BC: Provincial Environmental Legislation Likely to Apply on Federal Lands

By ,

Recently, British Columbia Environmental Appeal Board rendered a decision to the effect that the District Director of the Greater Vancouver Regional District, provincial and municipal entity also known as Metro Vancouver, has the jurisdiction to validly regulate matters with respect to the environment on federal lands without impeding on federal jurisdiction.

The action was brought before the courts of BC by Harvest Fraser Richmond Organics, which has been located on federal lands and operating an anaerobic composting digester and combined heat and power facility, pursuant to an air emissions permit that expired in June 2015. In more detail, the Facility is in the business of producing compost using commercial green and food waste, which are processed using anaerobic digestion and which ultimately produce biogas.

The litigation arose from certain emission or odours emitted by the Facility and which Metro Vancouver perceives as being in violation of the new permit. In fact, following amendments to Metro Vancouver’s air emission framework, Harvest’s renewed permit counts more stringent requirements and conditions with respect to air emission allowances and waste, as well as more rigorous limits regarding certain air emissions, including odours. Pursuant to the new permit issued after June 2015, Harvest operations became in conflict with certain regulatory provisions and Metro Vancouver eventually required that the Facility cease part of its activities due to permit violations.

As the Facility operates on federal lands, it brought an action before the courts of BC, challenging the constitutionality of Metro Vancouver’s jurisdiction on federal lands and arguing that requirements pursuant to provincial legislation do not apply, or are invalid, with respect to the Facility as it is located on lands owned by the federal government. In more detail, Harvest raised the lack of jurisdiction through two jurisdictional doctrines: the interjurisdictional immunity and the federal paramountcy, which were both rejected by the Board.

In fact, the Board essentially concluded that provincial legislation in this case does not disturb the constitutional balance. According to the Board, as federal matters mainly concentrate on public property, shipping and navigation, rather than environmental management, it only provokes incidental effects.

Therefore, the Board’s decision suggests that companies in similar businesses as Harvest, operating on federal lands, are likely to be subjected to provincial environmental laws unless they meet a high threshold establishing that these laws do not apply to their specific activities.

However, to this day, the Board has only pronounced itself on the matters of jurisdiction and validity of provincial legislation with respect to federal lands. Another hearing with respect to the validity of the permit and the shutting down of part of the Facility’s operations is yet to take place.

More information on this decision is available here.