On November 21, 1995, the BC Supreme Court set aside a septic system
permit granted under the Health Act overturning an earlier
decision of the Environmental Appeal Board (EAB). The parties
to the petition were Albaco Industries, the developer of a proposed
subdivision in the Cowichan Valley, and its neighbours, Mark and
Cynara de Goutiere. At issue was the permit for a septic system
which Albaco intended to build close to the boundary between their
properties and the impact it would have on a well which the de
Goutieres planned to drill close to the same boundary.
The de Goutieres' challenge was supported by a coalition of local residents, the Koksilah River Protection Society, who were concerned with the impact the septic system would have on the salmon-bearing river and their well-water. Recognizing that the goal of both the coalition and the de Goutieres was to protect the river, West Coast's Environmental Dispute Resolution Fund provided funding to the Koksilah River Protection Society to assist them in mounting their challenge.
The permit at issue in this case was granted in clear disregard for the concerns raised by Cynara de Goutiere. Ms. de Goutiere had advised the Environmental Health Officer (EHO) in charge of issuing the permit on several occasions that she and her father, along with community members, were concerned about the impact of the proposed septic system on the Koksilah River and the drinking water on their property. She wanted more studies to be undertaken to determine the potential impacts of the septic system on the River and her family's property. On November 29, 1994, Ms. de Goutiere sent a letter advising the EHO that the best place to drill a well on their property was next to the boundary. The letter also stated that if they had no response from him by December 2, 1994, they would begin to drill the well. The EHO did not respond to the letter and granted the permit on December 6, 1994, the day before drilling began on the well. The permit was posted on the Albaco property two days after it was granted - the same day the de Goutieres found water.
The de Goutieres appealed the issuance of the permit to the EAB on the basis that it did not meet the requirements regarding proximity of septic systems to wells. In particular, the Health Act and Regulations require that a septic field be located at least 30.5 meters from "a source of domestic water" (such as a well). In this case, the proposed septic system was much closer to the well site than the 30.5 meter minimum. The EAB dismissed the concerns raised by the de Goutieres on the basis that the requirement had been met because, at the time the permit was granted, they had not yet drilled the well.
Madam Justice Quijano held that the Court had jurisdiction to review the EAB's decision on the question of whether the EHO could have been satisfied that the septic system would not contravene the Health Act and Regulations. On questions such as this one which do not require the Board's special expertise, she held that the Court may overturn the Board's decision if it is incorrect, even if it is not "patently unreasonable". She also determined that the EHO is required to consider whether the ultimate use of the system will contravene the Act or Regulations. She then concluded that "the decision by the Board that the permit was validly issued was not only incorrect but patently unreasonable".
This decision confirms that the Health Act and Regulations should be interpreted in a manner that gives real meaning to the concept of procedural fairness. Specifically, this decision requires that decision-makers take into account the rights and expressed intentions of adjacent property owners in deciding whether to issue permits.
- Nancy Morgan, Board Member, WCEL
The EJLB Foundation of Montreal announced approval last week of a grant to support West Coast's work on legal tools to protect urban streams. Lawyer Linda Nowlan said she was "thrilled" with the decision.
"Right now, we're basically out talking with people about what works and what doesn't," she said. The next steps are a discussion paper, a workshop, and then a manual on legal tools to protect urban streams. Funding for the project has also been sought from the Vancouver Foundation, the VanCity Community Fund, Action 21 and the Urban Salmon Habitat Program.
Please contact Linda Nowlan for more details.
The CCME's harmonization initiative went from 'pause' to 'fast forward' in late October as the Council of Ministers of the Environment decided in its Whitehorse meeting to bypass the contentious schedule on environmental assessment and move ahead with the proposed framework agreement and the other ten schedules.
The documents have now been released for public comment, and there will be a national consultation workshop on the proposals in Toronto on January 21 and 22.
The most controversial aspect of the proposal is to create a new concept of 'national' environmental legal issues in which the federal government would be unable to act without the consent of all of the provinces.
For more information, please contact Bill Andrews.
New clean gas regulations were announced this week in Vancouver by Environment Minister Moe Sihota. The regulations, made under the Waste Management Act, will change the vapour pressure, and lower the sulphur and benzene content of gas sold in the province. The changes will be phased in from 1996 to 2000. Significant health and environmental benefits are expected - the government says the new standards will reduce toxic air emissions, smog formation and particulate emissions.
The new regulations are part of a larger package of initiatives designed to improve air quality. Improved controls on vehicle emissions are also part of the package, and will be announced soon. But one thing that WCELA has been insisting on is still missing from the government's clean air policies - concrete measures to control BC's transportation related carbon dioxide emissions which increased more than 14% between 1990 and 1994. For truly clean air, carbon dioxide emissions must be regulated.
Thursday, December 14th, 4 to 7 pm
West Coast Environmental Law, 1001 - 207 West Hastings, Vancouver
Celebrate the year-end with us at our open house!
A broad range of groups and individuals intervened last Friday in the inquiry by BC Information Commission David Flaherty into the government's refusal to consider a request by the Western Canada Wilderness Committee for a waiver of the commercial price the environment ministry charges for digital maps used in land use planning.
WCWC made several requests under the Freedom of Information and Protection of Privacy Act in late 1994 and early 1995 for copies of TRIM maps of the Clayoquot Sound area. The ministry refused to respond under the Act, saying that the Act did not apply because the TRIM maps are available for purchase by the public. The ministry's price tag for the requested maps is more than $25,000 (plus taxes and shipping). In September, the Commissioner ruled that the Act does apply and ordered the inquiry to continue.
Written arguments and evidence were also submitted last Friday
by the ministry and by West Coast's Bill Andrews on behalf of
WCWC. Each side will file a response by December 1, and a decision
is expected early in the new year.
Ian Parfitt, WCWC's mapping coordinator, noted that WCWC is willing to pay for the cost of the tape or disks and that it would be willing to receive the maps subject to the restrictions in the standard licence agreement against redistribution. But, he stressed, WCWC needs the information for a legitimate public purpose and that it simply cannot afford the commercial price.
For more information, please contact the West Coast office.
"The majority of public policy land use issues now utilize
computer based Geographic Information Systems (GIS) as the main
data analysis and presentation tool/methodology. This TRIM digital
data is intended to be the reference base map and starting point
of the GIS database. The traditional hard-copy printed maps are
not directly useable or 'importable' into such GISs."
- Larry Marshik, Professional Land Surveyor
"The BC Coalition for Information Access is a coalition of
community organizations who...believe strongly in the idea of
an electronic highway available to all British Columbians, regardless
of barriers such as cost, education, skills, abilities, or location.
People who are concerned about conservation must use digital
maps in order to participate constructively in...multi-sector
public consultation processes. However, the current price structure
for BC government digital maps is too expensive for non-commercial
organizations to afford."
- BC Coalition for Information Access
"Having been in the position on numerous occasions ourselves
of needing access to expensive data to support our participation
in public land-use decisions, we support the request by the WCWC
for an appropriate fee schedule or fee-waiver system for non-profit
non-government organizations in need of such information."
- Cortes Island Forest Committee
"Why are we being denied public information that will help us ensure that future land-use decisions are well informed? This point is even more compelling when you consider the fact that forest companies receive some of this data for free in exchange for updated inventories, and that any data purchased by them can be written off as a business expense." - Ecotrust Canada
"Libraries are the traditional and logical depositories that provide storage and access to information resources. In the current tight fiscal situation, this digital data is well beyond the budgets of educational institutions and libraries. However, access to such information is of vital importance in order that we can fulfill our mandate to train and educate our students..." - Poh Chan, Map Librarian
"In this era of shared decision-making, it is fully recognized in any land use planning forum, that there is no balance unless there is environmental representation. However, there currently exists no level playing field. The Sierra Club and other environmental organizations are effectively denied access to digital mapping information that is crucial to the land use debate because of the prohibitively high cost." - Sierra Club of Western Canada
"We believe that this case is extremely important because
the current system denies affordable public access to a wide spectrum
of information about our publicly owned forests." - Forest
Caucus of the BC Environmental Network
"The comments of the Honourable Colin Gabelmann, then the Attorney General, upon second reading of the bill (now the Act) are especially relevant: 'What this bill seeks to do is empower citizens so that they can fully exercise their democratic rights. The reality is that if government has information which is denied to citizens, it becomes extremely difficult to make informed judgments about government policy or to endeavour to influence public policy.'" - BC Civil Liberties Association
"While we do not think that all government information ought to be passed on free of charge, we do believe that there are a variety of methods by which the government could set a fee structure for the costs of the production of the information, which would be less financially harmful to the government, while guaranteeing that the right of access was in fact a meaningful one." - BC Division of the Canadian Union of Public Employees
"The stated purpose of the Act ... is to give the public a right of access to records, subject to specified limited exceptions. If cost removes information from access by the public, there is no access and no adherence to the spirit and purpose of the Act." - BC Freedom of Information and Privacy Association
WCELRF, 1001 207 West Hastings, Vancouver, BC, V6B 1H7, Canada.
Phone (604) 6847378; fax (604) 6841312; email: wcelrf@unixg.ubc.ca
home page: http://freenet.vancouver.bc.ca/local/wcel/
Printed on 100% recycled paper (not secondarily bleached or de-inked).
WCELRF Newsletter (ISSN #0715-4275), copyright 1995, is
published by the West Coast Environmental Law Research Foundation
and represents the work of the West Coast Environmental Law Groups.
West Coast Environmental Law Research Foundation (WCELRF) does
research and education and maintains an environmental law library.
West Coast Environmental Law Association (WCELA) provides legal
representation and promotes law reform. The West Coast Environmental
Dispute Resolution Fund Society (WCEDRFS) provides assistance
and funding to citizens to help solve environmental problems in
their communities. The mission of the West Coast Environmental
Law groups is to provide legal services to protect the environment
and to foster public participation in environmental decision-making.
We are grateful to the Law Foundation of British Columbia for
core funding of the West Coast Environmental Law groups. Donations
to West Coast Environmental Law Research Foundation and West Coast
Environmental Dispute Resolution Fund Society are tax creditable.
This issue was produced by Bill Andrews, Morgan Ashbridge, Chris Heald, Ann Hillyer, Patricia Houlihan, Catherine Ludgate, Alexandra Melnyk, and Linda Nowlan.