Who should pay the costs, when a public interest intervenor
succeeds before an administrative tribunal? The Alberta Environmental Appeals Board
awarded an intervenor $76,067, payable by the Town of Turner
Valley. Ms. Walsh, who lives on a disability pension, had persuaded
Alberta Environment and the Board to require additional monitoring
of a municipal drinking water reservoir, over the opposition of the
municipality. Her work "resulted in a better Amending
Approval, one that will ensure the protection of the water supply
for all of the Town's citizens."
Both parties to Walsh v. Director were likely
disappointed with the result. Ms. Walsh had sought costs of
$368,207 against the Town; the Town sought a costs award of
$304,517 against Ms. Walsh. The Town got nothing, because its costs
were properly related to its own application for a approval. The
doubts raised by Ms. Walsh were justified, since the Town had
chosen to put its reservoir in an area formerly used for oil and
Ms. Walsh got nothing for her own time, because participation in
administrative hearings is part of her public duty as a citizen;
she did get $606 for disbursements, and was "commended"
by the Board. Her legal and consulting fees were allowed only for
direct preparation and presentation of evidence at the hearing;
nothing was awarded for any other time spent on the file, such as
site visits, negotiations with the Town, committee meetings,
We cannot tell from the decision whether Ms. Walsh paid her
lawyer and consultants from her disability pension, or whether they
took the case on contingency. In either case, someone was out of
pocket more than $200,000 for participating in this case, and for
protesting a real possibility of public danger from the water
reservoir, and that doesn't count Ms. Walsh's time.
According to the Board, "There is an obligation for each
member of the public to accept some responsibility of bringing
environmental issues to the forefront." No wonder so few
consultants will take public interest work on contingency.
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