Intervenor: vol. 27, no. 1 - 2, January - June 2002

CELA in the courts - CELA To Represent Clients On Appeal By OMYA

The Canadian Environmental Law Association (CELA) will be representing members of a local community group on an appeal by OMYA (Canada) Inc. (OMYA). The company is appealing a decision by the Environmental Review Tribunal (Tribunal) to Divisional Court and the Minister of Environment.

OMYA operates a calcium carbonate processing facility in the Town of Perth, which requires it to use large quantities of water. OMYA presently has a Permit to Take Water (permit) which allows it to take water from nine wells on its premises. OMYA sought to obtain from the Ministry of Environment (MoE) a further permit to allow it to take a maximum of 4,500 cubic meters of water per day from the Tay River.

OMYA's application was posted on the Environmental Bill of Rights, 1993 (EBR) Registry for public notice and comment. In the 30-day public comment, which ended on April 9, 2000, some 283 submissions were received from individuals, agencies and organizations expressing their interests and concerns about the application.

A group of local citizens sought leave to appeal the MoE's decision to grant the permit to the Tribunal, which granted leave thus allowing the matter to proceed to a full hearing. After approximately seven weeks of hearing, the Tribunal allowed the appeals in part and reduced the maximum amount of water taking to 1,483 cubic meters per day and imposed additional terms and conditions.

The Tribunal was not satisfied that sufficient information had been gathered and tabulated for the approval of the permit of the full amount of water that had been requested by the company. The Tribunal found that broad scope of the water takings in the watershed, including the ground water had not been taken into consideration. In rendering its decision, the Tribunal also found the Statement of Environmental Values (SEV) under the EBR applied to instruments and should have been considered by the Director when the Permit was considered. Furthermore, the Tribunal found that Regulation 285/99 (which applied to permits) had incorporated the "ecosystem approach described in the SEV, "but" unfortunately the MoE had provided little policy guidance on how the Director should implement this type of analysis in order to evaluate a permit".

According to the Tribunal, the definition of the ecosystem approach that was offered at the hearing was defined in conceptual terms. However, what was missing was the specific manner in which a permit would be or should be evaluated ascribing to the ecosystem approach. It was not sufficient to consider aquatic functions only. The Tribunal noted that more work was required by the MoE in fulfilling its obligations to protecting the natural function of the ecosystem.

The local citizens regard the Tribunal's decision as an important precedent with respect to the applicability of the SEVs to the government's decision making process and the need for an ecosystem approach when granting permits. A date has not yet been fixed for the appeal to Divisional Court.

Ramani Nadarajah is a lawyer at CELA.