Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: January 16, 2018 CASE NO.: 17-065

PROCEEDING COMMENCED UNDER section 38 of the Environmental Bill of Rights, 1993, S.O. 1993, c. 28, as amended,

Applicant: SaveTheBalaFalls.com Instrument Holder: Swift River Energy Limited Respondent: Director, Ministry of the Environment and Climate Change

Subject of leave to appeal: Decision to issue an Environmental Compliance Approval under section 20.3 of the Environmental Protection Act, R.S.O. 1990, c. E.19, for sewage works to serve a 4.5 MW Hydroelectric Generating Station Reference No.: 3984-9PWP5T Property Address/Description: 3111 Muskoka Road 169 Part 1, Reference Plan 35R Municipality: Muskoka Lakes Township Upper Tier: District Municipality of Muskoka

ERT Case No.: 17-065 ERT Case Name: SaveTheBalaFalls.com v. Ontario (Environment and Climate Change)

Heard: In writing

APPEARANCES:

Parties	Counsel/Representative*
SaveTheBalaFalls.com	Mitchell Shnier*
Director, Ministry of the Environment and Climate Change	Jon Bradbury
Swift River Energy Limited	Joanna Rosengarten

DECISION DELIVERED BY JUSTIN DUNCAN

REASONS

Background

1On October 20, 2017, Mansoor Mahmood, Director, Ministry of the Environment and Climate Change (“MOECC” or “Ministry”) issued Environmental Compliance Approval 0521-9XKKZ3 (“ECA”) to Swift River Energy Limited, operating as Swift River Limited Partnership (“Swift River”) to permit the establishment of sewage works to service a 4.5 megawatt hydroelectric generating station to intercept, collect and treat storm water run-off, tunnel ground water seepage, excavated material drainage seepage, generating station cooling water and wastewater, treatment and effluent disposal into the Moon River and/or Lake Muskoka.

2SaveTheBalaFalls.com (“Applicant”), an organization incorporated specifically to address concerns about the North Bala Dam Hydroelectric Project (“Project”), filed an application for leave to appeal the ECA pursuant to s. 38 of the Environmental Bill of Rights (“EBR”) on November 3, 2017.

3By letter dated November 7, 2017, the Environmental Review Tribunal (“Tribunal”) requested that the parties provide submissions as to whether the Tribunal has jurisdiction to hear the application for leave to appeal filed by the Applicant.

4The parties variously provided submissions to the Tribunal in writing in November 2017 with the Applicant providing reply submissions on November 23, 2017.

Issue

5The issue is whether the Applicant has the right under s. 38 of the EBR to bring an application for leave to appeal the Director’s decision to grant the ECA. Subsumed within this issue are the following questions that must be addressed by the Tribunal in the context of this case:

a. Is the ECA an instrument for which notice is required to be given pursuant to s. 22 of the EBR?

b. If EBR s. 30 or s. 32 render the notice requirements of EBR s. 22 inapplicable, does voluntary posting of the ECA by the Ministry or do changes to the Project create a right of appeal under EBR s. 38?

Legislation

6The following provisions of Ontario Regulation (“O. Reg.”) 116/01, enacted under the Environmental Assessment Act (“EAA”), the EBR, and the Tribunal’s Rules of Practice are relevant in this context:

Ontario Regulation 116/01: Electricity Projects

1. (1) In this Regulation,

“Environmental Screening Process” means Part B of the Ministry of the Environment publication entitled “Guide to Environmental Assessment Requirements for Electricity Projects” and dated March 2001, as amended from time to time;

4. (1) The planning, designing, establishing, constructing, operating, changing, expanding or retiring of any of the following things is defined as a major commercial or business enterprise or activity and is designated as an undertaking to which the Act applies:

5. A generation facility that has a name plate capacity of less than 200 megawatts and that uses water power as its primary power source.

(4) An undertaking that is designated under this section as an undertaking to which the Act applies is exempt from Part II of the Act if the undertaking is carried out in accordance with the Environmental Screening Process.

Environmental Bill of Rights, 1993

22. (1) The minister shall do everything in his or her power to give notice to the public of a Class I, II or III proposal for an instrument under consideration in his or her Ministry at least thirty days before a decision is made whether or not to implement the proposal.

23. (1) Sections 15, 16 and 22 do not apply where, in the minister’s opinion, the environmentally significant aspects of a proposal for a policy, Act, regulation or instrument,

(a) have already been considered in a process of public participation, under this Act, under another Act or otherwise, that was substantially equivalent to the process required in relation to the proposal under this Act; or

(b) are required to be considered in a process of public participation under another Act that is substantially equivalent to the process required in relation to the proposal under this Act.

(2) If a minister decides under subsection (1) not to give notice of a proposal under section 15, 16 or 22, the minister shall give notice of the decision to the public and to the Environmental Commissioner.

(3) Notice under subsection (2) shall be given as soon as reasonably possible after the decision is made and shall include a brief statement of the minister’s reasons for the decision and any other information about the decision that the minister considers appropriate.

32. (1) Section 22 does not apply where, in the minister’s opinion, the issuance, amendment or revocation of an instrument would be a step towards implementing an undertaking or other project approved by,

(a) a decision made by a tribunal under an Act after affording an opportunity for public participation; or

(b) a decision made under the Environmental Assessment Act.

(2) Section 22 does not apply where, in the minister’s opinion, the issuance, amendment or revocation of an instrument would be a step towards implementing an undertaking that has been exempted by a regulation under the Environmental Assessment Act.

(3) A decision about a class of undertaking is a decision within the meaning of subsection (1) and an exemption for a class of undertaking is an exemption within the meaning of subsection (2).

38. (1) Any person resident in Ontario may seek leave to appeal from a decision whether or not to implement a proposal for a Class I or II instrument of which notice is required to be given under section 22, if the following two conditions are met:

39. The person seeking leave to appeal has an interest in the decision.

40. Another person has a right under another Act to appeal from a decision whether or not to implement the proposal.

(2) For greater certainty, subsection (1) does not permit any person to seek leave to appeal from a decision about a proposal to which section 22 does not apply because of the application of section 29, 30, 32 or 33.

Rules of Practice

119. The Tribunal may, on its own initiative, dismiss a proceeding without a Hearing if:

(a) the proceeding relates to matters outside the jurisdiction of the Tribunal; or

(b) some aspect of the statutory requirements for bringing the proceeding has not been met.

Discussion, Analysis and Findings

7The Project is a 4.5 megawatt hydroelectric power facility proposed to be located on Crown land on the south side of the existing Bala North Dam which is currently owned by the Ministry of Natural Resources and Forestry. Project construction commenced in October 2017.

8A brief chronology of the events leading to the issuance of the ECA by the Director are as follows:

a. Notice of Commencement of Screening for the Project was published in March 2006. Public comments were solicited and received following this publication.

b. Notice of Completion of Screening Report was published on October 13, 2009. Public comments were solicited and received following this publication.

c. Between October 26, 2009 and November 27, 2009, the Ministry received 105 requests to subject the Project to an individual environmental assessment under Part II of the EAA, including one from the Applicant’s representative. The Ministry denied all of the requests on March 25, 2011.

d. Between March 26, 2011 and April 18, 2011, the Minister of the Environment and Climate Change (“Minister”) received 75 requests to review the Ministry’s decision to deny the elevation requests. The Minister upheld the Ministry’s decision on May 24, 2012.

e. On May 25, 2012, Swift River submitted an Addendum to the Screening Report as a result of changes to the Project. Between May 30, 2012 and June 30, 2012, the Ministry received 66 requests to subject the project to an individual environmental assessment as a result of the Addendum, including one from the Applicant’s representative. The Ministry denied all of these requests on September 24, 2012.

f. The Minister received 69 requests to review the Ministry’s decision to deny the elevation requests. The Minister upheld the Ministry’s decision on January 23, 2013.

g. On January 24, 2013, Swift River submitted a Statement of Completion of the Screening to the Ministry. The Ministry then cleared the Project to proceed, subject to Swift River obtaining any other approvals or instruments that may be required.

h. Swift River applied for the ECA on October 15, 2014.

i. The Ministry posted an Instrument Proposal Notice to the Environmental Registry (“Registry”) on May 30, 2016 for a 45-day public comment period ending on July 14, 2016.

j. In late June or early July 2016, the Instrument Proposal Notice was revised to indicate that the posting was made in error and indicating that the instrument under consideration is exempt from posting and that leave to appeal rights do not apply to the posting.

k. The ECA was issued on October 20, 2017 and a corresponding Instrument Decision Notice was posted to the Registry on the same date.

9It is well established that the test for standing contained in s. 38 of the EBR has four elements: (1) the applicant must be a resident of Ontario; (2) the decision appealed from must be a Class I or II instrument for which notice is required under s. 22; (3) the applicant must have an interest in the decision; and (4) some other person must have a right to appeal under another statute (see: Valastro v. Ontario ( Ministry of the Environment), [2006] O.E.R.T.D. No. 26 and Napash v. Ontario (Ministry of the Environment), [2012] O.E.R.T.D. No. 55 (“Napash”), at para. 7 for example).

10Here there is no dispute that the Applicant is resident in Ontario, that the Applicant has an interest in the decision at issue, and that another person, namely Swift River, has a right to appeal the decision to issue the ECA.

11At issue is the second element of the test for standing. Although there is no dispute that the ECA is a Class II instrument as prescribed by regulation under the EBR, the question is whether the ECA is exempt from the notice requirements of s. 22 as a result of the application of either s. 30 or s. 32 of the EBR.

Submissions of the Parties

12The Applicant made anticipatory submissions in its Notice of Leave to Appeal on the applicability of s. 30 of the EBR in this context. The Applicant also makes submissions in response to the Tribunal’s letter of November 7, 2017 and in reply to the submissions of the Director and Swift River. I have considered all of these various submissions and a summary of them is provided below.

13The Applicant relies to a large extent on the May 30, 2016 Instrument Proposal Notice in its submissions. The Applicant submits that the fact of the Instrument Proposal Notice being posted to the Registry is either an admission by the Ministry of a legal requirement for public notice or, alternatively, the fact of posting gives rise to a right to request leave to appeal.

14The Applicant also submits that the current and planned work by Swift River is significantly different from what was examined in the Screening Report in the following respects. A settling pond was assessed as part of the Screening Report but instead, Swift River has received approval to use a wastewater treatment plant instead. The Applicant also submits that other environmentally significant aspects of the Project have not yet been considered, including the potential for the mobilization of polychlorinated biphenyl (“PCB”) contamination from contaminated soils, use of Project components that may leach toxic insecticides, and the potential for leaks of tower crane lubricants into the Moon River.

15The Applicant also raises compliance issues as part of its submissions, arguing that Swift River is failing to meet certain requirements of the ECA or is developing the Project with components that have not been approved by the Director in the terms of the ECA. In particular, the Applicant is concerned that the wastewater treatment system being implemented by Swift River will not result in adequate settling of sediment from wastewater prior to discharge to the Moon River.

16On the basis of these changes to the Project and alleged non-compliance issues with the terms of the ECA, the Applicant submits that the exemption under s. 30(1) of the EBR cannot be relied upon by the Ministry or Swift River since environmentally-significant aspects of the ECA have not been considered in another process of public participation.

17In reply to the submissions of the Director and Swift River, the Applicant provided submissions on the applicability of s. 32 of the EBR in this context. The Applicant submits that the cases relied upon by the Director and Swift River, where the Tribunal applied s. 32, are inapplicable to the existing context given the environmentally-significant changes made to the Project.

18The submissions of the Director and Swift River are entirely consistent with each other. Both parties submit that s. 30(1) of the EBR is not the operative provision that determines the Tribunal’s jurisdiction in this instance. Rather, they submit that the determinative provision is s. 32(2), which establishes an exemption from the requirement to provide notice under s. 22 of the EBR where the decision to issue the ECA is a step towards implementing an undertaking that has been exempted by a regulation under the EAA.

19The Director and Swift River submit that s. 32(2) has two requirements: the Minister must be of the opinion that the issuance of the ECA is a step toward implementing an undertaking and the undertaking must be exempt by regulation under the EAA.

20The Director relies upon the delegated authority granted to Ministry Directors by the Minister to form opinions under the EBR. The Director submits that the first requirement of s. 32(2) is met as the two Ministry Directors responsible for assessing the application for the ECA and then issuing it formed the opinion that the ECA would be a step towards implementing the Project.

21The Director and Swift River also submit that the second requirement of s. 32(2) is met as the Project is exempt from Part II of the EAA by operation of s. 4(4) of O. Reg. 116/01.

22Both the Director and Swift River rely on the Tribunal’s decision in Napash where the Tribunal found that a permit to take water issued in relation to a hydroelectric project with a 20 megawatt capacity was exempt from the requirements of s. 22. The Tribunal in Napash found that the exemption from Part II of the EAA in s. 4(4) of O. Reg. 116/01 was substantially equivalent to an exemption from the EAA overall and held that, as a result of such an exemption, no right to seek leave to appeal existed from the issuance of the permit to take water because of s. 32(2) of the EBR.

23In response to the Applicant’s submission that posting gave rise to a right to seek leave to appeal, both the Director and Swift River submit that neither voluntary posting (as considered in Roehner v. Ontario (Ministry of the Environment and Climate Change), [2016] O.E.R.T.D. No. 60) nor erroneous posting can confer jurisdiction on the Tribunal where jurisdiction is lacking.

24The Director and Swift River request that the Tribunal dismiss the application for leave to appeal pursuant to Rule 119 of the Rules of Practice of the Tribunal.

Findings of the Tribunal

25O. Reg. 116/01, at s. 4(1), subjects the Project to the EAA and then, at s. 4(4) immediately exempts the Project from the EAA where the Environmental Screening Process set out in the Ministry’s “Guide to Environmental Assessment Requirements for Electricity Projects” has been applied. No dispute has been raised that the Guide has been followed here and that the exemption in s. 4(4) applies.

26On the same basis as my colleagues in Napash, at paras. 26-35, I find that the EAA and O. Reg. 116/01, combined with s. 32(2) of the EBR operate to exempt the ECA from the notice requirement of s. 22, that no right exists to seek leave to appeal under s. 38 and that, as a result, the Tribunal has no jurisdiction to consider this appeal.

27Firstly, the Director has been delegated authority under s. 32 of the EBR pursuant to a Delegation of Authority issued under s. 117 of the EBR. The Director came to the opinion that the issuance of the ECA is a step towards the construction of the Project. The Director’s predecessor who had begun consideration of the ECA application came to the same opinion. Considering the specific details of the Project and the sewage works approved in the ECA which are necessary components of the construction and operation phases of the Project, I find that these opinions are supported.

28With regards to changes to the Project of concern to the Applicant, in considering the language of the EAA, O. Reg. 116/01 and s. 32(2) of the EBR, I observe that there may be situations where changes could be a relevant consideration in the application of s. 32(2). I can envision a situation where a project has been screened in accordance with the Guide and then changed to such a degree that there is a live question as to whether s. 4(4) of O. Reg. 116/01 can be relied upon to exempt the project from the EAA and the notice and leave to appeal rights of the EBR through operation of s. 32(2). Such an assessment will have to be carried out on a case-specific basis and supported by evidence filed by an applicant. In this case, I find that despite approval of certain Project components through the ECA, I am not satisfied, based on the limited evidence and submissions filed, that the degree of the change is such that it calls into question whether the screening conducted for the Project can be relied upon to support the exemption.

29Secondly, for the same reasons set out by the Tribunal in Napash, I find that s. 4(4) of O. Reg. 116/01 is, for all intents and purposes, an exemption from the EAA. As a result, I find that this exemption meets the second criterion of s. 32(2).

30The remaining question is whether the Ministry’s erroneous posting of the Instrument Proposal Notice gives rise to the right to seek leave to appeal.

31With the Tribunal’s jurisdiction established and limited by statute, neither the Director nor the Tribunal can broaden that jurisdiction. Whether the Director’s posting is considered voluntary or an error in this case, the fact that the Director made the posting cannot create a sphere of Tribunal jurisdiction that has been specifically removed by statute. Although I am sympathetic to the Applicant’s frustration that it has not been able to engage in an individual EA of the Project or an appeal from the issuance of the ECA for the Project as a result of the exemption from the EAA, by operation of statute the Tribunal’s jurisdiction has been limited.

32The Applicant has also raised numerous concerns about Swift River’s compliance with the terms of the ECA. Compliance issues are matters that must be addressed through other processes. Lack of compliance or concern about potential non-compliance with ECA terms and conditions does not give rise to jurisdiction where none otherwise exists.

33As I have found that s. 32(2) of the EBR operates to exempt the ECA from the s. 22 notice requirement, it is unnecessary to consider whether s. 30 additionally operates to exempt the ECA from the operation of s. 22.

34To conclude, I find that s. 32(2) applies to the issuance of the ECA, and has the effect of exempting the ECA from the application of s. 22. Therefore, notice of the proposal for the ECA was not required to be given under s. 22, and the second requirement for standing under s. 38 of the EBR has not been established. I find that the Tribunal does not have jurisdiction under the EBR to hear the application for leave to appeal. Applying Rule 119, I find that the application for leave to appeal should be dismissed.

DECISION

35The Tribunal dismisses the application for leave to appeal.

Application for Leave to Appeal Dismissed

“Justin Duncan”

JUSTIN DUNCAN VICE-CHAIR

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