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Visit the Richmond Citizens'Site

The Minister of Environment, The Hon. Laurel Broten,    has rejected WMI's expansion proposal of the Richmond Landfill, a landmark  decision that changes the course  of landfill history and the EA in this province.

 

Her eight page decision is available on the link below - read it to see how WMI's proposal  failed to meet the government's standards for approval.

 

Congratulations  to everyone at Richmond and the neigbouring Mohawk community for their outstanding efforts and remarkable success.

 

 

Minister Broten's Official Rejection Letter Of Richmond Expansion Proposal

 
 
 
 
 
 
_________________________________________________________________

AUGUST 30, 2004

 

Appeal Court Reverses Richmond Victory

 

Richmond citizens lost in the Ontario Court of Appeal last week when the court decided that the Terms of Reference for the landfill expansion are acceptable.  (Case name is  “Sutcliffe v. Ontario Ministry of Environment)

CWS and the MOE had appealed a lower court decision that said the Richmond landfill expansion TOR should have included need and alternative. In that decision, the Divisional Court voted 2-1 in favour of the community, effectively stopping all EAs across the province, including the Warwick landfill expansion EA. None of the EAs was studying need or alternative and the Divisional Court decision made them invalid.

 

In its appeal, CWS and the MOE argued that the Minister had the authority to approve the TOR without need and alternative. The Richmond group, supported by lawyers representing Warwick Council and the WWLC, argued that the Environment Minister was obliged to include need and alternative in the TOR and could not ignore the fundamental requirements of an EA.

In its unanimous decision, the court says: “The crux of this appeal is whether the Minister may approve terms of reference that are tailored to a particular project and that are found by the Minister to be consistent with the purpose of the Act and the public interest, but do not include all of the generic elements of an environmental assessment that are set out in the Act.”

Richmond lawyers argued that the Minister is bound by an EA that includes need and alternative in the TOR. Even though the Harris government revised the EA by introducing the new TOR process, the EA still requires need and alternative.  They cited as evidence the Tory Environment Minister Brenda Elliot’s repeated assurances in the legislature that need and alternative were still fundamental components of the EA; the new TOR process would not eliminate those basic requirements. The lower court considered her statements in the legislature significant, but the appeal court has rejected them as unrelated to a strict reading of the statute.

 

Minister Can Tailor an EA

Overall, the Court allows Ministerial discretion to determine an acceptable TOR.

 “As between the courts and the Minister, the Minister is in a far better position to ascertain whether the generic elements must be present in all environmental assessments in order to be consistent with the purpose of the Act and the public interest.  It requires an understanding of environmental policy, of the mechanics of environmental assessments, and of what factors are more or less important in certain kinds of undertakings as opposed to others.  It is not a pure question of law.”

The court agrees with the MOE and CWS argument that the EA process allows for flexibility and “specific tailoring of an environmental assessment to suit the circumstances of the particular project while ensuring that the terms are consistent with the overall purpose of the Act and the public interest.” 

In our view, this argument contradicts the very nature and purpose of an EA. An EA is intended to hold each proposal to fundamental standards that show the project is needed and those alternatives – including not doing the project at all – have been seriously considered. An EA customized by Ministerial discretion is not an EA.

 

Judges Wrong on Alternatives

Perhaps the judge’s most disturbing conclusion is that the CWS TOR actually included a study of alternatives. The judges completely misunderstand the meaning of “alternatives”. They wrongly believe that CWS included alternatives in their TOR when they list all the alternatives to the operation itself, not the alternative to landfill expansion. “Moreover, within the TOR [terms of reference] there is a whole section on alternatives to be evaluated, all of which will be considered and assessed during the environmental assessment. Although an assessment of alternatives to the expansion of this particular landfill will not be considered during the environmental assessment, alternative methods for carrying out the undertaking, according to the TOR, will be considered and assessed during the environmental assessment.  These are extensive.  As well, the TOR and the background documents thereto describe the approach to be taken by CWS in the environmental assessment.”

CWS themselves could have written this interpretation of alternatives.

 

 

Judge Goes to Supreme Court

You may recognize the name of one judge on this decision: Judge J.A. Charron. The Federal government has just appointed her to the Supreme Court of Canada.  If Richmond citizens get leave to appeal to the Supreme Court, Judge Charron would, of course, recuse herself (not sit on the bench for this case) because of her decision in the Court of Appeal.

 

So, what happens next? Lawyers for Richmond are reviewing the court’s decision to decide if there are grounds to seek leave to appeal to the Supreme Court. The standards for appeal are rigorous: the case must have national significance or an error in law. As it stands today, the appeal court decision means that the TOR at Richmond and therefore Warwick are legitimate and can proceed.

 

Other opportunities

While the court decision is a set back, we are hopeful that the province may reinforce need and alternative in its current review of the EA. An expert panel will make recommendations to the government on the EA process and may, in fact, step in where the courts have failed to act.

As well, Toronto, the main source of garbage, has aggressive and relatively effective diversion programmes to reduce the need for mega landfills. And the mayors along the 401/402 who complain about Toronto garbage traffic might actually wake up and realize that the Warwick expansion would increase traffic exponentially.  For the past three years, we’ve asked them to support us in our opposition to the expansion – all to no avail. They are fighting Toronto garbage trucks and have no time or interest in our issue here. Duh? But their indifference might change as the expansion plans here become more real.

So, we’re not done. The process grinds on and we’re still in it – win, lose, or draw.

 

 

 To read the complete decision, go to http://www.ontariocourts.on.ca/decisions/2004/august/C40916.htm

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Read the response from the waste industry on the court decision

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