In Atlantic Waste Systems Ltd. v. Canada (Attorney General), 2015 BCSC 1998, the British Columbia Supreme Court was recently asked to decide whether the British Columbia Environmental Management Act ("EMA") applies to First Nation reserve lands. While the Court refused to decide the issue at this time, this is an important decision to watch.
The underlying action concerns the operation of a landfill on reserve lands. Atlantic Waste Systems Ltd. operated a landfill on reserve lands pursuant to a lease from the federal government. In 2011, the government terminated the lease. Atlantic sued for damages, alleging wrongful termination. In response, the government brought a counterclaim against Atlantic, Mr. Mann (a director and officer of Atlantic) and Hemmera Envirochem Inc. (Atlantic's environmental consultant). Among other things, the government alleged that the landfill operation contributed to contamination of soil and groundwater on the reserve.
Among other causes of action, the government made a cost recovery claim under the EMA. In response, Hemmera applied to the BC Supreme Court to determine whether the EMA applies to reserve lands. Hemmera sought to dispose of this issue in advance of the trial (which is scheduled for September 2016). Hemmera argued that the EMA is constitutionally inapplicable to all reserve lands in British Columbia. The Court aplly stated that: "this is a novel point and comes before the court as a matter of first instance."
The Court held that, in this case, it is not suitable to determine whether the EMA applies to reserve lands in advance of the trial, in part due to the novelty and broad implications of the issue. Accordingly, it remains to be seen how this issue will unfold.
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