Interim Costs Granted in Wetland Preservation Case

2026 ABEAB 8                                                                          Appeal No. 23-045, 046, 051, 052-CD [NAME] BOARD Decision Date of Decision – April 10, 2026 IN THE MATTER OF sections 91, 92, 95, and 96 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 the [COMPANY] with respect to Water Act [NAME] No. DAUT0012841 as amended issued to [COMPANY]. by the Director, Regulatory Assurance Division South, [NAME]. Cite as:            Interim Costs Decision: [NAME] et al v Director, Regulatory Assurance Division South, [NAME] , re: [COMPANY] , 2026 ABEAB 8. BEFORE: [NAME], Board Chair. PARTIES: Applicants: [redacted] [NAME]: [COMPANY]., represented by [NAME], [COMPANY]. Director: [NAME], Director, Regulatory Assurance Division South, [NAME] represented by [NAME]. [NAME], Environmental Law Section, Alberta Justice. EXECUTIVE SUMMARY [NAME] issued [NAME] No. DAUT0012841 as amended ([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 Rockview County ([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 for aggregate extraction. The Environmental Appeals Board (the Board) received Notices of Appeal from several persons including [NAME] and [NAME] (the Applicants), [NAME] and the [COMPANY] ([NAME]). The Applicants applied for an award of interim costs against [NAME] of $8,550.00 for [NAME] fees to retain a consultant, and legal fees of $10,920.00 for their lawyer to prepare briefs and prepare for and appear at the hearing. The total award of interim costs claimed against [NAME] was $19,740.00. For the Board to make an award of interim costs, the Board must first determine the parties to the appeal. The Board determined the Applicants and [NAME] were directly affected by the decision of the Director and had standing in the appeals in [NAME] et al v Director, Regulatory Assurance Division South, [NAME] , re: [COMPANY] , 2026 ABEAB 6. The Board determined the [NAME] was directly affected by the decision of the Director and had standing in the appeals in Stay Decision: [COMPANY]  v  Director, Regulatory Assurance Division South, [NAME] , re:  [COMPANY]  2024 ABEAB 9 . The Board reviewed the submissions from the Applicants, [NAME], and the Director and assessed the interim costs application against the criteria used by the Board to determine if interim costs should be awarded. The Director took no position on the interim costs application as interim costs were sought against [NAME] not the Director. The Board found that the interim costs applied for directly and primarily related to the Applicants’ Notices of Appeal and to the preparation and presentation of their submissions. The Board considered the Applicants’ need for interim costs and their plan for the use of the interim costs. The Board also considered whether the Applicants had attempted to use other sources of funding. Based on the evidence provided by the Applicants, the Board was unable to determine the extent to which the Applicants’ legal counsel and [NAME] would aid the Board at the hearing and in making its Report and Recommendation to the Minister of the Environment and Protected Areas. The Board found an award of 25 percent of eligible interim costs was appropriate. The Board granted the interim costs application and awarded the Applicants’ interim costs of $2,866.50 for [NAME] fees inclusive of GST and $3,543.75 for legal fees inclusive of GST for total interim costs of $6,410.25. The Board ordered [NAME] to pay the Applicants for their interim costs. These costs are payable by [NAME] to the Applicants within four weeks of this date of this decision. TABLE OF CONTENTS 1.      INTRODUCTION .. 6 2.

BACKGROUND .. 7 2.1.          The [NAME] and [NAME] 7 3.      CLAIM FOR INTERIM COSTS . 17 4.      submissions . 17 4.1.          Applicants . 17 4.2.          Interim Costs . 17 4.3.          Application of the Duty of Procedural Fairness . 22 4.4.          [NAME] 24 4.5.          Director 31 4.6.          Applicants’ Rebuttal Submissions . 31 5.      LEGAL BASIS FOR INTERIM COSTS . 34 6.      Analysis . 37 6.1.          Application of Duty of Procedural Fairness . 47 7.

DECISION .. 51 1.                                          INTRODUCTION [ 1 ]                                        These are the reasons for the decision of the Environmental Appeals Board (the Board) regarding the interim costs application made by [NAME], and [NAME] (the Applicants) against [COMPANY]. ([NAME]), related to the issuance of [NAME] No. DAUT0012841 as amended (the [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 or after February 2, 2025. [ 4 ]                                        The Lands are to be used by [NAME] in connection with aggregate extraction. [ 5 ]                                        The Board received Notices of Appeal from the Applicants, [NAME] and the [COMPANY] (the [NAME]). [ 6 ]                                        The Applicants requested [NAME] pay interim cost in the amount of $10,920.00 for [NAME] costs and $8,550.00 for legal fees (the Interim Costs Application). The total amount of interim costs claimed was $19,740.00. The Board notes, for the Applicants to be granted interim costs, the Board must have determined all parties to the appeal. To have standing in an appeal, each of the parties must be directly affected by the decision of the Director to issue the [NAME]. The Board found the Applicants and [NAME] ([NAME]) [1] directly affected by the decision of the Director to issue the [NAME] in Directly Affected Decision: [NAME] et al v Director, Regulatory Assurance Division South, [NAME] , re: [COMPANY] , 2026 ABEAB 6 ( Directly Affected Decision: [NAME] ). The Board found the [NAME] directly affected by the decision of the Director to issue the [NAME] in Stay Decision: [COMPANY]  v  Director, Regulatory Assurance Division South, [NAME] , re:  [COMPANY]  2024 ABEAB 9 ( Bighill Creek). [ 7 ]                                        As the preliminary matter before the Board was whether the Board should grant interim costs to the Applicants, the Board requested and received comments from the Applicants, [NAME], and the Director (the Parties) regarding the Interim Costs Application. [ 8 ]                                        After considering the written submissions from the Parties, the Board decided to award the Applicants interim costs in the amount of $2,866.50 for [NAME] fees inclusive of GST and $3,543.75 for legal fees inclusive of GST for total interim costs of $6,410.25 inclusive of GST. [ 9 ]                                        The Board ordered [NAME] to pay the Applicants for their interim costs. [NAME] shall pay the Applicants within four weeks of the date of this decision.

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]. [ 12 ]                                    [NAME] is located within the surface water catchment of an unnamed tributary of Bighill Creek, approximately 1,300 metres upstream of Big Hill Springs Provincial Park. [NAME] footprint there 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. [2] [ 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. [3] [ 14 ]                                    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]. [ 15 ]                                    [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. [ 16 ]                                    [NAME] issued Registration No. 478753-00-00 (the Registration) for [NAME] to [NAME] on July 25, 2023. [4] [ 17 ]                                    [NAME] applied for a Water Act [NAME] for the removal of 13 wetlands [5] on the Lands on September 1, 2021 (the Application). The Board notes that the Application WAIR dated August 2021 was updated 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. [6] 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. [7] [ 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.                   the [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). [ 22 ]                                    Between July 26 to August 10, 2023, the Board received Notices of Appeal from several persons including [NAME] and the [NAME] which were acknowledged by the Board between July 29 and August 16, 2023. [ 23 ]                                    On September 25, 2023, the [NAME] applied for a stay of the [NAME] (the [NAME] Application). On March 6, 2024, the Board found the [NAME] had standing in the appeal as the [NAME] was directly affected by the [NAME] but denied the [NAME] Application. [8] [ 24 ]                                    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 the parties that had filed Notices of Appeal including the Applicants and [NAME]. [ 25 ]                                    On April 8, 2024, [NAME] advised the Board that 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]. [ 26 ]                                    On October 30, 2024, the Board held a mediation meeting with [NAME], the [NAME] and the Director. The mediation meeting did not result in a resolution of the appeals. [ 27 ]                                    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]. [ 28 ]                                    On December 5, 2024, [NAME] advised the Board that 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 that [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] noted it had not determined when it would commence work at [NAME] noting that the principal regulatory authority for its activities was the Registration which was not appealable. [ 29 ]                                    Also on December 5, 2024, [NAME] requested information regarding the timing of any excavation to remove overburden stating it would inform their decision to seek a stay of the [NAME]. [ 30 ]                                    On December 11, 2024, [NAME] asked the Board to set a process for submissions if the Board intended to delay setting of the issues or 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]. [ 31 ]                                    On December 23, 2024, the Board acknowledged [NAME]’ objection to scheduling the hearing of the appeals until the Board decided on the Interim Costs Application. The Board set a schedule for the Parties, [NAME] and the [NAME] to provide the Board with their available dates for a hearing, any preliminary motions they wished decided prior to the hearing, and proposed issues for the hearing. [ 32 ]                                    On January 16, 2025, [NAME] made three preliminary motions as follows: 1.                   the Applicants made the Interim Costs Application; 2.                   [NAME] made a motion to hold an in-person hearing in Cochrane, Alberta (the In-Person Hearing Motion); and 3.                   [NAME] made a motion for a stay of proceedings (the Stay Application). [ 33 ]                                    On January 17, 2025, [NAME] provided the Board proposed issues for the hearing and requested the hearing be held virtually. [ 34 ]                                    On January 24, 2025, the Director advised that several matters included in the 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. [ 35 ]                                    On February 10, 2025, the Board advised that an in-person hearing would be held in Cochrane subject to finding a suitable venue and financial [NAME] of the Government of Alberta. The Board requested [NAME] provide the relevant information and evidence to support the Interim Costs Application and their Stay Application, including whether [NAME] were directly affected. [ 36 ]                                    On February 24, 2025, the Applicants provided the Board their initial submission regarding the Interim Costs Application (the Applicants’ Initial Submission) which was acknowledged by the Board on February 25, 2025. The Board set a process to receive response submissions. [ 37 ]                                    On March 4, 2025, the Director advised it would not be making submissions regarding the Interim Costs Application because the Applicants were seeking costs against [NAME] not the Director. [ 38 ]                                    On March 4, 2025, [NAME] provided its response submission to the Interim Costs Application ([NAME]’s Response Submission). [ 39 ]                                    On March 10, 2025, [NAME] in response to a request by the [NAME], advised that the [NAME] were being transferred to a third party (the Transferee) and that [NAME] was continuing as agent of that party. [ 40 ]                                    On March 12, 2025, the Board requested [NAME] provide the Board with the name and contact information of the Transferee. [ 41 ]                                    On March 13, 2025, the Applicants provided their interim costs rebuttal submission (the Applicants’ Rebuttal Submission). [ 42 ]                                    On March 14, 2025, [NAME] advised that the transfer of the [NAME] and the Registration was imminent, that the new owner was [NAME] and that it did not contemplate any commercial agreements would be submitted in the proceedings for the appeals. Between March 14 and 20, 2025, [NAME] and the [NAME] exchanged correspondence regarding the transfer of the Lands from [NAME] to [NAME]. [NAME] advised that a copy of the title transfer would be provided to the Parties, [NAME] and the [NAME] once it was registered and publicly available. [ 43 ]                                    On March 14, 2025, [NAME] provided their initial submission with respect to the Stay Application. [ 44 ]                                    On March 21, 2025, [NAME] advised that commencement of construction and work at [NAME] had been deferred. [ 45 ]                                    On March 21, 2025, the Director advised the Board that the [NAME] and the Registration had been transferred to [NAME] as of February 2, 2025. The Director provided the Board a copy of the amended [NAME] . [ 46 ]                                    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). The Board acknowledged the Email Exchange and, also advised in response to a request by [NAME], that it had made no determination on whether it was necessary to delay the hearing pending the decision of the Court of Appeal regarding an appeal 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 Environmental Appeals Board et al , Court of King’s Bench Action No. 2401-06916 (June 24, 2024) (the Ashcroft Appeal) or if the decision of Madame Justice Ashcroft would be relevant to the appeals. [ 47 ]                                    On May 2, 2025, [NAME] provided its written submission in respect of the directly affected status of [NAME] and the Stay Application. [ 48 ]                                    On May 28, June 19 and July 15, 2025, [NAME] requested the Board to set a deadline for [NAME] to provide response submissions regarding the Stay Application and schedule the hearing of the appeals so the Board could 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 Bighill Creek : “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.” [9] [ 49 ]                                    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.” [10] [ 50 ]                                    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. [ 51 ]                                    On October 7, 2025, the Board confirmed 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. The Board requested the Parties, [NAME] and the [NAME] provide available hearing dates for February and March 2026, noting the Ashcroft Appeal which may have impacted the setting of issues, had been discontinued [11] and that the original orders made by Madame Justice Price and Madame Justice Ashcroft of the Court of King’s Bench remained in place. [12] [ 52 ]                                    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 there was a reasonable apprehension of bias (the Bias Motion). [NAME] asked the Board to set a process to receive submissions regarding the Bias Motion. [NAME] also requested that 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] 2025 Judicial Review ) 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 ABEAB 1 ( [NAME] 2025) . [NAME] further requested the Board delay setting the issues for the hearing until a decision was rendered by the Court of King’s Bench in Action 2401-06687 regarding a Notice of Constitutional Question (the Badlands Judicial Review ) in respect of the Minister’s decision in McMillan et al v Director, South Saskatchewan Region, Operations Division, [NAME], re: Badlands Recreation Development Corp. , 2024 ABEAB 7 ( Badlands ). [NAME] further advised that their legal counsel, [NAME], would not be available for a hearing until late summer or early fall of 2026. The Board set a process to receive comments from the Director, [NAME] and the [NAME] regarding [NAME]’ letter. [ 53 ]                                    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 further stated 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 [NAME]’ 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.” [ 54 ]                                    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 [NAME] have merely raised 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 consider the Bias Motion based on the material already submitted. [NAME] objected to delaying the proceedings pending the decisions of the Court of King’s Bench in the [NAME] 2025 Judicial Review 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. [ 55 ]                                    On October 20, 2025, the [NAME] responded to the Board’s letters of October 7 and 9, 2025 and [NAME]’ letter of October 8, 2025, stating it supported the Bias Motion and the Stay Application and agreed the Stay Application should be delayed pending the determination of the [NAME] 2025 Judicial Review . [ 56 ]                                    On October 21, 2023, [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. [ 57 ]                                    On October 23, 2025, the Board advised the Parties, [NAME] and the [NAME] that 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, [NAME] and the [NAME] an opportunity to present their arguments on the Bias Motion. [ 58 ]                                    As well, on October 23, 2025, the Board advised the Parties that it would not wait for a decision in [NAME] 2025 Judicial Review 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. [ 59 ]                                    The Board also advised on October 23, 2025, that it would not wait for the Court of King’s Bench decisions in the [NAME] 2025 Judicial Review and the Badlands Judicial Review before setting the issues for the hearing and set a process for the Parties, [NAME] and the [NAME] to provide final comments regarding the issues 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] 2025 Judicial Review 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, 2025 letter. [ 60 ]                                    On June 17, 2025, the Board notes the decision of the Court of King’s Bench in the [NAME] 2025 Judicial Review was issued: [NAME] v [NAME] Board , 2025 ABKB 724 .

3.                                          CLAIM FOR INTERIM COSTS [ 61 ]                                    The Applicants applied for an interim award of [NAME] costs of $10,920 and legal costs of $8,550 for a total award of interim costs of $19,740.00 as against [NAME]. 4.                                          submissions [ 62 ]                                    The Board has considered the written submissions of the Applicants, [NAME], and the Director, and summarized the relevant information for the purposes of this decision below. 4.1.                                     Applicants [ 63 ]                                    The Applicants applied for interim costs of $19,470.00 for [NAME] costs and legal fees as against [NAME]. 4.2.                                     Interim Costs [ 64 ]                                    The Applicants submitted the Environmental Protection and Enhancement Act, RSA 2000, c W-3 ([NAME]) gives the Board “final jurisdiction to order costs ‘of and incidental to any proceedings before it’” and the Board has the discretion to award interim or final costs and direct by whom and to who any cost is to be paid. [13] [ 65 ]                                    [NAME] stated the legislative framework must be read in accordance with section 2 of [NAME]. Specifically, [NAME] referred to the following purpose provision found in section 2(i) of [NAME]: “Purpose of the Act 2          The purpose of this Act is to support and promote the protection, enhancement and wise use of the environment while recognizing the following: … (i)         the responsibility of polluters to pay for the costs of their actions;” [ 66 ]                                    The Applicants submitted that section 19 of the Environmental Appeal Board Regulation, Alta Reg 114/93 (the Regulation) sets [14] out the issues the Board may consider as part on an interim application for costs [15] and that the Board in Preliminary Motions: [NAME] v Director, Northern East Slopes Region, Environmental Service, [NAME], re: [NAME] , 2001 ABEAB 16 ( [NAME] ) considered how the section 19 factors apply to an award of interim costs: “The Director points to the Ash case as outlining the requirements for an interim costs application:

1.                   The applicant must provide a general outline of the merits of their case, describe how the costs sought will enable the applicant to prove the case, and why the applicant could not fill that role through other means.

2.                   The applicant must show that they made reasonable efforts to identify and make use of other means or resources.

3.                   The applicant must show that the desired services or materials are consistent with the market rate for those services or materials.

4.                   The applicant must submit a simple budget to show how the costs sought would be likely to accomplish the desired task. If the amount sought is not sufficient, then the applicant must address its intentions for obtaining the remaining funds. The Board expressed that it does not want to be in a position where it feels compelled to keep granting unexpected costs application to ensure the work is completed. [ 67 ]                                    Further, the Director notes that the Board in Ash denied interim costs because: 1.                   the request contained only a cursory statement need or an [NAME] report and for costs; 2.                   the request did not address many of the factors discussed above; 3.                   the request did not indicate the amount of costs sought; and 4.                   the applicant did not establish her own lack of resources.” [16] [ 68 ]                                    The Applicants submitted that the relevant factors to be considered by the Board for an award of interim costs were: 1.                   the merits of the Applicants’ appeal; 2.                   the nature of the Applicants’ retainer; 3.                   the Applicants’ plan should the Board award interim costs; and 4.                   the Applicants’ demonstrated need for interim costs. [17] [ 69 ]                                    The Applicants argued the issues raised by the Applicants are important and the Board needs to ensure that the Applicants have the capacity to present the Board with the best possible evidence on those issues. [18] [ 70 ]                                    The Applicants submitted that the role the Board plays in determining appeals before it was summarized in in [NAME] v. Director, Red Deer – North Saskatchewan Region, [NAME], RE: [NAME], 2019 ABEAB 8 ( [NAME] ) , where the Board stated: “The purpose of the hearing is to ensure the Board hears the best evidence on the issues, to assist the Board in providing the best recommendations possible to the Minister. In this appeal, the protection of the quality of surface water and groundwater, and the protection of the aquatic environment are important issues. The Board considers it important to hear from experts in the field to obtain a full picture of the concerns and the mitigative measures being taken. In the Board’s view, subject to the experts focusing on the issues set by the Board, the Board accepts the Appellant has presented an appropriate plan. Further, the Board recognizes the value of legal counsel in assisting parties to prepare for a hearing. Therefore, the Board will award interim costs to the Appellant for legal and [NAME] costs, related to the preparation of [NAME] reports, as well as for preparation and attendance at the hearing.” [19] [ 71 ]                                    The Applicants argued that the concerns raised in this case, particularly concern for surface and subsurface water quality, are like those before the Board in [NAME]. The Applicants further noted that unlike [NAME] , the Applicants also draw their drinking water from the aquifer impacted by the [NAME]. [ 72 ]                                    The Applicants argued their request for interim costs was lean and efficient. They submitted the cost sharing arrangement amongst [NAME] for legal and [NAME] fees demonstrated that the Applicants were making “use of other means or resources” and that they are “consolidating common issues or resources with other parties.” The Applicants stated that each of [NAME] and [NAME] would pay 33% of the [NAME] and legal costs for the appeals. [20] [ 73 ]                                    The Applicants submitted that the hourly rate for [NAME]’s legal services was $255.00 per hour and was below the market rate having regard for [NAME]’s years at the bar and experience. [NAME] noted the Honourable Mr. Justice Graesser in [NAME] v [NAME] , 2023 ABKA 46 ( [NAME]) commented in that case, the rate of $300/hour that [NAME] was charging the appellant was on the low side having regard to [NAME]’s years at the bar and experience, and that a solicitor-client bill would have been double what Mr. Justice Graesser was awarding. [21] [ 74 ]                                    [NAME] argued the low billable rate reflects “the shared responsibility of all Alberta citizens for ensuring the protection, enhancement and wise use of the environment through individual actions.” [22] [ 75 ]                                    The Applicants submitted a plan for interim costs. With respect to interim [NAME] costs claimed, the Applicants submitted they were for [NAME] to prepare a report and appear at the hearing and were estimated to be $16,380.00. [23] [ 76 ]                                    The Applicants advised the Board that [NAME] was a senior engineer with the [COMPANY]’s Department of Civil Engineering and submitted [NAME]’s experience and expertise support a billable rate of $325.00 per hour. [24] [NAME] estimated that he would require 20 hours to prepare a report for the hearing, 8 hours to prepare a rebuttal report and three eight hour days (24 hours) to attend the hearing for a total cost of $16,380.00. [25] The Applicants requested the Board award interim costs of 66 percent of [NAME]’s estimated costs or $10,920.00. [26] [ 77 ]                                    With respect to interim legal costs claimed, the Applicants submitted [NAME] would require 66 hours of preparation time for the hearing which was comprised of 33 hours of preparation time to respond to each of the Director and [NAME]. The Applicants submitted [NAME] would require 33 hours for attendance at the anticipated three-day hearing (11 hours per day x 3 days) and 15 hours post-hearing to answer additional Board questions and make additional submissions for a total of 114 hours or $25,650.00 (114 hours x $225.00 per hour) in legal costs. The Applicants requested the Board reduce the expected legal costs by 50% and award interim costs of 66% of that amount or $8,550.00 ($25,650.00 x 50% x 66%). The Applicants noted that all legal work was being performed by one lawyer. [27] [ 78 ]                                    The Applicants submitted they were seeking a total of $19,470.00 in interim costs for legal ($8,550.00) and [NAME] fees ($10,920.00). [28] [ 79 ]                                    The Applicants asserted that they have a need the interim costs. The Applicants provided the Board financial information with respect to [NAME] and [NAME]’s ability to pay the legal and [NAME] costs for the appeal. The Applicants submitted that the cost of the appeal would be a significant and insurmountable barrier to [NAME] participation in the appeal, which does not accord with the purposes of [NAME]. [29] The Applicants further submitted that based on [NAME]’s financial information he does not have the financial means to afford the hearing. [30] [ 80 ]                                    The Applicants argued [NAME] wants the public to participate in environmental decision-making in Alberta noting the following two purposes of [NAME]: “(f)      the shared responsibility of all Alberta citizens for ensuring the protection, enhancement and wise use of the environment through individual actions; (g)        the opportunities made available through this Act for citizens to provide advice on decisions affecting the environment.” [31] [ 81 ]                                    The Applicants argued if the Board does not exercise its discretion and award interim costs to further the public’s participation in environmental decision-making, [NAME] cannot achieve its purposes, particularly where the request for interim costs is low relative to the size and scale of [NAME] and the financial resources of [NAME]. [32] 4.3.                                     Application of the Duty of Procedural Fairness [ 82 ]                                    The Applicants submitted their right to be heard by the Board in the appeals is tied to an award of interim costs and the decision of the Board to provide the Applicants an award of interim costs is part of the obligation of the Board to afford the Applicants fair process. The Applicants submitted that without an award of interim costs, they will not be able to adequately participate in the appeals. [33] [ 83 ]                                    The Applicants stated the right to a fair hearing is one of the two pillars of procedural fairness. The Applicants referred to the Supreme Court of Canada decision in [NAME] v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 ( [NAME]) at paragraph 22 where the Court stated: “...I emphasize that underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.” [34] [ 84 ]                                    The Applicants submitted questions of procedural fairness are reviewed to determine whether the appropriate level of fairness required by the common law was afforded and that the concept of procedural fairness is variable and context specific. [35] [ 85 ]                                    [NAME], the Applicants submitted the relevant considerations in determining the Board’s duty of procedural fairness were as follows: “Several factors are relevant to determining the content of the duty of fairness: (1) the nature of the decision being made and process followed in making it; (2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; (5) the choices of procedure made by the agency itself. This list is not exhaustive.” [36] [ 86 ]                                    The Applicants argued the application of the [NAME] factors furthered their entitlement to interim costs as follows:

1.                   Nature of the Decision - the Board conducts an adjudicative hearing which entitled parties to a higher degree of procedural fairness;

2.                   Nature of the Statutory Scheme - section 94 of [NAME] entitles parties to a hearing and section 96 of [NAME] provides the Board with the power to grant interim costs, both of which inform a higher degree of procedural fairness;

3.                   Importance of the Decision to the Applicants – the Applicants’ concerns over health and safety (access to clean drinking water) inform a high degree of procedural fairness;

4.                   Legitimate Expectation - a legitimate expectation is created for an award of interim cost as both [NAME] and the Regulation empower the Board to award interim costs and the Board will grant those costs where there is a demonstrated need, both facts inform a higher degree of procedural fairness ; and 5.                   Body’s Choice of Procedure - a full hearing has been scheduled for the appeals which demonstrates a higher degree of procedural fairness. [37] [ 87 ]                                    The Applicants submitted the high degree of procedural fairness owed to the Applicants in this case weighs in favour of a grant of interim cost to ensure they have an opportunity to be heard by the Board. Without an award of interim costs, the Applicants argued they would not be able to adequately participate in the appeals. [38] 4.4.                                     [NAME] [ 88 ]                                    [NAME] submitted the Applicants have failed to satisfy the requirements necessary for an award of interim costs by the Board. [39] [ 89 ]                                    [NAME] submitted that until the Board decides the directly affected status of the Applicants, an award of interim costs cannot be made. [40] [NAME] noted the Regulation only contemplates an award of interim costs after the Board has determined all parties to the appeal. [41] [ 90 ]                                    [NAME] made the following submissions with respect to the Applicants’ Interim Costs application: 1.                   principles of procedural fairness do not include an entitlement of an award of interim costs; 2.                   the Applicants have not established a need for interim costs and have not shown they have investigated other sources of funding or that other sources are unavailable; 3.                   the [NAME]’s hourly rate has not been calculated in accordance with the formula established by the Board; and 4.                   the Applicants have not identified how the [NAME] will assist the Board in the appeals. [42] [ 91 ]                                    [NAME] provided the Board a summary of the principles that guided the Board in making an award of interim costs: [43] 1.                   section 96 of [NAME] provides the Board the authority to award final and interim costs and section 19(3) of the Regulation sets out the factors the Board may consider in making a costs decision; [44] 2.                   an application for interim costs must “contain sufficient information to demonstrate to the Board that interim costs are necessary in order to assist the party in effectively preparing its submission for a hearing;” [45] 3.                   while recognizing the importance of individuals to bring environmental issues to the attention of the Board, the Board generally expects the parties to bear their own costs in an appeal; [46] and 4.                   where the Board determines that an award of interim costs is appropriate, the starting point is 50% of the costs claimed but it is common for the Board to grant only 25% or less of the costs claimed. [47] [ 92 ]                                    [NAME] submitted while the Regulation sets out five criteria that the Board may consider when making an interim costs decision, the Board has the discretion to determine the relative weight to be given to each factor and the legislation does not limit the factors the Board may consider when making an interim or final costs award. [48] [ 93 ]                                    [NAME] noted the Board does not readily provide interim costs because the Board does not yet know whether the party or its experts will make submissions that would be of assistance to the Board. [NAME] argued that in previous decisions, the Board placed substantial weight on whether the submissions of a party would contribute to a hearing when considering an award of costs and whether the lawyers and experts would add value to the hearing or assist the Board in preparing its recommendations to the Minister. [NAME] submitted that if the Board determines the lawyers or experts would not add value to the hearing or the Board is unable to ascertain the value the lawyers or experts will add, the Board will reduce the interim costs granted. [49] [ 94 ]                                    [NAME] submitted the Board places significant weight on whether a clear plan has been provided for the use of an award of interim costs noting that the Board in [NAME] expected: 1.                   a specific list of experts the applicant intended to hire; 2.                   how much money the applicant requested for interim costs; 3.                   how the applicant intended to spend the interim costs; 4.                   how the applicant’s submissions would contribute to the hearing of the appeal; 5.                   some demonstration that the applicant had made an adequate attempt to use other funding sources; and 6.                   sufficient information to demonstrate to the Board that interim costs were necessary to assist the applicant in effectively preparing for the hearing. [50] [ 95 ]                                    [NAME] argued that based on the Board’s previous decisions, there are three factors on which the Board places the most weight:

1.                   Has the applicant presented a specific plan for the use of the interim costs? 2.                   Has the applicant demonstrated a need for funding or shown that they have made efforts to secure funding? 3.                   Will the lawyers, consultants, or experts for whom costs are claimed assist the Board? [51] [ 96 ]                                    With respect to the Applicants’ argument that the entitlement to procedural fairness enhances their entitlement to interim costs, [NAME] respectively disagreed and stated the Applicants’ argument was not supported by law. [NAME] submitted a party can be entitled to a high degree of procedural fairness but not be entitled to an interim award of costs or any costs at all. [52] [ 97 ]                                    [NAME] submitted [NAME] made it clear the award of any costs is discretionary as section 96 states that the Board “may award costs of and incidental to any proceedings on a final or interim basis…”. Further, [NAME] noted sections 18 and 19 of the Regulation limit the basis for awarding costs to circumstances where costs are necessary to assist a party and that neither [NAME] nor the Regulation require the granting of costs to a party entitled to procedural fairness. [53] [ 98 ]                                    [NAME] submitted a key principle that an applicant must address in an application for interim costs is necessity which [NAME] noted was also reflected in the common law test for interim costs as follows: “ The common law requires that before an award of interim (or advance) costs can be made, three conditions must exist: (i) the applicant must be impecunious to the extent that the litigation could not proceed without advance costs; (ii) the applicant must have a prima facie meritorious case where the interests of justice would not be served by abandoning the case due to a lack of financial resources; and (iii) the issues raised must be of public importance.” [54] [NAME] further noted that the common law test for interim costs does not consider a party’s entitlement to procedural protection or process but is focused on whether a lack of financial resources will result in a case that justice demands be decided, not to be decided at all. [ 99 ]                                    [NAME] stated it was not submitting the Applicants must meet the common law test for an award of interim costs and acknowledged the wording in [NAME] and the Regulation are slightly different. [NAME] argued that neither the common law nor [NAME] or the Regulation support procedural fairness as a factor that should be considered with respect to an application for interim costs. [NAME] submitted the Applicants’ submissions with respect to procedural fairness and the [NAME] factors are not a relevant consideration in an interim costs application. [55] [ 100 ]                                [NAME] submitted the matter currently before the Board is like that in [NAME] et al v Director, Southern Region, Environmental Management, [NAME] , re: [COMPANY]., 2011 ABEA 15 ( [NAME] ). As was the case in [NAME] submitted the Applicants have not provided evidence that they had attempted to obtain funding from other sources such as other parties to the appeal, governmental or educational organizations or other entities to help mitigate costs. [NAME] noted that [NAME] is not seeking costs and no information has been provided to the Board regarding [NAME]’s ability to cover the costs of the appeal despite being part of the group represented by [NAME] and retaining [NAME]. [56] [ 101 ]                                [NAME] also submitted the financial information provided for [NAME] and [NAME] was based on the Applicants’ self-reporting and was without supporting documentation. Further, no information has been provided to the Board with respect to current assets of the Applicants (as opposed to spending information) or regarding the Applicants’ ability to secure a short-term loan to cover the interim costs. [NAME] argued there is no evidence that the Applicants have explored a practical and balanced funding solution. [NAME] argued that the Board must conclude that the Applicants have not made adequate attempts to find alternative funding and their claim for interim costs should be rejected or reduced accordingly. [57] [ 102 ]                                With respect to the Applicants’ claim for [NAME] costs for [NAME] submitted the Board should apply the same formula it applied in [NAME] to determine [NAME]’s hourly rate for purposes of the determination of interim [NAME] costs. The formula used by the Board in [NAME] was ((salary + overhead) x profit)/billable hours worked per year. The Board in [NAME] found it was common to use the annual salary as the amount to cover overhead and estimated profit to be 20 percent of salary and overhead ((salary + profit) x 1.2)). [58] [ 103 ]                                [NAME] provided the Board with a review of [NAME]’s annual salary which was published by the [COMPANY] on its website. [NAME]’s salary was not available for 2024 or 2025 but based on [NAME]’s salary in 2023 of $156,158.05 and an average yearly increase in salary for the years 2019 to 2023 of $3,847.62, [NAME] estimated [NAME]’s salary in 2025 would be $163,853.30. [NAME] estimated that an [NAME] with [NAME]’s experience would be entitled to 6 weeks of holidays per year. Therefore, based on a 46-week work year and an estimated 37.5 billable hours per week (7.5 hours per day x 5 days per week), [NAME] estimated the billable hours per year would be 1725 hours. [59] [ 104 ]                                [NAME] applied the formula set out in [NAME] and determined that [NAME] would be entitled to an hourly rate of $227.67 per hour (($163,853.30 + $163,421.03) x 1.2)/1725). [60] [ 105 ]                                [NAME] submitted that the Applicants were claiming interim costs for [NAME] fees of 50.4 hours of work being [NAME]’s estimate of [NAME] fees divided by [NAME]’s proposed hourly rate of $325.00 per hour. [NAME] submitted the most the Board should award from [NAME]’s [NAME] costs is 50 percent of the eligible costs which is the Board’s starting point for an award of costs. Therefore, [NAME] submitted the total allowable amount for [NAME]’s retainer (if the hourly rate of $227.67 was applied to the estimate of 50.4 hours of work) would be $5,744.84 (50.4 hours x $227.67 per hour = $11, 489.67 x 50% = $5,744.84). [NAME] further submitted that this amount should be reduced by one third to $3,829.90 as [NAME] did not make an application. [61] [ 106 ]                                [NAME] noted again that it is common for the Board to award only 25 percent of eligible costs. [ 107 ]                                [NAME] argued the Applicants have not provided sufficient information regarding the evidence to be provided by [NAME], and it is unclear how [NAME] would assist the Board. [NAME] submitted the Applicants’ concerns related to surface and subsurface water quality and [NAME] was neither a hydrologist nor a hydrologist or a hydrogeologist and his synopsis of expertise does not on its face reveal any expertise relevant to the issues of this appeal. [62] [ 108 ]                                With respect to the anticipated legal fees, [NAME] noted the Applicants are seeking 50% of their anticipated legal costs based on a total of 114 hours comprised of 66 hours of preparation time to respond to [NAME] and the Director, 33 hours of hearing attendance and 15 hours post-hearing. [63] [ 109 ]                                [NAME] submitted that much of the time for preparation to respond to the Director and [NAME] would be duplicative given the overlap in issues between the parties. Therefore, preparation time to respond to both respondents should be reduced to 40 hours. Based on the reduction in preparation time, [NAME] submitted the amount of interim costs for legal fees should be determined as $9,900.00. ($225/hour x 88 hours =$19,800 x 50%). [NAME] further submitted this amount should be reduced by one third to $6,600.00 to reflect that costs are being divided three ways and [NAME] has not applied for interim costs. [64] [ 110 ]                                Th [NAME] submitted there is no right of the Applicants to interim costs as the power of the Board to award costs is at any juncture is discretionary. Further, if the Board were to determine an award of interim costs was appropriate, [NAME] argued the Board should consider no more than fifty percent of the costs claimed or $10,429.90 ($3,829.90 ([NAME] fees) + $6,600.00 (legal fees)) Further, [NAME] further argued that given the deficiencies in the Applicants’ application, the most the Board should award the Applicants is 25% of the eligible interim costs (adjusted to reflect that [NAME] did not apply for interim costs) or $5,214.95 (($11,489.67 x 2/3 ([NAME] fees) + $19,800.00 x 2/3 (legal fees))x.25). 4.5.                                     Director [ 111 ]                                As previously noted, the Director advised the Board that he would not provide a response to the Interim Costs Application as the Applicants were seeking costs against [NAME] not the Director. 4.6.                                     Applicants’ Rebuttal Submissions [ 112 ]                                The Applicants submitted [NAME] misstated the law of procedural fairness when [NAME] asserted the law does not support a concomitant relationship between a party’s entitlement to procedural fairness and a party’s entitlement to costs. [65] [ 113 ]                                The Applicants argued that without interim costs the Applicants would not be heard by the Board and that the right to be heard was a right afforded by the law of procedural fairness. The Applicants submitted that procedural fairness concerns the processes offered by an [NAME] and ensures a party is afforded two rights, the right to be heard ( audi alteram partem ) and the right to an impartial decision-maker ( nemo judex in causa sua ). The Applicants argued the right to be heard entitled them to interim costs and without them, they would not be heard. Further, the Applicants submitted interim costs was one mechanism the Board can use to ensure the Applicants are heard. [66] [ 114 ]                                The Applicants submitted that [NAME] further misstated the law of procedural fairness when [NAME] asserted that an award of any costs was a matter of discretion, that the basis for awarding interim costs was limited to circumstances where such costs are necessary to assist a party and that necessity was a key principle an applicant must address in making an application for interim costs. The Applicants argued all processes offered by an [NAME] are discretionary as specific procedures were rarely legislated and that an [NAME] must consider the [NAME] factors when determining if a procedure is warranted. The Applicants stated that ultimately the Court will determine on judicial review whether an [NAME]’s procedural choices were correct. [67] [ 115 ]                                The Applicants argued [NAME] had confused the term “need” with “necessity” arguing “need” is one factor the Board may consider when determining a party’s entitlement to interim costs. Further, the Applicants argued “necessity” has no bearing on whether a party is entitled to a certain procedure. [68] [ 116 ]                                The Applicants submitted that [NAME] appears to assert that the Board was required to consider an applicants’ request for alternative funding. The Applicants noted the Regulation states that the Board “may” consider an applicant’s request for alternative funding but argued the Board is not required to do so. [69] The Applicants argued the Board should only consider alternative sources of funding where a party is aware of one. In this case, the Applicants stated they were not aware of any alternative sources of funding as the Applicants are asserting a private interest in the appeals being the preservation of their water wells. The Applicants submitted [NAME] did not explain how a private interest merited third party funding. [ 117 ]                                With respect to the contribution by [NAME] to the costs of the appeals, the Applicants repeated that they negotiated a split fee among themselves and if [NAME] was interested in contributing to the entire cost of the appeals, he would have done so. [ 118 ]                                The Applicants submitted it was inappropriate for [NAME] to review [NAME]’s salary and the fact it was publicly available did not change the fact [NAME]’s review was inappropriate. The Applicants argued [NAME]’s salary from the [COMPANY] was not relevant as to whether his [NAME] rate of $315.00 per hour [70] was reasonable. The Applicants noted that the decision in [NAME] , which [NAME] relied on to calculate [NAME]’s hourly rate, was decided 14 years ago and that [NAME]’s rate of $315 per hour was less than the [NAME] rate ($370 per hour) in the [NAME] decision released two years ago, and that [NAME]’s total cost is less than the cost of the consultant in Costs Decision: [COMPANY] et al v Director, Regional Compliance South Saskatchewan Region, [NAME], 2022 ABEAB 6 ( [NAME] ). The Applicants noted that the Board granted 100% of the consultant costs in [NAME] because the [NAME] in that case “significantly assisted the Board in developing the Report and Recommendation.” [71] [ 119 ]                                The Applicants noted that the purpose of the two [NAME] reports is as follows: 1.                   the report prepared by [NAME] explained the impact of the [NAME] on Big Hill Springs Provincial Park and the related public interest; and 2.                   the report to be prepared by [NAME] would explain the [NAME]’s impact on the private interest of [NAME] and [NAME] in their water wells and will assist the Board in preparing its report and recommendations. [72] [ 120 ]                                The Applicants submitted that [NAME]’s submission on the duplicative nature of preparation is speculative and that 66 hours of preparation time for the hearing is reasonable. [73]

5.                                          LEGAL BASIS FOR INTERIM COSTS [ 121 ]                                The legislative authority giving the Board jurisdiction to award costs is section 96 of [NAME], which provides: “The Board may award costs of and incidental to any proceedings before it on a final or interim basis and may, in accordance with the regulations, direct by whom and to whom any costs are to be paid.” [ 122 ]                                The Board has wide discretion under section 96 of [NAME] to award costs. As stated by Mr. Justice Fraser of the Court of King’s Bench in [COMPANY]. v Alberta (Environmental Appeal Board ), 2001 ABQB 293 ( [NAME] ), when considering an application for judicial review of the decision of the Board denying an application for costs: “… Under s. 88 [(now section 96)] of the Act, …, the Board has final jurisdiction to order costs “of and incidental to any proceedings before it…”. The legislation gives the Board broad discretion in deciding whether and how to award costs …. I note the legislation does not limit the factors that may be considered by the Board in awarding Costs. Section 88 [(now section 96)] of [[NAME]] states that the Board ‘may award costs … and may, in accordance with the regulations, direct by whom and to whom any costs are to be paid ….’” [74] [ 123 ]                                Although Mr. Justice Fraser’s comments were in relation to final costs, the Board is of the view the principles are equally relevant to interim costs applications. [75] [ 124 ]                                The requirements for applying for interim costs are found in sections 18 and 19 of the Environmental Appeal Board Regulation , Alta Reg 114/93 (the Regulation). [ 125 ]                                The requirements of section 18 of the Regulation are not discretionary. They are mandatory and a precondition to the Board’s authority to award costs. [76] Section 18 requires the Board to consider whether the costs claimed are reasonable and are directly related to the matters contained in the notice of appeal and the preparation and presentation of the party’s submission. Section 18 provides: “18(1)  Any party to a proceeding before the Board may make an application to the Board for an award of costs on an interim or final basis. (2)        A party may make an application for all costs that are reasonable and that are directly and primarily related to (a)        the matters contained in the notice of appeal, and (b)        the preparation and presentation of the party’s submission.” [ 126 ]                                Section 19 of the Regulation sets out when a party may apply for an award of interim costs and that the application for interim costs must contain sufficient information to demonstrate interim costs are necessary to assist the party in effectively preparing and presenting its submission as well as other criteria the Board may consider when determining an interim costs application. Section 19 also provides that an award of costs is subject to redetermination in an award of final costs. “19 (1)   An application for an award of interim costs may be made by a party at any time prior to the close of a hearing of the appeal but after the Board has determined all parties to the appeal. (2)         An application for an award of interim costs shall contain sufficient information to demonstrate to the Board that the interim costs are necessary in order to assist the party in effectively preparing and presenting its submission. (3)         In deciding whether to grant an interim award of costs in whole or in part, the Board may consider the following: (a)        whether the submission of the party will contribute to the meeting or hearing of the appeal; (b)        whether the party has a clear proposal for the interim costs; (c)        whether the party has demonstrated a need for the interim costs; (d)       whether the party has made an adequate attempt to use other funding sources; (e)        whether the party has attempted to consolidate common issues or resources with other parties; (f)        any further criteria the Board considers appropriate. (4)         In an award of interim costs the Board may order the costs to be paid by either or both of (a)        any other party to the appeal that the Board may direct; (b)        the Board. (5)         An award of interim costs is subject to redetermination in an award of final costs under section 20.” [ 127 ]                                Generally, the Board is of the view the starting point for a costs decision to be that each party is responsible for their own costs. This is because the public has an obligation to accept some responsibility for bringing environmental issues to the forefront and part of this obligation is for the party to pay their own way in an appeal. [77] This principle applies to interim costs as well as final costs. [78] [ 128 ]                                When a party makes an application for interim costs, generally the party is asking the Board to depart from its starting position that each party is responsible for their own costs and require that one party to an appeal pay the costs of another party. Therefore, the Board does not readily award interim costs. The Board considers an award of costs as recognition of the assistance a party has provided to the Board in determining the best recommendations to make to the Minister. However, at the time of an application for interim costs, the Board does not know if a party will be of assistance to the Board. [79] [ 129 ]                                Section 19(2) of the Regulation requires that an application for an award of interim costs must provide the Board sufficient information to demonstrate to the Board that interim costs are necessary for the effective preparation and presentation of the applicant’s submission. Therefore, the Board looks at whether the party has a specific plan to show where the anticipated costs will be incurred. Including more specifics in the plan will enable the Board to determine whether interim costs are warranted and, if awarded what is a reasonable amount of interim costs. The Board will also consider whether the applicant has made a reasonable effort to identify and make use of alternative sources of funding available. [80] [ 130 ]                                Finally, the Board looks at an application for interim costs prospectively. Interim costs are for work to be done in preparation for and attendance at the hearing. Interim costs do not include costs arising from work already completed. However, this does not preclude the parties from choosing to claim such costs as part of a final costs application. [81]

6.                                          Analysis [ 131 ]                                The Applicants applied for an interim costs award of $8,550.00 for legal fees and [NAME] costs of $10,920.00 for a total award of interim costs of $19,470.00, against [NAME]. [ 132 ]                                As previously noted, the legislative authority giving the Board jurisdiction to award costs is section 96 of [NAME], which provides: “The Board may award costs of and incidental to any proceedings before it on a final or interim basis and may, in accordance with the regulations, direct by whom and to whom any costs are to be paid.” Further, section 19(1) of the Regulation provides that an award for interim costs may only be made after the Board has determined all parties to the appeal. [82] [ 133 ]                                For an appellant to have standing and be a party to an appeal, section 115(1)(a)(i) of the Water Act requires that a person filing a notice of appeal must have submitted a statement of concern and be directly affected by the Director’s decision. [83] In this case the Board as determined all parties to the appeals as the Board in Directly Affected Decision: [NAME] determined [NAME] were directly affected and had standing in the appeals and in Bighill Creek determined the [NAME] was a party to the appeals as the [NAME] was also directly affected by the decision of the Director to issue the [NAME]. As the Board has determined all the parties to the appeals, the Board can consider the Interim Costs Application. [ 134 ]                                In this appeal, the Applicants have raised issues regarding the protection of the quality of groundwater and the impact of the [NAME] on their water wells from which they draw drinking water. The [NAME] authorizes the removal of 15 waterbodies and the implementation of a stormwater management plan. The Board notes that as stated in [NAME], “[t]he purpose of the hearing is to ensure the Board hears the best evidence on the issues, to assist the Board in providing the best recommendations possible to the Minister” and the Board considers it important to hear from experts in the field to obtain a full picture of the concerns and the mitigative measures taken. [84] [ 135 ]                                Section 18(2) of the Regulation requires the Board to consider whether the costs claimed are reasonable and are directly related to the matters contained in the notice of appeal and are directly related to the preparation and presentation of the party’s submission. The Board also considers whether the party has a specific plan to show where the anticipated costs will be incurred. [ 136 ]                                The Applicants, citing [NAME] , submitted they required interim costs so they may present to the Board the best possible evidence regarding the impact of the [NAME] on the water quality in the water wells from which they draw drinking water. The Board notes the [NAME] relates to the removal of 15 water bodies from [NAME] site as well as the implementation of a stormwater management plan but does not relate to the removal of the overburden, and the sand and gravel at [NAME] site as part of the mining operations. The removal of the overburden, and the sand and gravel are governed by the Registration issued under [NAME] and is not considered an activity by the Director under the Water Act. The Board notes the Registration as issued, is not appealable. [85] [ 137 ]                                The Applicants are seeking interim costs in respect of the [NAME]’s time to prepare a report in support of the Applicants’ initial submissions for the hearing, a rebuttal report in respect of the appeals and for [NAME]’s attendance at the hearing. [NAME] provided information in the Documentary Evidence showing he requires 28 hours to prepare two [NAME] reports and will attend the hearing for 3 days at 8 hours per day for a total of 24 hours. The Applicants submitted that the purpose of [NAME]’s report was to explain the [NAME]’s impact on the private interests of [NAME] in their water wells and will assist the Board in preparing its report and recommendations. The Applicants also referred the Board to the decision in [NAME] where 100 percent of [NAME] costs final costs were awarded to a party because the [NAME] in that case “significantly assisted the Board in developing the Report and Recommendation.” [86] [ 138 ]                                Legal counsel for the Applicants, [NAME], provided information that he will use an award of interim costs for drafting briefs, preparing witnesses, preparing legal argument, reviewing material, and preparing for cross examination. [NAME] and [NAME] focus on the issues in respect of the [NAME] as set by the Board, the Board accepts [NAME] met the requirement in section 18(2) of the Regulation that their application for interim costs relates directly and primarily to the matters contained in the notice of appeal and the preparation and presentation of [NAME]’ submissions for the hearing. [ 139 ]                                The Board must also determine, as required by section 18(2) of the Regulation, if the [NAME] and legal interim costs applied for are reasonable. [ 140 ]                                The Board has considered the costs of [NAME] in preparation for the hearing of the appeal. [NAME] has estimated his costs as follows: Description Hours Rate per hour Total Initial Report 20 $325.00 $6,500.00 Rebuttal Report 8 $325.00 $2,600.00 Attendance at Three-Day Hearing 24 $325.00 $7,800.00 Total 52 $16,900.00 [ 141 ]                                The Board notes that it has scheduled a three-day hearing for the appeals. Given the technical nature of the issues regarding groundwater flow and alleged impacts on quality of water recharging the Applicants’ wells, the Board finds the attendance of [NAME] at the hearing for three days (24 hours) and the estimate of 28 hours to prepare an initial and rebuttal report for a total of 52 hours of [NAME]’s time, reasonable. [ 142 ]                                The Board notes the Applicants’ claim for interim [NAME] costs is $16,380.00. The Board further notes that the Applicants stated in their initial submission that [NAME]’s hourly rate is $325.00 per hour but in their rebuttal submission state his rate is $315.00 per hour. Based on the estimated 52 hours of work provided by [NAME] and [NAME]’s proposed hourly rate of $325.00 per hour, estimated eligible interim costs should be calculated as $16,900.00 as indicated in the chart above ($325 per hour x 52 hours) not $16,380.00 as claimed by the Applicants. Total interim costs of $16,380.00 appears to be based on the hourly rate of $315.00 ($315.00 per hour x 52 hours = $16,380.00). As the Applicants have applied for total interim costs for their [NAME] of $16,380.00, the Board will apply an hourly rate for [NAME] of $315.00 per hour. [ 143 ]                                The Board notes that while the Board appreciates the extensive curriculum vitae provided by [NAME], with respect to [NAME]’s hourly rate, the Applicants did not provide any evidence of an objective standard of a reasonable market rate to assist the Board in assessing the reasonableness of a rate of $315.00 per hour. The Board further notes, [NAME] proposed a rate of $227.97 per hour for [NAME] based on the formula applied by the Board in [NAME]. [ 144 ]                                In previous decisions of the Board, the [NAME] published by the [NAME] (the Rate Guideline) has been referred to as an objective standard for determining the reasonableness of the hourly rate for a senior engineer to consult on a matter. However, at the time of this decision, the [NAME] no longer publish the Rate Guideline. [ 145 ]                                The Rate Guideline was available in 2025 and was considered by the Board in Costs Decision:  [NAME] et al v Director, Regulatory Assurance Division, South, [NAME],  2025 ABEAB 19 ( [NAME] ). The Board in [NAME] noted that a rate of $250.00 per hour charged by the senior consulting engineer was less than that which the engineer may have been entitled to charge under the Rate Guideline. The Rate Guideline was also considered in 2023 by the Board in Costs Decision: [NAME] et al v Director, South Saskatchewan Region, Regulatory Assurance Division, [NAME], re: Town of High River, 2023 ABEAB 17 ( [NAME]) . In [NAME], the Board applied a rate of $370.00 per hour for the participation of the senior consulting engineer at the hearing of the appeal based on the 2022 Rate Guideline. [ 146 ]                                The Board considered [NAME]’s curriculum vitae [87] and the fact the rate of $315.00 is less than the hourly rate applied in [NAME] which considered the then publicly available Rate Guideline and is of the view that a rate of $315.00 per hour for [NAME] is reasonable based on his experience and expertise in engineering. With respect to the formula applied by the Board in [NAME] , in this case the Board is of the view that it effectively represents the minimum hourly rate (based on [NAME] working an estimated 1725 hours per year) necessary to cover [NAME]’s yearly costs as a professor at the [COMPANY], and it is not necessarily representative of the rate that would be charged for the [NAME] consulting services to be provided by [NAME] in connection with the hearing of the appeals. [ 147 ]                                As to the appropriateness of [NAME] in reviewing [NAME]’s salary, the Board is of the view the information regarding [NAME]’s salary was on a public website and there is no evidence that the use or interpretation of the information on that public site was restricted. In determining if [NAME]’s hourly rate is reasonable, the Board prefers to consider an objective standard such as that determined by applying the formula in [NAME] . As no other objective standard was available as the Rate Guideline is no longer published and the Applicants did not provide any evidence of an objective standard, the Board appreciates [NAME]’s submissions regarding the application of the Board’s previous decision in [NAME] to the facts of this case. However, as previously noted, the Board is of the view that the rate used for [NAME] costs in [NAME] was more representative of an objective standard of a reasonable hourly rate for [NAME] fees than the calculation of such a rate using the [NAME] formula. [ 148 ]                                The Applicants have requested an award of interim legal costs of 50% of total legal costs of $25,650.00 or $12,825.00 for one legal counsel ([NAME]) at a rate of $225.00 per hour for 114 hours of work as follows: Hourly Rate Estimated Hours Total Pre-Hearing Preparation $225.00 66 hours $14,850.00 Attendance at Hearing (3 days x 11 hours per day) $225.00 33 hours $7,425.00 Post-Hearing Work $225.00 15 hours $3,375.00 Total Legal Fees $25,650.00 50 percent $12,825.00 [ 149 ]                                As previously noted, the Board has scheduled a three-day hearing for the appeals. The Board is of the view that 66 hours of preparation time is reasonable given the length of the hearing and the technical nature of the issues. However, it is anticipated that each day of the hearing will not exceed 8 hours, and the Board currently does not anticipate any post-hearing submissions being required. Therefore, total hours for [NAME] for preparing submissions and attending at the hearing would be 90 hours (66 hours pre-hearing and 24 hours for attending the hearing (8 hours/day x 3 days)) If however post-hearing submissions are required, the Applicants may make a claim for legal costs for post-hearing submissions in a final costs application. [ 150 ]                                With respect to [NAME]’s hourly rate, in the past the Board has used the Alberta Justice Tariff rate as an objective standard in its assessment of legal costs awards. Recently the Chair recommended to the Board that it may be reasonable to adjust this Alberta Tariff Rate for inflation. The Applicants indicated [NAME] is a 12-year call. The Alberta Justice Tariff rate for a 12-year call adjusted to December 31, 2025, for inflation is $295.16 per hour. The Board is of the view that a rate of $225.00 per hour for [NAME]’s time is reasonable. [88] [ 151 ]                                The Board notes the Applicants also submitted the rate charged by [NAME] is less than market rate and reflected “the shared responsibility of all Alberta citizens for ensuring the protection, enhancement and wise use of the environment through individual actions.” [89] When the Board considers the shared responsibility of all Alberta citizens in the context of an award of interim costs decision, it is recognition that the parties to an appeal share the burden of bringing environmental issues to the forefront. When considering the reasonableness of the hourly rate to be applied to a determination of legal costs, the Board uses an objective standard to determine a reasonable market rate which in this case is based on the Alberta Tariff Rate adjusted for inflation. [ 152 ]                                Accordingly, the Board is of the view that eligible legal expenses for [NAME] are $20,250.00 for 90 hours of work at a rate of $225.00 per hour (90 hours x $225.00/hour = $20,250.00). Based on the above, the Board is prepared to consider total eligible interim costs of $36,880.00 consisting of $16,380.00 in eligible [NAME] costs and $20,500.00 in eligible legal fees. To this amount the Board adds GST at 5%, which is $1,844.00 for total eligible interim costs of $38,724.00 to be considered by the Board. [ 153 ]                                The Board recognizes the importance of individuals bringing forward environmental issues before the Board. In making this decision, the Board considered the factors set out in section 19(3) of the Regulation. [ 154 ]                                The Board also acknowledges that [NAME] is of the view that the Applicants’ request for interim costs should be rejected or reduced because: 1.                   the current case is like that in [NAME] as the Applicants have not provided evidence as to whether they have attempted to obtain funding from other sources such as other other parties to the appeal, governmental or educational organizations or other entities to help mitigate costs, including from [NAME] who is part of the group represented by [NAME] and retaining [NAME]; 2.                   the Applicants have not provided sufficient evidence to establish a need for interim costs as the evidence of their financial position is based on self-reporting, does not contain sufficient transparency to adequately assess the Applicants’ ability to fund the proceedings and there is no evidence as to assets, debts, or other sources of credit available; and 3.                   it is unclear how [NAME]’s evidence will assist the Board in deciding matters regarding surface and subsurface water quality as the Applicants’ have not provided sufficient information respecting the matters [NAME] will speak to and how [NAME]’s his expertise relates to the issues as [NAME] is neither a hydrologist nor hydrogeologist. [ 155 ]                                With respect to the Applicants’ financial information regarding their ability to fund the legal and [NAME] costs associated with the appeals, the Board accepts evidence provided by the Applicants’ as sufficient to convince the Board of their need for interim costs. However, as previously noted the Board generally does not award full costs claimed, particularly interim costs, as it considers it important for parties appearing before it to be responsible for costs incurred in the process. [ 156 ]                                As previously noted, the Applicants provided the Board with a plan as to how they would use the interim costs. However, the Board is of the view that the plan provided by Applicants regarding the services to be provided by [NAME] and [NAME] to be general in nature and does not provide the Board with any information regarding the contribution of their [NAME] and legal counsel to the hearing of the appeals beyond that which would be expected of legal counsel and an [NAME] in appeals of this nature. The Applicants have stated that two reports will be provided. The Applicants stated one report to be provided is a report prepared by [NAME] which explains the impact of the [NAME] on Big Hill Springs Provincial Park (the Park) and the related public interest. The [NAME] have not stated that they are retaining [NAME], nor have they explained how [NAME]’s report regarding the impact of the [NAME] on the Park and the related public interest relate to the private interests of the Applicants. As such, it is unclear how [NAME]’s report provides information to the Board on how the Applicants legal counsel and [NAME] will assist the Board in the hearing of the appeals or making recommendations to the Minister. [ 157 ]                                With respect to the reports to be provided by [NAME] and the legal services to be provided by [NAME], the Applicants have submitted that [NAME] would use an award of interim costs to provide reports that would explain the impact of the [NAME] on the private interests of [NAME] and [NAME] would use an award of interim costs for his time required for drafting briefs, preparing witnesses and legal argument, reviewing material and preparing for cross examination. In the Board’s view, this information is general in nature as the Board would expect [NAME] and [NAME] to undertake these activities as an [NAME] witness and legal counsel for the Applicants in support of their appeals. However, neither the information provided by the Applicants in their submissions, nor the Documentary Evidence provides the Board with any information as to how the Applicants’ [NAME] or legal counsel will assist the Board in the hearing of the appeal or in making recommendations regarding how the removal of 15 waterbodies and the implementation of a stormwater management plant would impact the quality of water in the Applicants’ water wells. [ 158 ]                                Therefore, at this stage of the process as was the case in [NAME], [90] the Board does not know how much assistance the Applicants will provide to the Board, it finds an award of 25 percent of the total eligible interim costs is appropriate. [ 159 ]                                The Board further notes that an award of 25 percent of eligible interim costs is based on the starting point for final costs, which is usually 50 percent, and therefore, the Board generally awards half of its starting point for final costs as interim costs. [ 160 ]                                The Board notes the Applicants referred to the Board’s final costs decision in [NAME] where 100 percent of the [NAME]’s fees of one of the parties was awarded. The Board is of the view the final costs decision in [NAME] is distinguishable from the Interim Costs Application currently before the Board. The Board in [NAME] was considering a final costs application where the Board knew how much assistance the [NAME] provided to the Board as final costs were awarded after the closing of the hearing. In this case, as the appeals have yet to be heard and the Board does not know how much assistance [NAME] or [NAME] will provide to the Board at the hearing or in making its report and recommendations, the Board is not persuaded to deviate from its position that an award of 25 percent of eligible costs is appropriate. [ 161 ]                                The Board also notes that the Applicants argued they consolidated their resources with [NAME] and that they were not aware of any alternative sources of funding as the Applicants are asserting a private interest in the appeals being the preservation of the water wells. The Board is of the view that the purpose of demonstrating to the Board that the Applicants have made an adequate attempt to use other sources of funding is to provide evidence to the Board of the Applicants’ need for interim costs. [ 162 ]                                While the Board acknowledges that the Applicants are asserting a private interest and that it may be difficult to find alternative sources of funding, the Applicants did not provide any evidence in this regard, except to state it was their belief that such funding was not available and that if [NAME] had information that such funding was available, they should provide it to the Applicants. The Board is of the view that these statements are not sufficient to convince the Board to deviate from its position that the starting point for interim costs is 25 percent of eligible interim costs. The Board is also of the view the onus is not on [NAME] to provide the Applicants information about alternative sources of funding. [ 163 ]                                Further, the Board is also of the view, that the eligible interim costs should be reduced by one third as the Applicants have not provided any evidence that the interim costs claimed relate only to the Applicants not [NAME] under the cost sharing arrangement. [ 164 ]                                Therefore, the Board awards interim costs of $6,410.25 determined as follows: Hourly Rate Estimated Hours Eligible Interim Costs GST Total Eligible Interim Costs 2/3 25% [NAME] $315.00 52 hours $16,380.00 $819.00 $17,199.00 $11,466.00 $2,866.50 Legal Fees $225.00 90 hours $20,250.00 $1,012.50 $21,262.50 $14,175.00 $3,543.75 Total Interim Costs Award $6,410.25 [ 165 ]                                The Board further notes the interim costs award can be varied when the Board considers final costs which means that the Board may, where circumstances warrant, require the Applicants to repay to [NAME] all or part of the interim costs awarded or may, where circumstances warrant after consideration of final costs, award additional costs to the Applicants. By indicating these possibilities, the Board is not suggesting what course of action it will take if final cost is requested by any party. 6.1.                                     Application of Duty of Procedural Fairness [ 166 ]                                The Applicants argued their right to be heard by the Board in the appeals is tied to an award of interim costs and the decision of the Board to provide interim costs is part of the Board’s obligation to afford them due process. The Applicants submitted that without an award of interim costs, they will not be able to adequately participate in the appeals. [91] [ 167 ]                                The Applicants submitted the right to a fair hearing is one of the pillars of procedural fairness and applied the factors set out in [NAME] to argue the [NAME] are entitled to a higher degree of procedural fairness weighed in favour of an award of interim cost. The Applicants further argued that an application of the [NAME] factors militates in favour of an award of interim costs to ensure the Applicants have an opportunity to be heard before the Board. [ 168 ]                                The Applicants submitted they were owed a higher degree of procedural fairness because: 1.                   the nature of the hearing was adjudicative; 2.                   the nature of the statutory scheme ([NAME]) entitles the parties to a hearing and empowers the Board to grant interim cost; 3.                   the decision was important to the Applicants because it concerns access to clean drinking water and their health and safety; 4.                   [NAME] and the Regulation empower the Board to award interim costs which creates a legitimate expectation of an award of interim costs and the Board will grant those costs where there is a demonstrated need for them; and 5.                   the Board chose to schedule a full hearing of the appeals. [ 169 ]                                [NAME] does not agree that procedural fairness enhances or bolsters the applicant’s entitlement to interim costs. [NAME] argued the law does not support a concomitant relationship between a party’s entitlement to procedural fairness and entitlement to costs. [NAME] argued the power to award interim costs under [NAME] is discretionary and that sections 18 and 19 of the Regulation limit the basis for awarding interim costs to circumstances where such costs are necessary to assist party. [NAME] also noted that neither [NAME] nor the Regulation require the granting of costs to a party entitled to procedural fairness. [ 170 ]                                [NAME] also referred to the common law test for an award of interim costs stating that nowhere in the common law test is there a reference to a party’s entitlement to procedural protections or process as being a consideration in an award of interim costs. The [NAME] further argued the common law test for interim costs was focused on whether financial assistance is absolutely necessary for a party to advance and “whether a lack of financial resources that will result in a case that justice demands to be decided not to be decided at all.” [92] [ 171 ]                                [NAME] noted the Applicants argued procedural fairness was one aspect the Board should consider when deciding whether to grant a request for interim costs. However, [NAME] submitted that neither the common law, [NAME] or the Regulation support procedural fairness as a factor that should be considered with respect to an application for interim costs and accordingly the [NAME] factors are not a relevant consideration. [ 172 ]                                [NAME] further argued a party may be entitled to a high degree of procedural fairness but not be entitled to an award of interim costs. [ 173 ]                                The Applicants argued [NAME] misstated the law of procedural fairness as all processes offered by an [NAME] are discretionary and ultimately the Court on judicial review would determine whether an [NAME]’s procedural choices were correct. The Applicants further argued the [NAME] factors need to be considered to determine if a procedure was merited. In this case an award of costs is one type of procedure the Board can use to ensure a party is afforded the right to be heard. [ 174 ]                                The Applicants submitted [NAME] confused the term need and necessity. The Applicants argued need was one factor the Board may consider to prove an entitlement to interim cost but necessity has no bearing on a party’s entitlement to a certain procedure. [ 175 ]                                The Board is of the view that the Applicants are asking the Board to have [NAME] pay the interim costs of the Applicants because the Applicants have established the need for interim cost and that they are owed a higher degree of procedural fairness which furthers their entitlement to interim costs because of the nature of the proceedings and statutory scheme, the importance of the decision before the Board, the Applicants’ legitimate expectations and the choice of the Board in scheduling a full hearing. [ 176 ]                                The Board notes that with respect to the doctrine legitimate expectation, the Board is of the view it does not create substantive rights but effects the content of the duty of fairness owed. As stated by the Supreme Court of Canada in [NAME] : “…the legitimate expectations of the person challenging the decision may also determine what procedures the duty of fairness requires in given circumstances. [ADDRESS] has held that in Canada this doctrine is part of the doctrine of fairness or natural justice, and this does not create substantive rights [citation omitted]. As applied in Canada, if a legitimate expectation is found to exist, this will affect the content of the duty of fairness owed to the individual or individuals affected by the decision …” [93] [ Emphasis added by the Board.] [ 177 ]                                Procedural fairness does not guarantee a perfect hearing or the best possible representation; procedural fairness requires a “fair” hearing. In the Board’s view, if a higher degree of procedural fairness is owed to the Applicants by the Board because of the nature of the proceeding before the Board, or because of the Applicants legitimate expectation that the Board will award interim costs, this means that the Board must provide the Applicants a meaningful opportunity to participate in the review process undertaken by the Board regarding their interim costs application as well as at the hearing of the appeals. The Board must also provide reasons for its decisions, including its decision regarding the Interim Costs Application, and for its report and recommendations regarding the appeals, that are justified, intelligible, and transparent and the Board must properly address the Applicants’ claims and the factual record regarding the matters being considered by the Board. However, the Board is of the view the duty to provide procedural fairness to the Applicants in the hearing of the matters before the Board in these appeals should not be conflated with the Board’s discretionary power under [NAME] and the Regulation to award interim (or final) costs. [ 178 ]                                The Board is of the view that procedural fairness provides an appellant the right to participate in proceedings before the Board but does not guarantee an appellant the financial means to participate. Further the duty of procedural fairness extends to all the parties to the appeals, including [NAME]. [ 179 ]                                An award of interim costs is an extraordinary remedy as it forces [NAME] to pay the costs of the Applicants before a finding is made by the Board in the appeals. While the discretionary power to award costs under [NAME] and the Regulation recognizes that in certain limited circumstances the Board will deviate from its starting point that each party is responsible for its own costs to ensure that the Board hears the best evidence on the issues to make the best recommendations to the Minister, the Board will not award interim costs arbitrarily. Fairness is not a unilateral entitlement but a balanced principle that must also protect [NAME] from arbitrary financial prejudice. [ 180 ]                                The Applicants have argued that necessity is not relevant when considering the Applicants procedural right to be heard. The Board disagrees. The legislature through [NAME] provides the Applicants the substantive right to file Notices of Appeal and participate in the hearings of the appeals. Procedural fairness ensures the Applicants have a meaningful opportunity to exercise their substantive rights and the substantive rights granted under [NAME] are not rendered hollow by an unfair process. Interim costs are one procedural remedy to ensure an appellant has a meaningful opportunity to participate in an appeal to ensure the Board hears relevant evidence and argument necessary for the Board to prepare its Report and Recommendation. The Applicants must demonstrate that without interim costs they would not be able to participate in the appeals in a meaningful way and provide relevant evidence to assist the Board at the hearing of the appeals and in its preparation of its Report and Recommendation. [ 181 ]                                In this case, due to the technical nature of the appeals, the Board recognizes the value of legal counsel in assisting them in preparing for the hearing and the importance of hearing from experts in the field regarding the Applicants’ concerns over the impact of the [NAME] on their drinking water. In making its decision, the Board considered the need of the Applicants for an award of interim costs and the plan prepared by the Applicants regarding the use of such an award. However, based on the evidence provided by the Applicants and their [NAME], which was general in nature, the Board was unable to determine the extent to which either [NAME] or [NAME] would assist the Board at the hearing or in making its report and recommendations. [ 182 ]                                Further, while the Board accepts the financial information provided by the Applicants, the Applicants did not provide full financial disclosure of their assets and liabilities, nor did they provide evidence they sought but were unable to obtain alternative funding. Therefore, while the Board found the Applicants were entitled to interim costs, based on the lack of evidence regarding how the Applicants’ legal counsel and [NAME] would assist the Board at the hearing or in making its report and recommendations the Applicants arguments regarding the duty of procedural fairness owed by the Board to the Applicants have not convinced the Board that it should deviate from its starting point of awarding 25 percent of eligible interim costs.

7.

DECISION [ 183 ]                                The Board finds appropriate an award of reasonable interim costs of $6,410.25 inclusive of GST for legal fees and [NAME] costs. [ 184 ]                                The Board directs [NAME] to forward payment to counsel for [NAME], in trust, for interim costs of $6,410.25. These costs are payable within four weeks of the date of this decision. Counsel for [NAME] is requested to provide the Board with written confirmation when the payment of interim costs has been made. Dated on April 10, 2026, at Edmonton, Alberta. -original signed- __________________ [NAME] Board Chair [1]              The Applicants and [NAME] are referred to in this decision as [NAME] as they jointly retained [NAME] to represent them in the appeals. [NAME], however, did not make an application for interim costs. [2]              Code of Practice for Pits in Alberta Application – Revised , [COMPANY]. (May 25, 2023). (Code of Practice) at page 5. [3]              Code of Practice at paragraph 3.0. [4]              [NAME] holds the Registration 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. [5]              Wetland Assessment and Impact Report , [COMPANY]. (the WAIR) (August 2021) at paragraph 1.0. [6]              Wetland Assessment and Impact Report , [COMPANY]. (May 10, 2023) (the WAIR). [7]              WAIR at paragraph 2. See also the Code of Practice at paragraph 5.4. [8]              See Bighill Creek. [9]              Bighill Creek at paragraph 136. [10]            Affidavit of [NAME] sworn September 2, 2025, at paragraph 11. [11]            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. [12]            [NAME] v [NAME] Board 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] Board et al , Action No. 2401-06916, Order of Justice Ashcroft, dated 13 and 24 June 2024 (the Order of Justice Ashcroft). [13]            Applicants’ Initial Submission at paragraph 2 citing section 96 of [NAME] and [COMPANY]. v Alberta (Environmental Appeal Board) , 2001 ABQB 293 at paragraph 23. [14]            Applicants’ Initial Submission at paragraph 3. [15]            Section 19 of the Regulation provides: “Interim costs 19(1)      An application for an award of interim costs may be made by a party at any time prior to the close of a hearing of the appeal but after the Board has determined all parties to the appeal. (2)           An application for an award of interim costs shall contain sufficient information to demonstrate to the Board that the interim costs are necessary in order to assist the party ineffectively preparing and presenting its submission. (3)           In deciding whether to grant an interim award of costs in whole or in part, the Board may consider the following: (a) whether the submission of the party will contribute to the meeting or hearing of the appeal; (b) whether the party has a clear proposal for the interim costs; (c) whether the party has demonstrated a need for the interim costs; (d) whether the party has made an adequate attempt to use other funding sources; (e) whether the party has attempted to consolidate common issues or resources with other parties; (f) any further criteria the Board considers appropriate. (4)           In an award of interim costs the Board may order the costs to be paid by either or both of (a) any other party to the appeal that the Board may direct; (b) the Board. (5)           An award of interim costs is subject to redetermination in an award of final costs under section 20.” [16]            Applicants’ Initial Submission at paragraph 5 citing [NAME] at paragraphs 124 and 125 where the Board considers Cost Decision re: The [COMPANY] ([NAME]) at paragraphs 14 to 17. [17]            Applicants’ Initial Submission at paragraph 7. [18]            Applicants’ Initial Submission at paragraph 16. [19]            Applicants’ Initial Submission at paragraph 14 citing [NAME] at page 5. [20]            Applicants Initial Submission at paragraphs 17, 18 and 21. [21]            Applicants’ Initial Submission at paragraphs 19 and 20, citing [NAME] at paragraph 22. [22]            Applicants’ Initial Submission at paragraph 20 citing [NAME] at section 2(f). [23]            Applicants’ Initial Submission at paragraph 23. [24]            See Applicants’ Initial Submission at paragraph 24 referring to Documentary Evidence of the [NAME] [Documentary Evidence] at page 5. [25]            The Board notes that based on 52 hours of preparation time at an hourly rate of $325.00, the [NAME] fees should have been calculated as $16,900.00. [26]            Documentary Evidence at page 4. [27]            Applicants’ Initial Submission at paragraphs 25 and 26. [28]            Applicants’ Initial Submission at paragraph 27. [29]            See Applicants’ Initial Submission at paragraph 30 and 31 referring to Documentary Evidence at page 35 where the Applicants provided a summary of the [NAME]’ monthly income and expenses and calculated that it would require seven and a half months for the [NAME]’ to pay their estimated 33% share of the costs of the appeal out of their residual income. [30]            See Applicants’ Initial Submission referring to Documentary Evidence at page 37 where the Applicants provided a summary of [NAME]’s monthly income and expenses indicating that [NAME] did not have any residual income available to pay the costs of the appeals. [31]            Applicants’ Initial Submission at paragraphs 32 and 33 citing [NAME] at section 2(f) and section 2(g). [32]            Applicants’ Initial Submission at paragraph 33. [33]            Applicants’ Initial Submission at paragraphs 12 and 36. [34]            Applicant’s Initial Submission at paragraph 9 citing [NAME] at paragraph 22. [35]            Applicants’ Initial Submission at paragraph 10. [36]            Applicants’ Initial Submission at paragraph 11 citing [NAME] at headnote. [37]            Applicants’ Initial Submission at paragraph 34. [38]            Applicants’ Initial Submission at paragraphs 35 and 36. [39]            [NAME]’s Response Submission at paragraph 2. [40]            The Board notes it determined the directly affected status of [NAME] in Directly Affected Decision: [NAME] . [41]            Section 19(1) of the Regulation provides: “19(1)    An application for an award of interim costs may be made by a party at any time prior to the close of a hearing of the appeal but after the Board has determined all parties to the appeal.” [42]            [NAME] at paragraphs 3 and 40. [43]            [NAME]’s Response Submission at paragraph 9 through paragraph 12. [44]            [NAME]’s Response Submission at paragraph 9 setting out the factors the Board may consider when making a decision to award interim costs as follows: “ (a)         whether the submission of the party will contribute to the meeting or hearing of the appeal; (b)           whether the party has a clear proposal for the interim costs; (c)           whether the party has demonstrated a need for the interim costs; (d)           whether the party has made an adequate attempt to use other funding sources; (e)           whether the party has attempted to consolidate common issues or resources with other parties; (f)            any further criteria the Board considers appropriate.” [45]            [NAME]’s Response Submission at paragraph 10 citing [NAME] at paragraph 30. [46]            [NAME]’s Response Submission at paragraph 11. [47]            [NAME]’s Response Submission at paragraph 12. [48]            [NAME]’s Response Submission at paragraph 13. [49]            [NAME]’s Response Submission at paragraph 14. [50]            [NAME]’s Response Submission at paragraph 15. [51]            [NAME]’s Response Submission at paragraph 16. [52]            [NAME]’s Response Submission at paragraph 17. [53]            [NAME]’s Response Submission at paragraph 18. [54]            [NAME]’s Response Submissions at paragraphs 19 and 20 citing [NAME] on the Law of Costs, [NAME], Rel. 2, 4/2024 at pages 2-106 and page 2-107. [55]            [NAME]’s Response Submission at paragraphs 21 and 22. [56]            [NAME]’s Response Submission at paragraphs 23 and 24. [57]            [NAME]’s Response Submission at paragraphs 25 and 26. [58]            [NAME]’s Response Submission at paragraphs 28 and 31citing [NAME] at paragraphs 56 and58. [59]            [NAME]’s Response Submission at paragraphs 29, 30 and 32. [60]            [NAME]’s Response Submission at paragraphs 32. The Board notes that while [NAME] submitted that the Board should use the annual salary as an estimate of overhead, as was the case in [NAME] estimated overhead to be $163,421.03 (which is different than the estimated annual salary of $163,853.30). The Board notes that if [NAME]’s estimated annual salary of $163,853.30 was used as an estimate of overhead, the estimated hourly rate is calculated as $229.97/hour not $227.97/hour as submitted by [NAME]. As the difference between the two rates is only $2.00, the Board will refer to the rate determined by [NAME]. [61]            [NAME]’s Response Submission at paragraphs 33 to 35. [62]            [NAME]’s Response Submission at paragraph 35. [63]            [NAME]’s Response Submission at paragraph 36. [64]            [NAME]’s Response Submission at paragraphs 37 and 38. [65]            Applicants’ Rebuttal Submission at paragraphs 2 and 3. [66]            Applicants’ Rebuttal Submission at paragraphs 4 and 5. [67]            Applicants’ Rebuttal Submission at paragraphs 6 to11. [68]            Applicants’ Rebuttal Submission at paragraphs 10 and 13. [69]            Section 19(3)(d) of the Regulation states: “19(1)(3)               In deciding whether to grant an interim award of costs in whole or in part, the Board may consider the follow: … (d)           whether the party has made an adequate attempt to use other funding sources;” [70]            The Board notes that in the Applicants’ Initial Submission, the Applicants stated [NAME]’s rate was $325.00 per hour and in the Applicants’ Rebuttal Submission, the Applicants stated [NAME]’s rate was $315.00 per hour. [71]            Applicants’ Rebuttal Submission at paragraphs 21 to 23 citing [NAME] at paragraph 49. [72]            Applicants’ Rebuttal Submission at paragraphs 24 and 25. [73]            Applicants’ Rebuttal Submission at paragraph 26. [74]            [NAME] at paragraph 23. [75]            [NAME] at page 8. [76]            Cost Decision re: [NAME], 2000 ABEAB 41 at paragraph 25 [77]            [NAME] at paragraph 38; Costs Decision: [COMPANY]. et al . v Director, Regional Compliance, South Saskatchewan Region, [NAME] , 2022 ABEAB 6 ( [NAME] ) at paragraph 37. [78]            [NAME]. [79]            [NAME] v Director, Northern Region, Environmental Management, [NAME], re : Evergreen Regional Waste Management Services Commission, 2010 ABEAB 4 ( [NAME] ) at paragraph 43. [80]            [NAME] at paragraph 124. [81]            [NAME]. [82]            Section 19(1) of the Regulation states: “19 (1)     An application for an award of interim costs may be made by a party at any time prior to the close of a hearing of the appeal but after the Board has determined all parties to the appeal.” [83]         “Section 115(1)(a)(i) A notice of appeal under this Act may be submitted to the Environmental Appeals Board by the following persons in the following circumstances: (a)           if the Director issues or amends an [NAME], a notice of appeal may be submitted (i)            by [NAME] or by any person who previously submitted a statement of concern in accordance with section 109 who is directly affected by the Director’s decision, if notice of the application or proposed changes was previously provided under section 108…” [84]            [NAME] at page 5. [85]         The Board notes that the Registration for a gravel pit under [NAME] is not appealable. For example, in [COMPANY] v Director, Regulatory [NAME], re; [COMPANY], 2024 ABEAB 20 at paragraph 17, the Board found: “In considering the directly affected status of the [NAME] in these appeals, it is important to keep in mind a clear distinction between the work authorized by the Registration [under [NAME]] which is not appealable to the Board), and the work authorized by the [ Water Act ] [NAME] (which is appealable to the Board). The Registration 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, [86]            Applicants’ Rebuttal Submission at paragraphs 23 and 25 citing [NAME] at paragraph 49. [87]            Documentary Evidence of the [Applicants] at page 5 [88]            See: Appendix A – Environmental Appeals Board Costs for Legal Counsel. [89]            [NAME] at section 2(f). [90]            [NAME] where the Board stated: “As  the  Board  does  not know at  this stage  of  the process how  much assistance the Appellant’s experts and legal counsel will provide  to the Board in  making  its  recommendations,  the Board will award  25 percent of  the eligible interim  costs  to  the Appellant. This is based on the starting point for final costs, which is usually 50 percent and, therefore, the Board will award half of its starting point for interim costs.” [91]            Applicants’ Initial Submission at paragraphs 12 and 36. [92]            [NAME]’s Response Submissions at paragraphs 19 and 20 citing [NAME] on the Law of Costs, [NAME], Rel. 2, 4/2024 at pages 2-106 and page 2-107. [93]            [NAME] at paragraph 33.