Decision Date: July 17, 1998

Panel: Toby Vigod

Keywords: Waste Management Act – ss. 44, 45(3); directly affected;” definition of “prejudicially;” bona fide intention to appeal; proof required to establish standing

Terry Jacks, founder of the environmental group “Environmental Watch,” appealed the issuance of an amended Waste Management Permit to Howe Sound Pulp and Paper Ltd. (“HSPP”), which owns and operates a pulp and paper mill in Port Mellon, B.C. Part of this amended permit dealt with air emission levels for sulphur dioxide and nitrogen oxide from the wood residue boiler at the mill. HSPP challenged the standing of Mr. Jacks. The Deputy Director ruled that Mr. Jacks had standing and that the time to commence the appeal should be extended. HSPP appealed this decision to the Board.

The test for standing in this case was from the pre- July 28,1997 Waste Management Act – a person who “considers” himself aggrieved. The Board found that although this test is more subjectively phrased than “a person aggrieved”, the Appellant must still have reasonable grounds for his belief that he is aggrieved. The Board found that there are several factors in the determination of the reasonableness of a person’s belief that he or she is aggrieved. These factors are considerations only – each case must be decided on its own facts. The Board found that Mr. Jacks had shown he had a reasonable belief that he would be negatively affected by the amended permit because of his proximity to the mill and because, as a resident of the Sunshine Coast, he was necessarily a frequent traveler in and around the location of the mill. Further, the Board found that Mr. Jacks did not need to provide evidence that the air emissions would likely reach him or his family. These requirements were found to be too onerous and went to the merits of the appeal.

In addition, the Board agreed with the Deputy Director’s findings that Mr. Jacks, at all times, intended to go ahead with the appeal and his six month delay was due to his belief that his environmental group was a “person” that could appeal, and had appealed in error. The Board also found that HSPP would not be prejudiced in this case by the delay. The matter was returned to the Deputy Director for a hearing on the merits.