In a recent decision upholding an air permit amendment issued to
Rio Tinto Alcan Inc. (Rio Tinto) for the expansion of its smelter
in Kitimat, the British Columbia Environmental Appeal Board (Board)
ruled on a number of key principles
applicable to the assessment of waste permit applications by the
B.C. Ministry of Environment (Ministry) under the Environmental
Management Act (EMA). Of particular note, the Board rejected the
application of the precautionary principle in favour of a less
stringent "cautious approach", and confirmed that the
Ministry is not required to include cumulative effects in its
consideration of permit applications.
This decision makes it clear that rigorous and scientifically
defensible technical analysis of the impact of proposed emissions
on human health and the environment is critical to successful
permit applications. However, the determination that some impacts
will occur is not a bar to obtaining a permit or amendment,
provided it can be shown that any such impacts are mitigated in a
manner that will meet the Board's standard of a "cautious
approach" to be applied by the Ministry.
PRECAUTIONARY PRINCIPLE AND CUMULATIVE EFFECTS
Referring to past decisions of the Board as well as decisions of
the Supreme Court of Canada and the high courts of Australia and
New Zealand, the Board held that neither the precautionary
principle nor a "precautionary approach" apply to
permitting decisions by the Ministry under the EMA. Rather, the
Board held that a "cautious approach involving a comprehensive
technical analysis of the potential harm that the proposed
emissions may cause to human health and the environment"
should be adopted by the Ministry when assessing permit
applications under the EMA.
The Board also held that the EMA cannot be interpreted as
excluding any risk to public natural resources or the environment,
and rejected the idea that the Ministry can only approve permits in
circumstance where there would be zero risk to the environment. The
Board referred to previous decisions in which it has held that
potential harm from emissions under waste discharge permits should
be controlled, ameliorated and, where possible, eliminated, but
went on to clarify that all risks of harm or damage will not be
eliminated. This is because the permitting provisions of the EMA
are specifically intended to allow the emission of waste into the
environment, and "waste" by its very definition, is
material that is capable of causing harm.
The Board also concluded that the EMA does not, expressly or
impliedly, require the Ministry to consider the cumulative effects
of emissions from other facilities.
BOARD RECOMMENDS A REGIONAL HEALTH STUDY
While the Board upheld the Rio Tinto permit amendments in their
entirety, it also made some recommendations for a regional health
study in Kitimat and the development of a health advisory system
for the Kitimat region to alert residents to issues of air quality
that may impact their health. The Board's recommendations are
not binding on the Ministry, so it remains to be seen if they will
be acted upon, and if so, what effect these could have on future
industrial development in the region.
OTHER FINDINGS APPLICABLE TO PERMIT APPLICATIONS
This decision will be of assistance to entities applying for new
or amended waste discharge permits, as the Board also made a number
of other findings regarding the exercise of the Ministry's
discretion and the application process. These include the
relationship between policy and the discretion of the Ministry in
considering permits; the scope of reasons to be given in permitting
decisions; and the process for public consultation for major permit
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 Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
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.
Emotional culture is influenced in great part by the mindset and actions of leadership, although employees also play more of a role than they may realize in creating the culture that exists in the group.
The session will be led by Dr. Robert Brooks, an award-winning author and psychologist. In his presentation, Dr. Brooks will describe the mindset and realistic practices of leaders and staff that help to nurture and sustain a culture characterized by positive emotions, satisfying, respectful relationships, a sense of meaning and ownership for one’s work, and enhanced job performance. Examples will be offered to illustrate strategies for developing a positive emotional culture in an organization.
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.
Ontario's Ministry of the Environment and Climate Change continues to roll out its Climate Change Action Plan with its proposed GHG guide for projects that are subject to the province's Environmental Assessment Act.
The Imperial Oil refinery pled guilty to one offence for discharging a contaminant, coker stabilizer, thermocracked gas, into the natural environment causing an adverse effect and was fined $650,000...
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).