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
