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The Environmental Review Tribunal has refused to hear an application for leave to appeal from a permit to take water for a waterpower project that will flood aboriginal burial sites: Napash v Director. The Tribunal ruled that it had no jurisdiction, because the waterpower project has had “minimal scrutiny” through an environmental screening, even if public participation opportunities were minimal, and the proponent (not the government) decided whether the environmental screening had been adequate. Thus, while wind projects grind through endless, repetitive hearings, waterpower projects get no hearing at all.

Amended Permit to Take Water No. 4445-8W3LBE (the “Permit”), under s. 34 of the Ontario Water Resources Act (“OWRA”) was issued to WOF/OWF Hydrokap G.P. Inc. (the “Permit Holder”), for water taking from the Kapuskasing River at the site of the Old Woman Falls Generating Station, south of the town of Kapuskasing Shanly. Hydromega Services Inc. (“Hydromega”) owns the Permit Holder.

Under s. 38 of the Environmental Bill of Rights, 1993 (“EBR”), Mr. G. Napash filed an application for Leave to Appeal the Permit to the ERT, on his own behalf and on behalf of the Kapuskasing Cree First Nation (“Kapuskasing Cree”). The Applicant identifies himself as the Chief of the Kapuskasing Cree and alleges that water taken pursuant to the Permit will be used to fill a head pond that will flood an area of sacred burial sites
located above Old Woman Falls Rapids.

Why is waterpower exempt?

The permit was one of a series of water taking permits, each for less than a year, but which, in total, authorized water taking for much longer than one year. The permit is therefore a Class I permit. However, it was exempt from the Environmental Bill of Rights process, because of s. 32 of the Environmental Bill of Rights:

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 toward implementing an undertaking that has been exempted by a regulation under the Environmental Assessment Act.

The ERT ruled that “completion of an Environmental Screening process is not “a decision made under the Environmental Assessment Act” as required by s. 32(1)(b).” However, the water taking permit was exempt under 32(2), because it was a step towards a water power project which is partly exempted from environmental assessment:

Doing an Environmental Screening is only minimally different from a full exemption from the EAA. An Environmental Screening process involves minimal scrutiny. It is conducted by the proponent of the undertaking. Substantive review by officials does not occur, and no decision is necessary to allow the undertaking to proceed. The proponent’s Screening Report must be made available to the public and agencies for a minimum 30-day review period, but it is not posted on the Environmental Registry. Since a project with full exemption from the EAA clearly falls within the legislative intent of s. 32(2), an undertaking exempted from the main requirements of the EAA and subject only to an Environmental Screening process must be held to qualify for exemption from s. 22 of the EBR as well.

So, waterpower development can’t be reviewed by the ERT, because it gets only minimal scrutiny under the Environmental Assessment Act. Given the substantial adverse environmental impacts that waterpower development can have, it is incongruous to exempt it so fully from public review.


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