St. Paul area landowner Don Belland took his long-standing battle with Alberta Environment and Parks to the Alberta Environmental Appeals Board May 23 in Edmonton to defend his defiance of an enforcement order issued last fall under the Water Act.
Belland and Alberta Environment, together with the Town of St. Paul, have literally been on opposite sides of the fence regarding spring and storm runoff flowing from the town and through Belland’s land and then into Upper Therien Lake. It becomes a particular issue during spring thaw with Alberta Environment re-issuing an enforcement order last fall claiming Belland had contravened the Water Act by “commencing and continuing activities that altered the flow and changed the location of water without authorization.” Essentially, the department charged that Belland had blocked off a natural watercourse.
“Alberta Environment and Parks Wetland Specialist, Mr. Ryan Adams, has confirmed that the watercourse is a natural drainage pathway. Mr. Adams reviewed historical air photographs, satellite imagery and current photographs of the lands and watercourse to make this determination,” Alberta Environment noted in its written submission to the appeal board, a copy of which was provided to the Journal, along with those of Belland and the Town, by Gilbert Van Nes, Environmental Appeals Board’s general counsel and settlement officer .
Alberta Environment also stated the Town “operates an authorized storm water drainage system with an outfall structure immediately north of the lands at the corner of 53 St. and 43. Ave.” The outflow from that structure feeds into the watercourse across Belland’s land.
Landowner demands rights
However, in his submission, Belland claimed the watercourse is not naturally occurring and rather the Town is diverting water through his land. He cited that, as a result, he cannot use the land for agricultural purposes, claims the water is contaminated, has caused washouts and is endangering his health, among other concerns noted.
Belland, who was not represented by legel counsel at the hearing, also made reference in his submission to the Alberta Bill of Rights Section 1(a) to back up his challenge. The section speaks to “the right of the individual to liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of the law.”
Belland included references relating to town development dating back to the 1980s in the area directly north of his property. He has long maintained development both in the Town and in the County of St. Paul to the west has compounded the problem of spring runoff and redirected its natural flow through his property.
The Town and County received provincial funding support last year to undertake a storm water study, with the town taking the lead to examine how best to mitigate spring runoff and storm water concerns going forward.
In July of last year, Alberta Environment failed in its bid to get a court order to compel Belland to comply with an August 2017 enforcement order to undertake remedial work on the waterway. The judge at the time pointed to a “factual technicality” with the order but Belland was “encouraged to comply with any similar orders issued in relation to his unauthorized activity.”
As the appellant, the onus was on Belland to convince the three-member panel hearing the appeal that this new enforcement order is without merit.
In its summary position, Alberta Environment observed the order was issued with “the minimal requirements necessary to remedy the contravention.” The order stipulates Belland remove the material he placed in the watercourse, restore it to pre-disturbance conditions, seed naturally occurring vegetation in the immediate vicinity and take steps to prevent further siltation or erosion of the watercourse.
“Mr. Belland has offered no factual or legal basis to dispute this Order. Indeed. Mr. Belland has admitted to the essential facts of the unauthorized activity which forms the basis of the Order,” Alberta Environment stated.
Town seeks appeal dismissal
The Town of St. Paul was granted intervenor status at the hearing and was represented by legal counsel with CAO Kim Heyman, Public Works Director Steven Jeffery and engineering consultant Josh Maxwell serving as witnesses on the Town’s behalf.
In its submission, the Town not only asked that Belland’s appeal be dismissed but also that the terms of the order be expanded upon “to ensure that any remedial work required to restore the water course and to undo the disturbance to that (storm water drainage) works are done effectively by a qualified persons, and that potential impacts on Upper Therien Lake are properly assessed.”
In response to Belland’s claim the Town is flooding his land and that water is contaminated, the town’s submission stated the municipality had the water tested last summer and the results “clearly demonstrate that the water is not contaminated sewer.” It did contain elevated levels of coliforms, including fecal coliforms, “but this is not surprising given that the majority of the water collected by the system originates from farm lands within the adjacent county.”
The Town also took exception to Belland’s charge that the municipality is flooding his land.
“Any flooding that the Appellant incurs is a consequence of his having filled in the watercourse and blocked the outfall, forcing the water overflowing the vault to seek alternative routes to Upper Therien Lake across his lands. Any flooding suffered by the Appellant is a direct result of the Appellant’s own unlawful activity.”
The Town also spoke to its attempts to reconcile the longstanding dispute with Belland. In May of 2018, the Town "offered to work with the Appellant to establish an an easement along each bank of the watercourse and to construct two engineered culvert crossings to facilitate the Appellant's continued use of this lands without disturbance of the watercourse." According, to the Town, Belland agreed to review the draft plans but a day later "the Town once again observed the Appellant filling in portions of the watercourse to block the flow onto his lands."
The Appeal Board will provide a recommendation to new Environment Minister Jason Nixon within 30 days from the hearing date.
“It should be delivered on or before the 24th of June and then there’s no timeline for the minister to make his decision,” Van Nes said. “The board makes a recommendation to the minister to either confirm, vary or reverse the order. Once the minister makes his decision, the board’s recommendation and the minister’s decision are made public.”
