Decision Date: May 6, 2021

Panel: Darrell Le Houillier

Keywords: Environmental Management Act – ss. 16(1), 16(3), 99, 100(1); Administrative Tribunals Act – ss. 31(1)(a), (c), (g), 53; permit amendment; jurisdiction; appealable decision; summary dismissal; abuse of process

Christine McLean appealed a permit amendment issued to Mount Polley Mining Corporation (“MPMC”) by the Director, Environmental Management Act (the “Director”), Ministry of Forests, Lands, Natural Resource Operations and Rural Development. The permit authorized MPMC to discharge effluent into Quesnel Lake from MPMC’s copper and gold mine (the “Mine”).

The permit amendment flowed from a consent order issued by the Board in an appeal by MPMC of a permit amendment issued in February 2020 (the “February 2020 Amendment”). After MPMC appealed the February 2020 Amendment, it and the Director reached an agreement to resolve some of the issues in that appeal, the Board issued a consent order (the “Consent Order”) reflecting their agreement and further amending the permit.

On December 31, 2020, the Director issued an amended permit (the “December 2020 Amendment”) that included the amendments ordered in the Consent Order, as well as updates to two names in the permit. Otherwise, the December 2020 Amendment contained the same language as the February 2020 Amendment. The Appellant appealed the December 2020 Amendment to the Board.

Before the appeal was heard, the Director and MPMC raised an issue regarding whether the December 2020 Amendment was a decision of the Director that may be appealed. Section 100(1) of the Environmental Management Act (the “Act”) states that a “person aggrieved by a decision of a director” may appeal the decision to the Board. The Director and MPMC maintained that the December 2020 Amendment was not a decision of the Director, because it consolidated the previous version of the permit together with the terms of the Board’s Consent Order and updates to two names in the permit.

The Board noted that the definition of “decision” in section 99 of the Act is broad and is not specific to particular decision-makers under the Act. However, section 100 of the Act narrows the scope of “decisions” that may be appealed to the Board, depending on who makes the decision. Under section 100(1), only a decision of “a director or a district director” may be appealed to the Board. The Board may not hear appeals of its own decisions. Thus, even if the December 2020 Amendment contained a “decision” as defined in section 99, the question was whether it was a “decision” made by the Director, or the Board, or some combination of the two.

The Board also noted that sections 14 and 16(1) of the Act, respectively, provide a director with the authority to issue and to amend a permit, but section 16(3) limits a director’s authority to amend a permit. Section 16(3) states that if a permit “is subject to conditions imposed pursuant to a decision made in an appeal to” the Board, those conditions must not be amended except: a) by the Board, and b) after the Board has given the parties an opportunity to be heard on the question of whether the conditions should be amended.

The Board found that the differences between the 2020 December Amendment and the February 2020 Amendment consisted of updates to the names of two First Nations, and changes that mirrored the amendments specified in the Consent Order. The Board held that the name updates were not a “decision” of the Director, as those updates had no substantive effect.

The Board found that the differences that resulted from the Consent Order were “a decision made in an appeal to” the Board, as stated in section 16(3) of the Act. The Director did not exercise a power to amend the permit when he incorporated those changes into the December 2020 Amendment. Those amendments were ordered by the Board, and were not a “decision” of the Director. According to section 16(3), those amendments could be further amended by the Board, but not the Director.

Overall, the Board found that the December 2020 Amendment was administrative in nature and did not contain a substantive decision by the Director. The December 2020 Amendment was not the issuance of a permit under section 14, or an amendment of the permit undersection 16(1) of the Act, by the Director. Therefore, the Board concluded that it had no jurisdiction over the appeal of the December 2020 Amendment, and the appeal should be summarily dismissed.

Moreover, the Board found that an appeal of the amendments that flowed from the Consent Order would be an abuse of process, and the appeal could be summarily dismissed on that basis. Although section 16(3)(b) of the Act allows the Board to further amend those permit conditions after it has “given the parties an opportunity to be heard on the question of whether the conditions should be amended”, this “opportunity to be heard” is not a right of appeal.

Moreover, the “parties” entitled to be heard were the parties to the appeal of the February 2020 Amendment that led to the Consent Order, which were MPMC and the Director. The Appellant was not a party to that appeal. She could have appealed the February 2020 Amendment, but she did not. Consequently, she was not one of the parties who would have an opportunity to be heard under section 16(3) if the Board considered further amendments to the amendments it had ordered in the Consent Order.

Finally, the Board found that, to the extent that the present appeal challenged aspects of the December 2020 Amendment that were addressed in the Consent Order arising from the appeal of the February 2020 Amendment, the present appeal could also be summarily dismissed on the basis that the matter was appropriately addressed in another proceeding.

For those reasons, the Board summarily dismissed the appeal.