trout Unlimited is focused on freshwater ecosystems, holds statutory consents in the Bow Basin, and performs restoration work.  Water Matters is involved in water policy development and was formed in part to raise awareness of contentious water transfers involving Irrigation Districts.

The public policy contest is relevant as well. A moratorium on new water licenses in the South Saskatchewan Basin makes the availability of water a limiting factor for residential, commercial and industrial development.  Irrigation Districts hold rights to withdraw more water from the basin than gets used for irrigation. In the event of a water shortage, the water licenses held by Irrigation Districts will be very secure under the ‘first in time first in right’ system even if the end use to which that water is put has changed.

Enabling a direct supply system avoids a water conservation holdback that can be required when a license holder makes applies to the province to transfer away part of their license allocation. It could also avoid an IDA requirement that irrigation districts seek the approval of their member irrigators for transfers of license allocations that could impact the availability of water for irrigation.

The result is a triple threat:  less government intervention for water conservation, less prioritization of agricultural needs, and continued use of water for unsustainable development.

The environmental groups weren’t asking the court to debate water policy.  It simply helps show why they were appropriate parties to question the license amendments.

1.  A “reasonable and effective means” for the issue to be heard.

The decision did not consider how holding hearings relates to the mandate of administrative boards, as the Court of Appeal did in in the most recent Kelly case. The EAB is an independent quasi-judicial body with legislative authority to hear appeals from decisions

under the Water Act.  Basically the EAB provides scrutiny of regulatory decisions as an alternative to court challenges.  There were no directly affected parties to bring this appeal and no precedent of circumventing the EAB with judicial reviews.  Basically there was no other way for the issue to be heard.  The environmental groups might have passed even the most stringent formulation of the test.

The court’s disinterest in the cutting edge of public interest environmental law is discouraging. Fortunately the decision is so narrow that its only direct application may be to Water Act proceedings at the EAB.

Western Irrigation District –  “The Future”

The next 50 years for the Western Irrigation District will differ greatly from the last 50 years. The WID will evolve from being a pure agricultural service provider to a multi-faceted utility. This is as an act of necessity in response to the new societal pressures of Southern Alberta.

The Bow River was closed to new water license applications in 2007 and no new water will be allocated in the foreseeable future. As a senior license holder on the Bow River the task will fall to the District to share supply with new customer demand.

Environmental Appeals Board –  “Role of the Board”

Individuals and groups concerned about the environment, such as fish and game associations, recreational groups and conservation organizations, were also concerned. They told the review panels they wanted an independent appeal process as a way to have a say in the approval of projects that might degrade the environment. The Board was created to respond to these concerns.

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