Decision Date: January 16, 2017

Panel: Alan Andison

Keywords: Environmental Management Act – ss. 28, 100(1); preliminary decision; landfill; closure plan; groundwater; person aggrieved; standing to appeal

The Greater Vancouver Sewerage and Drainage District (“GVSDD”) appealed a decision by the Director, Environmental Management Act (the “Director”), Ministry of Environment (the “Ministry”), to approve two plans related to the closure of the Cache Creek landfill. Most of the waste discharged to the landfill comes from the Greater Vancouver Regional District (now called Metro Vancouver), but the landfill also receives waste from the Village of Cache Creek (the “Village”) and the Thompson Nicola Regional District. Wastech Services Ltd. (“Wastech”) and the Village operate the landfill pursuant to an operational certificate that includes requirements for the landfill’s closure. Wastech and the Village submitted the closure plans that the Director had approved. The costs associated with the closure plans must be paid by the GVSDD pursuant to a private agreement between Wastech and the GVSDD.

The GVSDD appealed the approval of the closure plans on several grounds. The main issue concerned a proposal in the plans to collect and treat groundwater affected by elevated levels of chloride. The GVSDD submitted that groundwater treatment should not be part of the closure plans, because the landfill is not the source of the elevated chloride, and the chloride level poses no threat to the environment or human health.

After the appeal was filed, the Director challenged the GVSDD’s standing to appeal the approval. The Director argued that the GVSDD was not a “person aggrieved” by the approval within the meaning of section 100(1) of the Environmental Management Act (the “Act”), and therefore, the Board had no jurisdiction over the appeal. The Director submitted that the GVSDD was only concerned with the economic impact of the approval on the GVSDD, as a result of its agreement with Wastech. The Director also argued that the phrase “person aggrieved” has been interpreted as excluding persons who claim only that their economic interests are affected by the decision under appeal.

The Board noted that the legal test to establish standing under section 100(1) of the Act is whether the appellant has provided sufficient evidence to establish, on a prima facie basis, that the appealed decision prejudicially affects the appellant’s interests. The appellant’s interests must be affected by the appealed decision in a way that is distinct from the general public. The Board found that the courts have made it clear that unduly restrictive interpretations of the phrase “person aggrieved” in the Act should be avoided.

Turning to the facts, the Board found that the GVSDD provided sufficient prima facie evidence to establish that its interests will be affected by the approval in ways that are distinct from the general public. Approximately 90% of the waste that is disposed of at the landfill is deposited by the GVSDD. Although the GVSDD has chosen to hire a contractor, Wastech, to administer and operate the landfill, the GVSDD is, by far, the biggest user of the landfill.

Furthermore, the Board held that the economic impacts of an appealed decision on a person’s interests, as distinct from economic impacts on the general public, may form the basis of standing as a “person aggrieved” under the Act, as long as the alleged economic harm arises from the appealed decision. The Board found that the approval affects the GVSDD’s interests by approving closure plans that uniquely affect the GVSDD’s interests and obligations in relation to the landfill and the closure process. Although the agreement between Wastech and the GVSDD is the mechanism by which the GVSDD bears certain financial responsibilities for the landfill, the GVSDD’s grievance arose from the closure plans that were approved under the approval. Specifically, the risk of harm to the GVSDD’s economic interests arose from the definition of “closure” and the groundwater collection and treatment proposed in the closure plans, which were approved under the approval. The approval, and not the agreement with Wastech, triggered the risk of harm to the GVSDD’s interests.

The Board concluded that the GVSDD provided sufficient evidence to establish, on a prima facie basis, that the approval prejudicially affects the GVSDD’s interests, such that it is “a person aggrieved” under section 100(1) of the Act.

Consequently, the Board denied the application to dismiss the appeal for lack of jurisdiction.