Decision Date: March 25, 2015

Panel: Alan Andison

Keywords: Environmental Management Act – s. 100(1); preliminary decision; Attorney General of the Gambia v. N’Jie, [1961] 2 ALL E.R. 504 (P.C); solid waste; person aggrieved; jurisdiction; standing

Christina Harder and Karl Den Boer appealed a decision of the Director, Environmental Management Act (the “Director”), Ministry of Environment (the “Ministry”), to issue an operational certificate to the Regional District of Central Kootenay (“RDCK”), to manage municipal solid waste and discharge waste at the Ootischenia Landfill (the “Landfill”), located in Castlegar, BC. Although the Certificate was issued on December 15, 2014, the Landfill had been operating for some time under a previous operational certificate. The Certificate contains many requirements and conditions that govern the operation of the Landfill, including specifying the types of waste that may be discharged to the Landfill. The Appellants’ notice of appeal asserted that the RDCK was not inspecting the loads entering the Landfill for recyclable and hazardous waste that should not be discharged to the Landfill; was not enforcing its bylaw prohibiting the landfilling of hazardous and recyclable waste; and, was not reporting instances of non-compliance to the Ministry.

Before it would accept the appeal, the Board requested that the parties provide written submissions on whether the Appellants were “persons aggrieved” by the Certificate within the meaning of section 100(1) of the Environmental Management Act.

In determining whether the Appellants were “persons aggrieved” by the Certificate, the Board considered whether the Appellants had disclosed sufficient information to allow the Board to reasonably conclude, on a prima facie basis, that the Certificate will or may prejudicially affect their interests.

Ms. Harder submitted that she is a “person aggrieved” by the Certificate. She advised that she was previously employed by the RDCK as a landfill attendant. Specifically, she submitted that: workers at the Landfill were “being asked to be complicit in non-compliance with” the Certificate; she was exposed to hazardous waste as an employee; as a taxpayer, she has an interest in seeing her taxes go toward collection of hazardous waste in accordance with the law; she is a community member with an interest in hazardous waste; and, she was an active participant in the public consultation conducted by the Ministry regarding the proposed Certificate. Ms. Harder submitted that her interests give her a “genuine grievance and a legitimate interest in the appeal”.

The Board found that the Appellants’ interests were shared by the community and taxpayers within the RDCK, and the Appellants were not prejudiced by the certificate in a way that was greater or unique, compared to other taxpayers and members of the community. In regard to the Appellants’ allegations of past exposure to hazardous waste, and non-compliance with a previous certificate, the Board found that the allegations were no supported by further evidence or information, and were at best, only indirectly relevant to the present appeal.

In addition, the Board found that most, if not all, of the remedies sought by the Appellants, appeared to be beyond the scope of the Certificate, or beyond the Board’s powers in an appeal of the decision to issue the Certificate.

Based on all of the submissions, the Board concluded that the Appellants did not provide sufficient information to establish that they were “persons aggrieved”. Consequently, the Board found that the appeal was not within its jurisdiction.

Accordingly, the appeal was dismissed.