Decision Date: November 17, 2004

Panel: Alan Andison, Dr. Robert Cameron, Robert F. Gerath

Keywords:  Waste Management Act – s. 3; Constitutional Questions Act – s. 8; Constitution Act, 1982 – s. 35(1); constitutional jurisdiction; harm to environment; human health; First Nations consultation; Aboriginal rights; fish hatchery; effluent; costs

Myrus James (on behalf of the Penelakut First Nation Elders (the “Elders”)), Donna Martin (on behalf of the Salt Spring Island Residents for Responsible Land Use (the “Residents”)), and Eric Wickham (on behalf of the Canadian Sablefish Association (the “CSA”)) filed separate appeals of the September 15, 2003 decision of the Regional Waste Manager, (the “Regional Manager”) to issue an Approval to Sablefin Hatcheries Ltd. (“Sablefin”) to discharge effluent to the land from a land-based fish hatchery at Walker Hook on Salt Spring Island.

Walker Hook (known to the Elders as Syuhe’mun) is a designated archaeological site containing a large shell midden.  During construction of the injection wells, the remains of several First Nations individuals were discovered.  The Elders claimed a number of Aboriginal rights related to the site, and appealed on the basis that they were not adequately consulted prior to the issuance of the Approval and that the Approval unjustifiably infringed their Aboriginal rights.  The Residents appealed on the grounds that there was inadequate consultation with local residents and that the effluent discharge will cause an adverse effect on the sensitive environment of Walker Hook.  The CSA appealed on the basis that the discharge of effluent may pollute fish habitat and threaten wild sablefish stocks.

The first issue dealt with by the Board was whether the issuance of the Approval went beyond the Province’s constitutional jurisdiction. The Board made no findings on this issue because notice of the jurisdictional question had not been given to the Attorney Generals of British Columbia and Canada in accordance with section 8 of the Constitutional Questions Act.

The second issue was whether the Regional Manager erred by: failing to take into account relevant facts; relying on inadequate and deficient information; or, fettering his discretion before he decided to issue the Approval.  The Board found that there was insufficient evidence to conclude that the Regional Manager fettered his discretion.  The Board also found that the information relied on by the Regional Manager adequately assessed the potential risks associated with the discharge, with the possible exception of the risks associated with marine microbes that may be present in the discharge.  In addition, the Board found that the Regional Manager appropriately considered other public concerns, such as site sensitivity, and that the Regional Manager had no jurisdiction to consider the potential of the site for alternate zoning as argued by the Residents.  However, the Board decided to further consider the risks associated with marine microbes that may be present in the effluent, based on information that was provided to the Board but was not available to the Regional Manager.

The third issue was whether marine microbes that may be discharged in accordance with the Approval would cause harm to the environment and human health.  The Board found that marine microbes in the effluent would be diluted to a concentration that poses no threat to humans or the marine environment, including wild sablefish.

The fourth issue was whether the Regional Manager failed to adequately consult with the Elders before the Approval was issued.  The Board considered legal authorities on the duty to consult with First Nations and found that the Regional Manager conducted adequate and meaningful consultations with the affected First Nations before he issued the Approval.

The Board also considered whether the discharge of effluent in accordance with the Approval would unjustifiably infringe the Aboriginal rights asserted by the Elders.  The Board considered the test set out in R. v. Sparrow, [1990] 1 S.C.R. 1075, for infringement of an Aboriginal right.  The Board found that the discharge would not cause a prima facie infringement of any Aboriginal right to collect shellfish, fish or other foods from the areas around Syuhe’mun.  In addition, the Board found that the Elders did not provide sufficient evidence to prove their claim of Aboriginal rights to Syuhe’mun as a sacred burial ground, and even if those rights had been proven, the effluent discharge would not cause a prima facie infringement of those rights.

Lastly, the Board rejected Sablefin’s request for a cost order against the Elders.  The Board found that the Elders’ appeal was not frivolous or vexatious and that the amount of documentary evidence was not unreasonable.

The appeals were dismissed and Sablefin’s application for costs was denied.