Decision Date: December 1, 2008

Panel: Alan Andison

Keywords:  Environmental Management Act – s. 99 – definition of “decision”, s. 100; jurisdiction; preliminary decision

Darryl Secret appealed a letter issued by the Director, Environmental Management Act, Ministry of Environment, which provided notice that the City of Nelson may approve a development permit and associated applications for a site because, in the opinion of the Director, the site would not present a significant threat or risk if the development permit and applications were approved, subject to certain conditions.  The Director’s letter stated that it constituted notice pursuant to section 946.2(2)(d) of the Local Government Act and section 85.1(2)(d) of the Land Title Act.  Mr. Secret’s grounds for appeal included allegations that the Director had assessed the site’s risk based on an incomplete understanding of the nature and extent of contamination at the site.

As a preliminary matter, the Board requested submissions on the issue of whether the Director’s letter contains an appealable “decision” within the meaning of section 99 of the Environmental Management Act (the “Act”).

Mr. Secret submitted that the Director was either issuing a “permit” or “approval”, or “exercising a power” within the meaning of section 99 of the Act.

The Director argued that the letter did not constitute an appealable “decision” within the meaning of section 99 of the Act.

The Board found that the words “permit” and “approval” are defined in the Act to mean permits and approvals issued under the Act or its regulations.  The Board held that, since the letter was not issued pursuant to the Act, it did not constitute an approval or permit for the purposes of section 99(d) of the Act.

In addition, the Board concluded that the letter did not constitute “exercising a power” within the meaning of section 99(c) of the Act.  The Board held that the appeal provisions in Division 2 of Part 8 of the Act are intended to apply to decisions made under the Act, and not decisions made under other Acts.  In this case, the Director acted under authority of the Land Title Act and/or the Local Government Act.  Further, the Board found that the appeal provisions in Division 1 of Part 8 state that it may hear appeals of decisions made under certain other Acts, but those Acts do not include the Land Title Act or Local Government Act.

In conclusion, the Board held that the letter was not an appealable “decision” under section 99 of the Act, and there is no statutory authority for the Board to hear appeals of the decision in this case; namely, the issuance of a notice pursuant to section 946.2(2)(d) of the Local Government Act and section 85.1(2)(d) of the Land Title Act. 

Accordingly, the appeal was dismissed for lack of jurisdiction.