By Richard Lindgren, CELA Counsel
image credit: Steve Smith @varrak
Ontario’s 2019 discussion paper on waste management correctly notes that “sending waste to landfill is economically inefficient and unsustainable,” “puts a strain on our environment,” and “impacts local communities.”
For example, poorly sited or improperly designed landfills can contaminate groundwater and surface water resources, adversely affect air quality, and cause serious nuisance impacts to neighbouring residents (e.g. odour, noise, litter, dust, etc.).
In order to safeguard public health and the environment, for almost 50 years CELA has represented clients in numerous battles across Ontario in relation to existing or proposed landfills.
CELA takes on these cases on behalf of low-income individuals and vulnerable communities because they are disproportionately impacted by governmental decision-making about landfills, and because they require specialized legal assistance in order to ensure access to environmental justice.
In addition, our landfill cases involve fundamental matters that engage the core elements of CELA’s legal aid mandate: protecting human health, ensuring safe housing and shelter, and upholding human rights to clean air and water.
In some cases, CELA has undertaken civil litigation on behalf of our clients in order to obtain compensation for loss, injury or harm arising from landfills, or to request injunctions that prohibit or restrict landfilling operations.
In other cases, CELA has represented individuals and groups in public hearings or other administrative proceedings where proponents are seeking statutory approvals to construct or expand landfills.
These high-profile and complex cases typically raise environmental issues of local, regional and provincial significance, and a number of these cases have been precedent-setting in nature.
For example, in the late 1980s, CELA represented a West Burlington residents’ group in the first Joint Board hearing ever held in relation to a proposed landfill.
Similarly, in the mid-1990s, CELA represented clients in a ground-breaking landfill case in southwestern Ontario in which leave-to-appeal was granted to residents for the first time under the Environmental Bill of Rights (EBR).
Currently, CELA represents a citizens’ group, Citizens Against the ED-19 Dump, in eastern Ontario that is opposed to the proposed construction of a large municipal landfill.
In 1998, this landfill project received approvals under the Environmental Assessment Act (EAA) and the Environmental Protection Act (EPA). Nevertheless, for various reasons, the landfill was never constructed by the municipality over the past two decades.
Recently, however, the municipality entered into negotiations with a private waste disposal company that wanted to acquire the landfill property and proceed with the project under the unexpired approvals.
In response to this prospect, CELA’s client retained independent experts who identified a number of unresolved issues about the site, and raised fundamental concerns about adverse effects that may be caused by the approved no-liner design of the landfill.
On the basis of this expert evidence, CELA then pursued various legal avenues on behalf of our client, including:
- requesting the Environment Minister to reconsider and revoke the EAA approval on the grounds that significant changes in circumstances and site conditions had occurred after the approval was originally issued two decades ago;
- filing an EBR Application for Review of the EPA approval, which the Environment Ministry subsequently agreed to undertake; and
- intervening in a hearing held by the Environmental Review Tribunal in relation to the municipality’s appeal against a Ministry decision that suspended two conditions in the EPA
Fortunately, on December 16, 2019, the Minister determined that it is in the public interest to revoke the EAA approval. In effect, this decision means that no landfilling can occur at the site unless a fresh application under the EAA is filed, subjected to public consultation, and approved (or not).
On behalf of our client, CELA commends the Minister for doing the right thing by revoking the unused and stale-dated landfill approval. In CELA’s view, this decision is an important and welcome precedent under section 11.4 of the EAA that may benefit other Ontarians across the province.