Gord Downie and Mark Mattson (Lake Ontario Waterkeeper) with staff from CELA, ECO and Ecojustice during a break in the 2008 Divisional Court proceedings. Photo: David McRobert.
Posted by Richard D. Lindgren, CELA Counsel on June 6, 2018
In June 2008, Ontario’s Divisional Court released a precedent-setting judgment in Lafarge Canada Inc. v. Ontario Environmental Review Tribunal that affirmed important public participation rights under the province’s Environmental Bill of Rights (EBR).
Although the EBR had been enacted in 1993, the Lafarge litigation represented the first time that a court had been called upon to interpret EBR provisions which enable Ontarians to seek leave (permission) to appeal governmental decisions regarding environmental approvals.
The case focused on the issuance of two provincial approvals that allowed Lafarge’s cement plant near Kingston to start burning scrap tires, plastic and other waste as “alternative fuel” despite public concerns about airborne contamination.
In this case, CELA represented Lake Ontario Waterkeeper and Gord Downie (in his capacity as “Trustee of Lake Ontario”), while current CELA lawyer Joe Castrilli (then in private practice) represented all members of The Tragically Hip in their capacity as co-owners of a recording studio located near the Lafarge plant. Ecojustice lawyers represented a local residents’ group.
All of these parties jointly sought – and the Environmental Review Tribunal granted – leave to appeal the two approvals under the EBR on the grounds that the approvals appeared to be unreasonable and could cause significant environmental harm.
However, Lafarge then brought a judicial review application that requested the Divisional Court to set aside the Tribunal’s leave decision and stop the appeal hearing.
In its landmark ruling, the Divisional Court unanimously dismissed Lafarge’s legal challenge and upheld the Tribunal’s decision. Among other things, the Court clarified that:
- as a specialized administrative body, the Tribunal’s interpretation of the EBR is entitled to deference from the courts;
- the EBR leave test should be construed in a manner that facilitates “fostering access to justice in environmental matters”;
- at the leave stage, the prospective appellant must only prove his/her allegations on a prima facie basis (or “preliminary merits”), not on a balance of probabilities;
- when examining disputed approvals, it is reasonable for the Tribunal to consider whether the governmental decision-maker applied the ecosystem approach, precautionary principle or other key commitments contained in the Statement of Environment Values (SEV) prepared by the Environment Ministry under the EBR; and
- it is also reasonable for the Tribunal to assess whether the governmental decision-maker considered, or adequately protected, the common law rights of nearby landowners.
An attempt by Lafarge to appeal the Divisional Court judgment to Ontario’s Court of Appeal was unsuccessful, and the two approvals were ultimately revoked by the Ministry without being used by the company.
Over the past decade, the Divisional Court’s groundbreaking decision has been cited by the Tribunal in virtually all of its decisions on leave-to-appeal applications that have been filed by Ontario residents under the EBR.
The Lafarge case is also discussed in a booklet that has been web-posted by the Environmental Commissioner of Ontario to explain how Ontarians can utilize the EBR to protect the environment. It should be noted that the Environmental Commissioner intervened in the Divisional Court proceedings in relation to the legal effect of the Ministry’s SEV under the EBR.
Additional information about the Lafarge litigation, and its implications for EBR appellants, is posted on the CELA website.
Similarly, CELA lawyers have written a chapter on the Lafarge case in a recently published textbook on leading environmental cases in Canada.
While the Lafarge judgment established an important precedent that undoubtedly assists EBR appellants in other cases, it seems to CELA that the Court’s ruling subsequently prompted the Ontario government to implement regulatory changes that greatly reduce the applicability of the EBR to specified activities or facilities.
For example, in an attempt to “modernize” its approvals regime, the Ministry has established an “Environmental Activity and Sector Registry” (EASR), which wholly eliminates the legal requirement for certain proponents to apply for and receive approvals required by Ontario’s regulatory statutes.
CELA and other groups have expressed serious concerns about this “standardized approval” (or “permit-by-rule”) approach, especially since it means that the EBR’s public notice, comment and appeal provisions are no longer applied to EASR-registered projects (e.g. certain water-takings or waste management systems). In short, Ontarians cannot seek leave to appeal under the EBR in relation to activities or facilities designated under the EASR program.
The Ministry’s new regulatory direction is particularly problematic in the context of air pollution sources, as many types of facilities that discharge contaminants into local airsheds are now subject to the EASR program. In fact, the Environmental Commissioner recently reported that approximately 50-70% of air emitters in Ontario will be eligible to register under the EASR, rather than be required to apply for site-specific approvals.
The bottom line is that the Lafarge judgment widely opened the door for Ontarians to use the EBR to challenge potentially harmful undertakings, and this remains the case today where environmental approvals are still required by law.
However, for the growing list of activities subject to the EASR program, the door is being incrementally closed by the Ministry in order to sidestep or avoid the Lafarge outcome. In CELA’s view, this trend is contrary to the overall objectives of the EBR: protecting the environment, facilitating public participation, and ensuring accountability of governmental decision-makers.