Environmental Appeals Board Denies Stay of Water Act Approval

2026 [NAME]                                                                        Appeal Nos. 23-045, 046, 051, 052-ID5 [NAME] Decision Date of Decision – April 10, 2026 IN THE MATTER OF sections 91, 92, 95, and 97 of the Environmental Protection and Enhancement Act, RSA 2000, c E-12, and section 115 of the Water Act , RSA 2000, c W-3; -and- IN THE MATTER OF appeals filed by [NAME] and [COMPANY] with respect to Water Act [NAME] No. DAUT0012841 as amended issued to [COMPANY]. by the Director, Regulatory Assurance Division South, [NAME]. Cite as:            Stay Decision: [NAME]. v Director, Regulatory Assurance Division South, [NAME] , re: [COMPANY]. , 2026 [NAME]. BEFORE: [NAME], Board Chair. PARTIES: [NAME]: Mr. [NAME], and [NAME], represented by [NAME]. [NAME]: [COMPANY]., represented by [NAME], [COMPANY]. Director: [NAME], Director, Regulatory Assurance Division South, [NAME] represented by [NAME]. [NAME], Environmental Law Section, [NAME]. EXECUTIVE SUMMARY [NAME] issued [NAME] No. DAUT0012841 as amended (the [NAME]) under the Water Act authorizing the removal of several wetlands and the implementation of a stormwater management plan in connection with aggregate extraction at NW 31-26-03-W5M and SW 31-26-03-W5M (the Lands) in [NAME] ([NAME]). The [NAME] was originally issued to [COMPANY] but was amended by [NAME] to reflect the transfer in ownership of the Lands to which the [NAME] is appurtenant to [COMPANY]. ([NAME]). The Lands are to be used in connection with aggregate extraction. The [NAME] (the Board) received Notices of Appeal of the decision to issue the [NAME] from several persons including [NAME] and [NAME] ([NAME]) as well as the [COMPANY] ([NAME]). The Appellants made a request for a stay of the [NAME]. * The issue before the Board was whether a stay of the [NAME] should be granted until the appeals have been heard or determined. In considering the Stay Application, the Board asked the Appellants, the Director, and [NAME] (the Parties) to answer the following questions:

1.                   What are the serious concerns of [NAME] that should be heard by the Board? 2.                   [NAME] suffer irreparable harm if the stay is refused? 3.                   [NAME] suffer greater harm if the stay is refused pending a decision of the Board on the appeal, than the harm that could occur from granting of a stay? 4.                   Would the overall public interest warrant a stay? Having reviewed the submissions of the Parties, the Board found [NAME] did not meet the Board’s test for a stay and decided not to grant a stay of the [NAME]. The Board determined [NAME] had identified serious concerns about water quality which directly related to the [NAME]. [NAME] provided prima facie evidence that the unconfined aquifer at [NAME] site could be hydraulically connected to the bedrock aquifers used by [NAME] for drinking water and if contaminants entered the groundwater at [NAME] site, the contaminated groundwater could flow to the bedrock aquifers from which [NAME] draw drinking water. However, the Board found [NAME] failed to demonstrate they would suffer irreparable harm. The Board noted that the [NAME] related to the removal of 15 waterbodies and the implementation of a stormwater management plan at [NAME] site over a series of 6 phases. The Board found only Phase 1 of [NAME] was authorized to commence prior to the resolution of the appeals and would take 5 to 7 years to complete. Therefore, the Board found it would only consider the activities occurring during Phase 1 of [NAME] when deciding irreparable harm. The Board found [NAME] failed to provide any evidence regarding the impact of the activities authorized by the [NAME] with respect to Phase 1 to [NAME]’ water wells. Specifically, the Board found that [NAME] had not provided any evidence that the removal of the two waterbodies located in Phase 1 or the implementation of the stormwater management system would impact [NAME]’ water wells nor did [NAME] persuade the Board that there exists a real risk that as a result of activities at [NAME] site, contaminants could enter the groundwater at [NAME] site through the stormwater management system or otherwise. The Board noted the focus of [NAME]’ evidence was with respect to the removal of the protective layer of overburden, and the sand and gravel overlying the water table across the entire site, and the increased potential for contaminants to enter the groundwater as the natural filtration system is removed. The Board further noted that removal of the overburden, and the sand and gravel, was governed by the [NAME] issued under the Environmental Protection and Enhancement Act and is not considered an activity governed by the [NAME]. The Board noted the [NAME] as issued, was not appealable The Board observed that removal of the two waterbodies and implementation of a stormwater management system did not involve the removal of overburden or the sand and gravel overlying the water table. Consequently, the Board found [NAME] arguments regarding the release of contaminants at [NAME] site were speculative, and any alleged effects would not or could not occur prior to the hearing of the appeals. The Board also found the balance of probabilities did not favour the granting of a stay as [NAME] would not suffer irreparable harm if a stay was not granted and the Board did not anticipate any significant effects that would affect the public interest during the time the appeals are heard. The Board noted a stay of the [NAME] would not result in a remedy that would address [NAME]’ concerns regarding the removal of the overburden or the sand and gravel overlay, as these activities are addressed in the [NAME]. The Board was not provided evidence of how [NAME] would be irreparably harmed by the removal of the waterbodies or the implementation of the stormwater management plan and noted that a stay would have the practical effect of interrupting [NAME]’s business operations. The Board found that it would not be just and equitable to grant a stay in the circumstances. TABLE OF CONTENTS 1. ..... INTRODUCTION .. 8 2. .....

BACKGROUND .. 9 2.1.          The [NAME] and [NAME] 9 2.2.          The Appeal and Stay Request 11 3. ..... issues . 25 4. ..... Legislation and Case Law ... 25 5. ..... Submissions . 28 5.1.          [NAME] . 28 5.1.1.    Serious Concerns to be Heard . 28 5.1.2.    Irreparable Harm .. 29 5.1.3.    Balance of Convenience and Public Interest. 31 5.1.4.    Application of the Precautionary Principle. 31 5.2.          [NAME] 37 5.2.1.    Serious Concerns to be Heard. 37 5.2.2.    Irreparable Harm .. 37 5.2.3.    Balance of Convenience and Public Interest 39 5.3.          Director 41 5.4.          [NAME]’ Rebuttal 41 5.4.1.    Serious Concerns to be Heard . 41 5.4.2.    Irreparable Harm .. 41 5.4.3.    Balance of Convenience and Public Interest 41 5.4.4.    Application of the Precautionary Principle . 42 5.4.5.    Stay as an Extraordinary Remedy . 42 6. ..... Analysis and Findings . 43 6.1.          Serious Concerns to be Heard . 43 6.2.          Irreparable Harm .. 44 6.2.1.    Application of the Precautionary Principle . 62 6.3.          Balance of Convenience and Public Interest 66 7. ..... IS IT JUST AND EQUITABLE TO GRANT A STAY? . 69 7.1.          Standard of Extraordinary . 69 7.2.          Just and Equitable in the Circumstances. 70 7.2.1.    Delay of Proceedings . 71 8. ..... DECISIon. 72 1.                                          INTRODUCTION [ 1 ]                                        These are the reasons for the decision of the [NAME] (the Board) regarding the application made by [NAME], and [NAME] and [NAME] ([NAME]) for a stay of [NAME] No. DAUT0012841 (the [NAME]) issued to [COMPANY]. ([NAME]) under the Water Act , RSA 2000, c W-3 (the Water Act ) by the Director, Regulatory Assurance Division South, [NAME] (the Director). [ 2 ]                                        The [NAME] authorizes [NAME] to remove several wetlands and implement a stormwater management plan at NW 31-026-03-W5M and SW-31-026-03-W5M (the Lands) in [NAME]. [ 3 ]                                        The [NAME] was originally issued to [COMPANY] ([NAME]) but was amended by [NAME] ([NAME]) on February 2, 2025 to change the name of [NAME] from [NAME] to [COMPANY]. ([NAME]) to reflect the transfer in ownership of the Lands (to which the [NAME] is appurtenant) from [NAME] to [NAME]. No other terms or conditions of the [NAME] were amended by [NAME]. For purposes of this decision the term [NAME] will refer to [NAME] for matters occurring prior to February 2, 2025, and to [NAME] for matters occurring on and after February 2, 2025. [ 4 ]                                        The Lands are to be used by [NAME] in connection with aggregate extraction. [ 5 ]                                        Between July 26 and August 10, 2023, the [NAME] (the Board) received Notices of Appeal from [NAME] as well as the [COMPANY] ([NAME]). [ 6 ]                                        [NAME] requested a stay of the [NAME]. To be granted a stay, the Appellants must be directly affected by the decision of the Director to issue the [NAME] and have standing in the appeals. The Board determined the directly affected status of [NAME] in Directly Affected Decision: [NAME] v Director, Regulatory Assurance Division South, [NAME] , re: [COMPANY] , 2026 [NAME] 6. [ 7 ]                                        As the preliminary matter before the Board was whether a stay should be granted until the appeals have been heard and determined, the Board requested and received comments from [NAME], and the Director on the request for a stay. [ 8 ]                                        After considering the written submissions from [NAME], and the Director, the Board decided not to issue a stay of the [NAME]. These are the reasons for this decision. [ 9 ]                                        In making this decision the Board has not made any decision on the merits of the appeals which will be dealt with during the hearing.

2.

BACKGROUND [ 10 ]                                    The Board has considered the records before it, including the Director’s Record, and the written submissions of the Parties and has summarized the relevant information for the purposes of this decision below. 2.1.                                     The [NAME] and [NAME] [ 11 ]                                    [NAME] plans to operate a dry gravel pit ([NAME]) northeast of Cochrane, in [NAME] ([NAME]). As a result of the mining operations at [NAME], several water bodies will be removed, and a storm water management plan will be implemented which required [NAME] to apply for a Water Act [NAME]. As discussed below, the extraction of gravel from the dry pit is governed by a [NAME] under the Environmental Protection and Enhancement Act, RSA 2000, c E-12 (EPEA). A [NAME] in not appealable. [ 12 ]                                    [NAME] is located within the surface water catchment of an unnamed tributary of [NAME], approximately 1,300 metres upstream of Big Hill Springs Provincial Park. [NAME] footprint are two large temporary graminoid marsh wetlands and several other smaller wetlands, which are not groundwater fed. Groundwater is found between 20 and 24 metres below the surface and above the bedrock. [NAME] is considered a dry pit which means that no excavation will occur below or at the groundwater table and gravel extraction will occur to within 1.0 metre of the groundwater. [1] [ 13 ]                                    [NAME] is to be developed in 6 phases and will eventually disturb 208 acres (84 hectares). Initially, sand and gravel extraction will only occur in Phase 1, which is comprised of about 35.5 acres (14.4 hectares) and will take approximately 5 to 7 years to deplete. [2] [ 14 ]                                    [NAME] for [NAME]’s Land Use Amendment Application and Master Site Development Plan was received from [NAME] on March 2, 2021. The Development Permit for [NAME] was received by [NAME] from [NAME] on March 31, 2022. [ 15 ]                                    [NAME] issued [NAME] No. 478753-00-00 (the [NAME]) for [NAME] to [NAME] on July 25, 2023. [3] [ 16 ]                                    During Phase 1 of the [NAME], a temporary graminoid marsh being 0.009 hectares in size (Wetland 6) and an ephemeral water body being 0.048 hectares in size (Wetland 11) will be removed by [NAME]. A stormwater management plan will also be implemented as part of [NAME]. [ 17 ]                                    [NAME] applied for a Water Act [NAME] for the removal of 13 wetlands [4] on the Lands on September 1, 2021 (the Application). The Board notes that the Wetland Assessment and Impact Report , [COMPANY]. (August 2021) was updated on May 10, 2023, after [NAME]’s submission of the Application, and states that a total of 23 water bodies were assessed of which 19 waterbodies were identified as being partially or fully within [NAME] boundaries. [5] The WAIR further states, 15 of the waterbodies, including 7 wetlands, will be partially or fully removed as part of [NAME], and 8 waterbodies, including 3 wetlands, will be avoided. [6] [ 18 ]                                    Public notice of the Application was published in the [ADDRESS] on January 18, 2022, and in the Cochrane Times on January 19, 2022. [ 19 ]                                    The following Statements of Concern were submitted to the Director: 1.                   [NAME] on January 30, 2022; 2.                   [NAME] on January 31, 2022; 3.                   [NAME] on January 27, 2022; and 4.                   the [NAME] on January 19, 2022. [ 20 ]                                    The Statements of Concern were accepted by the Director on May 31, 2022. [ 21 ]                                    On July 20, 2023, the [NAME] was issued to [NAME]. The [NAME] authorizes the removal of several waterbodies and the implementation of a stormwater management plan for [NAME] site (the Activity). 2.2.                                     The Appeal and Stay Request [ 22 ]                                    Between July 26 to August 10, 2023, the Board received Notices of Appeal from [NAME] and the [NAME] as well as the [COMPANY] ([NAME]); [NAME] and [NAME] ([NAME]); [NAME]; [NAME] and [NAME] ([NAME]); and [NAME] and [NAME] ([NAME]). [ 23 ]                                    Between July 29 and August 16, 2023, the Board acknowledged receipt of the Notices of Appeal. [ 24 ]                                    On September 25, 2023, the [NAME] applied for a stay of the [NAME] (the [NAME] Application). On March 6, 2024, the Board found that the [NAME] had standing in the appeal as the [NAME] was directly affected by the [NAME] but denied the [NAME] Application. [7] [ 25 ]                                    On October 3, 2024, [NAME] made a motion challenging the directly affected status of the [NAME], the [NAME] and [NAME]. [NAME] also advised the Board that it intended to provide submissions regarding the proper issues before the Board. [ 26 ]                                    On October 17, 2023, the Board set a process to receive submissions regarding the directly affected status of the [NAME], the [NAME], and [NAME]. The Board notes it found the [NAME] directly affected as part of the [NAME] Application. The Board advised that the motion by [NAME] regarding the proper issues before the Board would be deferred until it was determined if the appeals would proceed to a hearing. [ 27 ]                                    Between October 31 and November 28, 2023, the Board received submissions from the [NAME] and the Director regarding the directly affected status of the [NAME], and [NAME]. [ 28 ]                                    On November 20, 2023, the Board requested the Director, or [NAME] provide the Board with a copy of the Code of Practice and certain of its appendices (the Requested Documents). On November 22, 2023, the Board received the Requested Documents from [NAME]. [ 29 ]                                    On December 6, 2023, the Director provided the Director’s Record to the Board. On December 8, 2023, the Board acknowledged receipt of the Director’s Record and provided the Director’s Record to [NAME], the [NAME], the [NAME], and [NAME] (collectively, [NAME], and [NAME] are referred to as the Other Appellants). On November 12, 2024, [NAME] advised the Board that he would be representing [NAME] and was provided a copy of the Director’s Record on. November 19, 2024. [ 30 ]                                    On April 8, 2024, [NAME] advised the Board it had not commenced work under the [NAME] while the Board was considering the [NAME] Application. [NAME] stated it had constructed a berm on the property to satisfy a condition of its development permit from [NAME]. [ 31 ]                                    On August 21, 2024, the Board dismissed the appeals of the [NAME], and [NAME] as they each had failed to demonstrate how they would respectively be directly affected by the [NAME]. [8] [ 32 ]                                    On August 29, 2024, the Board dismissed [NAME]’ Notice of Appeal and [NAME]’ Notice of Appeal as their appeals were filed late. [9] [ 33 ]                                    On October 30, 2024, the Board held a mediation meeting with [NAME], the [NAME], and the Director (the Parties). The Board notes that prior to the mediation, the Board advised the Other Appellants that they may apply to intervene in the mediation and may participate if permitted by the Parties. [NAME], and [NAME] requested to attend the mediation meeting, however they were not permitted to do so as [NAME] objected. A mediation meeting was held but a resolution of the appeals was not reached. On November 6, 2024, the Board requested the Parties provide available dates in January and February 2025 for a virtual hearing of the appeals. [ 34 ]                                    Between November 13 and 15, 2024, the Director, [NAME] and the [NAME] provided their availability for a hearing in January, February, and March. The [NAME] requested that the hearing be conducted in-person in Cochrane, [NAME], while the Director and [NAME] requested the hearing be held virtually. [ 35 ]                                    On November 19, 2024, the Board requested the Parties provide availability for a hearing in March of 2025 and advised that Board could only offer virtual hearings or in-person hearings at the Board’s offices in Edmonton. [ 36 ]                                    On November 19, 2024, in response to emails received from [NAME] on November 11 and 13, 2024, the Board advised that parties who are not parties to the appeal but wishing to participate in the hearing must file an intervenor application with the Board. [ 37 ]                                    Also on November 19, 2024, the [NAME] requested the Board advise why it is unable to hold in-person hearings outside of Edmonton and argued that based on section 20 of the Board’s Rules of Practice, the [NAME] had a legitimate expectation that the hearing would be conducted in-person at a location convenient to the parties to the appeals and close to the Lands. [10] The [NAME] also stated that the Director’s Record was poorly organized, not properly paginated or bookmarked and requested the Board provide a searchable, bookmarked, paginated Director’s Record. [ 38 ]                                    On December 2, 2024, [NAME] advised they would make an application for interim costs and objected to the setting of hearing dates prior to the determination of their Interim Costs Application. [NAME] stated that rather than seeking a stay of proceedings, they would prefer to ascertain the anticipated start date of [NAME]. [NAME] also noted the [NAME]’s concern with respect to the organization of the Director’s Record and the entitlement to an in-person hearing under the 2023 Rules of Practice. [ 39 ]                                    On December 5, 2024, [NAME] advised the Board it believed it unnecessary to address the Interim Costs Application prior to the determination of hearing dates. [NAME] stated the issues for the hearing should be set and a date for a hearing chosen and [NAME]’ Interim Costs Application could be scheduled so there was sufficient time for the application to be heard before the hearing of the appeal. [NAME] advised it had not determined when it would commence work at [NAME] noting that the principal regulatory authority for its activities was the [NAME], which was not appealable. [NAME] stated it did not find the Director’s Record difficult to navigate and that an in-person hearing was unnecessary as a virtual hearing would be more efficient and cost effective. [ 40 ]                                    Also on December 5, 2024, [NAME] requested information regarding the timing of any excavation to remove overburden at [NAME] stating that it would inform their decision to seek a stay of the [NAME]. [ 41 ]                                    On December 11, 2024, [NAME] asked the Board to set a process for submissions if the Board intended to delay setting of the issues for the hearing or setting the dates for the hearing pending an Interim Costs Application from [NAME]. [NAME] also advised it had not determined when it would commence operations at [NAME]. [ 42 ]                                    On December 23, 2024, the Board acknowledged [NAME]’ objection to scheduling the hearing of the appeals prior to the Board’s determination of their Interim Costs Application. The Board set a schedule for the Parties to provide the Board with their available dates for a hearing, any preliminary motions they wished decided prior to the hearing, and the proposed issues for the hearing. [ 43 ]                                    Also on December 23, 2024, the Board advised the Parties it had provided the [NAME] a scanned version of the Director’s Record with tabs as a courtesy, noting the scanned version was not the official record and would not be relied on at the hearing of the appeals. The Board also reiterated that the Board can only offer virtual hearings or in-person hearings at the Board’s office in Edmonton due to limited resources. [ 44 ]                                    On January 16, 2025, [NAME] made three preliminary motions: 1.                   a motion for an award of interim costs (the Interim Costs Application); 2.                   a motion to hold an in-person hearing in Cochrane, [NAME] (the In-Person Hearing Motion); and 3.                   a motion for a stay of proceedings (the Stay Application). [NAME] advised they were not available for an in-person hearing until June of 2025 and argued it was premature to set a hearing date. [ 45 ]                                    On January 17, 2025, the [NAME] requested the Board clarify the next steps in the proceedings and repeated its request for a searchable, bookmarked, paginated Director’s Record. The [NAME] requested the Board advise whether it would receive submissions regarding the setting of hearing dates and the In-Person Hearing Motion, noting that the Board’s 2023 Rules of Practice were revised in November 2024 contemporaneously with the [NAME]’s request for an in-person hearing. [ 46 ]                                    On January 17, 2025, [NAME] confirmed that it was available for a hearing in March and June of 2025, and provided proposed issues for the hearing, noting that many of the issues raised by [NAME] were not related to the activities regulated by the [NAME]. [NAME] requested the hearing be held virtually as [NAME] could attend at their legal counsel’s office in Calgary and noting that a virtual hearing was a cost effective and efficient. [ 47 ]                                    On January 24, 2025, the Director provided the Board with their availability in April and June 2025, for a hearing of the appeal and proposed issues for the hearing. The Director noted that several matters included in [NAME]’ and the [NAME]’s Notices of Appeal were outside of the Board’s jurisdiction or unrelated to the Director’s decision to issue the [NAME] and therefore should not be issues before the Board. The Director also requested the hearing be held virtually. [ 48 ]                                    On February 10, 2025, the Board advised the Parties that as a courtesy, it printed and scanned the Director’s Record and provided it on December 23, 2024, via the Board’s public Dropbox link, noting the scanned Director’s Record was tabbed but not bookmarked or numbered because the Board does not the staff to do so. The Board further stated the Director’s Record provided by the Director was considered an official record, the Board does not alter it once it has been received and the scanned version of the Director’s Record would not be relied on at the hearing. The Board also advised the Parties that an in-person hearing would be held in Cochrane, [NAME] subject to finding a suitable venue and financial [NAME] of the Government of [NAME]. The Board noted the change to its 2023 Rules of Practice in November 2024 was made after the appeals were filed and was due to the Board having limited resources. The Board noted it had found using a virtual platform for a hearing to be successful. The Board set the hearing dates for June 23 to 26, 2025. The Board set a process for receiving submissions from the Parties regarding the hearing issues. The Board further requested [NAME] provide the relevant information and evidence to support their Stay Application, including whether [NAME] were directly affected, and to support the Interim Costs Application. [ 49 ]                                    On February 24, 2025, [NAME] and [NAME] ([NAME]) [11] provided the Board their initial submission regarding the Interim Costs Application which was acknowledged by the Board on February 25, 2025. The Board set a process to receive response submissions from [NAME] and the Director. [ 50 ]                                    On March 4, 2025, the Director advised it would not be making submissions regarding the Interim Costs Application because costs were sought against [NAME] not the Director. Also on March 4, 2025, [NAME] provided its response submission to the Interim Costs Application. [ 51 ]                                    On March 7, 2025, the [NAME] requested that [NAME] advise if the [NAME] had been transferred to a third party. [ 52 ]                                    On March 10, 2025, [NAME] advised that the [NAME] and [NAME] were being transferred to a third party (the Transferee) and that [NAME] was continuing as agent of that party. [NAME] stated the Transferee would be bound by and assume all the same commitments as [NAME]. Also on March 10, 2025, the [NAME] asked if copies of the agency agreement and other agreements between [NAME] and the Transferee would be provided to the Parties. [ 53 ]                                    On March 12, 2025, the Board requested [NAME] provide the Board with the name and contact information of the Transferee and respond to the [NAME] email of March 10, 2025. [ 54 ]                                    On March 13, 2025, [NAME] and [NAME] provided their rebuttal submission (dated March 14, 2025) with respect to the Interim Cost Application. [ 55 ]                                    March 14, 2025, the [NAME] requested that the Board direct [NAME] and the Director to provide the Board and the Parties a list of all EPEA and Water Act approvals and registrations transferred to the Transferee as well as a certified record of all related relevant records and agreements (collectively, the Transaction Documents). The [NAME] stated it reserved the right to amend its list of issues and may seek an adjournment of the appeal after review of the terms and conditions of the transfer of the [NAME] to the Transferee. [ 56 ]                                    On March 14, 2025, the Board requested [NAME] advise if they would be providing the Transaction Documents. [ 57 ]                                    On March 14, 2025, [NAME] advised that the transfer of the [NAME] and the [NAME] was imminent, that the new owner was [NAME] and that it did not contemplate that any commercial agreements would be submitted in these proceedings. [ 58 ]                                    On March 14, 2025, [NAME] provided their initial submission with respect to Stay Application ([NAME]’ Initial Submission) together with the documentary evidence they relied upon including a report entitled Re: Assessment of [COMPANY] ([NAME]) Mining Site, [NAME], Ph.D., P.Eng., Professor University of Calgary (March 9, 2025) (the [NAME]). [ 59 ]                                    On March 20, 2025, [NAME] advised that [NAME]’ request for the Transaction Documents exceeded the matters relevant to the appeals. [NAME] advised that the [NAME] was appurtenant to the Lands, [NAME] was only required to notify the Director of the transfer, and no appealable issues arose because of the transfer the [NAME]. [NAME] stated a copy of the title transfer would be provided to the Parties once it was registered and publicly available. [ 60 ]                                    On March 21, 2025, [NAME] advised that commencement of construction and work at [NAME] had been deferred. [ 61 ]                                    On March 21, 2025, the [NAME] requested the Director confirm that no amendments had been made to the [NAME] other than to amend the name of [NAME]. On March 21, 2025, the Director advised that the [NAME] and the [NAME] had been transferred to [NAME] effective February 2, 2025, and provided the Board a copy of the amended [NAME]. [ 62 ]                                    On April 2, 2025, the Director advised he required four weeks to respond to the Appellants’ written submissions for the hearing and proposed a schedule for hearing submission s. [ 63 ]                                    Between April 2 and 4, 2025, [NAME], the [NAME] and [NAME] exchanged a series of emails regarding the viability of the June 2025 hearing dates (the Email Exchange). [NAME] requested that the hearing of the appeals be postponed until after the [NAME] of Appeal issued its decision regarding the appeal by the authorization [NAME] and the director of the decision of Madame Justice Ashcroft interpreting whether a judicial stay issued by Madame Justice Price included a stay of the removal of the overburden in respect of an unrelated Water Act [NAME] in [NAME] et al. v [NAME] et al , Court of King’s Bench Action No. 2401-06916 (June 24, 2024) (the Ashcroft Appeal). [NAME] submitted the decision would be relevant to these appeals as Madame Justice Ashcroft found that the overburden above the water table could be subject to an [NAME] because of the definition of “activity” in the Water Act . On April 10, 2025, the Board acknowledged it had reviewed the Email Exchange and advised that after the review, the Board was of the view a hearing in June of 2025 would not be possible as the Parties had not agreed on the issues for the hearing and the Director’s proposed schedule for submissions could not be met. The Board also advised that it had made no determination on the relevance of the Ashcroft Appeal to the appeals or whether it was necessary to delay the hearing. [ 64 ]                                    On May 2, 2025, [NAME] provided its written submission in respect of the Stay Application ([NAME]’s Response Submission) and a report entitled Technical Hydrogeologic Comment on Stay Request #2, [COMPANY] [NAME]), (May 2, 2025) (the [NAME]). [NAME] requested the Board’s direction whether submissions were required regarding the relevance of Ashcroft Appeal to the appeals and whether there was a need to wait for the Court of Appeal to decide the Ashcroft Appeal before considering the preliminary matters before the Board in the present appeals. [ 65 ]                                    On May 28, June 19 and July 15, 2025, [NAME] requested the Board set a deadline for [NAME] to respond to [NAME]’s Response Submission and schedule the hearing of the appeals so the Board can complete any outstanding preliminary decisions. [NAME] stated the Board should set dates for the hearing because the uncertainty regarding the [NAME] put [NAME] in a difficult commercial position, citing the statement of the Board in Stay Decision: [COMPANY]  v  Director, Regulatory Assurance Division South, [NAME] , re:  [COMPANY]  (6 March 2024), 2024 [NAME] 9 ( [NAME] ). “However, the Board also notes that once an appeal is filed an [NAME] who continues development work is at risk that the Board may recommend to the Minister that the Director's decision be reversed. This would result in [NAME] having to stop all activities and reclaim the disturbance.” [12] [ 66 ]                                    On September 5, 2025, [NAME] made an application for a Procedural Order (the Procedural Order Request) seeking a prompt resolution of the Stay Application and confirmation of the directly affected status of each of [NAME]. Attached to the Procedural Order Request was the Affidavit of [NAME], Director and Officer of [NAME] setting out the procedural steps taken by [NAME] regarding the submission of rebuttal submissions by [NAME] and stating: “Continued delay in scheduling the hearing of the appeals and even next procedural steps is causing uncertainty for [NAME] and creates additional financial risk. Further, it creates uncertainty in how to move forward with other construction necessary and required under related approvals.” [13] [ 67 ]                                    On September 5, 2025, the [NAME] requested that the Board deny the Procedural Order Request or set up the process to receive submissions from the Parties. [ 68 ]                                    On October 7, 2025, the Board confirmed that the submission process for the Interim Costs Application was complete and the Panel Chair, [NAME] would be making the decision. The Board further advised it had determined [NAME] had made a sufficient case for a stay and set a process to receive submissions from the Director and rebuttal submissions from [NAME] noting [NAME] had previously filed response submissions. The Board requested the Parties provide available hearing dates for February and March 2026, noting the Ashcroft Appeal which may have impacted the setting of issues, had been discontinued [14] and that the original orders made by Madame Justice Price and Madame Justice Ashcroft remained in place. [15] The Board advised the Parties it would proceed to set the issues for the hearing and set a process for receiving submissions. [ 69 ]                                    On October 8, 2025, [NAME] made a motion to exclude [NAME] from any aspect of the appeals including rendering a decision on the Stay Application on the basis of a reasonable apprehension of bias (the Bias Motion). The Appellants asked the Board to set a process to receive submissions from the Parties on the Bias Motion. [NAME] also requested the Board delay its decisions with respect to the Stay Application and setting the issues for the hearing until the Court of King’s Bench made its decision in Court of King’s Bench Action 2501-04943 which was an application for judicial review (the [NAME] ) of the Board’s reconsideration and stay decision in Stay Decision:  [NAME]  v  Director, Regulatory Assurance Division South, [NAME] , re:  [COMPANY].  (14 March 2025), 2025 [NAME] 1 ( [NAME]) . [NAME] further requested the Board delay setting of the issues for the hearing until a decision was rendered by the Court of King’s Bench in the [NAME] and in Court of King’s Bench Action 2401-06687 regarding a Notice of Constitutional Question (the Badlands Judicial Review ) in respect of the Minister’s decision in [NAME]  v  Director, South Saskatchewan Region, Operations Division, [NAME], re: Badlands Recreation Development Corp. , 2024 [NAME] ( Badlands ). [NAME] further advised that [NAME] would not be available for a hearing until late summer or early fall of 2026. [ 70 ]                                    On October 9, 2025, the Board acknowledged receipt of [NAME]’ letter of October 8, 2025, and set up a process to receive comments from the other Parties regarding the letter. [ 71 ]                                    On October 10, 2025, the Director responded to the Board’s letters of October 7 and 9, 2025, advising that the Director continued to take no position with respect to the Interim Costs Application or the Stay Application. The Director also objected to the Board receiving any further submissions with respect to the issues for the hearing and stated that the Board has been well positioned since March to set the issues for the hearing. The Director provided available dates for the hearing for February to May 2026. The Director also reserved the right to comment on [NAME]’ and the [NAME] allegations of reasonable apprehension of bias of [NAME] after the Board sets a submission process or limited the submissions to those set out in [NAME]’ letter. The Director further stated that it was not appropriate for the Board to delay rendering its decisions on preliminary matters pending the outcome of various court decisions on unrelated appeals stating: “The Board is well within its authority to make decisions on the Appellants’ applications for interim costs and a stay, as well as to set the hearing issues, based on the current state of the law. If one or more of the pending decisions cited in [NAME]’s October 8 letter is released prior to the Board issuing its decisions on these preliminary matters, the Board may consider allowing the parties to make further submissions. Alternatively, a party may apply for reconsideration of a Board decision if a newly released court decision could materially impact it.” [ 72 ]                                    On October 20, 2025, [NAME] responded to the Board’s letter dated October 7 and 9, 2025 and [NAME]’ letter of October 8, 2025, stating that [NAME]’ letter of October 8, 2025, merely raises the issue of reasonable apprehension of bias without providing the entirety of their submissions which was improper, unhelpful, and delayed proceedings. [NAME] requested the Board to consider the Bias Motion based on the material already submitted but reserved the right to respond should the Board allow [NAME] and the [NAME] to provide new submissions. [NAME] submitted [NAME]’s involvement did not raise a reasonable apprehension of bias and provided response submissions to the Bias Motion. [NAME] also objected to delaying the proceedings pending the decisions of the Court of King’s Bench in the [NAME] and the Badlands Judicial Review as it would be improper, inefficient, unprecedented, and prejudicial to [NAME] to delay the proceedings when unrelated parties seek judicial review of unrelated approvals under the Water Act because those decisions might change the law. [NAME] also stated that as all the Parties have provided submissions regarding the hearing issues, the Board should be able to determine the issues and should not wait until after these decisions of the Court of King’s Bench. [NAME] provided dates it would be available for a hearing in February to May 2026 and strongly objected to delaying the hearing of the appeals to late summer or early fall of 2026, noting [NAME] was unavailable for the hearing for essentially all the spring and summer of 2026. [NAME] acknowledged that while parties are entitled to their counsel of choice, there were limits to that right if it prejudices the other parties. [NAME] stated that delaying the hearing of the appeals until August or September 2026 prejudices [NAME] because it creates financial and other forms of uncertainty for [NAME]. [ 73 ]                                    On October 20, 2025, the [NAME] responded to the Board’s letters of October 7 and 9, 2025 and [NAME]’ letters of October 8, 2025. The [NAME] noted it submitted its proposed issues to the Board on February 24, 2025, and reserved the right to make further submissions by October 31, 2025. The [NAME] stated it supported the Bias Motion and the Stay Application and agreed the Stay Application should be delayed pending the determination of the [NAME] . The [NAME] stated it was available for a hearing in March and April of 2025, but its expert witness was not available in May or June. The [NAME] also noted it supported [NAME]’ submission that the Board had a legal obligation to ensure the hearing was scheduled at a time and for a length necessary for parties to give evidence and make submissions. [ 74 ]                                    On October 21, 2025, [NAME] advised the Board that the purpose of its October 7, 2025 letter was to make an application regarding the Bias Motion and obtain a submission schedule. [NAME] also noted [NAME] did not provide any evidence that a delay of the hearing from March to September would prejudice [NAME] and stated it would prejudice [NAME] if they were forced to proceed without counsel or counsel of their choice. [ 75 ]                                    On October 23, 2025, the Board advised the Parties it had made no decision regarding the Bias Motion. The Board also advised that in the interests of moving the matter forward, the Board’s Chair, [NAME], would make the preliminary decisions for the appeals. The Board noted that if [NAME] was determined to be the best choice for the panel for the hearing of the appeals, the Board would provide the Parties an opportunity to present their arguments on the Bias Motion. [ 76 ]                                    As well, on October 23, 2025, the Board advised the Parties that it would not wait for a decision in [NAME] prior to completing the stay submission process and would determine if it was appropriate to delay the Stay Application after review of the submissions. The Board requested [NAME] provide their stay rebuttal submission by November 7, 2025. [ 77 ]                                    The Board also advised on October 23, 2025, that it would not wait for the Court of King’s Bench decisions in the [NAME] and the Badlands Judicial Review before setting the issues for the hearing and set a process for the Parties to provide final comments regarding the issues for the hearing. The Board stated it was proceeding with the issues submission process so that the issues could be set, and the Parties could commence preparing their submissions for the hearing. The Board stated that in setting the issues for the hearing, the Board would have regard for the Order of Justice Price and the Order of Justice Ashcroft and could consider the Court’s decision in the [NAME] when issued. The Board also stated it was not clear how the Court’s decision in the Badlands Judicial Review would affect the setting of the issues for these appeals as Badlands concerned the appeal of a stormwater management system for a recreational development. The Board adopted the submission of the Director in his October 10, 2024 letter. [ 78 ]                                    On November 7, 2025, the Board received [NAME]’ rebuttal submission together with a report entitled Re: Review of [NAME] on Stay Request #2, [COMPANY] , [NAME], Ph.D., P.Eng., Professor ((November 3, 2025) (the [NAME]), a letter from [NAME] to [NAME] regarding [NAME]’s experience in Contaminant Hydrogeology (the Experience Letter) and an updated curriculum vitae for [NAME] (the Updated CV) (collectively, [NAME]’ Rebuttal Submission). [ 79 ]                                    On November 12, 2025, [NAME] provided the Board an original copy of the [NAME] showing it was stamped by an engineer at the time of finalization. [NAME] noted the stamp was automatically removed when it was attached to [NAME]’s Response Submission as a safety precaution to ensure stamped reports are not altered. [ 80 ]                                    On November 12, 2025, [NAME] provided a copy of the [NAME] stamped with the [NAME]’s Professional Engineer in [NAME] stamp. [ 81 ]                                    On June 17, 2025, the Board notes the decision of the Court of King’s Bench in the [NAME] was issued: [NAME] v [NAME] , 2025 ABKB 724 ( [NAME] ). 3.                                          issues [ 82 ]                                    The preliminary issue before the Board was whether a stay of the [NAME] should be granted until the appeals have been heard and determined. [ 83 ]                                    In considering the Stay Application the Board asked [NAME], and the Director (Parties to the Stay Application) to comment on the following questions:

1.                   What are the serious concerns of [NAME] that should be heard by the Board? 2.                   [NAME] suffer irreparable harm if the stay is refused? 3.                   [NAME] suffer greater harm if the stay is refused pending a decision of the Board on the appeal, than the harm that could occur from granting of a stay? 4.                   Would the overall public interest warrant a stay? 4.                                          Legislation and Case Law [ 84 ]                                    The fundamental question before the Board in a stay application is whether granting the stay would be just and equitable in all the circumstances. [ 85 ]                                    The Board’s authority to grant a stay is found in section 97 of EPEA, which provides in part: “97(1)        Subject to subsection (2), submitting a notice of appeal does not operate to stay the decision objected to. (2)              The Board may, on application of a party to a proceeding before the Board, stay a decision in respect of which a notice of appeal has been submitted.” [ 86 ]                                    Granting a stay is an extraordinary remedy and the Board appreciates this discretion should be used sparingly. [16] To guide the Board in exercising its discretion, the Board applies its four-part test for a stay (the Board’s Stay Test). The first three parts of the Board’s Stay Test are adapted from the Supreme Court of Canada decision in [NAME] [17] as follows:

1.                   What are the serious concerns of the appellant that should be heard by the Board? 2.                   Would the appellant suffer irreparable harm if the stay is refused? 3.                   Would the appellant suffer greater harm if the stay is refused pending a decision of the Board on the appeal, than the harm that could occur from granting of a stay? [ 87 ]                                    The fourth step of the test is adapted from the Court of King’s Bench decision in [COMPANY] v Director ([NAME]), 2022 ABQB 582 ( [NAME] ) as follows:

4.                   Is granting a stay just and equitable given the circumstances? [18] Together, all these factors guide the Board’s exercise of its discretion. [ 88 ]                                    The first step of the Board’s Stay Test requires the applicant to show there is a serious issue to be tried. The applicant must demonstrate through the evidence submitted there is some basis for presenting an argument. Often when a stay application is made, the Board does not have all the evidence before it, therefore, “...a prolonged examination of the merits is generally neither necessary nor desirable. ” [19] [ 89 ]                                    The second step of the Board’s Stay Test requires the Board to decide whether the applicant seeking the stay would suffer irreparable harm if the stay were not granted. It is the nature of the harm that is relevant, not its magnitude. The harm must not be quantifiable; that is, the harm to the applicant could not be satisfied in monetary terms, or one party could not collect damages from the other. [ 90 ]                                    Irreparable harm was defined by the [NAME] of Appeal in  [NAME] v [NAME] , 1985 ABCA 12 sub nom [NAME] v [COMPANY], 1985 ABCA 12 ( [NAME] ): “By irreparable injury it is not meant that the injury is beyond the possibility of repair by money compensation but it must be of such a nature that no fair and reasonable redress may be had in a court of law and that to refuse the injunction would be a denial of justice .” [20] [ 91 ]                                    The party claiming that damages awarded as a remedy would be inadequate compensation for the harm done but must show there is a real risk that harm will occur. It cannot be mere speculation. [21] [ 92 ]                                    The third step in the Board’s Stay Test is the balance of convenience. Here the Board must determine “which of the parties will suffer the greater harm from the granting or refusal of a stay pending a decision on the merits.” [22] The Board is required to weigh the burden the stay would impose on [NAME] against the benefit the appellant would receive. This weighing is not strictly a cost-benefit analysis but, rather, a consideration of significant factors, such as the cumulative effect of granting a stay, [23] third parties who may suffer damage, [24] or whether the reputation and goodwill of a party will be affected. [25] [ 93 ]                                    Ordinarily, any alleged harm to the public is to be assessed at the third stage of the test. However, the public interest may also be considered at the second as well as the third stages of the test where a private applicant or a governmental authority raises in their application the issue of irreparable harm to the public interest. [26] [ 94 ]                                    The public interest includes the “... concerns of [COMPANY] generally and the particular interests of identifiable groups.” [27] As stated by the Board in [COMPANY]. and [COMPANY] v Director, Southern Region, Operations Division, [NAME], re: [COMPANY]. and [COMPANY]. (8 July 2011), 2011 [NAME] 21 ( [NAME] ): “[65] The Environmental mandate of this Board requires the public interest be considered in appeals before the Board. Therefore, the Board has assessed the public interest as a separate step in the test. The applicant and the respondent are given the opportunity to show the Board how granting or refusing the stay affect the public interest…. The effect on the public may sway the balance for one party over the other.” [ 95 ]                                    Generally, an applicant must be successful at each of the first three steps of the Board’s Stay Test to have a stay granted. However, as the fundamental question before the Board remains whether the granting of a stay is just and equitable given the circumstances, the Board will apply the fourth step of the Board’s Stay Test in all cases. [28] [ 96 ]                                    The standard of proof in a stay application is the balance of probabilities, and the onus is on the applicant to establish that the stay test is met. [29]

5.                                          Submissions [ 97 ]                                    The Board has considered the written submissions of the Parties to the Stay Application and has summarized the relevant information for the purposes of this decision below. 5.1.                                     [NAME] s 5.1.1.                               Serious Concerns to be Heard [ 98 ]                                    [NAME] submitted the issues for consideration in these appeals were set out in their correspondence with Board and included the concerns advanced by the [NAME] in its letter to the Board on February 24, 2025. [NAME] submitted each was a serious concern and further highlighted the following issue was of most concern: “Are the [NAME] and its conditions adequate to address potential and cumulative effects the subject activities will have or may have on the Appellants, as household users and licencees?” [30] [ 99 ]                                    [NAME] stated the [NAME] sets out how the [NAME] will impact them as household users and that pursuant to section 38(2)(b) of the Water Act, the Director may consider an [NAME]’s cumulative effects and impact on household users, including the cumulative impact of future and existing gravel pits in [NAME]’ vicinity. [31] 5.1.2.                               Irreparable Harm [ 100 ]                                [NAME] submitted that in making their Stay Application, they are advancing a private interest in their water wells. [NAME] argued the Board’s decision in the [NAME] Application had no applicability in this Stay Application as it related to a public interest. [ 101 ]                                [NAME] submitted irreparable harm has two components; (1) the type of harm required to meet the threshold of irreparable and (2) the evidence necessary to prove irreparable harm. [32] [ 102 ]                                [NAME] noted the Supreme Court of Canada in [NAME] stated that irreparable harm is “harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other,” that “permanent loss of natural resources will be the result when a challenged activity is not enjoined,” and that adverse impacts to human health also rise to the threshold of irreparable. [33] [ 103 ]                                [NAME] argued in this case the harm was to the use of a natural resource used by [NAME] and if the bedrock aquifers were contaminated [NAME]’ wells would be contaminated. [NAME] argued the type of harm in this case was analogous to that referred to by Mr. Justice Reed in [NAME] : “In such a scenario, in the absence of some kind of intervention the harm would more likely than not be inevitable. It would more likely than not be irreparable. It makes no sense to say that the harm, inexorably working its way to the Applicants’ wells, would simply not reach those wells by the time of the appeal. It is asking to say someone who has been injected with poison and who will die when the poison reaches their heart has not suffered irreparable harm because the poison will not have reached their heart by the time their appeal of the injection has occurred.” [34] [ 104 ]                                [NAME] further argued that: 1.                   evidence of irreparable harm must be “clear and not speculative”, meaning proof that “irreparable harm would flow … without the stay” [ Emphasis in the original.]; [35] 2.                   a party is not required to provide a high level of certainty that irreparable harm will result if the injunction is not granted; [36] 3.                   a party needs to provide some evidence of cause and effect; and 4.                   the nature of the harm is broad and encompassing with the only obligation being that it cannot be repaired should the applicant ultimately succeed. [37] [ 105 ]                                [NAME] submitted the [NAME] provided clear, non-speculative evidence of harm that meets the requirements of irreparable harm – harm to the bedrock aquifer relied upon by [NAME] for drinking water. [38] [ 106 ]                                [NAME] argued mootness can be irreparable harm. They submitted in this case if a stay of proceedings is not granted the appeals will be rendered nugatory and the reasons for the appeals will be moot if the bedrock aquifers are contaminated, citing [NAME] at paragraph 73: “I do agree with the Applicants that such reasoning seems to in fact presume that the appeal is unsuccessful. If contamination occurs, and if the Applicants are successful on their appeal, what then? The gravel pit has been dug. The contamination (assuming, as I discuss below, a “real risk” of contamination is shown on the evidence) has occurred. The very raison d’etre for the appeals is moot. The only way the conclusion reached is justified is if the Applicants are unsuccessful in their appeals. That is unreasonable.” [39] 5.1.3.                               Balance of Convenience and Public Interest. [ 107 ]                                [NAME] submitted the public interest has no applicability to this Stay Application as they were advancing a private interest in their water wells. [40] [NAME] argued the more serious the issues, the more likely a finding of irreparable harm and balance of convenience in favour of an appellant. In this case, [NAME] submitted the seriousness of the issues affects the Board’s consideration of the risk of irreparable harm and the balance of convenience in favour of [NAME]. [41] [ 108 ]                                [NAME] also submitted they have raised significant issues regarding the material effect the [NAME] will have on the quality of their drinking water and the cumulative effect of [NAME] with other extraction operations in the vicinity of [NAME]. [42] [ 109 ]                                [NAME] submitted the balance of convenience favours maintaining the status quo and the seriousness of the issues and the seriousness of the harm of contamination of [NAME]’ wells leans the balance of convenience test toward [NAME]. 5.1.4.                               Application of the Precautionary Principle. [ 110 ]                                [NAME] argued the precautionary principle should inform the Board’s discretion to issue a stay of proceedings, particularly with respect to the Board’s assessment of irreparable harm, noting neither the Water Act nor EPEA explicitly reference the precautionary principle. [43] [NAME] submitted the application of the precautionary principle to the Water Act and EPEA is guided by the discretionary nature of regulatory decision-making and the purpose sections of each of those Acts. [ 111 ]                                [NAME] stated the precautionary principle sets out that “where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation,” and noted that the precautionary principle was adopted by the Supreme Court of Canada in 114957 Canada Ltée ([NAME]. Societété d’arrosage ) v Hudson (Town), 2001 [NAME] 40 ( [NAME] ). [44] [ 112 ]                                [NAME] argued the precautionary principle should be used to interpret the Board’s powers to grant a stay of proceeding because full scientific certainty was possible only following a hearing of the appeals which is a mandatory requirement under section 94 of EPEA. Further, the lack of scientific certainty at the preliminary stage of the appeals was not a reason for refusing a stay of proceedings. [45] [ 113 ]                       [NAME] noted Mr. Justice Reed in the [NAME] quashed the Board’s decision as it did not address the precautionary princ iple. [46] [ 114 ]                                [NAME] submitted the Supreme Court of Canada revisited [NAME] in [COMPANY] v [NAME] (Environment) , 2013 [NAME] 52 ( [NAME]) and applied the precautionary principle to interpret the legislation. [ADDRESS] found the legislation in question was consistent with the precautionary principle as it required that the [NAME] of the Environment be notified once contaminants were released “without waiting for proof that the natural environment has, in fact been impaired.” [47] [ 115 ]                                [NAME] argued the precautionary principle should be applied to the interpretation of the Water Act and EPEA because like the case in [NAME] , both Acts contain multiple provisions addressing regulatory requirements regardless of proof of impairment on the environment. [48] [ 116 ]                                [NAME] also argued the language contained in the purpose sections of the Water Act and EPEA was consistent with the precautionary principle. [49] [NAME] submitted the function of the purpose sections were to define the limits of the discretion conferred by legislation and must be considered when interpreting the legislation. [NAME] referred to the following statement in Statutory Interpretation , 7 th ed., [NAME] (Toronto, [NAME]: LexisNexis Canada, 2022) ( Statutory Interpretation ): “The function of purpose statements is to set out the principles or policies the legislation is meant to implement of the objectives it is meant to achieve…. Purpose statements may reveal the purpose of legislation either by describing the goals to be achieved or by setting out governing principles, norms or policies … and are part of what is enacted into law. … However, like definition and application provisions, purpose statements do not apply directly to facts but rather give direction on how the substantive provision so of the legislation – that do apply to facts – are to be interpreted….” [50] [NAME] continue: “Another important function of purpose statements is to define the limits of discretion conferred by legislation …” [51] [ 117 ]                                [NAME] further argued the purpose provisions inform the use of the precautionary principle in interpreting the Board’s discretionary power under section 97 and how section 97 section should be employed. [52] [NAME] noted the Court in [NAME] applied the precautionary principle to inform discretionary decision-making as well as to interpret the legislation when it refused to find a by-law restricting the use of pesticides ultra vires a municipality’s power under the enabling legislation. [ 118 ]                                [NAME] submitted both [NAME] and the decision of the Supreme Court of Canada in Re IAA enshrine the precautionary principle as an important tool in interpreting the application of powers granted in environmental legislation and require those powers to be exercised with a view to preventing environmental degradation when full scientific knowledge is unavailable. [53] [ 119 ]                                [NAME] stated the Supreme Court in Canada (Minister of Citizenship and Immigration) v [NAME] , 2019 [NAME] 65 ( [NAME] ) confirmed that the precautionary principle itself was a principle of statutory interpretation: “[114]  We would also note that in some administrative decision-making contexts, international law will operate as an important constraint on an administrative decision maker. It is well established that legislation is presumed to operate in conformity with Canada’s international obligations, and the [NAME] is ‘presumed to comply with the values and principles of customary and conventional international law’. … [NAME] , it has also been clear that international treaties and conventions, even where they have not been implemented domestically by statute, can help to inform whether a decision was a reasonable exercise of administrative power; …” [54] [Citations omitted.] [ 120 ]                                [NAME] noted the applicability of the precautionary principle to interpreting environmental legislation was also considered by the Supreme Court of Canada’s in Re IAA where the Court stated: “[145]  The IAA expressly states that it must be administered in a manner that, among other things, applies the precautionary principle (s. 6(2)) …. [146]    Requiring definitive proof that a [NAME] will have effects on areas of federal jurisdiction prior to an impact assessment would put the cart before the horse and undermine the precautionary principle … Therefore, in my view, the designation mechanisms’ imperfect focus on federal effects is both practically necessary and constitutionally sound.” [55] [ 121 ]                                [NAME] further submitted the Federal Court held in [NAME] v Canada (Fisheries and Oceans) , 2015 FC 575 ( 2015 [NAME]) that “the precautionary principle is at a minimum, an established aspect of statutory interpretation, and arguably, has crystallized into a norm of customary international and substantive domestic law.” [56] [NAME] noted the 2015 [NAME] decision specifically determined that the use of the words “may be harmful” in the Regulation required any licence approved pursuant to the Regulation to reflect the precautionary principle. [57] [NAME] submitted the Federal Court’s 2019 decision in [NAME] v Canada (Fisheries and Oceans) , 2019 FC 575 ( [NAME] ) found that when interpreting the Fisheries Act the precautionary principle must be adhered to, not merely considered. [58] [ 122 ]                                [NAME] noted the Federal Court of Appeal in Namgis First [NAME] v Canada (Fisheries and Oceans ), 2020 FCA 122 cited 2015 [NAME] in finding the precautionary principle embodied in the Regulation’s use of the words “may be harmful” did not require scientific certainty before issuing the fish transfer licence. [59] [ 123 ]                                It was argued by [NAME] that the jurisprudence supports the application of the precautionary principle in assessing administrative decision-making. [NAME] submitted the British Columbia Supreme Court in [NAME] v [NAME] , 2003 BCSC 1441 ( Weir), on judicial review of the [NAME]’s decision to issue a permit for a pesticide, applied the precautionary principle to interpret the legislation and assess the Board’s decision stating: “Thus, consistent with [NAME] , the precautionary principle, as articulated in that decision should help to inform the process of statutory interpretation and judicial review. In the circumstances of the case at bar, application of the precautionary principle would favour an interpretation that permitted the Board to consider evidence of toxicity beyond that limited to site specific and application specific concerns. An interpretation that precluded the Board from considering such evidence in any circumstances does not reflect the precautionary principle.” [60] [ 124 ]                                [NAME] submitted that consistent with the Board’s decision in Municipality of [NAME] v Director, Southern Region, Environmental Management [NAME] , 2009 [NAME] 27 ( [NAME] ), the Board should apply the precautionary principle to the granting of a stay of proceedings. [NAME] stated the Board explained why the precautionary principle was so important, particularly for underground aquifers: “[146]  In this particular case, the precautionary principle needs to apply. There is a significant amount of uncertainty regarding the aquifer and the barrier that might exist. Water is a valuable resource that needs to be protected and preserved, which is the reason the legislators enacted the Allocation Order. Since a great deal of uncertainty still exists regarding the aquifer and its properties the Board considers it appropriate to recommend to the Minister that he confirm the Director’s decision that the application is denied.” [61] 5.2.                                     [NAME] 5.2.1.                               Serious Concerns to be Heard. [ 125 ]                                [NAME] submitted [NAME]’ concerns related to the potential for their water wells to be negatively affected by the granting of the [NAME]. [NAME] submitted the questions raised were serious and not frivolous or vexatious. [62] [ 126 ]                                [NAME] argued in assessing the first part of the test for a stay, the Board should consider the issues raised on appeal and the reasonableness of the effects alleged. [NAME] submitted [NAME]’ concerns were too remote to be reasonable and were addressed by the [NAME] and by [NAME]’s responses to various information requests and Supplemental Information Requests (SIRs) made by the Director. [63] [ 127 ]                                [NAME] submitted when considering irreparable harm, the only potential operations that should be considered are operations in Phase 1, which was anticipated to take 5 to 7 years to complete, as that is the only phase of [NAME] that can proceed prior to the completion of the appeals. [NAME] submitted the considerations for the Board’s Stay Test are different than those when determining the directly affected status of [NAME] where the entire [NAME] could be considered. [64] 5.2.2.                               Irreparable Harm [ 128 ]                                To establish irreparable harm, [NAME] argued: 1.                   [NAME] must show they will suffer irreversible, permanent harm that cannot be compensated with monetary damages if a stay is not granted, or that cannot be cured; 2.                   the analysis of irreparable harm is focused on the nature of the harm, rather than the magnitude; 3.                   at this stage of the analysis the Board should only consider harm that the applicant will suffer directly; 4.                   environmental concerns can be weighed at the balance of convenience stage of the analysis; and 5.                   [NAME] are required to provide evidence “at a convincing level of particularity that demonstrates a real probability that unavoidable irreparable harm” [65] to [NAME] will occur unless a stay is issued. [66] [ 129 ]                                [NAME] argued that the Director in granting the [NAME] considered and addressed the potential harm alleged in the [NAME] including contamination risk, reduced filtering mechanisms and harm to groundwater. Further, [NAME] argued the science as outlined in the [NAME] does not support the alleged potential harm and the Board must also consider the likelihood the alleged harm will manifest itself if a stay were not granted. [67] [ 130 ]                                [NAME] submitted the [NAME] showed the potential for contamination or other impacts on the groundwater and around [NAME] were extremely low and the potential impacts to [NAME]’ water wells were even lower. [68] [ 131 ]                                [NAME] asserted: 1.                   the [NAME] outlined that no measurable effects on hydrology at any of [NAME]’ water wells would occur; 2.                   any harm alleged was too speculative to justify a stay and should be given little weight; 3.                   [NAME]’ wells were not located downgradient from [NAME]; 4.                   the [NAME] showed: a.                    there was no need for a 17 to 24 metre layer of sand and gravel and the removal of unsaturated gravel to 1 metre above the water table will have no impact on groundwater quality; b.                   no pollutants were expected in [NAME]’ groundwater as a result of [NAME]; c.                    groundwater did not flow from [NAME] to [NAME]’ wells; d.                   solid particles smaller than 75 microns would be removed from the stormwater at an acceptable efficiency rate that conforms with provincial guidelines; and e.                    there was no potential for existing conditions in groundwater in the area of [NAME] to facilitate the formation of more toxic and mobile metal species. [69] [ 132 ]                                [NAME] noted a further mitigating factor was that a comprehensive Ground Water Monitoring Program was developed to assess performance at the site. [70] 5.2.3.                               Balance of Convenience and Public Interest [ 133 ]                                [NAME] submitted in assessing the balance of convenience, the Board must consider the activities permitted by the [NAME] that would potentially occur in the event a stay was not granted and whether the quality of the evidence supported the stay request. [ 134 ]                                [NAME] submitted the totality of the evidence does not establish any reasonable possibility of the harms alleged by [NAME] materializing in Phase 1 of [NAME] development. [NAME] noted in addition to groundwater not flowing toward [NAME]’ wells, any open pit in Phase 1 would not involve: 1.                   the disturbance or diversion of groundwater; 2.                   the creation of end pit lake; 3.                   the construction of berms for the purposes of controlling water; or 4.                   the extraction of ground that is below the water table. [71] [ 135 ]                                [NAME] argued [NAME] is a “dry pit” meaning there is no extraction at or below the groundwater table. [NAME] submitted [NAME] had demonstrated there will be no impact on groundwater and the alleged harms set out in the [NAME] were speculative, were not immediate risks that could arise on commencement of activities under the Water Act and were too remote to warrant halting [NAME] entirely. [72] [ 136 ]                                Further, [NAME] stated the granting of a stay would put the financial burden entirely on [NAME] despite no new reasonable evidence from [NAME]. [NAME] noted it expended significant resources over multiple years to meet regulatory requirements and had addressed the concerns of [NAME] through the [NAME] material and in responding to the SIRs from the Director. [73] [ 137 ]                                [NAME] submitted it would suffer greater harm if the stay were granted than [NAME] would suffer if the stay were refused because [NAME]’ wells would not be affected if [NAME] undertakes the Activity but [NAME] will suffer direct economic consequences because of the further delay of [NAME] and the uncertainty of contracting for certain work in a different season. [74] [ 138 ]                                [NAME] asserted the public interest was served in ensuring the granting of a stay was based on reliable science and due process. [NAME] asserted the public interest was not served if a [NAME] can be put on hold based on unsupported harms and to do so would cause the public to lose confidence in the Board. [75] [ 139 ]                                [NAME] submitted the nature and type of harm alleged by [NAME] was speculative and even if the speculative harm occurred it would not occur until some unspecified and remote time in the future. [NAME] submitted [NAME] must reliably demonstrate the harm would reasonably occur and occur within a realistic proximity of starting the mining operation otherwise a stay was not reasonable or warranted. [NAME] argued that based on the likelihood of the alleged harm occurring and the staged nature of the mining in proximity to the alleged harm, the overall public interest does not warrant a stay. [76] [ 140 ]                                [NAME] noted [NAME] made extensive submissions regarding the precautionary principle. [NAME] submitted the precautionary principle should not be used to distract from or circumvent the legal test for determining if [NAME] were directly affected or entitled to a stay of the [NAME]. [NAME] stated it agreed with the Board’s analysis of the role of the precautionary principle set out in [NAME] at paragraphs 149 through 156 and argued the approach of the Director, the SIRs and the conditions in the [NAME] informed the decision-making process. [NAME] stated the precautionary principle does not mean the onus is on [NAME] to meet the test for a stay was lessened or shifted. [77] 5.3.                                     Director [ 141 ]                                The Director took no position with respect to the Stay Application. 5.4.                                     [NAME]’ Rebuttal 5.4.1.                               Serious Concerns to be Heard [ 142 ]                                [NAME] submitted [NAME] conceded the issues raised by [NAME] were not vexatious or frivolous. [NAME] stated using a test of the “reasonableness of the effects alleged” as suggested by [NAME] was without precedent and inconsistent with the test set out in [NAME] . [78] 5.4.2.                               Irreparable Harm [ 143 ]                                [NAME] submitted they asserted no public interest, and it was an error when [NAME] alleged the public interest was a standalone ground for a stay of proceedings. The [NAME] stated the public interest was a factor that should be considered in the irreparable harm analysis. [NAME] also repeated their submissions on irreparable harm and relied on the [NAME] as evidence of the irreparable harm they would suffer if a stay were not granted. [79] 5.4.3.                               Balance of Convenience and Public Interest [ 144 ]                                With respect to [NAME]’s submission that they would suffer greater harm if the stay were granted because the harm would not occur before final determination of the appeals, [NAME] stated: “Like in [ [NAME] ], should this Board refuse a stay of proceedings, it would presume that the [[NAME]] Appellants will be unsuccessful in their appeal. That presumption is improper.” [80] [ 145 ]                                [NAME] argued, as in [NAME], it was fatal to the third part of the stay test for [NAME] to fail to provide any evidence of economic hardship. 5.4.4.                               Application of the Precautionary Principle [ 146 ]                                [NAME] noted [NAME] dismissed [NAME]’ submissions regarding the precautionary principle without responding to them. [NAME] stated the reason the appeals exist was because the Board must consider the harm that could arise from the [NAME] and decide whether the [NAME] should proceed. The precautionary principle is key to those decisions. 5.4.5.                               Stay as an Extraordinary Remedy [ 147 ]                                [NAME] argued the standard of extraordinary should not be the underlying assumption for whether to grant a stay and the threshold of “extraordinary” was inappropriate when weighed against the significant delays in appeal proceedings before the Board and the role of the Board as an independent commission of inquiry. [81] [ 148 ]                                [NAME] argued, unlike superior courts, the Board was not bound by [NAME] but that the Board’s authority to grant a stay is found in section 97 of EPEA. [NAME] stated that as an independent commission of inquiry established to ensure better environmental decision-making, the Board: “… defeats its own purpose under EPEA and the Water Act when it applies a threshold for obtaining a stay so high that in the face of undue delays at the [Board], an [NAME] may proceed with its activity before the [Board] ever hears the appeal.” [82] [ 149 ]                                [NAME] argued the Board’s threshold of “extraordinary” leads to the absurd outcome that an appellant can more readily obtain a stay of proceedings from a superior court and that it was not intended by the [NAME] that the Board’s supervision of the Director could more readily be exercised by a superior court or that there should be repetitive proceedings to obtain a stay of an [NAME] to preserve appeal. [83] [ 150 ]                                [NAME] stated the current matter was an example of significant delays in the Board’s proceedings. They also noted that in Badlands, had a stay not been granted by the Court of King’s Bench (which the Board had previously denied), a condition imposed by the Board regarding the need for a wetland’s avoidance report prior to the destruction of a wetland, would not have been possible as the issue would have been moot. [NAME] noted final determination of the appeal occurred four years after the stay was issued. [ 151 ]                                [NAME] argued the Board’s power under section 97 of EPEA must be interpreted considering: 1.                   tribunal delay and the Minister’s power to issue remedial relief; 2.                   the purpose sections of EPEA and Water Act which must be used to inform discretionary decisions within the legislation and interpret the legislation; 3.                   the modern approach to statutory interpretation that calls for enactments to be construed as remedial and given a large and liberal construction to best ensure the attainment of its objects; and 4.                   the Board’s role in the appeal process which is as a board of recommendation providing its report to the Minister, who makes the final decision, further limiting the Board’s control over the overall decision-making process.

6.                                          Analysis and Findings 6.1.                                     Serious Concerns to be Heard [ 152 ]                                The first step of the test requires [NAME] to show there is a serious issue to be tried. [NAME] must demonstrate through the evidence submitted there is some basis on which to present an argument. At this step of the Board’s Stay Test, the Board undertakes “an extremely limited review of the case on the merits”. [84] As stated by the Justice Feth in [NAME], “[t]his factor is generally a threshold to be satisfied, rather than an attempt to measure the strength of the applicant’s underlying claim.” [85] [ 153 ]                                [NAME] have raised concerns the [NAME] and its conditions are not adequate to address potential and cumulative effects the Activity will have on [NAME] as household users of water from the bedrock aquifers. [ 154 ]                                [NAME] acknowledged the concerns raised by [NAME] are not vexatious or frivolous. However, there are conflicting arguments about whether the groundwater at [NAME] site will be contaminated by activities at [NAME] site, whether groundwater in the bedrock flows toward [NAME]’ wells, and whether the recharge of the bedrock aquifers is localized. [NAME] argued at this stage of the test, the Board should consider whether the effect on [NAME]’ wells is too remote to be considered reasonable. [ 155 ]                                The Board is of the view that determining whether the effect on [NAME]’ wells is too remote to be considered reasonable is a matter to be determined at the hearing the appeals. The Board acknowledges [NAME] has challenged the groundwater contamination conclusions in the [NAME] and whether the unconfined aquifer recharges the bedrock aquifers used by [NAME], however, these are points that can be explored further at the merits hearing. [ 156 ]                                At this stage, it is sufficient [NAME] have shown a basis for their argument as required by the first step of the Board’s Stay Test. The Board finds the concerns raised by [NAME] directly relate to the [NAME] and they are serious in nature. [ 157 ]                                The Board finds the first step of the Board’s Stay Test has been met. 6.2.                                     Irreparable Harm [ 158 ]                                The second step in the Board’s Stay Test requires the Board to decide whether [NAME] would suffer irreparable harm if the stay was not granted. As stated in [NAME] , citing [NAME], “[t]he Court examines whether a refusal to grant relief could so adversely affect the applicant’s own interests that harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application.” [86] [ 159 ]                                The harm cannot be hypothetical or merely possible. As stated by the Court of King’s Bench in [NAME] (Director of Public Lands Disposition Management Section, Land Policy and Programs Branch, Lands Division, [NAME]) v [COMPANY] , 2023 ABKB 447 ( [NAME] ): “[53] Harm that is speculative, hypothetical, or only arguable at best does not qualify as irreparable harm. Administrative inconvenience, without more, is not irreparable harm.” [ 160 ]                                At this step of the Board’s Stay Test, the emphasis is on harm suffered directly by [NAME]. However, in [NAME] , the Court directed the Board to also consider impacts to the public interest at the second stage of the Board’s test for a stay if an applicant raises the issue of the public interest. As stated by Justice Reed: “[77]    I note at this stage that there may be some nuance to the public interest analysis that should be mentioned … Justice Feasby of this court noted that when the applicant (usually a [NAME], but not always so) raises the issue of the public interest then it must be considered at the second and third stages of the [NAME] test, but when the respondent raises the issue, it is only considered at the third stage of the [NAME] test.” [87] As [NAME] raised a private interest, the Board will consider the public interest at the third stage of the Board’s Stay Test. [ 161 ]                                When a refusal to grant a stay might make the appeal useless, irreparable harm may be presumed but the presumption is rebuttable. [88] [ 162 ]                                The Board notes that the focus of [NAME]’ evidence was with respect to the removal of the protective layer of overburden, and the sand and gravel overlying the water table across the entire [NAME] site, and the increased potential for contaminants to enter the groundwater as the natural filtration system is removed. Removal of the overburden, and the sand and gravel, is governed by the [NAME] issued under EPEA and is not considered an activity by the Director under the Water Act. The Board notes the [NAME] as issued, is not appealable. [89] [ 163 ]                                The Board notes the Stay Application has arisen in relation to appeals of the [NAME], and the activities approved under the [NAME] include the removal of fifteen water bodies at [NAME] site and the implementation of a stormwater management plan. The Board accepts [NAME]’s evidence that only Phase 1 of [NAME] is authorized under the [NAME] to commence at this time and that Phase 1 will not be completed prior to the resolution of the appeals. Therefore, for the purposes of the Stay Application, the Board will only be considering activities planned during Phase 1 and whether there is a real risk of those activities causing irreparable harm to [NAME]’ water wells prior to the conclusion of the appeals. [ 164 ]                                [NAME] argued the [NAME] established clear, non-speculative evidence that contaminants could flow from [NAME] site to the bedrock aquifers contaminating [NAME]’ water wells and was the type of harm required to meet the threshold of irreparable as set out in [NAME] because it could not be cured or quantified in money, resulted in the loss of natural resource used by [NAME] and could result in adverse impacts to human health. [NAME] further argued the alleged irreparable harm was analogous to the type of harm considered by Justice Reed in [NAME] because in the “absence of some kind of intervention the harm would more likely than not be inevitable. It would more likely than not be irreparable.” [90] [ 165 ]                                [NAME] argued their appeals would be rendered nugatory and the reasons for the appeals would be moot if a stay was not granted and the bedrock aquifers were contaminated as a result of mining activities. [ 166 ]                                [NAME] acknowledged the [NAME] alleged several harms that may arise if a stay was not granted including contamination risk, reduced filtering mechanisms and harm to groundwater but submitted the science outlined in the [NAME] does not support the alleged potential harm and these harms had already been considered by the Director in granting the [NAME]. [ 167 ]                                [NAME] argued the Board must consider the likelihood the alleged harm will manifest itself if a stay was not granted and that [NAME] showed the potential for contamination or other impacts on the groundwater and around [NAME] was extremely low and the potential impacts to [NAME]’ water wells was even lower. [NAME] submitted when considering irreparable harm, the only potential operations that should be considered are operations in Phase 1 as that is the only phase of [NAME] that can proceed prior to the completion of the appeals. [ 168 ]                                [NAME] asserted the [NAME] outlined there was no measurable effects on hydrology at any of [NAME]’ water wells and any harm alleged was too speculative to justify a stay and should be given little weight. The [NAME] also concluded groundwater does not flow from [NAME] toward [NAME]’ wells as they are not located downgradient from [NAME]. [ 169 ]                                [NAME] noted a further mitigating factor was that a comprehensive Ground Water Monitoring Program was developed to assess performance at the site. [ 170 ]                                [NAME] and [NAME] have submitted conflicting evidence regarding the risks imposed on the bedrock aquifers by [NAME]. At this stage of the appeal process, the evidence before the Board is currently untested by examination or cross examination, and it is not until the merits hearing that the Board will be able to decide on the actual risk of contamination to the bedrock aquifers. [ 171 ]                                For this Stay Application, the Board must decide if [NAME] have provided prima facie evidence showing the potential of a real risk of irreparable harm to [NAME]’ water wells and that the harm will occur before a resolution of the appeals. As stated by Justice Feth in [NAME]: “The party claiming that damages awarded as a remedy would be inadequate compensation for the harm done, must show there is a real risk that harm will occur. It cannot be mere speculation. Damages that third parties suffer can also be considered.” [91] [ Emphasis added by the Board] Further Justice Reed, citing [NAME], stated in [NAME] “… the th reshold required  prima facie  evidence   that showed a “real risk” the alleged harm would manifest itself prior to the appeals being heard.” [92] [ 172 ]                                The Board notes that consideration of whether harm will occur before the resolution of the appeals involves an assessment of whether the Activity should be stayed to prevent such harm. Here, the Board must determine if [NAME] have provided prima facie evidence that the unconfined aquifer is hydraulically connected to the bedrock aquifers from which [NAME] draw water, and that there is a real risk that contaminants may be released into the groundwater at [NAME] site as a result of the Activity prior to the resolution of the appeals, even if the contaminants may not reach [NAME]’ water wells prior to the resolution of the appeals. If there is no evidence that contaminants could be released into the groundwater at [NAME] site prior to the resolution of the appeals, there is no need for the Board to issue a stay as there is no real risk of irreparable harm pending the determination of the merits of the appeals. [ 173 ]                                The Board also notes that if the Board determines that [NAME] have not provided prima facie evidence that there is a real risk of harm to [NAME]’ water wells prior to the resolution of the appeals , this does not mean the Board has pre-determined the outcome of the appeals nor does such a determination render the appeals moot. This means the Board has determined that even if there is a risk of contaminants entering the groundwater at [NAME] site arising at some unknown time in the future, the risk will not arise prior to the Board having heard the merits of the appeal and the Board will have been able to assess the risk and determine if [NAME] have made their case such that the Board may recommend to the Minister that the [NAME] be varied or reversed thus preventing those harms from occurring. [ 174 ]                                The Board notes [NAME] has expressed concerns that: 1.                   after reclamation the plan to leave a minimum of 1 metre of sand and gravel was insufficient to manage groundwater from precipitation during a wet year; [93] 2.                   no assessment was made of the effects of removing up to 24 metres of sand and gravel regarding the ability to mitigate any potential pollutant added into the subsurface; [94] 3.                   the unconfined aquifer is hydraulically connected to the bedrock aquifer allowing groundwater to flow from the unconfined aquifer to the bedrock aquifers from which [NAME] draw their drinking water; [95] 4.                   the stormwater management plan does not identify what contaminants will be contained in runoff and would not remove contaminants that were smaller than 75 microns in size which could result in contaminants entering the groundwater; [96] 5.                   the excavation of the sand and gravel deposits could result in the mobilization of contaminants such as hexavalent chromium and could infiltrate the unconfined aquifer; [97] and 6.                   the groundwater monitoring plan and certain statements of the Director support the hydraulic connectivity of the unconfined aquifer to the bedrock aquifers. [98] [ 175 ]                                Turning to the activities authorized by the [NAME] for Phase 1, the Board notes the Hydrological Assessment Report , [COMPANY]. (January 14, 2020) (the [NAME] 2020 Hydrogeological Report) and the Wetland Assessment an Impact Report , [COMPANY]. (May 10, 2023) (WAIR) shows there are only two water bodies affected by Phase 1 of [NAME] which are located near the south and west boundaries. [99] One water body is an ephemeral water body (water body 6) covering 0.048 hectares and the other is a temporary graminoid marsh (water body 11) covering 0.009 hectares. [100] Both waterbodies are surface water fed, have been farmed through, [101] and historically have been dry from time to time. [102] [ 176 ]                                As previously noted, [NAME]’ evidence focused on the removal of the protective layer of sand and gravel across the entire site, which is an activity authorized under the [NAME] and is not currently before the Board. With respect to the Activity authorized by the [NAME] presently before the Board, the Board notes [NAME] did not provide specific evidence regarding the effect of removing the two surface fed waterbodies located in Phase 1 on their water wells. Any remaining sand and gravel from below these waterbodies to 1 metre of the water table is governed by the [NAME]. There is no evidence before the Board that these two waterbodies are hydraulically connected to the groundwater or that removal of the waterbodies will result in the release of contaminants into the groundwater. Consequently, the Board is of the view that [NAME] have not provided prima facie evidence that the removal of the waterbodies will cause [NAME] irreparable harm. [ 177 ]                                Also as previously noted, Madame Justice Ashcroft of the Court of King’s Bench was asked to interpret whether an interim judicial stay issued by Madame Justice Price to [COMPANY]. ([NAME]) regarding certain Water Act approvals and a licence (the Authorizations) in respect of gravel extraction included a stay of the removal of the overburden . The Authorizations in question were with respect to mining gravel below the water table, commonly referred to as a “wet pit.” Madame Justice Ashcroft found the removal of the overburden, which was governed by the [NAME], was subject to the interim judicial stay issued by Madame Justice Price in respect of the Water Act Authorizations. The director and [NAME] appealed the Price Order and the Ashcroft Order to the Court of Appeal, but those appeals were subsequently withdrawn prior to a decision being rendered. The Board recognizes that the Ashcroft Order and the Price Order remain in place and has considered those orders when determining if [NAME] will suffer irreparable harm if a stay is not granted. [ 178 ]                                Similar to the matters before Madame Justice Ashcroft and Madame Justice Price, the Appellants have asked the Board to consider impact of removing the protective layer of overburden, and sand and gravel at [NAME] site and the potential risk of contamination of [NAME]’ water wells because of the removal of the natural filtration system. [ 179 ]                                However, unlike the matters before Madame Justice Ashcroft and Madame Justice Price, the [NAME] in these appeals relates to a dry pit. Unlike a wet pit where groundwater flow is altered as result of mining below the water table, in a dry pit groundwater is not disturbed as there is no extraction of aggregate below the water table. [ 180 ]                                With the greatest of respect to Madame Justice Ashcroft and Madame Justice Price, the Board is of the view the circumstances before the Board in this case are distinguishable from the circumstances before Madame Justice Ashcroft and Madame Justice Price. Both the [NAME] and the Authorizations that were issued to the authorization holders and considered by Madame Justice Ashcroft and Madame Justice Price were necessary to authorize the extraction of aggregate from below the water table. In the current case, the aggregate may be extracted without altering the flow of groundwater and a Water Act [NAME] would not be required for Phase 1 of [NAME] (a dry pit) if it were not for the removal of the waterbodies and the implementation of a stormwater management plan to address the flow of surface water at [NAME] site. Put another way, in Phase 1 of [NAME], the [NAME] relates to activities altering the flow of surface water not the mining of aggregate below the water table and even without the [NAME] in place, [NAME] still holds the [NAME] and may extract aggregate from [NAME] site. Staying the [NAME] does not result in a stay of the [NAME]. [ 181 ]                                The Board notes that if a stay of the [NAME] were granted, it would prevent [NAME] from removing the two small waterbodies in Phase 1 which would effectively prevent [NAME] from mining aggregate in the waterbody areas. However, as a stay of the [NAME] would not stay the [NAME], the Board is of the view that [NAME] could continue activities under the [NAME] in the remainder of Phase 1 around the waterbodies. [ 182 ]                                With respect to the construction and operation of the stormwater management plan, [NAME]’ concerns regarding the stormwater management plan include alleged impacts of removing the natural filtration system which is the subject of the [NAME] not the [NAME]. [NAME] have raised concerns that the stormwater management system would not remove particulates less than 75 microns in size and contaminants could attach to those particulates and enter the groundwater system as they would no longer be filtered by the protective layer of sand and gravel. [ 183 ]                                The Board is of the view that even if the Board considers the alleged impacts of removing the 24 metres of sand and gravel from Phase 1 of [NAME] (which the Board does not view as an Activity under the [NAME]), [NAME] have not provided prima facie evidence that there is a real risk of irreparable harm to [NAME] arising prior to the Board having the opportunity to hear the merits of the appeals as [NAME] have not provided evidence of the types of contaminants that could enter the groundwater as a result of the implementation of the stormwater management plan or otherwise. As noted previously noted, Justice Reed in [NAME] stated that to obtain a stay “the risk of contamination” must be shown to “have a ‘real risk of occurrence for the Applicant to succeed in obtaining a stay.’” [103] [ 184 ]                                If the Board were to consider the impact of removing up to 24 metres of sand and gravel, to establish irreparable harm, [NAME] must provide prima facie evidence there is a real risk that (1) contaminants related to the activities at [NAME] site could enter the groundwater contaminating the unconfined aquifer; and (2) the unconfined aquifer was hydraulically connected to the bedrock aquifers from which [NAME] draw water. The Board is of the view that [NAME]’s evidence primarily focused on how water moves through the subsurface but failed to identify the types of contaminants, if any, that could be released into the subsurface because of the activities at [NAME] during Phase 1. [ 185 ]                                One of the concerns raised by [NAME] was that [NAME] did not consider “that after rehabilitation” [104] whether the plan to leave a minimum of 1 metre of sand and gravel was sufficient to manage groundwater from precipitation at the developed site. [NAME] noted that precipitation was modelled by [NAME] to contribute 0.74 metres in water to the subsurface which [NAME] stated seemed “a bit close for comfort for this type of modelled data.” [105] [NAME] raised the concern that in wet years, there may be mounding of the water table bringing it closer to the surface of [NAME] site which he appeared to suggest would make it more likely that contaminants could reach the water table. [NAME] disagreed with [NAME] and stated that no extra height is necessary to convey recharge water in a wet year. [106] [ 186 ]                                Noting that Phase 1 of [NAME] is expected to take 5 to 7 years to complete, the Board is of the view that the risk of mounding of the water table occurring “after rehabilitation” of the site is not a risk that will arise before the resolution of the appeals. [ 187 ]                                [NAME] also stated that [NAME] did not provide any “assessment of the effects of removing up to 24 metres of sand gravel as to its ability to mitigate any potential pollutant loading into the subsurface other than to say the effect would be minimal.” [107] [NAME] used the example of a sewage sand filter to illustrate the importance of a protective layer noting that secondary treated effluent could be produced under a single [NAME] configuration. [NAME] stated that [NAME] did not provide any rationale as to why there was an implied need for 24 metres of sand and gravel at [NAME] when a sand sewage system only required, as stated by [NAME], “a couple of feet”. [108] [ 188 ]                                [NAME] responded to [NAME]’s assertion as follows: 1.                   preserving 1 metre of sand and gravel at the bottom of [NAME] is not equivalent to an engineered sewage sand filter that requires design and operation; 2.                   secondary treated effluent from a sewage sand filter can still contain high levels of E. Coli concentrations; and 3.                   natural sand and gravels are not permitted in place of an engineered system wastewater treatment system and would not be accepted as wastewater travels too quickly through the substrate. [ 189 ]                                With respect to [NAME]’s assessment that the effects of removing 24 metres of sand and gravel, [NAME] pointed to its response to Supplemental Information Request No. B2 dated September 22, 2022 (SIR Response No. B2) [109] to explain why there is no change in the groundwater because of the removal of the protective layer of sand and gravel as follows: 1.                   physical filtration of surface water infiltrating the subsurface occurs primarily in the overburden of 4 to 6 metres of glacial tills which will be temporarily removed and then replaced when sand and gravel is excavated, restoring the filtration of particulate for the future. Groundwater takes 9 to 14 months to cross the 4 to 6 metres of glacial till once it soaks into the ground; [110] 2.                   with the overburden removed will be no source of fines to be filtered as a result precipitation infiltrating the open pit. Further, the removed overburden will be kept separate from the open sand and gravel pit by silt fences and internal ditching; [111] 3.                   sand and gravel, due to its coarse-grained nature, provides little vertical filtration but as the sand and gravel is extensive laterally, the pit areas do provide a medium for settling of fine particulate as the water moves slowly in a lateral direction. No change in these characteristics is expected post-reclamation of [NAME]. As well, no sand and gravel are removed below the water table so settling of particulate as the water moves laterally will not change; [112] 4.                   sand and gravel provide little slowing of water. Groundwater moves downward through one metre of sand and gravel in about an hour or through the protective layer in about one day so there is little filtration of particulate matter; [113] 5.                   overburden soil is oxygen rich and infiltration of water through the sand and gravel occurs quickly so there are no oxidation conditions as the water enters the groundwater; [114] 6.                   the carbonate nature of the gravel effectively buffers the weak acidity of rainwater so there is low risk of acidification and therefore no additional metals dissolved. The high metal content in the metal samples measured during the baseline period were a result of the sampling methodology; [115] and 7.                   there is no expected change in temperature conditions to the excavated area. [116] [ 190 ]                                [NAME] further noted the evidence provided by [NAME] does not refer to the pollutants of concern and noted that aggregate extraction operations do not involve the use of extensive pollutants. [NAME] stated the infiltration of precipitation through naturally occurring, inert materials (sand and gravel) will not mobilize pollutants. As well, [NAME] noted that any potential pollutants are managed by best practices for storage and handling of materials and will be away from the active pit, sited over the low permeability glacial till soils with secondary containment. Further, all refuelling will occur away from the site in a protected specified area with spill kit materials readily available as they are located with each piece of equipment operating within the pit. [117] [ 191 ]                                With respect to the ability of contaminants to be transported through the subsurface, [NAME] stated that [NAME]’s assertion that most filtration occurs in the overburden soils not in the sand and gravel was false. [NAME] stated that filtration occurs in sand and gravel through different mechanisms such as sedimentation, electrostatic attraction, direct interception, Brownian diffusion, and sieving. He pointed to his lab experiments showing the effectiveness of washed gravel at removing silt and clay sized particles and noted that removing over 20 metres of gravel will influence the filtration efficacy. [118] [ 192 ]                                [NAME] also noted with respect to the carbonate history of the sand and gravel, removing over 20 metres of sand and gravel will have a deleterious effect on the buffering capacity of the natural filtration system. [119] [ 193 ]                                [NAME] concluded surface water migrating into the subsurface and flowing through “… up to 24 [metres] of gravel and sand would be advantageous for removing any potential pollutant” and “… would provide an additional level of protection to aquifer water quality. Consequently, removing this protective layer would inevitably increase the risk of these contaminants entering the aquifer.” [120] [ 194 ]                                With respect to the hydraulic connectivity of the unconfined aquifer to the bedrock aquifers, [NAME]’s evidence was that the types of geology of the bedrock in [NAME] area are not contiguous and some are highly fractured which allowed for communication between the shallow unconfined aquifer and the bedrock aquifers. [121] [NAME] also provided evidence the bedrock aquifers from which [NAME] draw water are downgradient from [NAME] and gravity causes water in the bedrock to flow from the unconfined aquifer through fissures in the bedrock to their wells. [122] [NAME] also disputed the existence of a groundwater divide in the bedrock isolating [NAME]’ wells from [NAME]. [ 195 ]                                The Board finds [NAME] have provided prima facie evidence the unconfined aquifer could be hydraulically connected to [NAME] wells. However, hydraulic connectivity in and of itself is not evidence of irreparable harm. As mentioned previously, for there to be irreparable harm to [NAME], in addition to a hydraulic connection between the unconfined and the bedrock aquifers, there must be prima facie evidence that a real risk exists that as a result of the activities during Phase 1 contaminants could be released into the groundwater at [NAME] site prior to the hearing of the appeals. The Board is of the view, that [NAME] have not provided the necessary evidence to convince the Board that such a risk exists. [ 196 ]                                With respect to the release of contaminants at [NAME] site, [NAME] provided evidence that the movement of surface water through the stormwater management system would not be sufficient to remove particulate of less than 75 microns in size or to remove dissolved solids. As a result, [NAME] was of the view that contaminants could attach to smaller particle sized fractions and enter the groundwater. [NAME] stated he was currently undertaking a study with the City of Calgary regarding the phenomenon where contaminants in stormwater preferentially attach to smaller particle sized fractions. [ 197 ]                                The Board notes that [NAME] did not provide any details regarding the study, or the pollutants of concern being studied. [NAME] also did not clarify if the study with the City of Calgary was made in the context of an urban setting or had applicability to the rural setting where [NAME] is located. The Board is of the view that [NAME]’s evidence regarding his study with the City of Calgary and its applicability to the matters before the Board is speculative at this stage, being yet to be completed. Further, as no information was provided regarding the parameters of the study, the Board is of the view that the study provides the Board little assistance in determining whether mining operations would produce contaminants that could enter the stormwater management system and eventually enter the groundwater, whether any contaminants of concern or findings in the study have applicability to the rural setting in which [NAME] is located, and whether the stormwater management plan for [NAME] is similar to the systems being studied by [NAME] and the City of Calgary such that the concerns raised in the study apply to [NAME] mining operations. [ 198 ]                                [NAME] also relied on the [NAME] as evidence there was a potential for existing conditions in the subsurface to facilitate the formation of more toxic and mobile metal species such as hexavalent chromium and arsenic. [NAME]’s conclusions were based on the baseline data provided by [NAME] in the [NAME](2020) Hydrogeological Report showing chromium and arsenic exceeded accepted values, and the presence of oxidating conditions in the groundwater would be exacerbated by mining close to the water table and exposing the open pit sand and gravel to air. [123] [NAME] disagreed with [NAME]’s conclusions and submitted that in determining that chromium and arsenic exceeded accepted values, [NAME] erroneously relied on data that represented total metals not total dissolved metals, which showed chromium and arsenic did not exceed accepted values. [ 199 ]                                The Board notes [NAME] in the [NAME] acknowledged the experiment regarding the mobilization of dissolved contaminates conducted by Dr. [NAME] and documented in the [NAME] did not use material from [NAME] site and that he was unable to ascertain from where the material was sourced. As well, the Board notes [NAME] had previously critiqued the [NAME] and concluded it was not representative of what occurs at the site as the material used was not representative, flow rates and retention times were unknown, the test period was too short, and the methodology used grossly overestimated the dissolve metals concentration. [ 200 ]                                Except for E. Coli which will be discussed later in this decision, chromium and arsenic are the only contaminants identified by [NAME] in his evidence as being of concern in respect of the mining operations. The Board accepts [NAME]’s evidence that [NAME] relied in error on data produced by [NAME] which showed chromium and arsenic levels exceeded guidelines and that [NAME]’s data showed both chromium and arsenic levels were below guidelines. [124] The Board finds the evidence provided by [NAME] regarding the [NAME] of little assistance in determining if there is a real risk of contaminants being released into the groundwater prior to the resolution of the appeals. In this regard, the Board specifically notes that the [NAME] was based on evidence using materials not found at [NAME] site and there is no evidence that chromium and arsenic levels at [NAME] site were above accepted guidelines. Further while [NAME] has raised a concern that the presence of oxidating conditions in the groundwater would be exacerbated by mining, the Board understands that for this concern to become crystalized, mining must occur close to the water table. Noting it will take approximately 6 to 7 years to deplete the resources in Phase 1 of [NAME], the Board is of the view that there is little risk of [NAME] mining close to the water table before the appeals are heard. [ 201 ]                                [NAME] also used an example of an on-site wastewater treatment system (which required clean washed concrete grade sand) to illustrate the potential for the mobilization of contaminants. He raised concerns there was potential for the mobilization of contaminants as they attach to the silt and clay found in the gravel. [NAME] suggested that if the clean washed concrete grade sand was not used for an on-site wastewater treatment system, there was a possibility of mobilization of fines deeper into the soil horizon due to the application of effluent. [125] [ 202 ]                                [NAME] noted that sand and gravel at the bottom of [NAME] is not equivalent to an engineered sewage sand filter that requires design and operation. He also noted secondary treated effluent could still contain high levels of E Coli concentrations and natural sand and gravel would not be an acceptable filtration system for a wastewater treatment system. [ 203 ]                                The Board appreciates [NAME]’s evidence regarding sewage or wastewater treatment systems as it illustrates that differing processes may require engineering and differing levels filtration to filter out the specific contaminants of concern. However, the Board is of the view that [NAME] did not provide any evidence that the biological or chemical contaminants such as E. Coli , found in a sewage treatment facility would also exist in aggregate operations at [NAME]. There is no evidence [NAME] produces sewage.

Accordingly, the Board finds [NAME]’s evidence regarding the potential for the release of contaminants such as E. Coli at [NAME] site to be speculative and of little assistance to the Board in determining the types of contaminants that could be released from the mining operations and whether there is a real risk of those contaminants entering the groundwater through the stormwater management system or otherwise at [NAME] site prior to the hearing of the appeals. [ 204 ]                                As further evidence of suspended solids in the subsurface being mobilized, [NAME] also noted the monitoring wells on-site showed substantial amounts of total suspended solids despite being purged three or four times before the samples were taken. [126] [ 205 ]                                The Board notes that [NAME] has referred in his evidence to “potential pollutant loading” and “contaminants” and, except as discussed above, has not defined the types of contaminants of concern. [NAME] also concluded there is a lack of published information on the potential of the mobilization of measured pollutants in the gravel mining operations which suggests his concerns may be theoretical or speculative. [127] The Board accepts [NAME]’s evidence that aggregate extraction operations do not involve the use of extensive pollutants and any potential pollutants are managed by best practices for storage and handling of materials, will be away from the active pit, sited over the low permeability glacial till soils with secondary containment and that all refuelling will occur away from the site in a protected specified area with spill kit materials readily available as they are located with each piece of equipment operating within the pit. [128] [ 206 ]                                Also, with respect to [NAME]’s concerns regarding the existence of a groundwater monitoring plan (which monitors for changes in water quality of the groundwater) and certain statements by the Director regarding the flow of groundwater, the Board is of the view his concerns relate to the potential hydraulic connectivity of [NAME]’ wells to the unconfined aquifer. As previously noted, the Board accepts [NAME]’ wells could be hydraulically connected to the unconfined aquifer. [ 207 ]                                The Board notes, [NAME] have referred to Mr. Justice Reed’s comment in [NAME] as having application in the current circumstances: “In such a scenario, in the absence of some kind of intervention the harm would more likely than not be inevitable. It would more likely than not be irreparable. It makes no sense to say that the harm, inexorably working its way to the Applicants’ wells, would simply not reach those wells by the time of the appeal. It is asking to say someone who has been injected with poison and who will die when the poison reaches their heart has not suffered irreparable harm because the poison will not have reached their heart by the time their appeal of the injection has occurred.” [129] [ Emphasis added by the Board] [ 208 ]                                With respect, the Board is of the view that Mr. Justice Reed’s comment is not applicable here. Commencing operations at Phase 1 is not analogous to an “injection of poison.” While the Board is of the view that [NAME] have provided prima facie evidence that the unconfined aquifer could be hydraulically connected to the bedrock aquifers, the Board is also of the view that [NAME] have not provided prima facie evidence that there is a real risk of the release of contaminants related to the mining operations (the injection of poison) that could enter the groundwater through the stormwater management system or otherwise at [NAME] site which could cause them irreparable harm. As previously discussed, the evidence provided by [NAME] regarding the contaminants (the poison) that may be released because of mining operations (the injection) was speculative and any alleged impacts that may arise as a result of long-term mining activities such as the mounding of the water table would occur after resolution of the appeals. Mere speculation that contaminants could be released is not sufficient to establish irreparable harm. As previously noted: “Harm that is speculative, hypothetical, or only arguable at best does not qualify as irreparable harm. Administrative inconvenience, without more, is not irreparable harm.” [130] [ 209 ]                                The Board notes that in December of 2025, Justice Magnan released his decision in [NAME] regarding the [NAME]. Justice Magnan found the Board in its reconsideration of the stay application in [NAME] , failed to meaningfully engage with the concerns regarding on-site refuelling or the more immediate threat of subsurface eutrophication and mobilization of harmful metals and as such the Board’s decision in [NAME] was unreasonable . [131] Justice Magnon determined in the circumstances it was appropriate to determine the stay, in order to move the matter toward a fair and timely resolution. [132] A stay was granted to the appellants pending a resolutions of the appeals of the Authorizations. [ 210 ]                                The Board is of the view that the current circumstances before the Board are distinguishable from those considered by Justice Magnan. Justice Magnan was satisfied the evidence showed a risk of contamination being released into the groundwater should refuelling on-site occur or if toxic metals were mobilized due to subsurface eutrophication. In this case, the Board accepts [NAME]’s evidence that refuelling on-site is not authorized and notes [NAME] have not provided prima facie evidence of the types of toxic metals, if any, that could be mobilized, or that E. Coli is present at the site. [ 211 ]                                With respect to on-site refuelling, the Board further notes that section 60 of EPEA provides: “No person shall knowingly commence or continue any activity that is designated by the regulations as requiring an [NAME] or [NAME] or that is redesignated under section 66.1 as requiring an [NAME] unless that person holds the required [NAME] or [NAME].” As refuelling on-site is not authorized by the [NAME], section 60 of EPEA prohibits [NAME] from undertaking that activity without an authorization. 6.2.1.                               Application of the Precautionary Principle [ 212 ]                                [NAME] argued the Board should use the precautionary principle to interpret the Board’s discretionary powers under the legislation to issue a stay of the appeals in general and specifically in its determination of irreparable harm to [NAME]. [ 213 ]                                [NAME] submitted the precautionary principle was adopted by the Supreme Court of Canada. [NAME] argued full scientific certainty was possible only following a hearing of the appeals and the lack of scientific certainty at the preliminary stage of the appeals was not a reason for refusing a stay of proceedings. [ 214 ]                                [NAME] submitted that decisions of the Supreme Court of Canada in [NAME] and in Re IAA enshrined the precautionary principle as an important tool in interpreting the application of powers granted in environmental legislation and required those powers to be exercised with a view to preventing environmental degradation when full scientific knowledge is unavailable. Further, [NAME] argued the Supreme Court of Canada confirmed in [NAME] that the precautionary principle was a principle of international law and the use of an international law principle to interpret local legislation is a principle of statutory interpretation. [133] [ 215 ]                                [NAME] argued the precautionary principle should not be used to distract from or circumvent the legal test for determining if [NAME] were directly affected or entitled to a stay of the [NAME] or used to shift or lessen the onus on [NAME] to meet the Board’s Stay Test. [NAME] stated it agreed with the Board’s analysis of the role of the precautionary principle set out in [NAME] at paragraph 149 through paragraph156. [ 216 ]                                The Board has considered the application of the precautionary principle in its decision in [NAME]. The Board referred to its decision in [NAME] v Director Regional Approvals, Regulatory Assurance Division – South, [NAME], re Town of Blackfalds, 2023 [NAME] 19 regarding the appeal of an [NAME] under the Water Act where the Board stated: “… the Board’s role is to consider the degree and nature of uncertainty, and whether what if anything can be done by the Board to mitigate the uncertainty. the language adopted by the Supreme Court of Canada [in [NAME] ] makes plain that the precautionary principle is only intended to be engaged in circumstances where scientific uncertainty exists, and once engaged additional protective measures should be put in place. Therefore, the Director when faced with scientific uncertainty and potential environmental damage, has two potential courses of action. The Director may require additional terms and conditions such as monitoring, and amending, which allow the Director to be responsible should environmental consequences occur. Alternatively, in much more extreme cases of scientific uncertainty and greater risk of consequence, the Director can choose to deny the application for the authorization.” [134] [ 217 ]                                The Board in [NAME] stated: “The Board acknowledges the importance of the precautionary principle when there is uncertainty and potential environmental damage. In the current case, the Board is considering the precaution principle in the context of a stay application not an [NAME] as was the case in Blackfalds . However, it is the Board’s view that the principles discussed by the Board in Blackfalds are equally applicable.” The Board adopts this finding to these appeals. [ 218 ]                                When the Director made his decision to issue the [NAME], he took one of two courses of action available to him when faced with the risk of potential environmental harm. The course of action chosen was to issue the [NAME] but place conditions on [NAME] in the [NAME] and [NAME] to address potential environmental risks. In doing so, the Board is of the view the Director applied the precautionary principle as part of his decision-making process. Whether the conditions of the [NAME] are appropriate is a matter to be determined at the hearing of the appeals. [ 219 ]                                [NAME] are asking the Board to apply the precautionary principle and stop authorized activities under the [NAME] and the [NAME] pending a full inquiry at the hearing of potential harms caused by the [NAME]. [NAME] are arguing that even though the Director applied the precautionary principle in his decision-making process and placed conditions on [NAME] and the [NAME], there remains a residual risk to [NAME] that is so significant the Board should also apply the precautionary principle with respect to the stay decision itself. [NAME] argued that was the direction of the Supreme Court of Canada in [NAME] as applied in the numerous cases cited by [NAME]. [ 220 ]                                The Board agrees with [NAME] there are circumstances where so much uncertainty exists it is appropriate to apply the precautionary principle. That was the case in [NAME] where the Board upheld the decision of the Director to deny the issuance of a water licence . Both the Director and the Board were not convinced on the preponderance of evidence there was no hydraulic connection between the aquifer and surface water and appropriately applied the precautionary principle. [ 221 ]                                In this case, [NAME] have not convinced the Board there is prima facie evidence of a real risk that irreparable harm will occur prior to the hearing of the appeal resulting from either the removal of the waterbodies located in Phase 1 or the implementation of the stormwater management plan. The Board has determined the evidence provided by [NAME] is speculative and the alleged risks such as those associated with the potential for the mounding of the water table, would not occur until after reclamation of [NAME] which is long after the hearing of the appeals in 2026. [ 222 ]                                The Board also distinguishes the circumstances before the Board from those addressed by Justice Magnan in his consideration of the precautionary principle in the [NAME] . Justice Magnan was of the view there was evidence of a real risk of irreparable harm beyond speculation and that the precautionary principle was engaged despite the absence of definitive scientific proof. [135] The Board is of the view that the circumstances before Justice Magnan were like those in [NAME], that despite the terms and conditions of the [NAME], there remained an unmitigated risk of contamination that warranted the issuance of a stay. In this case, the Board is of the view there is no evidence of a residual or unmitigated risk to which the precautionary principle should be applied, and [NAME] have failed to establish irreparable harm. [ 223 ]                                The Board confirms its role is to consider the degree and nature of uncertainty and determine what can be done by the Board to mitigate it and in doing so the Board is applying the precautionary principle when it makes a decision or issues a report and recommendation. The issuance of a stay is one of the tools available to the Board to mitigate potential environmental damage pending the hearing of an appeal. In this case, however, [NAME] have not established they will suffer irreparable harm pending the hearing of the appeals. [NAME] have provided prima facie evidence that the bedrock aquifers are hydraulically connected to the unconfined aquifer at [NAME] site, they have not provided prima facie evidence that there is a real risk of contaminants which could be released into the groundwater during Phase 1 of [NAME]. [ 224 ]                                With respect to [NAME]’ assertion that scientific certainty is only attainable after a full hearing of the appeals and a lack of scientific certainty should not be a reason for refusing to issue a stay, the Board again notes that [NAME] have not established the Activity could result in the release of contaminants. [NAME] have alleged is that if contaminants were released as a result of the Activity, whatever they may be, they could flow to the bedrock aquifers because the protective layer of sand and gravel has been removed and the precautionary principle should apply, and a stay should be granted. The Board is of the view the precautionary principle was not meant to be applied in such a manner. [ 225 ]                                The Board is of the view that a plain reading of [NAME] makes it clear it was not intended that development should be prohibited in the absence of scientific certainty. As stated in [NAME] : “The de novo nature of Board appeals is well established. New information may be considered by the Board that was not available to a director at the time the decision under appeal was made. If the precautionary principle required the Board to have full knowledge of all potential harm arising from the issuance of a Water Act [NAME] or licence, all approvals and licences would be stayed pending the resolution of an appeal. It would only be on resolution of an appeal that the Board would know if it had the best evidence of all potation harms. The Board is of the view the precautionary principle was not meant to be engaged in such a manner. A plain reading of [NAME] makes it clear that the development is not prohibited by the precautionary principle, but it needs to be undertaken with appropriate measures in place to prevent environmental degradation. [NAME] states that to achieve sustainable development, “environmental measures must anticipate, prevent and attach the causes of environment degradation.” [136] [Citations omitted] [ 226 ]                                The Board finds that [NAME] have not established that they would suffer irreparable harm prior to the resolution of the appeals. 6.3.                                     Balance of Convenience and Public Interest [ 227 ]                                The third step of the Board’s Stay Test requires the Board to consider the balance of convenience and the public interest. [ 228 ]                                [NAME] argued the seriousness of the issues affects the Board’s consideration of irreparable harm and the balance of convenience in favour of [NAME]. [NAME] argued they have raised serious issues regarding the [NAME] of a gravel pit that will have a material effect on the quality of their water which requires adjudication before the Board, as does the cumulative effect of [NAME] with other extraction operations in the vicinity of [NAME]. [137] [ 229 ]                                [NAME] submitted the balance of convenience favours maintaining the status quo and the seriousness of the issues and of the harm of contamination of [NAME]’ water wells lean the balance of convenience test toward [NAME]. [ 230 ]                                [NAME] submitted that the totality of the evidence did not establish any reasonable possibility of the harms alleged by the Appellants materializing in Phase 1 of [NAME] development and did not warrant halting [NAME] entirely. [ 231 ]                                Further, [NAME] stated that the granting of a stay would put the financial burden entirely on [NAME] because of further delay of [NAME] and the uncertainty of contracting for certain work in a different season, despite no new reasonable evidence from [NAME]. [NAME] noted it expended significant resources over multiple years to meet regulatory requirements and had addressed the concerns of [NAME] through the [NAME] material and in responding to the SIRs from the Director. [NAME] submitted [NAME] did not provide any evidence to support their assertions of economic consequences. [ 232 ]                                The Board notes that [NAME] have the onus to show there is a real risk they would suffer irreparable harm prior to the resolution of the appeals. [NAME] have failed to do so. The Board finds that [NAME] would not suffer greater harm if the stay were refused as they have not established that they would suffer irreparable harm prior to the resolutions of the appeals which are scheduled for 2026. [ 233 ]                                [NAME] has alleged it would suffer financial consequences for having [NAME] delayed, it did not provide supporting evidence, so [NAME] has also not established irreparable harm or greater harm if a stay were granted. [ 234 ]                                The Board in [NAME] v Director Northern Region, Regional Services, [NAME], re: [COMPANY] , 2005 [NAME] 6 at paragraph 108 noted, “[i]n this case, neither Party will suffer the greater harm, therefore it is not a determinative factor in deciding the stay request.” The Board adopts this statement for these appeals. [ 235 ]                                As previously indicated, per Justice Reed’s direction, where the respondent raises the public interest, it must be considered at the third part of the test. As stated by the Board in [NAME] “… the effect on the public may sway the balance or one party over the other.” [138] [ 236 ]                                [NAME] submitted the public interest has no applicability for their application for a stay as they are asserting a private interest in their private water wells. [NAME] asserted that the public interest is served in ensuring the determination of whether to grant a stay is based on reliable science and due process. [NAME] asserted that the public interest is not served when a [NAME] can be put on hold based on alleged harms not supported by reliable science and to grant a stay in such circumstances would cause the public to lose confidence in the Board. [139] [ 237 ]                                The Board in Spaans et al v Director, Northern Region, Regional Services, [NAME], re: [COMPANY], 2005 [NAME] at paragraph 122, found that: “[i]n this case the Board does not believe the public interest warrants the granting of a stay. Although the Appellants raised legitimate and important issues, the Board must also consider the area in which they live. The Appellants have other gravel operations in the vicinity, and as the proposed [NAME] will not be fully operational for a number of months, the Board does not anticipate any significant effects that would affect the general public during the time the appeals are heard. In addition, the Director is well aware of the environmental impacts a gravel facility could have on the area. If the public has valid concerns regarding the operation of the facility, they can submit their concerns to [[NAME]], and they will investigate valid complaints.” [ 238 ]                                The Board adopts this finding in these appeals. [ 239 ]                                Therefore, the Board finds the balance of convenience and the overall public interest does not warrant the issuance of a stay. [ 240 ]                                The Board finds the test for granting a stay has not been met.

7.                                          IS IT JUST AND EQUITABLE TO GRANT A STAY? [ 241 ]                                As mentioned previously, the granting of a stay by the Board is an extraordinary remedy. The Board’s Stay Test guides the Board’s exercise of discretion when considering a request for a stay, but the fundamental question before the Board remains whether granting a stay is just and equitable in all the circumstances. [140] 7.1.                                     Standard of Extraordinary [ 242 ]                                [NAME] argued the standard of extraordinary was not the appropriate threshold to be applied by the Board when considering a stay application and the Board was not bound by [NAME]. [NAME] argued the application of the threshold of extraordinary together with delays in the Board’s process could result in appeals becoming moot as the harmful activity could be completed before the appeal is heard. [NAME] further argued the Board’s authority to grant a stay should not be interpreted restrictively as it leads to the absurd outcome that an appellant can more readily obtain a stay of proceedings from a superior court than from the Board. [ 243 ]                                [NAME] also argued that EPEA is remedial legislation meant to protect the environment and the Board’s powers should be interpreted liberally to achieve that protection. [NAME] submitted the Board does not control the decision-making process as it is only a board of recommendation who provides a report to the Minister who makes the final decision and, in that context, the Board granting stays only in extraordinary circumstances is unreasonable. [ 244 ]                                The Board acknowledges [NAME]’ submissions regarding the extraordinary nature of a stay as a remedy. The Board further notes that [NAME] advanced similar arguments in the Christian2025 Judicial Review which were considered by Justice Magnan at paragraph 122 through paragraph 126 of his decision. Mr. Justice Magnan agreed with the findings of Mr. Justice Reed at paragraph 47 of the [NAME]. Justice Magnan stated at paragraph 126 that : “Indeed, Justice Reed held at paragraph 47 … that a stay of enforcement pending appeal is relief in the nature of an injunction, which is in fact extraordinary relief. I agree with this assessment and with Justice Reed’s conclusion that the applicable test is that set out I RJR—[NAME]. The Applicants have not persuaded me that section 97 of the EPEA requires either or different test or a more relaxed standard.” The Board adopts the findings of Mr. Justice Magnan for purposes of this Stay Application. 7.2.                                     Just and Equitable in the Circumstances. [ 245 ]                                As previously mentioned, the Board is mindful that the appeals are dealing only with the [NAME], and not the activities covered by the [NAME] for [NAME]. As previously noted, the [NAME] relates to a dry pit, and the Board is of the view that the circumstances in this case are different than those before Madame Justice Ashcroft and Madame Justice Price. The Ashcroft Order and the Price Order pertained to a wet pit where the [NAME] was required to disturb the groundwater for purposes of aggregate extraction. However, in this case the matter before the Board is in respect of a dry pit and as previously noted, the Board is of the view a stay of the [NAME] portion of the regulatory authorizations would not necessarily halt or limit development at [NAME] site. [ 246 ]                                In this regard, the Board notes only the [NAME] is before the Board, and the Board does not have the jurisdiction to stay the [NAME]. The Board is of the view that as [NAME] can continue activities under the [NAME] regardless of a stay of the [NAME], it is better to have the [NAME] in place such that the impact of [NAME]’s development of [NAME] site can be mitigated through the implementation of the stormwater management plan and be undertaken in accordance with the [NAME] to avoid unintended consequences arising from a stay. [141] [ 247 ]                                The Board finds that although [NAME] were successful in some parts of the test, a stay is unlikely to achieve what [NAME] hopes to achieve in terms of stopping development of [NAME] by [NAME]. Further, even if the Board considered the activities under the [NAME], the Board would not change its findings that a stay should not be granted at this time because it would not be just and equitable to put a halt to the entire [NAME] without evidence that contamination could occur at [NAME] site prior to the resolution of the appeals. [ 248 ]                                The Board finds that granting a stay would not be just and equitable in the circumstances. The Board declines to grant a stay. 7.2.1.                               Delay of Proceedings [ 249 ]                                The Board notes [NAME] made allegations regarding delays in the current proceedings. The Board reminds [NAME] that they have raised multiple preliminary issues and requests (which they are entitled to do so) including a request to delay the hearing of the appeals pending the rendering of the Court’s decisions regarding the appeals of the orders of Madame Justice Price and Madame Justice Ashcroft and a request that the hearing of the appeals be delay pending a decision of the Court of King’s Bench in the [NAME] and the unrelated Badlands Judicial Review . (The Board notes the issue raised in the Badlands Judicial Review is in respect of a Notice of Constitutional Question regarding the Board’s jurisdiction with respect to the federal Species at Risk Act and the Migratory Birds Convention Ac t .) The cumulative effect of [NAME]’ actions has resulted in a delay of the appeal process as the Board considers each of [NAME]’ motions and requests. [ 250 ]                                The Board further notes that [NAME], counsel for [NAME], has advised he is not available for the hearing of the appeals until well into the fall of 2026 and that [NAME] has on several occasions urged the Board to move to a hearing quickly. [ 251 ]                                The Board is of the view that a stay should not be used as a tool to postpone or delay proceeding to a hearing. As stated by [NAME], scientific certainty is only possible following a hearing which is mandatory under EPEA. The Board is of the view that it is in the best interests of all the Parties to proceed to a hearing as quickly as possible so the concerns of [NAME] may be considered by the Board and the Board may make a recommendation to the Minister on whether the [NAME] should be confirmed, varied, or reversed. Delay only harms [NAME] as there is no examination of the issues. Environmental decision-making is intended to incorporate multiple viewpoints and data sources. There is no winner or loser. The Board’s role is to provide the Minister with the best information upon which the Minister will make the final decision. The Board can only fulfill that role after a full hearing of the appeals.

8.                                          DECISIon [ 252 ]                                The Board declines to grant a stay of the [NAME]. [ 253 ]                                [NAME]’ request for a stay is dismissed. Dated April 10, 2026, at Edmonton, [NAME]. -original signed- __________________ [NAME] Board Chair *           The Board decided [NAME]’ directly affected status in: [NAME] v Director, Regulatory Assurance Division South, [NAME] , re: [COMPANY] , 2026 [NAME] 6. [1]              Code of Practice for Pits in [NAME] Application – Revised , [COMPANY] (May 25, 2023). (Code of Practice) at page 5. [2]              Code of Practice at paragraph 3.0. [3]              [NAME] holds the [NAME] pursuant to the Activities Designation Regulation, Alta. Reg 276/2003 and is subject to the requirements in the Code of Practice for Pits, pursuant to section 3.1 of the Conversation and Reclamation Regulation, Alta Reg. 115/1993. On March 21, 2025, the Director confirmed that the [NAME] had been transferred from [NAME] to [NAME] to reflect the transfer in the ownership of the Lands from [NAME] to [NAME]. [4]              Wetland Assessment and Impact Report , [COMPANY]. (August 2021) at paragraph 1.0. [5]              Wetland Assessment and Impact Report , [COMPANY]. (May 10, 2023) (the WAIR) [6]              WAIR at paragraph 2. See also the Code of Practice at paragraph 5.4. [7]              Stay Decision: [COMPANY] v Director, Regulatory Assurance Division South, [NAME], re: [COMPANY] , 2023 [NAME] 9. [8]              [COMPANY] v Director, Regulatory Assurance Division South, [NAME], re: [COMPANY] , 2024 [NAME] 20. [9]           [NAME] v Director, Regulatory Assurance Division South, [NAME], re: [COMPANY] , 2024 [NAME] 23. [10]            Rules of Practice, [NAME] (January 2023) (the Rules of Practice, January 2023) (the 2023 Rules of Practice) at Rule 20 states: “Normally a hearing will be held in a community most convenient to the Parties and closest to the location of the issue in question.” The Board notes that its Rules of Practice, January 2023 were revised in November of 2024. Rules of Practice, [NAME] (November 2024) (the Rules of Practice) state at Rule 20: “Hearings will be held virtually by video conference or by written submission, unless an in-person hearing is approved by the Board’s Chair. The time and location of in-person hearings will be determined by the Board’s Chair.” [11]            [NAME] was not a party to the Interim Costs Application. [12]            [NAME] at paragraph 136. [13]            Affidavit of [NAME] sworn September 2, 2025, at paragraph11. [14]            Designated Director under the Water Act v [NAME] , Action No. 2401-0188AC, Discontinuance of Appeal, dated 28 August 2025, and [COMPANY]. v [NAME], Action No. 2401-0188AC, Discontinuance of Cross Appeal, dated 3 September 2025. [15]            [NAME] and [NAME] v [NAME] et al, Action No.2401-06916, Order of Justice Price, dated 28 May 2020 (the Order of Justice Price), and [NAME] and [NAME] v [NAME] et al , Action No. 2401-06916, Order of Justice Ashcroft, dated 13 and 24 June 2024 (the Order of Justice Ashcroft). [16]            [NAME] v. [COMPANY] ., 2007 ABQB 368, at paragraph 12, citing [NAME] v. [COMPANY] ., [1936] 1 KB 32; Whitehead v. Taber (1983), 46 AR 14; [NAME] v . AUPE (1984), 1984 ABCA 130, 53 AR 277 (Alta CA). [17]            The first three steps of the test set out in the Supreme Court of Canada decision in [NAME] at paragraph 43 as follows: “[43] First, a preliminary assessment must be made of the merits of the case that there is a serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.” [18]            Adapted from [NAME] : “[32] The three stages are not airtight compartments. To some extent, strength in one part of the analysis can compensate for weakness in another, especially the second and third branches which are ‘inexorably linked and should be considered together. [ 33 ] The factors guide the Court’s exercise of discretion but the fundamental question remains whether granting a stay is just and equitable in all the circumstances….” [19]            [NAME]  at paragraph 50. [20]            [NAME]  at paragraph 31, citing  The Law of Injunctions , 4th edition, volume 1 at page 34. [21]            [NAME]  v  [NAME]. , 147 AR 113 (AB KB) ( [NAME] ) at paragraph 78. [22]            Manitoba (Attorney General)   v Metropolitan Stores , [1987] 1 SCR 110 at paragraph 36. [23]            MacMillan Bloedel   v   Mullin , [1985] BCJ No. 2355 (CA) at paragraph 12. [24]            [NAME] at paragraph 78. [25]            [NAME] at paragraph 98. [26]            [NAME] v [NAME], 2024 ABKB 586 ( [NAME]) , citing [NAME] v. [NAME] (Director of SafeRoads) , 2023 ABKB 713 at paragraph 77. [27]            [NAME]  at paragraph 66. [28]            [NAME] at paragraph 33. [29]            [NAME] at paragraph 30. See also [NAME] v [NAME] (Director of SafeRoads) , 2025 ABCA 121, at paragraph 31. [30]            [NAME]’ Initial Submission at paragraph 43. [31]            [NAME]’ Initial Submission at paragraphs 44 to 47. [32]            [NAME]’ Initial Submission at paragraph 82. [33]            [NAME]’ Initial Submission at paragraphs 83 and 84, citing [NAME] at paragraph 341. [34]            [NAME]’ Initial Submission at paragraphs 86 and 87, citing [NAME] at paragraph 72. [35]            [NAME]’ Initial Submission at paragraph 87, citing [COMPANY]. v [NAME] Minister of Agriculture and Forestry), 2019 ABQB 710 ( ANC Timber) at paragraph 92. [36]            [NAME]’ Initial Submission at paragraph 87, citing [NAME] v [NAME] , 2018 ABQB 66 at paragraphs 51-55 and ANC Timber at paragraph 93. [37]            [NAME]’ Initial Submission at paragraph 88. [38]            [NAME]’ Initial Submission at paragraph 92. [39]            [NAME]’ Initial Submission at paragraphs 89 and 90. The [NAME] also cited [NAME] v Canada (Solicitor General), 2005 FCA 42 at paragraph 8. [40]            [NAME]’ Initial Submission at paragraph 48 citing [NAME] at paragraphs 76 to 87 . [41]            [NAME]’ Initial Submission at paragraphs 93 and 94, citing [NAME], Local 707 v [COMPANY] , 2012 ABCA 307, at paragraph 4. [42]            [NAME]’ Initial Submission at paragraph 95. [43]            [NAME]’ Initial Submission at paragraphs 55, 80 and 81. [44]            [NAME]’ Initial Submission at paragraph 50, citing Reference re Impact Assessment Act , 2023 [NAME] 239 ( Re: IAA) at paragraphs 45-146 (majority) and at paragraph 286 and paragraphs 306 to 308 (dissent), citing [NAME] at paragraphs 30 to 31. [45]            [NAME]’ Initial Submission at paragraph 51. [46]            [NAME]’ Initial Submission at paragraph 53. [47]            [NAME]’ Initial Submission at paragraphs 56 and 57, citing [NAME] at paragraph 20. [48]            [NAME]’ Initial Submission at paragraph 58. [49]            [NAME]’ Initial Submission at paragraph 59. The Board notes that at paragraph 61 of [NAME]’ Initial Submission, they referred the Board to the purposes set out in the following sections of the Water Act and EPEA: •          Section 2(d) of the Water Act , “the shared responsibility of all residents of [NAME] for conservation and wise use of water”; •          Section 2(a) of EPEA, “the protection of the environment is essential to the integrity of ecosystems and human health and to the well-being of [COMPANY]”; •          Section 2(b) of EPEA, “the need for [NAME]’s economic growth and prosperity in an environmentally responsible manner and the need to integrate environmental protection and economic decisions in the earliest stages of planning”; •          Section 2(c) of EPEA, “the principle of sustainable development, which ensures that the use of resources and the environment today does not impair prospects of their use by future generations”; and •          Section 2(d) of EPEA, “the need for Government leadership in areas of environmental research, technology and protection standards”. [50]            [NAME]’ Initial Submission at paragraphs 63 to 65. [51]            [NAME]’ Initial Submission at paragraphs 59 to 60, citing Statutory Interpretation at pages 446 to 452. The Board notes [NAME] also cited the following passage from Statutory Interpretation: “L’Heureux-Dube J. then reviewed Canadian Cases establishing the same point … She concluded: … s, 27(10 [of the Labour code] amounts to more than a simple guide to the board; it constitutes a statutory direction to carefully consider the goal of developing effective industrial relations having regard to certain special purposes and objects.” [52]            [NAME]’ Initial Submission at paragraph 61. [53]            [NAME]’ Initial Submission at paragraph 68. [54]            [NAME] at paragraph 114. [55]            [NAME]’ Initial Submission at paragraph 66, citing Re IAA at paragraphs 145 and 146. The Board notes that [NAME] also referred to the dissenting opinion in Re IAA at paragraph 286 , arguing that stronger language was used in support of the precautionary principle: “[286]    First, the prohibitions under s.7 apply when the effect ‘may cause’ environmental changes, and do not require that the effects be proven to be ‘adverse’ at this stage. This reflects the precautionary approach to environmental regulation. The IAA make clear that the legislation mut be administered by federal authorities by applying “the precautionary principle” s. 6(2); see also s. 6(1)(d) and (l). In recognition of the precautionary principle, environmental regimes such as the IAA often require a pause while information about the potential impacts of a [NAME] is gathered and evaluated. … [308]      In our view, the designation process under IAA appropriately reflects the precautionary principle and the need to gather information at an early stage of an environmental impact assessment process, to properly inform federal decision making about whether a designated [NAME] may cause adverse federal effect. …” [56]            2015 [NAME] at paragraph 34. [57]            [NAME]’ Initial Submission at paragraph 71. [58]            [NAME] at paragraphs 96 to 99. [59]            [NAME]’ Initial Submission at paragraph 73. [60]            [NAME]’ Initial Submission at paragraph 74, citing [NAME] at paragraph 38. [61]            [NAME]’ Initial Submission at paragraphs 77 and 78, citing [NAME] at paragraph 127 and paragraphs 16 and 17. [62]            [NAME]’s Response Submission at paragraphs 8 and 51. [63]            [NAME]’s Response Submission at paragraphs 53 and 54 [64]            [NAME]’s Response Submission at paragraph 51. [65]            [NAME] at paragraph 100 citing [COMPANY] v Canada (National Revenue) ,  2012 FCA 255 at paragraph 31 . [66]            [NAME]’s Response Submission at paragraphs 55 to 58. [67]            [NAME]’s Response Submission at paragraphs 59 and 60. [68]            [NAME]’s Response Submission at paragraph 64. [69]            [NAME]’s Response Submission at paragraphs 61 and 62. The Board notes [NAME] referred to pages 3, 5 through 10 and 12 of the [NAME] in support. [70]            See Code of Practice at Appendix H. [71]            [NAME]’s Response Submission at paragraph 69 [72]            [NAME]’s Response Submission at paragraphs 70 and 71. [73]            [NAME]’s Response Submission at paragraph 72. [74]            [NAME]’s Response Submission at paragraph 8. [75]            [NAME]’s Response Submission at paragraphs 78 and 79. [76]            [NAME]’s Response Submission at paragraphs 80 to 82. [77]            [NAME]’s Response Submission at paragraph 75. [78]            [NAME]’ Rebuttal Submission at paragraphs 27 and 28. [79]            [NAME]’ Rebuttal Submission at paragraphs 29 to 31, citing [NAME] at paragraphs 35 and 36 and paragraphs 76 and 87. [80]            [NAME]’ Rebuttal Submission at paragraphs 32 and 33, citing [NAME] at paragraphs 71 to 73. [81]            [NAME]’ Rebuttal Submission at paragraphs 37 to 41. [82]            [NAME]’ Rebuttal Submission at paragraphs 41 and 42. [83]            [NAME]’ Rebuttal Submission at paragraph 43. [84]            [NAME] at paragraph 47. [85]            [NAME] at paragraph 47. [86]            [NAME] at paragraph 98, citing [NAME] at paragraph 30. [87]            [NAME] at paragraph 77. [88]            [NAME] at paragraph 103. [89]         The Board notes that the [NAME] for a gravel pit under EPEA is not appealable. For example, in [COMPANY] v Director, Regulatory [NAME], re; [COMPANY], 2024 [NAME] 20 at paragraph 17, the Board found: “In considering the directly affected status of the Appellants in these appeals, it is important to keep in mind a clear distinction between the work authorized by the [NAME] [under EPEA] which is not appealable to the Board), and the work authorized by the [ Water Act ] [NAME] (which is appealable to the Board). The [NAME] authorized the construction operation, and reclamation of the gravel pit. The [ Water Act ] [NAME] has nothing to do with the construction, operation, and reclamation of the gravel pit.” See also [NAME] and [NAME] at paragraphs 10 and 18, [90]            [NAME]’ Initial Submission at paragraph 85, citing [NAME] at paragraph 72. [91]            [NAME] and [NAME] at paragraph 83. [92]            [NAME] at paragraph 53 citing [NAME] at paragraph 83. [93]            [NAME] at page 2. [94]            [NAME] at page 3. [95]            [NAME] at pages 3 and 4. [96]            [NAME] at page 5. [97]            [NAME] at pages 6 and 7. [98]            [NAME] at page 7. [99]            WAIR at Figure 2. [100]          WAIR at Table 4. [101]          Code of Practice at section 5.4. [102]          WAIR at Table 3. [103]          [NAME] at paragraph 74. [104]          [NAME] at page 2. [105]          [NAME] at page 2. [106]          [NAME] at page 2. [107]          [NAME] at page 3. [108]          [NAME] at page 3. [109]          Director’s Record Tabs 5.1 to 12.3 at page 948. [110]          SIR Response No. B2 at page 1. [111]          SIR Response No. B2 at pages 1 and 2. [112]          SIR Response No. B2 at page 1. [113]          SIR Response No. B2 at page 2. [114]          SIR Response No. B2 at page 2. [115]          SIR Response No. B2 at page 2. [116]          SIR Response No. B2 at page 3. [117]          [NAME] at page 3. [118]          [NAME] at page 2 [119]          [NAME] at page 3. [120]          [NAME] at page 3. [121]          [NAME] at page 3. [122]          [NAME] at page 4. [123]          [NAME] at page 7 and [NAME] at page 8. [124]          The Board notes [NAME]’s SIR Response dated January 23, 2023, indicated at 4.3.1 Surficial Deposits that: “[t]otal metals exceeded guidelines likely due to high turbidity during sampling in the monitoring wells. Turbidity is an artifact of some sampling methodologies, like the one used for this [NAME]. The method inadvertently stirs up sediment within the monitoring well during sampling. A comparison of dissolved (filtered) metals versus total metals was completed for the onsite sand and gravel groundwater samples collected on July 4, 2019, with concentrations of both presented in Table Al. Table Al shows that in almost all cases where an exceedance of the total metal guideline concentration occurs, the dissolved concentration for the same sample is significantly reduced and falls below the relevant guideline. This is due to the total metal sample being preserved using acid, which dissolves sediments stirred up during sampling. This leads to higher metals concentrations than the filtered dissolved metal sample. The dissolved metal concentrations in groundwater are, therefore, more representative of natural conditions and indicate that groundwater is generally of good quality with low dissolved metals.” [125]          [NAME] at page 6. [126]          [NAME] at page 9. [127]          [NAME] at page 7. [128]          [NAME] at page 3. [129]          [NAME]’ Initial Submission at paragraphs 86 and 87, citing [NAME] at paragraph 72. [130]          [NAME] at paragraph 53, citations omitted. [131]          [NAME] v [NAME], 2025 ABKB 724 ( [NAME]) at paragraph 95. [132]          [NAME] at paragraph 131 [133]          [NAME] at paragraph 114. [NAME] also referred to the statement of the Federal Court in 2015 [NAME] at paragraph 34 that “the precautionary principle is at a minimum, an establish aspect of statutory interpretation, and arguably, has crystallized into a norm of customary international and substantive domestic law.” [134]          [NAME] at paragraph 150 citing Blackfalds at paragraph 96. [135]          [NAME] at paragraph 133. [136]          [NAME] at paragraphs 154 and 155. [137]          [NAME]’ Initial Submission at paragraph 95. [138]          [NAME] at paragraph 65. [139]          [NAME]’s Response Submission at paragraphs 78 and 79. [140]          [NAME] at paragraph 33. [141]          [COMPANY]. v Director, Regulatory Assurance Division South, [NAME] , re: 411614 [COMPANY]. , 2025 [NAME] 24, at paragraph 201.