Environmental Appeal Board

Transcription

1 Environmental Appeal Board Fourth Floor 747 Fort Street Victoria British Columbia Telephone: (250) Facsimile: (250) Mailing Address: PO Box 9425 Stn Prov Govt Victoria BC V8W 9V1 Website: DECISION NO EMA-005(a) and 2013-EMA-007(a) to 2013-EMA- 012(a) In the matter of seven appeals under section 100 of the Environmental Management Act, S.B.C. 2003, c. 53. BETWEEN: Lynda Gagne Emily Toews Charles Henry Claus Pamela Vollrath Elisabeth Stannus Skeena Wild Conservation Trust Lakelse Watershed Stewards Society APPELLANTS AND: Director, Environmental Management Act RESPONDENT AND: Rio Tinto Alcan Inc. THIRD PARTY PERMIT HOLDER BEFORE: DATE: APPEARING: A Panel of the Environmental Appeal Board Alan Andison, Chair Conducted by way of written submissions concluding August 16, 2013 For the Appellants: Lynda Gagne Emily Toews Charles Henry Claus Elisabeth Stannus Skeena Wild Conservation Trust Lakelse Watershed Stewards Society Chris Tollefson, Counsel Richard Overstall, Counsel Pamela Vollrath Pamela Vollrath For the Respondent: Dennis Doyle, Counsel For the Permit Holder: David Bursey, Counsel

2 DECISION NO EMA-005(a), 2013-EMA-007(a) to 2013-EMA-012(a) Page 2 PRELIMINARY ISSUE OF JURISDICTION [1] Eight Appellants filed separate appeals against a decision issued on April 23, 2013, by Ian Sharpe on behalf of the Director, Environmental Management Act (the Director ), Northern Region - Skeena, Ministry of Environment (the Ministry ). The decision was to amend multimedia permit P (the Permit ), held by Rio Tinto Alcan Inc. ( Rio Tinto ). The Permit authorizes Rio Tinto to discharge effluent, emissions, and waste from a smelter located in Kitimat, BC. Among other things, the amendment allows an increase in the smelter s total emissions of SO 2 (sulphur dioxide). [2] The appeals were filed by Lynda Gagne, Ian Maxwell, Emily Toews, Charles Henry Claus, Pamela Vollrath, Elisabeth Stannus, the Skeena Wild Conservation Trust (the Trust ), and the Lakelse Watershed Stewards Society (the Society ). Mr. Maxwell subsequently withdrew his appeal. [3] By a letter dated July 19, 2013, Rio Tinto requested that the Board dismiss the appeals on the basis that none of the Appellants are, in regard to the amendment, a person aggrieved within the meaning of section 100 of the Environmental Management Act (the Act ). [4] This preliminary matter was heard by way of written submissions. BACKGROUND [5] The Kitimat smelter produces aluminum. Rio Tinto sought the Permit amendment in support of a project that is designed to modernize and increase the production at the Kitimat smelter. Rio Tinto advises that the project will reduce the smelter s emissions of polycyclic aromatic hydrocarbons, fluorides, and particulate matter. However, sulphur dioxide emissions will increase. [6] The April 23, 2013 amendment authorizes an increase in the sulphur dioxide emission limit. The previous limit was a maximum of 27 Mg/d (tonnes per day). The new limit is a maximum of 42 tonnes per day. The amendment also amends the authorized works that are listed in the Permit, and adds several conditions to the Permit including requirements to develop an environmental effects monitoring plan for Ministry approval, and to conduct public consultations regarding the environmental effects monitoring plan. [7] On May 21 and 22, 2013, the Board received the Appellants respective notices of appeal. The notices of appeal contain similar, or in some cases identical, grounds for appeal. In all cases, the grounds for appeal allege that the Director erred in his assessment of the potential impacts of the increase in sulphur dioxide emissions, and in assessing sulphur dioxide treatment options. Some of the notices of appeal also allege that the Director erred in his assessment of the cumulative impacts of the project and in finding that public consultation for the proposed amendment was adequate, and that the Director s discretion was fettered. All of the notices of appeal request the same remedy. In particular, the Appellants request that the Board strike from the amendment the clause allowing the increase in sulphur dioxide emissions, and amend the Permit to require the installation of sulphur dioxide scrubbers.

3 DECISION NO EMA-005(a), 2013-EMA-007(a) to 2013-EMA-012(a) Page 3 [8] On June 18, 2013, the Board received Rio Tinto s application requesting dismissal of the appeals on the basis that none of the Appellants are a person aggrieved by the amendment, within the meaning of section 100 of the Act. Section 100 states that a person aggrieved by a decision of a director may appeal that decision. In other words, for an appellant to have standing to appeal a decision under the Act, the appellant must be a person and must be aggrieved by that decision. [9] By a letter dated June 19, 2013, the Board requested written submissions from all parties regarding whether the Appellants are persons aggrieved by the amendment within the meaning of section 100 of the Act. [10] In response, all of the Appellants provided virtually identical letters (dated July 1 and 3, 2013) to the Board, which submit, among other things, that: the individual Appellants all reside in the airshed that will be affected by the amendment; all of the Appellants are aggrieved within the meaning of section 100 of the Act; all of the Appellants meet the legal test for public interest standing set out by the Supreme Court of Canada in Downtown Eastside Sex Workers United Against Violence Society v. Canada (Attorney General), 2012 SCC 45 [ Downtown Eastside ]; and, the Board should reconsider and adapt its legal test for standing under section 100 of the Act based on Downtown Eastside. [11] The Appellants also signed virtually identical letters dated July 4, 2013, which submit, among other things, that some of the Appellants have medical conditions and economic interests that will be prejudiced by the permit amendment. In that letter, they also submit that Downtown Eastside offers an alternate common law basis for standing to be granted to the appellants, and that Downtown Eastside should inform how the Board interprets the statutory test in section 100 of the Act. [12] Subsequently, six of the Appellants (Lynda Gagne, Emily Toews, Charles Henry Claus, Elisabeth Stannus, the Trust, and the Society) retained legal counsel for the purpose of making submissions on the issue of standing. They provided more expansive submissions which are discussed below. In support of their submissions, each of the six Appellants provided statements, from either a personal or organizational perspective, explaining their interest(s) in appealing the amendment, and how their interests may be affected by the amendment. [13] One of the Appellants, Pamela Vollrath, was not represented by legal counsel, and provided no submissions explaining her personal interest(s) in appealing or how her interests may be affected by the amendment. [14] On August 19, 2013, the Board received a letter from Mr. Maxwell advising that he was withdrawing his appeal (Appeal No EMA-006). [15] Rio Tinto submits that the remaining appeals should be dismissed on the basis that none of the Appellants are a person aggrieved by the amendment. It also submits that the principles related to public interest standing in the judicial decisions cited by the Appellants do not apply to these appeals. [16] The Director submits that the Board has no jurisdiction to grant public interest standing, and there is no basis to reconsider the legal test that the Board has previously applied in determining whether an appellant is a person aggrieved within the meaning of section 100 of the Act. In addition, the Director submits that the Trust and the Society lack standing to appeal the amendment. The Director takes no position in respect of the other Appellants standing to appeal.

4 DECISION NO EMA-005(a), 2013-EMA-007(a) to 2013-EMA-012(a) Page 4 RELEVANT LEGISLATION [17] The following section of the Act is relevant to the issue of standing: Appeals to Environmental Appeal Board 100 (1) A person aggrieved by a decision of a director or district director may appeal the decision to the appeal board. ISSUES [18] The Board has addressed the following issues in this preliminary application: 1. Whether the Board should revise the legal test that it has previously applied to determine whether an appellant is a person aggrieved within the meaning of section 100(1) of the Act. 2. Whether any of the Appellants has standing to appeal as a person aggrieved by the amendment within the meaning of section 100(1) of the Act. DISCUSSION AND ANALYSIS 1. Whether the Board should revise the legal test that it has previously applied to determine whether an appellant is a person aggrieved within the meaning of section 100(1) of the Act. [19] The test that the Board has previously applied in determining questions of standing under section 100(1) of the Act is whether the person has a genuine grievance because an order has been made which prejudicially affects his interests. Although the Board is not legally bound by its previous decisions, the Board has consistently applied this test in cases dealing with the discharge of emissions under the Act and its predecessor statute, the Waste Management Act. [20] This test is based on the decision of the House of Lords in Attorney General of the Gambia v. N Jie, [1961] 2 ALL E.R. 504 (P.C.) [Gambia v. N Jie], where the Court stated as follows: The words person aggrieved are of wide import and should not be subjected to a restricted interpretation. They do not include, of course, a mere busybody who is interfering in things that do not concern him; but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests. [21] In addition, the Board has also consistently stated that, for the purposes of deciding preliminary issues of standing, an appellant is not required to provide definitive proof that he or she will be harmed by the appealed decision. In Fleischer and Goggins v. Assistant Regional Waste Manager (Appeal No. 97-WAS-11(a), November 17, 1997)(unreported), the Board stated that, To require lay people to essentially prove how they will or will likely be affected is to impose an impossible burden on them. Proof of their cases comes at the hearing stage when the merits of the case are addressed.... Thus, the Board has consistently held that, for the

5 DECISION NO EMA-005(a), 2013-EMA-007(a) to 2013-EMA-012(a) Page 5 purpose of establishing standing, an appellant must disclose enough information or evidence to allow the Panel to reasonably conclude that their interests are or may be prejudicially affected by the decision they seek to appeal 1. The Appellants submissions [22] As noted above, each of the Appellants submit that the Board should revise its legal test for standing under section 100 of the Act based on Downtown Eastside. The Appellants submit that Downtown Eastside offers an alternate common law basis for standing to be granted to the appellants, and that Downtown Eastside should inform how the Board interprets the statutory test in section 100 of the Act. The further submissions of Ms. Gagne, Ms. Toews, Mr. Claus, Ms. Stannus, the Trust, and the Society [23] The six Appellants that were represented by legal counsel provided further submissions on the test for standing, which the Panel has summarized below. [24] These Appellants submit that the Board should update its interpretation of person aggrieved. They submit that the Board has, in practice, required an appellant to demonstrate that his or her personal interest (or in the case of an organization, its members interest) is, or may be, directly affected by the appealed decision. They argue that person aggrieved should be interpreted in a broad, liberal and purposive manner that is consistent with both the Legislature s intentions and recent Canadian jurisprudence on the law of standing, as set out in cases such as Downtown Eastside. The Appellants emphasize that they refer to Downtown Eastside as an interpretive guide, and they make no submissions on the Board s jurisdiction to grant public interest standing. [25] The Appellants submit that the updated person aggrieved test should be as follows: Whether or not the appellants have disclosed enough information or evidence for the Board to reasonably conclude that they have a genuine interest in the decision they seek to appeal. [underlining added] [26] The Appellants submit that the Board should apply the modern approach to statutory interpretation, whereby the words in an enactment are read in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of the Legislature. The Appellants also submit 1 For example, see: Evelyn Armstrong v. Director, Environmental Management Act, Appeal No EMA-001(a), April 3, 2012; Shuswap-Thompson Organic Producers Association v. Director, Environmental Management Act, Appeal No EMA-012(a), March 10, 2010; Paddy Goggins and Patricia Aldworth v. Director, Environmental Management Act, Appeal No EMA-014(a), November 6, 2008; John Keays v. Director, Environmental Management Act, Appeal No EMA- 015(a), October 27, 2008; Squamish Terminals Ltd. v. Director of Waste Management, Appeal No EMA-002(a), March 22, 2005; Ajah Azreal v. Regional Waste Manager, Appeal No. 2004_WAS- 004(a), June 14, 2004; Houston Forest Products Co. and others v. Assistant Regional Waste Manager (Appeals No. 99-WAS-06(c), 08(c), and 11(c)-13(c), February 3, 2000).

6 DECISION NO EMA-005(a), 2013-EMA-007(a) to 2013-EMA-012(a) Page 6 that sections 7 and 8 of the Interpretation Act, R.S.B.C. 1996, c. 238, should be employed to interpret aggrieved. Section 7(1) states that Every enactment must be construed as always speaking, and section 7(2) states that provisions which are expressed in the present tense apply to the circumstances as they arise. Section 8 requires that every enactment must be construed as being remedial, and must be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects. In particular, the Appellants argue that section 7 of the Interpretation Act requires the Board to calibrate its standing test in relation to the evolving jurisprudence on the law of standing in Canada. [27] The Appellants note that the word aggrieved is not defined in the Act. Citing several dictionary definitions, the Appellants submit that the meaning of aggrieved is ambiguous, because it can have a range of ordinary meanings. The Appellants submit that aggrieved must be interpreted in the entire context of the Act. The Appellants review various sections of the Act, and then submit that environmental protection is the object of the Act. They argue that the Board s existing test for standing does not adequately give effect to the environmental protection object of the Act or section 8 of the Interpretation Act. [28] The Appellants also summarize the Legislative history of the Act and refer to quotations from Hansard for assistance in determining the purpose of the Act. They submit that the Hansard evidence reinforces their submission that environmental protection is the object of the Act, although the Appellants cite a finding from the Supreme Court of Canada that Hansard evidence is of limited weight : Rizzo & Rizzo Shoes Ltd., Re, [1998] 1 S.C.R. 27, at paragraph 57. [29] The Appellants also review the standing provisions in other legislation, including the BC Wildlife Act and Water Act, as well as the Alberta Environmental Protection and Management Act. The Appellants submit that those statutes contain more restrictive standing provisions than the Act. The Appellants argue that, in section 100 of the Act, the Legislature did not expressly require appellants to show that they are directly affected by the appealed decision, and therefore, the Legislature must have intended person aggrieved to mean something broader than directly affected persons. They submit that their proposed genuine interest test is consistent with a broad, liberal and purposive interpretation of aggrieved. [30] The Appellants further submit that Canadian jurisprudence supports the proposed genuine interest test for standing. In that regard, the Appellants refer to several judicial decisions, most of which involve the standing of persons who sought to challenge the constitutional validity of legislation. In particular, the Downtown Eastside case involved the public interest standing of certain persons who challenged the constitutional validity of certain sections of the Criminal Code. The Appellants also refer to a number of judicial decisions which, they assert, establish that the courts have recognized that environmental protection is a fundamental value of Canadian society. [31] In conclusion, the Appellants submit that the proposed genuine interest test would be satisfied by appellants who demonstrate that they are directly affected by the appealed decision, but this would not be the only way to establish standing under this test. They submit that the Board can consider other factors including:

7 DECISION NO EMA-005(a), 2013-EMA-007(a) to 2013-EMA-012(a) Page 7 an appellant s reputation with respect to the issue under appeal; continuing engagement and experience with the issue under appeal; and for an appellant group, its mandate and organization. Rio Tinto s submissions [32] Rio Tinto submits that the Board s existing test for standing under section 100 of the Act is well-established and supported by the principles of statutory interpretation. In particular, Rio Tinto submits that the dictionary definitions of aggrieved suggest that a person aggrieved must meet a higher test than a person who is affected or interested. Rio Tinto argues that, to be a person aggrieved, an appellant must show a real and direct impact arising from the appealed decision, going beyond merely having a genuine interest in the appealed decision. Rio Tinto submits that aggrieved is not interchangeable with interested. [33] In addition, Rio Tinto argues that the Legislature s decision to amend the standing provision in the former Waste Management Act, the Act s predecessor, removed any subjective element in the test for standing, in favour of a more objective and restrictive test. Before it was amended, the appeal provision in the former Waste Management Act provided standing to a person who considers himself or herself aggrieved. [34] Moreover, Rio Tinto submits that an applicant for a major permit amendment must undertake public consultation as required by the Public Notification Regulation, B.C. Reg. 202/94 (the Regulation ), which provides the general public with an opportunity to provide feedback on proposals. The Regulation also provides that public feedback may be taken into account by a director before deciding whether to grant a permit amendment. [35] Rio Tinto argues that the gatekeeper function of section 100 of the Act should be viewed in this context: once the detailed regulatory process is complete, only persons who will suffer a direct impact ought to be entitled to appeal. [36] In addition, Rio Tinto submits that the jurisprudence related to public interest standing does not apply to the present appeals. Rio Tinto argues that the judicial decisions relied on by the Appellants relate to public interest standing before the courts, which have an inherent power to grant public interest standing, whereas the Board does not. In addition, Rio Tinto submits that the cases cited by the Appellants involve a constitutional challenge or a challenge to the legality of a government action, whereas the present appeals do not involve a constitutional challenge or a challenge to the legality of the scheme created by the Act. [37] Furthermore, Rio Tinto argues that, in Downtown Eastside, the Court recognized that there are reasons to limit standing, including the need to screen out mere busybodies, to properly allocate scarce judicial resources, to ensure that the courts hear contending points of view from those most directly affected by the court s decision, and to preserve the proper role of the courts and their relationship with other branches of government. Rio Tinto submits that these considerations support the Board s existing approach to standing under section 100 of the Act.

8 DECISION NO EMA-005(a), 2013-EMA-007(a) to 2013-EMA-012(a) Page 8 The Director s submissions [38] The Director submits that the Board has no jurisdiction to grant public interest standing, and the Board should confirm the test that it has previously applied in determining whether an appellant is a person agrieved. In addition, the Director argues that the appeal provisions in the Act require an appellant to demonstrate individual harm or injury in order to have standing to bring an appeal. [39] The Director agrees with the Appellants submission that the rules of statutory interpretation require the words in a statute to be interpreted in their grammatical and ordinary sense, consistent with the scheme and object of the Act. However, the Director submits that, in order to be a person aggrieved, an appellant must demonstrate some personal prejudice that affects their interests over and above that of the general public. In particular, the Director argues that the word aggrieved imports a notion of harm to the test for standing that is inconsistent with a right of appeal that is purely interest based. The Director notes that section 100 of the Act does not provide a right of appeal by interested persons. [40] The Director submits that section 7 of the Regulation limits public participation in the process for determining whether to grant or amend a permit, as only persons who may be adversely affected by the granting or amending of a permit may notify a director as to how they are affected, such that the director may take that information into consideration. Section 7 of the Regulation states as follows: Notice by concerned persons 7 (1) A person who may be adversely affected by the granting of a permit, approval or operational certificate, or by the granting of an amendment to a permit, approval or operational certificate, may, within 30 days after the last date of posting, publishing, service or display required by this regulation, notify a director in writing stating how that person is affected. (2) The director may take into consideration any information received after the 30 day period prescribed by subsection (1) if the director has not made a decision on the permit, approval or operational certificate. [41] The Director submits that there is no reason to expand the scope of section 100 of the Act to confer any wider rights than would be available to persons recognized under the Regulation as adversely affected by a permit amendment. [42] Furthermore, the Director submits that it would be inconsistent with the scheme and object of the Act to dispense with the notion of harm, so that an appeal could be brought by any person who has an interest in the subject matter of the decision. [43] The Director also submits that the legislative history of the appeal provision in the Act s predecessor, the Waste Management Act, shows an intention to make the appeal provision more restrictive, as the words who considers himself or herself were deleted from the phrase person who considers himself or herself aggrieved. The Director submits that this resulted in a more objective threshold for standing to appeal.

9 DECISION NO EMA-005(a), 2013-EMA-007(a) to 2013-EMA-012(a) Page 9 [44] In addition, the Director submits that the judicial decisions on standing cited by the Appellants, including Downtown Eastside, deal with standing in the context of cases involving the constitutionality of legislation, rather than the merits of a regulatory decision. The reply submissions of Ms. Gagne, Ms. Toews, Mr. Claus, Ms. Stannus, the Trust, and the Society [45] The Appellants provided a lengthy reply. Many of their reply submissions consist of asserting that the Respondent and Rio Tinto have misinterpreted the applicable law and/or mischaracterized the Appellants submissions. The Appellants reply submissions also reiterate many points made in the Appellants previous submissions. [46] Additionally, the Appellants submit that the Regulation should not be used to interpret aggrieved in section 100 of the Act. The Appellants argue that subordinate legislation such as the Regulation must be interpreted in a manner that is consistent with its enabling legislation, and not the other way around. The Panel s findings [47] The Panel notes that the Board has previously held that it has no jurisdiction to grant public interest standing: Columbia River & Property Protection Society et al v. Deputy Comptroller of Water Rights, Appeal No. 95/42, August 15, 1996 [Columbia River]. In that case, an appellant sought standing at common law, based on a Supreme Court of Canada case involving a judicial review of a decision by a statutory decision-maker. However, the Board found that court decisions regarding public interest standing in a judicial review context are irrelevant to determining whether a person has a statutory right of appeal to the Board. The Board held as follows: The ability to grant this [public interest] standing comes from the inherent jurisdiction of the courts, something that this Board does not have. This Board is constrained by the standing provisions set out in the relevant statutes. The Environment Management Act provides at section 11(10) that the Board may hear any person. This power does not create a separate avenue of appeal. It merely allows the Board to invite evidence during an already validly commenced appeal. [48] The Panel agrees with the Board s reasoning in Columbia River. Although that decision involved the appeal provisions under the Water Act, the Panel finds that the principles in the Board s analysis apply equally to the present case. The Board s jurisdiction is derived from its enabling statutes, and unlike a superior court, the Board has no inherent jurisdiction. Thus, in deciding whether an appellant has standing to appeal, the Board must consider the appeal provisions in the relevant legislation. In the present case, the relevant provision is section 100 of the Act. [49] Also, in Columbia River, an argument was made that the Board should interpret standing in accordance with the modern trend to allow for wider public access to the appeal decisions of government decision-makers. However, the

10 DECISION NO EMA-005(a), 2013-EMA-007(a) to 2013-EMA-012(a) Page 10 Board found that the issue before it was one of statutory standing, and the Board must rely on the principles of statutory interpretation to determine the legislative intent behind the statutory provision that provided standing. The Panel also agrees with that finding. [50] Specifically, the Panel finds that it must apply the principles of statutory interpretation to determine the meaning of person aggrieved in the context of the Act. Based on the modern approach to statutory interpretation, the phrase person aggrieved is to be read in its grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of the Legislature. The Panel also finds that the Interpretation Act may assist in interpreting person aggrieved. Thus, the Panel agrees with the Appellants submission that person aggrieved should be interpreted in a broad, liberal and purposive manner that is consistent with the Legislature s intention, and that a liberal construction of the phrase person aggrieved is consistent with section 8 of the Interpretation Act. [51] However, the Panel finds that the judicial decisions cited by the Appellants provide no assistance in interpreting the meaning of person aggrieved in the context of the Act. None of the cases cited by the Appellants involve an analysis of the phrase person aggrieved in the context of a statutory right of appeal, based on the principles of statutory interpretation. The public interest standing cases cited by the Appellants are irrelevant to the issue of standing in a statutory context. The cases cited in support of the proposition that environmental protection is a fundamental value of Canadian society are also irrelevant, as the issue here is the interpretation of person aggrieved in its statutory context, based on the scheme and objects of the Act, and not based on broader societal values. [52] In addition, the Panel finds that the Hansard evidence cited by the parties provides limited assistance in interpreting person aggrieved, and should be given limited weight as stated by the Supreme Court of Canada. The Panel finds that the most notable aspect of the legislative history of the appeal provision is the removal of the words who considers himself or herself from the phrase person who considers himself or herself aggrieved, which resulted in the current phrase person aggrieved. The Panel finds that this change removed the subjective element of the standing provision, and resulted in an objective test for standing. [53] The Panel also finds that sections 7 of the Regulation provides limited assistance in interpreting the meaning of the words person aggrieved in the Act. Regulations are a form of subordinate legislation, and are usually made after the the enabling Act has been passed. As such, they generally have limited value in interpreting the provisions of the enabling Act. Further, in this case, the Regulation does not use the phrase person aggrieved, and section 7 of the Regulation relates to the public consultation process preceding a director s decision to issue or amend a permit, and is not directly related to the appeal process. [54] Turning to the objects of the Act, the Panel finds that many sections of the Act provide mechanisms for the protection of the environment, including the sections that prohibit unauthorized waste discharges, address the remediation of contaminated sites, address pollution prevention and abatement, and create penalties for contraventions of the Act. Thus, the Panel finds that environmental protection is one of the objects of the Act. However, the Panel finds that this is not the only object of the Act. The Act also contains a scheme for authorizing the discharge of waste into the environment by various human activities, including

11 DECISION NO EMA-005(a), 2013-EMA-007(a) to 2013-EMA-012(a) Page 11 industries that produce goods, services, employment, and other benefits to society. In particular, sections 14 and 15 of the Act provide the Director with the discretion to issue permits and approvals authorizing the introduction of waste into the environment, subject to the requirements in the legislation and any requirements that a director may impose for the protection of the environment. In addition, section 22 of the Act empowers the responsible Minister to make regulations establishing Codes of Practice, which may exempt industries or activities from the provisions of the Act or its regulations in certain circumstances. Codes of Practice contain enforceable standards for waste discharges, and have been established for several industries or activities. Although waste discharges may cause harm to the environment, the Legislature has recognized that waste is produced by certain human activities, and the Act provides a scheme for regulating waste discharges. [55] With this statutory context in mind, the Panel has considered the meaning of the phrase person aggrieved, which is not defined in the Act. The Panel finds that the word aggrieved brings a notion of harm to the test for standing. This is clear from the ordinary meaning of aggrieved, based on the following dictionary definitions cited by the Appellants: From the Oxford English Dictionary, 2d ed. (2009): injured or wronged in one s rights, relations or position; injuriously affected by the action of any one; having cause of grief or offence, having a grievance. From the Merriam-Webster Online Dictionary, troubled or distressed in spirit; suffering from an infringement or denial of legal rights; showing or expressing grief, injury, or offense. From the Black s Law Dictionary, 9 th ed.: Having legal rights that are adversely affected; having been harmed by an infringement of legal rights. [underlining added] [56] Although the Appellants submit that the meaning of aggrieved is ambiguous, the Panel disagrees. The Panel finds that all of the dictionary definitions above refer to harm, injury or an adverse effect, particularly in relation to one s rights or interests. The dictionary definitions suggest that, in the context of the Act, a person who is aggrieved by a decision is a person whose rights or interests are, or may be, harmed, injured or adversely effected by that decision. [57] The Panel also finds that section 100 of the Act contains no indication that the Legislative intended for person aggrieved to include persons who have a genuine interest in the appealed decision. The Panel finds that, if an appellant only needed to establish that they have a genuine interest in the appealed decision, it would give no effect to the word aggrieved. A person may have a genuine interest in a decision without suffering a genuine grievance or harm as a result of the decision. The Panel finds that, if the Legislature had intended that a person with a genuine interest in the appealed decision should have standing to appeal, the Legislature would have used those words, but it did not.

12 DECISION NO EMA-005(a), 2013-EMA-007(a) to 2013-EMA-012(a) Page 12 [58] The Panel also finds that persons with a genuine interest in an existing appeal may apply for participant status in the appeal, pursuant to section 94(1)(a) of the Environmental Management Act, S.B.C. 2003, c. 53, which states that In an appeal the Board may hear the evidence of any person. The Panel agrees with Board s previous finding in Columbia River that this power (previously in section 11(10) of the Environment Management Act) does not create a separate basis for standing to appeal; rather, it provides the Board with the discretion to allow a person to participate, to the extent allowed by the Board, in an appeal that is already validly commenced. The Board applies the following test when considering an application for participant status: 1. whether the applicant has a valid interest in participating; and, 2. whether the applicant can be of assistance in the proceedings (for example see: Walter Faetz et al. v. Regional Manager (Decision Nos WIL-016(b) to 2012-WIL-20(b), July 31, 2012); and, Chief Richard Harry v. Assistant Regional Water Manager (Decision Nos WAT-005(b) & 2011-WAT- 006(a), October 27, 2011). In assessing whether an applicant has a valid interest in the appeal, the Board has considered the types of factors that the Appellants propose to be relevant to their genuine interest test, such as the person s or organization s history of involvement or advocacy with regard to issues that are raised by the appeal. In the case of an organization, the Board may also consider the organization s purpose and mission. [59] In addition, the Panel finds that the phrase person aggrieved may include, but is not limited to, persons who are directly affected by the appealed decision. In practice, the Board s test requires an appellant to show, objectively and on a balance of probabilities, that their interests will or may be affected, directly or indirectly, by the appealed decision. However, an indirect effect cannot be too remote or speculative. The overriding consideration is whether the person suffers, or may suffer, objectively and on a balance of probabilities, some harm that is prejudicial to the person s interests. [60] The Panel finds that this interpretation of person aggrieved is consistent with both the objects of the Act and the requirements in section 8 of the Interpretation Act. It is also consistent with the decision in Gambia v. N Jie, which states that the words person aggrieved should not be subjected to a restricted interpretation and include a person who has a genuine grievance because an order has been made which prejudicially affects his interests [underlining added]. The Panel notes that, although Gambia v. N Jie is a relatively old decision of the House of Lords, it was recently cited with approval by the BC Court of Appeal in Felicia Allen v. College of Dental Surgeons of British Columbia, 2007 BCCA 75, at paragraph 27, in regard to the proper interpretation of person aggrieved in the context of the Dentists Act, R.S.B.C. 1996, c. 94. [61] For all of these reasons, the Board concludes that the appropriate test for an appellant to establish standing under section 100 of the Act is as follows: Whether the person has disclosed sufficient information to allow the Board to reasonably conclude that the appealed decision will, or may, prejudicially affect the person s interests. [62] Accordingly, the Panel rejects the Appellants submission that the Board should revise its test for determining whether an appellant is a person aggrieved within the meaning of section 100 of the Act.

13 DECISION NO EMA-005(a), 2013-EMA-007(a) to 2013-EMA-012(a) Page Whether any of the Appellants has standing to appeal as a person aggrieved by the amendment within the meaning of section 100(1) of the Act. The Appellants submissions [63] Ms. Vollrath made no submissions with regard to how she is a person aggrieved by the amendment. [64] Ms. Toews states that she lives in Kitimat, and recently bought a home there. She works as a teacher in an elementary school in Kitimat. She advises that she has exercise-induced asthma, and has suffered from allergies due to sensitivities to pollution. She participates in many outdoor activities, is a dancer and artist, and teaches dance classes in her community. She is concerned that increased sulphur emissions may affect her asthma and allergies, such that she may no longer be able to reside, dance, and do outdoor recreation in Kitimat in the future. She also expresses concern about the potential effects of the emissions on children, including children of her own that she may have in the future. [65] Ms. Stannus states that she lives in Kitimat, and she provided the street address for her home in Kitimat. She is employed full-time as a teacher at a local primary school. She states that she frequently walks to work, participates in outdoor recreation, has a vegetable garden, and purchases locally grown food at local farmers markets. She also consumes local seafood caught from the Douglas Channel and Kitimat River. She is concerned about increased sulphur dioxide emissions in areas where she, and others in the community, take part in recreation, including areas along the Kitimat River and at Alcan Beach in Kitimat. She submits that she frequents several locations that will have unhealthy sulphur dioxide concentrations, including recreational areas in the Kildala area (a few kilometres away from the smelter), Alcan Beach, and the main walking loop near the downtown core. Ms. Stannus is also concerned about the potential effects of the emissions on children in Kitimat. [66] Ms. Gagne states that she owns property in Terrace, where she lives parttime with her daughter and her daughter s family. She also lives in Victoria, BC, where she is employed full-time as an Assistant Professor at the University of Victoria. She advises that her Terrace home has a garden in which they grow food. Ms. Gagne has been actively involved in the community in Terrace, including conducting research on agricultural land use and planning. She submits that increased sulphur dioxide emissions will lead to sulphur depositions that may cause the acidification of soil and water, which could adversely affect local food, the forest industry, and local ecosystems, all of which are important to her and/or her family. Ms. Gagne also advises that she suffers from asthma, and she could be adversely affected by increased sulphur dioxide emissions when she visits Terrace. [67] Mr. Claus states that he and his wife live in Terrace, and he has asthma. He states that his asthma developed when he lived in Prince George, and that he moved to Terrace due to his adverse reaction to the air quality in Prince George. Mr. Claus also advises that his son and his son s family visit twice per year, and one of his son s children has asthma. Mr. Claus is concerned that his asthmatic grandchild could be adversely affected by the increased sulphur emissions. In addition, Mr. Claus lives on an acreage on Braun s Island, where he operates a farm

14 DECISION NO EMA-005(a), 2013-EMA-007(a) to 2013-EMA-012(a) Page 14 that produces vegetables and fruit. He sells vegetables at the Skeena Valley Farmer s Market. He also owns a bakery in Terrace, and uses the produce from his farm in the bakery business. Mr. Claus is concerned that the increased sulphur emissions will adversely impact soil on his property, and the production of fruit and vegetables, which are sensitive to acidic deposits on their foliage and in the soil. He also submits that his customers want to buy fruit and vegetables that are grown in a pure environment, and the increased emissions will put his farming operation at a competitive disadvantage if his customers believe that his produce has been exposed to more chemicals than produce that is grown in parts of the Skeena region that will be unaffected by the increased sulphur emissions. [68] Mr. Claus also advises that he regularly fishes for salmon and steelhead trout in streams near Terrace, and he eats the fish he catches. He is concerned that the increase in sulphur dioxide emissions will harm salmon bearing streams and affect the quality of fish he eats. Further, he submits that the increased emissions may affect the quality of the water in Terrace s community water system, which he uses in his home, in the bakery, and for farming. [69] Greg Knox, Executive Director of the Trust, provided an organizational impact statement on behalf of the Trust. He advises that the Trust was established in 2007, is a registered charity, and uses its resources to protect fish habitat and ecosystem integrity in Northwest BC. Its work includes collaborating with Fisheries and Oceans Canada, sport and commercial fishing stakeholders, non-government organizations, and First Nations on the protection and restoration of salmon populations in the Lakelse and Kitimat River watersheds. He states that the increased sulphur dioxide emissions may undermine the Trust s conservation work. In support of those submissions, Mr. Knox referred to a Rio Tinto report titled, Sulphur Dioxide Technical Assessment Report in Support of the 2013 Application to Amend the P Multimedia Permit (2013). Mr. Knox did not provide a copy of the relevant pages of that report, but his statement purports to quote the report, in part, as follows: [acidification, depending on toxicity level] has been shown to increase fish mortality, decrease fish growth, decrease fish egg production and/or embryo survival, and cause other physiological effects (Baker et al. 1990). Early life stages are more sensitive to acidity than later life stages. Many of the most sensitive fish species are commercially and/or recreationally important, e.g., salmonids (Marmorek et al. 1986). In British Columbia, salmonids are not only commercially important, but also culturally and spiritually important for many First Nations communities. Laboratory and field studies rank rainbow trout (aka steelhead) (Oncorhynchus mykiss) as the most sensitive to increasing acidity. [70] The Appellants counsel acknowledges that the Trust does not have members, but counsel submits that the Trust has a genuine interest in matters that are central to these appeals. Counsel also submits that trustees may sue and be sued in their capacity as trustees, such that a trustee may bring an appeal on behalf of the Trust. Counsel requests that several trustees of the Trust be named as appellants on behalf of the Trust. [71] Kelly Kline, a member, director and treasurer of the Society, provided an organizational impact statement on behalf of the Society. Mr. Kline submits that the Society has 144 members, all of whom live in and/or have seasonal homes in

15 DECISION NO EMA-005(a), 2013-EMA-007(a) to 2013-EMA-012(a) Page 15 the Kitimat, Terrace, or Lakelse Lake area. He advises that Kitimat, Terrace, Lakelse Lake, and Lakelse River are all within the zone identified by Rio Tinto that is expected to receive sulphur dioxide deposits of greater than 10 tonnes per hectare per year. In particular, he submits that the emissions will affect: the quality of the water in the Lakelse Lake watershed, which Society members use for drinking and other household uses; the quality of the air, which may affect members health; locally grown vegetables and wild food plants; and, the success of members fishing and wildlife viewing activities. Rio Tinto s submissions [72] Rio Tinto submits that its dispersion modeling shows that the predicted sulphur dioxide emissions will not exceed BC Provincial Pollution Control Objectives outside of Kitimat, and within Kitimat the exceedances will be short in duration. It also submits that the sulphur dioxide emissions will not cause new respiratory diseases, and the health impact of any exceedances would be minor or even trivial for persons with existing asthma and/or chronic obstructive pulmonary disease. In support of those submissions, Rio tinto referred to certain portions of volumes 1 and 2 of a technical report titled, Sulphur Dioxide Technical Assessment Report in Support of the 2013 Application to Amend the P Multimedia Permit, Kitimat Modernization Project, Draft for Consultation (the Technical Report ). The Technical Report was prepared for Rio Tinto by ESSA Technologies Ltd. [73] Regarding Ms. Toews, Rio Tinto submits that, although she lives in Kitimat, proximity alone does not necessarily mean that her interests will be prejudicially affected. Rio Tinto submits that Ms. Toews provided no evidence of how sulphur dioxide emissions will affect her ability to do outdoor sports or dance. It also submits that she also does not discuss why she may be unable to control her asthma or allergies in the future. In addition, Rio Tinto submits that her concerns about the potential effect of the emissions on children are speculative, and contrary to Rio Tinto s technical reports regarding the emissions. [74] Similarly, regarding Ms. Stannus, Rio Tinto submits that, although she lives in Kitimat, proximity alone does not necessarily mean that her interests will be prejudicially affected. Rio Tinto also submits that, although Ms. Stannus expresses general concerns about the effects of the emissions on food and the health of Kitimat residents, such general concerns are not sufficiently tied to her personal interests to establish standing. [75] Regarding Ms. Gagne, Rio Tinto submits that her part-time residence in Terrace, and the fact that she has asthma, are insufficient to meet the standing test in this case, as she provided no information on the proximity of her Terrace residence to Kitimat, the amount of time she spends in Terrace, how often she visits Kitimat, or how her asthma would be affected if she only lives in Terrace parttime. Rio Tinto submits that its dispersion modeling shows that the predicted sulphur dioxide emissions will not exceed BC Provincial Pollution Control Objectives outside of Kitimat, even under the conservative assumptions used in the modeling. In addition, Rio Tinto submits that Ms. Gagne s concerns in relation to agriculture, forestry, and the environment in relation to her family are too general to meet the test for standing.

16 DECISION NO EMA-005(a), 2013-EMA-007(a) to 2013-EMA-012(a) Page 16 [76] Regarding Mr. Claus, Rio Tinto submits that he lives in Terrace and has provided no information on the proximity of his residence or his business to Kitimat, or how often he visits Kitimat. In addition, Rio Tinto submits that Mr. Claus concerns about the potential effects of the sulphur dioxide emissions on his livelihood are speculative, and are contradicted by Rio Tinto s technical reports, which predict that the emissions will not affect the quality or taste of crops. Moreover, Rio Tinto submits that Mr. Claus concerns about local salmon are speculative, as he has not shown a causal connection between the increased sulphur dioxide emissions and harm to water or fish. [77] Regarding the Trust, Rio Tinto submits that the Trust has provided no evidence or information that it will suffer some prejudice as a result of the amendment. [78] Similarly, Rio Tinto submits that the Society has failed to provide any evidence or information indicating it or its members will suffer some prejudice. Rio Tinto submits that it is unclear which, if any, of the Society s members may be prejudiced, and if so, in what manner. The Director s submissions [79] The Director submits that both the Trust and the Society lack standing to appeal the amendment. The Director takes no position regarding the other Appellants standing to appeal. [80] Regarding the Trust, the Director submits that it is not a legal person, and therefore, cannot be considered aggrieved or capable of sustaining a right of appeal. [81] Regarding the Society, the Director submits that there is no evidence that the amendment personally affects Mr. Kline or any other individual member of the Society. The Panel s findings [82] Before turning to the Panel s findings regarding each of the Appellants, the Panel notes that the onus is on an appellant to demonstrate that they are a person aggrieved by the appealed decision. The Panel also notes that, although some of the Appellants own homes or property in Kitimat, the Board has consistently held that the proximity between the point of discharge and a person s residence does not necessarily lead to the conclusion that the person s interests will be prejudicially affected. This same principle applies to the proximity between the point of discharge and an appellant s farm or business. While proximity is certainly a consideration, an appellant must establish that his or her interests may suffer some prejudice as a result of the permitted emissions. [83] In addition, the Board has consistently held that general concerns about the environment or public health are insufficient to establish standing. An appellant must demonstrate an interest that is affected beyond that of the general public (for example, see Brar v. Deputy Director of Waste Management and District of Invermere, Appeal No. 97-WAS-09(c), March 11, 1998). To establish standing, an appellant must provide evidence or information that is specific to the appellant s interests. In the case of an organization, there must be some evidence or