Decision Date: November 2, 2004
Panel: Alan Andison
Keywords: Waste Management Act – ss. 27(4), 27.6(1), 44; standing; jurisdiction; remediation; approval in principle; person aggrieved
This was a preliminary matter on an appeal of the April 30, 2004 decision of the Deputy Director of Waste Management, Ministry of Water, Land and Air Protection (the “Deputy Director”) to issue an approval in principle (“AIP”) to the BC Hydro and Power Authority (“BC Hydro”). The AIP pertained to a proposal to remediate certain contaminated lands held by BC Hydro and adjacent lands held by the Federal government. 427958 B.C. Ltd. (“Super Save”) owns adjacent lands that Super Save alleges have been contaminated by the migration of contaminants from the lands subject to the AIP.
At issue in this application was whether the Board had jurisdiction to hear the appeal. The Applicant, BC Hydro, submitted that Super Save lacked standing to bring the appeal as it was not a “person aggrieved” by the AIP, and that the AIP did not constitute a “decision” under section 43 of the Waste Management Act (the “Act”).
In deciding whether Super Save was an “aggrieved person” for the purposes of section 44 of the Act, the Board applied the test of “whether the person has a genuine grievance because an order has been made which prejudicially affects his or her interests.”
The Board found that, in issuing the AIP, the Deputy Director did not make a decision that prejudicially affects Super Save’s interests. The Board found that Super Save was not aggrieved by anything in the AIP, nor did it provide evidence that it would be prejudicially affected by the proposed remediation work. In addition, the Board noted that allowing persons who are not party to a remediation plan to appeal an AIP may unreasonably delay the remediation of contaminated sites. The Board also noted that section 27(4) of the Act may allow Super Save to recover its remediation costs from BC Hydro if Super Save’s property has been contaminated as a result of contaminant migration from the BC Hydro property.
The Board found that Super Save cannot be properly considered a “person aggrieved” by the decision to issue the AIP and therefore had no standing to bring the appeal. The appeal was dismissed for lack of jurisdiction.
Accordingly, the application was allowed.
