Dated: 19971119 Docket: 2853 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Vancise, Lane Jackson JJ.A. 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) COUNSEL: Mr. R.H. McKercher, Q.C Mr. Shaunt Parthev for the appellant Mr. R.H. Goodman Mr. D.J. Smith for the respondents Mr. W.J. Wardell, Q.C. Ms. D.L. Driedger for the intervenor, Yellow Quill Mr. A.J. Beke, Q.C. Mr. J.L. Nugent for the intervenor, H.L. Pork Producers Ltd. Mr. B.J. Hornsberger, Q.C. (watching brief) for the Minister of Agriculture and the Minister of Environment DISPOSITION: On Appeal From: Q.B 1753/97, J.C. of Saskatoon Appeal Heard: 19 November 1997 Appeal Allowed: 19 November 1997 (orally) Written Reasons: 09 December 1997 Reasons By: The Honourable Mr. Justice Vancise In Concurrence: The Honourable Mr. Justice Lane The Honourable Madam Justice Jackson VANCISE J.A. (orally) Introduction [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. [1] 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. [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 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: 1. The chambers judge erred in law by admitting affidavit material filed by the respondents on an application for 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; 2. The chambers judge erred in law in granting Yellow Quill standing for the private enforcement of public right; and, 3. The chambers judge erred in finding that the KSS project was development as defined in s. 2(d) of The Environmental Assessment Act. [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 SE¼ 13-36-12 W2nd (the Clark property) and NW ¼18-36-11 W2nd (the NBC Resources property). The project consists of two feeder barns (also known as finishing barns) and is the third site of project known as Big Sky No. 2, 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 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 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[2] and its Regulations.[3] 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 number of restrictions to ensure the environment is protected. [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. of The Environmental Assessment Act because the project or operation is “development” under the Act. Preliminary Matters [9] On the return date of the appeal HL Pork Producers Ltd. filed 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 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 public right depending upon the outcome of the decision on those two issues. [12] The appellant contends the remedy sought by the respondents, whether for the private law remedy of declaration or the public law remedy of mandamus finally disposes of the rights of the parties, and is therefore final order. No one seriously questioned that submission. The application was for final order and Rule 319 of the Queen’s Bench Rules is, therefore, engaged. That rule states: *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. 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.,[4] Petrich v. Petrich,[5] and Mitchell v. Intercontinental Packers Ltd. et al.[6] 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 development. [13] Given our decision on the first issue, the principal issue before us is whether the project proposed by KSS is development as defined within s. 2(d) of The Environmental Assessment Act. Development is defined term under that Act. It is defined as follows: (d) “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; (ii) substantially utilize any provincial resource and in so doing pre‑empt the use, or potential use, of that resource for any other purpose; (iii) cause the emission of any pollutants or create by‑products, residual or waste products which require handling and disposal in manner that is not regulated by any other Act or regulation; (iv) cause widespread public concern because of potential environmental changes; (v) involve new technology that is concerned with resource utilization and that may induce significant environmental change; or (vi) have significant impact on the environment or necessitate further development which is likely to have significant impact on the environment. [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 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 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 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: i) 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. ii) 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 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. iii) Cause the emission of any pollutants or create by-products, residual or waste products which require handling and disposal in manner that is not regulated by any other Act or regulation. Liquid manure is 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. iv) 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. 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 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. v) Involve 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. vi) Have significant impact on the environment or necessitate further development which is likely to have significant impact on the environment. The proposed activity falls under existing regulations and controls and no secondary developments are required. [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 development is therefore set aside. [17] In view of our finding that the proposal of KSS is not 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 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 development under the Environmental Assessment Act. It was not necessary for us to make any finding in connection with those matters. Clearly if project is development there is 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 declaration that the project was development under The Environmental Assessment Act; (2) the relationship between The Environmental Assessment and The Agricultural Operations Act; and, (3) whether 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. DATED at the City of Regina, in the Province of Saskatchewan, this 9th day of DECEMBER, A.D. 1997. VANCISE J.A. LANE J.A. JACKSON J.A. [1]S.S. 1979-80, c.E-10.1. [2]S.S. 1995, c.A-12.1. [3]R.S.S. c.A-12.1, Reg. 1, Sask. Gaz. 1996, 385, as amended by Sask. Reg. 34/97. [4](1990), 1990 CanLII 7448 (SK QB), 88 Sask. R. 35. [5][1997] S.J. No. 470 (Q.L.) [6](1996), 1996 CanLII 6957 (SK QB), 146 Sask. R. 10.
The respondents applied for a declaration that the intensive livestock operation being constructed by Kelvington (KSS) was a development pursuant to s2(d) of the Environmental Assessment Act (EAA) and sought an order for mandamus compelling KSS to conduct an environmental assessment as required by s9 of the EAA. Yellow Quill First Nation applied for intervenor status. The trial judge found, without giving reasons, that the project was a development as defined in the Environmental Assessment Act and the application for mandamus was adjourned sine die. HELD: The appeal was granted and the order set aside without costs. 1)The proposal was not a development as defined in s 2(d) of the EAA. The Department of Agriculture, the Department of the Environment and Resource Management were of the opinion that the KSS project was not a development as defined in the Act as it did not come within any of the criteria listed in s2(d). 2)The Environmental Assessment Branch was of the opinion that no significant impacts on the environment would occur or if they do, mitigation measures would be implemented to reduce or eliminate the potential for significant environmental impact.  3)It was not necessary to decide whether Yellow Quill or the respondents had standing to privately enforce a public right. 4)In light of the decision the following were not in issue: whether the respondent should have applied by way of judicial review in the nature of certiorari; the relationship between the Environmental Assessment and Agricultural Operations Act; and whether a proponent of an intensive livestock operation can be required to make an application under the Agricultural Operations Act and to carry out an environmental impact assessment under s9 of the EAA.