Readers of this magazine will remember the litigation related to the environmental assessment (EA) of the proposed expansion of the Richmond Landfill in Ontario that’s owned by Waste Management of Canada Corporation. The case, commonly referred to as the “Sutcliffe” case (after one of the local residents who acted as an applicant in the matter), has been winding its way through the Court of Appeal following the decision of the Divisional Court on June 17, 2003 to overturn the decision by the environment minister that approved the EA Terms of Reference (ToR).
The minister’s approval of a ToR is required under the Environmental Assessment Act in order to set out the parameters and scope of the environmental assessment document itself. The 1996 amendments to the EA Act provided a possible alternative to the earlier “everything but the kitchen sink” scope of EAs. It provided what many viewed as a method of focusing the scope of EAs to issues critical to the environment while avoiding issues that were more political in nature.
In a decision in the summer of 2003, the majority of a three-judge Divisional Court panel held that the minister had overstepped his authority by approving the ToR for the Richmond Landfill Expansion EA which had been prepared pursuant to the section in the EA Act that had been amended to (apparently) allow the minister to approve a “scoped” ToR.
Following the Divisional Court’s decision, the minister and Canadian Waste initiated an appeal of the decision to the Court of Appeal.
The time that had passed was a significant issue for the parties in the case. Ironically, the creation of the ToR was intended at least in part (and was expected) to help limit the length of time required to proceed through the EA process (which had become unwieldy). However, now instead of the process being focused on extremely long hearings, legal wranglings over the ToR had proven time consuming.
Decision of the Court of Appeal
Having heard arguments from all the parties and interveners on June 28, 2004, it was widely assumed that the Court of Appeal had settled in to do its work and would write a decision over the course of the summer which, even for judges, involves vacations. It was expected that the court decision of would likely not emerge until sometime in the fall. This timetable may have been abridged somewhat when it became apparent in mid-August that Madame Justice Louise Charron was being proposed by the Prime Minister to replace one of the vacant seats at the Supreme Court of Canada. Only a few days after the announcement from the PMO, the decision of the court in the Sutcliffe case was released (on August 25). The need for the decision to be completed quickly was immediately apparent as the judge who had written the decision for the three-judge panel of the Court of Appeal was, indeed, Madame Justice Charron.
The key elements of the Court of Appeal decision are those in which it rejects the position of the respondents (Ben Sutcliffe, Helen Kimmerly and the Mohawks of the Bay of Quinte) that a “flexible” approach to EA is undesirable. Importantly, the court notes that some flexibility may well be needed to meet the objectives of the legislation and to satisfy the public interest as required by section 6(4) of the EA Act.
In coming to this conclusion, however, the Court of Appeal has made it very clear that there are limits to the flexibility permitted in preparing the ToR. The proponent is not free to simply design its own environmental assessment without regard to the requirements of Act. While the minister may approve a ToR that doesn’t contain all elements of what was historically included in an EA, the court takes the position that it would be difficult to imagine the situation where “Terms of Reference could contain few or none” of the elements that were historically included in the EA.
In the end, the key is that the Court of Appeal reversed the Divisional Court’s decision to quash the decision by the minister to approve the terms of reference. In so doing it provided guidance to those, such as the minister, who must make such decisions. At the same time, other stakeholders in the EA “industry” who are either acting as proponents or as non-proponent stakeholders have new guidance on how to assess what is required in a ToR.
While it may seem that this is a fairly arcane issue dealt with only by a select number of stakeholders and their specialized consultants, the implications are extremely broad given that environmental assessments are required for waste management facilities, transportation facilities such as highways and certain energy facilities.
In light of the ongoing concerns about the destination of Ontario’s waste, continued economic growth, requirements for new transportation infrastructure development — not to mention the somewhat newly found public concern over electricity generation and transmission capacity — the issue of the effectiveness of EA in the province is of critical importance in Ontario and potentially in neighbouring jurisdictions.
Adam Chamberlain is a certified specialist in environmental law with Aird & Berlis in Toronto, Ontario. Contact Adam at firstname.lastname@example.org