In the matter of an appeal under section 44 of the Waste Management Act, R.S.B.C. 1996, c. 482.
| BETWEEN: | BC Rail Ltd. | APPELLANT | |
| AND: | Deputy Director of Waste Management | RESPONDENT | |
| BEFORE: | A Panel of the Environmental Appeal Board | ||
| Toby Vigod | Chair | ||
| Robert Cameron | Member | ||
| Marilyn Kansky | Member |
DATE OF HEARING: February 24, 1998
PLACE OF HEARING: Victoria, B.C.
| APPEARING: | For the Appellant: | Robert E. Breivik, Counsel |
| For the Respondent: | Dennis A. Doyle, Counsel |
PRELIMINARY ISSUE OF BOARD JURISDICTION
The following is the oral decision of the Board rendered at Victoria, B.C. on February 24, 1998.
DECISION
This is an appeal by BC Rail Ltd ("BC Rail") against a decision of H.J. Vogt, the Deputy Director of Waste Management dated May 16, 1997, refusing to grant the Appellant a permit to dispose of sulphur near Mileboard 573 of BC Rail Mainline.
The application for a permit filed by BC Rail on January 5, 1997, was to dispose of 2070 tonnes of sulphur that was the result of a freight train derailment on December 8, 1995, 5 miles north of Kennedy Siding and 113 miles north of Prince George where twenty-three cars of sulphur derailed.
A Notice of Appeal was filed with the Board on May 29, 1997 and perfected on June 10, 1997. The remedy sought was a reversal of the Deputy Director’s decision and the issuance of the permit as applied for by BC Rail Ltd.
Subsequent to this time, the sulphur in question was removed and taken to a landfill in Alberta. In its Statement of Points filed on January 8, 1998, BC Rail stated that it is no longer asking the Board to reverse the decision of the Deputy Director to grant a permit to landfill sulphur. The Appellant has asked for findings of the Board that (1) the Deputy Director erred by insisting that the Appellant comply with the draft Alberta Guidelines and that such insistence constitutes an unlawful fettering of discretion; (2) a finding that the Deputy Director erred by acting on extraneous, irrelevant and collateral considerations; and (3) a finding that the Deputy Director erred by failing to take into account highly relevant considerations.
The preliminary issue heard by the Board is whether the Board has jurisdiction to make these findings.
The Appellant argues that the Board has jurisdiction to determine issues before it notwithstanding that the specific dispute between the parties as to the entitlement of the Appellant to a permit to landfill sulphur no longer exists. The Appellant refers us to a number of cases where the courts have exercised their discretion to grant a declaration where a dispute may be technically moot. BC Rail argues that this is an appropriate case for the Board to rule where future disputes can be anticipated and a party has a "real and significant interest" in having the question of allegedly invalid administrative procedures decided, regardless of whether the subject matter of the underlying dispute had been rendered moot (see British Columbia Transit v. British Columbia (Council of Human Rights) (1991), 81 D.L.R. (4th)1 (B.C.C.A.).
The Respondent submits that the Board does not have the jurisdiction in the first place to issue the type of declaratory relief that BC Rail is requesting. The Respondent argues that the first question that must be addressed is whether the jurisdiction to grant the relief exists before entering into a discussion of whether this is an appropriate case for such relief to be granted.
It is clear law that the Board’s jurisdiction comes solely from its governing statute. In this case, the relevant provision is section 46(3) of the Waste Management Act which reads as follows:
46 (3) On considering an appeal, the board may
(b) confirm, reverse or vary the decision appealed from, and
(c) make any decision that the person whose decision is appealed could have made and that the board considers appropriate in the circumstances.
The Appellant submits that it is not asking for declaratory relief but rather for the Board to make certain findings. The Appellant also argues that the decision appealed from is more than a bare denial of an application for a permit. It refers to the decision letter of May 16, 1997, which it describes as setting down certain criteria for future applications, including conformance with the Alberta Draft Guidelines, and satisfaction of Public or Agency Concerns.
The Board, first of all, finds that the decision made on May 16, 1997 was a decision to refuse to issue a permit for the disposition of the sulphur near Mileboard 573. The reasons for that refusal follow and the letter does contain a reference to BC Rail "being encouraged to submit a new proposal which more closely reflects a clean-up approach described by the draft Alberta Guidelines." However, this reference to "any new proposal" relates solely to the disposition of the sulphur that has already been disposed of in Alberta, and not to "future applications" that may be made in relation to future spills.
The Board also finds that its jurisdiction with respect to the remedies it may order are defined by section 46(3) of the Waste Management Act. Subsection 46(3)(a) is not applicable as a new hearing is not being requested. The Appellant is not seeking an order to confirm, reverse or vary the decision appealed from pursuant to subsection 46(3)(b), and even the Appellant agrees that it would be a tortuous reading to find that subsection 46(3)(c) applies. The Board finds that the Appellant is not seeking any remedy that can be found in section 46(3). Further, the Board finds that it does not have a separate declaratory power as other tribunals have been given in their originating statutes. The caselaw cited by the Appellant is not helpful as the courts clearly have the jurisdiction to grant declaratory relief. While the Appellant has argued that its request for findings do not constitute a request for a declaration, the Board finds that this is only semantics and that the relief sought is in the nature of a declaration, a remedy not available under the governing legislation.
The appeal is therefore dismissed.
Toby Vigod, Chair
Environmental Appeal Board
February 24, 1998
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