Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: January 20, 2017
CASE NO.: 15-168
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended
Appellant: Corporation of the Municipality of Temagami
Respondent: Director, Ministry of the Environment and Climate Change
Subject of appeal: Orders to do various work regarding nuisance bears at three waste disposal sites
Reference No.: 1147-A3NJST, 6174-A3KJ9R, and 1022-A3KH7Q
Municipality: Municipality of Temagami
Upper Tier: District of Nipissing
ERT Case No.: 15-168
ERT Case Name: Temagami (Municipality) v. Ontario (Environment and Climate Change)
Heard: December 2, 2016 by telephone conference call
APPEARANCES:
Parties
Director, Ministry of the Environment and Climate Change
Corporation of the Municipality of Temagami
Counsel
Sarah Kromkamp
Kathryn Pirie
DECISION DELIVERED BY MARLENE CASHIN
REASONS
Background
1This matter involves an appeal by the Municipality of Temagami (“Municipality”) of three Provincial Officer’s Orders, which were deemed confirmed by the Director, Ministry of the Environment and Climate Change (“MOECC”) by operation of s. 157.3(8) of the Environmental Protection Act (“EPA”) on November 10, 2015 after the Municipality requested a review. The Provincial Officer’s Orders, issued by the MOECC on October 26, 2015, include Provincial Officer’s Order No. 1147-A3NJST (“Strathy Landfill Order”), Provincial Officer’s Order No. 6174-A3KJ9R (“Briggs Landfill Order”) and Provincial Officer’s Order No. 1022-A3KH7Q (“Lake Temagami Access Road Transfer Station Order”) (collectively, by virtue of the deemed confirmation “Director’s Orders”).
2The Municipality appealed the Director’s Orders to the Environmental Review Tribunal (“Tribunal”) regarding the Briggs Landfill Order and the Lake Temagami Access Road Transfer Station Order on November 23, 2015 and regarding the Strathy Landfill Order on November 25, 2015.
3The Director’s Orders require the Municipality to take measures to address nuisance bears at three waste disposal sites operated by the Municipality, namely the Strathy Township Landfill, the Briggs Township Landfill and the Lake Temagami Access Road Waste Transfer Station.
4Since the fall of 2015, the Director and the Municipality engaged in discussions regarding the requirements of the Director’s Orders and potential measures to address the bear problem. The discussions resulted in the development by the Municipality of a “Landfill and Transfer Station Action Plan” (“Action Plan”), dated August 3, 2016.
5On September 13, 2016, counsel for the Director informed the Tribunal by letter that the parties had reached a settlement in accordance with an agreement to implement the Action Plan, and that the Director consents to the revocation of the Director’s Orders and the withdrawal of the appeal on that basis. A letter from counsel for the Municipality, dated September 27, 2016, confirmed the agreement reached by the parties. The parties provided the Tribunal with a copy of the Action Plan.
6A Pre-hearing Conference (“PHC”) took place by telephone conference call on December 2, 2016. The setting of dates for a Hearing in this matter had been deferred pending the Tribunal’s ruling on the proposed settlement agreement to be considered at the PHC. No other persons requested status in the matter at the PHC. The Tribunal, having considered the oral and written submissions of the parties regarding the proposed settlement agreement, gave an oral decision revoking the Director’s Orders, and accepted the withdrawal of the appeal. These are the reasons for that decision.
Relevant Legislation and Rules
- (1) The purpose of this Act is to provide for the protection and conservation of the natural environment.
Rules of Practice of the Environmental Review Tribunal
Where there has been a proposed withdrawal of an appeal as part of a settlement agreement not objected to by any Party that alters the decision under appeal, the Tribunal shall review the settlement agreement and consider whether the agreement is consistent with the purpose and provisions of the relevant legislation and whether the agreement is in the public interest. The Tribunal shall also consider the interests of Participants and Presenters. After consideration of the above factors, the Tribunal may decide to continue with the Hearing or issue a decision dismissing the proceeding.
Where a Director, Risk Management Inspector or Official, Authority or a municipality proposes to revoke a decision that is the subject of an appeal, the Tribunal shall consider whether the proposed revocation is consistent with the purpose and provisions of the relevant legislation and whether the proposed revocation is in the public interest. The Tribunal shall also consider the interests of Parties, Participants and Presenters. After the consideration of the above factors, the Tribunal may decide to continue with the Hearing or issue a decision dismissing the proceeding.
Issue
8The issue is whether the Tribunal should accept the proposed revocation of the Director’s Orders and the proposed withdrawal of the appeal, based on the Action Plan, as being consistent with the purpose and provisions of the EPA, and in the public interest.
Discussion, Analysis and Findings
9Pursuant to Rule 201 of the Tribunal’s Rules of Practice (“Rules”), a proposed withdrawal of an appeal pursuant to a settlement agreement that alters the terms of the decision under appeal must be presented to the Tribunal for review. Rule 202 addresses the situation of a proposed revocation of a decision that is the subject of an appeal.
10Both parties consent to the proposed revocation of the Director’s Orders and the proposed withdrawal of the appeal based on the executed Action Plan, and there are no participants or presenters in this proceeding. Therefore, the issue that remains under Rules 201 and 202 is to determine whether the proposed settlement, including the Action Plan is consistent with the purpose and the provisions of the relevant legislation, namely the EPA, and is in the public interest.
11The Action Plan sets out the measures that the Municipality is in the process of implementing or proposes to implement, to address nuisance bears at the three sites. The Action Plan includes timelines for implementation, as well as a commitment to report back to the MOECC at the end of 2016 on the outcome of the Action Plan. A copy of the Action Plan is attached to this decision as Appendix A.
12The Director’s position is succinctly summarized in her written submissions as follows:
…the Director is satisfied that the development of the Action Plan and implementation of the actions outlined therein either fulfills the requirements of the Orders or constitute a reasonable alternative to the requirements of the Orders. While the Director has some reservations as to whether these measures will be sufficient to eliminate all nuisance bears at the three sites, the Director is satisfied with allowing the Municipality to proceed as proposed. The report to be submitted in December 2016 will assist both the Municipality and MOECC in evaluating the effectiveness of the measures implemented to date and whether additional measures may be required.
On the basis that the Municipality has developed and it is implementing its Action Plan, the Director is prepared to revoke the Orders and continue to address and evaluate the nuisance bear issue through voluntary abatement. If voluntary abatement proves to be ineffective in addressing this issue on an ongoing basis, the MOECC has a number of abatement tools at its disposal to address any concerns that may arise, including but not limited to the issuance of new orders.
13The Municipality agreed with the position of the Director, adding that the public has been engaged in discussion and consultation regarding the Director’s Orders and the measures needed to deal with the bear issues at the various landfill sites, and pointing out that a public meeting was held in Temagami on August 8, 2016.
14The parties submit that the proposed revocation of the Director’s Orders and withdrawal of the appeal is consistent with the purpose and provisions of the EPA and is in the public interest.
15The Tribunal is satisfied, based on the evidence and submissions that the Action Plan will provide for monitoring and reporting to the Director and further concrete steps such as fencing, cameras, increasing cover schedules, decreasing the working face of the landfills and/or additional staff as necessary, to solve the bear problems at the three waste sites. As well, the Director has indicated that new orders could be issued if necessary.
16The Tribunal therefore finds that the proposed settlement, including the Action Plan, is consistent with the purpose and provisions of the EPA and in the public interest, and that a hearing with respect to the Director’s Orders is not required.
DECISION
17The Tribunal accepts the parties’ agreement to settle this matter, with the implementation of the Action Plan attached as Appendix A, the revocation of the Director’s Orders, and the withdrawal of the appeal. The Director is directed to revoke the Director’s Orders: No. 1147-A3NJST, No. 6174-A3KJ9R and No. 1022-A3KH7Q, in accordance with the agreement to implement the Action Plan attached as Appendix A.
18In accordance with Rules 201 and 202, the appeal is dismissed.
Settlement Agreement Accepted
Director Directed to Revoke Orders
Appeal Withdrawn
Appeal Dismissed
“Marlene Cashin”
MARLENE CASHIN
MEMBER
Appendix 1 – Landfill and Transfer Station Action Plan
If there is an attachment referred to in this document,
please visit www.elto.gov.on.ca to view the attachment in PDF format.
Environmental Review Tribunal
A constituent tribunal of Environment and Land Tribunals Ontario
Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248