Canada: British Columbia Environmental Appeal Board Reduces Redundancy In Appeal Proceedings

On December 4, 2014, the British Columbia Environmental Appeal Board (the "Board") issued reasons in a preliminary hearing relating to an appeal against Rio Tinto Alcan Inc.'s ("Rio Tinto") amended multi-media permit (the "Permit") for its Kitimat Modernization Project.

A. Background

The Permit authorizes Rio Tinto to discharge effluent, emissions, and waste from its aluminum smelter located in Kitimat, British Columbia. In April 2012, the Director, under authority of the Environmental Management Act (the "Act"), approved certain amendments to the Permit, which were sought by Rio Tinto in support of a project designed to modernize and increase the production at the Kitimat smelter. The amendment authorized an increase in the sulphur dioxide emission limit and added several conditions to the Permit, including a requirement to develop and implement an environmental effects monitoring plan (the "Plan") which is approved by the Ministry of Environment. The amendment also required Rio Tinto to submit to the Director a review of Plan results. If the said results were determined to be unacceptable, the maximum sulphur dioxide discharge limit would revert back to the original amount, unless the Director otherwise amended the discharge limit.

The relevant chronology of the proceedings related to the Permit is as follows:

  • In May 2013, the Appellants filed appeals against the amendment (those appeals are scheduled to be heard commencing in early January 2015).
  • On October 7, 2014, the Director approved Rio Tinto's Plan under the amended Permit.
  • On October 16, 2014, the Appellants applied to the Board to amend their Notices of Appeal by adding an appeal of the Director's decision to approve the Plan.
  • On November 6, 2014, the Appellants filed separate appeals of the Plan approval.
  • In a decision dated November 10, 2014, the Board denied the Appellant's application to amend their Notices of Appeal, or alternatively, to file new appeals against the Plan, as the contents of the Plan, and the approval thereof, were directly related to the existing decision under appeal.
  • On November 14, 2014, the Appellants requested that the Board reconsider its rejection of their appeals against the Plan. This request is the subject of the Board's most recent decision.

B. Board Decision

At issue was whether the approval of the Plan is a "decision" which is appealable with the Board. The Board ultimately decided that the approval of the Plan is not an appealable "decision" within the meaning of s. 99 of the Act. For example, the approval did not constitute "making an order" or "exercising a power", as such actions are limited to those contemplated expressly in the Act.

The Board noted permit amendments may result in changes to the status quo (e.g. changes to the amount or type of permitted waste) and, therefore, it is consistent with the Act's objectives of protecting the environment and regulating waste discharges that permit amendments may be appealed. The Board distinguished this scenario with the Plan approval, which results in no change to the amount or type of waste emissions allowed under the Permit.

The Board also emphasized that under the amended Permit, if the Director determines there are unacceptable results/impacts pertaining to emission reduction, the sulphur dioxide emission limit may revert back to the original amount, unless the Director otherwise amends the limit. As such, the Director may decide to amend the Permit again in the future, if he considers it necessary, and if he or she does so, that amendment will be an appealable "decision".

Significantly, the Board stated that any actions taken by the Director in relation to requiring or approving the Plan, and requiring Rio Tinto to implement the Plan, arise from the Permit amendment itself, which is already the subject of the appeal. Accordingly, an appeal of the Plan's approval is unnecessary. Further, if each condition or requirement in a permit amendment (such as the Plan) is independently appealable, appeals could go on indefinitely, leading to abuse and delay of the appeal process.

C. Implication

The Board's decision is significant, as it effectively limits what may be brought in front of the Board during an appeal. By preventing an approval directly linked to a decision which is already under appeal from being heard separately, the Board has streamlined the appeal process and removed potential redundancies.

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