Environmental appeal hearing delayed

Hearing delayed after board chairman steps aside, fearing perception of bias

An Environmental Appeals Board hearing to resolve a long dispute over the former Domtar industrial lands in northeast Edmonton has been delayed for at least one month to deal with issues stemming from the recusal of the board chairman.

Chairman Alex MacWilliam, an environmental lawyer at Dentons Canada LLP, removed himself from the case after learning earlier this month that his firm’s Montreal office had been hired by Domtar on an unrelated matter, appeals board spokesman Gilbert Van Nes said.

“He decided the most prudent thing to do was to step aside,” Van Nes said. “Basically the concern is that there could be a perception of bias.”

Domtar and Cherokee Canada are the two appellants in the case, fighting provincial orders to test and clean up contamination on the site.

The board has replaced MacWilliam on its three-member panel that will hear the appeal, but Alberta Environment and Parks is now arguing that MacWilliam’s past decisions on the case should be voided, Van Nes said.

In particular, the provincial department is fighting a ruling that the board has jurisdiction to hear appeals on the type of enforcement order that was issued against Domtar and Cherokee.

Van Nes said the board has twice ruled that the enforcement orders are appealable. MacWilliam was involved in both decisions, once on his own, and once as part of a three-member panel.

The appeal was supposed to begin Monday, but hearing days this week are now being used to consider the issues raised by Alberta Environment and Parks.

Should the panel decide to continue with the case, the substantive part of the hearing will be pushed back to the week of Aug. 27.

“It is indeed frustrating that not only has the (Alberta Environment and Parks) compliance director demonstrated inconsistency in the application of his own environmental rules, now he is attempting to circumvent the processes created to ensure review and fairness in the application of its decisions,” John Dill, managing director of Cherokee, said in a news release.

“We are struggling to understand why the compliance director cannot simply allow for the hearing to occur and to allow constituents their rightful access to a hearing.”

Alberta Environment and Parks referred questions to the appeals board. Cherokee and Domtar are fighting enforcement orders issued in 2016 and earlier this year to conduct extensive soil sampling and clean up any contamination on property north of Yellowhead Trail near 44 Street.

The site in question served as a Domtar wood-treatment operation from 1924 to 1987. Cherokee bought the property in 2010 with the intention of building a residential subdivision.

Cherokee contends the demands are unreasonable since extensive testing has already taken place, while the lands in question have been declared safe or are scheduled for future remediation.

The company intends to argue “inconsistency of the rules” applied by the compliance director, the news release said.

Alberta Health Services and the City of Edmonton have been granted intervener status in the case.