Canada: B.C. Environmental Appeal Board Constrains Environmental Permitting

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?


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.


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.


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.


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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
27 Oct 2016, Seminar, Toronto, Canada

Please join members of the Blakes Commercial Real Estate group as they discuss five key provisions of a commercial real estate purchase agreement that are often the subject of much negotiation but are sometimes misunderstood.

1 Nov 2016, Seminar, Toronto, Canada

What is the emotional culture of your organization?

Every organization and workplace has an emotional culture that can have an impact on everything from employee performance to customer or client satisfaction.

3 Nov 2016, Seminar, Toronto, Canada

Join leading lawyers from the Blakes Pensions, Benefits & Executive Compensation group as they discuss recent updates and legal developments in pension and employee benefits law as well as strategies to identify and minimize common risks.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.