Ontario Court of Appeal to Hear Landmark Landfill Case - Backgrounder to June 23, 2004 Media Advisory

Jun 23 2004

On Monday, June 28, 2004, Ontario’s highest court will be hearing a precedent-setting case involving landfill approvals, the Environmental Assessment Act, and the Crown’s fiduciary duty towards First Nations. The case focuses on a controversial proposal by Canadian Waste Services (CWS) to undertake a 25-year, 18 million tonne expansion of the Richmond Landfill Site near Napanee. If approved, the site would accept waste from an all-Ontario service area. The proposed expansion is subject to Ontario’s Environmental Assessment Act (EA Act). However, the Environment Minister approved "Terms of Reference" under the EA Act that did not require CWS to prove there was a demonstrable "need" for the expansion, and that did not require CWS to consider whether there are preferable "alternatives to" the expansion (i.e. reduce, reuse, recycle). In response, the Mohawks of the Bay of Quinte (represented by Patrick Schindler) and local residents (represented by CELA counsel Richard Lindgren) brought judicial review applications to quash the Minister’s approval. In June 2003, the Ontario Divisional Court granted the judicial review applications and held that the Minister does not have jurisdiction to exclude "need" or "alternatives to" from the EA process. This ruling applies not only to the CWS proposal, but also to every other public and private sector undertaking subject to the EA Act. The Environment Minister declined to appeal the Divisional Court ruling, as she had campaigned during the provincial election on a promise to not appeal the matter. This leaves CWS as the main appellant in the court case, although the Attorney General of Ontario subsequently intervened in the appeal in support of CWS, despite the Environment Minister’s withdrawal. Two other intervenors (i.e. a private landfill owner and the Ontario Waste Management Association) also support CWS. The Mohawks of the Bay of Quinte and the local residents are supported by two additional intervenors (i.e. a municipality and a citizens’ coalition). The Ontario Court of Appeal has scheduled a full day to hear the CWS appeal. It is anticipated that the Court’s decision will clarify how the EA Act is to be interpreted and applied across Ontario. - 30 - For further information, please contact: Patrick Schindler (MBQ counsel) 416-410-0809 Rick Lindgren (CELA counsel) 613-385-1686