Christine McLean v. Director, Environmental Management Act

Decision Date: November 3, 2021

Panel: Darrell Le Houillier

Keywords: Environmental Management Act – ss. 16, 101, 102(2); permit amendment; preliminary application; amended notice of appeal; Unifor Local 2301 v. Rio Tinto Alcan Inc., 2017 BCCA 300

Christine McLean appealed a permit amendment issued in 2017 (the “2017 Amendment”) to Mount Polley Mining Corporation (“MPMC”) by the Director, Environmental Management Act (the “Director”), Ministry of Forests, Lands, Natural Resource Operations and Rural Development. The permit authorized MPMC to discharge effluent from MPMC’s copper and gold mine.

The permit was amended several times after the 2017 Amendment. Some of the subsequent amendments removed or altered some of the changes that the 2017 Amendment made to the permit. Some of the subsequent amendments were appealed by Ms. McLean and/or MPMC. Of those appeals, only one filed by MPMC remained active (Appeal No. EAB-EMA-20-A003). Ms. McLean’s appeal of the 2017 Amendment and MPMC’s appeal of a subsequent amendment were scheduled to be heard separately by the Board.

In July 2021, Ms. McLean applied to amend her Notice of Appeal with respect to some of her grounds for appeal and the remedies she was seeking in relation to the 2017 Amendment. The Director and MPMC objected to some of the proposed amendments to her Notice of Appeal.

In deciding whether to grant the application, the Board applied a test it had used in previous decisions. The first question was whether it was plain and obvious, on a generous reading of the proposed amended or new ground of appeal, that the Board had no jurisdiction over the amended or new ground, or that the proposed amended or new ground was completely irrelevant to the appeal. Next, the other parties’ right to procedural fairness should be considered, including whether the other parties received adequate notice of any material changes to the grounds, and whether allowing the amended or new ground adds complexity to the appeal or lengthens the hearing. Any potential prejudice to the other parties should be balanced against an appellant’s right to a fair opportunity to be heard. Similar considerations apply to new or amended remedies.

The Board found that, to the extent that Ms. McLean may, in effect, be attempting to challenge decisions made with respect to the permit before or after the 2017 Amendment, she had no standing to appeal such decisions. Section 101 of the Environmental Management Act provides a 30-day appeal period, and the Board has no jurisdiction to extend that appeal period. Ms. McLean cannot challenge other decisions through her appeal of the 2017 Amendment. Furthermore, to the extent that she may be attempting to appeal the entirety of the Permit, this was not permissible. The appeal must narrowly focus on the 2017 Amendment. However, in deciding the appeal of the 2017 Amendment, the Board may consider information that became known before and since the 2017 Amendment, if that information is relevant to the issues in the appeal.

Turning to the application, the Board found that most of the proposed amended or new grounds of appeal and remedies were within the Board’s jurisdiction, and the other parties had received adequate notice of the proposed changes. Any prejudice to the other parties would only arise from having to prepare submissions and some evidence regarding the amended or new grounds and remedies. This potential prejudice did not outweigh Ms. McLean’s right to a full hearing of the appeal. In addition, allowing the amendments would help ensure that the Board make a more fully informed decision when it decides the appeal. As a result, the Board granted most aspects of the application.

The Board refused to allow the addition of one proposed new remedy. The proposed remedy asked that, if the appeal was successful, the Board should add a condition in the permit that would take away MPMC’s ability to discharge effluent under the permit if MPMC did not comply with the reporting requirements in the permit. The Board found that it was unclear whether the proposed remedy was within the Board’s jurisdiction, because it was unclear whether this remedy related to the portions of the permit that were added or amended by the 2017 Amendment. In any event, the proposed remedy was inappropriate because it would limit how the Director could respond to any future non-compliance with reporting requirements in the permit.

For those reasons, the Board granted the application, in part.