Decision Date: August 18, 2017

Court: B.C.C.A., Justices Bauman, Groberman, and Willcock

Citation: 2017 BCCA 300

Rio Tinto Alcan Inc. (“Rio Tinto”) appealed a decision of the BC Supreme Court which set aside a decision of the Environmental Appeal Board (the “Board”). The Board had concluded that the approval of an environmental effects monitoring plan (the “Plan”) by the Director, Environmental Management Act (the “Director”), Ministry of Environment, was not an appealable “decision” as defined in section 99 of the Environmental Management Act (the “Act”). The Plan applied to emissions from an aluminum smelter operated by Rio Tinto in Kitimat, BC.

Rio Tinto was required to prepare and implement the Plan under a condition in a permit amendment that the Director had issued in 2013. The amendment concerned Rio Tinto’s permit authorizing emissions from the smelter. In addition to requiring the Plan, the amendment also increased the maximum daily limit on sulphur dioxide emissions from the smelter. The amendment was the subject of appeals filed in 2013 by two Kitimat residents, Elisabeth Stannus and Emily Toews.

In November 2014, Ms. Stannus, Ms. Toews, and Unifor Local 2301 (“Unifor”) filed separate appeals against the approval of the Plan. Unifor is a union that represents the smelter’s workers and retired workers, many of whom live in the Kitimat area. Before accepting the appeals, the Board requested submissions from the parties regarding whether the approval of the Plan was an appealable “decision” as defined by section 99 of the Act.

The Board found that the Director’s approval of the Plan was not an appealable “decision” as defined by section 99 of the Act (Emily Toews, Elisabeth Stannus, and Unifor Local 2301 v. Director, Environmental Management Act (Decision No. 2014-EMA-003(a), 004(a), 005(a), December 4, 2014)). The Board found that the approval of the Plan did not fall within any of the appealable matters listed in section 99. The Board also found that policy considerations supported a finding that the approval of the Plan was not appealable. Specifically, the Board found that concerns about the adequacy of the Plan had already been raised in the appeals against the amendment, and the Plan did not change the amount or type of emissions allowed under Rio Tinto’s permit. Also, the Board held that allowing an appeal of every monitoring plan or further study required by a permit or permit amendment would allow parties to circumvent the 30-day period for appealing a permit or permit amendment. Accordingly, the appeals were rejected as being outside of the Board’s jurisdiction.

Unifor initiated a judicial review of the Board’s decision by the BC Supreme Court. The Court found that the appropriate standard of review was “reasonableness”. This meant that the question was whether the Board’s interpretation of “decision” in section 99 of the Act fell outside the range of possible, acceptable outcomes which are defensible in respect of the facts and law. However, the Court found that the Board’s interpretation of “decision” in section 99 of the Act was unreasonable. The Court held that the approval of the Plan was part of a two stage decision-making process, in that the approval of the Plan was part of the Director’s decision to grant the permit amendment, and therefore, the approval of the Plan was an appealable “decision” although the Court did not specify which subsection in section 99 applied. The Court also found that it was unreasonable to require someone to commence an appeal of a decision before the full content of the decision is known, which in this case was when the contents of the approved Plan were known. Finally, the Court held that the existence of appeals against the amendment was irrelevant to the question of whether the Board had jurisdiction to hear the appeals against the Plan.

Accordingly, the BC Supreme Court set aside the Board’s decision, and remitted the matter back to the Board for reconsideration in accordance with the Court’s reasons.

Rio Tinto appealed the BC Supreme Court’s decision to the BC Court of Appeal. The Court of Appeal held that the Board interpreted section 99 of the Act restrictively, and failed to heed the requirement in section 8 of the Interpretation Act that enactments must be construed as remedial. The Court of Appeal found that section 99 is intended to comprehensively enumerate virtually all of the substantive decisions that are made under the Act. In addition, the Court of Appeal agreed with the Supreme Court that the permit amendment was done in two stages, as the imposition of the requirements in the Plan was the exercise of a power under section 14(1)(e) of the Act with respect to permits, and the existence of appeals of the permit amendment was irrelevant. Finally, the Court of Appeal found that hearing an appeal of a monitoring plan should not open up a permit or permit amendment to “attacks at large”, as the appeal should be narrowly focused on the particular impugned decision.

In conclusion, the Court of Appeal found that the Board’s decision was unreasonable. Rio Tinto’s appeal was dismissed.