On March 20, 2015 the B.C. Environmental Appeal Board in
Shawinigan Residents Assn. v British Columbia (Directors
Delegate, Environmental Management Act) (2015 CarswellBC 802)
confirmed the validity of a waste permit, subject to an amendment
requiring the monitoring of water quality immediately following a
storm event greater than 1 in 200 years. The permit authorized
refuse to be discharged to ground as well as effluent to an
ephemeral stream from a contaminated soil treatment facility and a
landfill. The contaminated soil would be processed through
bioremediation and landfilling. The landfilling would involve soil
encapsulation in engineered cells.
The Appeal The appellants, a
residents' association, a regional district and two private
residents argued that the permit should never have been issued
because the site and the design wouldn't protect local wells,
the ephemeral stream, the local creek lake and wetlands around the
lake. They believed that there would be harm to domestic water
supply, water for irrigation and fish habitat. In support of their
position the appellants argued that a precautionary approach should
have been adopted to the evaluation of a permit application. This
approach they argued, required a rigorous analysis before issuing a
permit where the permitted activity posed a threat of serious or
irreversible damage to the environment. In the face of uncertainty
due to conflicting assertions and flawed assessments, the Board
should have erred on the side of protecting the environment by
quashing the permit.
Board's Reasons The Board Panel
rejected the appellants argument, concluding that B.C's
Environmental Management Act S.B.C. 2003, c.53 reflected a
policy of compromise between protecting the environment and
controlling potentially harmful waste which might otherwise be the
subject of "illegal dumping ..in unregulated unapproved
locations with all the associated risks to the environment and
human health."(at par. 715)
"...a cautious approach is not the same as a 'zero
tolerance' approach. The Act provides a legislative scheme that
authorizes the introduction of waste into the environment provided
that any risk to the environment can be properly controlled,
ameliorated and to the extent possible, eliminated." (at par.
The Panel found no compelling evidence that the liner system was
inadequate. The method of installation met or exceeded the
standards set out in the evidence of a professional engineer and
qualified contaminated sites approved professional retained by the
appellants themselves. In terms of its design:
"While the Panel cannot say with absolute certainty that
the liner will never fail, given the multiple layers of protection
at the base of each cell, the increase to a 1 metre thick clay till
layer and the prohibition on blasting during liner installation,
the Panel is satisfied that this aspect of the permitted works is
designed in a manner that will protect the environment and drinking
water resources." (par. 526)
Significance of the Decision
Environmental law at the municipal, provincial, and federal level
recognize that there is sufficient social utility in a number of
activities to warrant their authorization even though they involve
risks of environmental impact. These laws authorize regulators to
issue permits and approvals to construct, maintain and operate
facilities which not only accept and process waste, but discharge
contaminants into the air and water. The Precautionary Principle
recognized in domestic (Castonguay Blasting ltd. v Ontario 2013
SCC 52) and international law (Bergen Ministerial
Declaration on Sustainable Development 1990) has assumed an
important role in interpreting environmental laws, but the
Shawinigan Residents Assn. case brings perspective to the Principle
and how it is applied in practice.
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