Season 1, Episode 12: Gravel and Goals

Highlights with Rocky View, Red Deer, and Mountain View Counties

In this episode, The Gravity Well changed things up. Mark Dorin, of the Polluter Pay Federation, Colin Smith, and I co-host a few groups facing gravel pit activities in their communities. Firstly, you hear about 13 wetlands being destroyed, though a request for the activities to cease (having a stay) and an appeal is underway to protect the fourth largest Spring in Canada, Big Hill Springs in Rocky View County.

Then we hear about the eight gravel pits in South McDougal Flats, Mountain View County which have been instructed, by the Alberta Energy Regulator (AER), to allow water trucks to such groundwater from the gravel pit sites when water levels are dropping by meters across the 400 homes in the area, and six local water wells have tested positive for elevated toxins. Water from the pits is being hauled away for hydraulic fracturing “frac’ing” operations for Liquified Natural Gas (LNG) wells in Central Alberta.

Asides:

1. Water used for frac’ing is being removed from the ecosystem, even the water that returns is disposed of. Using freshwater for frac’ing is not good for production, either. It introduces bacteria, degrades the gas/oil (introduces H2S), and lowers production rates/revenue.

2. Water well levels dropping by meters is a common concern across Southern Alberta beginning in the spring of 2023.

Before Mark offers his reflections, we hear about the 30+ year battle with gravel pits in Medicine Flats in Red Deer County. There are at least two wells with known turbidity and contamination in the areas, and many residents are concerned about new gravel pits being proposed. How their local Member of the Legislative Assembly (MLA) candidate, their provincial representative, assured residents that they would not proceed with further gravel extraction. How the day after the May 29, 2023 election, the Provincial government approved a new gravel pit!

Welcome to The Gravity Well where we break down heavy ideas into small buckets anyone can handle! Our mission is simple. To set aside our differences and collaborate with others through conversation and process. Together we can face our dilemmas and make the world better for all.

In the spirit of truth, we acknowledge we are settlers on Blackfoot Treaty 7 and Metis Region 3. We take reconciliACTION by seeking the wisdom of elders and principled individuals who aim to restore water, air, land, life, and community. A healthy living relationship with our homeland and each other is our guide.

Listen to Rocky View County Gravel Pit Neighbours

Muriel:

My issue is with the gravel pits next to Big Hills Springs Provincial Park, we live right adjoining, practically, the prospective gravel pits and our water could be compromised. Hillstone has an operating gravel pit. It’s been operating for some years, monitoring and sending in reports that are not being questioned or made to report. It makes us wonder what’s going to happen with the others [proposed gravel mines]. There are several [gravel pits] in a row, about six that are immediately next to the headwaters of the Big Hill Springs Provincial Park. The one that has been approved and is under appeal right now, both by the Big Hill Springs Preservation Society, myself, and others. It’s 800 meters away from the headwaters of the spring. These springs feed the Big Hill Creek, which then empties into the Bow River, we’re talking pristine water “the 4th Largest Spring in Canada”. It holds this ranking, it’s a very important spring, and Rocky View [council] said, “Go ahead.”

[New gravel pit applications] went forward to Alberta Environment and Protected Areas (AEPA) and they approved it. An appeal is underway, the Big Hill Springs Preservation Society asked for a stay so they wouldn’t begin [mining], but AEPA allowed them to start anyway. There are 13 wetlands on that one piece of property, the one Mountain Ash property, and that’s being allowed to be wiped out to make a berm to protect from dust and that to our properties. Not by the park, but everything that goes before the development board or before the county [is approved].

Then gets AEPA approved. We’re talking water [loss and contamination], dust, and noise. The huge equipment that they use to grind up the gravel will be right next to Big Hill Springs Park. The prevailing west winds will carry it into the pond and it’s a wildlife corridor. The noise will be horrendous, as well. And yet the AEPA says, “It’s okay” “They’ll monitor” and “If it contaminates the water, well then they’ll be asked to stop at that point”. Water doesn’t get decontaminated that easily. The board has said that stopping Mountain Ash would be too expensive or difficult for them, they shouldn’t have started in the first place.

Lyse:

[The gravel company] dug a berm and AEPA said they couldn’t allow a stay because they had already done the work.

There was an ARP meeting and the county and the [public] were supposed to reach a consensus. They only agreed on three points between the industry and [the county and the public], but the industry does not believe in setbacks. We [discussed] being 800 meters from the headwaters and one meter [above the aquifer]. [The county and the industry] don’t believe in this. The [public] thought they should provide some money, increase the levy from 40 cents per ton of gravel, but giving into the [public}, they don’t want to support these groups at all. Also, there was no agreement on cumulative impacts. Interesting, as Rocky View County had done a biophysical attribute rating. Rating, the biodiversity, the water, and so on, in 2003. This study wasn’t provided to the group or the council.

Now Listen to Red Deer County Gravel Pit Neighbours

Jody:

We have some private pits by us as well as a municipal gravel pit. We are in Red Deer County. In our situation, we’ve had multiple public hearings. In 2020, [council] passed [new mines] and added the land beside us into the gravel district overlay. We were told the same as Dale and Adele that we had no appeal option. What ended up happening about two weeks after the bylaw got overturned, they reapplied for the same bylaw and we dealt with that for another two years. It came up under three different bylaws, and then in July of last year, the council ended up voting on it. We’re immediately adjacent to the Red Deer River and the land beside us has been designated as an environmentally significant area. There were concerns given its proximity to our water well, that we would lose our water. Well in 2022 we discovered our water well was contaminated.

During this whole process, it was unknown what the cause was, but coincidentally, the municipal gravel pit uphill from us had been digging what appears to be in the groundwater. You can see it from satellite imagery as they were expanding their operations and getting further in the water, we saw turbidity starting in our water and then it became contaminated and not drinkable. The municipality filed for a Water Act application to mine in the groundwater. They’ve applied now to have end pit lakes. They were approved even though we sent in a statement of concern and we’ve now filed that with the Alberta Environmental Appeals Board and we’re going to mediation with that next week. We now have a very shallow water well because of economic reasons, our only option. We had to try this first and our water well is only 15 feet deep that we’re using.

It’s supplying more water now than we had from our other well. Our concern is that they will be permitted to dig in the water table right uphill from us. Then we’ll end up seeing contamination or losing our shallow water well. We’ve been told that it won’t impact it at all and they’ve said that the water, even though they’re almost directly straight south of us uphill, they say the water will be flowing to the east because that’s the way the surface goes, not downhill towards the river towards us.

Adele:

A little bit of history, back in about 1997 or 98, a previous owner had applied to mine the same piece and it was approved at the county level. We appealed it. The county upheld the approval but told them they had to measure our water table to commit to staying above it, and the water table at that particular year came in at 2.7 meters below the surface, they did a little digging and before they hit gravel, they hit the water so they took their toys and left. Subsequently, they sold it to the current owners who said, “We know better. We can do it better. We’ll do it just fine.” This whole area is a valuable aquifer that feeds downstream, serves ourselves and downstream users. Dale and her family have been in this contest of wits long before we came and they’ve been kind of our guiding force, but there’s a small group of us here who are currently having a decision made by Albert Environment under appeal. Ironically, we had to have our statements of concern in August of 2020 and the day, the morning after the election last spring, we got the notice that it had been approved. Can you spell disingenuous?

Jenny:

You were on the Red Deer River Watershed Council for years, correct?

Dale:

Yeah, for about 20 years. Yep. That’s a watershed, WPAC. Back when we had something called a “Water for Life” strategy. They divided the province into these WPACs, Watershed Planning and Advisory Committees, and we thought we did some pretty good work there. We got a bunch of the WPACs on the South Saskatchewan Basin to send in a joint letter that extolled how wonderful floodplains are and sent a lot of scientific information about staying back from the river. The province has spent lots and lots of our money on stepping back from the river. All kinds of different propaganda where [they say] “everybody should protect the water” and yet they won’t protect the water themselves.

We’re all trying to work together here to get a voice that can be heard because the way we are right now, we’re just victims of the landscape being picked off one by one, our rights are being trampled all over. Nobody wants to listen to us and they have these ridiculous excuses. Wordsmithing water management, not river water management. They leave, they do everything in silo, not cumulative like it’s supposed to be. They have laws, the Cumulative Impact Assessment Act, and… for some reason, they just ignore it.

Lastly Listen to Mountain View County Gravel Pit Neighbours

Neil:

Yes. My name is Neil Konner, this is Christina McCharles, and my wife Joyce.

Joyce:

Hi, Neil is speaking on behalf of me.

Neil:

We all live in the South McDougal Flats area, which is West of Sundre, South of Highway 584, and North of the Red Deer River. Our Area Structure Plan is within roughly a six-kilometer square area. There are well over 350 families in this area. There’s West Fraser, a lumber manufacturer, a golf course, and some three-season homeowners. There’s about 400 of them and we’re surrounded by eight gravel pits now and within this area, each one of these pits has got what I would call a dark side to it brought forward through the municipality. There’s such a history of each pit. It’s not enough time to describe For the timeframe we have we have three pits that are into the water table and they’re pushing frack water out of these three pits to the tune of, what we calculated with their temporary divergent licenses, about 680,000,000 liters of estimated water for this year.

We are on the headwaters of the Red Deer River. The aquifers in this area are all bidirectional, and multi-directional between the Red Deer River and Bearberry Creek, which lies to the north of us. It’s an alluvial aquifer that is sensitive to anything that can penetrate the surface. The people that we’ve talked to just don’t understand the situation here. Our last go with the municipality was a hearing for the area structure plan (ASP) and we had several speakers. The foundation of the speeches was about water, which is above any other development condition because this is what we’re facing. To this date, the municipal or Mountain View County has passed the area structure plan without any studies…

Christina:

Wildlife studies, [any species at risk], or flood zone [mapping].

Neil:

There are no studies whatsoever presented with this. They’ve null and void the previous area structure plan or any other noted study. This has all gone through.

Can we appeal this area structure plan hearing with the mountain view? We have appealed West Can Seal Coating and we lost with the Land Tribunal. We tried another appeal. At one particular time we tried to appeal, our counsellor was supposed to have notified our division, and people in the area, and we lost that because the filing just to obtain that appeal was out by a couple of days. There was lots of intensive activity with professional hydrogeologists and it was turned down. We couldn’t even get an appeal on that. We’ve tried the other avenues with going towards the ombudsman, which is a waste of time.

Our Mountain View County here is latent with Code of Conduct, ethics, and other infractions. It just continuously goes on and on. The Counsellor for Division Five, who is now the Reeve, owns a quarter section of gravel-tested property. It took us a couple of years to put forward a pecuniary interest action against her, so she had to recuse herself, that meant that we have no representation from our council counsellor for any gravel pit, particularly West-Can Seal Coating application up the road for the past 10 years.

We fought that pit for 10 years and then the county brought it in anyway and that’s where we went to the appeal stage. She attended it and voted on the area structure plan as well as in the hearing for the area structure plan. She was chairing and voting as well through that hearing. We believe that there was an infraction with the Municipal Government Act. We’ve counted about three to four different Municipal Government Act infringements from this municipality, but we just don’t quite know how to deal with it.

Christina:

Some of the things that we’ve tried with the municipality are complaints and appeals. We’ve addressed the AER with complaints, we’ve addressed them. The AEPA, once I discovered contamination in my water well. There are probably eight different [contaminated] water wells now out here. Out of 350 different families that we know have gotten proper AHS testing done, toxicology and chemistry testing, on their water wells and they’ve come back toxic. Toxicology has come back contaminated and that’s just the people that [we know] who have done water well testing. Everyone needs to get their water well tested. They could all have water well contamination and are not even aware of it.

We are going to resurrect the South McDougall Flats Area Protection Society. From an accounting perspective, that’s what I’m going to do, and I’m going to start down by the local mailboxes. Start providing pamphlets to get people to get their water wells tested with a sense of urgency because water wells are contaminated in this area.

Try to get that going, an awareness. That’s some of the things that that’s going to happen. Some other things that we’ve tried to address with the municipality are the cumulative effects of these eight gravel pits in six kilometers, but they completely ignore these aspects. Things like traffic, dust, noise. They don’t seem to look at these things in addition to the aquifer protection they ignore it, and say, “Not our problem.” Then we address it with AEPA, we address it with AER, and they say, “Not our problem.” They give us the runaround, “Oh yeah, we’ll come out and have a look. We’ll investigate” and their investigation is bullshit.

In 2012 West-Can, when they first started their application process, did some traffic studies. They did, but they did them in Sundre, not out in the South McDougall Flats area. And then when they went ahead and 10, 12 years later when they reapplied, when the residents had held them off for 12 years, Mountain View County allowed those 12-year-old studies to stand, “Oh yeah, we’ve got some studies that were 12 years old.”

They were done in Sundre and at the wrong time of year. The dust studies, the traffic studies, those will stand and, “You can appeal again” and “we’ll let it go through.” That’s the kind of garbage that’s been going on in this area. Our whole area structure plan completely screams “industry, industry, industry”, and anybody that’s going to take a quarter section that wants to subdivide that quarter section, they say, “We recommend you scrape the gravel off your quarter section for these subdivided and put in cisterns.” Don’t worry about a water well put in cisterns, but scrap the gravel off first.

Key Offers and Takeaways from Mark Dorin and Colin Smith

Jenny:

That was the takeaway I had when we left that hearing a couple of weeks ago. The idea is to extract the gravel, take the water for oil and gas, and then you’ve got land that you can build something off of [without water].

Mark:

Who has the right to make which decisions? Can those decisions be appealed? Or can one apply for a judicial review, like Jody did? That’s going to depend, that’s going to be different if we’re talking about the county’s approval process and the county’s bylaws and that sort of thing versus the provincial process. We’re talking about three different counties tonight, and so one would have to review the bylaws and the actual area structure plans, et cetera. But generally speaking, there are two types of decisions at the municipal level. Some of those decisions would be made, their political decisions. For example, to pass a bylaw, you could compare the county council to the legislature of Alberta. They’re passing a law and they have broad discretion to do so. You could seek judicial review, but generally, they would have to make a pretty big error of law like do something unconstitutional to have something like a bylaw, like an area structure plan overturned.

One thing that would have to be researched in each county is that each county has development subdivision and development boards. I would think, although I can’t say for sure, that any new gravel pit development would need separate approval from a board. Where these counties get mixed up a lot, sometimes counsellors or all of the council make up the development board, sometimes there are only some counsellors on it, and then each county has to have its Development Appeal Board. And again, we have counsellors on there, they often don’t know when to take off their counsellor hat and put on their board hat.

Counsellors are elected to pass laws, but if they’re also on a municipal appeal board or a municipal development board, those decisions have to be according to fact and law, not what they want or what they think their constituents might like. It is pretty common in counties for the local counsellors not to understand any of this. Administrative law is the most complex area of law in our country and it is by a country mile by the most grossly misunderstood area of law.

Moving on, you also need provincial statutory approval. Things like gravel mining are illegal unless you get an approval from an appropriate body to conduct an otherwise illegal activity. And so in this case it would come from Alberta Environment and Protected Areas (AEPA) it’s now called. You’d need approval from what’s called the director there. Those are appealable to the Environmental Appeal Board, but the Environmental Appeal Board is really just making a recommendation to Minister of Environment, who’s Rebecca Schultz at the moment, and those decisions are appealable to the Court of King’s bench. There’s usually two avenues. A judicial review that Jody talked about, that’s sort of a constitutional right that these boards have to make decisions that are reasonably made or correctly made in some instances.

There’s the statute that gives, for example, the AEPA, the power to approve gravel pits. If there’s a clause in there for appeal to the Court of Kings Bench or to the Court of Appeal of Alberta, that would be in the statute. Again, sometimes they try to limit that to matters of jurisdiction, questions of jurisdiction or question of law. It’s a pretty complicated matter to determine whether this decision is sound in the first place, whether one could seek appeal or judicial review, and it almost has to be done on a case by case basis, but it’s very confusing as Neil’s already pointed to, and most people just don’t know what their options and avenues are for appeal, but they’re always there. It’s usually a matter of getting a lawyer or someone who understands administrative law, and there’s very few of those out there that most of ’em are on industry side terms and conditions of approval are important, so it’s one thing to intervene and try to get a project stopped.

Those aren’t that successful, but quite often you can get terms and conditions of approval and then if they breach the terms and conditions, then hopefully you can reopen matters and get them shut down or at least get them to abide by those terms and conditions. I know of a case, I read it for other reasons because it deals with who can have status, but it was exactly for a gravel pit. It was in South Calgary. The name of the case is Court versus Environmental Appeal Board. Court, and this is the family name, the surname of the person is Court. It’s not “the court”. It’s called court versus Environmental Appeal Board, but this woman did successfully appeal and approval of a gravel pit based on dust. She had asthma and she was close by and the Environmental Appeal Board wouldn’t properly hear her appeal and she appealed it to the Court of King’s Bench and Justice McIntyre set out the tests for standing, I believe somewhere around paragraph 69 or so with that case.

He set out, I think for a four part test could be a five part test. I haven’t looked at that case for quite a few years, but this is how you would apply for standing to object to something like a gravel pit. The original, she wasn’t granted standing in the original hearing, and so the court quashed the decision and cancelled the gravel mine approval. The issue was dust and she showed that she was directly and adversely affected and that she had asthma. In my view, this would directly pertain to someone saying, “We have a special environmentally protected area” or something. If there’s dust going into that area, I would think one could probably get one of these things stopped. It’s almost always a David and Goliath story.

I think we all have to do a lot more to raise understanding, and I can assure you your MLAs know pretty much zero about how to make an administrative decision or what these boards do, and they will try to interfere with these boards, which should never be allowed because we’re supposed to have this separation between the administrative branches and the elected branches of government and the judicial branches of government. That’s a basic tenet of democracy that frankly is being totally ignored in this province. If you want to do it, they won’t let you do it, but if industry wants to do it, “No problem at all”. Industry can lobby all the ministers they want and those ministers will interfere with those boards in this province, left, right and center.

We’re a total Banana Republic, lawless province. Let’s be clear and it’ll get worse. I assure you, the boards I deal with once we got Ms. Smith as premier, they went like that. They are being interfered with, if you think there’s going to be investment from 400 people in this province in anything including oil and gas, think again. We are a Banana Republic of the worst sort. Be careful who you vote for.

Neil:

Ian Skinner and his friend Mike, who were supposed to be on. I’ve been talking with Ian extensively and apparently there are some maps, some studies done by various municipalities for water well monitoring, and he sent them to me. Now, ironically, the north part, the Mountain View County has got multiple mapping done towards it. I forget the name of the town, but we don’t have anything done here like that. The other thing is that he suggested that we should look at a class action lawsuit.

Christina:

It sounds like most of our problems are very parallel when it comes to water and gravel pits and protection of our lands.

Colin:

You are at the forefront of land and water protection and the issues that you’re facing are, it’s mind boggling to hear the regulatory and political and legal complexities of protecting your own drinking water and that of water that our economy relies on. I know that there’s many people across the province that are unaware of your plight, but if they heard about it, they would 100% want to support you. I just thank you for the work that you’re doing, and me and Jenny are committed to growing this work and the awareness and the organising behind this.

Jody:

One thing to share with some of the people that are new here that I haven’t met before is, in my experience, taking some time to FOIP to try to get documents. If you’re in your individual matters, you might get a lot of blackout stuff, but you might be surprised what you might find that might assist you. But it all really ties back to what Colin talked about, trying to do land and water protection and some rehabilitation of those areas before they’re lost permanently. The only way I can see us achieving this is somehow having a larger public understanding of what we’re dealing with.

Unfortunately, my own personal circumstance, what we’ve had to deal with with the gravel and the water has laid a contributing factor to me having a child in hospital. Those are those pieces that people don’t realise how we have such broad impacts. If we don’t make changes now, it might be too late to make changes. I look at what’s happening with Neil’s group up at the headwaters, Adele and Dale. Those are the areas that once they’re lost, we can’t go back and fix those. Many more people need to understand what’s happening, and I think it’s that we have a lot of laws and legislation that are already in place to try to protect these things. Do you

Jenny:

Do you know about the Big Hill Springs event? I just saw that the AWA is hosting an event for you guys, because to me that’s a great way to bring people into the amazing space that the Big Hill Creek is.

Neil:

Janelle belongs to Save the Bull Trout, I finally got a hold of her today and she’s taking a trip to Vancouver to meet some special people, and she wants to put her name in this chat line. She’s got a wealth of information with contacts and whatnot in the background. Amazing. She also sent me a bulletin here that Sundre Community Centre on May the Third between 9 and 2:30 is a Watershed Awareness Expo and it’s $10 for adults. She just sent that to me.

Jenny:

Awesome. Let’s keep the conversation going. Have a good night.