Natural Resources Conservation
Board
GOVERNANCE REVIEW
Report
Report by George B. Cuff & Associates Ltd.
August 30th 2005
George B. Cuff & Associates Ltd.
August 30th 2005
Mr. Brad Pickering, Deputy Minister
Alberta Sustainable Resource Development
9915-108th Street,
11th Floor South Petroleum Plaza
Edmonton, Alberta T5K 2G8
Dear Mr. Pickering:
Re:
Review of the Natural Resources Conservation Board
We are pleased to provide our Report of the Governance Review of the Natural
Resources Conservation Board (“NRCB”). This Report concludes a comprehensive
process of interviews, research, verification and analysis on the matters assigned to us
through the terms of reference. We have reviewed all of the inputs received as a result
of our extensive round of interviews within the NRCB, the applicable departments of the
Provincial Government, producers, the public, representatives of municipal and nongovernmental organizations, members of the industry groups and others who have had
experience in dealing with the NRCB.
We have appreciated the input of all those who have been interviewed (either in person
or by e-mail or telephone) and who have contributed in some way to our Review. The
observations and recommendations are ours, however, and we stand behind all of the
comments contained herein. This represents our view of what the current status is and
what changes we believe would best serve the NRCB as it moves forward in seeking to
conduct its affairs within the scope of its mandate. We recommend that the Minister
share this Report with those impacted by the matters reviewed herein.
Thank you for your faith in our firm to provide assistance in this regard.
Yours very truly,
George B. Cuff, CMC
President
c.c.
Doug Plamping, Senior Associate
Rick McDonald, Associate
Dr. William Wong, Associate
Doug Schindeler, Associate
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George B. Cuff & Associates Ltd.
Table of Contents
1.0
1.1
2.0
2.1
2.2
3.0
4.0
4.1
4.2
4.3
5.0








6.0
6.1
6.2
6.3
6.4
6.5
6.6
6.7
6.8
7.0
7.1
7.2
7.3
7.4
8.0
8.1
8.2
8.3
8.4
9.0
9.1
9.2
Executive Summary....................................................................................... 5
Recommendations ..................................................................................... 7
Background and Terms of Reference .............................................................. 9
Background .............................................................................................. 9
Terms of Reference ................................................................................. 12
Study Methodology ..................................................................................... 13
History of the Organization .......................................................................... 14
Mandate ................................................................................................. 15
Historical Background .............................................................................. 17
History of the Legislation.......................................................................... 18
Key Themes ............................................................................................... 19
Trust in the System ..................................................................................... 19
The Development of Credibility in a New System ........................................... 20
The Regulatory Framework .......................................................................... 21
The Board’s Governance Model .................................................................... 24
Clarity of Mandate and Objectives of the Board ............................................. 26
Administrative Processes and Structure ......................................................... 27
The NRCB’s Business Planning ..................................................................... 29
Board’s Performance and Service Delivery ..................................................... 29
A Summary of Issues of Concern .................................................................. 32
Comments of the Public and NGOs............................................................ 32
Comments of the Industry Associations and Industry Representatives.......... 32
Comments of the Individual Applicants ...................................................... 34
Comments of the Municipalities ................................................................ 34
Comments of the NRCB Board and Senior Administration ............................ 35
Comments of the Other Government Agencies ........................................... 36
Comments of Advisors and Consultants ..................................................... 37
Comments from NRCB Staff ..................................................................... 38
The Legislative and Policy Context ................................................................ 40
Some Background Issues ......................................................................... 40
Our Concerns .......................................................................................... 42
Our Findings ........................................................................................... 43
Our Conclusions ...................................................................................... 45
Governance and Leadership ......................................................................... 47
Background Issues .................................................................................. 47
Our Concerns .......................................................................................... 49
Our Findings ........................................................................................... 50
Our Conclusions ...................................................................................... 57
Administrative Processes and Structure ......................................................... 58
Background Issues .................................................................................. 58
Our Concerns .......................................................................................... 59
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George B. Cuff & Associates Ltd.
9.3
Our Findings ........................................................................................... 59
9.4
Our Conclusions ...................................................................................... 67
10.0 Business Planning ....................................................................................... 68
10.1 Background Issues .................................................................................. 68
10.2 Our Concerns .......................................................................................... 70
10.3 Our Findings ........................................................................................... 71
10.4 Our Conclusions ...................................................................................... 72
11.0 Performance and Service Delivery ................................................................ 73
11.1 Background Issues .................................................................................. 73
11.2 Our Concerns .......................................................................................... 74
11.3 Our Findings ........................................................................................... 75
11.4 Our Conclusions ...................................................................................... 76
12.0 The Need for Balance .................................................................................. 77
13.0 Structural Options ....................................................................................... 79
14.0 Recommendations ...................................................................................... 87
Appendix A –
Terms of Reference ...................................................................... 90
Appendix B –
Historical Background ................................................................... 91
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George B. Cuff & Associates Ltd.
1.0 Executive Summary
The Alberta public has become
increasingly aware of the importance of
ensuring that a delicate balance is
maintained vis-à-vis the oft-competing
economic requirements of developing a
viable
industry
and
the
social/environmental
concerns
of
citizens. While many are very protective
of their own personal environment, they
understand that there may be instances
wherein it is necessary to place the
needs of the greater whole in a
preferential position to that of the
individual. Thus, freeways may utilize
more green space than many desire yet
the need for public safety in a mass
transportation mode is allowed to
override the expectations of those who
see the natural environment as
sacrosanct.
Similarly,
the
odours
produced
by
intensive
farming
operations may be acceptable due to
the importance of the agricultural
industry to the Alberta and Canadian
economy provided that they do not
interfere with the observer’s perceived
quality of life.
The fact that these aspirations clash
from time to time would appear to be
almost
inevitable
given
current
technology and the apparent need for
larger or more diverse operations in
order to remain financially viable. Rural
Canadians have dealt with the inherent
contradictions of living in often beautiful
settings but struggling to adapt to a
changing, often expensive and more
urbanized society that enjoys and
respects the natural environment
without recognizing the challenges of
remaining viable on the family farm.
The agriculture community in Alberta,
like those in other Provinces, has faced
a plethora of regulations and land use
restrictions impacting their right to
develop a viable agricultural business.
This apparent patchwork of municipal
and provincial requirements and the lack
of consistency of application from one
local jurisdiction to another was viewed
by those in the business of agriculture
as adding to their frustration of trying to
develop a farming business that would
be acceptable to the neighbours while
viable economically. These frustrations
were expressed frequently to the
Government who recognized the need
to find a solution that would level the
playing field and enable the agricultural
industry to proceed in a fair and
consistent manner.
After months of deliberation and public
consultation the Government decided to
assign the responsibility of overseeing
the fair administration of applicable
legislation and regulation to the Natural
Resource Conservation Board (referred
to hereafter as the “NRCB”). The Board,
established in 1991, had experience in
reviewing the impacts of often large
scale and diverse projects within the
natural (non-oil/gas) sectors in order to
ensure that they were deemed
acceptable in terms of their social,
economic and environmental impacts.
While there is a framework of
departments and agencies involved in
various ways with regard to ensuring
the
appropriate
management
of
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George B. Cuff & Associates Ltd.
Alberta’s resources and natural areas,
the NRCB was chosen by the
Government as that body most likely to
achieve the aspirations of the various
sectors involved while acting as a
balancing agent and arbitrator of
fairness in an oft-times volatile
environment.
The NRCB was created in 1990 through
the Natural Resources Conservation
Board Act (proclaimed 1991) with the
purpose “…to provide for an impartial
process to review projects that will or
may affect the natural resources of
Alberta in order to determine whether,
in the Board’s opinion, the projects are
in the public interest, having regard to
the social and economic effects of the
projects on the environment.” (NRCB
Act (RSA 2000 Chapter N-3). The Act
has been subsequently amended over
the years (1992,1997,2000-01-02-03).
The Government in 2002 through
changes to the Agricultural Operation
Practices Act (hereinafter referred to as
“AOPA”) impacted the role and mandate
of the NRCB in a substantial way
through permitting the approval of
certain agricultural practices to be open
to an appeal to the Board by any
affected party. This decision to add this
mandate to the NRCB greatly changed
its focus and degree of activity, thereby
also having a direct impact on both
fiscal and human resources.
The Board has been far more active
since 2002 in that its workload has
jumped dramatically and its profile in
the
Alberta
context
has
risen
accordingly. Its mandate puts an onus
on the NRCB Board (hereinafter referred
to as the “Board”) to hear appeals that
are contentious and which draw the
attention of various audiences. Whereas
the Board is expected to rule in a
manner consistent with its mandate, it
must also recognize the obvious and
ongoing conflict between those trying to
maintain (and/or grow) a viable
agricultural business and those opposed
to practices that they feel impinge either
on the environment or on their ability
and freedom to enjoy a reasonable
quality of life. The fundamental nature
of this dilemma or conundrum inevitably
results in an atmosphere of uncertainty
and tension vis-à-vis many of those
matters wherein the Board is expected
to make a ruling.
Whereas the Board seemed wellequipped to deal with matters that fell
under the NRCB Act, and whereas the
matters while significant did not produce
the degree of animosity as has been
evident since the post 2002 world, the
current milieu in which the Board and
NRCB functions is fraught with
discontinuity between industry on the
one hand and the public, nongovernmental
organizations,
local
governments and environmentalists on
the other. The question to be resolved
is whether or not the present legislative
arrangement
and
administrative
responsibilities serve the needs of this
more diverse environment or whether
the issues that have arisen since point
to an underlying flaw that negates the
goodwill of all parties. A further and
obviously ancillary question is whether
or not the contentious nature of the
matters under review can ever be
expected to be resolved other than by a
body which has the mandate of hearing
the issues, reviewing the legislation and
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George B. Cuff & Associates Ltd.
imposing remedies that may be at times
objectionable to all concerned.
At the end of the day, all of those who
participated with us in this Review were
of the opinion that changes were
needed if the system itself was to be
established on a base sufficiently strong
to withstand both the internal and
external
pressures
endemic
to
regulating and balancing economic
sustainability with the public will.
1.1 Recommendations
1
2
3
4
5
6
We
recommend
that
the
Government review the structural
options as presented herein and
determine the appropriate steps to
bring about renewed confidence in
the regulation of matters related to
the current mandate of the NRCB.
We recommend that the mandate
of the NRC Board be limited to that
of an appeal body relative to
matters under both the NRCB Act
and AOPA.
We recommend that the roles of
Chair and Chief Operating Officer
be split with separate position
descriptions for each and that the
latter be re-named the Chief
Executive Officer.
We
recommend
that
the
Government recruit someone to the
role of CEO who has a suitable
background in the key aspects of
the NRCB/AOPA mandate.
We recommend that the Natural
Resources Conservation Board be
established, as a Board of 6-9 parttime members.
We recommend that a Chair of the
revised
Natural
Resources
Conservation (NRC) Board be
appointed,
with
authority
to
oversee
the
responsibilities
assigned to the NRC Board,
including:
identifying members to serve
on “Review” or “Decision”
Panels

serving on panels

drafting decision reports

acting on those other related
duties as assigned.
7 We recommend that the intent of
the Government vis-à-vis the role of
the NRC Board in commenting on or
requiring changes to any practice
that was in operation prior to
January 1st 2002, and policy
guidance to the NRC Board relative
to the issue of “protect the right to
farm” in terms of agricultural
sustainability, be provided through
the provision of a purpose
statement in the AOPA.
8 We recommend that the NRC Board
and Alberta Environment work
towards
streamlining
and
harmonizing their respective roles
and responsibilities.
9 We recommend that a process of
mediation be considered where
appropriate prior to any appeal
being heard by the NRC Board.
10 We recommend that a “Review”
Panel be established at the request
of the CEO of the NRC Agency to
determine whether or not a
decision of the Approval Officer
should be sustained or whether or

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George B. Cuff & Associates Ltd.
11
12
13
14
not the request for an appeal has
sufficient merit to take the matter
to an appeal.
We further recommend that when a
matter is determined by a “Review”
Panel to have sufficient merit to
warrant the appeal being heard by
the Board, that the NRC Board
Chair strike a “Decision” Panel
consisting of three NRC Board
members with the NRC Board Chair
having the right to serve on one of
the panels to hear the matter.
We recommend that the Minister
provide the NRC Board with access
to legal and other support services
as required from time to time.
We recommend that the NRC
Agency take a leadership role on
the development of Business Plans
and
performance
measures,
including a facilitated formal
strategic planning session, a
planned
methodology
of
establishing goals, priorities and
performance
measures,
and
obtaining broad input into the
business planning process.
We recommend that the NRC
Agency conduct a thorough review
of
its
resources
and
the
performance of each regional office
and ensure that the resources are
appropriately allocated and that the
policies of the NRC Agency are
being followed consistently. We also
recommend that the CEO of the
Agency consider the utilization of
the services of the Office of the
Chief Internal Auditor (and/or an
experienced external consultant) to
regularly examine its approval and
compliance processes to ensure
15
16
17
18
19
consistency of decisions across the
Province.
We recommend that the approval
process be reconfigured in order to
require the Director of Approvals to
sign the approvals (recognizing the
need for and acceptability of
variance decisions under AOPA and
the regulations), and that the
current approval officer’s job
function be changed to an
“Application Review Officer”, who
would be responsible for assisting
the client through the process.
We recommend that Government
communicate the approved changes
to the organization to all of the
affected stakeholders in order to rebuild relationships and confidence.
We
recommend
that
the
Government enhance its research
into the options for mitigating
odours associated with confined
feeding operations.
We recommend that the ongoing
review by the external consultant
relative to the appropriateness of
approval/application/compliance
processes of the NRCB be
continued and that consideration be
given to how these standards might
afford some degree of flexibility to
account for variations based on the
significant
geographical
and
topological differences that exist.
We recommend that the new
agency (NRCA) develop processes
to ensure that:

every field officer is trained
in the application and
interpretation of the AOPA
and regulations in approving
applications
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George B. Cuff & Associates Ltd.



2.0
generally accepted standards
of the related professions be
accepted or cause is shown
as to why it would deny the
evidence provided by a
professional
engineer
or
consultant
all applicants are made
aware of the NRC Agency
recommended and approved
processes
for
retaining
external expertise
more detailed guidelines are
provided to all offices and
applicable staff as needed
an ongoing review of its
policies and processes is
conducted with the input of
all
relative
stakeholder
groups being sought.
20 We recommend that the NRC Board
engage an external consultant to
conduct a follow-up review of the
implementation of this Report
within 9-12 months and that the
results of such a review be shared
with the affected stakeholders.

Background and Terms of Reference
2.1 Background
This Review was commissioned by
Alberta Sustainable Resources on April
5th 2005 in response to concerns that
the Government had heard expressed
by those in the agricultural industry visà-vis
the
responsibilities
being
discharged by the Natural Resources
Conservation Board. Given that the
Minister had signed a Memorandum of
Agreement with the NRCB that provided
for an independent review of the latter
within a certain time frame, the
Government decided that such a review
was timely and requested our assistance
in this regard.
Our firm of independent and certified
management consultants made a
commitment at the outset. We stated
that we would examine the organization
through
an
unbiased
lens
as
experienced
and
professional
consultants and make our own
determination as to what the key issues
were and whether or not change was
needed (in our opinion) to enhance the
effectiveness and efficiency of NRCB.
We stated that we would make our
recommendations in light of what we
perceive not only as “best practices” but
also based on our assessment as to
what changes would enable this
organization to function perhaps more
effectively in the future.
The Natural Resources Conservation
Board was established in 1991 by the
Province of Alberta to review nonenergy, natural resource developments
under the authority of the Natural
Resources Conservation Board Act). The
Minister
of
Sustainable
Resource
Development is responsible for the
NRCB Act and the Natural Resources
Conservation Board. The Board’s
mandate was expanded in January 2002
to include the regulation of the confined
feeding industry under the Agricultural
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George B. Cuff & Associates Ltd.
Operation Practices Act. Administering
the Agricultural Operation Practices Act
requires
three
separate
business
functions: assessment and approvals,
compliance and enforcement, and
reviews.
The Renner Report on Agencies, Boards
and
Commissions
and
Delegated
Administrative
organizations
made
recommendations to the Government of
Alberta to improve the governance and
accountability of Agencies, Boards and
Commissions, including the Natural
Resources Conservation Board. Those
recommendations provided for general
improvements in governance and
accountability structures. They included,
in relation to the Natural Resources
Conservation Board that:
 The
Minister of Sustainable
Resource Development and the
Natural Resources Conservation
Board establish a Memorandum
of Understanding, and
 The
Memorandum
of
Understanding not affect the
quasi-judicial role of the Natural
Resources Conservation Board.
On March 26, 2004 a Memorandum of
Understanding between the Minister of
Sustainable Resource Development and
the Chairman of the Natural Resources
Conservation Board to improve the
governance and accountability of the
Natural Resources Conservation Board
in accordance with the Renner Report
was signed.
The
memorandum
identified
the
Government’s expectations of the
Natural Resources Conservation Board,
Natural Resources Conservation Board
members and the Chair of the Natural
Resources Conservation Board as
follows.
“The Minister expects that the Natural
Resources Conservation Board shall:
 Clearly set out for the Minister
how the Natural Resources
Conservation Board intends to
meet its mandate, objectives and
processes, as well as the
expectations of the Minister
 Establish short and long term
Business plans to enable it to
carry out its objectives
 Operate within its legislative
mandate and the policies and
the budget approved by the
Minister and Government and
make the Minister aware of the
effect of the budget on the
quality of service provided by the
Natural Resources Conservation
Board
 Keep the Minister informed of
issues or events that concern or
can reasonably be expected to
be important in the exercise of
the Minister’s responsibilities,
subject to the Board’s quasijudicial duties in respect to
individual
matters
pending
before the Board, particularly
where the Minister’s officials are
or may be a party
 Review its own performance,
soliciting as appropriate the
views
of
employees,
management,
stakeholders,
those members of the public and
officials who appear before the
Board and the Minister. Such
performance reviews shall not
include any review or discussion
regarding any matter that
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10
George B. Cuff & Associates Ltd.
remains before the Board or the
Lieutenant Governor in Council.
 Engage an independent review
of the need for and the
performance of the Natural
Resources Conservation Board
(every 5 years) in addition to
such other matters as the
Minister may direct from time to
time. The Minister shall approve,
in advance all aspects of the
proposed independent review,
including the person conducting
the review. Such a review shall
consider such matters as the
Minister directs, including the
need for and the performance of
the
Natural
Resources
Conservation Board, the Chair of
the
Natural
Resources
Conservation Board and such
matters as may be required for a
regulatory sunset review. The
first such review shall be
concluded by March 31, 2005.
 Ensure that the organization of
the structure of the Natural
Resources Conservation Board
appropriately
separates
the
administrative functions of the
Natural Resources Conservation
Board from the quasi-judicial
functions
of
the
Natural
Resources Conservation Board.”
We were advised that the Government
had heard quite regularly and often
vociferously
from
industry
representatives that the new system
that had been established to regulate
their industry was not consistent with
the tenor of the discussions on the new
arrangement and that a review was
essential if their concerns were to be
clearly heard and resolved. We note that
there is some degree of recognition that
any regulatory body will have difficulty
in satisfying the expectations of the
industry
it
serves.
Industry
representatives seemed to understand
that perspective but still felt that the
kinds of complaints they were fielding
from their constituents spoke to the
larger question of how to approach the
new regime of legislation in a more
flexible, empathetic manner.
It is not that regulation of the industry
had not been happening pre-NRCB.
Local governments were discharging this
mandate through their municipal
permitting requirements and compliance
with the Council-approved municipal
development (or land use) plan.
Increasingly, however, the approach of
Alberta’s
local
governments
was
perceived as highly inconsistent and
municipal permit requirements were
often not enforced. Thus, depending
upon location certain operations might
be approved with limited conditions
whereas
in
other
jurisdictions,
considerably
more
stringent
requirements may have been imposed.
The Province (i.e. Alberta Agriculture
Food
and
Rural
Development)
determined in July of 2001 to take over
responsibility for these decisions,
recommended the AOPA legislation be
amended accordingly, and made the
NRCB its agent to act as the review and
decision body effective on January
2002.
Since that time, the NRCB has been very
active. Its workload has increased quite
dramatically and as evidenced by its
recent annual report that trend
continues. While there have been few
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George B. Cuff & Associates Ltd.
requirements placed on the NRCB
stemming from its original purpose as
enunciated in the NRCB Act, the issues
facing the agriculture community have
continued to be quite substantial. The
livestock industry is one of the largest in
North America notwithstanding the
difficulties it has suffered as a result of
the recent BSE crisis. And although the
broader Alberta community is concerned
about the damage that has occurred to
this vital industry, the concerns of
neighbours to any planned expansions
of livestock also continues apace. These
concerns generally fall into four
categories:
environmental
(land
stewardship
and
water
quality),
economic (impact on residential land
values, need to expand agricultural
operations to remain viable), health (air
and water quality, odour) and social
(impact on communities and disputes
between neighbours).
The statistics provided to us indicate
that
since
its
assumption
of
responsibility for AOPA, the NRCB has
received or conducted:
 more than 500 applications
 more
than
3000
public
complaints concerning confined
feeding operations
 inspections of more than 800
operations
 41 public hearings or mediations
related
to
approval
or
enforcement decisions at the
request of directly affected
parties.
While there have been particular issues
relating to overall performance, it needs
to be acknowledged that the NRCB has
been gaining some ground in terms of
understanding
more
about
the
challenges being faced by those whom it
has been charged with regulating. The
Board and administration alike are
aware of the concerns and are looking
to this Report and the Minister’s
response as providing some useful and
focussed direction relative to their
future.
2.2 Terms of Reference
It has been our purpose to conduct a
review of the matters referred to our
firm by the Minister of Sustainable
Resources in a manner that was open,
transparent and inclusive. We have not
had any prior connection to any of the
Board members, staff of the NRCB or
other key players in this context and
thus there is no conflict of interest or
any pre-conceived notions relative to
how the NRCB functions in relation to its
purpose. We began our assignment with
an open mind and have attempted to
conduct a process that would enable us
to provide a useful perspective on the
terms of reference as assigned to us by
the Minister.
A Review such as this should result in
insights that are deemed to be useful in
enhancing the performance of the
organization. Our Report should enable
the organization to gain a fresh
perspective on what changes could and
should be made in order to address any
needed improvements based on the
concerns and expectations of those
governing the organization, those
serving within it and those affected by
its decision-making processes.
The terms of reference for this
comprehensive Corporate Review of the
NRCB were as outlined in our original
proposal. These follow:
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George B. Cuff & Associates Ltd.
1.
“Conduct a review of the
performance of the Natural
Resources Conservation Board
for the period March 31, 2004 March 31, 2005 as outlined in
the
March
26,
2004
Memorandum of Understanding
between
the
Minister
of
Sustainable
Resource
Development and the Natural
Resources Conservation Board.
2.
Review the clarity of the
mandate and objectives of the
Board.
3.
Conduct an assessment of the
Board’s administrative processes
and structure.
4.
Review the Board’s approach to
short and long term Business
planning.
5.
Review the Board’s performance
and service delivery”.
Our review was to include consultations
with a cross section of:
 NRCB employees, management
and Board members
 Stakeholders,
including
representatives of the livestock
industry,
non-governmental
organizations, municipalities, and
relevant employees of Alberta
government departments and
 Those who have had direct
experience as a result of being
involved
with
the
NRCB
3.0
approvals,
compliance
and
review processes.
All consultations were conducted in
confidence and thus the comments of all
those interviewed will be respected as
confidential. This has been necessary in
order to ensure that we would have
complete access to candid views on the
matters of our Review. We appreciated
the candour of those with whom we
spoke and recognize that without their
input, this Report would be far less
comprehensive.
As a caveat, it needs to be clearly
understood that our Report does not
include an analysis of the work of the
Board in its quasi-judicial capacity, nor
the legislation in any detailed sense
(although we have included comments
relative to certain matters addressed in
our Report) nor does it speak to the
technical aspects of the work being
done by the administration. Rather, we
were asked to describe what we found
as the current state of affairs vis-à-vis
our terms of reference and what
changes we felt could and should be
made
that
would
enable
the
organization
to
function
more
effectively.
Study Methodology
We conducted our Review over the
period of April-August 2005. During this
period of time, we:
Requested and received various
background documentation including
information pertaining to:
reviews of the NRCB legislative and
policy mandate

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George B. Cuff & Associates Ltd.
applicable legislation and regulations
objectives of the organization
Board processes
administrative processes
organizational structure
Business planning processes and results
organizational performance and levels of
service delivery.
 Conducted over 75 interviews which
included:
Members of the NRCB Board
Staff of the NRCB
Members
of
relevant
Provincial
departments including three deputy
ministers
Individuals who have been involved in
the NRCB approval and appeal process
4.0
Representatives of non-governmental
organizations
Representatives of the two Provincial
municipal associations (AUMA and
AAMDC)
Representatives
of
individual
municipalities including both appointed
and elected officials
 We also received numerous calls,
letters and e-mails from interested
parties up to and including a
meeting with northern Alberta
municipalities on July 28, 2005 and
input by others into the early days of
August. Where these inputs were
deemed relevant to our work, they
have been addressed.
History of the Organization
Based on information provided by the
NRCB, the organization had its roots in
two separate events: the Al-PAC review
and the Oldman Dam Review. An
Environmental Impact Assessment Task
Force Report was released in March of
1990 relative to the Alberta-Pacific Pulp
Mill: EIA Review. The need for a board
such as the NRCB was recognized when
the Alberta government encountered
serious process and legal difficulties with
these two major natural resource
project proposals. An EIA Review Board
conducting hearings into the proposed
Alberta Pacific pulp mill in 1989 and
1990 produced an ambiguous result
because the limits of the panel’s
statutory authority were unclear. Its
recommendation to defer the project
was overruled. At about the same time,
opponents of a proposal to build a dam
on the Oldman River forced a federal
environmental assessment review of the
project that had been approved by the
Province.
The
federal
panel
recommended
the
project
be
decommissioned even though it was
already under construction.
The
Alberta-Pacific
Environmental
Impact Assessment Review Board stated
in its report:
"...the Board believes that an
opportunity for the public to be
heard in cases of an EIA being
reviewed should be an essential
feature of the EIA process,
rather than an addition to be
implemented in an ad hoc
fashion for selected reviews
only.....An important principle of
environmental
impact
assessment is that the results of
the environmental review must
be able to influence the decision
about the proposal.....The public
distrust of both industry and
government is, in the Board's
view, sufficient reason for
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conducting hearings before a
panel (or board) which is
independent
of
both
the
proponent and government."
The Natural Resources Conservation
Board Act was assented to in December
1990 and was proclaimed into law on
June 3, 1991. The NRCB was given the
mandate to review major ‘non-energy’
projects
including
forest
industry
projects, major recreational and tourism
projects, mines, water management
projects and other projects referred to it
by cabinet. The new board was modeled
on the long-standing and well-regarded
Energy Resources Conservation Board
(ERCB), which was responsible for the
approval of energy projects. The NRCB’s
first chair was also a former chair of the
ERCB. The NRCB’s purpose (Section 2)
was, “…to provide for an impartial
process to review projects that will or
may affect the natural resources of
Alberta in order to determine whether,
in the Board’s opinion, the projects are
in the public interest…”
In creating the Natural Resources
Conservation
Board,
the
Alberta
government provided a clear statutory
mandate for an independent review and
approval process for those major
projects that were not already reviewed
by the ERCB. The NRCB Act provided
Cabinet with the authority to authorize
cooperative
reviews
with
extraprovincial agencies including agencies of
the federal government, where joint
proceedings were felt to be expedient.
The NRCB has participated in two joint
federal provincial reviews to prevent
potential
duplication
and
conflict
between the environmental review
processes of the provincial and federal
governments.
4.1 Mandate
The purpose of the NRCB Act is to
provide for an impartial process to
review projects that will or may affect
the natural resources of Alberta in order
to determine whether, in the Board’s
opinion, the projects are in the public
interest. This determination is based
upon the perceived social, economic and
environmental effects of the projects. In
essence this requires that the Board
assess all the major effects that would
be expected if the proposed project
were to proceed and reach a conclusion
as to whether the positive effects
outweigh the adverse in terms of the
public interest from a provincial
perspective. A properly conducted
environmental impact assessment would
address
social,
economic
and
environmental issues so that the public
review can completely examine all of
these issues.
The Act provided that the Board was to
consist of at least three members
appointed by Cabinet and that these
members would hold office for a term of
five years from the date of appointment.
The Legislative Assembly could revoke
the appointment of the members. In
1997, the legislation was amended to
remove the requirement for a minimum
of three members. Presently the only
requirement of the Act provides that the
Board shall have a chair and no more
than five full members.
Cabinet has also established a list of
individuals from which the NRCB Chair
may select acting members of the Board
to assist with the review of any
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particular project. While this provides
the Board with greater resources,
flexibility and access to particular
expertise, there was a limited degree of
expectation that much use would be
made of the acting members given the
appointment of full members and the
reality of both budget constraints and
the fact that the acting members may
be difficult to access depending upon
their degree of personal commitments
to other projects.
Prior to the addition of responsibilities
accorded to the Board under changes to
AOPA, the NRCB staff ranged from a
high of nine members to as few as six.
Given the size of the NRCB organization
and its small number and different types
of projects, the NRCB relied on
consultants to provide issue focused
expertise to assist the staff in assuring
that quality evidence was available to
the panel established to consider a
particular project.
Section 4 of the Act specifies the types
of projects that are subject to the
review of the Board. The Board was
expected to review proposals that may
necessitate an environmental impact
assessment including:
a)
forest industry projects
b)
water management projects;
c)
recreation or tourism projects,
and
d)
metallic or quarryable mineral
projects.
The Environmental Protection and
Enhancement Act specifies criteria that
provide for mandatory environmental
impact assessment reports for these
projects if they are over a certain
threshold in size. (It should also be
noted that the list of mandatory
activities
which
require
an
environmental
impact
assessment
includes a number of other types of
projects that would not go before the
NRCB). There are also provisions in
EPEA for the Director or the Minister of
Environmental Protection to require an
EIA for a project where an EIA is not
mandatory. In addition there is provision
for Cabinet to refer additional projects
to the Board which we were advised
occurred on at least two occasions, both
involving the Alberta Special Waste
Treatment Centre at Swan Hills. The Act
provides that the NRCB may, with
Cabinet approval enter into an
agreement with the Federal Government
to conduct a review which, to date, has
resulted in two joint panel reviews with
the Federal government (Pine Coulee
and Little Bow Highwood).
We were advised that the NRCB has,
under the authority of the NRCB Act
conducted the following reviews to date:
 Swan
Hills
Special
Waste
Treatment Centre Expansion, the
Evan Thomas Golf Course, the
Three Sisters Resorts, Westcastle
Expansion
(Pincher
Creek),
Consumers
Paper
(Medicine
Hat), Swan Hills Special Waste
Current Applications - Highwood
Storage and Diversion - Alberta
Transportation;
Completed
Reviews - Agrium Products Inc. Extension of Existing Gypsum
Storage Area; Baseline Mountain
Limestone Quarry Project Alberta Cement Corp.; Dunvegan
Power Project - Glacier Power
Ltd.; Eagle Lake Recreation
Development - Aspen Ranches
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Ltd.; Golf Course at Evan
Thomas Creek - Kan-Alta Golf
Management Ltd.; Lightweight
Coated Paper Mill - Grande
Alberta Paper Ltd.; Little Bow Highwood
Water
Diversion
Project - Alberta Public Works,
Supply and Services; Muskeg
Valley Quarry Project - Birch
Mountain Resources Ltd.; Pine
Coulee
Water
Management
Project - Alberta Public Works,
Supply and Services; Silica Mine
- United Industrial Services Ltd.;
Spray Lakes Four-Season Resort
and Heli-Cat Ski Operation Genesis Land Developers Ltd.
4.2 Historical Background
The following provides some of the
backdrop to the current situation in
terms of how the NRCB came into being
as an organization and the key events
that have had some degree of impact on
how it currently functions. This is by no
means intended to be inclusive of all of
the relevant background information
but, rather, a basis on which to better
understand how the organization has
evolved to the present day. Again, we
are indebted to the NRCB, AAFRD and
SRD for providing us with much of the
information. (A more complete summary
of this information has been included as
Appendix B).
1990 Legislation introduced to create
the
Natural
Resources
Conservation Board
1991 Legislation proclaimed in July
1991 “The Natural Resources
Conservation Act”
1997 “A Background Document of
Emerging
Issues”
released;
outlined concerns relating to the
management
of
intensive
livestock operations
1998 Announcement by Minister of
Alberta Agriculture Food and
Rural
Development
that
Government will issue new
regulations on intensive livestock
feeding operations; discussion
paper released and consultation
process begins
Minister of Agriculture Food and
Rural Development establishes
the
“Livestock
Regulatory
Stakeholder
Advisory
Group
(LSRAG);
purpose was
to
establish recommendations for a
legislative
framework
for
intensive livestock operations
1999 Second consultation package
released “A Proposed Regulatory
Framework for Livestock Feeding
Operations in Alberta”; LSRAG
releases its “Proposed Act,
Regulations
and
Standards
Document”
2000 LSRAG provides Minister with its
final report; Minister announces
that a “Sustainable Management
of the Livestock Industry in
Alberta Committee” was to be
established; committee headed
up by MLA Albert Klapstein
2001 Klapstein Committee Report; The
Sustainable Management of the
Livestock Industry in Alberta
Committee reported back to the
Minister of AAFRD on April 30th
2001; the Committee made
seven
recommendations;
Province announced in July 2001
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George B. Cuff & Associates Ltd.
their new strategy for dealing
with
intensive
livestock
operations which included the
Province assuming legislative
responsibility for such operations
to ensure the sustainability of
the industry; May 2001 NRCB
was contacted by AFRD to
determine if it was feasible for
the NRCB to accept responsibility
for delivering the regulatory
aspects of a new AOPA
 The
Natural
Resources
Conservation Board (NRCB) was
restructured to serve as the
agency responsible for delivering
the regulatory mandate of the
legislation
after
it
was
proclaimed on January 1, 2002;
December 2001 Legislation is
introduced into the Assembly
and passed
2002 Province-wide regulations and
standards governing new and
expanding
CFOs
were
implemented and the NRCB
assumed
responsibility
for
delivery of the AOPA. AOPA
came into force and the NRCB
began to deal with complaints
and applications immediately
2004 June 1st further amendments to
AOPA were made based on the
experienced gained with the
legislation over the previous 2
years and input received through
a
stakeholder
consultation
process.
The
Agricultural
Operation Practices Amendment
Act, 2004 formerly Bill 17 was
passed; intended to address
perceived legislative deficiencies
including a revised definition of
manure, and confined feeding
operations, and revised the
grand-fathering provision
 The AOPA Regulation Technical
Input Committee (ARTIC) was
formed. ARTIC provides a forum
for Alberta's livestock industry to
provide input to AAFRD and the
NRCB on the technical aspects of
AOPA
2005 Minister calls for a review of the
NRCB
4.3 History
of
Legislation
the
During the course of our Review, we
asked for and received from the NRCB a
“high level overview of the legislative
history of the NRCB”. While there are
obviously various factors that impacted
the legislative environment in which the
NRCB
functions,
the
following
framework provides some clarity relative
to the key dates and the legislative
amendments that were made. (A more
complete summary of this information
has been included as Appendix B).
 “Natural Resources Conservation
Board Act; Introduced as Bill 52
(2nd Session, 22nd Leg. Alta.
1990).
S.A. 1990, c. N-5.5.
Proclaimed 3 July 1991.
 Amendments
to
Natural
Resources Conservation Board
Act: (1992) c. E-13.3, s. 246(11)
 Amendments
to
Natural
Resources Conservation Board
Act: (1997 Bill 18) S.A. 1997, c.
20 (Royal Assent 20 June 1997)
 Amendments
to
Natural
Resources Conservation Board
Act: (2001) S.A. 2001, c. 16
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George B. Cuff & Associates Ltd.

Amendments
to
Natural
Resources Conservation Board
Act: (2003) S.A. 2003, c. 44






5.0
Key Themes
Based on our terms of reference and the
results of our interviews and review of
related background information, we see
the key themes as follows:

Rules of Practice of the Natural
Resources Conservation Board
Act (Alta. Reg. 345/91) and
Funding for Eligible Interveners
Regulation (Alta. Reg. 278/91)
redrafted by the Board
Agricultural Operation Practices
Amendment Act, 2001: (Bill 28,
1st Session, 25 Leg. Alta. 2001)
S.A. 2001, c. 16.
Board Administrative Procedures
Regulation AOPA (Alta Reg.
268/2001)
Standards and Administration
Regulation AOPA (Alta. Reg.
267/2001)
Agricultural Operations, Part 2
Matters Regulation AOPA (Alta.
Reg. 257/2001)
Agricultural Operation Practices
Amendment Act, 2004: (Bill 17,
4th Session, 25 Leg. Alta. 2004)
Trust in the System
Any system as complex and significant
as the NRCB needs to build a high
degree of trust in the marketplace. It
must be able to earn the trust of those
it regulates regardless of whether or not
the decisions of the Board are always
perceived as supportable or consistent
with the desires of those the system
serves. While there appears to be a
reasonably
consistent
desire
for
effective regulation and protection of
the environment and the rights of the
public, and while several expressed
understanding
for
a
period
of
adjustment, we also found that those
being served simply lack trust in the
system that has been structured to
serve them.
The NRCB relies on trust in the
regulation of the system to enable it to
function effectively. It needs to ensure a
sound measure of fair play and
consistency if its rulings are to appear to
be fair and sensible. This issue relates to
trust in the process of decision-making,
trust in the interpretation of legislation
and regulations, and trust in the word of
those serving on the Board. The depth
of concern voiced by those who are
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considered key stakeholders does not
suggest to us that slight adjustments in
legislation are going to be able to
successfully tackle the issues that we
heard voiced. There has simply not been
sufficient recognition of the necessity of
the Board to connect with those it
serves which has placed the Board in a
situation wherein it has removed itself
from its position of respect and
authority.
We are cognizant of the fact that the
regulation processes relative to AOPA
are quite new. This is essentially the
third year of operation and changes
have been made previously to the
legislation and regulations and are
continuing to be made. While the NRCB
processes are relatively new, it is our
assessment that despite the efforts of
Board and administration of the NRCB
the organization simply does not have
the
necessary
support
of
its
stakeholders to be effective.

The Development of
Credibility in a New
System
The Province expected that the NRCB
would make the adjustments necessary
to blend its previous role (and culture)
with the changes and demands imposed
on it by being assigned the responsibility
of administering the revised AOPA
legislation.
While
the
difficulties
experienced prior to 2002 by industry,
municipalities, the public and others
would have been a clear indicator that
simply
moving
responsibility
for
reviewing practices, issuing approvals
and adjudicating disputes to the NRCB
would not resolve these concerns
overnight, it was hoped that a more
impartial
and
professional
body
operating at arms length would be able
to bring a greater measure of credibility
to the enforcement of livestock
practices. This was the hope and the
challenge.
This combined role of the NRCB is both
relatively new and quite complex. Part
of the challenge for the NRCB when it
took on the responsibility for AOPA
legislation was to gain respect for its
role as adjudicator of the rules of
livestock practices. The new legislation
that it was assigned to govern was
admittedly quite different than that of
the original NRCB Act. (It also imposed
a rigour not expected under the former
world of local bylaws and a code of
practice). The latter has a primary focus
on major resource and environmental
projects whereas the former has its
focus in the world of intensive
agriculture operations. The decisions
made by the Board have the potential to
provoke divisiveness regardless of its
professional
discipline
and
the
thoroughness of any decisions due to
the conflicting nature of its audiences.
The stakes were rising in the world of
agriculture in terms of increasing costs
and the perceived need for larger
capacity of livestock. Countering that
milieu and on the other side of the
fence has been a vocal, organized group
of private citizens who live where they
do in order to enjoy the tranquility of
open spaces.
While the NRCB was not inexperienced
in dealing with potentially explosive
issues based on its original mandate,
their new agenda had far more players
with a built in influence system and a
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ready ear of the media and Government
alike. To gain credibility would be
difficult for any group of well-meaning
professionals.
The NRCB has struggled in terms of
gaining both acceptance and credibility.
The transition from its pre-2002 term
has been marked with numerous bumps
along the way. While the Board has
been diligent in its ongoing work in
reviewing decisions and determining
what matters required Board appeals, it
has been seemingly unable to connect
with its primary audiences including
industry
groups,
municipalities,
government agencies and departments,
non-governmental
organizations,
communities and other stakeholders. It
is our view after listening to the
concerns and opinions of a broad crosssection of those affected by the NRCB
and inclusive of its own members and
administration
that
the
ongoing
struggles relative to developing a
stronger base of trust and respect are a
factor of:
 A
very difficult environment
where every decision is weighed
in terms of its potential economic
impact by the industry involved
 Dealing with an industry that has
not had the type of regulation of,
for example, its oil and gas
counterparts
 Having to gear up quickly for the
new mandate and, for whatever
series of reasons, not always
employing
those
with
a
background of experience in
dealing with the industry groups
and major producers
 Making
both on the field
judgments and administrative





tribunal decisions that appear to
the applicant to be inconsistent
and inflexible
Imposing expectations on “the
little guy” that seemed more
appropriate to the larger players
Not being willing or feeling
constrained in offering advice to
applicants in developing their
proposals
and
requiring
enhanced legal and technical
expertise
Appearing to over-stretch the
limitations of what the Board
was expected to do by venturing
into the territory of Provincial
policy rather than focusing solely
on the Board’s mandate.
In particular, the apparent lack
of consistency in decisionmaking and seeming lack of
sensitivity
to
a
struggling
agriculture industry has hindered
the NRCB’s attempts to improve
its credibility as the regulator of
environmentally
sensitive
practices.
The Regulatory
Framework
During the course of our Review, we
were continually confronted with the
disparity of objectives between what the
NRCB felt it had been assigned to
accomplish and what the potential NRCB
stakeholders believed was the legitimate
role of the NRCB. The latter has
expressed to us their support for a
comprehensive regulatory framework
that would be fair and consistently
applied. Industry was an invited
member to the group charged with
designing a piece of legislation that
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George B. Cuff & Associates Ltd.
would address the outstanding concerns
and place an increased emphasis on the
necessity of certainty in the oversight to
their business. The new Act was
intended to provide clarity to all
concerned; to add consistency to the
decision-making processes; to ensure
adequate enforcement measures were
in place; to provide for some means of
appeal to decisions perceived to be
unfair or onerous. The legislation was
going to bring about an era of balance
between the concerns of the public and
the needs of the agriculture industry to
ensure viability. The perception of
“politics” in local Council chambers was
going to be diminished and the focus
was going to be placed on defensible
decision-making.
That was what we heard from all parties
as the basic objectives of the process to
create a new set of rules that ultimately
resulted in the drafting and re-drafting
of the Agricultural Operation Practices
Act. With perhaps some modest degree
of exception, these aims were also
those of the “new” Board charged with
the oversight of this legislation.
The Board has viewed its mandate as:
 Ensuring that the objectives and
language of the legislation are
correctly applied
 Providing increasing certainty to
the
industry,
the
public,
municipalities and others (e.g.
the
media,
the
nongovernmental organizations, etc)
relative to how the legislation
and
regulations would
be
interpreted and enforced
 Ensuring that the voices of all
those affected would be clearly
heard.
What has resulted, and as we
understand it, almost from the outset
(based on the correspondence we have
seen) has been a sense by industry and
the individuals it represents, that the
new environment has been much less
effective and responsive than what was
intended. In the main these concerns
have related to: interpretation of the
legislation, complexity and cost of
preparing applications, inconsistency by
approval officers, lack of advice to
applicants, confusion regarding role of
Board as both approving authority and
appeal body. The end result has been
an industry that has increasingly
questioned the policy leadership of the
Province vis-à-vis its commitment to the
growth of their industry.
In
particular,
the
industry
has
complained that:
 The processes by which the
NRCB review and approve
agriculture operations are overly
complex, legalistic, costly and
uncertain.
 The costs of complying with
overly-stringent
technical
requirements and standards are
not reasonable given the benefit
deemed to accrue to the
operator involved.
 The NRCB has not conducted
any risk assessment or cost
analysis
of
its
approval/enforcement processes
to see if the benefit of added
requirements is justifiable.
 The
NRCB
lacks
the
understanding of the industry
that would make it more
sensitive to the differences in
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George B. Cuff & Associates Ltd.
scale related to the size of
operations.
 The NRCB has failed to show
much flexibility or sensitivity to
the needs of particularly small
operators whose access to
professional resources makes
them uneasy with the process
and unable to find solutions to
their issues.
 The legislation and its intent are
being
misconstrued
and
misapplied.
 Interestingly, some of those with
whom we spoke felt that the
legislation (AOPA) was quite a
good piece of legislation. While
there was always going to be
areas that needed fine-tuning in
response to issues that no one
had anticipated, the framework
appears to be solid. What has
arisen frequently, however, was
the sense that the legislation is
being interpreted without much
if any discretion and thus the
industry in particular feels that
common sense and flexibility has
been
lacking.
This
is
compounded by the lack of
appropriate guidance to the
approval officers who appear to
operate much on their own
without a clear basis that should
be evident through a policy
framework. It should not be left
to the staff of the NRCB to have
to interpret the intent of sections
in the legislation.
While there have been ongoing efforts
to clarify the purpose of the original
legislation, there has been a parallel
concern that the Board has been
purposely broad in its interpretation of
the “grand-fathering” issue. In fact we
continued to hear throughout the
Review from those employed by the
NRCB that they could see the need to
pursue more of those operators whose
practices and facilities pre-2002 were
likely
causing
problems
to
the
environment. It seemed to become for
some a game of being able to link the
dots between a plan of expansion and
an ongoing but perceived exempt
operation.
The over-reliance upon a legalistic
approach to the Board’s mandate has
made its role appear more adversarial
than
necessary.
While
most
stakeholders recognize need for a
regulatory framework to guide the
industry and ensure that the rights of
others are respected, the inability or
lack of interest in applying what many
have referred to as “common sense” has
reduced the sense of fair play.
Although there were a number of
suggestions made that a preamble be
added to the legislation to define its
purpose, we note that legislative writing
guidelines
have
eliminated
prefaces/preambles to legislation and
the “Drafting Conventions of the
Uniform Law Conference of Canada”,
state in Section 18 “The use of
preambles is not recommended.” and in
Section 19 “If a statement of purpose is
required, it should be structured as a
section rather than as a preamble” and
comments that “Explicit statements of
purpose are rarely necessary, since the
object of a well-drafted Act should
become clear to the person who reads it
as a whole. In general, legislation
should not contain statements of a non-
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23
George B. Cuff & Associates Ltd.
legislative nature. However, a specific
statement of purpose is occasionally
required (for example, to give guidance
to the courts).”
Therefore our
recommendation in this report, while
supporting
the
addition
of
the
clarification of the intent of the
legislation, recommends that a clear
statement of purpose be added as an
initial section of the legislation. There
are examples wherein such statements
have prefaced the legislation including
the Environmental Protection and
Enhancement Act (EPEA), S.2 and the
Energy Resources Conservation Act, s.2.
To be fair, the Board has not had clear
guidelines in terms of provincial policy
to the extent that we believe would
have helped ease some of this
uncertainty. The fact that there are
more than two departments (and other
agencies) involved so extensively and
from such different perspectives has
reduced the clarity of message that the
NRCB needs to hear. Despite that, there
have been numerous examples provided
to us wherein added effort was being
made to see that the original intent of
the legislation was suitably clarified only
to see that the Board was still
interpreting the rules as they deemed fit
based largely on prior or continuing
policy (which, in turn, has been based
on prior Board decisions).
We believe that there have been sincere
attempts to improve the clarity of the
legislation and that the most recent
efforts that have been running
concurrently with this Review again
seem hopeful in terms of clarifying the
regulatory landscape.
Those more schooled and informed than
us in such matters advise that all
legislation requires a period of
maturation in order to determine what
clarifications may be needed. They
advise that there is a danger in being
overly responsive to one or a few
decisions that may appear to show the
legislation as imbalanced.
Finally, there needs to be recognition by
all as to who has the primary role in
determining the regulations and how
they ought to be applied. It is our
understanding that AAFRD “owns” the
legislation and seeks input as necessary
to review it and the regulations. Thus,
while the NRCB has an important role in
ensuring the appropriate application of
the rules, it is up to the Province to set
the policy and regulatory framework.

The Board’s Governance
Model
Due to the predominant impact that the
Board has relative to how the
organization as a whole functions, its
model of governing must play a positive
and significant ongoing role. The
functions of those reporting through the
Chief Operating Officer to the Board are
expected to reflect the policy leadership
provided and the administrative counsel
that staff receive on a day-by-day basis.
While the Board is expected to act in a
quasi-judicial manner relative to appeals
on field decisions, it also has a second
responsibility
relative
to
policy
leadership and that is to provide a clear
framework
within
which
those
administering the system can perform
their tasks.
It is our view that in this area of policy
guidance the Board has either received
inadequate guidance or has performed
the least competently. It is not that the
Report on the Review of the Natural Resources Conservation Board
24
George B. Cuff & Associates Ltd.
Board has not had the time nor access
to the appropriate resources. Rather,
the apparent lack of such guidance lies
in the Board’s belief that its judicial
functions necessitate that it be
perceived as “pure” and above reproach
vis-à-vis its connectedness to the
administration. This has led to the
adherence to what Board members and
administration alike refer to as “the
Chinese wall” wherein the Board
members and administration can occupy
the same offices and may speak
occasionally to one another but not on
issues currently before the Board or in
any manner that would suggest that the
impartiality of the Board has somehow
been compromised. While this may have
appeal to a purist mentality, the nature
and set-up of the NRCB would convey
the reality that the Board and its
administration are indeed linked and
expected to function as it were “on the
same page”.
The Board understands that it has a
responsibility
in
providing
policy
leadership but has accepted the view
that this is best accomplished through
the results of individual hearings. While
such decisions obviously begin to
develop a bank of precedent decisions,
such a process will obviously be very
lengthy and incapable of proving the
policy leadership needed now by the
administration.
Governance implies policy leadership.
Those being governed rely upon such
guidance to ensure that their decisions
and actions are indeed concurrent with
the framework intended by the policy
leaders. Given the uncertainties being
faced daily in the field by the approval
officers and inspectors, it is essential
that they have adequate reliance upon a
policy base that affords security in
making sound judgments. Thus, not
only should the Board rely upon its own
decisions as the basis for policy, but so
too should the Board (or its chief
operating officer) be able to assess the
legislation, seek clarity as to its original
intent and issue directives that serve as
policy guidelines for the administration.
This has not been happening from a
Board perspective nor has the Board’s
Chair/COO provided much if any
guidance in that capacity.
In actual fact, it is our assessment that
the combined role of the chair and chief
operating officer has been a stumbling
block to good governance and effective
administrative oversight. In our view,
the decision to combine the two roles of
COO and Chair was ill-advised
regardless of the best intent. This
combination of roles has seemingly
negated policy leadership to the Board
and the rest of the administration. It has
produced the least effective of both
worlds in that the Board lacks guidance
from within its ranks that is often
presumed to be a role of a chair and the
administration is operating without a
leader focused on assuring them of
his/her policy guidance and defence.
The Board as a whole is separated from
the staff by virtue of their desire to
remain at arms length relative to current
issues and thus the administration is left
to their own counsel as to what policy
choices to make. This has resulted in an
organization that has drifted in terms of
its focus and ability to provide clarity to
those out in the field. We were advised
that there are few policies that would
Report on the Review of the Natural Resources Conservation Board
25
George B. Cuff & Associates Ltd.
enable the field staff to act in concert
across the Province.
The need for six full-time Board
members has been difficult to support.
While the experience and expertise of
the individuals involved provides a
useful degree of breadth, the nature
and extent of the Board’s work does not
support this level of governance. The
Board as a whole reflects individuals
who are well-educated and experienced
people, however, due to a lack of clarity
in its governance model (i.e. direction,
vision, goals and measurable objectives)
the Board has been unable to provide
effective leadership.
Further, the
expectation that the Board will act as a
collegial, cohesive unit is not apparent
to the observer. Rather, the Board
appears to function as six individuals
who collaborate on a decision-making
process but who do not have a common
expectation of role.
(The NRC Board appears to be
attempting to follow the AEUB model
where the Chair is the COO. While not
perfect, the ability of the AEUB model to
function rather well is likely a result of a
number of factors including its maturity
and experience, the time to correct any
perceived deficiencies, the leadership of
an experienced former Provincial deputy
minister who understands government
and its policy processes as well as the
management needs of a body of
qualified professionals.

Clarity of Mandate and
Objectives of the Board
The mandate of the NRCB is established
by virtue of two distinct pieces of
legislation, the NRCB Act and the AOPA.
The former allocates responsibility to
the Board to review natural resource
developments relative to forestry,
mining, water management, recreation
and tourism (non-oil/gas projects) and
to assess their social, economic and
environmental impacts. The NRCB
provides its recommendation on such
projects to the Cabinet for its review
and approval.
The
latter
piece
of
legislation
(Agricultural Operations Protection Act)
empowers the NRCB (effective January
1, 2002) to enforce the standards as
they are set out in the legislation. The
Board has held 39 reviews of decisions
affecting feeding operations since that
date in response to requests for such
reviews. Reviews may be requested as a
result of a number of circumstances: the
applicant may ask for a review of the
approval officer’s decision; the recipient
of an enforcement order can request a
review; a directly affected party may
request a review. The Board may decide
that a review is in order or may resolve
the outstanding matter(s) through the
use of mediation services, a meeting
with the affected parties or a written
submission.
The decision by the Government to turn
over responsibility for AOPA in 2002
marked a major change for the NRCB
given the vastly different set of
expectations of the agricultural industry
and the publicly sensitive nature of its
business. This change in mandate
necessitated a significant increase in the
number of personnel employed by the
NRCB as well as the financial resources
to staff their offices and provide for all
of the demands of such an operation
that has the potential requirement to be
involved in projects across Alberta.
Report on the Review of the Natural Resources Conservation Board
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George B. Cuff & Associates Ltd.
The Board has viewed itself as a cousin
of the AEUB albeit without clarity of
mandate or a match of its expectations
with that of the industries it purports to
oversee. Its original mandate and style
likely were a reasonable fit and thus
there has been considerable difficulty in
understanding the nuances of a vastly
different clientele. There does not
appear to be the same degree of clarity
with regard to the mandate or the
objectives in this newer role. In some
measure that has occurred due to the
rapid transition to the new mandate and
in other respects likely because of the
expectation of many of those in industry
that an agency of Government would be
as amenable to the wishes of the
industry as the department charged with
helping it grow. This was not the
objective of Government when the
NRCB was handed this significant
responsibility and the fact that there
was a conscious decision to place the
oversight mandate in a separate
department
underscores
that
philosophy.

Administrative Processes
and Structure
The administrative processes of the
NRCB while parallel to that of
Government generally need to be
viewed through the prism of a
governance/administrative model that
has created some of its own problems.
In most organizations, certainly of this
scope and complexity, there would be
clarity of administrative leadership, a
strong CEO-Board relationship, sound
governance
and
administrative
principles and policies, separation of
policy-makers and administrators and
clarity of mandate/mission. What we
found, however, was much the
opposite.
Instead
of
a
clear
Board-CEO
relationship, we found a fuzzy BoardChair/COO model wherein the Chair is
viewed as leading the Board, with its
members dependent in some ways on
the Chair. Further, we found a COO who
also happens to be the Chair and due to
the two roles is unable or hindered in
being able to provide clear policy
guidance to the senior administration
while maintaining his separation as a
member of a quasi-judicial panel. Thus,
in this instance the COO who in most
instances would be receiving his
guidance from the Board is in fact in
some ways at least its leader. He does
not have to respond to the direction of
the Board vis-à-vis the guidance to the
administration and is also left to his own
as to what information he shares with
the Board. (This is not to say that any of
these actions are conducted in a spiteful
or arrogant manner, simply that the
model itself works against normal lines
of authority and communication).
This also handicaps the senior
administration who should be able to
expect
clear
guidance
to
their
responsibilities (regardless of their
experience and tenure) but may not be
able to access that due to not being
totally aware of what hat the COO may
be wearing in any discussion.
Quite simply, it is our opinion that the
duties associated with either role are
both substantial and singularly different
and thus ought to be filled by two
different people. In this instance, the
role of the Chair lacks clarity and as a
result has been diminished in its
Report on the Review of the Natural Resources Conservation Board
27
George B. Cuff & Associates Ltd.
capacity to mould a strong leadership
model. Having one person fill both roles
has the tendency, whether real or
imagined to place the position in a role
of controlling everything that flows
down from the Board and similarly
everything that flows up to the Board
from the senior administration. While
the role of Chair is accountable to the
Minister, the degree of separation
results in limited awareness and thus
control over the exercise of authority.
It is our assessment that the
organizational culture reflects an overreliance on a prescriptive, legalistic
framework and mindset that does not
appear to be suited to the nature of the
business. The culture is in many ways
dominated by reliance upon a fairly
narrow interpretation of the legislation
and regulations. It has also produced
senior and support employees who are
seemingly independent of public input
yet quite fearful of the pressure applied
at hearings. Thus, while the presence of
two highly regarded lawyers in the
offices of the NRCB enables the
administration and Board to have access
to solid legal counsel, it has also
resulted in an organization that replaces
common sense with legal reasoning.
Although we see some current
departures from this tendency to be
overly prescriptive, the organization is
not strong enough in itself to apply
sound judgment to issues that rely more
upon what works than “how will this
appear in a court?”
The degree of current managerial staff
appears to be more than sufficient to
meet the needs of the Board. The
number of departments based on the
size of the administrative organization
(while recognizing the uniqueness of its
mandate) is difficult to justify. The
recent announcement of a departure of
a senior manager in the organization
should be used as an opportunity to
achieve some rationalization in the
senior hierarchy.
The administrative organization appears
to suffer from a lack of clear and
consistent
communication
both
internally and to its external publics.
While the organization has some useful
communication
strategies
and
competent people in this area, the lack
of a corporate approach to the issues
hinders the sharing of information and
the sense of “one team” providing
corporate information to the full
administrative
audience.
Internal
communications
are
weak
and
inconsistent; staff report not being
made aware of key information on a
timely basis. The flow of communication
across the organization suffers from
being overly reliant upon the role and
responsibilities of one person.
We view the presence of a chief
executive officer to be critical to:
 Ensuring
improved
communication to all levels of
the administration
 Acting as a buffer between those
charged with responding to
requests for appeal hearings and
those responsible for preparing
all relevant documentation and
determining the application of
policy
 Ensuring that all members of the
administration are treated fairly
and without any personal
favouritism
Report on the Review of the Natural Resources Conservation Board
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George B. Cuff & Associates Ltd.



Requiring
a
sense
of
organizational discipline including
regular performance reviews,
updated position descriptions,
regular staff meetings, thorough
exchanges of opinions/briefings
Guiding the preparation of the
annual budget and business
planning processes.
The NRCB’s Business
Planning
The NRCB has gradually been moving
forward in adopting a business planning
mindset and framework to their
organization. More of the organization
has become involved and over time it is
likely that the complete organization will
begin to see the business plan as a
comprehensive agenda for action and
results. As it now stands, we believe
that the business planning process
employed by NRCB is an adequate one.
According to officials of Alberta Auditor
General,
it
meets
operational
requirements.
As a subsidiary of
Sustainable Resource Development, the
NRCB is not required to submit a standalone business plan for accountability
purpose nor is it required to table an
Annual Report to the government, even
though the MOU between the Minister
of SRD and the Board might have these
requirements. Therefore, due to the
very nature of its mandate and core
businesses, the business plan of the
NRCB is operational and output based.
The business plan is updated yearly
within a 3-year planning cycle. The
planning process can be described as
bottom-up rather than top-down. The
senior administrators of the NRCB (the
Directors), particularly those who are
charged with oversight of the core
businesses, develop their draft business
plans for their particular divisions. These
draft plans are circulated to the COO
and fellow directors/senior managers for
review and comment. The business plan
is then consolidated and passed on to
the Audit and Finance Committee of the
Board for review and then to the entire
Board for final approval. (Since the
NRCB is part of the Ministry of SRD, a
condensed version of its Business plan is
submitted to SRD for incorporation into
SRD’s business plan. SRD, however, has
no direct influence in the development
of NRCB’s business plan; likewise, AFRD
plays no role at all in the development
of NRCB’s business plan).
Current Board members generally play a
very passive and limited role in the
formulation of the business plan other
than giving approval to it. As it stands,
the business plan is largely the creation
of the administration under the
leadership of the COO. The fact that
the Board Chair and the COO is the
same person automatically removes the
Board Chair’s role to challenge the
business plan as a function of the
normal interplay between a Board and
its CEO.

Board’s Performance and
Service Delivery
An
assessment
of
the
Board’s
performance and service delivery must
involve a variety of factors. These
include:
 Leadership to the organization
 Clarity
and
soundness
of
decisions
 Connection
to those being
served
Report on the Review of the Natural Resources Conservation Board
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George B. Cuff & Associates Ltd.
Acceptance by the Government
 Credibility in the marketplace
 Quality of staff in the field
With regard to the Board’s leadership to
those within the organization, we find
that:
 Board members are striving to
maintain good relations with
their administration
 The Board has asked for input
from its administration relative to
required procedural changes
 The Board has had members in
attendance at the conferences of
industry and local government
 The Board has been unable to
develop much clarity in terms of
policy
guidance
to
its
administration given its belief
that the only mechanism for
achieving clear policies lies in its
quasi-judicial functions and thus
the decisions arising are what
ought
to
provide
policy
leadership.
With regard to soundness of decisionmaking, the Board has been vigilant in
its quasi-judicial capacity and has
regularly sought to understand the
issues clearly and to render wise
judgments. While it can be argued that
these have not always been clear or
consistent, we did not find any evidence
that would support any criticism relative
to the impartiality of the Board. What
we did find, however, was an overdependence on the legal counsel to the
Board and to following a process that
has to be viewed as intimidating to
anyone who is approaching the Board
for the first time, or who has limited
exposure to the world of legal

arguments,
briefs and
precedent
decisions.
With regard to the Board’s connection to
those whom it purports to serve, we
found that:
 Municipalities are concerned over
their loss of control on facilitysiting decisions and their ability
to have meaningful input into
approval
and
enforcement
decisions
 Industry is convinced that the
system is set up to negate their
efforts to expand the industry
and to make modest, ongoing
improvements in practice
 The public believes that the
Board
is
not
sufficiently
sympathetic to its concerns and
overly friendly with industry
 Non-governmental organizations
voice similar concerns and
express the view that they lack
the necessary resources to
consistently appeal decisions;
their stakeholders are concerned
that the legislation does not
address all of their concerns and
that there is an insufficient
emphasis
on
compliance
monitoring and enforcement.
 With regard to the question of
how
well
the
NRCB
is
regarded/accepted
by
Government, we heard the
following messages:
 The
Government
did
not
anticipate the apparent lack of
connection
between
the
representatives of industry and
the NRCB.
 Departmental
and
agency
employees feel that while
Report on the Review of the Natural Resources Conservation Board
30
George B. Cuff & Associates Ltd.
progress has been made by the
NRCB, there is still considerable
unease regarding the lack of
clarity in regulating the CFO
industry and thus the purpose of
AOPA. The Board (or its
advisors) do not appear to be
able to hear the messages of
concern and balance that with
their commitment to procedural
rigour.
 The Government wants to create
a climate for industry to develop
in a sustainable manner; the
response from industry relative
to the negative impacts they see
as a result of the NRCB
processes and approach has
been registered with provincial
officials who have received
complaints from all quarters.
 The Government sees the need
to act decisively and firmly to
show they are addressing the
concerns not only of industry but
also relative to the concerns of
the
public
and
municipal
councils.
Departmental
employees expressed concern
that the Board has been unable
to connect with industry officials
and assure then of their
commitment to finding the right
balance between regulation and
flexibility.
With regard to its credibility in the
marketplace, this matter is more difficult
to interpret and evaluate. With some
perhaps glaring exceptions, the Board is
viewed as trying to rectify past problems
in such matters as consistency and in
assisting the producers to make more
sense of a complicated system. At the
same time, the Board itself feels
constrained in becoming overly engaged
in the “on the ground” processes in that
their understanding of the need for
impartiality must override their desire to
appear to be more “user-friendly”.
Perhaps as a result of a perceived
inability to connect, industry wonders
what the Board actually knows about
the industry and how much common
sense there is in the process; NGO’s
suggest the Board is in bed with the
industry; municipalities are concerned
over their loss of development control
and
other
infrastructure
issues.
Unfortunately, and whether this is due
to the type of process employed or the
over-reliance on legal convention, the
NRCB has not achieved the level of
acceptance that was initially expected.
With regard to the quality of staff in the
field, we find that the approval officers
and inspectors are well-educated
professionals
with
some
having
experience in agriculture and others in
other aspects related to the natural
environment.
While
there
is
a
reasonably valid concern that the
approval officers do not have a good
grasp of the challenges facing the
agricultural industry, some are fairly
new graduates into the field and others
possess university level accreditation in
related
professions.
The
issues
regarding the staff of the NRCB relate
more pointedly to the lack of empathy
to those employed in the agriculture
industry and thus their decisions appear
to reflect limited sensitivity and
flexibility.
Report on the Review of the Natural Resources Conservation Board
31
George B. Cuff & Associates Ltd.
6.0
A Summary of Issues of Concern
The following is a consolidation what we
heard from those who participated in
our interviews and/or who provided
comments by e-mail or telephone. While
not everyone would have expressed
these concerns or issues, we do believe
that they reflect a comprehensive crosssection of what we heard. These are
supplemented or are dealt with in
various ways in the text of our Report.
6.1 Comments
of
Public and NGOs





capability to monitor and enforce
its decisions, and that there is
little penalty for non-compliance.
6.2 Comments
of
the
Industry Associations
and
Industry
Representatives

the
The public perceives the NRCB
and its processes as favouring
and supporting the agriculture
industry
The public, being used to
Municipal Planning Commission
and
Subdivision
and
Development
Appeal
Board
processes where all parties are
heard
in
an
informal
environment,
does
not
understand why the NRCB
denies appeals regarding its
decisions
Due to the heavy reliance on
lawyers,
advisors
and
consultants in the NRCB process
regarding CFOs, the public and
NGOs see themselves as being
at a disadvantage
The public and NGOs are
concerned with the fact that the
NRCB does not deal with odour
and air quality issues, and the
cumulative impacts of many
CFOs in one area
There is a concern that the
NRCB lacks the resolve or the




The
industry
associations
supported the draft Sustainable
Livestock Protection Act and
regulations as viable for a new
regulatory framework
Industry associations support the
need
for
science-based
standards that are developed in
conjunction with industry
The direction taken by the NRCB
in developing its application,
hearing and standards has
significantly increased the cost to
applicants; the cost for advisors,
consultants,
engineers
and
solicitors for even the smallest
application is so significant that
an unsuccessful application can
impact the financial viability of a
family farm
The cost of applying NRCB
standards and the risk of an
unsuccessful application has
dampened the industry capability
and
appetite
to
expand,
preventing needed economic
expansions of both commercial
and family farms
Industry sees the need for risk
assessment
processes
in
determining the approach to be
Report on the Review of the Natural Resources Conservation Board
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George B. Cuff & Associates Ltd.




taken to an application and to
non-compliance
The current application process
is not user-friendly, with the
internal policies of the NRCB
preventing
communication
between the Board and staff,
leaving NRCB staff with little
policy
direction
on
the
interpretation of the AOPA and
its regulations, and resulting in
NRCB staff advising applicants
that the only way to obtain a
policy ruling is to appeal a
decision;
the
information
required appears to be a moving
target
The NRCB has not followed the
initial intent and purpose of
AOPA as it was conceived, and
over-reliance on legal counsel
opinions given to the NRCB
Board has resulted in overly
restrictive governance and policy
decisions
The NRCB has taken an
inappropriate approach to risk
management to the extent that
conditions
on
manure
management in approvals are
now seen as attempting to
achieve zero risk, something not
required of any other industry
The application of standards on
an Alberta wide basis has
produced some standards that
will be higher than needed for
most
areas,
resulting
in
unnecessary effort and cost, and
not recognizing past successful
regional farming practices and
outcomes






The process of engineers on the
staff of the NRCB over-ruling
submissions
by
professional
engineers on behalf of applicants
is questioned on a cost basis and
as an inappropriate professional
practice
The current NRCB policy on
‘grandfathered’
CFOs
with
municipal permits of opening the
entire operation to review if an
application is made to expand is
hindering growth in this sector of
the industry
The attempt by the Chair to
operate as both Chair and
CEO/COO
has
been
unsuccessful, and a detriment to
the successful development of
the NRCB, with the situation
where staff cannot discuss an
application with the CEO/COO
because he is also a Board
member;
the
governance
structure needs to change in
order to separate the appeal
function from the work of the
administration
The relationship between the
public and the NRCB is poor, and
the result is seen to negatively
impact the public perception of
the agriculture industry
The NRCB attempt to control the
disposal of dead animals has
taken
them
beyond
their
authority
as
a
separate
regulation exists for this
Approval
and
enforcement
processes of NRCB should be
shifted to an agency reporting to
the Minister of Agriculture;
approval officers would only be
Report on the Review of the Natural Resources Conservation Board
33
George B. Cuff & Associates Ltd.



responsible for reviewing the
application with a director
responsible for the decision; an
AOPA Appeal Board should be
established to hear appeals.
Inconsistent interpretation from
different NRCB offices and
approval officers, with major
differences in the change of
refusal at some NRCB offices
Government has to come to
grips with the issue of odour
control as it is the problem that
the public sees and only
government can set policy in
that regard.
The “Right to Farm” concept is
not clear to industry.
6.3 Comments
of
the
Individual Applicants




Applicants have to consider the
economic risk of applying to
expand a CFO; the upgrading
requirements
and
approval
conditions on expansion may
make the operation of a CFO by
a family farm a risky non-viable
proposition financially
Application
process
forces
applicants to obtain expensive
legal,
consultant
and
professional engineering advice,
and then that advice is overruled by NRCB staff
Concerned that some approval
officers view AOPA and its
regulations as the minimum
standards, instead of as the
maximum standard
Concern that approvals staff lack
farming backgrounds and are
seen to enjoy a sense of power



over the applicant; while field
staff
are
seen
as
more
knowledgeable
on
farm
operations and willing to work
with the operator to find a
solution
Cost of solutions or the
imposition of conditions are not
seen as a concern to the NRCB.
The process is overly time
consuming and decisions take far
too long
Concern that the NRCB field staff
does
not
have
adequate
technical resources to meet the
demands of the industry.
6.4 Comments
of
Municipalities



the
Respect for municipal jurisdiction
is being ignored by NRCB staff,
and the role of the municipality
in representing its residents is
not recognized
NRCB does not respect municipal
Minimum Distance Separation
requirements and local priorities
on the use of agricultural land
NRCB standards being applied on
a province-wide basis creates
significant concern as these
standards do not recognize
specific needs of the difference
regions of Alberta and proven
agricultural
practices;
of
particular concern by northern
regions who rely on surface
water and dugouts for water
supply to humans and animals, is
the acceptance of surface
spreading of manure when prior
regional farming practice had
been injection
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





Cost of an appeal is too high due
to the requirement on the
appellant to prove the grounds
of its appeal; decisions are based
on legal interpretation and not
common sense
Enforcement of compliance to
standards,
approvals
and
conditions is inadequate, process
takes too long, and the NRCB
lacks appropriate enforcement
tools
Residents concerned that the
participative role of the public
has been lost in the new NRCB
process
The public does not understand
the role of the NRCB and despite
sincere
efforts
by
Board
members
current
communications to the public are
viewed as ineffective.
Negative impact on families
involved in an application and
appeal
Time delay in approval process.
6.5 Comments
of
the
NRCB
Board
and
Senior Administration



Board concerned that it has been
reviewed at least twice in the
past four years; what is the
message being sent by the
Province?
Board recognizes difficulty in
trying
to
achieve
balance
regarding competing interests
Board needs to become a body
not a series of individuals; still
achieves good discussion and a








healthy balance of competing
philosophies
Process used to find the Acting
Chair during last leadership
change was very disconcerting;
sense of being misled which
resulted in a loss of trust early
on
Board has worked hard to build
bridges with the Province and
with industry; some of difficulties
seen
as
over-reaction
to
personality differences
Government in a tough spot of
promoting development of the
industry and then overseeing the
regulatory environment
Assignment of Board members
to different sectors has met with
mixed responses; are we as
Board members to become
industry specialists or broadly
briefed on all sector concerns?
This review may be too early for
a fair assessment on a very
complex process
External communications to the
public, industry and other
agencies,
and
internal
communication between the
Chair, Board, administration and
staff, has been ineffective and
insufficient
Some Board Members and
administration see problems with
the Chair also serving as the
COO, in effect creating a single
manager
organization,
and
concerned
that
all
communication
is
filtered
through a single individual
Field staff need someone to act
as their supporter and buffer;
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





that person needs to have wide
respect
Board Members are disconnected
from the organization, and
administration is separated from
Board Members, as a result of
internal policy and direction, and
Board Members are unable to
undertake
effective
organizational governance
Board Members feel that the
organization has, in spite of the
problems experienced, been a
positive
attribute
to
the
agriculture sector
The organization lacks an ability
to
appropriately
prioritize
complaints or undertake risk
assessments, resulting in mixed
priorities
often
driven
by
responding
to
volume
of
complaints
Lack of consistent performance
measures has resulted in the
organization being unable to
measure its success or failure;
some work being done to rectify
this issue
Consensus that the application,
approval and review processes
need improvement; that the
current
system
does
not
differentiate by scale; that
decisions by approval officers are
not
consistent
across
the
province; that the lack of
assistance to applicants creates
frustration, higher costs and
delays; and that processing
times need to be reduced;
process is confrontational
Concern that there is a lack of
penalties for non-compliance
6.6 Comments of the
Other Government
Agencies








Believe that the NRCB handles
the review of major projects
effectively
AOPA brings a level playing field
to the CFO regulatory and
inspection process, which was
not present with the municipal
process, and has improved the
regulation of CFOs in Alberta
Concerns on Board role; see
them as not separate enough
from staff to be impartial;
organization is not results
oriented; and the public does not
see them as independent
NRCB
processes
are
not
effective, too lengthy and too
costly to the applicant; a greater
level of assistance is needed to
applicants; and decisions by
approvals officers are reported
as subjective and inconsistent
A simplified process for small
CFO operations or expansions is
needed
Lack of a policy basis for
decision-making
based
on
policies developed by staff and
submitted to the Board for
review and approval
Requirements for CFO design
and the manure spreading
regulations do not take into
account regional climate and
topography issues
Guidelines
from
Alberta
Agriculture for building a manure
pit are not utilized
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




NRCB lacks recognition of the
impact of their requests on the
available resources of other
departments
needs
greater
intergovernmental cooperation
Existing CFO operations hesitate
to contact NRCB due to risk of a
total review of their CFO
operation
in
spite
of
‘grandfathering’
Responses to complaints on
existing and approved CFOs is
inappropriate and not based on a
risk assessment
See maturing processes in
inspection and compliance area,
with special note of cooperation
with Public Health Inspectors.
Staff need a good understanding
of agricultural nuances and
defaults to legal advice.
6.7 Comments of Advisors
and Consultants





NRCB process was needed to
create
province-wide
consistency, but current process
is seen as political
NRCB processes are improving
as NRCB staff gain experience,
but interpretations vary from one
NRCB office to another, and from
one approvals officer to another
Processing times are too long
with applicants experiencing
periods of five months to one
year to complete the NRCB
process
AOPA and its regulations are too
open to interpretation and too
many sections are vague
Board,
application
and
compliance
processes
have





become too legalistic, too
adversarial, and too dependent
on experts; approvals officers
and inspectors are discouraged
from allowing variances or
equivalents; process needs more
flexibility and the application of
common sense
It should not be necessary for all
applicants for a CFO operation to
have to obtain legal advice in
what should be a technical
process
NRCB not being reasonable in
applying the same manure
management standards to an
operation in sandy soil, vs. one
based on clay, or adjacent to a
waterway vs. three miles from a
waterway,
or
with
close
neighbours vs. no neighbours
A Board review sees lawyers for
the Board, a lawyer for the
Approvals
Officer
and
a
lawyer(s) for the applicant on
any scale of CFO; NRCB has
become too focussed on solicitor
advice
and
seeking
legal
interpretations as a base for its
decisions, rather than developing
a
process
of
review
of
compliance against technical
standards
and
scientific
information
Concerned
that
applications
being reviewed by the Board
based
on
administrative
checklists,
not
on
risk
assessment
and
outcomes
measurement
NRCB has chosen to restrict
previously available options; an
example is that the Livestock
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George B. Cuff & Associates Ltd.





Disease Act provides five options
for the disposal of animal
carcases, but NRCB will only
accept one of these
Refusal by approvals officer to
provide
any
guidance
on
applications
results
in
unnecessary
multiple
submissions (which opens a new
case file number each time),
increasing costs and delays to
their clients
Unjustified complaints, often
anonymous and on odour
against a CFO operator make
that operator a compliance
violator in the NRCB process
even though all NRCB decision
conditions have been met
‘Grandfathering’
not
being
applied and NRCB is requiring a
complete review of existing CFOs
once the file is opened
NRCB is not accepting designs by
qualified professional engineers,
until reviewed or amended by
their own engineers; this type of
review does not occur in other
disciplines
Need improved relationships with
the MDs/Counties.





6.8 Comments from NRCB
Staff


NRCB staff believe they have
adequate access to a variety of
technical support resources, and
that their performance has
matured with the organization
Both staff and applicants are still
on a steep learning curve, and
the public is often concerned


about issues AOPA does not
address
Communication is difficult due to
the small number of staff in
multiple offices with multiple
methods of communicating have
being
utilized,
but
communication is slow
Staff feel that they often become
aware of NRCB decisions through
the
‘grapevine’
with
the
communications
links
often
ineffectual and the leadership
not open to communications
from staff
Limits on communications with
Board Members, called the
‘Chinese Wall’ is supposed to
limit discussion on open files, but
has prevented discussions on
organizational
policy
and
direction,
and
has
been
detrimental
to
effective
operations
Staff have limited opportunities
to comment on the business
plan, and then only on their own
areas
Policies that have not received
Board approval are used as
operational guidelines and policy
development rarely includes
NRCB staff input with minimal
feedback to staff
Field
staff
are
currently
developing a compliance manual
which
will
help
ensure
consistency of decisions
Board decisions and policy
decisions are inconsistent, too
narrowly focussed and do not
look at the overall intent of the
AOPA
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George B. Cuff & Associates Ltd.






Staff face the difficulty in being
expected in some quarters to
assist applicants, but not to lead
them
or
provide
any
interpretations of the legislation,
regulations or policy
The
review/hearing
process
tends to harden positions in the
community, and the Board rarely
acts as a mediator in finding a
solution
The lack of reasons given by the
Board in approving or rejecting
an appeal makes it difficult for
staff to understand where the
Board wants to take the
interpretation of AOPA
Inadequate field resources to
ensure conditional requirements
are
met,
and
inadequate
enforcement tools provide no
deterrence to polluting CFO
operators
Industry Liaison Committee and
Technical
Committee
not
functioning as intended, but
could
be
assets
to
the
organization
NRCB has taken a different
direction in interpreting AOPA




than Alberta Agriculture who was
the author of the legislation,
which often leads to the
applicant being required to
provide professional engineering
input
Complicated application forms
and process results in processing
times that are too long, with
incomplete
applications
and
referrals
to
other
agencies/departments
causing
most of the delays; impacted by
lack of adequate staff
Current application and review
processes are excessive for small
CFO projects
Compliance process is complaint
driven, and added conditions
(intended to solve problems) are
often unenforceable
Lack
adequate
performance
measures.
Report on the Review of the Natural Resources Conservation Board
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7.0
The Legislative and Policy Context
7.1 Some Background
Issues
One of the keys to whether or not the
mandate accorded the NRCB will
eventually be clear to all parties and
acted upon in the context and will of
those who contemplated the legislation
and its administration lies in the clarity
of the legislation and policies. The
objective of clarity has, for a number of
reasons, been an elusive matter. Some
have argued that the problem has its
genesis in the transition of the NRCB
taking on responsibility for the AOPA
legislation with a limited period of leadtime to fully appreciate and understand
what differences would need to occur in
its approach and processes. Others
suggest that the culture of the NRCB
was completely opposite that of an
agriculture
industry
which
had
experienced few real constraints and
enforcement and which operated in a
more unstructured environment that
was both the blessing and perhaps the
curse of local municipalities. Still others
point to the omnipresence of legal
counsel in the quasi-judicial nature of
the NRCB and the fact that so much
emphasis is placed on ensuring that the
legal processes are not violated in any
substantive way. Regardless, there have
been ongoing attempts to increase the
degree of clarity as to original intent and
to
clarify
any
subsequent
misunderstandings that may have arisen
due to inconsistencies in the application
of the legislation across the Province.
There have been various iterations in
the process and proposed legislation
relative to what finally emerged as the
Agricultural Operations Practices Act
(AOPA). In early 1999 the proposed
Sustainable Livestock Operations Act
was
developed.
This
proposed
legislation identified the process for the
handling of new and expanding
intensive livestock operations, the
approach to the approval process and
how appeals would be handled. In
addition to the Act, the Province also
outlined a “Standards Document for
Intensive Livestock Operations” and a
proposed “Regulatory Framework for
Livestock
Feeding
Operations
in
Alberta”. The Province’s decision of July
2001 identifying the existing NRCB as
the approval/regulatory/appeal vehicle
obviously altered the need for new
legislation and enabled the Province to
place the responsibility for administering
the AOPA legislation under an already
existing Provincial body, the NRCB. It
was felt that with some modification in
the mandate of NRCB that it could meet
the expectations of all parties.
The Agricultural Operation Practices Act
RSA 2000, c. A-7, (AOPA) and its three
regulations were intended to provide a
consistent
provincial
process
for
approving new and expanding livestock
operations as well as establishing
province-wide environmental protection
standards based on science. This policy
envelope was intended to provide for
direction with respect to: ensuring
producers
had
a
reasonable
environment in which to carry out its
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George B. Cuff & Associates Ltd.
business; respecting the right of the
public to identify poor practices or
violations of standards; enabling the
industry to continue to grow, provided
that occurred in an orderly, and
environmentally-sensitive fashion; and
ensuring that the Government had the
right and responsibility to manage the
system in a manner that could
accomplish these objectives.
We note that issues (some that appear
to have had a life since creation of
AOPA) with respect to the new
legislation began almost immediately
after the NRCB was accorded the
responsibility to enforce the legislation.
Correspondence dating to May of 2002
points to concerns that industry cited
regarding confusion in the role
municipalities were expected to play,
confusion regarding the enforcement
responsibilities for CFOs (confined
feeding operations), and delays being
encountered relative to conducting
reviews and issuing decisions. The
NRCB’s response indicated that the
delays in approvals were due to partially
completed application forms, the
requirement for much more detailed
information, the need for all applications
to undergo a technical review, assisting
producers
in
understanding
the
requirements and assisting producers
with the completion of the new forms.
At the same time, the NRCB indicated
that it expected to see a steady
decrease in the turnaround time. (The
NRCB had reportedly expressed the
hope publicly that applicants could
expect a decision from it within 21
days).
The NRCB did agree to establish an
“Industry Liaison Committee” in October
2002 in response to a request from
industry groups. The committee drew
together representatives from AAFRD,
Beef, Dairy, Poultry and Pork together
with the NRCB.
Industry has questioned whether or not
the model of review and decisionmaking was to narrow the issues that it
is prepared to hear as a basis for
approval or whether the NRCB had
determined to broaden the avenues for
appeal in what industry perceived as
akin to the AEUB model, which it saw as
contrary to the intent of the original
mandate. Of significance to the industry
has been the ongoing matter of how to
handle “grand-fathered” operations.
While it has been industry’s contention
that such operations were deemed to be
approved as is, the Board began at the
outset to take into consideration
whether or not there was any “…risk to
the environment, an inappropriate
disturbance or a failure to meet existing
permit conditions” (NRCB letter of
November 8th 2002).
On January 1, 2002 the Agricultural
Operation Practices Act (AOPA) came
into force and the NRCB began to deal
with
complaints
and
applications
immediately with very few staff on
board. While this report reviews the
period of March 31, 2004 to March 31,
2005 as outlined in the March 26, 2004
Memorandum of Understanding; this
report has been prepared and written
recognizing the following factors:
– that at the beginning of the review
period, the NRCB had only been
administratively dealing with AOPA
for 27 months, and that significant
effort by the Chair and management
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George B. Cuff & Associates Ltd.
–
–
–
was required to develop the
administrative organization
that changes in the position of Chair
had a temporary disruptive effect on
the organization
that changes to the legislation and
regulations had to be dealt with
that the initial phase of development
of the NRCB organization was and is
crucial,
and
the
governance
decisions made during this phase
will have major impacts on the
organization, both positive and
negatively.
7.2 Our Concerns
Our concerns relative to the ongoing
dialogue between the industry, the
public, the NRCB and the Province
relates to the following:
 The issues that led to the
delegation of responsibility to the
NRCB vis-à-vis confined feeding
operations are much the same
as when the new approach was
first discussed.
 The legislative changes to date,
while they may be helping, do
not appear to have clarified
matters to any great extent.
 The review/approval processes
do not appear to be handled any
more expeditiously now than
when these complaints were first
registered (post January 2002).
 The
issues with regard to
“grand-fathering”
are
still
unsettled and NRCB continues to
meet with resistance in its
consideration of those operation
deemed to have been approved
under the municipal permit
process.


While there has been some
effort to date relative to ensuring
that the industry and other
affected stakeholders are made
aware of the expectations of the
NRCB in its approval processes
and its approach to responding
to complaints, much more needs
to be done.
The
combination
of
the
regulatory
(approval/enforcement)
and
appellate (review) processes into
one agency creates a number of
systemic problems. First, it is
difficult for stakeholders to
believe that an internal review
process is fair, impartial, and
independent. There is a concern
that the model that the NRCB
currently operates under is
subject to “institutional bias”, an
expectation by stakeholders that
an agency as a whole is unlikely
to change its mind and is unlike
to criticize its own conduct.
Second, the combination of
these
process
creates
a
disconnect in leadership. Where
the members of the board try to
preserve its independence by
distancing themselves for the
issuance of approvals and taking
of enforcement action, they are
not in a position to provide the
leadership and oversight that is
necessary to ensure sound
decision-making.
This
is
particularly true if the agency is
trying to make substantive
policy.
An internal appeal
mechanism does not provide an
effective means of reviewing
Report on the Review of the Natural Resources Conservation Board
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George B. Cuff & Associates Ltd.
substantive policy.
Thirdly,
combining the regulatory and
appellate function usually results
in the regulatory process being
overly
legalistic.
While
regulatory
and
appellate
decisions are both subject to the
principles procedural fairness,
the amount of procedural
fairness required in a regulatory
decision is less that what is
required in a appellate decision.
Separating the two functions will
generally allow the regulatory
process to be less formal.
Finally, combining the regulatory
and appellant functions into one
agency limits the ability to use
mediation as a tool to resolve
matters, because it negatively
affects the ability of anyone in
the agency to act as a neutral
mediator.
3.
4.
7.3 Our Findings
During the course of our review and the
drafting of this Report, we have noted
the following with regard to those issues
and factors that may impact on
legislation or the Provincial policy
context:
1.
The intention of Government
with regard to the approach and
philosophy of the NRCB in
administering the legislation
needs to be stated in specific
language so as to avoid the
perceived confusion between the
two
provincial
departments
(AAFRD and SRD).
2.
The objectives of the legislation
also need to be clarified and, to
the extent possible, the onus for
5.
showing
cause
for
either
proceeding or inhibiting new or
expansions to confined feeding
operations should be designated.
There is concern relative to the
fact that the decisions and
direction of NRCB Board are not
reflective nor take into account
the policy direction of the
Province relative to the right to
farm.
The
interpretation
of
the
objective/intent of the legislation
is
inconsistent
among
stakeholders. Legal advisors,
consultants,
the
Board,
producers and staff often appear
to disagree with regard to the
purpose and intent of the
legislation.
The
legislation
appears to be subject to
different
interpretations
depending upon which side of
the fence you sit on. A purpose
statement that is clear and to
the point should be included in
the legislation. Things are not
made simpler by the fact that
the Board is constituted under
one piece of legislation while the
regulatory system is guided
principally by another. The
interface and direction of the
system needs a cohesive and
clear expression of intent.
Part of this disconnect arises
from combining the regulatory
and appellate functions. If the
functions were separated, it
would free up the members of
the Board to provide the
guidance,
leadership,
and
oversight that is necessary in an
Report on the Review of the Natural Resources Conservation Board
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George B. Cuff & Associates Ltd.
6.
7.
8.
9.
effective regulatory process. It
would create a more coherent
organization,
where
the
members of the Board set a
clear policy direction in how the
Board intends to business and
ensure that it is carried out. It
would eliminate the appearance
of a disorganized agency where
the staff say one thing, and the
members of the Board say
another thing. It would also
permit the functions of the Board
to be less formal, in that the
concerns about a high degree of
fairness associated with the
appellate function, would not
affect the appropriate degree of
fairness that is required for the
regulatory function.
Inconsistent application of AOPA
by officers or the Board appears
to reveal some serious concerns
with the legislation.
It is seen as a positive by the
industry, NGO’s and most
municipalities to have legislation
that
addresses
the
often
emotional and complex issue of
CFO’s and that one of the good
purposes of the legislation is the
apparent attempt to bring
provincial consistency into the
industry.
According to the NRCB, the
legislative process is best applied
in a formal institutional (i.e.
judicial setting). This is viewed
by industry particularly as costly,
complex, time-consuming and
extravagant.
The roles of Alberta Agriculture,
Food and Rural Development,
10.
11.
12.
13.
14.
Alberta Environment and Alberta
Health and Wellness are unclear
to many with respect to the
approval
and
enforcement
processes.
The legislative review process
has to provide clarity to the
purpose of the legislation if any
further changes are to make
much sense.
Producers need to have a clear
understanding of what terms and
conditions will be applied if an
expansion is being considered.
The degree of flexibility with
respect to the administration of
AOPA has been a difficult matter
to achieve in part due to the
interpretation of intent by
various
approval
and
enforcement officers. It needs to
be recognized that there are and
will be unusual circumstances
impacting this industry that
necessitate
reasonable
judgment. Policy guidance here
would encourage a greater sense
of freedom in interpreting the
legislation and regulations but in
its absence, the officers are left
without much support for a
broader interpretation.
Some degree of onus must be
placed on the NRCB to show that
their expectations with regard to
how a producer alters his/her
operations is in fact a reasonable
requirement
and
can
be
achieved within a reasonable
period of time and at a
reasonable cost.
There
has
also
been
considerable support for the
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George B. Cuff & Associates Ltd.
15.
16.
17.
notion of ensuring a full
assessment
of
the
risks
associated with applications and
the cost-benefit analysis of any
decisions.
While
there
is
considerable
merit
for
considering the impact of
regulations in terms of their
intended benefit, care must be
taken to ensure that any such
risk analysis not be allowed to
further complicate or add burden
onto the shoulders of lawful and
environmentally
sensitive
producers. Further, a committee
that includes membership of all
affected stakeholders should be
asked
to
review
current
standards in terms of a riskbenefit analysis.
The matter of ensuring that
issues and applications are being
responded to in a time-sensitive
manner needs to be addressed
either through legislation or
NRCB policy and performance
criteria.
The NRCB needs to add
specificity to what information
can be reasonably expected of
producers to provide to support
an application. Some discretion
again needs to be accorded to
the Approval Officers in this
regard.
We see the need for either
AAFRD or NRCB or a combined
approach by both to expand the
information being made available
to the public and the degree of
assistance provided to individual
applicants.
18.
19.
The ongoing work of the AOPA
Legislative Review Committee
should include the involvement
of a broad base of stakeholders
who at the very least should be
invited to provide ongoing
comment
to
the
draft
conclusions of this committee.
The work of this committee
supported by that of ARTIC has
been and will continue to be very
important in ensuring that
outstanding issues relative to
how well the Act and regulations
are
being
appropriately
interpreted. (Whether or not the
NRCB might also be well-served
by more extensive use of its
Public
Advisory
Committee
should be explored given the
advantage of assembling a broad
array
of
interested
and
thoughtful minds in order to
provide a high level view of the
issues).
The importance of a sound policy
framework should not be overlooked and should emanate from
the issues and concerns that are
surfaced with AAFRD, SRD and
Municipal Affairs. While some of
the concerns with the legislation
both now and into the future can
be addressed through legislative
review and amendments, some
of these matters have and will
continue to revolve around
questions of provincial policy.
7.4 Our Conclusions
Based on the foregoing, we conclude
that:
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George B. Cuff & Associates Ltd.








The intentions of the Province in
requesting
the
NRCB
to
administer
an
expanded
legislated framework be made
clear and that the NRCB be
expected to develop protocols
that ensure that a standard of
reasonability of actions is applied
The policy objectives of the
Government be communicated
to the NRCB and circulated
widely
The mandate of the AOPA
Legislative Review Committee be
continued and expanded to
include a cross-section of
representatives
from
all
impacted stakeholder groups
A purpose statement be included
in the AOPA legislation
Any legislative changes not
unnecessarily
restrict
the
potential
for
approval
or
enforcement staff to show some
flexibility
in
considering
reasonable
options
for
addressing
potential
shortcomings identified in any
review of operations
The
statement
on
grandfathering of pre-2002 confined
feeding operations be specific
and
address
the
deemed
physical capacity and number of
livestock
The legislation be clarified with
regard to the mechanisms for
approval of any expanded or
changed
confined
feeding
operations
Any new or changed standards
be shown to be practical within
industry
standards
and




conditions and that a risk-benefit
analysis has been carried out
prior to the proposed change in
standards is finally approved.
ARTIC should be consulted to
ensure that such standards are
reasonable
and
that
their
imposition does not create any
unusual hardship on current
operations that are seeking to
expand.
After the Application Review
Officer signs off that all
conditions and standards are
met, the Director should consider
all input and then issue the
approval or non-approval as
appropriate. This would allow
the Application Review Officer to
be more open and transparent
with the client, and less fearful
of
the
opposition
to
a
development.
Similarly
compliance staff must be given
the authority to make variance
decisions
within
certain
parameters.
The NRCB should include the
identification in its performance
criteria of ongoing measures
aimed at ensuring an expeditious
yet thoughtful approach to their
approval processes.
There is a lack of clarity
regarding procedural policy at
the NRCB – how the business of
the Board is to be carried out.
The Board should establish its
procedural policies and ensure
through the COO that their
policies are implemented.
There is a lack of clarity
regarding who is setting the
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George B. Cuff & Associates Ltd.

8.0
substantive policy at the Board.
Generally, substantive policy is
developed by a regulatory
agency and approved by the
Minister responsible for the
agency. In making decisions,
the regulatory agency should be
strongly guided by the policy and
apply it in the appropriate
circumstances.
It is not appropriate for an
appellate body, carrying out a
quasi-judicial function to make
policy.
The function of the
appellate body is to review

policy,
apply
it
where
appropriate, and challenge it and
not apply it where it does not
make sense in the context of the
enabling legislation.
The NRCB and AAFRD need to
identify an expanded program of
advisory services to the industry
and public relative to the
management of the agriculture
industry
insofar
as
the
application
of
AOPA
is
concerned. This should be
viewed as a matter of some
priority.
Governance and Leadership
8.1 Background Issues
8.1.1 The Renner Report
The Renner Report provides some
useful insights in terms of what the
Government expects from its agencies,
boards and commissions. It formed the
basis upon which the Minister entered
into a Memorandum of Agreement with
the NRCB as its recommendations
included the statement that “1.1
Ministers should enter into
memoranda of understanding with each
ABC in their ministry to clarify the
government’s expectations about roles,
responsibilities,
duties,
functions,
standard of care, policy direction and
performance
expectations
to
be
achieved by ABCs.”
We see the Government’s role in
clarifying their expectations as central to
any changes or improvements that the
NRCB may be asked to make
subsequent to this Report. The Renner
Report recommends that each agency of
Government have a clear understanding
of these aspects of good governance
and we concur. The information base to
date relative to the roles to be played by
the NRCB and their processes for doing
so are seemingly the mandate and
dictate of the Board. As a result, while
the Board may believe that it is on the
appropriate
course,
it
may
be
completely at odds with the policies of
Government, unless these are clearly
stated and applied to the Board as a
basis for its annual performance
assessment.
Renner’s second recommendation also
bears repeating “1.2 ABCs
should
undertake an assessment of the
effectiveness of their governance and
accountability, and where appropriate
identify issues that should be addressed
in a board governance handbook or a
memorandum of understanding”. This
step has not been taken by the Board
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but would have been very useful in
clarifying its role and whether or not the
Government needed to make changes to
its governance structure and reporting.
In our view the Board lacks clarity vis-àvis basic governance principles such as
clarity of mandate and authority, clarity
of roles, connectedness to the broader
community,
accountability
and
responsiveness, sound orientation, full
disclosure and transparency, sense of
direction, quality relationship to the
chief operating officer, independence,
succession planning and recruitment,
and ongoing performance assessment.
8.1.2 Board Governance
The role of an individual member of the
Board is not described in legislation. The
NRCB Act refers to the establishment of
the Board (Section 12), membership of
the Board (Section 13), designates the
positions of Chair and Vice-chair and
prescribes the powers of each (Section
14). The role of individual members is
essentially that of the Board itself.
A position description was developed a
couple of years ago and includes the
following:
“Draft Position Description: Board
Members
Reporting to the Chair of the NRCB, the
responsibilities of Board Members
include items listed below. In addition,
Board members respond to requests
from the Chair.
 Public Hearings
●
Participation in weekly Board
meetings to consider requests
for reviews and to address
associated procedural issues.
●
Participation
in
pre-hearing
meetings and conferences.
●
The review of documentation
prior to hearings.
●
Sitting as a Panel member
and/or Chair of a Hearing Panel.
●
The development of decision
reports, including writing and editing.
 Policy
●
Identifying new issues facing the
organization as part of the
Board’s
strategic
planning
process.
●
Representing the Board, when
requested by the Chair, in
addressing initiatives identified in
the Board’s strategic plans.
●
Participating in and/or leading
inter-governmental and industry
meetings and conferences.
 Communications
●
Communicating Board activities
to the public and other
stakeholders, when requested by
the Chair.
●
Membership
in
NRCB/Stakeholder
Liaison
Committees, when requested by
the Chair.
 Governance
●
Ensure that that the organization
has a written governance model
that is followed and regularly
reviewed. This model must suit
the needs of our organization
and stakeholders
●
The review and approval of
annual plans, budgets and financial
reporting.
●
Membership on the Audit and
Finance
Committee,
when
requested by the Chair.
Board Members are expected to
maintain their expertise in the various
disciplines that must be considered by
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George B. Cuff & Associates Ltd.
the Board, and they must ensure that
they remain free of any conflict of
interest with the decisions that they are
being asked to make. (Rev. Nov.
20/03)”

8.1.3 Governance Model
It is critical that the governance model
utilized by the NRCB enable the
organization to function with clarity and
certainty of purpose. At the moment, we
believe that the model is one of the
more
significant
inhibitors
to
organizational effectiveness.
Based on our study of governing bodies
over the past 25+ years, sound
governance reflects the following
attributes:
 Clear
understanding as to
governance responsibilities by all
those occupying such roles
 A definite separation of roles
between those governing and
those administering
 A strong statement of mandate
 A vision statement reflecting the
perspectives
of
those
in
leadership positions
 Planned opportunities for goalsetting involving the leadership
of the organization with input
from a broad cross-section of
stakeholders
 The vision statement which has
been endorsed
 A series of governing bodydrafted goals/priorities which are
utilized by the Chief Operating
Officer and his administration to
set the stage for specific targets
for the year
 An
ongoing effort by the
governing body to set in place

guiding policies which direct the
Chief Operating Officer to take
certain actions in anticipated
circumstances
A focus by the governing body
on the broader issues which truly
impact the future of NRCB rather
than on the issues which ought
to be handled by an effective
and trusted Chief Operating
Officer and his administration.
Effective leadership by the
governing
body
may
be
presumed to be in place where
the Board provides policy
direction to the key issues
through well-considered policies,
which set the guidelines for
action. This is an ongoing
process, which focuses on
direction, not product, leadership
not status quo, governance not
regulation. Effective leadership
will reflect a continual renewal of
policies and the establishment of
the guardrails of administrative
prerogative.
8.2 Our Concerns
Our concerns relative to how the NRCB
functions as a governance body pertains
to whether or not its present manner of
operating allows it to provide effective
governance
leadership
to
the
organization and to the public that it
views as its client. The Board must play
several roles including that of a quasijudicial body charged with passing
judgment as to whether or not certain
practices and decisions are sustainable
and in the public interest. This role is
discharged through a series of
processes including:
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Determining the merits of an
appeal
 Holding a hearing with the
affected parties
 Ensuring that all parties are
given a fair opportunity to be
heard
 Deliberating as to the merits of
the appeal
 Making a decision and advising
as to whether or not the appeal
is sustained or not and if so,
under what conditions.
The matters that were drawn to our
attention with regard to the role of the
Board as an appeal body are identified
in this report and in the main pertain to
the following:
 Is the mandate of the Board
clear to the community it serves?
 Are the rules of the game (the
legislation
and
regulations)
clearly understood by all parties?
 Does the Board stay within its
legislated
guidelines
and
appropriately apply those rules?
The other aspects of the Board’s
mandate pertain to its role as a
governing body. In this regard, the
issues relate to Board governance and
whether or not the model employed by
the Board ensures that the organization
can adequately address its objectives.

8.3 Our Findings
8.3.1
Mandate of the
Board
The Board has a significant role to
perform in an atmosphere of uncertainty
and disparate objectives from those who
might be classified as stakeholder
groups. It has been accorded an
expanded mandate and has gradually
adapted itself to fulfilling the roles that
it perceives as important. In an
atmosphere of limited direction by the
Government who wishes to be mindful
of the quasi-judicial role of the Board, it
has evolved its own processes for
discharging its mandate.
The mandate of the Board is established
by the legislation and in particular, the
NRCB Act and AOPA. The real difficulty
lies in fully understanding the mandated
role and whether or not over time that
has changed. Thus, we heard comments
to the effect that: is the NRCB only a
regulatory body or is it there to assist
the industry in meeting the objective of
the AOPA plus being regulatory? This
lack of clarity needs to be addressed as
it bears quite directly on the ongoing
struggle over the interpretation of the
“grandfathering” clause. The mandate of
the NRCB is not simply to make industry
happy and as someone articulated “keep
the producers and their associations
away from the Minister’s office”. That
response leads to the question: who
speaks for the rest of Albertans who
may not feel so committed to the
viability of individual producers and their
operations? The more the impacted
parties are able to address and resolve
the technical issues and questions
relating to standards the greater the
likelihood that the mandate and role of
the NRCB will become clear.
8.3.2
Size of the Board
The Board consists of six members
including its Chair. The degree of
workload has varied considerably from
the early days of the NRCB where the
number of Board members ranged from
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George B. Cuff & Associates Ltd.
three to one (the former Chair) for a
period of time.
This number was
increased by legislative change to a
maximum of six members. The rationale
used at the time was the expansion in
the workload associated with the
assumption of duties relative to AOPA.
There was an expectation that Board
members would be involved in regular
hearings, including the chairing of such
hearings from time to time. Having a
team of six members would enable the
Chair of the Board to split the group into
two teams of three and thus be better
able to handle the expected workload.
The number of members rose to five
about a year and a half ago amidst
reports internally that the members did
not have sufficient work to keep them
busy. Instead of being reduced
however, the Province decided to add
one member who brought to the table a
wealth of related background based on
ongoing and prior experience with the
legislation.
The six Board members are not
provided with much guidance in terms
of the use of their time and the roles
they are expected to play. In terms of
expected duties, the Chair has
designated each member to be the
Board’s lead person relative to a
particular industry sector. This involves
some degree of ongoing contact and
attendance at annual functions. Board
members also serve on hearing panels
at the request of the Chair. There are
approximately 4-5 hearings per year
with each hearing consuming about 1015 days of preparation time, 1-7 days of
hearing time, time to review transcripts,
and time to prepare a written decision.
Members attend regular Board meetings
every two weeks and are in attendance
in their respective offices generally on a
full-time basis. They review related
reports and conduct their own literature
searches on issues that may assist them
in their duties as Board members.
8.3.3
Style of Board
The Board is considered an “expert”
board given that its members are
chosen based on their degree of
expertise in a particular area or
component of the Board’s mandate.
Members were chosen according to a
Directive issued under the authority of
the Public Service Act. The Board was
asked
for
input
on
the
selection/recruitment
process
and
responded with the following criteria for
membership:
1.
No direct or indirect economic
ties to the industries being
regulated that would be likely to
create either a real or perceived
conflict of interest.
2.
No direct or indirect ties to local,
provincial
or
federal
governments that would be likely
to create either a real or
perceived conflict of interest.
3.
Strong expert or technical
knowledge of the issues being
considered.
8.3.4
Acting Members
The Board Chair (in 2001) anticipated
that there would be a need for acting
members from time to time but that the
initial workload of these people would
be low. The recommended number of
acting members was four to six
individuals given the likelihood of acting
members becoming dissatisfied with the
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low workload. The need for acting
members was anticipated to increase
over time.
While the number of active members on
the roster now stands at eleven, we
understand that there have been very
few instances wherein an acting
member was chosen to assist the Board,
and amongst those few occasions, two
of the appointments were of senior staff
members who are amongst those
designated as acting members. There is
no additional payments to those staff
who serve as acting members.
8.3.5 Internal
Appointments
Early in its tenure as a Board (the period
of 1990-95) the members accepted as
policy the notion as proposed that the
“long-standing tradition of allowing
employees to stand for appointment be
continued…The opportunity to join the
Board has been shown to be a
significant
factor
in
maintaining
employee satisfaction”. This model was
agreed to and continues to the present
time albeit there have been very few
instances wherein this opportunity to
appoint staff to Board positions has
been pursued. At least one senior staff
member has served on the Board and
acted in one instance as Chair. It was
the
view
of
staff
that
these
appointments rather than helping the
Board through the expertise of the staff
member involved, actually proved to be
a handicap because of the negative
public perception that resulted.
It is our view that the appointment of
staff to positions either on the Board or
as Acting Board Members is both
unnecessary and inappropriate. This
does not protect the impartiality of the
Board and it ignores the fact that the
expertise of staff can be readily
accessed by the Board at virtually any
time.
8.3.6 Governance Model
It is our opinion that one of the
fundamental issues to be addressed in
the context of this Report deals with the
NRCB governance model. We believe
that the Board has an ill-defined model
of governance that has arisen out of its
understanding of what it means to be a
quasi-judicial organization. While we
have some empathy for the Board in
attempting to marry its quasi-judicial
roles with that of ensuring appropriate
guidance
and
direction
to
its
organization, it is clear that the two
competing processes and roles have not
achieved the kind of result desired by
the Board. It continues to perform a
delicate balancing act between its need
for impartiality as a quasi-judicial body
and yet develop a policy framework that
allows its agents to serve effectively in
their regulatory capacities.
The impartiality of a quasi-judicial
organization is fundamental to its
purpose. This has been discussed many
times, but a 1996 decision of the
Supreme Court of Canada included the
following statements which would be
relevant here.
“...Although flexibility must be shown
toward administrative tribunals when it
comes to impartiality...While a plurality
of functions in a single administrative
agency
is
not
necessarily
problematic...An agency's independence
from the executive is a prerequisite for,
but is not sufficient to guarantee,
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impartiality.
Tribunals
are
never
perfectly
independent;
their
independence is relative and varies with
their decision-making level. When the
issue of independence is raised in a
judicial review context, the courts must
therefore assess the necessary degree
of independence in each case based on
the nature of the administrative tribunal,
the institutional constraints it faces and
the peremptory nature of its decisions.
While independence can be seen as a
continuum, the same is not true of
impartiality. An agency can be either
impartial or biased: there is no
intermediate option...”
In order to achieve impartiality, and to
be seen as impartial, the NRCB needs to
create a greater separation between the
Board and the administration, and
between
the
application
process
(including approval or denial of the
application), and the review/appeal
process. This separation also needs to
include the provision of legal advice.
Separate advice needs to be available to
staff involved in applications vs. staff
involved in review/appeals. (Structuring
the organization whereby one reports to
the other even though their “clients”
and roles are viewed as distinct is not
viewed as sufficiently separate.)
Similarly, the present combined role of
the Chair/COO has prevented a
sufficient separation of roles and results
in a delicate balancing act by the Chair
in discharging the responsibilities of
both functions.
The Board has not engaged its
stakeholders in any planned process of
establishing
goals
and
priorities
although some of the Board’s priorities
are derived from requests for hearing
appeals and other inputs requesting
changes to either legislation or
regulations. Further, the Board also has
contact with the various sectors to
whom it relates through committees on
which both participate or are invited to
participate at from time to time (e.g.
Industry Working Group, Intensive
Livestock Working Group)(see next
section).
The process of policy development has
been retarded by the adopted approach
of relying on Board decisions to convey
and set the basis for Board policy. As a
result largely of this approach, there has
been constraints imposed on the Board’s
ability to define the broader issues and
to address their policy implications.
While the Board may have believed that
it could not act in such a manner, the
absence of clarity from the leadership of
the organization has proved to be
frustrating to those who need to make
regular judgment calls in the absence of
such advice.
8.3.7 Advisory
Committees
The NRCB has established advisory
committees to assist it with aspects of
its mandate. These committees were
intended to open up other avenues of
ideas and suggestions for the Board. At
the outset, the NRCB created a public
advisory committee that was intended
to provide the Board with advice relative
to Board processes (i.e. at a time when
the Board was looking to establish new
regulatory processes for the intensive
livestock industry) and advice relative to
the original NRCB mandate; Board policy
issues relative to the new areas within
the Board’s mandate; and succession
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planning (i.e. the recruitment, training
and retention of staff and Board
members). Meetings were to be held on
a quarterly basis. This committee was
involved initially in advising on the high
level issues (i.e. not the day to day
matters). It meets at the call of the
Chair although it has not met recently.
Its members consist of a University of
Calgary professor, a regulatory lawyer,
the President of the AAMDC, a former
Chair and the current Chair of the
NRCB.
The
Industry
Liaison
Committee
(consisting of individual representatives
from various industry sectors, the
AAFRD, the NRCB) was created to
provide a forum where shared concerns
regarding the efficacy of the system
could be discussed and an information
exchange between the NRCB and the
regulated CFO industries. While the
NRCB intends to continue to meet on a
routine basis with all of the various
industry associations, the Industry
Liaison Committee provided a more
structured forum for direct industry
input into the NRCB's planning
processes. It was to also provide an
opportunity
for
the
NRCB
to
communicate back to industry regarding
proposed
improvements
in
the
regulatory systems. We were advised
that this committee has been in
abeyance due to struggles it was having
with matters related to governance and
the perceived inadequacy of NRCB
responsiveness. The lack of activity by
this committee is also due in part to
industry’s sense that their Intensive
Livestock Working Group would be a
better forum to develop a common front
to their issues (and to which the NRCB
would be invited to attend from time to
time).
With regard to the committees that
impact directly on how the field staff
carry out their functions, we note that
based on our interviews, these staff
members believe that:
 ARTIC is largely a public
relations exercise to appease
industry, with their input for
technical
redress
rarely
accepted
 The ILC is controlled by the
industry and is a very slow
process; industry does not
want to be controlled—NRCB
wants clarity, the industry
wants vagueness
 The TLC is productive and is
developing
technical
guidelines, but is being
staffed by ILC
 Have no involvement, but
would like to have more
access to the deliberation of
each committee; ILC is
industry driven and is prone
to doing nothing
 Have no direct involvement,
but serve on a technical
resource committee that
feeds into the Technical
Input Committee; not getting
support from the TIC, a lot of
foot dragging, particularly
from
the
Agriculture
representatives
 We have been extremely
challenged to get guidelines
through the ARTIC; concept
is good but the Committee is
not
functioning;
have
attempted to clarify AOPA by
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George B. Cuff & Associates Ltd.
producing
technical
guidelines which are being
resisted by ARTIC; it is
politically driven not a
technology forum and not all
the players are at the table
(municipalities, NGOs with
applicable knowledge)
 The
Industry
Liaison
Committee is also nonperforming; could be a real
asset if it functioned or
structured
 ARTIC
again appears to
accomplish nothing other
than to delay decisions
 Would
like
ARTIC
to
approve/develop
technical
bulletin to help the operator
and the NRCB; part of the
problem is that the industry
is
not
represented
by
technical people but rather
“political”
representatives
representing the interest of
the operator.
The
Board
also
meets
with
Environmental,
Non
Government
Organizations (ENGO's) on an annual
basis. While there are no terms of
reference for this annual meeting, the
NRCB provides travel cost compensation
to those invited to attend. One of the
members of the Board chairs these
meetings. This meeting affords the nongovernmental organizations a structured
opportunity to share their insights and
concerns and to receive an update
report from the NRCB representative.
In addition, the NRCB has an internal
committee, the Audit and Finance
Committee which reports directly to the
Board. The committee consists of two
Board members, an external member
and the Chair serving in an ex officio
capacity. This committee meets at a
minimum once quarterly although often
more frequently. It reviews the financial
statements, the human resource issues,
the external audit process and results,
the ongoing financial and related issues.
The Director of Financial and Risk
Management serves as a support to this
committee.
8.3.8 Role of the Chair
In terms of the governance of the
Board, the Chair’s role is significant. He
has been accorded the authority to chair
meetings of the Board, to determine the
agenda of Board meetings, to determine
who will serve on which hearing panels,
to oversee the work of Board members
and to manage the day to day activities
of all members of the administration.
The Chair can establish hearing dates,
set the panel to hear the matter and
issue an order under his/her signature.
The Chair can also serve on a hearing
panel.
The foregoing description of roles
provides the Chair with enormous
influence. The Chair acts as the key link
between the Board as a whole and the
Government. He spends a portion of his
time meeting with MLAs and Cabinet
Ministers lobbying for support for the
NRCB. He sees as one of his roles the
need to stay on top of Provincial issues
and to keep in the information loop so
as to keep the Board from being blindsided on key issues. The fact that one
person holds the roles of Chair and COO
has resulted in a concentration of power
into one office wherein one person
alone has access to all the information
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George B. Cuff & Associates Ltd.
on both sides of the table. He has the
authority
to
direct
the
senior
administration as to what issues to bring
to the Board and in what manner he
would like to see such issues pursued.
As a result of this rather restrictive and
narrow approach, there is some
question as to whether or not the Board
receives all of the relevant information
on which to base a decision.
It is our opinion that it is almost
impossible
to
carry
out
the
responsibilities of both positions with
equal authority and credibility. If there
are concerns by either the Government
or industry relative to one of the
functions that the Chair/COO performs,
it is highly likely that there will be
perceptions of problems in other roles
as well. The type of skills one needs to
serve as the chair of a board are quite
dissimilar to those attributes of a chief
operating officer who adds value by
understanding
the
issues
being
confronted by his senior administrators.
Some suggest that the role of the Chair
is to promote and support the purpose
of the NRCB. He is also the head of the
Board who establishes review panels,
and is also available to sit on panels but
has generally handed off that role to
other members of the Board. The role
needs to include a mixture of:
– Chair of all Board meetings
– Policy initiator
– Public spokesperson
– Leader of Board members and the
rest of the organization
We were advised that the roles were
combined in order to:
– Be more cost effective
– Mirror the Chair/COO of the AEUB
Act as the link between the
governing board members and the
operations of the NRCB
As we view it, this approach has both
strengths and weaknesses:
 Strengths
– The Chair is able to provide policy
leadership to the Board as well as
interpret those policies, decisions
and
guidelines
into
effective
operational mandates for the
administration in directing its efforts
in regulatory operations
– The Chair will be able to provide a
field perspective to the Board’s
deliberations as a result of his
contact with those involved in
implementing Board decisions and
applying Board policy
 Weaknesses
– The Chair/COO requires personal
skills that are not often found in one
person i.e. the ability to manage a
diverse
group
of
seasoned
professionals as well as acting as the
policy leader on a quasi-judicial
Board
– The Board’s interpretation of its own
constraints
implies
that
the
Chair/COO combined role will be in
conflict much of the time, unable to
address key questions from industry,
staff or even the public
– The results depend on the strengths
of the individual filling this role far
more than being reliant on the
actual role of a Chair/COO
It is our opinion that this model has not
functioned very well. The Chair has not
been able to provide the leadership to
senior staff that they require as a group
in order to act as effective leaders of
their own divisions. The Board appears
–
Report on the Review of the Natural Resources Conservation Board
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George B. Cuff & Associates Ltd.
to reflect more individual confidence in
their own abilities to act but again does
not sense that they receive the level of
policy guidance and communication
from the Chair that would enable them
to function as a cohesive team. It is our
view that the combination of these roles
has not worked as intended and that at
least some of the concerns we heard
from a cross-section of those impacted
by NRCB decisions is a direct reflection
of a lack of confidence in the system of
governance employed. The role of Chair
is central to the effective functioning of
the Board. The combination of this role
with that of the COO has resulted in
neither one being as functional or
strategic as intended.
8.3.9 Impact of
Counsel
Legal
One of the key concerns relative to how
the Board functions is the role played by
the Board’s legal counsel (including the
counsel to the administration). There is
a sense by most of those we
interviewed that the Board has
developed in the way that it has as a
reflection of the predominant impact
and influence of its respected and
experienced counsel. While there is
obviously a need for the Board to fully
understand its legislative obligations, it
also needs to exercise its own judgment
as to what makes sense. In this
instance, we find that the legal counsel
exercises at least some degree of
influence over:
– What decisions will be forwarded to
appeal
– The style of the appeal
– Who is at the table during the
appeal
–
–
The tenor of the hearing
Board meeting discussions (all of
legal team may be in attendance).
8.4 Our Conclusions
Based on the foregoing, we conclude
that:
– The combined NRCB Act and AOPA
mandate of the Board provides a
reasonable basis for its continued
functioning provided that the appeal
function is separated from the other
functions
– The NRCB process for renewable
natural resource approvals was the
model in place; the Government did
not see the need to create a new
governing/appeal body
– The approach by the Board to
developing goals and priorities could
be enhanced if it found the right
mechanism(s) to incorporate the
input of those most directly affected
by its mandate
– The current Board size is hard to
justify given the workload and
limited involvement by the Board in
policy development
– The nature of the Board’s “business”
supports the logic of continuing a
Board as an expert body comprised
of those with training and academic
preparation
– The need for acting members is
difficult to prove given the very
infrequent use of members who
have agreed to serve in that
capacity; if the use of active
members is to be continued, there
needs to be an annual reassessment
of these members, the frequency of
their involvement and the likelihood
Report on the Review of the Natural Resources Conservation Board
57
George B. Cuff & Associates Ltd.
of future engagement as a Board
member
–
–
–
9.0
The appointment of senior staff
advisors to positions of acting
members should not be sustained
due to the appearance of conflict of
interest
The roles of the Chair/COO needs to
be separated so as to add increased
credibility, organizational leadership
and role clarity to the organization
The role of legal counsel to the
Board needs to be defined with
improved clarity.
Administrative Processes and Structure
9.1 Background Issues
In order for the NRCB to function
effectively, it must achieve a solid
balance of key components that, taken
together, will enable the system to
function in an interdependent and
integrated manner. Each component
must be able to work in harmony with
the others within a broad framework
that envisions all as co-equal partners,
each with distinct and complementary
roles.
We base our observations on what
works on our past experience in working
with a multitude of organizations
(largely in the non-profit sector) and
upon the literature pertaining to
organizational
effectiveness
and
leadership. In brief, we find that the
following key elements contribute to
effective organizations:
 Clarity of mandate, vision and
priorities
Understanding of the legislation and
regulations
Participation in organizational visioning
and goal setting
Development of administrative priorities
 Clarity of key roles
Clear statements of roles of Chair, COO
and Board members
Current position descriptions
Effective and updated organizational
structure
 Ethical leadership
Commitment to a code of ethics
Appropriate tone at the top
Trust in the leadership
 Effective business planning
Comprehensive process that follows
provincial guidelines
Involvement at all levels of the
organization
Development and follow-up measuring
of realistic performance targets
 Ongoing
process of policy
development
Participation in an ongoing process of
policy development
Good understanding of the need for
policies and their meaning
Development of procedures in support
of policy
 Effective supervision and support
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George B. Cuff & Associates Ltd.
Trained managers who provide good
leadership to those in the field
Support for independence within reason
Encouragement of personal initiative
 Transparent,
interactive
communication processes
Ability to participate fully in staff
meetings
Information that flows openly and
across the organization
 Performance Assessments
Clear organizational support for regular
feedback processes
Formalized annual mechanism of
personal appraisals
 Linkage to the Clientele
A planned and targeted schedule of
meetings with key sectors
An identified series of objectives to hold
or attend such meetings
Our review of the administrative
leadership takes into account certain
factors:
 For
a
relatively
young
organization (if one determines
that by looking at both its start
date and the major change of
adding the responsibility of
administering
AOPA)
the
administration has coped quite
well
 The NRCB has seen a major
change in its leadership through
the departure of a Chair in 2003
and the appointment by the
Minister of a new Chair from
amongst the Board members
 Based on direction received from
the Department, the Board
moved away from its attempt to
lead through a portfolio system;
a Chief Operating Officer was
appointed with the authority to


oversee the Directors; increased
separation from the Board was
encouraged
Staff changes occurred at the
senior
level
with
limited
information as to the rationale
for these provided to the
organization
The Director of Compliance
resigned during the course of
our Review.
9.2 Our Concerns
Our concerns largely centre on the lack
of strong and effective direction to the
senior administration by either the
Board or the COO. In the absence of
such
leadership,
the
senior
administration has been left to function
as it deems fit and within whatever
parameters it feels the Board and COO
will accept. While the organization is
blessed with having several experienced
and capable senior staff, the lack of
overall administrative direction has left
the
organization
floundering
and
searching for its bearings.
9.3 Our Findings
a)
Quality Employees
It is our assessment that the NRCB has
many qualified employees who are
serious about their work and enhancing
their professionalism and personal skill
development. The organization provides
an interesting challenge to employees
and offers excellent compensation and
quality office space. (We note that the
NRCB offices are located in Calgary,
Edmonton, Red Deer, Lethbridge,
Fairview and Morinville.
b)
Organizational Structure
Report on the Review of the Natural Resources Conservation Board
59
George B. Cuff & Associates Ltd.
The NRCB has grown quite significantly
over a fairly short period of time (from 6
employees in 2001 to approximately 45
today i.e.2005). This increase was, of
course, in large measure a response to
the addition of the responsibility for
administering the AOPA legislation.
The structure was conceived at an early
stage and has not changed substantially
since then. The current structure as
provided to us by the NRCB reflects the
following:
– The Chair at the head of the
organization
– The Board in a direct reporting role
to the Chair
– Legal counsel on a parallel basis to
that of the Board (i.e. co-equal)
– The COO reporting to the Chair
(these two positions currently being
held by one person)
– The following functions reporting to
the COO:
 Applications,
Communications,
Law and Reviews, Compliance
and Enforcement, Science and
Technology, Finance and Risk
Management
What the structure we received does
not reflect are the subordinate staffing
reporting relationships. In this regard,
we have concerns regarding the
placement of legal counsel to the Board
being in a supervisory relationship to
the legal counsel to the administration
and to the Manager of Reviews. It was
our understanding that there were
substantial reasons for ensuring a
separation between the Board and
administration particularly with respect
to the formers quasi-judicial functions.
We question, therefore, the argument
that would support this reporting
relationship that would seem, at least
on the surface, to compromise the
independence of both of those acting as
legal counsel. We note that at a Board
hearing, the counsel to the Board takes
a fairly prominent role in advising the
Board and in asking questions of the
producer while the counsel to the
administration acts as its counsel and
confidant. While that gives the
impression of separate roles, the fact
that one reports administratively to the
other cannot serve the notion of
independence.
c)
Visioning
and
Priority
Setting
The administration has been involved
with the Board in its annual retreat,
which has been useful both in terms of
building morale and in discussing issues.
It has resulted in the administration and
the
Board
developing
a
better
perspective of the challenges facing it
and the progress made relative to
business plan priorities.
The business planning process is
described elsewhere in this Report. In
the main, the process has been well
received and appears to be acceptable
in terms of Government requirements.
While we believe that there are various
steps yet to be taken to improve the
understanding of this process, the fact
that the organization has moved in this
direction is very positive.
d)
Role Descriptions
We were advised during the course of
our review that not all individual
positions have been appropriately
defined. Several positions either did not
have current position descriptions or
they were just being completed
concurrent with the timing of this
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George B. Cuff & Associates Ltd.
review. Many of these positions have
evolved based on the work demands
and the skills and experience of the
personnel involved in these functions.
While the presence of older and
generally more mature employees has
helped in this regard, this loose system
has not provided an adequate base
upon which to assess performance. It is
our understanding that the Chair/COO
conducts
annual
reviews
(career
dialogues)(a system brought in by a
previous Board) with the senior staff
based on a broadly structured format.
This system has not allowed for relating
achievement of targets to any changes
in compensation.
e)
Performance Targets and
Assessment
The development of performance
targets is a fairly new innovation to the
organization. Some basic work has
begun in this regard and performance
on some key indicators has been
tracked. Thus, the NRCB has indicated
in its annual report (Year in Review)
that it has measured: applications
received by region; applications received
by type of permit; complaints received
by species and by type; number of
inspections, resolution of complaints;
average working days to completion of a
technically complete AOPA application.
The Chair/COO has sought external
advice relative to performance planning
and intends to make use of such a
system in the organization. We were
advised that there has been some
concern expressed by senior staff that
they were not involved from the outset
in these discussions and yet will be
expected to be active supporters and
participants. It is our understanding that
this matter is being addressed currently.
This issue is also related to the matter
of compensation. This is also being
reviewed by the same consulting firm
and is identifying the need for certain
adjustments in how progression is to be
achieved within pay bands.
While much of the negative focus and
comments have been targeted towards
the field staff, that commentary needs
to be taken within a broader
perspective.
The
Approval
and
Compliance Officers are on the front
lines trying to interpret and administer
the legislation and regulations according
to the guidance that they have received
and based on their experience. They
should be able to rely on clear and
sound guidance from their Director and
the COO relative to what is expected
and how to properly interpret difficult or
ambiguous sections. Based on our
interviews the majority felt they were
supported and appreciated for the
stresses and demands of their roles and
the need to exercise judgment in oftendelicate situations.
We were advised that many of these
staff members are unsure of the support
they will receive from the Board. Some
are more concerned than others about
having to appear before the Board and
expected to defend their “on the
ground” decisions. They are often
unclear as to expectations and tend not
to illustrate much independence or
flexibility based on comments they have
heard from the legal counsel to the
NRCB as well as the experience of their
colleagues.
f)
Policy Development
Policy development is one of the
fundamentals
of
successful
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George B. Cuff & Associates Ltd.
organizations and would be highly
beneficial to the NRCB. The approach
taken to date to this governance and
managerial technique has not been
helpful to strengthening the base of the
NRCB nor providing clear guidelines to
the staff who must continually make
judgment calls in the field. We accept
the fact that there is some question as
to whether or not that is a legitimate
role for a quasi=judicial body to
perform.
However, the NRCB does have a Human
Resources Policy and Benefits Manual
that covers a variety of generic policy
matters related to those topics. While
the policy provides guidance on these
issues, the manual also enables the
Board, Chair/COO to “…depart from
existing policy when circumstances
warrant.” The wording in the Manual
also states “The directors, the Audit and
Finance Committee (AFC) and the
Board, reviewed this Manual. The Board
approved the policies effective March
29, 2004. On May 3, 2004, the Board
approved the March 29, 2004 version to
be the final approved version. Finance &
Risk Management Division (FRM) takes
responsibility and ownership of this
Manual. It must not be altered or
revised without the approval of the
Director of Finance & Risk Management.
FRM will make administrative changes
as needed.”
We commend the organization for
ensuring that there is a policy
environment that envelops the key
matters pertaining to human resources.
Wee also note that the wording may
need to be clarified in that the authority
to approve or change the Manual
belongs to the Board (or as delegated to
the COO) as representative of the
Board.
The NRCB also has a Finance and Risk
Management manual that covers a wide
range of related issues including
purchasing, accounting, Board and
administration
expenses,
leasing
vehicles, the handling of assets, etc.
According to the Manual, “The directors,
the Audit and Finance Committee (AFC)
and the Board, reviewed this Manual.
The Board approved the policies
effective January 01, 2003”.
g)
Supervision/Direction
The Directors are expected to provide
supervision to the employees within
their department. Given the widespread
nature of the offices, this has been
difficult to achieve with any degree of
consistency. However, a concerted
effort has been made and the Directors
of Approvals and Compliance have made
a number of visits (albeit irregular) to
visit their staff members on site. Where
they have felt it to be applicable, the
Directors have provided their field staff
members with some degree of technical
guidance.
We believe that the Directors are intent
on providing adequate back-up and
support but expect their staff to be quite
independent based on their professional
training and expertise. This may be
motivational in some ways but also
places unrealistic expectations on
sometimes
relatively
inexperienced
employees (in terms of their work
experience) to respond to highly
contentious issues with a maturity of
judgment that may be well beyond their
personal
experience
level.
The
geographical
distances
places
considerable
barriers
on
senior
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George B. Cuff & Associates Ltd.
managers (the Directors) to meet
frequently with their staff members so
various techniques appear to be utilizedsome conduct conference calls every
couple of weeks, circulate departmental
circulars as information pieces, meetings
once or twice annually.
h)
Staff Training
Staff training is a matter that has been
discussed by the senior management
recently and was the subject of a survey
of the employees. This matter was not
previously pursued with any real sense
of rigour although staff did attend
various courses related to their work.
The recent staff survey identified the
need for courses in a variety of
disciplines including: introduction on
soils, geographic positioning systems,
risks associated with pathogens and
CFOs; media training, dealing with
difficult people. While there are related
courses
available
(i.e.
within
government) many of the principal
areas of concern to the administration
of the NRCB are somewhat unique to
those working in this environment. Work
has already begun on identifying those
who could offer these courses and
several courses will be held by the end
of the year.
Training of employees is also addressed
in the NRCB’s Career Dialogue Form that
serves
as
the
organization’s
performance review system. Employees
are asked to identify which courses and
training they feel would be of benefit to
them and to the organization and why.
i)
Communication
Communication is the lifeline of any
organization. This is particularly true of
an organization, which has as its main
mandate the provision of service to the
public. An effective organization ensures
that its messages and policies are
regularly and widely communicated
internally to those charged with carrying
out its day-to-day business and
externally to those who are intended to
receive such messages and need to be
aware of the policies.
Communication at the NRCB happens on
a variety of levels. The COO and
Directors meet bi-weekly (with the COO
generally but not always at that table.
The chairmanship of these is rotated
between
the
Directors.)
Other
communication occurs at the Board level
with the members in their contacts with
each other and with staff, the directors
in their meetings either one-on-one with
their staff or in group meetings, the
communications officer in terms of
getting the messages out to the external
publics, the annual “Year in Review”
newsletter that is sent out to a wide
audience, etc.
The NRCB has an important role to play
in ensuring appropriate linkage to its
clientele. This requires sound office
support to field enquiries as well as
good people in the field that can answer
questions and point people to the
resources they need to make informed
choices. Some of this contact is handled
in the office by the Review Officer and
Manager of Board Reviews as interested
parties contact the office for information
on an application or request for review.
Their contact is generally by someone
seeking clarification as to what the
Board will consider to see if a review is
necessary. Other may be looking for
answers relative to the possibility of
mediation and need to understand that
process. The applicant is also contacted
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George B. Cuff & Associates Ltd.
advising him/her of the request for a
review. The NRCB also has an obligation
to advise municipalities of applications in
their jurisdiction as they are always an
affected party.
Other members of the administration
are also involved in the public
communications process. Presentations
have been made to such groups as:
Alberta
Environment
Conference,
Regional Health Authorities, post
secondary students, the general public,
producers, Society of Professional
Biologists, industry conferences, the
municipal associations and individual
councils.
The Manager of Reviews meets with the
public, the companies and other
government agencies relative to NRCB
Act reviews as these reviews tend to
require considerable sharing of process
information.
Board members also attend various
conferences of related publics including
industry groups as well as municipal
associations. One of the Board members
is assigned to particular associations or
groups as a liaison and regularly
maintain contact to ensure that they are
aware of what the concerns of these
groups are vis-à-vis the NRCB.
We were made aware of and provided a
copy of the Communication Division’s
Operational Plan for 2005-06. The Plan
is comprehensive and includes: a vision
statement, a mission statement, a role
statement for Communications which is
defined as “…to provide pro-active,
strategic communications and issues
management advice to the board and
executive; to develop and execute
communications plans in coordination
with other divisions of the organization;
to
coordinate
and
liaise
with
stakeholders on communications issues;
to provide media relations advice and
leadership; to assist the organization in
developing effective internal channels of
communication;
and
to
ensure
consistent and effective messaging with
stakeholders and the public.”
The Plan goes on to say that “ To
accomplish these functions the Director
of Communications must work closely in
a trust-based relationship with the board
and executive. The director and
communications specialist also work
closely with staff in all divisions.” The
division’s core businesses are cited as:
 Strategic communications advice
and issues management
 Government
and
other
stakeholder liaison
 External
relations
communications support: create
and implement communications
plans
 Internal communications
 Media relations
 Corporate
communications
support:
communications
policies, corporate publications,
and operational materials to
assist with applications and
reviews under AOPA and the
NRCB Act.
The Communications Division recognizes
that it has a significant challenge on its
hands. The Plan identifies this when it
states: “Understanding and acceptance
of AOPA and the board’s regulatory
function is as low as 40% in some
areas. Challenges still remain among
municipalities, industry associations,
community members and operators. The
Report on the Review of the Natural Resources Conservation Board
64
George B. Cuff & Associates Ltd.
sectors have different interests and
often opposing points of view.”
While we are impressed with the Plan
and the identified strategies, the Plan
rightly provides the context of its
challenge. The outcome of the Plan
would lend evidence to an open and
transparent system, although neither
the external or internal audience has
described it as such. The external
audience complains of not being kept in
the loop at the right times and with all
the available information; the internal
audience points to the control exercised
by the COO over what goes out not only
externally but also to internal audiences
as well. The Board appears to suffer
from a lack of clear and consistent
communication and is highly dependent
on the level of information that the
Chair/COO is prepared to share with
them with staff advising that that may
not be made aware of key information
on a timely basis.
j)
Organizational Culture
The culture of an organization is a
composite reflection of several aspects
of how an organization functions. It
embodies the history and past practices
and reflects the personalities of the
leading players over the years. The
culture speaks to such issues as:
 how decisions are made
 who is advised of decisions and
on what level
 the
responsiveness of the
administration to the leadership
 a sense of who is in charge, both
formally and informally
 the
mores
of
acceptable
behaviour
the patterns of communication;
etc.
The NRCB has a history in a very
different culture than what it now finds
as a part of its make-up. Its background
due to the NRCB Act was very much a
regulatory culture. The Board dealt with
a number of large-scale developments
like pulp mills, large-scale recreation
developments, and dams etc. that were
quite prescriptive and highly regulated.
Hearings were prolonged and a court
like structure prevailed. The post-2002
NRCB is expected to function quite
differently. Their new audience or
clientele came out of a largely
unstructured municipal environment
where the rules seemed to change
regularly and were reportedly applied
inconsistently. Neighbours spoke their
piece before a Council or Development
Appeal Board and decisions were
rendered. While there may have been
major concerns about the lack of
consistency, the actual milieu of such
decision-making sessions was quite laid
back and relaxed. Producers were
meeting their neighbours and Council
members and while the politics of the
situation may have become quite
heated, the setting was a familiar one.
It is our assessment that the
organizational culture reflects:
 An unhealthy sense of mistrust
that pervades the system
 An
over-reliance
on
a
prescriptive, legalistic framework
and mindset that does not
appear to be suited to the nature
of the business
 A lack of understanding of the
delicate nature of the business
being reviewed and limited

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George B. Cuff & Associates Ltd.
awareness to the distinctions
that flow from size
 A reliance almost solely upon a
fairly narrow interpretation of
the legislation and regulations
 A lack of awareness of the
values of policy-driven decisionmaking
 Senior and support employees
who are seemingly independent
of public input yet quite fearful
of the political and public
pressure applied at hearings
 A lack of trust in the senior
administrative leadership that
results in an organization that is
undermined by the sense of fear
and paranoia
The
Board’s
relationship
to
its
administration is an important part of
the organization and its culture. As
described earlier, counsel to the Board
and reportedly the Government have
advised the Board that it needs to
separate itself from the matters that the
administration may be working on but
which may be subject to a Board review.
This has proven to be very difficult
given the fact that a number of them
share office space in Edmonton and
Calgary and frequently converse as a
result. Further, they may travel as a
group to community meetings and
communicating around obvious and
pressing
issues
becomes
quite
challenging.
When
preparing
presentations to groups, the Board
members obviously need to call upon
their administration for input and vetting
the presentation.
The Board receives requests for reviews
at regular Board meetings and deals
with these in caucus. The decision as to
whether or not to grant a review
depends upon:
 Do those wishing to speak to a
matter have a legitimate right to
do so
 Did the Approval Officer’s report
properly assess the relevant
matters
k)
Employee Survey
We were advised that the NRCB
employees participate in an annual
survey administered in conjunction with
the employees of other agencies, boards
and commissions within the Province of
Alberta
and
including
provincial
department
employees.
This
comprehensive survey included the
responses of 36 employees of the NRCB
for the 2004 survey which found that
the employees surveyed felt that the
NRCB was a good organization for which
to work; that they were satisfied in their
work to a much higher degree than
other
employees
of
ABCs
and
departments; that they felt valued as
employees by the NRCB; and that they
are enthusiastic about the work they do.
Employees felt that the quality of
supervision they receive is improving;
that there are clear work expectations
(up from 81% satisfied to 92%). “When
compared to the average scores for all
participating agencies, boards and
commissions,
the
NRCB
has
substantially higher than average scores
for all 10 aspects…When compared to
department employees, there was
higher
agreement
among
NRCB
employees that they would recommend
working at their organization to others
(86% of NRCB employees agreed,
compared to 70% of Government of
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George B. Cuff & Associates Ltd.
Alberta department employees and 79%
of employees of all participating
agencies, boards and commissions.
There was also higher agreement
among NRCB employees that they
rather continue working for their
organization that look for work with
another organization (86% of NRCB
employees agreed, compared to 73% of
all Government of Alberta department
employees and 76% of employees of all
participating agencies, boards and
commissions. NRCB employees are
somewhat more likely to leave (14% are
planning to leave), than all Government
of Alberta department employees
(11%), and equally likely to leave as
employees of participating agencies,
boards and commissions (14%).” This
report was prepared by the Core Human
Resource Measures Network, within the
umbrella
of
Alberta
Personnel
Administration which has now evolved
into a group known as Research
Innovations Inc.
9.4 Our Conclusions
On the basis of our assessment of the
organizational and operational aspects
of the NRCB within the mandate
provided by the terms of reference, we
conclude the following:
– The key elements of effective
organizations as we have articulated
in this Report and which we believe
to be supported by the literature are
not as soundly in evidence as we
believe both possible and necessary
– There does not appear to be strong
and effective direction to the senior
administration by either the Board
(as a result of its role) or the COO
The organization is staffed with
quality personnel who hold both
academic
and
experiential
qualifications that are largely suited
to the tasks required
– The
organization
structure
is
inappropriate in that the Board
should head the organization and
not a single person on the Board;
legal counsel should be viewed as an
advisory role and not co-equal with
the Board; administrative legal
counsel should be separate and
distinct from that of Board counsel
– The announced resignation of one of
the senior staff suggests that the
organization structure be reviewed
to determine if another approach
might be timely
– All positions need to be properly
defined before any staff member is
hired and the description ought to
be carefully reviewed on an annual
basis
– A new performance review system
will be helpful in identifying
performance issues and in helping to
set the base for at least one aspect
of compensation adjustments
– The work on performance targets
should be continued with a
reasonable profile of target criteria
to be measured
– All
members
of
the
senior
management team ought to be
participating fully in any revised
performance
assessment
and
compensation review system
Continued work is required on the
establishment
of
sound
procedures/protocols that will be of help
to those administering the regulations
and Act in the field
–
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George B. Cuff & Associates Ltd.
–
–
–
–
Work on policy development needs
to occur by either the Board or by
AAFRD; a review should be
undertaken on the approach to date
The Directors ought to be expected
to have ongoing substantive contact
with their staff who are serving in
the various field offices
The initiatives respecting staff
training should be continued
The Directors ought to be meeting
weekly with the COO in the chair
and responsible for the meeting
agenda
10.0
–
The employee survey conducted by
Research Innovations Inc. identified
that the employees are generally
pleased to work for the NRCB and
feel that they are appreciated for the
work that they do (while we note
this
and
the
other
positive
comments and results of the survey,
the comments provided to us in
response to specific questions
relative to organizational health lead
us to sense that there are major
areas of concern)
Business Planning
10.1 Background Issues
The last published NRCB Business Plan,
2004 –2007, included the following
Vision and Mission Statements:
VISION - A regulatory framework that
demonstrates
competence,
inspires
confidence and protects and sustains
development
of
Alberta’s
natural
resources.
MISSION - As Alberta's natural
resource regulator, the NRCB is
responsible for ensuring development of
our natural resources is socially,
environmentally
and
economically
sustainable, in the interests of
Albertans.
The NRCB Business plan, 2004 –2007,
also includes the following goals:
Goal 1.1: Deliver an efficient
approval process that ensures all
elements of the public interest
are
fully
and
impartially
considered.
Goal 1.2: Provide a relevant,
credible and responsive review
process based on a balanced and
fair approach to decisionmaking.
Goal 2.1: Create a level playing
field and achieve operator
compliance
by
ensuring
expectations for complying with
regulations and standards are
communicated, understood and
met.
Goal 3.1: Establish a recognized,
credible role for the development
and communication of technical
solutions to regulatory issues
under the NRCB’s mandate.
Goal 4.1: Increase stakeholder
confidence and trust by ensuring
stakeholders have open access
to information and ensuring full,
clear and timely disclosure of
Board decisions and activities.
Goal 4.2: Effectively manage the
NRCB
by
ensuring
administration, management and
accountability mechanisms are in
place.
Report on the Review of the Natural Resources Conservation Board
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Business Plan 2005-08
The SRD Business plan for 2005-08
includes the following goals relating to
the Natural Resources Conservation
Board:
Natural Resources
Conservation Board Act
6.1 Develop strategies to ensure
NRCB resources are available to
undertake NRCBA reviews in a
timely fashion.
6.2 Enhance communication
processes to ensure directly
affected parties and participants
understand the review process in
order
to
improve
process
efficiency.
6.3 Improve the hearing process
through solicited feedback from
both staff and participants.
Confined Feeding Operations
6.4 Streamline the application
process by clarifying information
requirements and improving
information gathering methods.
6.5 Investigate all complaints in
a thorough and timely manner,
with priority given to complaints
where there is potential noncompliance
issues
and/or
environmental risk.
6.6 Use facilitation or mediation
to assist parties in resolving
issues and to improve operator
and neighbour relations in
problem areas.
6.7
Enhance
stakeholder
communication
initiatives
to
improve
awareness
of
regulations,
increase
overall
compliance, and reduce the
number of confined feeding
operations having unacceptable
impacts on their neighbours and
the environment.
Business Planning
Approach
Based on interviews with senior
managers, it was reported that Business
planning is not new to the NRCB. Senior
management and the Board have often
been involved at different levels of the
business plan process. Since the NRCB
expanded its mandate to include the
administration of the AOPA legislation in
2002, the business plan had also
evolved to reflect more of its operation
of the three core businesses: 1)
Applications; 2) Enforcement and
Compliance; and 3) Review.
As for the content of NRCB’s business
plan, as mentioned above, it is
operationally driven in accordance to the
three core businesses. The performance
measures and strategies contained are
also output-based and process oriented.
Any future orientations in the business
plan tend to reflect forecasts of
workload and activities. The directors
claim there is a certain degree of
strategic directions or vision reflected in
both the business and operations plans.
This is largely due to insights gained
from their day-to-day dealings with
operators of CFOs, municipalities,
industry stakeholders and the general
public. The COO’s comments in this
regard are more modest. While he
acknowledges there is some strategic
planning activities being conducted by
the Board, they are seldom reflected in
the business plan, partly because of the
need for accountability for everything
that is contained in the business plan.
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The current COO claims his first act on
the job was to secure a stable financial
future for the Board to operate its new
mandate. We understand that he
received the blessing of the two former
ministers of AFRD and SRD to work on a
Business Case as an attempt to explain
what NRCB has to do to fulfill its
expanded mandate concerning AOPA.
With the help of senior officials of the
two government departments, the
Board was successful in making the
Business Case to the government that
defines the core businesses and the
resource requirements for the Board to
operate over the next three fiscal years.
10.2 Our Concerns
One of the purposes of this review is to
study the process used by NRCB in
conducting its annual Business plan.
Some of the key questions that will be
addressed include:
 Is long term strategic planning
part of the process?
 Who
are the key people
responsible for the planning
process?
 What process is being used in
developing the business plan?
 How is the Board’s business plan
tied into the Government’s
accountability process?
 What is the role of the Board
and the COO in the development
of the business plan?
 How is the business plan related
to the business case and setting
of the annual budget?
 What approach is used in terms
of
business
planning
and
budgeting?
Are the members of the staff
involved at the appropriate
times? Does each of the
Directors willingly share business
planning information from their
departments with each other and
is each Director encouraged to
critique the ideas of each other?
Even though the Audit and Finance
Committee of the Board has an
opportunity to review the draft business
plan, it is doubtful how much influence
they would have in shaping the direction
and content of the plan.
This begs the questions of whether the
Board’s business plan should be more
strategic in outlook and content. It is
our perception that current Board
members generally play a very passive
and limited role in the formulation of the
business plan other than giving approval
to it. As it stands, the plan is largely the
creation of the administration under the
leadership of the COO. The fact that
the Board Chair and the COO is the
same person automatically removes the
Board Chair’s role to challenge the
business plan under a normal board
governance structure, if a different
person is serving in that capacity.
Given the mission and mandate of NRCB
to administer NRCBA and AOPA, to what
extent should its business plan be more
than an output, operationally oriented
one? Several senior officials including
the Board Chair/COO have repeatedly
mentioned that it is not the role of
NRCB to “grow the industry” but to
regulate it based on guidelines of AOPA.
They believe it is primarily AAFRD’s role
to foster the growth of industry and for
SRD to set guidelines and strategic

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George B. Cuff & Associates Ltd.
priorities for the proper management of
sustainable growth of industry.
The business planning process has met
with a mixed response by the
administration. We asked a broad crosssection of staff both in the two main
offices as well as in other filed locations
and found that generally, the more
senior staff felt that the process was
developing quite well whereas the field
staff felt they were either left out of the
process completely or that their input
was very limited or non-existent. We
found that:
 Each employee is provided with
a copy of the Business plan and
is given the opportunity to
respond; as a result, staff fell as
though they are asked for input
after the fact
 Others are given a copy of their
Division’s plan and asked for
their input which they feel is
considered;
they
observe
however that there is no
opportunity to see or comment
on the overall NRCB Business
plan
 The degree of input appears to
vary
substantially
between
divisions (again we believe
because of a lack of overall
direction)
 Staff are expected to identify
case load projection and to
develop
performance
measurements for each variety
of issues
 Others suggest the need for
more structure to this process so
that the Board and staff have a
common
understanding
of
expectations
10.3 Our Findings
As an entity within SRD, the NRCB is not
required to submit a stand-alone
business plan for accountability purpose
nor is it required to table an Annual
Report to the government, even though
the MOU between the Minister of SRD
and the Board might have these
requirements. Therefore, due to the
very nature of its mandate and core
businesses, the business plan of NRCB is
operational and output based.
Nevertheless, for an organization to be
strategically positioned in any leadership
role, its business plan should reflect a
more systemic view or big picture of the
environment in which it conducts its
core business, instead of focusing
narrowly on the details of operations.
The Board feels like it acts as a rubber
stamp with regard to business planning.
It is not involved in the run up process
(i.e. setting the priorities and goals) and
feels that over the past couple of years,
their degree of influence over the Plan
has waned. The annual business plan is
developed with Director and staff input.
The senior administration develops the
business plan and presents it to the
Board for approval. The plan is done
annually and the presentation to the
Board is done by the Department
Directors. The Board has not been in the
practice of making substantive changes
to those plans and the Board believes
that the clients of the NRCB are not
involved in this planning process.
Perhaps a formal strategic planning
session, involving both Board members
and senior managers/officers of the
Board could be convened to conduct
formal environmental scanning, strategic
issues
identification,
to
redefine
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George B. Cuff & Associates Ltd.
outcomes and to articulate performance
measures for assessing the achievement
of these outcomes. For example, a new
outcome could be “Operators and
participant stakeholders are satisfied
and confident of the application and the
review processes are fair and effectively
administered”. This might lead to
creating performance measures such as:
“Percentage of clients who are satisfied
with the approval process and the
review process, etc.”
Lastly, the question of “How is NRCB’s
business plan related to the Business
Case that was developed in 2003?”
deserves some comment. In recent
years (2004-05, 2005-06), the directors
have started developing operations
plans including detailed performance
measures and targets of activities. A few
of the more critical performance
measures are selected to be included in
the Board’s business plan.
Accordingly, the business plan of NRCB
lays out an action plan to implement the
priority tasks presented in the Business
Case. Since 2003, the annual budget of
NRCB is set according to funding limits
set out in the Business Case,
supplemented with the Board’s Plan and
divisional operations plans that the
directors prepared.
10.4 Our Conclusions
–
–
–
–
–
officials of Alberta Auditor General, it
meets operational requirements.
Due to the very nature of its
mandate and core businesses, the
business plan of NRCB is operational
and output based.
The Plan should reflect a more
systemic view or big picture of the
environment in which it conducts its
core business, instead of focusing
narrowly
on
the
details
of
operations.
A formal strategic planning session,
involving both Board members and
senior managers/officers of the
Board should be considered to
conduct
formal
environmental
scanning,
strategic
issues
identification, to redefine outcomes
and to articulate performance
measures
for
assessing
the
achievement of these outcomes.
The MOU requires that the Chair
prepare short and long-range
business plans as well as capital and
operating
budgets
and
risk
mitigation plans.
The dual role of the Chair/COO as
well as the nature and role of the
Board members as either a quasijudicial and/or governance Board
have an impact on the future
business planning process of NRCB.
The following conclusions are drawn:
– As it presently stands, the business
planning process employed by NRCB
is an adequate one. According to
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11.0
Performance and Service Delivery
11.1 Background Issues
The last published NRCB Business plan,
2004–2007, included the following
performance measures:
The above performance measure
differed from those of the 2003-2006
NRCB business plan, in that it included
the complete timeframe impacting the
public following the measurement point
of a “technically complete application”.
This is valuable in that the performance
measurement is thereby closer to the
actual outcome of the process that
impacts the public.
Organizationally
this
performance
measurement may not be popular
because it points out a problem. The
“average turnaround time” for approvals
increases from a target of 79 days in
2004-2005 to a target of 179 days in
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George B. Cuff & Associates Ltd.
2006-2007, an increase of 127%.
The SRD Business plan for 2005-08
includes the above table containing
performance measures relating to the
Natural Resources Conservation Board.
11.2 Our Concerns
The following outline of concerns (as
been identified in some respects earlier
in our Report) pertains to the following:
 Confidence in the regulatory
system will only increase if the
NRCB is able to ensure an
increase in the level of
consistency in the application of
the regulations
 Continued effort is required to
ensure that industry is on side
with how these regulations will
be monitored and complaints
handled in a fair manner
 The Board needs to provide
ongoing evidence that it is
attempting
to
balance
its
requirement for fair play and
reasonableness
with
the
regulations and legislation it is
expected
to
oversee
and
adjudicate
 Directors have a responsibility to
ensure that their staff members
receive adequate orientation and
training for their respective roles
 Media
messages and direct
communication pieces need to
be used extensively to raise the
profile of the Board and its role
in this process
 The
need for science-based
standards needs to be pursued
and implemented in concert with
the industry so that everyone is
aware of why certain practices
are preferable to others
 The Board does ensure that it
makes the regulatory standards
available through various forums
 An
improved
information
management system has been
developed that provides better
access by approval officers and
compliance officers to files
 The NRCB is addressing the
report by the Auditor General
relative to its compliance and
enforcement function and has
engaged Stantec to assist in
developing
The Auditor Generals 2003-04 Report
included the following content regarding
the NRCB:
“Recommendation No.28
We recommend that the Natural
Resources Conservation Board
enhance its compliance and
enforcement
function
by
prioritizing tasks based on risk
analysis and managing odour
and nuisance complaints more
efficiently”.
In response to the comments by the
Auditor Generals office, NRCB undertook
to include a response to those issues in
the work being undertaken by Stantec.
The project is being undertaken in
phases due to manpower and budget
limitations. Phase 1, a compliance and
enforcement needs assessment and a
set of preliminary recommendations,
was completed in the first quarter of
2004.
Based on the results of Phase 1, three
issues were prioritized for follow up in
the Phase 2 work. Phase 2 focused on
(a) the development of a formalized,
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George B. Cuff & Associates Ltd.
written enforcement policy for the
Agricultural Operation Practices Act, (b)
the review and development of a
protocol for handling odour complaints,
and (c) the development of a risk-based
approach to the inspection of AOPA and
pre-AOPA facilities. Phase 2 commenced
in mid 2004 and was completed in the
first quarter of 2005.
The template risk matrix developed in
Phase 2 will be further developed during
Phase 3. The Auditor Generals office
completed a follow-up review earlier this
year and found the progress by NRCB
on the issues of development of a
formal protocol for handling odour
complaints and the use of a risk-based
approach for conducting inspections, to
be satisfactory.
Phase 3 is expected to commence
September 2005 and will involve
completion and implementation of the
activities commenced in Phase 2. This
includes the development of a written
compliance and enforcement policy for
the Agricultural Operation Practices Act,
communication with stakeholders and
implementation of a more formalized
approach to handling odour complaints;
and further development and field
testing of the use of risk matrices for
inspections of AOPA and pre-AOPA
facilities. A draft of the written
compliance and enforcement policy is
proposed
to
be
circulated
to
stakeholders for comment prior to
formal adoption and publication.
11.3 Our Findings

The NRCB has responded
promptly to the advice received
by the office of the Auditor
General
relative
to
the




development of as more risk
analysis approach. Our review of
the work to date suggests that
there is every reason to believe
that this will be of considerable
value to the administration in
handling such issues on other
than simply a complaints based
approach.
We are concerned that the NRCB
has not been able to develop
and
utilize
consistent
performance
measurements
from year to year. This lack of
consistency has an impact on
both organizational effectiveness
and the ability of the Board to
govern. An example of this
inconsistency is:
The 2003-2006 NRCB Business
plan
utilizes
the
measure
“average time to make a
decision once all required
information, including public
responses, has been received”,
excluding most of the timeframe
that the public and the industry
is concerned about
The 2004-2007 NRCB Business
plan
utilizes
the
measure
“average
turnaround
time”,
following the measurement point
of a “technically complete
application”; this includes most
of the application timeframe
affecting the public and industry.
The 2005-2008 SRD Business
plan utilizes, regarding the
NRCB, the measure “AOPA
Applications – Average days to
issue a decision on a technically
complete file (all application
requirements met)”. A note on
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George B. Cuff & Associates Ltd.

this performance measure says
“New measure. Preliminary data
and methodology has not been
audited and is subject to change
pending a review by the Office of
the Auditor General
Sample
quarterly
reports
provided do not refer to the
performance measures within
the business plan that applies to
them. If performance measures
are not used by the organization
as a continuing and published
outcome, they are not going to
influence the performance of the
organization.
11.4 Our Conclusions
In a May 21, 2002 letter from the NRCB
to industry a promise was made that
there would be – “a steady decrease in
application
(processing)
time”.
Unfortunately the “average turnaround
time” for approvals is forecast in the
2004-2007 NRCB Business plan to
increase
while
the
volume
of
applications is expected to remain
steady. While the organization has
recognized this is a problem, the scale
of the problem has not been
understood. One of the most significant
concerns by the public, industry, NRCB
Board members, NRCB staff and other
government agencies has been the
length of time needed to process an
application. That concern is expressed in
relation to the current target of 79 days.
Unless the NRCB can implement
fundamental change in its application
and approval processes, reducing the
length of time needed to process an
application, a turnaround time of 179
days (as targeted) can be expected to
cause a crisis for the NRCB, the public,
the industry and the government.
Performance
measures
need
to
continuing from year to year, and need
to be tied to outcomes important to the
needs of the clients it serves, i.e. the
public, industry and government.
The Stantec work is being done in
phases and was initiated in early 2004,
partly in response to internal needs,
partly in response to issues raised by
the Auditor General’s review of NRCB
activities.
A phased approach was
necessary due to manpower and budget
limitations.
The Phase 1 work was essentially a
compliance and enforcement needs
assessment and a set of preliminary
recommendations.
This work was
completed in the first quarter of 2004.
Based upon the results of the needs
assessment
and
preliminary
recommendations, three issues were
prioritized for follow up in the Phase 2
work. The Phase 2 work focused on
development of a formalized, written
enforcement policy for the Agricultural
Operation Practices Act, review and
development of a protocol for handling
odour complaints, and development of a
risk-based approach to inspection of
AOPA and pre-AOPA facilities.
The
Phase 2 work commenced in mid 2004
and was completed in the first quarter
of 2005. The work on developing a risk
based approach to inspections resulted
in a template risk matrix which will be
further developed during Phase 3. The
development of a formal protocol for
handling odour complaints and the use
of a risk-based approach for conducting
inspections were both recommendations
contained in the Auditor General’s
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George B. Cuff & Associates Ltd.
recommendations to the NRCB in 2004.
The AG’s office completed a follow-up
review earlier this year and found the
progress we had made on these two
issues to be satisfactory.
The Phase 3 work is expected to
commence within the next few weeks
and will involve completion and
implementation
of
the
activities
commenced in Phase 2. This includes
development of a written compliance
12.0
and enforcement policy for the
Agricultural Operation Practices Act
which will circulated to stakeholders for
comment prior to formal adoption and
publication;
communication
with
stakeholders and implementation of a
more formalized approach to handling
odour
complaints;
and
further
development and field testing of the use
of risk matrices for inspections of AOPA
and pre-AOPA facilities.
The Need for Balance
At the end of the day, we remain
convinced that the Government made
the right choice relative to responding to
the need for improved regulation of a
very important industry. While this
decision was supported by many of
those currently “in the business”, what
they thought they heard in terms of how
a new system would work obviously
varied from person to person and sector
to sector. Much of what we heard was a
reflection of concerns regarding a new
system that may have not clearly
understood (or wanted to understand)
the objectives of the new mandate
granted it by the Government.
Regardless of the agendas of those
involved, and they are obviously quite
disparate albeit united in the need for
regulation, the fact remains that certain
changes need to be made if a basis of
trust is to emerge. Without this, the
stresses that we heard expressed will
continue to persist unabated and will
increase the level of frustration that we
heard throughout this Review.
In spite of the negative reactions that
our questions evoked among many of
those we interviewed, there remains
considerable support for the efforts of
individual Board members and staff of
the NRCB. Their mandate almost
ensures them of contrary opinions and,
at times, derogatory comments. This is
regrettable given their desire to act
professionally and provide leadership in
a difficult arena.
Those we spoke with felt that the
Province has a mandate to ensure that
the agriculture industry is provided with
a fair balance in the legislation of the
public will vis-à-vis their concerns for
the environment as well as the desire of
Albertans to enjoy a reasonable lifestyle.
There was a ready recognition of the
role of the Government in ensuring that
its policies regarding this industry are
fair and balanced and that any
regulation of the industry respect these
objectives as well as the principles of
justice and fair play.
Municipalities were at one time the
principal agent making the key decisions
regarding the approval and placement
of intensive livestock operations. While
some have indicated a measure of relief
that these issues are no longer theirs to
adjudicate, the pressures they feel from
Report on the Review of the Natural Resources Conservation Board
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George B. Cuff & Associates Ltd.
constituents keeps the issues close at
hand. In some respects, we perceived
that the central concern of local
governments is their sense of being
forgotten in the process. We are aware
that the NRCB has had a presence with
municipal leaders, however from their
perspective that is not sufficient in
terms of compensating for the absence
of a close working relationship during
the actual evolution of issues in their
jurisdictions.
Municipal leaders spoke clearly about
their concerns relative to the impact of
CFOs on their communities. They
appear to recognize that CFOs are a fact
of life in some regions more so than
others. At the same time, they express
the view that their involvement at the
table relative to any review of legislation
and regulations would be of benefit to
the mandate of the NRCB as well as to
the comfort level that municipalities
should have with an agency that has
such an inordinate impact on the quality
of life in their respective communities.
They need to be vigilant in not only
protecting a way of life but also
ensuring appropriate regulation of
groundwater supply and quality as well
as air quality and odours.
There is considerable unease regarding
the approach that the Board has taken
to regulating a diverse but generally
fragile industry. Having come through
several significant challenges to their
industry over the past months and
perhaps years, the spectre of a Board
and its staff placing demands on
producers to improve their operations at
a cost that has not been factored into
the question of viability has proven
stressful and at times for some, quite
onerous.
These concerns, however, need to be
balanced against the voices of those in
the surrounding neighbourhoods some
of whom point to a lack of consistency
in terms of how the Board has been
attempting to regulate the CFO industry.
The increasing urbanization of Alberta
has resulted in residents moving closer
to intensive livestock operations that are
then perceived as impinging on the
desire of new acreage owners for
serenity and thus distance from the
noise and odour of livestock. These
concerns are often valid but are difficult
to rationalize in areas that lend
themselves to
intensive livestock
developments.
This requires clear guidelines as to who
has the authority to set the policies that
the Board is expected to adjudicate. At
the moment, that does not seem to be
clearly understood. It is our view that
the NRCB has crept into that realm by
developing policy responses in areas
where they perceive vacant ground.
While this may be tempting based on
the requirements of certain appeals, it
also frustrates in our view the right of
the
Government
through
its
departments to articulate policy. Under
its present mandate, the Board still has
a role in setting policy vis-à-vis how it
deals with the issues that arise within its
mandate that are not contradictory to its
legislated role. It is in these areas that
the administration of the Board needs
improved leadership.
The challenge facing the Province is not
one of to regulate or not but rather how
to
achieve
an
environmentally
sustainable balance between the needs
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George B. Cuff & Associates Ltd.
of an important part of the economy
and the expectations of citizens for
clean, safe and liveable communities.
Further, we believe that the intent of
13.0
many of those whom we had contact
with during the course of our Review is
achievable within the “right” framework.
Structural Options
It is apparent in our opinion that the
manner of issue resolution by the NRCB
particularly as it applies to the
administration of the AOPA legislation
and regulations has not worked well and
regardless of the best of intents by
those in senior positions in the NRCB
the problems that have plagued the
NRCB in the past will continue to do so
in the future. While we could make
certain recommendations that would
hopefully address some of the faults of
the system, we are still left with the
view that the issues we have identified
in this Report could be better
accommodated in a somewhat different
decision-making system.
Incorporating the review, approval,
enforcement and appeal functions under
one roof will not satisfy the expectations
of the marketplace in which the NRCB
functions. That is, regardless of the best
intentions of reasonable people, the
perception of conflicted interests will
envelope the actions and decisions of
the NRCB. Further, the combined role of
Chair and COO also will continue to
undermine the leadership expected of
the Board and the effective guidance
required by the administration.
Principles of an Effective Model
We see the following principles as
essential to an NRCB governance and
administrative model:
– Clarity of vision and direction by the
Board
–
–
–
–
–
–
–
–
–
–
–
–
An effective and ongoing policy
development process
Clear guiding policies
Trusted administrative leadership
Separation of policy/legislative and
administrative roles
Soundness and consistency of
decisions
Sensitivity to the various publics
served
Separation of the review/appeal and
approval functions; the creation of a
new perception that the appeal
process is completely unbiased and
independent
Assistance to applicants based on
approved policies and standards
Ongoing research relative to sound
environmental
and
agricultural
practices
Clear provincial policy guidance from
inter-connected
Government
Ministries and departments
Cost effective and efficient processes
Access to the best minds available
for continual improvements to the
operations, functions and appeals to
which the NRCB provides oversight.
The Options
Having examined various models of
decision-making that we feel are related
in some way to the nature and mandate
of the NRCB, we see the following
options as worthy of consideration.
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George B. Cuff & Associates Ltd.
Option 1:
Create a new Natural
Resource Conservation Agency in SRD
Option 2:
Create a new Agricultural
Sustainable Resources Agency in AAFRD
Option 3:
Create a new Natural
Resource Conservation Agency in
AAFRD
Option 4:
Create a new Agricultural
Sustainable Resources Board in SRD
Option 5:
Use the Environmental
Appeal Board as the Appeal Body
–
Option 1: Create a new
Natural Resource
Conservation Agency in
SRD
–
–
–
–
–
Key Changes
–
–
–
Separate administrative and Board
functions
Create
a
Natural
Resource
Conservation Agency (NRCA)
Separate from a restructured Natural
Resources Conservation Board
Characteristics:
–
–
–
The NRCA would be responsible for
all reviews, approvals, enforcement
and compliance associated with
AOPA related applications
The NRCA would be administered by
the current organization’s resources
led by a Chief Executive Officer
The NRCA would have access to
mediation expertise and would
consider the appropriateness of
seeking
alternative
dispute
resolution prior to referring any
appeal to the Board
–
–
–
The CEO would report to the Deputy
Minister of Alberta Sustainable
Resource Development
Reports on all approvals would be
immediately posted on the NRCA
website
An Industry Liaison Committee
would be continued
A separate part time Board that
would be called as needed to hear
any appeals to AOPA decisions by
the NRCA as well as any reviews
under the NRCB Act
Board would report directly to the
Minister of Sustainable Resource
Development
A Chair position that could be
rotated as necessary depending
upon
the
nature
of
the
inquiry/request
and
thus
the
expertise required
Board members who are appointed
based on their background expertise
A part-time Board secretariat
retained based on the needs of the
Board
The NRCA would also be responsible
for the development of policy,
creation of a Business plan,
development of procedures and the
development of standards.
Advantages
–
–
–
–
Achieves separation of appeal
function from rest of mandate
Minimal
disruption
to
the
organization
Provides for new administrative
leadership
Reduces costs due to part-time
Board, allowing additional funding to
be applied to operations
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George B. Cuff & Associates Ltd.
–
–
–
–
–
–
–
–
Both functions remain with SRD;
encourages a perception of fair play
and independence with Board and
agency
apart
from
system/department that promotes
agriculture as an industry
Limited legislative change required
 Disadvantages
Will result in the necessity of some
degree of personnel change; Board
members change from full-time to
part-time
Some degree of transition lag time
due to introduction of new CEO to
organization
Board processes may still appear far
too onerous and not user-friendly to
AOPA clientele
Industry may perceive that the
changes are not suitably substantial;
would prefer that the non-appeal
aspects be placed within AAFRD
Legislative change required
Creates a new government agency,
which is counter to the general
government direction of reducing
the number of agencies.
Option 2: Create a new
Agricultural Sustainable
Resources Agency in AAFRD
Key Changes
–
–
Continuation of the NRCB under its
former mandate
A new Agricultural Sustainable
Resources Agency (ASRA) to handle
AOPA matters
Characteristics
–
–
–
–
–
–
–
–
–
–
–
The NRCB would be responsible for
the administration of the NRCB Act
The NRCB Board would be
composed of part-time members
and a small secretariat would be
retained to respond to inquiries and
draft materials for appeals
The ASRA would be responsible for
all reviews, approvals, enforcement
and compliance associated with
AOPA related applications
The ASRA would be a separate
crown agency comprised of the
current organization’s resources led
by a Chief Executive Officer
The ASRA would have access to
mediation expertise and would
determine the appropriateness of
alternative dispute resolution
The CEO would report to the Deputy
Minister of Alberta Agriculture, Food
and Rural Development
Reports on all approvals would be
immediately posted on the ASRA
website
An Industry Liaison Committee
would be continued
A separate part time ASRA Board
would be established under the
authority of the Minister of AAFRD
and would be called as needed to
hear any appeals to AOPA decisions
by the ASRA
A Chair position that would be
rotated as necessary depending
upon
the
nature
of
the
inquiry/request
and
thus
the
expertise required
Board members who are appointed
based on their background expertise
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George B. Cuff & Associates Ltd.
–
–
A part-time Board secretariat
retained based on the needs of the
Board
The
Agency
would
also
be
responsible for the development of
policy, creation of a Business plan,
development of procedures and the
development of standards.
Advantages
–
–
–
–
–
Achieves separation of appeal
function from rest of mandate
Provides for new administrative
leadership
Reduces costs due to part-time
Board
Agency would presumably have
improved access to Agriculture
expertise in handling their core
functions
Industry would likely support as this
comes the closest to the model they
have suggested
Disadvantages
–
–
–
–
–
–
Places both the Board and the
agency under the auspices of AAFRD
which will likely be perceived
publicly as lacking independence
Will result in the necessity of some
degree of personnel change; Board
members change from full-time to
part-time
Some degree of transition lag time
due to introduction of new CEO to
organization
Would need considerable focus on
communications to get across
message that the NRCB no longer
serves the AOPA world
Would require legislative changes
Creates a new government agency,
which is counter to the general
government direction of reducing
the number of agencies.
Option 3: Create a new
Natural Resource
Conservation Agency
(NRCA) in AAFRD
Key Changes
–
–
–
Natural
Resource
Conservation
Agency reporting to AAFRD
Separation of Chair and COO
Functions
Part-time Board
Characteristics
–
–
–
–
–
–
–
–
The NRCA would be responsible for
the administration of AOPA
The NRCA would be responsible for
all reviews, approvals, enforcement
and compliance associated with
AOPA related applications
The NRCA would be a separate
crown agency comprised of the
current organization’s resources led
by a Chief Executive Officer
The NRCA would have access to
mediation expertise and could
consider the appropriateness of
seeking
alternative
dispute
resolution
The CEO would report to the Deputy
Minister of AAFRD
Reports on all approvals would be
immediately posted on the NRCA
website
An Industry Liaison Committee
would be continued
A separate part time NRC Board
would
be
established/continued
under the authority of the Minister
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George B. Cuff & Associates Ltd.
–
–
–
–
of Sustainable Resources and would
be called as needed to hear any
appeals to AOPA decisions by the
NRCB
The NRC Board would be composed
of part-time members and a small
secretariat would be retained to
respond to inquiries and draft
materials for appeals
A Chair position that would be
rotated as necessary depending
upon
the
nature
of
the
inquiry/request
and
thus
the
expertise required
Board members who are appointed
based on their background expertise
The NRC Agency would also be
responsible for the development of
policy, creation of a Business plan,
development of procedures and the
development of standards.
Advantages
–
–
–
–
–
Achieves separation of appeal
function from rest of mandate
Provides for new administrative
leadership
Reduces costs due to part-time
Board
Agency would presumably have
improved access to Agriculture
expertise in handling their core
functions
Industry would likely support the
separation of the appeal function
from other functions
Disadvantages
–
Places agency responsible for
reviews, approvals, inspection and
compliance under the auspices of
AAFRD which will likely be perceived
publicly as lacking independence
–
–
Will result in the necessity of some
degree of personnel change; Board
members change from full-time to
part-time
Some degree of transition lag time
due to introduction of new CEO to
organization
Option 4: Create a new
Agricultural Sustainable
Resources Board in SRD
Key Changes
–
–
–
–
Creation of a Confined Feeding
Operations Division within AAFRD
AOPA Board created to hear appeals
Part-time Board
Retention of NRC Board to hear
matters under the NRCB Act
Characteristics
–
–
–
The Confined Feeding Operations
Division of AAFRD would be
responsible for administration of the
AOPA legislation and regulations; led
by an Assistant Deputy Minister; the
functions would be set up using the
same
protocols
as
Alberta
Environment does for regulatory
approval.
NRC Board would continue to report
to the Minister of Sustainable
Resources and would be responsible
for the administration of the NRCB
Act only; a small secretariat would
be required
The CFO Division would be
responsible
for
all
reviews,
approvals,
enforcement
and
compliance associated with AOPA
related applications
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George B. Cuff & Associates Ltd.
–
–
–
–
–
–
–
–
–
–
An Agriculture Sustainable Resource
Board would be a separate crown
agency comprised of part-time
members led by a part-time Chair
(drawn from a list of available expert
members; rotated as necessary due
to matter under appeal)
The CFO Division would have access
to mediation expertise
An Industry Liaison Committee
would be continued
The ASRB would be composed of
part-time members and a small
secretariat would be retained to
respond to inquiries and draft
materials for appeals
The CFO Division would also be
responsible for the development of
policy, creation of a Business plan,
development of procedures and the
development of standards.
A full functional review should be
performed on the operations.
Extensive cross training should take
place to ensure consistency
All human resource matters should
be handled through the government.
Salaries and benefits should be
consistent with the government.
A communications plan (internalexternal) should be developed.
Advantages
–
–
–
–
Achieves separation of appeal
function from rest of mandate
Provides for new administrative
leadership
Reduces costs due to part-time
Board
Division would be directly linked to
rest of Agriculture Department;
education and extension services
readily available
–
–
–
Less sense of industry and
Government working at crosspurposes
Industry would likely support as this
comes the closest to the model they
have suggested
NRCB returns to their original
mandate where their processes may
find a better “fit”
Disadvantages
–
–
–
–
Places both the Board and the
agency under the auspices of AAFRD
which will likely be perceived
publicly as lacking independence
Will result in the necessity of some
degree of personnel change; Board
members change from full-time to
part-time
Some degree of transition lag time
due to introduction of new CEO to
organization; transition of agency to
AAFRD will be difficult and may be
costly due to unplanned staff
departures
Considerable costs will be incurred in
terms of creating a new world
Option 5: Use the
Environmental Appeal
Board as the Appeal Body
Option 5A:
Leave regulatory functions of NRCB
intact with respect to both NRCB Act
and AOPA, transfer appeal functions
regarding AOPA to EAB.
Characteristics:
–
NRCB
would
remain
intact,
responsible for all NRCB Act matters
as before, and would continue to
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George B. Cuff & Associates Ltd.
–
–
carry out regulatory functions under
AOPA.
Requests for review under AOPA
would be dealt with by the EAB.
The NRCB would be party before the
EAB, just like the Director for Alberta
Environment is currently a party in
appeals under EPEA and the Water
Act.
NRCB would report to the Minister of
SRD, and for the purposes of
appeals under AOPA, EAB could also
report to Minister of SRD.
Advantages:
–
–
–
–
–
–
–
Separates appeal and regulatory
functions from the rest of the
mandate
Clear message that the appeal is
unbiased,
impartial,
and
independent
Minimal
disruption
of
the
organization; limited transition time
(As the EAB already is in operation,
it could begin accepting appeals
almost immediately)
Frees Board member to take proper
leadership role of the organization
and carry out functions that would
otherwise be limited by the current
appellate function that they perform
Number of full-time Board members
could probably be reduced; Board
members could take more active
role in implementing policy.
Allows regulatory functions to be
carried out with out the same
degree of legal process that is
required with an appeal body
Provides for a single appeal that
could deal with both appeals under
AOPA and under the Water Act.
–
–
–
Limited legislative changes required;
EAB already designed to take
appeals from any other legislation,
and report, with respect to appeals,
to other Ministers
With legislative changes, can chose
between the EAB making the final
decision, or the EAB making a report
and
recommendations
to
the
Minister of SRD for final decision;
the latter approach provides the
Minister with an opportunity to
effect decisions made by the NRCB
No need to create a new agency;
EAB already exists with a complete
infrastructure, it has a strong
reputation
for
providing
an
independent review of decisions,
and has a well-developed and
successful mediation program; EAB
already has member able to deal
with the types of issues that are
usually raised on appeal; EAB has a
strong reputation for making science
based decisions
Disadvantages:
–
–
–
–
May not be as substantial a change
as is being requested by industry
(Option 5B and 5C may address this)
Possible reduction on number of
Board members at NRCB; switch
from Board member at NRCB from
full-time to part time
Depending on the number of
appeals received, the EAB may
require some additional funding
Must clearly communicate the EAB
now deals with appeals
Option 5B:
Leave regulatory functions of NRCB
intact with respect to NRCB Act, transfer
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George B. Cuff & Associates Ltd.
regulatory functions of AOPA to SRD,
transfer appeal functions regarding
AOPA to EAB.
Options 5C:
Resource Conservation Agency to deal
with regulatory functions of AOPA,
transfer appeal functions regarding
AOPA to EAB.
Leave functions of NRCB intact with
respect to NRCB Act, create Natural
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George B. Cuff & Associates Ltd.
14.0
1
2
3
4
5
6
Recommendations
We
recommend
that
the
Government review the structural
options as presented herein and
determine the appropriate steps to
bring about renewed confidence in
the regulation of matters related to
the current mandate of the NRCB.
We recommend that the mandate
of the NRC Board be limited to that
of an appeal body relative to
matters under both the NRCB Act
and AOPA.
We recommend that the roles of
Chair and Chief Operating Officer
be split with separate position
descriptions for each and that the
latter be re-named the Chief
Executive Officer.
We
recommend
that
the
Government recruit someone to the
role of CEO who has a suitable
background in the key aspects of
the NRCB/AOPA mandate.
We recommend that the Natural
Resources Conservation Board be
established, as a Board of 6-9 parttime members.
We recommend that a Chair of the
revised
Natural
Resources
Conservation (NRC) Board be
appointed,
with
authority
to
oversee
the
responsibilities
assigned to the NRC Board,
including:

identifying members to serve
on “Review” or “Decision”
Panels

serving on panels

drafting decision reports

acting on those other related
duties as assigned.
7
We recommend that the intent of
the Government vis-à-vis the role of
the NRC Board in commenting on or
requiring changes to any practice
that was in operation prior to
January 1st 2002, and policy
guidance to the NRC Board relative
to the issue of “protect the right to
farm” in terms of agricultural
sustainability, be provided through
the provision of a purpose
statement in the AOPA.
8 We recommend that the NRC Board
and Alberta Environment work
towards
streamlining
and
harmonizing their respective roles
and responsibilities.
9 We recommend that a process of
mediation be considered where
appropriate prior to any appeal
being heard by the NRC Board.
10 We recommend that a “Review”
Panel be established at the request
of the CEO of the NRC Agency to
determine whether or not a
decision of the Approval Officer
should be sustained or whether or
not the request for an appeal has
sufficient merit to take the matter
to an appeal.
11 We further recommend that when a
matter is determined by a “Review”
Panel to have sufficient merit to
warrant the appeal being heard by
the Board, that the NRC Board
Chair strike a “Decision” Panel
consisting of three NRC Board
members with the NRC Board Chair
having the right to serve on one of
the panels to hear the matter.
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George B. Cuff & Associates Ltd.
12 We recommend that the Minister
provide the NRC Board with access
to legal and other support services
as required from time to time.
13 We recommend that the NRC
Agency take a leadership role on
the development of Business Plans
and
performance
measures,
including a facilitated formal
strategic planning session, a
planned
methodology
of
establishing goals, priorities and
performance
measures,
and
obtaining broad input into the
business planning process.
14 We recommend that the NRC
Agency conduct a thorough review
of
its
resources
and
the
performance of each regional office
and ensure that the resources are
appropriately allocated and that the
policies of the NRC Agency are
being followed consistently. We also
recommend that the CEO of the
Agency consider the utilization of
the services of the Office of the
Chief Internal Auditor (and/or an
experienced external consultant) to
regularly examine its approval and
compliance processes to ensure
consistency of decisions across the
Province.
15 We recommend that the approval
process be reconfigured in order to
require the Director of Approvals to
sign the approvals (recognizing the
need for and acceptability of
variance decisions under AOPA and
the regulations), and that the
current approval officer’s job
function be changed to an
“Application Review Officer”, who
16
17
18
19
would be responsible for assisting
the client through the process.
We recommend that Government
communicate the approved changes
to the organization to all of the
affected stakeholders in order to rebuild relationships and confidence.
We
recommend
that
the
Government enhance its research
into the options for mitigating
odours associated with confined
feeding operations.
We recommend that the ongoing
review by the external consultant
relative to the appropriateness of
approval/application/compliance
processes of the NRCB be
continued and that consideration be
given to how these standards might
afford some degree of flexibility to
account for variations based on the
significant
geographical
and
topological differences that exist.
We recommend that the new
agency (NRCA) develop processes
to ensure that:

every field officer is trained
in the application and
interpretation of the AOPA
and regulations in approving
applications

generally accepted standards
of the related professions be
accepted or cause is shown
as to why it would deny the
evidence provided by a
professional
engineer
or
consultant

all applicants are made
aware of the NRC Agency
recommended and approved
processes
for
retaining
external expertise
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George B. Cuff & Associates Ltd.


more detailed guidelines are
provided to all offices and
applicable staff as needed
an ongoing review of its
policies and processes is
conducted with the input of
all
relative
stakeholder
groups being sought.
20 We recommend that the NRC Board
engage an external consultant to
conduct a follow-up review of the
implementation of this Report
within 9-12 months and that the
results of such a review be shared
with the affected stakeholders.
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Appendix A –
Terms of Reference
The terms of reference for this
comprehensive Corporate Review of the
NRCB were as outlined in our original
proposal. These follow:
 “Conduct
a review of the
performance of the Natural
Resources Conservation Board
for the period March 31, 2004 March 31, 2005 as outlined in
the
March
26,
2005
Memorandum of Understanding
between
the
Minister
of
Sustainable
Resource




Development and the Natural
Resources Conservation Board.
Review the clarity of the
mandate and objectives of the
Board.
Conduct an assessment of the
Board’s administrative processes
and structure.
Review the Board’s approach to
short and long term Business
planning.
Review the Board’s performance
and
service
delivery”.
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Appendix B –
Historical Background
Historical Background
The following provides some of the
backdrop to the current situation in
terms of how the NRCB came into being
as an organization and the key events
that have had some degree of impact on
how it currently functions. This is by no
means intended to be inclusive of all of
the relevant background information
but, rather, a basis on which to better
understand how the organization has
evolved to the present day. Again, we
are indebted to the NRCB, AAFRD and
SRD for providing us with much of the
information.
1990
Legislation introduced to create the
Natural Resources Conservation Board
1991
Legislation proclaimed in July 1991 “The
Natural Resources Conservation Act”
1997
“A Background Document of Emerging
Issues” released; outlined concerns
relating to the management of intensive
livestock operations; concerns emerged
relative to the capacity of municipalities
to handle the regulation of intensive
livestock operations; most facilities
approved if they met the Code of
Practice technical guidelines; most
municipalities
listed
ILOs
as
“discretionary uses”
 Concerns expressed because the
decision-making of municipalities
was not based on science; there was
also the sense that one of the key
factors
that
encouraged
the
Government to seek an alternate
route was the growing tension
between
rural
and
urban
components
of
municipalities;
projects specifically targeted for
Alberta had failed to get off the
ground because of the fight for tax
dollars between rural and urban
communities
1998
Announcement by Minister of Alberta
Agriculture Food and Rural Development
that Government will issue new
regulations on intensive livestock
feeding operations; discussion paper
released and consultation process
begins; decision flowed out of one of
the recommendations of the Growth
Summit (and other issues), which
“…was to consider even greater
provincial involvement in permitting
decisions on the appeal process”.
(January 23rd 1998 press release);
Minister of Agriculture Food and Rural
Development establishes the “Livestock
Regulatory Stakeholder Advisory Group
(LSRAG); purpose was to establish
recommendations for a legislative
framework for intensive livestock
operations; regulatory options were
discussed
and
guiding
principles
announced
1999
Second consultation package released
“A Proposed Regulatory Framework for
Livestock
Feeding
Operations
in
Alberta”; LSRAG releases its “Proposed
Act,
Regulations
and
Standards
Document”; members sponsored a
series of public meetings which elicited
certain concerns about the proposed
legislation
e.g.
the
construction
standards for feedlots and restrictions
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George B. Cuff & Associates Ltd.
on
manure
spreading;
LSRAG
recommended developing a new Act and
regulations that would be administered
by AAFRD; based on feedback, the
committee recommended that all
livestock feeding operations, regardless
of their size, should be subject to the
new legislation, with the primary focus
on confined feeding operations; the
Province was to be responsible for
setting
environmental
siting
requirements, construction standards
and standards for manure storage and
use;
municipalities
would
retain
responsibility for determining whether or
not a proposed development was
acceptable through the municipal
planning process
1999
LSRAG provides Minister with its final
report; Summit to begin with a two day
Leaders’ Workshop followed by a series
of mini-summits across Alberta; major
summit planned for June; Minister
announces
that
a
“Sustainable
Management of the Livestock Industry
in Alberta Committee” was to be
established; committee headed up by
MLA Albert Klapstein; Committee was to
finalize provincial recommendations on
outstanding issues related to the
development and operation of Alberta’s
livestock industry and examine issues
including provincial and municipal roles,
approval
processes
and
ongoing
monitoring and enforcement;
 An Options Paper was developed for
the Standing Policy Committee on
Agriculture, Environment and Rural
Affairs; proposed four main options:
i.
Lands Zoned as Agricultural
(municipalities
compelled
to
create intensive livestock zones
ii.
iii.
iv.
wherein
ILOs
would
be
considered
permitted
uses)(through establishing either
Provincial agriculture zones or
municipal intensive zones)(ILOs
would be controlled by either the
then permitting process or a dual
process
involving
AAFRD
handling technical issues and
municipalities being responsible
for land use)
Updated Code of Practice
(municipalities would either have
this code as a voluntary part of
their approval process or the
Province
would
change
legislation to have it mandated
into municipal bylaws)
Provincial Approval System with
Updated Code of Practice (a
Provincial approval system would
be
established
for
the
construction and operation of
ILO
facilities
and
manure
management;
a
joint
provincial/municipal Board would
be established to hear appeals);
standards would be outcome
based)
Provincial
Agriculture
Development Board (similar to
AEUB or NRCB) (provincial
legislation would be established
to provide for a Provincial
Agriculture Development Board
to administer the technical, land
use
and
operational
requirements for ILOs; authority
for siting such facilities would be
removed from municipalities;
agriculture would be treated like
other industries)
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1999
Klapstein Committee Report; The
Sustainable
Management
of
the
Livestock Industry in Alberta Committee
reported back to the Minister of AAFRD
on April 30th 2001; the Committee
made
seven
recommendations
including:
The Government proceed with provincial
legislation for ILOs, including a
provincial
approval
process
and
provincial decision-making relative to
land use
The creation of a Sustainable Agriculture
Review Board with authority for
regulating ILOs; responsible for new
and
expanding
ILOs,
ongoing
monitoring,
and
enforcement
of
provincial standards; Board to be
accountable to the Minister of AAFRD
Establish a consistent and transparent
approval process for new and expanding
ILOs under the proposed new Act
Implement comprehensive monitoring
activities and enforcement to ensure
compliance
with
province-wide
regulated standards
Partner with municipalities in developing
long term land use plans
Strengthen right to farm legislation;
establish a peer review board to set
generally accepted practices
Complete the agricultural assessment
and farm tax review in order to enhance
public acceptance of ILOs.
 The Province announced in July
2001 their new strategy for dealing
with intensive livestock operations
which
included
the
Province
assuming legislative responsibility
for such operations to ensure the
sustainability of the industry. While
the Province did not adopt all of the
Klapstein report recommendations, it
did agree to much of the thrust of
that report as well as the report filed
by LRSAG. The strategy included:
 Provincial legislation for CFOs with a
regulatory framework that included:
A provincial approval process for new
and expanding CFOs
Technical standards, ongoing monitoring
and enforcement
Provincial approval authority for the
siting of CFOs
Expansion of the mandate of the NRCB
to review applications, issue approvals,
and monitor and enforce provincial
standards related to confined feeding
operations
Provision of a key role for municipalities
in the provincial approval process that
utilizes
municipal
expertise
and
recommendations in relation to siting.
 As far as providing a key role for
municipalities in the provincial
approval process that utilizes
municipal
expertise
and
recommendations in relation to
siting AOPA does the following:
Municipalities
are
automatically
considered directly affected parties to
an application in their municipality. This
means that they automatically receive
notice of an application by the NRCB,
their input has to be considered by the
NRCB in their decisions and they
automatically have standing in front of
the Board. Other persons have to
"convince" the Board that they are
directly affected (Sect. 19(6) and
21(2)).
NRCB Approval officers cannot approve
an application for a CFO if it is contrary
to municipal "zoning" i.e. land use (Sect.
20(1)(1.2) and 22(2)(b).
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George B. Cuff & Associates Ltd.
Creation of a consistent and transparent
approval process that was uniformly
applied across the Province for new and
expanding confined feeding operations
under the proposed legislation for the
consistent application of science-based
standards
Implementation
of
comprehensive
monitoring and enforcement activities to
ensure compliance with province-wide
standards.
 Alberta Agriculture, Food and Rural
Development (AAFRD) was charged
with leading the development of the
necessary amendment to the AOPA,
and the development of the
associated
regulations
and
standards.
 May 2001 NRCB was contacted by
AFRD to determine if it was feasible
for the NRCB to accept responsibility
for delivering the regulatory aspects
of a new AOPA.
Legal counsel
worked with AFRD on the legal
aspects of the concept. Funding for
the
new
mandate
was
not
specifically discussed at this point.
 July 4th
2001 The Alberta
Government announced plans to
introduce legislation in the fall that
will
amend
the
Agricultural
Operation Practices Act (AOPA) to
include provincial responsibility for
the siting of new and expanding
intensive livestock operations (ILOs)
and monitor and enforce provincial
technical standards. The NRCB will
assume responsibility for the siting,
enforcement and monitoring of ILOs
on January 1, 2002.
 The Natural Resources Conservation
Board (NRCB) was restructured to
serve as the agency responsible for
delivering the regulatory mandate of
the
legislation
after
it
was
proclaimed on January 1, 2002. A
supplementary budget request with
back-up information was prepared
that indicated that a supplemental
grant of between $2.99 and $3.51
million would be required to deliver
the AOPA mandate; part-time Chair
since
1998
offered
full-time
appointment (then Chair had also
been serving
on the EUB).
Secondments agreed to by AAFRD,
AENV, EUB. AAFRD agreed to
provide office accommodation in
regional offices and additional
staffing.
 A proposed process for the
appointment of new Board members
was prepared for the consideration
of the Ministers of AFRD and SRD.
 December 2001 Legislation is
introduced into the Assembly and
passed.
Terminology is changed
within the legislation from intensive
livestock operations (ILOs) to
confined feeding operations (CFOs).
2002
January
1,
2002
province-wide
regulations and standards governing
new and expanding CFOs were
implemented and the NRCB assumed
responsibility for delivery of the AOPA.
AOPA came into force and the NRCB
began to deal with complaints and
applications immediately.
Concern
expressed about the perception of
independence of the Board, should the
Deputy of SRD carry out the Chair’s
performance review.
 The Board made a presentation to
SPC during which an overview of
operations was presented.
The
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George B. Cuff & Associates Ltd.
focus of the presentation revolved
around the CFO mandate.
2004
June 1st further amendments to AOPA
were made based on the experienced
gained with the legislation over the
previous 2 years and input received
through a stakeholder consultation
process. The Agricultural Operation
Practices
Amendment
Act,
2004
formerly Bill 17 was passed; intended to
address perceived legislative deficiencies
including a revised definition of manure,
and confined feeding operations, and
revised the grand-fathering provision
 In 2004 the AOPA Regulation
Technical Input Committee (ARTIC)
was formed. ARTIC provides a forum
for Alberta's livestock industry to
provide input to AAFRD and the
NRCB on the technical aspects of
AOPA. One of the major roles of
ARTIC is to provide advise to the
NRCB on technical Guidelines (NRCB
policy documents) that provide
further clarification and direction to
NRCB staff and the industry on
practical and technical aspects of
implementing
AOPA
and
its
regulations.
 A Memorandum of Understanding
was signed between the Minister of
Sustainable Resource Development
and the NRCB Board on March 26th
2004; SRD wanted to use the MOU
to build in greater accountability
between the Minister and the NRCB;
MOU called for the NRCB to conduct
an independent review by March
31st 2005; Board sees this review as
its replacement
2005
Minister calls for a review of the NRCB.
History of the Legislation
During the course of our Review, we
asked for and received from the NRCB a
“high level overview of the legislative
history of the NRCB”. While there are
obviously various factors that impacted
the legislative environment in which the
NRCB
functions,
the
following
framework provides some clarity relative
to the key dates and the legislative
amendments that were made.
“Natural Resources Conservation Board
Act
Introduced as Bill 52 (2nd
Session, 22nd Leg. Alta. 1990).
S.A. 1990, c. N-5.5. Proclaimed
3 July 1991.
Amendments to Natural Resources
Conservation Board Act: (1992) c. E13.3, s. 246(11)
The Environmental Protection
and Enhancement Act included a
consequential
amendment
updating the NRCBA section 1
definition
of
“environmental
impact assessment”.
Amendments to Natural Resources
Conservation Board Act: (1997 Bill 18)
S.A. 1997, c. 20 (Royal Assent 20 June
1997)
amends section 1 definitions of
“forest
industry
project”,
“metallic or industrial mineral
project” and "water management
project"; adds section 9.1
(amendment of Board approval);
replaces
section
12(1)
(membership of Board); amends
section 13 (removal of statutory
requirement for Vice-Chair) and
amends other sections (ss. 4, 24,
32, 33, 43). Became c. n-3 of
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George B. Cuff & Associates Ltd.
the Revised Statutes of Alberta
2000.
Amendments to Natural Resources
Conservation Board Act: (2001) S.A.
2001, c. 16
Amend section 20 protection
from action section and section
22 powers of the Board to
accommodate AOPA.
Amendments to Natural Resources
Conservation Board Act: (2003) S.A.
2003, c. 44
Amend section 13 to expand
maximum number of Board
members and set maximum term
of appointment, also removes
minimum term. Amends section
22 by adding specific reference
to administer a regulatory
system established in other
legislation. Repealed section 42
that allowed Board to determine
its own budget.
Rules of Practice of the Natural
Resources Conservation Board Act (Alta.
Reg. 345/91) and Funding for Eligible
Interveners Regulation (Alta. Reg.
278/91) redrafted by the Board
Agricultural
Operation
Practices
Amendment Act, 2001: (Bill 28, 1st
Session, 25 Leg. Alta. 2001) S.A. 2001,
c. 16.
Amends Agricultural Operation
Practices Act to create mandate
for the regulation of the confined
feeding industry by the NRCB.
Board
Administrative
Procedures
Regulation AOPA (Alta Reg. 268/2001)
Establishes procedures for the
Board in dealing with AOPA
applications and reviews.
Standards and Administration Regulation
AOPA (Alta. Reg. 267/2001)
Establishes technical standards
and facility requirements for
confined feeding operations and
manure (nutrient) management.
Amended in 2003 to allow for
grandfathering of pre-existing
manure storage facilities on
expansion. Amended in 2004 to
include composting as managed
activities; changes in livestock
type
at
confined
feeding
operations without amending
permit; changed definition of
short term manure storage;
changed liner requirements for
manure
storage
facilities;
removed
requirement
for
incorporation of manure within
48 hours; added prohibition to
spreading within 150 meters of a
residence; restricted operators
from winter spreading if they
had 9 months of storage
Agricultural Operations, Part 2 Matters
Regulation AOPA (Alta. Reg. 257/2001)
Provides the detail as to which
proposed
activities
require
approvals,
registrations
or
authorizations. Also defines who
is an affected party for
applications
under
AOPA.
Amended in 2004 to increase
threshold for manure storage
facilities to 500 tonnes/yr from
300
tonnes/yr;
removed
individuals who resides on lands
adjacent to identified manure
spreading lands as an affected
party in the definition.
Agricultural
Operation
Practices
Amendment Act, 2004: (Bill 17, 4th
Session, 25 Leg. Alta. 2004)
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George B. Cuff & Associates Ltd.
Added compost to the definition
of manure; refined definition of
confined feeding operation by
excluding
certain
activities;
allowed NRCB to refer nuisance
cases to Part 1 of the AOPA;
allowed for relaxation of the
standards for some expanding
operations;
changed
grandfathering provisions so that
all pre-existing operations are
now deemed to hold an NRCB
approval,
registration
or
authorization;
exempted
grandfathered portion of existing
operation from requirement to
upgrade to new standards on
expansion; added parties owning
or occupying land within ½ mile
of registration application to
affected party list; allows for the
NRCB to issue emergency orders
to respond to environmental risk.
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