A recent decision of the British Columbia Environmental Appeal Board (Board) narrows the scope of the Ministry of Environment's considerations when determining whether permits should be issued under the Environmental Management Act (EMA), and will likely reduce the scope of future appeals to the Board.
The Board's decision in Ronald Witherspoon et al. v. Director, Environmental Management Act involved five appeals of a permit that authorized a company to discharge refuse to ground from a contaminated soil treatment and landfill facility. The permit also authorized the permit holder to deposit and bury up to 100,000 tonnes of contaminated soil per year, and discharge storm water and treated effluent to an ephemeral stream.
The permit holder brought an application to strike all or parts of the appeals on the basis that the grounds of appeal were beyond the Board's jurisdiction. The grounds included issues such as the permit's alleged negative impact on property values and economic loss.
The issues for the Board's consideration on the application were what test should the Board apply in applications to strike appeals, and what is the Board's jurisdiction in appeals?
TEST FOR APPLICATIONS TO STRIKE
The Board adopted the approach of the courts, creating a heavy onus on a party moving to strike an appeal. The Board rationalized that it can result in significant unfairness to strike an appeal unless a party can demonstrate that it is plain and obvious an appeal is not within the Board's jurisdiction. The Board emphasized this onus on applications to strike appeals is particularly important given that appellants are frequently not represented by counsel.
JURISDICTION IN AN APPEAL UNDER EMA
The Board ruled it does not have "inherent jurisdiction" to hear appeals. Rather, its powers are constrained by section 103 of the EMA, which allows it to send the matter back to the decision-maker with directions; to confirm, reverse or vary the decision being appealed; or to make any decision that the person whose decision is appealed from could have made. Further, the ability of the Board to hold a new hearing does not expand its jurisdiction over what it can consider in the course of that hearing. As a consequence, appeals can only be decided on the basis of the statutory powers of the decision-maker whose decision is being appealed. Thus, to determine what issues are properly brought before the Board, one must first determine what the powers of the decision-maker were in making the decision in the first place.
In this case, the Director's discretion to issue the permit was under section 14 of the EMA, which provides that a "director may issue a permit authorizing the introduction of waste into the environment subject to requirements for the protection of the environment that the director considers advisable." The Board reviewed the EMA's definition of "environment," confirming that it includes "air, land, water and all other external conditions or influences under which humans, animals and plants live or are developed," but does not include broad community or social issues. In doing so, the Board dismissed the argument that the definition of "environment" in the EMA ought to be construed broadly to include societal interests.
While this decision was made under the EMA, the Board has similar jurisdiction to hear appeals under other legislation, such as the Water Act. As such, the test for jurisdiction set out in this decision will also be applicable to appeals other than those under the EMA.
EXAMPLE OF ISSUES STRUCK FROM APPEALS: PROPERTY VALUES
The alleged impact of the activities authorized under the permit on property values is one significant example of the issues which the Board struck from the appeals. The Board found property values are not within the jurisdiction of the Director to consider, and therefore not within the jurisdiction of the Board to hear in the appeals. The Board emphasized that the EMA, particularly section 14, is focused on environmental concerns and protections, and that no reasonable interpretation of the statute allows property values to be considered as part of the decision-making process as these matters are related to the protection of personal or corporate wealth or finances, not the protection of the environment.
The Board also found that issues over consistency with local government bylaws and zoning, public opposition, or alternatives which were not included in the original application to the decision-maker were not proper considerations for the Director or the Board in determining whether a permit should be issued under the EMA.
IMPACT OF DECISION
Despite the Board's signal that it will not easily strike appeals, the constrained approach to its jurisdiction suggests the Board is taking on a conservative and limiting stance with respect to the appeals it hears, which may give businesses that are issued permits under the EMA some comfort that matters which do not relate to the protection of the environment should not get their day in front of a Board panel.
Further, and perhaps more significantly, the Board's determination that broader social and economic issues are not relevant to consideration of whether permits ought to be issued under section 14 of the EMA should have an impact upon the process of applying for such permits. The Ministry of Environment must heed the direction of the Board that these issues cannot be considered when issuing EMA permits.
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