Decision Date: March 10, 2010

Panel: Alan Andison

Keywords:  Environmental Management Act – s. 100(1); preliminary decision; standing; person aggrieved; jurisdiction

The Shuswap-Thompson Organic Producers Association (“STOPA”) appealed a decision issued by the Director, Environmental Management Act, Ministry of Environment, amending a permit held by Domtar Pulp and Paper Inc.  The permit authorizes Domtar to discharge emissions to the air from its pulp and paper mill located in Kamloops, BC.  The amendments mainly pertained to emissions from the mill’s high elevation main stack and two new stacks that would discharge emissions at a lower elevation from two power boilers.  The amendments required a series of improvements that would reduce particulate emissions from the high elevation main stack.  The amendments also authorized relatively low levels of particulate emissions from the two new lower elevation stacks.  Overall, particulate emissions from the mill would be reduced from approximately 8000 kg/day to 1500 kg/day by January 2016, and 70% of those emissions would continue to be discharged from the high elevation main stack.

STOPA appealed the amendments on numerous grounds, which mainly focused on the potential effects of emissions from the two new lower elevation stacks.

Domtar challenged STOPA’s standing to bring the appeal.  Domtar argued that STOPA was not a “person aggrieved” by the amendments, as required under section 100(1) of the Environmental Management Act (the “Act”).  There was no dispute that STOPA is a legal “person” because it is a society under the Society Act, but Domtar argued that STOPA was not “aggrieved” because none of the concerns STOPA had raised were directly related to the interests of STOPA or its members; rather, they were concerns of a theoretical or general nature.

Consequently, the Board requested submissions from the parties regarding whether STOPA had standing to appeal as a “person aggrieved” by the amendments.

The Board found that STOPA was not a “person aggrieved” within the meaning of section 100(1) of the Act.  Specifically, the Board found that STOPA had provided insufficient information to allow the Board to reasonably conclude that the interests of STOPA or its members would likely be prejudiced by the amendments.  Although STOPA raised several issues of general concern about the potential effects of the emissions, it failed to identify any specific concerns relating to potential effects on its interests or its members interests.  Also, the concerns raised by STOPA were too remote or too speculative to support a finding that the interests of STOPA or its members would likely be prejudicially affected by the amendments.

STOPA requested that the Board allow STOPA to substitute an individual to act as the appellant, if the Board found that STOPA lacked standing to appeal.  However, the Board found that the individual in question was not a member of STOPA, and she could have filed an appeal in her own capacity but she had not done so before the time limit for appealing had expired.  In addition, given that STOPA had failed to establish that its members’ interests would likely be prejudiced by the amendments, the Board found that there was no basis to conclude that an individual member of STOPA should be substituted as the appellant.  Consequently, the Board denied STOPA’s request to substitute another person as the appellant.

Accordingly, the appeal was rejected for lack of jurisdiction.