On October 24, 2016, POWR MAG (Protectors of Wetlands & River Magnetawan) Inc. and the Township of Perry both withdrew their applications for leave to appeal. The Environmental Review Tribunal (the “Tribunal”) accepted their withdrawals in accordance with Rule 199 of the Tribunal’s Rules of Practice and Practice Directions.
On December 7, 2016, the Tribunal heard the application for leave to appeal of the remaining two applicants – Mike Wilton and the Kearney Watershed Environmental Foundation (KWEF). Given that both the Ministry of the Environment and Climate Change director and the instrument holder agreed that the applicants had standing to apply for leave to appeal, the only issue was whether the applicants met the two-part test for leave to appeal under section 41 of the Environmental Bill of Rights, 1993. In accordance with this test, leave to appeal will only be granted if the applicants can show that: (1) it appears that there is good reason to believe that no reasonable person, having regard to the relevant law and policies, could have made the decision to issue the permit to take water; and (2) it appears that the decision to issue the permit could result in significant harm to the environment.
On the first part of the test, the Tribunal found that neither applicant identified any laws or policies that the director failed to consider or follow in reaching his decision. Furthermore, it observed that the director was able to explain how he considered several relevant laws and policies in reaching his decision, in addition to relying upon the recommendations of a hydrogeologist and surface water specialist. The director also conducted consultations with First Nations and addressed the comments raised by them and by the general public on the Environmental Registry. The Tribunal noted that the Applicants did not challenge this information regarding factors in the director’s decision-making process.
The Tribunal also found that the director specifically considered some of the issues identified by Mr. Wilton in his application and addressed these issues in the terms and conditions of the permit to take water. Mr. Wilton’s concern that the mine should not be located in a headwaters area was found by the Tribunal to be beyond the scope and terms of the permit under application for leave to appeal, as it pertains to the original decision to approve the mine itself.
KWEF’s application was grounded in concerns relating to a breach of the terms of the Environmental Compliance Approval (ECA) that occurred after the Permit to Take Water was issued. KWEF argued that the permit should be suspended until matters relating to this breach of ECA are resolved. The Tribunal noted that, regardless of whether the permit was suspended, the instrument holder would not be able to resume operations until the ECA matter was addressed, and further noted that the Ministry of the Environmental and Climate Change appears to be taking the violation seriously.
Accordingly, the Tribunal found that the applicants did not establish a real evidentiary foundation for finding that no reasonable person would have issued the permit. Given that the applicants did not meet the first branch of the test for leave to appeal, the Tribunal decided that it was not necessary to address the second branch of the test and dismissed the application for leave to appeal by the applicants.