Executive Summary: Key Legal and Evidentiary Issues

• Appeals by both the Director and the Community Members Group were dismissed as moot following the expiration of the Department Miscellaneous Lease (DML200008) on January 21, 2025.

• Approximately 410 community members challenged a public lands disposition granting a shooting range lease, citing noise concerns and errors in the Director's determination of material facts and in law.

• The Appeal Board recommended confirming the lease with a noise mitigation condition, but the Minister confirmed the disposition without requiring the noise reduction plan.

• Procedural fairness was contested when the Appeal Board refused to admit three reports on environmental considerations, acoustics, and property values submitted by the Community Members Group.

• On judicial review, the lower court found certain aspects of the Appeal Board's decision unreasonable regarding the absence of a wildlife survey and wetland specialist input, and quashed the Minister's decision.

• No collateral consequences or special circumstances justified expending scarce judicial resources to resolve the moot appeal under the Borowski factors.

The disposition of public lands for a shooting range

On January 22, 2021, the Director of the Industrial Charges Unit, Public Land Disposition Management Section, Alberta Environment and Parks issued a Department Miscellaneous Lease (DML200008) over public lands located in the County of Grande Prairie No. 1 to the Saddle Hills Target Sports Association. The lease was issued pursuant to the Public Lands Act, RSA 2000, c P-40 and the Public Lands Administration Regulation, Alta Reg 187/2011, for a recreational development purpose. Saddle Hills proposed to develop a shooting range. Subject to the terms and conditions set out in DML200008, including the obligation to "obtain federal, provincial, municipal, and other permits and approvals, as applicable, with respect to activities that may take place on the lands", the disposition gave Saddle Hills the right to "enter, occupy and use" the lands for the limited shooting range development purpose.

Community opposition and the appeal to the Public Lands Appeal Board

The Gordeyville and Area Community Members Group, comprised of approximately 410 people who lived near the proposed shooting range, appealed the Director's decision to the Alberta Public Lands Appeal Board. The group claimed standing as persons "directly and adversely affected" by the Director's decision to issue DML200008. They argued the Director had made various errors in the determination of material facts and in law. A primary concern — and one that anchored the "directly and adversely affected" analysis — was the Community Members Group's concern about noise from the proposed shooting range. They also argued the Director's exercise of discretion was unreasonable for issuing DML200008 without requiring public consultation, a wildlife survey, a reclamation plan, or input from a wetland specialist and wildlife biologist, and that the Director's file was effectively incomplete. The Community Members Group further argued that the Appeal Board breached its duty of procedural fairness by refusing to admit three reports they had obtained with respect to environmental considerations, acoustics, and property values. The Appeal Board refused to admit the three reports because: a) the new materials were submitted outside of the Appeal Board's instructions regarding applications; b) admitting the new materials would be unfair to Saddle Hills and the Director; and c) the new materials did not meet the Appeal Board's criteria for admitting new evidence.

The Appeal Board's recommendation and the Minister's decision

On December 16, 2021, the Appeal Board recommended that the Minister confirm the Director's decision to issue DML200008, with one variation: adding a condition that Saddle Hills "submit a noise mitigation plan to [Alberta Environment and Parks] for review and approval, prior to any clearing, construction or development of the Disposition." The Minister was not required to follow the Appeal Board recommendations and did not do so in this case. Exercising his powers under section 124(3) of the Act, the Minister confirmed the Director's decision to issue DML200008, without a requirement that Saddle Hills submit a noise reduction plan to Alberta Environment and Parks for review and approval. The Minister explained that in his view, "the management of noise is best left to recommendations from Alberta's Chief Firearms Office and the RCMP." Further, in the Minister's view, "the County of Grande Prairie No. 1 has the ability to address" the noise issue. He noted that "the County has jurisdiction over noise and has already passed a Bylaw to address noise."

Judicial review before the Court of King's Bench

The Community Members Group filed an originating application seeking an order in the nature of certiorari quashing the Appeal Board report, the Minister's decision, and the associated DML200008. In the alternative, they asked for an order remitting the matter back to the Appeal Board for reconsideration. On November 7, 2024, Justice J.D. Lee released his decision (2024 ABKB 649). He found that certain aspects of the Appeal Board's "decision" were unreasonable; namely, its findings that the Director had reasonably exercised her discretion in issuing DML200008 without requiring a wildlife survey or input from a wetland specialist and wildlife biologist. The judicial review judge decided that the Director's file was in this way incomplete, which in his view, "hindered" the Community Members Group's "ability to rationally connect" two of the reports they sought to have admitted "to the Director's record." The judicial review judge quashed the Minister's decision and ordered the matter be remitted to the Appeal Board for reconsideration "on the issues deemed unreasonable" with the requirement that the Appeal Board admit two of the Community Members Group's reports regarding environmental considerations and acoustics.

The appeals to the Court of Appeal and the mootness determination

Both the Director and the Community Members Group filed notices of appeal of the judicial review decision on December 4 and December 5, 2024, respectively. However, the term of DML200008 expired on January 21, 2025, and no application to renew it was made. Saddle Hills filed no material in relation to the appeals and did not appear at the hearing. The parties present at the hearing agreed that with the expiration of DML200008, the "tangible and concrete dispute has disappeared and the issues have become academic." The Court of Appeal of Alberta, comprising Justices Kirker, Woolley, and Feth, applied the factors set out in Borowski v Canada (Attorney General), [1989] 1 SCR 342 to determine whether it should exercise its discretion to hear the moot case. The Court was not satisfied there were collateral consequences that supplied the necessary adversarial context to properly enable it to decide the issues. Saddle Hills was no longer involved, and the Community Members Group indicated no desire to remain involved. Although the Director and the Appeal Board submitted that they may benefit from some direction on what can be admitted as new evidence on an appeal under the Act, the Court found that the judicial review decision was highly fact-specific and made no suggestion the Appeal Board should apply a different test in determining whether it will consider new evidence.

Outcome and observations on the lower court's approach

The Court of Appeal dismissed both appeals for mootness. The Court emphasized that its decision would have no practical effect on the rights of the parties, there was no concern that an important question might independently evade review if the appeal was not heard, and this was not a case where there was a social cost in leaving an important question of public importance unanswered. Notably, the Court made clear that its reasons should not be taken as an endorsement of the judicial review judge's approach. In finding that the Appeal Board's decision was unreasonable on several of the grounds raised by the Community Members Group, the judicial review judge's focus appeared to be on a Landscape Analysis Tool report generated by Saddle Hills for its disposition application. He did not meaningfully explain how the Director's decision was unintelligible or unjustified with reference to the statutory provisions governing the Director's exercise of discretion, nor did the judicial review judge address the issues raised by the Community Members Group in relation to the reasonableness of the Minister's decision. No exact monetary amount was awarded or ordered in this case, as the appeals were dismissed on mootness grounds without any determination on the merits.