In the recent decision in Unifor Local 2301 v. Rio Tinto Alcan Inc., the British Columbia Court of Appeal (Court) confirmed that approval of a monitoring plan submitted under an environmental permit falls within the definition of a “decision” under the appeal provisions of the Environmental Management Act (EMA). The case is a useful reminder to industry proponents that plans and similar documents that are required to be submitted under permits for approval may be appealed by third parties.

BACKGROUND

Rio Tinto Alcan Inc. (Rio Tinto) operates an aluminum smelter in Kitimat, B.C. As part of its operations, it holds a permit under the EMA enabling it to emit sulphur dioxide. Rio Tinto applied to amend the permit in 2013 to increase the allowable discharge amounts. In approving the amendment, the Ministry of Environment (Ministry) required Rio Tinto to file an Environmental Effects Monitoring Plan (Plan) for approval. The Plan was subsequently approved by the Ministry on October 7, 2014. Unifor Local 2301 (Unifor), a union representing workers at the smelter, appealed the Plan approval on the basis that it was inadequate and did not comply with the permit requirements. The Environmental Appeal Board (Board) rejected the appeal on the basis that the Plan approval did not constitute a “decision” under the appeal provisions of the EMA. The Supreme Court of British Columbia overturned the Board’s decision, finding that the Plan was an appealable “decision.”

COURT OF APPEAL DECISION

The Court found the Ministry had unduly narrowed the definition of “decision” under the EMA and affirmed that the Ministry’s authority to approve a plan submitted under a permit is derived from the statute itself. The submission and approval of the Plan was the “second stage” of the permit amendment, and is an appealable decision under the EMA.

IMPLICATIONS

This case confirms that the definition of “decision” under the EMA is broad and that any authority the Ministry has to issue approvals of plans required under permits is also derived from the statute. Permits that include a requirement to submit plans or other instruments for Ministry approval will fall within the ambit of decisions that are appealable to the Board, including by third parties who may be persons “aggrieved” by such approvals.

Project proponents and operators can manage risk by considering whether plans prepared under permits for Ministry approval will impact stakeholders and if so, considering whether some form of public engagement would be advisable prior to the submission of the plan to the Ministry. Proponents may also need to be prepared to defend the plan in a subsequent appeal.