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.
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
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
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 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
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.
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
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