CELA Bulletin

CELA Bulletin 8-July-2003This "E-Bulletin" (arriving via the "CELA Bulletin" listserve) to the media and members and friends of the Canadian Environmental Law Association (CELA) provides brief updates on current environmental issues in which CELA is involved. Contact information and relevant website links are also noted. Subscribe on-line at E-Bulletin Sign-up.In this Bulletin:SPECIAL REPORT: CELA Clients Win Landmark Legal Challenge: Court Upholds Ontario's Environmental Assessment ProcessCELA clients recently won an important judicial review application regarding Ontario's amended Environmental Assessment Act ("EA Act"). In a landmark decision released June 17, 2003, the Ontario Divisional Court ruled that the Minister of the Environment has no jurisdiction to exclude key environmental planning issues - such as "need" and alternatives - from EA planning processes under the Act. The court case focuses on Terms of Reference ("TOR") approved by the Minister in relation to an EA for the proposed mega-expansion of the Richmond Landfill near Napanee. The site is owned by Canadian Waste Services (CWS) Inc., which has proposed to expand the site to receive 750,000 tonnes/year of waste for the next 25 years from an all-Ontario service area. Despite the environmental significance of the proposed expansion, the Minister approved a TOR that did not require the proponent's EA to examine:

  • whether there was a demonstrable need for the expansion;
  • whether there were preferable "alternatives to" the expansion (e.g.3R's);
  • whether there were safer or more suitable sites for the perceivedwaste volumes.

Once approved under the EA Act, the TOR serves as the "road map" for the EA process, and issues not listed in the TOR do not have to be addressed by the proponent.CELA's clients are residents living near the Richmond Landfill, and they brought a judicial review application challenging the legality of the approved TOR. A similar application was brought by a local First Nation community, the Mohawks of the Bay of Quinte. Both applications were heard together by the Divisional Court in January 2003. In quashing the Minister's approval, the Court referred to Ministerial assurances made in the Ontario Legislature when the controversial amendments to the EA Act were passed by the Harris government in 1996. In particular, Environment Minister Brenda Elliott stated that despite the amendments, proponents would still be required to conduct "full EAs" that addressed "project rationale and alternatives". The Court invoked these Ministerial statements to find that the 1996 amendments were not intended by the Legislature to empower the Minister to "scope" or screen out the fundamental issues of "need" and alternatives from EA's prepared under the Act. The implications of the Court decision extend beyond the Richmond Landfill expansion, particularly since the Court approached the dispute as a broad question of statutory interpretation. Because the Ministry of the Environment has been routinely approving "scoped" TORs under the amended Act, the Court decision will undoubtedly require a fundamental new direction in Ontario's EA program. Within the past week, both CWS and the Ontario government have filed motions to seek leave (i.e., permission) to appeal the Divisional Court decision to the Ontario Court of Appeal.For further information:CELA Counsel Richard Lindgren, Tel: 613-385-1686View the decision on-line:Sutcliffe v. Ontario (Minister of the Environment), (2003-06-17) ONSC572-00;622/00 at: http://www.canlii.org/on/cas/onsc/2003/2003onsc10955.htmlRecent Media Releases:June 18/03: Court Rules that Environment Minister Failed to comply withOntario's Environmental Assessment Act Feb. 4/03: Mohawks and Local Residents get their Day in Court to OpposeMega-Dump Proposal Newsletter Article:"CELA Challenges "Scoped" Landfill EA in the Court" (Intervenor, Vol. 27,No.3-4, July-Dec. 2002).