The Ontario Waste Management Association (OWMA) has described an Ontario Court of Appeal decision released last week as "an important and significant victory in the waste industry’s fight to ‘fix’ Ontario’s Environmental Assessment Act and to develop new Ontario waste disposal capacity."
The Court of Appeal decision overturns previous legal rulings in respect to the "Sutcliffe et al" challenge of the "Terms of Reference" provisions in the Environmental Assessment Act. The previous lower court decision has created uncertainty for 13 landfill projects at various stages in the Environmental Assessment Approval Process and frustrated the potential for new investment to resolve Ontario’s landfill capacity deficit.
The Sutcliffe legal challenge originated with the Waste Management Richmond landfill expansion but impacted not only waste management facilities, but any environmental assessments underway or contemplated in the province. The issue revolved around the ability of Terms of Reference to "scope" issues to be dealt with in the Environmental Assessment Process. Opposition groups headed by CELA had challenged the ability and the environment minister’s authority to scope any environmental assessment. The result of the previous court decision in favor of the CELA decision was the establishment of the Environmental Assessment Advisory Committee and an initiative to review Ontario’s Environmental Assessment Process.
The Court of Appeal decision that rejects the CELA position and previous legal decisions was issued as a unanimous decision by Madame Justice Charron (recent appointee to the Supreme Court of Canada). Opponents have the right to seek leave to appeal to the Supreme Court of Canada; however, it is unlikely that the Supreme Court would hear the issue.
The Court of Appeal decision firstly protects those waste management projects that were previously approved under the scoped EA process and clearly puts the onus on the minister of the environment and the provincial government to justify any fundamental change to the Environmental Assessment process outside of reliance on a legal decision. It is not known how the minister will react to the Court of Appeal decision and how or if the Environmental Assessment Advisory Panel will continue its mandate.
OWMA is a member of the EA Act Advisory Panel and will be clarifying the significance of the Court of Appeal decision.
On face value, the decision will allow existing and new projects to proceed should opponents so decide and in the absence of new legislative change by the minister. OWMA says it will keep members advised of further developments and the potential to impact on landfill capacity in the province.
The OWMA participated in the June 28th, 2004 Court of Appeal hearing in support of the industry and OWMA members. OWMA was ably represented by John Tidball and Andrew Roman of Miller Thomson LLP. As a "Friend of the Court," OWMA was able to provide information, positions and perspectives that assisted the Court of Appeal in reaching its decision.
The Court of Appeal decision will be analyzed in the next edition of Solid Waste & Recycling magazine.
Contact OWMA at 905-791-9500 or via email at email@example.com