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Unedited **
Indexed as:
Saskatchewan (Environmental Assessment Act, Minister) v.
Kelvington Super Swine Inc.
Between
Lorne Scott, as Minister responsible for The Environmental
Assessment Act, S.S. 1979-80, c. E-10.1., applicant, and
Kelvington Super Swine Inc. and Big Sky
Pork Inc., respondents
HL Pork Producers Ltd., intervenor
[1997] S.J. No. 686
Q.B.G. No. 3001 of 1997 J.C.R.
Saskatchewan Court of Queen's Bench
Judicial Centre of Regina
Barclay J.
November 3, 1997.
(11 pp.)
Pollution control — Environmental assessments or
impact studies — Enforcement — Injunctions.
Application for injunction. The Minister
sought to enjoin Kelvington Super Swine from undertaking any construction in
respect of buildings needed for a proposed intensive livestock operation. The
Minister had previously approved the livestock operation and had advised
Kelvington that such an operation would not be a development within the
meaning of the Environmental Assessment Act that would require an
environmental assessment. A number of concerned citizens had
subsequently moved for a declaration that the proposed operation was subject
to the assessment process and for mandamus against the Minister to compel an
assessment. A judge had granted a declaration that the livestock
operation was a development. That order had been appealed but the
appeal had not yet been heard. The issue was whether the Minister
was entitled to injunctive relief to enjoin the initial phase of
construction such as the pouring of concrete foundations of certain
buildings.
HELD: Application denied. Kelvington
had relied upon the approval of the operation and the advice by government
officials in making the decision to invest money in the planned project. The
previous judicial order related only to the livestock operation and not to
the actual construction of buildings. In the face of that order,
Kelvington had given its undertaking not to commence the operation until the
appeal was heard. An injunction would cause an injustice to
Kelvington and would not result in any countervailing benefit to the public.
Statutes, Regulations and Rules Cited:
Environmental Assessment Act, ss. 2(d), 18, 21, 23.
Counsel:
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Barry J. Hornsberger, Q.C., for the applicant.
Robert H. McKercher, Q.C. and Shaunt Parthev, for the respondents.
Dr. A. John Beke, Q.C. and James L. Nugent, for the intervenor.
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¶ 1 BARCLAY J.:— This is an
application by Lorne Scott, as Minister (the "Minister")
responsible for The Environmental Assessment Act, S.S. 1979-80, c. E-10.1
(the "Act"), for an order pursuant to s. 18 of the Act enjoining
the respondents or anyone acting on their behalf from undertaking any
physical act with respect to any building, engineering, construction,
excavating or other operations in, on or over the lands, or to make any
material change in the use or intensity of the use of the lands, more
particularly described as the SE 1/4 13-36-12-W2nd (the "Clark
Property") and the NW 1/4 18-36-11-W2nd (the "NBC Resources
Property").
¶ 2 The injunction is sought on the
basis that Sirois J. has ruled that the intensive livestock operation
proposed by Kelvington Super Swine Inc. ("Kelvington") on the
Clark Property and the NBC Resources Property has been ruled to be a
"development" pursuant to the Act. The Minister submits
that the activities sought to be enjoined are also a "development"
within the Act, and no ministerial approval has been granted to proceed with
the construction.
¶ 3 The Minister submits as an
alternative ground that even if the construction activities are not a
"development" within the meaning of the Act, the respondents are
nonetheless prohibited from proceeding with any construction activity in
light of the order of Sirois J.
Procedural History
¶ 4 The ruling of Sirois J. resulted
from a notice of motion dated the 4th of September, 1997, wherein a number
of individuals holding themselves out as concerned citizens ("Irving et
al.") moved for a declaration pursuant to Part 52 of The Queen's Bench
Rules that the intensive livestock operation at Kelvington, Saskatchewan
proposed by Kelvington, was a "development" pursuant to s. 2(d) of
the Act, and therefore required an environmental assessment pursuant to the
Act. An order for mandamus was also sought against the Minister
of Agriculture and Food, as well as the Minister responsible for
Saskatchewan Environment and Resource Management ("SERM"), the
same Minister who is now seeking this injunction, to compel an environmental
impact assessment.
¶ 5 The motion was heard in chambers
by Sirois J. on October 7, 1997, who ruled orally that the said project was
a "development". The learned chambers judge ruled that
the "project" of an intensive hog operation as contemplated by
Kelvington was a "development" pursuant to The Environmental
Assessment Act. There was no ruling that the activity of
constructing a barn and ancillary facilities was a "development"
pursuant to the said Act.
¶ 6 The question of whether mandamus
was available against the Minister was adjourned sine die.
¶ 7 The order of Sirois J. has now
been appealed by Kelvington to the Court of Appeal and is presently
scheduled to be heard on an expedited basis on November 19, 1997.
Background
¶ 8 The intensive livestock operation
which was the subject of the motion before Sirois J. is known as a
"finishing facility" and is located on two quarter sections of
land, the Clark Property and the NBC Resources Property, approximately five
kilometres southwest of Kelvington, Saskatchewan. The land is now
owned by Big Sky Pork Inc. ("Big Sky").
¶ 9 Each piece of land houses a
feeder barn (also known as a finishing barn) and is the third site of a
project known as Big Sky No. 2, being a farrow to finish hog operation
managed by Big Sky. The first site is a breeding site south of
Lintlaw, Saskatchewan, and the second site is a nursery site immediately
north of Lintlaw. Although the motion before Sirois J. only dealt
with the finishing facility in Kelvington, each site is an integral part of
the entire Big Sky No. 2 project and the viability of the entire project is
threatened if any one of the sites is not completed as scheduled.
¶ 10 After years of planning,
gathering technical information and consultation with property owners and
government agencies, an application was made by Kelvington to the Department
of Agriculture and Food on March 17, 1997, to obtain approval to operate an
intensive livestock operation pursuant to the intensive livestock provisions
of The Agricultural Operations Act, S.S. 1995, c. A-12.1, and Reg. 1 of The
Agricultural Operations Regulations, as am. by Sask. Reg. 34/97.
¶ 11 Kelvington eventually received
approval from the government of its waste management and storage plan for an
intensive livestock operation from the Minister of Agriculture and Food and
was also granted approval to operate an intensive livestock operation on the
Clark Property and on the NBC Resources Property on July 14, 1997.
¶ 12 SERM and the Department of
Agriculture and Food confirmed approval of the project by way of letter
dated July 16, 1997, from Larry Lechner of the Environmental Assessment
Branch of SERM, and Donn Farrer of Saskatchewan Agriculture and Food. This
letter reads in part:
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Saskatchewan Environment and Resource Management has provided the
opinion that an Environmental Impact Statement is not required for
these projects ....
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These decisions reflect one of the most comprehensive review
processes available for any intensive livestock operation .... The
conditions are based on comments and observations received from the
referral agencies, particularly the Environmental Assessment Branch
....
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¶ 13 Throughout the entire approval
process a number of individuals, holding themselves out as members of the
Saskatchewan Environmental Society, carried on correspondence and meetings
with members of government, including the Minister, objecting to
Kelvington's project and seeking an environmental assessment.
¶ 14 The respondents, relying on the
approvals granted by the Department of Agriculture and the position of SERM
and the Minister, proceeded to invest and commit nearly $8 million to the
three sites of the Big Sky No. 2 project.
¶ 15 The respondents have continued
with construction activity since Sirois J.'s order. It is this
activity the Minister seeks to prevent.
Discussion
¶ 16 The respondents do not dispute
the allegations of the Minister that they wish to complete at least the
initial phases of construction, which includes the pouring of concrete for
the foundation of the barns and storage facilities, before the winter
freeze. The respondents, however, have given an undertaking not
to engage in the project of an intensive hog operation or have any animals
on site which could in any way affect the environment until this
environmental issue is resolved.
¶ 17 The respondents argue that the
order of Sirois J. related to the issue of whether the intensive livestock
operation was a "development" pursuant to the Act. There
was no specific ruling on whether any activities or construction on the said
lands constituted a "development" requiring an environmental
assessment.
¶ 18 The respondents contend they
have been put in this position by the actions of the Minister and his
Department because of assurances given by the Minister and his Department
that the intensive livestock operation was not a development in need of an
environmental assessment. The respondents made financial
commitments in reliance on these assurances. Any delay in the
construction will cost the respondents hundreds of thousands of dollars and
will further jeopardize the viability of the entire project, even if it is
ultimately permitted to proceed.
¶ 19 The respondents further submit
that given their undertaking not to proceed with the intensive hog project
until such time as the environmental impact assessment issue is resolved,
the Minister is misusing his powers in circumstances where it causes great
injustice to the respondents with no resultant benefit to the public. The
respondents therefore submit that even if the Minister is correct as to the
effect of Sirois J.'s order, the injunction ought not be granted on
equitable grounds.
¶ 20 The Minister views the
respondents' construction activities as a violation of the Act. The
Minister therefore seeks an order, pursuant to s. 18 of the Act, enjoining
such action on the basis that no ministerial approval has been issued with
respect to the project.
¶ 21 Section 18 of the Act confers
discretionary authority on the Court to issue an order enjoining any person
from proceeding with a development contrary to the Act. Section 18 reads as
follows:
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18.
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The minister may apply to Her Majesty's Court of Queen's Bench
for Saskatchewan for an order enjoining any person from proceeding
with a development contrary to this Act or to the terms and
conditions of any ministerial approval, and the court may, make an
order on any terms and conditions that it considers appropriate.
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¶ 22 This section was judicially
interpreted by our Court in the decision of Saskatchewan (Minister of the
Environment) v. Redberry Development Corp. et al. (1987), 58 Sask. R. 134
(Q.B.), affd [1992] 2 W.W.R. 544 (Sask. C.A.). The conclusion drawn by the
Saskatchewan Court of Queen's Bench with which the Court of Appeal found no
error may be summarized as follows.
¶ 23 In seeking relief under s. 18 of
the Act, the applicant is in a position akin to that of the Attorney General
seeking to uphold the law of the land. The dispute engendered by
a s. 18 application is not a dispute between individuals but rather
"... one between the public and a small section of the public refusing
to abide by the law of the land."
¶ 24 That being so, the discretion
conferred on this Court by s. 18 is different from that which would apply
where injunctive relief is sought as a private law remedy. That
is so because in situations of this type the court is required to weigh the
public interest and rarely will it conclude that the public interest in
having the law obeyed is outweighed by the hardship an injunction would
impose on the defendant.
¶ 25 Once the Minister has determined
that an application under s. 18 is the most appropriate method of enforcing
the statute and a breach of the Act has been established, the courts will be
very reluctant to refuse him the relief he seeks on discretionary grounds.
¶ 26 The alternate remedies provided
elsewhere in the Act, such as prosecution (s. 21) and civil action for
damages (s. 23), need not be exhausted before the relief provided for by s.
18 can be sought.
¶ 27 In an application of this type
it is not necessary that the applicant be required to give an undertaking as
to damages.
¶ 28 It is significant that the
Saskatchewan Court of Appeal in upholding the decision in Redberry dealt
with the issue of equitable estoppel which was not raised in the court
below. Sherstobitoff J.A., writing for the majority recognized
the doctrine of equitable estoppel in certain situations. He
adopted, at p. 546, the following passage from Laker Airways Ltd. v.
Department of Trade, [1977] 2 All E.R. 182 (C.A.) at p. 194:
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... The underlying principle is that the Crown cannot be estopped
from exercising its powers, whether given in a statute or by common
law, when it is doing so in the proper exercise of its duty to act
for the public good, even though this may work some injustice or
unfairness to a private individual .... It [the Crown]
can, however, be estopped when it is not properly exercising its
powers, but is misusing them; and it does misuse them if it
exercises them in circumstances which work injustice or unfairness
to the individual without any countervailing benefit for the public
.... [Emphasis added]
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¶ 29 I am also comforted by the
comments of Lord Wilberforce in Associated Minerals Consolidated Ltd. and
another v. Wyong Shire Council, [1975] A.C. 538 at 560:
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Secondly, however, it is
necessary to take into account that the plaintiff is acting on
behalf of the public and in the public interest. It is
necessary therefore to base the granting or denial of equitable
relief on broader grounds than would normally apply as between
private citizens. As was said in Attorney-General and
County Council of Down v. Newry No. 1 Rural District Council [1933]
N.I. 50, 71, the courts are somewhat slower to deny the
Attorney-General, as the custodian of the public rights, relief on
this ground (sc. delay) than in the case of an individual. The
injury to a public interest by denial of relief, its extent and
degree of irremediability, must be weighed against any loss which
the defendant may have sustained by the plaintiff standing by while
the defendant incurs expense or, if such is the case, misleading the
defendant into supposing that its activities were or would be
permitted: see Lindsay Petroleum Co. v. Hurd (1874) L.R.
5 P.C. 221, 240; and Brickworks Ltd. v. Warringah Shire Council
(1963) 108 C.L.R. 568.
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Conclusion
¶ 30 In the case at bar the Minister
and his Department approved the intensive livestock operation and further
specifically advised the respondents that the project was not a
"development" within the meaning of the Act and therefore not in
need of an environmental impact assessment. This was after one of "the
most comprehensive review processes available for an livestock
operation". It was in reliance on these assurances and the
Minister's actions in other similar situations where no environmental
assessment was sought for an intensive livestock operation that the
respondents purchased the said lands, expended and committed millions of
dollars and made commitments which require them to finish construction
during the winter months of 1997.
¶ 31 Furthermore, after Sirois J.
declared that the project was a "development" within the meaning
of the Act, the respondents gave their undertaking not to commence the
intensive livestock operation until these issues were resolved.
¶ 32 I am therefore of the opinion
that the injunction should not issue as the Minister in the exercise of his
power has caused an injustice to the respondents without any countervailing
benefit to the public. In my view there is an element of
unfairness to the respondents when the Minister, after advising the
respondents that there was no need for an environmental assessment, applies
for an injunction to stop construction before the winter freeze in the face
of an undertaking by the respondents not to engage in any activities which
could in any way affect the environment until this matter is resolved.
¶ 33 Therefore, in the exercise of my
discretion I am dismissing the application for an injunction. The
respondents shall have their costs.
BARCLAY J.
QL Update: 971208
qp/d/alp/DRS
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Indexed
as:
Irving v. Kelvington Super Swine Inc.
Between
Kelvington Super Swine Inc., appellant
(respondent), and
Kimberly Irving, Sandra Lynn Lowndes, Susan Lowndes, Geraldine
Perron, Ivan Lindgren, Marlene Lindgren, Lloyd Strome, Karen
Strome, Neil Irving, Leslie Mitton, Brian Lund, Dianne Lund,
Terry Horan, Jerry Horan, Rodger Doyle, Marilyn Doyle,
Evangelene Lechman, Arnie Lund, Evelyn Lund, Paul Brassard,
Daniel McNamee, Peter Patrick, Yvonne Patrick, Leithe Perron,
Carole Lowndes, Ivan Godhe, Patricia Godhe, Marion Fletcher,
Leo Kurtenbach, Helen Kurtenbach, Cyril Hale, Louise Hale,
Colleen Bond, Marguerite Sloan, Orlynn Lowndes and Frederick
Lowndes, respondents (applicants), and
Yellow Quill First Nation, intervenor (intervenor), and
Eric Upshall, Minister of Agriculture and Food for the
Province of Saskatchewan, Lorne Scott, Minister of Environment
and Resource Management for the Province of Saskatchewan,
non-party (respondent)
[1997] S.J. No. 739
Docket No. 2853
Saskatchewan Court of Appeal
Regina, Saskatchewan
Vancise, Lane and Jackson JJ.A.
Heard: November 19, 1997.
Oral judgment: November 19, 1997. Written reasons: December
9, 1997.
(13 pp.)
On appeal from Q.B. 1753/97, J.C. of
Saskatoon.
Counsel:
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R.H.
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McKercher, Q.C. and Shaunt Parthev, for the
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appellant.
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R.H.
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Goodman & D.J. Smith, for the respondents.
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W.J.
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Wardell, Q.C. and D.L. Driedger, for the
intervenor,
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Yellow Quill.
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A.J.
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Beke, Q.C. and J.L. Nugent, for the intervenor,
H.L.
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Pork Producers Ltd.
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B.J.
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Hornsberger, Q.C. (watching brief), for the
Minister
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of Agriculture and the Minister of Environment.
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The judgment of the Court was
delivered by
VANCISE J.A. (orally):—
¶ 1 Kimberly Irving, among others,
(the respondents) applied to the Court of Queen's Bench by notice of motion
for a declaration that the intensive livestock operation being constructed
by Kelvington Super Swine Inc. (KSS) at Kelvington
is a development pursuant to s. 2(d) of The Environmental Assessment Act. [See
Note 1 below] The respondents also requested an order for
mandamus compelling KSS to conduct an environmental assessment of the
development as required by s. 9 of The Environmental Assessment Act. Yellow
Quill First Nation (Yellow Quill) applied for intervenor status in support
of the position of the respondents.
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Note 1:
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S.S. 1979-80, c. E-10.1.
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¶ 2 On the return date of the notice
of motion KSS raised the following preliminary issues: (1)
whether Yellow Quill should be granted intervenor status; (2) whether the
affidavits filed on behalf of the respondents complied with Rule 319 of the
Rules of Court; and, (3) whether the respondents and Yellow Quill had
standing to privately enforce a public right.
¶ 3 On October 7, 1997 when the
motion was argued, the chambers judge, without giving reasons, granted
Yellow Quill intervenor status and standing and ruled the affidavit evidence
was admissible. He also found, without giving reasons, that the
project being constructed by KSS was a "development" as defined in
The Environmental Assessment Act. The application for mandamus was adjourned
sine die.
¶ 4 This matter was heard by way of
an expedited appeal because of the urgency of resolving whether the
appellant was required to conduct an environmental impact assessment having
particular regard for the length of the construction season and financial
commitments made by the appellants as well as the necessity to establish the
applicability of statutory requirements to similar projects. We were able to
identify two fundamental issues, the decision of which permitted us to
determine the rights of the parties to this appeal and to render an oral
judgment.
Notice of Appeal
¶ 5 KSS appeals the decision of the
chambers judge on essentially the following grounds:
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1.
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The chambers judge erred in law by admitting affidavit material
filed by the respondents on an application for a final order by
reason that the matters deposed to by the respondents are based
primarily on information and belief and contravene Rule 319 of the
Court of Queen's Bench Rules and further that the matters deposed to
are based on conjecture, speculation and hearsay with no basis in
fact;
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2.
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The chambers judge erred in law in granting Yellow Quill standing
for the private enforcement of a public right; and,
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3.
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The chambers judge erred in finding that the KSS project was a
development as defined in s. 2(d) of The Environmental Assessment
Act.
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Facts
¶ 6 An examination of the factums
filed on behalf of the appellant KSS, the respondents and the intervenor
reveals no disagreement on the essential underlying facts. KSS is
an incorporated community group made up of farmers in the Kelvington
area who propose to build two intensive hog operations adjacent to one
another four miles south of Kelvington.
The facilities will be located on two quarter sections of land,
specifically the SE1/4 13-36-12 W2nd (the Clark property) and NW 1/418-36-11
W2nd (the NBC Resources property). The project consists of two
feeder barns (also known as finishing barns) and is the third site of a
project known as Big Sky No. 2, a farrow to hog finishing operation to be
managed by Big Sky Pork. All the details of the hog operation are
not important for the purposes of this application. It is
sufficient for our purposes to note that the respondents depose that the
intensive hog operation will contain 8,000 hogs in each barn at any one
time, and that the operation will turn over hogs three times a year (a total
of approximately 56,000 hogs) and will produce up to 14.7 million
gallons of liquid manure per year. The liquid manure will be
stored in manure lagoons which contain pits dug into the ground, earthen
dikes and a liner consisting of remoulded and compacted glacial till. The
liquid manure will be used for fertilizer on lands in the immediate vicinity
of the project. The respondents depose they are concerned about
potential changes to the environment likely to be brought on by this
intensive hog operation and in particular they point to the potential danger
to the ground water, including streams which feed ultimately into Nut Lake,
some 12 miles from the site.
¶ 7 On March 17, 1997 KSS applied to
the Department of Agriculture for approvals to operate an intensive hog
operation on the Clark and NBC properties pursuant to the provisions of The
Agricultural Operations Act [See Note 2 below] and its Regulations. [See
Note 3 below] That application had been preceded by nearly two
years of preparation, including extensive studies of the running water
aquifers and local geology, during which time KSS consulted with the
Department of Agriculture and other interested departments of government as
well as with some of the respondents. On July 14, 1997, KSS
received approval from the Minister of Agriculture of its waste management
and waste storage plan for an intensive livestock operation. Those
approvals contain a number of restrictions to ensure the environment is
protected.
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Note 2:
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S.S. 1995, c. A-12.1.
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Note 3: R.S.S. c. A-12.1, Reg. 1, Sask. Gaz.
1996, 385, as amended by Sask. Reg. 34/97.
¶ 8 Notwithstanding the studies
undertaken prior to receiving those approvals, the respondents contend KSS
should be required to conduct an environmental assessment of the project
pursuant to the provisions of s. 9 of The Environmental Assessment Act
because the project or operation is a "development" under the Act.
Preliminary Matters
¶ 9 On the return date of the appeal
HL Pork Producers Ltd. filed a notice of motion requesting it be granted
intervenor status because of its involvement in similar projects in the
province. It cites as one of the reasons for requesting
intervenor status, the uncertainty surrounding whether or not it is
necessary for an environmental impact assessment to be conducted as well as
obtaining permits from the Department of Agriculture and Food for projects
of this kind. That application was deferred to permit the Court
to deal with the substance of the matters raised by the parties already
before the Court.
¶ 10 In our opinion there are two
fundamental issues on this appeal: 1. the admissibility of the
affidavits filed by the respondents having regard to the requirements of
both Rule 319 and whether or not the material filed was hearsay; and, 2.
whether the project proposed by KSS is a development as defined in s. 2(d)
of The Environmental Assessment Act.
¶ 11 It may or may not be necessary
to deal with the issues of status and whether the respondents and Yellow
Quill have the right to privately enforce a public right depending upon the
outcome of the decision on those two issues.
Analysis
¶ 12 The appellant contends the
remedy sought by the respondents, whether for the private law remedy of a
declaration or the public law remedy of mandamus finally disposes of the
rights of the parties, and is therefore a final order. No one
seriously questioned that submission. The application was for a
final order and Rule 319 of the Queen's Bench Rules is, therefore, engaged. That
rule states:
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*319. Affidavits shall be confined to such facts as
the witness is able of his own knowledge to prove, except on
interlocutory motions, on which statements as to his belief, with
the grounds thereof, may under special circumstances be admitted. The
costs of every affidavit which shall unnecessarily set forth matters
of hearsay or argumentative matter, or copies of or extracts from
documents, shall be paid by the party filing the same; and where
affidavits upon information and belief are filed which do not
adequately disclose the grounds of such information and belief the
court may direct that the costs of such affidavits shall be borne by
the solicitor filing the same.
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The appellant contends the rule is quite clear in limiting affidavit
evidence to such "facts, as the witness is able of his own knowledge to
prove." Affidavits which contain hearsay are in breach of
the Rule and those portions may not be considered. In support of
that contention the appellant cites and relies on: Kennibar
Resources Ltd. v. Saskatchewan (Minister of Energy and Mines) et al., [See
Note 4 below] Petrich v. Petrich, [See Note 5 below] and Mitchell v.
Intercontinental Packers Ltd. et al. [See Note 6 below]. It is
clear from an examination of the affidavits filed on behalf of the
respondents that the overwhelming majority of the facts deposed to in those
affidavits are based on information and belief or unsubstantiated,
speculative, conjectural and irrelevant material. Given our
decision in this matter on the substantive issue it is not necessary for us
to consider these affidavits in their entirety and to rule on the
admissibility of the evidence contained therein. Even if we
permit the use of the affidavits, taken at their highest probative value
they do not prove on the requisite standard of proof that the KSS project is
a development.
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Note 4:
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(1990), 88 Sask. R. 35.
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Note 5:
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[1997] S.J. No. 470 (Q.L.).
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Note 6:
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(1996), 146 Sask. R. 10.
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¶ 13 Given our decision on the first
issue, the principal issue before us is whether the project proposed by KSS
is a development as defined within s. 2(d) of The Environmental Assessment
Act. Development is a defined term under that Act. It
is defined as follows:
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(d)
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"development" means any project, operation or activity
or any alteration or expansion of any project, operation or activity
which is likely to: (i) have an affect on any unique,
rare or endangered feature of the environment;
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(ii)
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substantially utilize any provincial resource and in so doing
pre-empt the use, or potential use, of that resource for any other
purpose;
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(iii)
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cause the emission of any pollutants or create by-products,
residual or waste products which require handling and disposal in a
manner that is not regulated by any other Act or regulation;
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(iv)
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cause widespread public concern because of potential
environmental changes;
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(v)
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involve a new technology that is concerned with resource
utilization and that may induce significant environmental change; or
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(vi)
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have a significant impact on the environment or necessitate a
further development which is likely to have a significant impact on
the environment.
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¶ 14 When one examines the affidavit
evidence and in particular the evidence filed with the Minister of
Agriculture under The Agricultural Operations Act as well as the material
filed with Saskatchewan Environment and Resource Management, the statutory
requirements necessary to constitute this project a development have not
been satisfied. It is noteworthy that the Department of
Agriculture and Saskatchewan Environment and Resource Management were both
of the opinion the KSS project was not a development as defined in s. 2(d)
by reason that it did not come within any of the criteria listed in s. 2(d)
of the Act. The Environmental Assessment Branch of the Department
of the Environment examined each of the criteria set forth in s. 2(d) and
was satisfied that the project was not a development. The opinion
of the Environmental Assessment Branch was made after it had conducted a
review of the environmental concerns specific to the project and matters
which are valid public concerns about potential livestock operation
projects. In the opinion of the Environmental Assessment Branch
no significant impacts on the environment will occur or if they do,
mitigation measures will be implemented to reduce or eliminate the potential
for significant environmental impacts.
¶ 15 An examination of the material
filed indicates that the criteria for the project to be a
development have not been met. An examination of each of the
criteria set forth in s. 2(d) which we set out in full indicates:
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i)
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Have an effect on any unique, rare or endangered feature of the
environment. There is no evidence of any unique, rare or
endangered feature of the environment which may be affected by the
project.
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ii)
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Substantially utilize any provincial resource and in so doing
preempt the use, or potential use, of that resource for any other
purpose. There is evidence that the proposal will require
the use of a large quantity of water on an ongoing basis, but Sask.
Water has expressed no concern with respect to the water usage and
therefore one can conclude that no preempted use of this or other
provincial resources was indicated.
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iii)
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Cause the emission of any pollutants or create by-products,
residual or waste products which require handling and disposal in a
manner that is not regulated by any other Act or regulation. Liquid
manure is a possible pollutant from this project. The
storage and use of liquid manure as fertilizer is regulated by The
Agricultural Operations Act which is administered by the Department
of Agriculture. That department examined the project and
gave its approval. It is unlikely, therefore, that there
will be unregulated material being emitted from the site.
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iv)
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Cause widespread public concern because of potential
environmental changes. There was an indication of public
concern related in part at least to the potential effects on the
environment of the proposal. A great deal of information
is contained in the affidavits and the supporting material
concerning the number of public meetings which were held and the
number of petitions which were circulated and signed by people in
the area of the project. It is fair to conclude that
while there has been some public concern expressed about the
possible environmental effect of these proposals in the Kelvington
area by some groups, that concern is not wide-spread. From
the material we examined it is doubtful the number of people
expressing concern may not even represent a majority of the
residents in the area of the project. While there is
local interest in the proposal and local concern about possible
environmental effects, those concerns are not wide-spread.
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v)
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Involve a new technology that is concerned with resource
utilization and that may induce significant environmental change. There
was no evidence that the technology in the proposed project involved
resource utilization. The technology proposed is not new
and appears reliable. Several similar operations have
been in place for many years.
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vi)
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Have a significant impact on the environment or necessitate a
further development which is likely to have a significant impact on
the environment. The proposed activity falls under
existing regulations and controls and no secondary developments are
required.
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¶ 16 Therefore, in our opinion, this
proposal is not a development as defined in s. 2(d) of The Environmental
Assessment Act. The decision of the chambers judge that the
project of KSS is a development is therefore set aside.
¶ 17 In view of our finding that the
proposal of KSS is not a development as defined in s. 2(d) of The
Environmental Assessment Act it is not necessary for us to consider whether
Yellow Quill or the respondents have standing to privately enforce a public
right. We note in passing that the concerns expressed by Yellow
Quill on this appeal, both in writing and in oral argument, were concerned
more with the approval procedure required under the Agricultural Operations
Act rather than whether or not the project was a development under the
Environmental Assessment Act. It was not necessary for us to make
any finding in connection with those matters. Clearly if a project is a
development there is a requirement for wider public consultation.
¶ 18 In light of the decision on this
appeal, the following matters are not in issue: (1) whether
the respondents should have applied by way of judicial review in the nature
of certiorari to set aside the order of the Minister of Agriculture as
opposed to applying for a declaration that the project was a development
under The Environmental Assessment Act; (2) the relationship between The
Environmental Assessment and The Agricultural Operations Act; and, (3)
whether a proponent of an intensive livestock operation can be required to
make an application under The Agricultural Operations Act and also be
required to carry out an environmental impact assessment under s. 9 of The
Environmental Assessment Act.
¶ 19 In view of our findings it is
not necessary to consider the application of HL Pork Producers Ltd.
requesting intervenor status.
¶ 20 KSS did not seek costs.
¶ 21 The appeal is granted, the order
of the Court of Queen's Bench set aside without costs.
VANCISE J.A.
LANE J.A.
JACKSON J.A.
QL Update: 971222
cp/d/mii
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Letter to the Editor
East Central Connection
April 2003
Whenever people express their concerns about problems associated with
mega hog operations, they are invariably told, quote, “Saskatchewan has
the best regulations in the world”. That
just happened again at a February meeting in Watson, when en environmental
engineer with Saskatchewan Agriculture made the claim.
But just how valid is that statement?
Since our provincial government’s agricultural policy is to rapidly
increase hog production by encouraging and investing in factory farms, are
they also able to assess, in an unbiased way, how these projects impact the
environment?
That’s a good question.
To get an answer, we have to look back to 1997, when concerned farmers in
the RM of Sasman, in the Kevington area, took the provincial government to
court in an attempt to have a factory hog farm, being built by Florian
Possberg’s company, be designated a ‘development’ and undergo a
full-scale environmental review under the Environmental Assessment Act –
which is far more stringent than the Agriculture Operation Act in current
use.
The farmers won their case in Court of Queen’s Bench; one of their
arguments based on “widespread public concern”.
(We have seen that same level of concern in many Saskatchewan
communities recently.)
An environmental assessment is necessary if any one of six criteria is
triggered. These criteria range
from developments which can affect rate or endangered features of the
environment, to projects which cause widespread public concern because of
potential environment changes.
However, Kelvington Super Swine, supported by Sask. Agriculture and Sask.
Environment, (who, remember, say, “we have the best regulations in the
world”) appealed the decision to the Saskatchewan Court of Appeal.
Eric Upshall, who was Minister of Agriculture at the time, threatened
to pass legislation to exempt intensive livestock operations from the
Environmental Assessment Act. “I’m
not going to let this stop the industry,” Upshall vowed.
Environment Minister Lorne Scott was more diplomatic.
He promised to find ways to involve the public in the review process.
He also promised to consult with the hog industry and the public to
develop an alternative environmental review for mega hog farms.
However, in November 1997, Kelvington Super Swine won their appeal on a
ruling there was not sufficient public concern.
Speaking at a Saskatoon Agricultural Conference in March 1998, Mr.
Upshall gave an indication of what changes lay ahead.
He said officials in his department were working with Sask.
Environment to “tighten up” the regulatory process for intensive
livestock operation. “The aim
is to ensure that no one can come out and throw up a roadblock,” he
explained. “We’re going to
try to keep the courts out of it as much as reasonably possible.”
Upshall again repeated the claim that “Saskatchewan had the best
environmental regulations in the world.”
(He neglected to mention because of the court victory in the
Kelvington case, they wouldn’t be used.)
So it was back to business as usual.
One of the farmers who lead the fight against the Super Swine hog
development was recently asked if any positive changes had resulted from
their court action. “None
that I can think of, except we put the fear of God into them (government and
developer) for a short time.”
A question that should be asked of Saskatchewan Agriculture is this:
despite your claim to the contrary, why did you go to such great
lengths to oppose environmental regulations that would have ensured
meaningful public involvement? Are
these the actions of a government that really believes what it says?
Presently, the provincial government’s strategy for rural revitalization
still seems to consist of giving people three options:
1. mega hog barns; 2. mega hog barns; or 3. more mega hog barns.
Many of these projects have been supported by government money.
At Kelvington, for example, Saskatchewan Opportunities Corporation (SOCO)
provided Big Sky’s Super Swine barns with a $500,000 in equity investment
and a $500,000 loan.
Last summer, Minister of Rural Revitalization, Clay Serby, predicted
Saskatchewan pork producers would be marketing five million hogs by 2005 –
far more than double the present number.
He said he would soon be meeting with two new companies interested in
building hog complexes and existing companies were expanding.
So, more often than not, leaders in rural Saskatchewan looking for
economic development are faced with the option of balancing pigs, jobs, and
feed grain sales over negatives such as odour problems, demands on water,
and open hog lagoons. (Or short
term gain for long term pain.) It’s
a choice that has divided many communities.
We deserve better.
Jack Maluga,
Wynyard, SK
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