Decision Date: April 17, 2014

Panel: Alan Andison

Keywords: Environmental Management Act – s. 100(1); permit amendment; person aggrieved; standing to appeal; reconsideration

In April 2013, Lynda Gagne, Charles Henry Claus, the Skeena Wild Conservation Trust (the “Trust”), and the Lakelse Watershed Stewards Society (the “Society”) were among a group of eight appellants who appealed a decision issued by the Director, Environmental Management Act (the “Director”), to amend a permit held by Rio Tinto Alcan Inc. (“Rio Tinto”). The permit authorizes Rio Tinto to discharge effluent, emissions, and waste from a smelter located in Kitimat, BC. Among other things, the amendment allowed an increase in the smelter’s maximum daily emissions of SO2 (sulphur dioxide).

After the appeals were filed, Rio Tinto challenged the appellants’ standing to appeal the permit amendment. Rio Tinto submitted that the appellants were not “persons aggrieved” by the permit amendment within the meaning of section 100(1) of the Act. The Board considered the issue as a preliminary matter conducted by way of written submissions.

In a decision issued in October 2013 (Lynda Gagne et al v. Director, Environmental Management Act (Decision Nos. 2013-EMA-005(a) and 007(a) through 012(a)), the Board found that two of the eight appellants had standing to appeal as “persons aggrieved” by the permit amendment. The Board held that the other six appellants, including Ms. Gagne, Mr. Claus, the Trust, and the Society, had not established that they were “persons aggrieved,” and therefore, they had no standing to appeal.

Ms. Gagne, Mr. Claus, the Trust, and the Society filed a petition with the BC Supreme Court for a judicial review of the Board’s decision. The petitioners argued that the Board had acted in a procedurally unfair manner when staff of the Board requested that Rio Tinto provide copies of certain documents that both Rio Tinto and the appellants had cited and partially quoted in their submissions. The petitioners argued that this was unfair because the deadline for written submissions had closed, the petitioners were not copied on the Board’s request to Rio Tinto, and the petitioners were not given an opportunity to make further submissions regarding the documents contrary to the Board’s Procedure Manual.

The Court issued its decision in March 2014 (Gagne v. Sharp, 2014 BCSC 2077). The Court first considered the degree of procedural fairness owed by the Board. The Court concluded that the key question was whether the Board complied with its own Procedure Manual, and not whether the petitioners had suffered any prejudice. The Court held that the Board was required to rigorously comply with its Procedure Manual. The Board’s Procedure Manual provided that, in deciding appeals, the Board would not request further information from a party without providing the other parties with notice and an opportunity to make submissions regarding that information. The Court found that, although there was no intentional misconduct by any party, the Board’s request for documents from Rio Tinto was a breach of its Procedure Manual, and this breached the petitioners’ right to procedural fairness. The Court also held that the Board had applied the “balance of probabilities” standard of proof to the question of standing, and this standard of proof was too rigorous. The Court held that appellants should only have to demonstrate on a prima facie basis that they are “persons aggrieved” when their standing is being decided as a preliminary matter. Finally, the Court concluded that any determination the Board makes regarding standing is entitled to deference from the courts, and a standard of “reasonableness” should be applied by the courts. Accordingly, the Court directed the Board to reconsider whether the petitioners had established, on a prima facie basis, that they are “persons aggrieved,” based on the submissions and information before the Board when the preliminary hearing on standing had concluded.

The Board proceeded to reconsider the four appellants’ standing to appeal the permit amendment, in accordance with the Court’s directions. The Board found that none of the four appellants had established, even on a prima facie basis, that they are “persons aggrieved” by the permit amendment. The Board found that their evidence and submissions were primarily aimed at establishing that they have a “genuine interest” in the subject matter of the appeals, but in Gagne the Court confirmed the Board’s finding that a “genuine interest” is insufficient to establish standing as a “person aggrieved” under the Act. The Board held that general concerns about the environment or public health are insufficient to establish standing; an appellant must provide evidence or information that demonstrates, on a prima facie basis, that the appellant’s interests are prejudicially affected.

The Board also found that the appellants’ concerns about the potential effects of the sulphur dioxide emissions were too remote and speculative to establish that they are “persons aggrieved.” The four appellants reside and work outside of the Kitimat area, and they did not challenge Rio Tinto’s evidence that the sulphur dioxide emissions are predicted not to exceed the BC Pollution Control Objectives outside of Kitimat. In addition, although the appellants raised concerns that the emissions could harm soil, plants, fish and fish habitat due to acidification, they did not identify the threshold(s) at which adverse impacts are predicted to occur. As such, the appellants failed to establish, even on a prima facie basis, that such impacts may occur. Further, the Board noted that the permit amendment allows an increase in sulphur dioxide emissions, not a new source of such emissions, and there was no evidence that the existing emissions had harmed the appellants’ health or other interests.

Accordingly, the four appeals were dismissed, and Rio Tinto’s application to dismiss the appeals was granted.