Decision Date: October 27, 2008

Panel: Alan Andison

Keywords:  Environmental Management Act – s. 100; person aggrieved; standing; jurisdiction; preliminary decision

John Keays appealed a decision of the Director, Environmental Management Act, Ministry of Environment, to amend a permit held by Catalyst Paper Corporation and Catalyst Pulp Operations, doing business as Catalyst Paper General Partnership (“Catalyst”).  The amended permit authorizes the expansion of a landfill located in the Wildwood area of Powell River.  The landfill receives refuse from Catalyst’s pulp and paper mill. In particular, the amendment authorized Catalyst to expand the landfill’s total capacity from 100,000 cubic metres to 620,000 cubic metres, and to increase its area from 2.3 hectares to 6.1 hectares.  The components of refuse that could be discharged to the landfill remained the same under the amended permit: fly ash, waste asbestos, and “miscellaneous mill waste” as defined in the permit.  Several other people from the Powell River area filed separate appeals of the amended permit.

As a preliminary matter, Catalyst requested that the Board rule on Mr. Keays’ standing to appeal the amended permit.  Catalyst argued that Mr. Keays had no standing to bring the appeal because he is not a “person aggrieved” by the amended permit, within the meaning of section 100 of the Environmental Management Act (the “Act”).

The Board provided the Director, Catalyst, and Mr. Keays with an opportunity to provide submissions on the issue of Mr. Keays’ standing to appeal the amended permit.

In determining whether Mr. Keays was a “person aggrieved” by the amended permit, the Board applied the same test that it has applied in many previous decisions.  That test is from the decision of the House of Lords in Attorney General of the Gambia v. N’Jie, [1961] 2 ALL E.R. 504 (P.C.), and it requires the appellant to disclose sufficient information to allow the Board to reasonably conclude that the Director’s decision has or will prejudicially affect the appellant’s interests.
The Board found that Mr. Keays provided no information indicating how the landfill expansion may affect him or his interests.  In particular, Mr. Keays did not explain how the potential environmental impacts he has identified may be prejudicial to his own interests, such as his health, his livelihood, or his enjoyment of his property.  One of Mr. Keays’ primary concerns was the impact of the authorized discharge on midge larvae.  However, Mr. Keays did not explain how an impact on midge larvae would impact him personally.

The Board noted the Mr. Keays had previously brought appeals before the Board respecting Catalyst and its predecessors’ activities at its pulp and paper mill, and he had previously established his standing to file those appeals.  However, the Board found that its previous decisions regarding Mr. Keays’ standing were distinguishable from the present appeal because: (1) in those cases, Mr. Keays provided information to support the conclusion that he was a “person aggrieved” but in this case he has not; and (2) those appeals involved the discharge of contaminants to the air, and this case involves the discharge of refuse to the ground.  The Board found that the considerations involved in determining whether a person may be affected by air emissions from a pulp and paper mill are quite different from those involved in determining whether a person may be affected by the discharge of waste to the ground at a landfill.

In addition, the Board noted that some of the issues raised by Mr. Keays were also raised by one or more Appellants whose standing has not been challenged by Catalyst.  Consequently, the Board found that Mr. Keays’ lack of participation as a party in the appeal would not affect the Board’s ability to fully canvass at least some of the environmental issues of concern to Mr. Keays.

In conclusion, the Board found that Mr. Keays provided insufficient evidence for the Board to reasonably conclude that he is prejudicially affected by the amended permit.  The Board held that he was without standing to bring the appeal because he was not a “person aggrieved” within the meaning of section 100 of the Act.

Accordingly, the appeal was rejected for lack of jurisdiction.