The recent decision of the Ontario Divisional Court in Sutcliffe v. Ontario (Minister of the Environment) provides some interesting insights into the scope and comprehensiveness of environmental assessments (EAs) carried out under the Environmental Assessment Act (the EAA). In particular, the case provides an important information with respect to the Terms of Reference, which are now prepared pursuant to the Act. The ruling is important for proponents of waste treatment and disposal facilities, including landfills, incinerators and other projects.
In 1997, there were several amendments made to the EAA. Key amendments included: use of Terms of Reference as a preliminary step in the process; mandatory public consultation by the proponent of the undertaking; referral of disputes to mediation; formal recognition of Class Environmental Assessments; focused hearings on environmentally significant issues; and, deadlines for decisions to be made within the process.
The purpose of Terms of Reference is to provide the minister with information about the scope of the proposed EA. The minister then has the discretion to approve the terms, if he or she finds that it is in the public interest and conforms with the purpose of the legislation. Once they’re approved, the proponent proceeds to the EA stage, which is then submitted for consideration by the minister.
The Divisional Court’s recent decision is one of the first to provide proponents of undertakings with guidance on the scope of “Terms of Reference” since this concept was first enshrined.
The CWS case
Canadian Waste Services Inc. (CWS) owns and operates the Richmond Landfill and, in 1997, decided to expand the landfill to a capacity of more than six times the volume of waste. CWS prepared Terms of Reference under the EAA, which were approved by the minister. But several residents living near the landfill and the Mohawks of the Bay of Quinte (who occupy a nearby Reserve) sought judicial review of the minister’s decision.
The Divisional Court considered issues related to a specific provision in the EAA, which states that terms may indicate that the EA will “consist of information other than that required” under the EAA. The Divisional Court considered whether this meant that the proponent could substitute its own information for that which is otherwise required by the EAA, or whether these words provide for additional or supplemental information.
The court provided a detailed analysis of the provision in question and stated that if the term “other” means “in addition to,” then the proponent would be required to include all of the information required under the EAA and the minister could also impose additional requirements for information. If the term “other” means “different from,” then the proponent would have the ability to avoid providing the information required under the EAA and determine its own requirements.
In reviewing the meaning of the term “other” the court found that the dictionary definition would support either of the two interpretations. As such, the Divisional Court resorted to the rules of statutory interpretation. In looking at the purpose of the legislation, its context and its legislative history, the court found that the intent of the EAA was to protect, conserve and wisely manage Ontario lands for the benefit of the people of Ontario. The court also considered the parliamentary debates at the time of enactment of the amendments to the EAA, which suggested that full EAs would be required for all undertakings.
Finally, the court looked at the purpose for Terms of Reference, which were added to the existing legislation in 1997, and found that this addition was not intended to narrow the scope of EAs. On this basis the court concluded that the minister intended to continue with broad-based EAs, and that there was nothing to suggest that there was any intent to streamline the process by reducing or eliminating these requirements.
Significance of case
In quashing the minister’s decision to approve the terms for the Richmond Landfill, the court confirmed that terms undertaken in the context of EAs must satisfy all the information requirements provided under the EAA. Furthermore, proponents cannot substitute their own requirements in lieu of those found in the EAA. This decision provides guidance for future proponents of undertakings that, in preparing Terms of Reference, they will need to describe and address numerous issues associated with the undertakings, and that these requirements cannot be avoided.
Rosalind Cooper, LL.B. is a partner with Fasken Martineau DuMoulin LLP, with offices across Canada. Ms. Cooper is based in Toronto, Ontario. E-mail Rosalind at firstname.lastname@example.org