Media Release

Court of Appeal Allows Richmond Landfill Expansion to Proceed through "Scoped" Environmental Assessment

Sep 01 2004

TORONTO. The Ontario Court of Appeal has recently decided that the proposed expansion of the Richmond Landfill near Napanee can proceed through a "scoped" environmental assessment ("EA") process that does not require the proponent to:

  • prove there is a demonstrable need for the mega-expansion;
  • examine whether there are better "alternatives to" the mega-expansion (i.e. reduce, reuse and recycle); or
  • evaluate whether there are safer or more suitable sites for the mega-expansion.
In its judgment, the Court of Appeal granted an appeal by Canadian Waste Services Inc. ("CWS") against a 2003 Divisional Court decision that had quashed the Environment Minister’s approval of the narrow EA process for the proposed expansion. The Divisional Court proceedings had been initiated by the Mohawks of the Bay of Quinte ("MBQ") and concerned Tyendinaga Township residents. "We are very disappointed in the Court of Appeal judgment," said Chief R. Donald Maracle of the MBQ. "Our community’s significant concerns about the dump expansion will not be adequately addressed by the narrow EA process sanctioned by the court". "This decision is particularly disappointing", added Patrick Schindler, counsel for the MBQ. "Although the Minister of the Environment, while she was an opposition MPP, applauded the 2003 decision of the Divisional Court, saying that it was good for the environment and good for the people of Ontario, the Attorney General supported the appeal against that decision. The Court’s reasoning is also disappointing. The Minister’s decision was challenged in the courts because of the concern that the Minister had, by an erroneous interpretation of the Environmental Assessment Act, exceeded his legal authority. The Divisional Court agreed with that challenge. Madam Justice Charron, who wrote the reasons for decision of the Court of Appeal, overturning the decision of the Divisional Court, stated that the appeal turned on "the strict question of statutory interpretation" but went on to say that "as between the Courts and the Minister, the Minister is in a far better position" to interpret the requirements of the Act," Mr. Schindler stated.  "It is disappointing that the Court of Appeal has abnegated responsibility for interpreting the statute law of Ontario. It is also disappointing that the Court of Appeal completely ignored the argument of the Mohawks of the Bay of Quinte that the Minister breached the fiduciary obligation which every Minister of the Crown owes to First Nations, by not taking into consideration their concerns over the potential impact of the proposed expansion of the Richmond site on their territory," stated Mr. Schindler. "Landfills pose numerous risks to public and ecosystem health, and can create various socio-economic impacts," noted residents’ spokesperson Stephen Geneja. "We are greatly alarmed that CWS will not have to consider "need" and "alternatives to", which are the most important components of any EA." "It is clear that the Court’s interpretation of the Environmental Assessment Act applies not only to CWS, but to every other proponent and project in Ontario that is subject to the Act", said Richard Lindgren, counsel for the residents. "Our fear is that the Minister may use this precedent to approve excessively narrow or scoped EA’s for other undertakings across Ontario." The Court of Appeal judgment does not mean that the CWS landfill expansion has been approved. Instead, the judgment sets out the parameters of the EA process that CWS must follow if it wishes to pursue the proposed expansion. Under Canadian law, the Court of Appeal judgment may be appealed, with leave, to the Supreme Court of Canada. - 30 - For more information:   Chief R. Donald Maracle 613-396-3424 Stephen Geneja 613-969-0286 Patrick Schindler 416-410-0809 Richard Lindgren 613-385-1686