On April 5, 2004, Ontario’s Minister of the Environment Leona Dombrowsky held a press conference to announce the government’s new waste management strategy. The strategy has three components: 60 per cent waste diversion by 2008, improving the environmental assessment process, and preventing the Adam’s Mine from ever being developed as a landfill.
In support of the 60 per cent waste diversion target, the minister announced the preparation and release of a discussion paper. Options include increased organic diversion programs like Toronto’s green bin program, expanded central composting facilities, and a greater role for new technologies.
The goal of improvements to the environmental assessment process is to help establish and improve waste management facilities, public transit systems, provincial highways and clean energy projects. The government will create an advisory panel to recommend changes to get projects moving; many proposals were put on hold after a ruling in the so-called Sutcliffe case that created uncertainty for proponents (especially those in the private sector). The government also plans to address a longstanding issue of concern regarding environmental assessments by entering into a framework agreement with the federal government. This agreement would enable projects that are subject to both federal and provincial jurisdiction to be managed in a more co-ordinated manner and avoid potential process duplication.
The Adams Mine Lake Act, 2004
When the minister made these announcements, a great deal of attention was paid to the striking news relating specifically to the Adams Mine. This abandoned open-pit mine near the Town of Kirkland Lake was for many years the subject of plans to become the destination of waste from the Greater Toronto Area and, in fact, the whole province. The project passed its environmental assessment and received permits, but remained controversial and has not yet been constructed to receive waste.
The purpose of the Adams Mine Lake Act, 2004 is to prevent the mine from ever being used as a landfill and to that end revokes all existing approvals. An interesting component of the legislation is a ban on any party suing the government over the matter. The statute also provides for compensation for the owners of the site for all their expenses to date.
The government’s explanation for the legislation is that the various proposals and challenges relating to the Adam’s Mine have resulted in uncertainty and have had a negative impact on the community in northern Ontario. The decision has been interpreted by some as a political move and is considered hugely controversial by private sector waste management companies, especially since Ontario landfill capacity is under pressure and waste export to the United States is unpopular.
The legislation also amends the Environmental Protection Act to prevent the use of any lake, larger than one hectare, as a landfill site. A lake, according to the legislation, includes a body of surface water that results from human activities and directly influences or is directly influenced by groundwater, including land that is covered by water on the date the legislation comes into effect. Close observers of the Adams Mine saga will be amused and perhaps a bit cynical about this carefully written definition of “lake” since the mine is not a “lake” in the normal sense, and the term was in fact used by opponents as a term of derision. Indeed, the fact that groundwater seeps into (not out of) the pit was touted as a key benefit for leachate management by the project’s proponents.
The legislation voids existing approvals and permits relating to the Adams Mine. Most permits and approvals issued by the government are at the discretion of the Director, and can therefore be altered or revoked. However, there is typically a process that ensures fairness in dealing with such permits and approvals that provides the opportunity for challenge by the permit holder. This legislation circumvents that process and may be regarded as heavy handed. Governments are traditionally reluctant to remove rights of action of private parties. The legislation also voids any agreement of purchase and sale for adjacent Crown land that was entered into between the Ministry of Natural Resources and the owner of the Adams Mine.
The legislation doesn’t provide for compensation for future profits the owner would have received from operating the landfill, but only for expenses incurred for the purpose of developing the landfill. The compensation includes: expenses relating to acquisition of the site; surveys, studies and testing; engineering and design services; legal services; marketing and promotion; property taxes; the cost of government approvals; and, the cost of seeking acquisition of Crown land. The fair market value of the site on the day the legislation comes into effect would be deducted from the amount of expenses.
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 email@example.com