Decision Date: December 3, 2014

Panel: Alan Andison

Keywords: Administrative Tribunals Act – s. 34(3)(b); Environmental Management Act – s. 93(11); permit amendment; application for document disclosure; monitoring plan

The Appellants applied to the Board for an order requiring Rio Tinto Alcan Inc. (“Rio Tinto”) to produce three categories of documents pursuant to section 34(3)(b) of the Administrative Tribunals Act (the “ATA”). In April 2013, the Appellants appealed the Director’s decision to amend a permit held by Rio Tinto. The permit authorizes the discharge of effluent, emissions, and waste from Rio Tinto’s aluminum smelter located in Kitimat, BC. Among other things, the amendment allows an increase in the maximum level of sulphur dioxide emissions from the smelter.

The permit amendment includes a requirement that Rio Tinto prepare a monitoring plan, and submit it to the Director for approval. The Director approved Rio Tinto’s monitoring plan approximately 18 months after he issued the permit amendment. The requested documents pertained to the draft and approved monitoring plan, and were limited to the time between December 31, 2013, when Rio Tinto submitted its draft monitoring plan to the Director, and October 7, 2014, when the Director approved the monitoring plan. In the application for disclosure, the Appellants submitted that the requested documents were relevant to their appeals of the permit amendment.

Rio Tinto opposed the application for document disclosure.

The Board applied the test for document disclosure set out in Seaspan ULC v. Domtar Inc. (Decision Nos. 2010-EMA-004(a), 005(a), 006(a) and 2011-EMA-003(a), issued June 11, 2013). That test is based on the language in section 34(3)(b) of the ATA. The key considerations in the test are: (1) whether it is reasonable to suppose that the requested documents may be relevant to proving or responding to an issue in the appeal, based on the issues raised in the applicant’s notice of appeal and (if available) statement of points; (2) whether the requested documents are admissible; and (3) whether the person being asked to disclose the documents has possession and control of the documents.

The Board found that none of the requested categories of documents met the test for disclosure. The Board found that the requested documents pertained to the drafting and preparation of the monitoring plan, and the decision to approve the monitoring plan, and were irrelevant to the appeals of the permit amendment.

Accordingly, the application for document disclosure was denied.