Decision Date: December 4, 2014

Panel: Alan Andison

Keywords: Environmental Management Act – ss. 14(1), 99; permit amendment; monitoring plan; appealable decision

Elisabeth Stannus, Emily Toews, and Unifor Local 2301 (“Unifor”) filed separate appeals against the approval of an environmental effects monitoring program plan (the “Plan”) by the Director, Environmental Management Act (the “Director”), Northern Region – Skeena, Ministry of Environment (the “Ministry”). The Plan applied to an aluminum smelter operated by Rio Tinto Alcan Inc.’s (“Rio Tinto”) in Kitimat, BC. Rio Tinto was required to prepare the Plan, and implement it once it was approved, due to a requirement in a permit amendment that the Director issued in 2013. That permit amendment was already the subject of appeals by Ms. Stannus and Ms. Toews, which had not yet been heard by the Board.

Before accepting the appeals, the Board requested submissions from the parties regarding whether the approval of the Plan is an appealable “decision” within the meaning of section 99 of the Environmental Management Act (the “Act”), and whether the Appellants are “persons aggrieved” by the Plan under section 100(1) of the Act.

After considering the parties’ submissions, the Board found that the Director’s approval of the Plan was not an appealable “decision” as defined by section 99 of the Act. Applying the principles of statutory interpretation, the Board found that the approval of the Plan did not fall within the ambit of any of the appealable matters listed in section 99.

The Board also found that policy considerations supported a finding that the approval of the Plan was not appealable. Specifically, the Board found that concerns about the adequacy of the Plan had already been raised in the appeals against the permit amendment. The Board also noted that the Plan did not change the amount or type of waste emissions allowed under the permit amendment, and that allowing an appeal of every monitoring plan or further study required by a permit or permit amendment would allow parties to easily circumvent the 30-day period for appealing a permit or permit amendment.

Given the Board’s finding that the Director’s approval of the Plan was not an appealable “decision” under section 99 of the Act, it was unnecessary to decide whether the Appellants were “persons aggrieved” by the Plan.

Accordingly, the appeals were rejected.