Decision Date: November 6, 2008

Panel: Alan Andison

Keywords:  Environmental Management Act – s. 100; person aggrieved; standing; jurisdiction; preliminary decision

Paddy Goggins and Patricia Aldworth jointly appealed a decision of the Director, Environmental Management Act, Ministry of Environment, to amend a permit held by Catalyst Paper Corporation and Catalyst Pulp Operations, doing business as Catalyst Paper General Partnership (“Catalyst”).  The amended permit authorizes the expansion of a landfill located in the Wildwood area of Powell River.  The landfill receives refuse from Catalyst’s pulp and paper mill.  In particular, the amendment authorized Catalyst to expand the landfill’s total capacity from 100,000 cubic metres to 620,000 cubic metres, and to increase its area from 2.3 hectares to 6.1 hectares.  The components of refuse that could be discharged to the landfill remained the same under the amended permit: fly ash, waste asbestos, and “miscellaneous mill waste” as defined in the permit.  Several other people from the Powell River area filed separate appeals of the amended permit.

As a preliminary matter, Catalyst requested that the Board rule on the standing of Mr. Goggins and Ms. Aldworth to appeal the amended permit.  Catalyst argued that they had no standing to bring the appeal because they are not “persons aggrieved” by the amended permit, within the meaning of section 100 of the Environmental Management Act (the “Act”).

The Board requested written submissions on the issue of Mr. Goggins’ and Ms. Aldworth’s standing to appeal the amended permit.

In determining whether Mr. Goggins and Ms. Aldworth were “persons aggrieved” by the amended permit, the Board applied the test that it has applied in many previous decisions.  That test is from the decision of the House of Lords in Attorney General of the Gambia v. N’Jie, [1961] 2 ALL E.R. 504 (P.C.), and it requires the appellant to disclose sufficient information to allow the Board to reasonably conclude that the Director’s decision has or will prejudicially affect the appellant’s interests.

The Appellants relied on the proximity of their residences to the landfill.  Specifically, Mr. Goggins advised that he lives approximately 3 kilometres from the landfill, and Ms. Aldworth lives less than 2 kilometres from the landfill.

However, the Board found the test for whether a person is “aggrieved” requires the Appellants to provide some evidence or information indicating that they will, or will likely, suffer some prejudice as a result of the decision authorizing the discharge.  Consequently, evidence of proximity alone does not necessarily lead to the conclusion that the Appellants’ interests are prejudicially affected by the discharge.

The Board found that the Appellants had provided no information indicating how the landfill expansion may affect their interests.  In particular, they did not explain how the potential environmental impacts they identified may be prejudicial to their own interests.  For example, they provided no indication that dust or leachate from the landfill may reach their home or affect their health, livelihood, or the enjoyment of their property.

The Board noted the Mr. Goggins had previously brought appeals before the Board respecting Catalyst and its predecessors’ activities at its pulp and paper mill, and he had previously established his standing to file those appeals.  However, the Board held that those previous decisions could be distinguished from the present appeal because, in those cases, Mr. Goggins provided information to support the conclusion that he was a “person aggrieved” but in this case he did not.  Furthermore, the Board found that the landfill in this case is not at the same location as either the mill or the landfill at issue in the previous cases, and therefore, sufficient proximity to the mill or the other landfill does not necessarily mean sufficient proximity to the landfill in this case.  Consequently, although the Board found that Mr. Goggins had standing to appeal certain decisions in the past that does not lead to the conclusion that he also has standing to appeal the amended permit in this case.

In addition, the Board found that some of the issues raised by Mr. Goggins and Ms. Aldworth were raised by one or more Appellants whose standing was not challenged by Catalyst.  Consequently, the Board held that their lack of participation as parties in the appeal would not affect the Board’s ability to fully canvass at least some of the environmental issues of concern to them.

In conclusion, the Board found that Mr. Goggins and Ms. Aldworth provided insufficient evidence for the Board to reasonably conclude that they are, or will be, prejudicially affected by the amended permit.  The Board held that they are without standing to bring the appeal because they are not “persons aggrieved” within the meaning of section 100 of the Act.

Accordingly, the appeal was rejected for lack of jurisdiction.