Appeals from the Environmental Management Act
/ Waste Management Act
2008
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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