Decision Date: October 31, 2013

Panel: Alan Andison

Keywords: Environmental Management Act – s. 101(1); preliminary decision; permit; air emissions; person aggrieved; jurisdiction; standing

Seven appeals were filed against a decision of the Director, Environmental Management Act, Ministry of Environment, to amend a permit held by Rio Tinto Alcan Inc. (“Rio Tinto”). The permit authorizes Rio Tinto to discharge effluent, waste, and emissions from an aluminium smelter in Kitimat, BC.

Rio Tinto sought the permit amendment in support of a project designed to modernize and increase the production at the Kitimat smelter. The project will reduce the smelter’s emissions of polycyclic aromatic hydrocarbons, fluorides, and particulate matter, but will result in an increase in sulphur dioxide emissions. Among other things, the amendment allows an increase in the smelter’s total emissions of sulphur dioxide. The previous sulphur dioxide limit was a maximum of 27 Mg/d (tonnes per day), and the new limit is a maximum of 42 tonnes per day. The amendment also amends the authorized works listed in the Permit, and adds several conditions including requirements to develop an environmental effects monitoring plan for Ministry approval, and to conduct public consultations regarding the environmental effects monitoring plan.

The Appellants filed separate appeals, but their notices of appeal contained similar, or in some cases identical, grounds for appeal. In all cases, the grounds for appeal allege that the Director erred in his assessment of the potential impacts of the increase in sulphur dioxide emissions, and in assessing sulphur dioxide treatment options. All of the Appellants requested that the Board “strike” from the amendment the clause allowing the increase in sulphur dioxide emissions, and amend the Permit to require the installation of sulphur dioxide scrubbers.

Shortly after the appeals were filed, Rio Tinto filed an application requesting that the Board dismiss the appeals on the basis that none of the Appellants are a “person aggrieved” by the permit amendment within the meaning of the Environmental Management Act (the “Act”). Section 100(1) of the Act states that a “person aggrieved by a decision” of the Director may appeal the decision to the Board.

In determining whether an Appellant is a “person aggrieved,” the Board has applied the test set out in Attorney General of the Gambia v. N’Jie, [1961] 2 ALL E.R. 504 (P.C.). That test, which has been applied by the Board in numerous cases, requires each Appellant to disclose sufficient information to allow the Board to reasonably conclude that the permit amendment will or may prejudicially affect the Appellant’s interests.

Six of the Appellants (Lynda Gagne, Emily Toews, Charles Henry Claus, Elisabeth Stannus, the Trust, and the Society) argued that the legal test applied by the Board to determine questions of standing under the Act should be revisited and broadened based on recent judicial decisions on public interest standing. They also described how each of them is interested in, or may affected by, the permit amendment.

One of the Appellants, Pamela Vollrath, provided no submissions.

First, the Board considered whether it should revise the legal test that it applies to determine whether an appellant is a “person aggrieved” within the meaning of section 100(1) of the Act. The Board found that court decisions regarding public interest standing in a judicial review context are irrelevant to determining whether a person has a statutory right of appeal to the Board. The Board’s jurisdiction is derived from its enabling statutes. Thus, in deciding whether an appellant has standing to appeal, the Board must consider the relevant appeal provision, which is section 100 of the Act in this case. Based on the modern approach to statutory interpretation, the phrase “person aggrieved” is to be read in its grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of the Legislature. Also, “person aggrieved” should be interpreted in a broad, liberal and purposive manner that is consistent with the Legislature’s intention and section 8 of the Interpretation Act.

The Board considered several dictionary definitions of “aggrieved” and found that they all refer to harm, injury or an adverse effect, particularly in relation to one’s rights or interests. The dictionary definitions suggest that a person who is “aggrieved” by a decision is a person whose rights or interests are, or may be, harmed, injured or adversely effected by that decision. The Board also found that section 100 of the Act contains no indication that the Legislative intended for “person aggrieved” to include persons who have a “genuine interest” in the appealed decision. If an appellant only needed to establish that they have a “genuine interest” in the appealed decision, it would give no effect to the word “aggrieved,” because a person may have a genuine interest in a decision without suffering a genuine grievance or harm as a result of the decision. Furthermore, persons with a “genuine interest” in an existing appeal may apply for participant status in the appeal pursuant to section 94(1)(a) of the Environmental Management Act. For all of those reasons, the Board rejected the Appellants’ submission that it should revise its test for determining whether an appellant is a “person aggrieved” within the meaning of section 100 of the Act.

Next, the Board considered whether each of the Appellants met the test for standing to appeal as a “person aggrieved” by the permit amendment.

The Board found that Ms. Toews established that she may be adversely affected by the amendment, given her existing asthma and sensitivity to pollutants, her physically active lifestyle, and the fact that she resides and works in Kitimat where air quality will be most affected by the increased sulphur dioxide emissions.

Similarly, the Board found that Ms. Stannus’ home and workplace are within the area that will be most affected by the increase in sulphur dioxide emissions, and she spends a significant amount of time outdoors walking, gardening, and participating in recreation within the most affected area. The Board concluded that the increase in sulphur dioxide emissions may adversely affect Ms. Stannus’ health, and/or her enjoyment of her home and outdoor activities.

However, the Board found that the remaining Appellants’ concerns about the potential effects of the emissions on their interests were too general, speculative and/or remote to establish that they are “persons aggrieved” by the amendment.

In summary, the Board found that Ms. Toews and Ms. Stannus were persons aggrieved” by the amendment, and therefore, Rio Tinto’s application to dismiss their appeals for lack of jurisdiction was denied. However, Ms. Gagne, Mr. Claus, Ms. Vollrath, the Trust, and the Society failed to establish that they were persons aggrieved” by the amendment, and therefore, Rio Tinto’s application to dismiss those appeals for lack of jurisdiction was granted.

Accordingly, the application to dismiss the appeals for lack of jurisdiction was granted in part.