Appeals from the Environmental Management Act
/ Waste Management Act
2008
Decision Date: December 1, 2008
Panel: Alan Andison
Keywords:
Environmental
Management Act – s. 99 - definition of “decision”,
s. 100; jurisdiction; preliminary decision
Darryl Secret appealed a letter issued by the Director,
Environmental Management Act, Ministry of
Environment, which provided notice that the City of
Nelson may approve a development permit and associated
applications for a site because, in the opinion of the
Director, the site would not present a significant
threat or risk if the development permit and
applications were approved, subject to certain
conditions. The Director’s letter stated that it
constituted notice pursuant to section 946.2(2)(d) of
the Local Government Act and section 85.1(2)(d)
of the Land Title Act. Mr. Secret’s grounds for
appeal included allegations that the Director had
assessed the site’s risk based on an incomplete
understanding of the nature and extent of contamination
at the site.
As a preliminary matter, the Board requested submissions
on the issue of whether the Director’s letter contains
an appealable “decision” within the meaning of section
99 of the Environmental Management Act (the “Act”).
Mr. Secret submitted that the Director was either
issuing a “permit” or “approval”, or “exercising a
power” within the meaning of section 99 of the Act.
The Director argued that the letter did not constitute
an appealable “decision” within the meaning of section
99 of the Act.
The Board found that the words “permit” and “approval”
are defined in the Act to mean permits and
approvals issued under the Act or its
regulations. The Board held that, since the letter was
not issued pursuant to the Act, it did not
constitute an approval or permit for the purposes of
section 99(d) of the Act.
In addition, the Board concluded that the letter did not
constitute “exercising a power” within the meaning of
section 99(c) of the Act. The Board held that
the appeal provisions in Division 2 of Part 8 of the
Act are intended to apply to decisions made under
the Act, and not decisions made under other
Acts. In this case, the Director acted under authority
of the Land Title Act and/or the Local
Government Act. Further, the Board found that the
appeal provisions in Division 1 of Part 8 state that it
may hear appeals of decisions made under certain other
Acts, but those Acts do not include the Land Title
Act or Local Government Act.
In conclusion, the Board held that the letter was not an
appealable “decision” under section 99 of the Act,
and there is no statutory authority for the Board to
hear appeals of the decision in this case; namely, the
issuance of a notice pursuant to section 946.2(2)(d) of
the Local Government Act and section 85.1(2)(d)
of the Land Title Act.
Accordingly, the appeal was dismissed for lack of
jurisdiction.
Decision Date: November 6, 2008
Panel: Alan Andison
Keywords:
Environmental
Management Act – s. 100; person aggrieved; standing;
jurisdiction; preliminary decision
Paddy Goggins and Patricia Aldworth jointly appealed a
decision of the Director, Environmental Management
Act, Ministry of Environment, to amend a permit held
by Catalyst Paper Corporation and Catalyst Pulp
Operations, doing business as Catalyst Paper General
Partnership (“Catalyst”). The amended permit authorizes
the expansion of a landfill located in the Wildwood area
of Powell River. The landfill receives refuse from
Catalyst’s pulp and paper mill. In particular, the
amendment authorized Catalyst to expand the landfill’s
total capacity from 100,000 cubic metres to 620,000
cubic metres, and to increase its area from 2.3 hectares
to 6.1 hectares. The components of refuse that could be
discharged to the landfill remained the same under the
amended permit: fly ash, waste asbestos, and
“miscellaneous mill waste” as defined in the permit.
Several other people from the Powell River area filed
separate appeals of the amended permit.
As a preliminary matter, Catalyst requested that the
Board rule on the standing of Mr. Goggins and Ms.
Aldworth to appeal the amended permit. Catalyst argued
that they had no standing to bring the appeal because
they are not “persons aggrieved” by the amended permit,
within the meaning of section 100 of the
Environmental Management Act (the “Act”).
The Board requested written submissions on the issue of
Mr. Goggins’ and Ms. Aldworth’s standing to appeal the
amended permit.
In determining whether Mr. Goggins and Ms. Aldworth were
“persons aggrieved” by the amended permit, the Board
applied the test that it has applied in many previous
decisions. That test is from the decision of the House
of Lords in Attorney General of the Gambia v. N’Jie,
[1961] 2 ALL E.R. 504 (P.C.), and it requires the
appellant to disclose sufficient information to allow
the Board to reasonably conclude that the Director’s
decision has or will prejudicially affect the
appellant’s interests.
The Appellants relied on the proximity of their
residences to the landfill. Specifically, Mr. Goggins
advised that he lives approximately 3 kilometres from
the landfill, and Ms. Aldworth lives less than 2
kilometres from the landfill.
However, the Board found the test for whether a person
is “aggrieved” requires the Appellants to provide some
evidence or information indicating that they will, or
will likely, suffer some prejudice as a result of the
decision authorizing the discharge. Consequently,
evidence of proximity alone does not necessarily lead to
the conclusion that the Appellants’ interests are
prejudicially affected by the discharge.
The Board found that the Appellants had provided no
information indicating how the landfill expansion may
affect their interests. In particular, they did not
explain how the potential environmental impacts they
identified may be prejudicial to their own interests.
For example, they provided no indication that dust or
leachate from the landfill may reach their home or
affect their health, livelihood, or the enjoyment of
their property.
The Board noted the Mr. Goggins had previously brought
appeals before the Board respecting Catalyst and its
predecessors’ activities at its pulp and paper mill, and
he had previously established his standing to file those
appeals. However, the Board held that those previous
decisions could be distinguished from the present appeal
because, in those cases, Mr. Goggins provided
information to support the conclusion that he was a
“person aggrieved” but in this case he did not.
Furthermore, the Board found that the landfill in this
case is not at the same location as either the mill or
the landfill at issue in the previous cases, and
therefore, sufficient proximity to the mill or the other
landfill does not necessarily mean sufficient proximity
to the landfill in this case. Consequently, although
the Board found that Mr. Goggins had standing to appeal
certain decisions in the past that does not lead to the
conclusion that he also has standing to appeal the
amended permit in this case.
In addition, the Board found that some of the issues
raised by Mr. Goggins and Ms. Aldworth were raised by
one or more Appellants whose standing was not challenged
by Catalyst. Consequently, the Board held that their
lack of participation as parties in the appeal would not
affect the Board’s ability to fully canvass at least
some of the environmental issues of concern to them.
In conclusion, the Board found that Mr. Goggins and Ms.
Aldworth provided insufficient evidence for the Board to
reasonably conclude that they are, or will be,
prejudicially affected by the amended permit. The Board
held that they are without standing to bring the appeal
because they are not “persons aggrieved” within the
meaning of section 100 of the Act.
Accordingly, the appeal was rejected for lack of
jurisdiction.
Decision Date: November 5, 2008
Panel: Alan Andison
Keywords:
consent order; air
emissions, expert witness, costs
Don Dickson and
three other people (the “Appellants”) appealed two
separate amendments of an air emissions permit held by
West Coast Reduction Ltd., which operates a rendering
plant in Vancouver, BC. The amendments were issued by
the District Director of the Greater Vancouver Regional
District (the “District Director”).
In both amendment
decisions, the District Director imposed various
requirements, conditions, criteria, standards,
guidelines and objectives in relation to odour emissions
from the rendering plant. West Coast Reduction Ltd.
also appealed the amendments (2007-EMA-007 &
2008-EMA-005), arguing that they were too restrictive.
During the appeal
hearing, the Appellants applied to the Board for an
order requiring the District Director to pay the
Appellants’ costs associated with two expert witnesses
that the Appellants called at the hearing. Before the
hearing concluded, the Appellants and the District
Director reached an agreement regarding the Appellants’
application for costs.
By consent of the
parties, the Board ordered the District Director to pay
the Appellants $8,267.53, representing the disbursements
of one expert witness and 40 percent of the fees and
disbursements of the other expert witness.
Accordingly, the
application for costs was granted, in part.
Decision Date: October 27, 2008
Panel: Alan Andison
Keywords:
Environmental
Management Act – s. 100; person aggrieved; standing;
jurisdiction; preliminary decision
John Keays appealed a decision of the Director,
Environmental Management Act, Ministry of
Environment, to amend a permit held by Catalyst Paper
Corporation and Catalyst Pulp Operations, doing business
as Catalyst Paper General Partnership (“Catalyst”). The
amended permit authorizes the expansion of a landfill
located in the Wildwood area of Powell River. The
landfill receives refuse from Catalyst’s pulp and paper
mill. In particular, the amendment authorized Catalyst
to expand the landfill’s total capacity from 100,000
cubic metres to 620,000 cubic metres, and to increase
its area from 2.3 hectares to 6.1 hectares. The
components of refuse that could be discharged to the
landfill remained the same under the amended permit: fly
ash, waste asbestos, and “miscellaneous mill waste” as
defined in the permit. Several other people from the
Powell River area filed separate appeals of the amended
permit.
As a preliminary matter, Catalyst requested that the
Board rule on Mr. Keays’ standing to appeal the amended
permit. Catalyst argued that Mr. Keays had no standing
to bring the appeal because he is not a “person
aggrieved” by the amended permit, within the meaning of
section 100 of the Environmental Management Act
(the “Act”).
The Board provided the Director, Catalyst, and Mr. Keays
with an opportunity to provide submissions on the issue
of Mr. Keays’ standing to appeal the amended permit.
In determining whether Mr. Keays was a “person
aggrieved” by the amended permit, the Board applied the
same test that it has applied in many previous
decisions. That test is from the decision of the House
of Lords in Attorney General of the Gambia v. N’Jie,
[1961] 2 ALL E.R. 504 (P.C.), and it requires the
appellant to disclose sufficient information to allow
the Board to reasonably conclude that the Director’s
decision has or will prejudicially affect the
appellant’s interests.
The Board found that Mr. Keays provided no information
indicating how the landfill expansion may affect him or
his interests. In particular, Mr. Keays did not explain
how the potential environmental impacts he has
identified may be prejudicial to his own interests, such
as his health, his livelihood, or his enjoyment of his
property. One of Mr. Keays’ primary concerns was the
impact of the authorized discharge on midge larvae.
However, Mr. Keays did not explain how an impact on
midge larvae would impact him personally.
The Board noted the Mr. Keays had previously brought
appeals before the Board respecting Catalyst and its
predecessors’ activities at its pulp and paper mill, and
he had previously established his standing to file those
appeals. However, the Board found that its previous
decisions regarding Mr. Keays’ standing were
distinguishable from the present appeal because: (1) in
those cases, Mr. Keays provided information to support
the conclusion that he was a “person aggrieved” but in
this case he has not; and (2) those appeals involved the
discharge of contaminants to the air, and this case
involves the discharge of refuse to the ground. The
Board found that the considerations involved in
determining whether a person may be affected by air
emissions from a pulp and paper mill are quite different
from those involved in determining whether a person may
be affected by the discharge of waste to the ground at a
landfill.
In addition, the Board noted that some of the issues
raised by Mr. Keays were also raised by one or more
Appellants whose standing has not been challenged by
Catalyst. Consequently, the Board found that Mr. Keays’
lack of participation as a party in the appeal would not
affect the Board’s ability to fully canvass at least
some of the environmental issues of concern to Mr.
Keays.
In conclusion, the Board found that Mr. Keays provided
insufficient evidence for the Board to reasonably
conclude that he is prejudicially affected by the
amended permit. The Board held that he was without
standing to bring the appeal because he was not a
“person aggrieved” within the meaning of section 100 of
the Act.
Accordingly, the appeal was rejected for lack of
jurisdiction.
Decision Date: May 9, 2008
Panel: Alan Andison, Robert
Cameron, Cindy Derkaz
Keywords:
Environmental
Management Act - s. 16(1); effluent; mine tailings;
water quality; copper; cadmium; aboriginal fishing
rights; aboriginal title; consultation; amended permit;
Haida Nation v. British Columbia (Minister of
Forests), [2004] S.C.R. 511
The Xats’ull First
Nation (“Xats’ull”) appealed
the amended permit issued to Gibraltar Mines Ltd.
(“Gibraltar”) by the Ministry of Environment. Gibraltar
already held a permit authorizing the discharge of
contaminants to the ground at its mine site. The
amendments to its permit allow Gibraltar to discharge
certain contaminants from a tailings pond at its mine
site into the Fraser River near Marguerite, BC.
Gibraltar’s mine produces copper-molybdenum ore.
Tailings consist of water, chemicals and suspended
solids that are a by-product of the process used to
remove the copper and molybdenum from the ore. The
tailings from Gibraltar’s mine are currently contained
in a tailings pond which has limited capacity.
Gibraltar sought the amendments at issue in the appeal
in response to this capacity issue. It asked for, and
was granted by the Ministry, authorization to discharge
certain contaminants from the mine site to the Fraser
River.
The Xats’ull’s Soda Creek reserve is adjacent to the
Fraser River, approximately 25 kilometres downstream
from the proposed point of discharge. The Xats’ull
claim a traditional territory that includes a section of
the Fraser River extending northward, from a point that
is a few kilometres south of the Soda Creek reserve, to
a point that is a few kilometres north of the proposed
point of discharge. They also claim aboriginal rights
to fish for salmon and sturgeon in that section of the
river.
In the appeal, the Xats’ull submitted that the amended
permit failed to protect the environment. In
particular, the Xats’ull submitted that the authorized
discharge, which contains copper and cadmium, would have
a negative impact on sturgeon and salmon. They further
submitted that their aboriginal fishing rights and title
would be adversely affected by the amended permit, and
that the Ministry failed to adequately consult with them
before issuing the amended permit.
The Board considered two main issues: (1) whether the
amendments would protect the environment in accordance
with section 16(1) of the Act; and (2) whether
the Ministry fulfilled its duty to consult with the
Xats’ull before issuing the amended permit. In deciding
the second issue, the Board considered the test set out
in Haida Nation v. British Columbia (Minister of
Forests), [2004] S.C.R. 511.
The Board issued a majority decision and a minority
decision. The majority and the minority agreed on the
findings in first issue, but they disagreed on some of
the findings in the second issue.
On the first issue, the Board found that the background
concentrations of copper and cadmium in the Fraser River
already exceed the water quality guidelines for aquatic
life, and that adding more copper and cadmium to the
river would worsen water quality. The Board found that
there was limited evidence that the discharge would have
a negative impact on salmon, but there was evidence that
it could have an adverse impact on sturgeon, which are a
threatened species, are low in numbers, and are more
susceptible than salmon to those contaminants. The
Board found that, based on the existing state of water
quality in the river and the sturgeon population,
caution should be exercised before the authorizing the
discharge of any additional contaminants. The Board
also found that: the computer modelling used to predict
the diffusion of the discharge may be unreliable; the
configuration of the diffuser was uncertain; the permit
amendments that were intended to ensure adequate
dilution during periods of low water flow in the river
may not be effective; and the amended monitoring
requirements may not be adequate.
On the second issue, the Board found that the Ministry
had a duty to consult with the Xats’ull regarding the
application to amend the permit. Regarding the scope of
the duty to consult, the Board considered: (1) the
strength of the Xats’ull’s claims of aboriginal rights
and title; and, (2) the seriousness of the potential
impacts of the discharge on the aboriginal rights
asserted by the Xats’ull.
Regarding the strength of the Xats’ull’s claims, the
Board found that the Xats’ull have a prima facie
case for aboriginal title to some of the traditional
territory that they claim. Specifically, the Board
concluded that their claim of aboriginal title in areas
that do not overlap with other First Nations’ claims is
supported by a good prima facie case, but their
claim of aboriginal title is weaker in the areas that
overlap with other First Nations, and in particular, the
area in or about the point of discharge. The Board
further found that the Xats’ull have a strong prima
facie case for their claims of aboriginal rights to
harvest salmon and sturgeon in the area around Soda
Creek Canyon, and a good prima facie case for
their claims of aboriginal rights fishing rights in and
about the point of discharge.
Regarding the seriousness of the potential impacts on
the Xats’ull’s asserted aboriginal rights, the Board
concluded that their right to fish for salmon would not
be significantly affected by the discharge, because the
discharge would have a limited impact on salmon. The
Board found that the discharge could have an impact on
the Xats’ull’s right to fish for sturgeon, because
sturgeon travel many kilometres, are more susceptible
than salmon to the potential negative effects of copper
and cadmium, and are already in limited supply. The
Board held that although the Xats’ull have been unable
to fish for sturgeon for several decades due to scarcity
and conservation concerns, their right to fish for
sturgeon still exists and could be exercised if sturgeon
recover to a level where fishing is permitted. However,
the Board found that there was no evidence that sturgeon
was a staple in the Xats’ull’s traditional diet or that
sturgeon was a significant item of trade. Thus, the
Board concluded that there would be a modest impact on
the Xats’ull’s right to fish for sturgeon.
With respect to aboriginal title, the Board found that
the seriousness of the potential impact of the discharge
on the Xats’ull’s claim of title was low. In the area
where they have a good prima facie case for
aboriginal title, the potential effects of the discharge
would be negligible or non-existent, due to the level of
dilution and mixing that will have occurred by the time
the river passes through Soda Creek Canyon. In the area
near the point of discharge, the claim to title was
weaker, and the evidence of any harmful impact to that
title was weak.
Based on those considerations, the Board found that the
level of consultation regarding the right to fish in
general, and for sturgeon in particular, was in the
middle of the spectrum, and the level of consultation
with respect to aboriginal title was at the low end of
the spectrum.
Regarding whether the Crown met its duty to consult with
the Xats’ull, the majority found that the steps taken by
Ministry met the moderate to middle level of
consultation that was required in this case. The
majority held that the Crown engaged in meaningful
consultation with the Xats’ull, and provided reasonable
accommodations in response to their concerns.
Therefore, the majority dismissed that part of the
appeal. However, the majority concluded that, if the
Ministry makes further changes to the amended permit
arising from the Board’s directions, he must continue to
consult with the Xats’ull in respect of those further
changes.
The minority found that the Ministry did not meet the
middle level of consultation that was required. The
minority held that Gibraltar and the Ministry were
receptive to the Xats’ull, made themselves available to
meet with the Xats’ull and to discuss the proposed
discharge, and acted in good faith in their interactions
with the Xats’ull. However, the minority found that the
Ministry and Gibraltar provided the Xats’ull with
erroneous information on a material issue. The minority
also found that the Ministry failed to adequately inform
itself of the nature of the aboriginal interests
claimed, failed to make clear and reasoned assessments
of the soundness of those claims and of the likelihood
of an infringement of the Xats’ull’s aboriginal
interests, and failed to make adequate accommodation of
those interests. The minority would have allowed the
appeal on this issue and sent the matter back to the
Ministry to carry out proper consultation.
In conclusion, the Board found that more information and
consideration was required before one could reasonably
conclude that the amendments to the permit would
adequately protect the environment, as required under
section 16(1) of the Act. On that basis, the
Board sent the matter back to the decision-maker with a
number of directions. Further, the majority ordered
that the authorization to discharge is suspended until
the Ministry carries out a further review of the
application to amend the permit, in accordance with the
Board’s directions.
Accordingly, the
majority allowed the appeal, in part. The minority
would have allowed the appeal.
Decision Date: March 7, 2008
Panel: Alan Andison
Keywords:
Stay application;
RJR-MacDonald
Howe Sound Pulp and
Paper Limited (HSPP) operates a pulp and paper mill in
Port Mellon, BC. In December 2007, the Director,
Environmental Management Act (the “Director”) amended
HSPP’s permit, which authorized the discharge of air
contaminants from its facilities. The amended permit did
not authorize the burning of coal in HSPP’s
co-generation wood residue boiler at the mill. HSPP had
conducted a coal burning trial using the boiler before
the permit was amended, and sought to continue burning
coal in the boiler to supplement its primary fuel, wood
waste. HSPP appealed the Director’s decision and
requested a stay of the decision pending the Board’s
decision on the merits of the appeal.
In determining
whether a stay ought to be granted, the Board applied
the three-part test set out in RJR-MacDonald Inc. v.
Canada (Attorney General). With respect to the first
element of the test, the Board found that HSPP had
raised serious issues to be tried, which were not
frivolous, vexatious, or pure questions of law.
Regarding the second
element of the test, the Board found that the evidence
presented by HSPP did not establish that irreparable
financial harm would occur if the application for a stay
was denied. The evidence did not show that HSPP was
likely to go out of business or suffer permanent market
loss or irreparable damage to its business reputation if
HSPP was unable to supplement the boiler’s primary fuel
with coal during the months prior to the Board’s
decision on the appeal. The Board found that the
parties’ evidence was conflicting regarding whether
there was a potential for environmental harm if a stay
was either denied, or granted. However, the Board also
found that there was no evidence that an increase in
HSPP’s emissions to either the atmosphere or HSPP’s
landfill as a result of the inability to burn coal would
cause irreparable harm to HSPP.
Turning to the third
element of the test, the Board accepted, without the
benefit of an assessment of the merits of the permit
amendments, that the Director’s amendments were prima
facie in the public interest. The Board determined
that, if a stay was den ied, the potential costs to HSPP
did not outweigh the public interest in the continued
application of the amendments for the potential
protection of the environment and public health.
Therefore, the balance of convenience favoured denying a
stay.
Accordingly, the
application was denied.
Decision Date: January 23, 2008
Panel: Alan Andison, Dr. Robert
Cameron, Phillip Wong
Keywords:
Waste Management Act
- s. 3, s. 10, s. 24; Agricultural Waste Control
Regulation - s. 2; Code of Agricultural Practice for
Waste Management – s. 18, s. 19, s. 20; GVRD Air Quality
Management Bylaw No. 937 – s. 4.1; air emissions;
jurisdiction; greenhouses; wood-fired boiler.
Houweling Nurseries
Limited (“Houweling”) operates greenhouse facilities in
Delta, BC. Houweling had been operating under an air
quality permit (the “Permit”) that was originally issued
by the Greater Vancouver Regional District (the “GVRD”)
in 1985. In 1997, the Permit was amended, requiring
Houweling to phase out the use of wood fuel and to
instead burn natural gas in the boilers used to heat the
greenhouse. In 2001, Houweling applied to the District
Director of the GVRD (the “District Director”) for a
permit amendment to reactivate its wood-fired heaters.
The District Director denied Houweling’s application,
and Houweling appealed the District Director’s decision.
The first issue
considered by the Board was whether it had the
jurisdiction to decide whether the District Director had
the jurisdiction to regulate emissions from Houweling’s
greenhouse facility. The Board found that it had the
jurisdiction to consider questions of law, including the
question of whether the District Director had the
jurisdiction to regulate emissions from Houweling’s
facility.
The second issue
considered was whether the GVRD had the jurisdiction to
regulate emissions from wood-fired heaters used to heat
agricultural operations through the issuance of permits
under Air Quality Management Bylaw No. 937 (the
“Bylaw”). The Board considered the legislative scheme
created by the Waste Management Act (the “Act”) and the
Agricultural Waste Control Regulation (the
“Regulation”), and found that the legislative intent was
to allow the Regulation to provide an exemption from the
general prohibition against the introduction of waste
into the environment found in section 3 of the Act. The
intent in creating the Regulation and the attached Code
of Agricultural Practice for Waste Management (the “Code
of Practice”) was to establish clear standards for
dealing with certain types of waste and to reduce the
need for permits and other types of approvals. The Board
further found that the purpose of sections 18 and 20 of
the Code of Practice was to authorize the use of wood
waste as fuel for wood-fired boilers in agricultural
operations and to set maximum levels for particulate
emissions and opacity from those boilers. The Board also
concluded that the GVRD could not require a permit for
those matters because they were already regulated by the
Regulation. Therefore, permits could not be required for
those matters, as long as agricultural operations
complied with the standards set out in the Code of
Practice.
As a result, the Panel
determined that, although section 24 of the Act gave the
GVRD broad authority over waste discharge, including air
contaminants, within its region, permits in relation to
the burning of wood waste in agricultural operations
could only be issued by the GVRD in relation to matters
not already covered by the Regulation (i.e., matters
other than particulate matter, opacity and odour emitted
by wood-fired boilers, or the use of other fuels).
The Board also found that
the Bylaw did not conflict with the Act or the Code of
Practice, as it did not give specific authority to
further restrict the use of wood-fired heaters in a
manner inconsistent with the Act or the Code of
Practice. There was, therefore, no need to resort to the
legal principles for resolving conflicts between laws.
In conclusion, the Board
decided that Houweling’s use of its wood-fired heaters
was governed by the Regulation, and that it did not
require a permit (or permit amendment) from the GVRD to
operate them in accordance with that regulation.
However, the application for a permit amendment was sent
back to the District Director for reconsideration of
matters relating to the use of back-up fuels and any
matters not covered by the Regulation.
Accordingly, the appeal
was allowed.
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