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Pollution control law in British Columbia : the administrative approach Lucas, Alastair Richard

Abstract

In recent years the problem of water pollution has been recognized as a meta-problem of unexpected magnitude and complexity. Early attempts to control pollution were stifled by the property-oriented common law of riparian rights and by the lack of Authorities possessing adequate jurisdiction and funds. The object of this paper is to delineate the proper legislative and administrative field of water pollution control, with particular reference to British Columbia's pollution control legislation. As a background, the common law relating to water pollution is sketched and its adequacy evaluated. Early British Columbia Pollution control legislation is outlined in an attempt to determine the roots of the present comprehensive legislation. The Pollution Control Act 1956 is examined, with particular attention to the administrative tribunal created thereunder. Board procedures are seen to be informal and dependent upon direct communication and negotiation with individuals concerned. An attempt is made to determine the criteria upon which the Board acts in setting effluent standards in waste disposal permits granted by it. These standards are found to be vitually completely in the Board's discretion, but necessary (with some limitations) for flexible policy administration. The Board has several means of enforcement at its command including prosecution under the Act, or under the Criminal Code and civil proceedings at the suit of the Attorney-General. To determine whether civil actions for pollution lie apart from the Act, the question of whether riparian rights have been abrogated in British Columbia by water appropriation legislation is considered. The evidence indicates that actions by riparian owners will continue to lie. The fact that parties hold either water licences or pollution control Board permits makes no difference if pollution in fact exists. The Board is an administrative tribunal; but it may at certain stages of its permit issuing procedure be required to act judicially. At those stages, the Board's decision is open to review by the courts. Under the present legislation a person who objects to the grant of a permit is not entitled to an oral hearing, though he is entitled to file written representations in support of his objection. There appears to be no conflict among the numerous pollution control provisions contained in various provincial statutes. The Pollution Control Act is clearly the governing legislation. Federal Legislation relating to pollution is validly enacted under Federal Fisheries and Navigation powers; and in a case of direct conflict will override the provincial legislation. From the preceding examination of the Act, it is concluded that while certain minor changes suggested might to some degree remedy the present legislation, what is required is a policy making, expert tribunal. An important recommendation is that to secure individual rights, a hearing should be granted every person who files an objection to a permit application. New legislation recently introduced in the British Columbia Legislature provides for appointment of a Director, who will undertake day-to-day administration of the Act. However, the Board will continue to be subject to direction by the Executive Council, and the right to a full oral hearing upon an objection will remain discretionary.

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