BOW VALLEY ENGAGE SOCIETY v ALBERTA (ENVIRONMENTAL PROTECTION AND ENHANCEMENT ACT, DESIGNATED DIRECTOR)

This decision determined four Appeals arising from Judicial Review Applications involving the proposed Three Sisters Mountain Village development near Canmore. Bow Valley Engage Society (“Bow Valley”) and the Stoney Nakoda First Nations (“Stoney Nakoda”) had asked the Designated Director under the Environmental Protection and Enhancement Act, RSA 2000, c E-12, to consider whether an environmental impact assessment was required for two area structure plans related to the development. The Designated Director declined to do so, finding that the development was a continuation of a tourism and recreational project approved by the Natural Resources Conservation Board in 1992, and was not a “proposed activity” under the Act.

The first two Appeals were brought by Three Sisters Mountain Village Properties Ltd. (“Three Sisters”) from a Chambers Judge’s decision dismissing its preliminary challenges to the Judicial Review Applications on the basis of standing and abuse of process. The Court dismissed those Appeals. Although Bow Valley and Stoney Nakoda did not have statutory private interest standing, both had common law private interest standing because their interests in the proposed development were distinct from those of the general public. The Court also held that the Judicial Review Applications were not an abuse of process under Rule 3.68 because they concerned the Designated Director’s jurisdiction under a distinct administrative process, rather than a collateral attack on prior regulatory or Court proceedings.

The third and fourth Appeals concerned a second Chambers Judge’s decision striking the Judicial Review Applications for want of service under Rule 3.15. Thunderstone Quarries Canmore Ltd. (“Thunderstone”) had applied to strike the Application, claiming it was a party affected by the Applications, and had not been served within the six-month service period. The second Chambers Judge held that Thunderstone was directly affected because it owned lands within the structure plan area and had interests connected to the wildlife corridor.

The Court of Appeal held that the second Chambers Judge erred. Rule 3.15 requires an Originating Application for Judicial Review to be served on every person or body directly affected by the Application. Although Thunderstone had land and business interests connected to the Smith Creek area structure plan, any effect on Thunderstone from the Judicial Review Applications was too remote to make it directly affected under the Rule.

The Court explained that, even if the Judicial Review Applications succeeded, the Designated Director would still have to decide whether an environmental impact assessment was required. Any environmental impact assessment would only inform later regulatory decisions. It would not itself approve, deny, or alter Thunderstone’s land use rights. Thunderstone would also have later opportunities to participate in or challenge decisions that directly affected its interests. Bow Valley and Stoney Nakoda were therefore not required to serve Thunderstone under Rule 3.15, and the Applications should not have been struck for want of service.

Bow Valley and Stoney Nakoda also challenged the constitutionality of Rule 3.15(3)(c), arguing that the service requirement infringed Section 96 of the Constitution Act, 1867 where the identity of directly affected parties is unknown, uncertain, or unascertainable, and failure to serve within six months operates as a complete bar to Judicial Review. The Court declined to decide the constitutional question. Because Thunderstone was not directly affected, Bow Valley and Stoney Nakoda were not precluded from advancing their Judicial Review Applications, making the constitutional issue hypothetical.

The Court then considered the merits of the Judicial Review Applications. It held that the Designated Director’s decision was reasonable. The Designated Director considered the relevant statutory scheme and reasonably concluded that the development was ongoing construction rather than a new “proposed activity” requiring consideration under the environmental assessment provisions.

The Appeals from the first Chambers Judge’s Order were dismissed. The Appeals from the second Chambers Judge’s Order were allowed with respect to the striking of the Judicial Review Applications, but dismissed on the merits.