Decision Date: August 22, 2007

Panel: Alan Andison

Keywords: Environmental Management Act – s. 99, s. 100(1); appealable decision; standing; First Nations consultation; Municipal Sewage Regulation; registration of a discharge

Pursuant to the Municipal Sewage Regulation (the “Regulation”), the third party, Mr. Willis, submitted an application for registration of a discharge from a sewage treatment facility to be located adjacent to the Shuswap River. In April 2007, the Director, Environmental Management Act (the “Director”) issued a letter to Mr. Willis, acknowledging receipt of the completed registration form. It stated that the registration was effective November 22, 2006, and set out a number of requirements imposed by the Director regarding the discharge, effective on the date the letter was issued.

Two separate appeals were filed in response to the Director’s letter. The Splatsin First Nation (the “Splatsin”) requested that the Board rescind the registration and all of the associated requirements due to lack of consultation with First Nations. Mr. Kruyk and Ms. Broad requested that the Board prohibit the discharge to surface waters by the proposed sewage treatment facility.

As a preliminary matter, the Board requested submissions on its jurisdiction to hear the appeals. For the Board to have jurisdiction to hear an appeal of the registration, the registration must fall within one of the subsections set out in the definition of “decision” in section 99 of the Environmental Management Act (the “Act”). The Board advised the parties that it was satisfied that it had jurisdiction to hear the appeals of the additional conditions imposed by the Director, as their imposition amounts to “imposing a requirement” under section 99(b). However, the Board requested submissions from the parties regarding whether a registration itself was an appealable decision. Mr. Kruyk and Ms. Broad subsequently amended their appeal to state that the relief requested was an order appending a requirement to the Director’s letter, such that “the type of disposal system not include discharge to any watercourse.”

In order to determine whether the registration of the discharge constituted an appealable decision, the Board reviewed the process that leads to “registration”, as set out in the Regulation, and found that the registration process does not provide a director with any decision-making power over the registration itself. Therefore, the Board concluded that mere receipt of the application for registration by the Director did not constitute an “exercise of power” as contemplated under section 99(c) of the Act.

The Board also rejected the Splatsin’s claim that the Director’s letter, in its entirety, was an “order” that may be appealed under section 99(a) of the Act. The Board found that the Director’s acknowledgment that the registration application was received and the imposition of additional requirement were two statutorily and factually discrete events. The Board concluded that it was not inconsistent to find one event (the registration) outside the scope of its jurisdiction, and the other (the imposition of the requirements) to be appealable. In sum, the Board found that, while the imposition of the additional requirements was appealable under section 99(b) of the Act, the registration itself was not appealable.

The Board then considered the Splatsin’s argument that the Director’s decision not to consult with First Nations was an “exercise of power” within the meaning of section 99(c) of the Act. The Board found that decisions regarding consultation with aboriginal people were not statutory “decisions” under section 99 that may trigger an appeal to the Board. The duty to consult arises from the honour of the Crown, which has constitutional and common law origins, whereas appealable decisions within the meaning of section 99 are statutory decisions. Therefore, actions or decisions by agents of the Crown regarding consultation may be considered by the Board only if there is an appealable statutory decision, as defined in section 99, to be considered. As a result, the Board concluded that, insofar as the Director’s decision to impose additional requirements was an appealable decision, any concerns regarding consultation in the context of the imposition of these requirements were within the Board’s jurisdiction. However, concerns regarding consultation in the context of the registration, which is not appealable, could not be considered by the Board.

The Board further considered Mr. Kruyk and Ms. Broad’s request that the Board impose an additional requirement prohibiting the discharge of effluent to surface waters. The Board found that it had no jurisdiction to grant a remedy that would prohibit what the registration and the Regulation allow.

Finally, the Board considered the issue, raised by Mr. Willis, of the Appellants’ standing to appeal as “persons aggrieved” under section 100(1) of the Act. The Board found that the Appellants had provided sufficient evidence to establish that they were or may be prejudicially affected by the additional requirements. Therefore, the Board found that the Appellants were “persons aggrieved” within the meaning of section 100(1).

Accordingly, the Board concluded that it had jurisdiction over the appeals and any issues regarding consultation with the Splatsin, only to the extent that the appeals pertain to the additional requirements that were imposed by the Director.