COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:	Tsawwassen Residents Against Higher Voltage Overhead Lines Society v. B.C. Utilities Commission,
	2007 BCCA 95

Date: 20070212

Docket: CA034328; CA034336; CA034341; CA034342

Docket:  CA034328

Between:

Tsawwassen Residents Against Higher Voltage Overhead Lines Society

Appellant

And

The British Columbia Utilities Commission and
The British Columbia Transmission Corporation and
The British Columbia Hydro and Power Authority

Respondents

Before:	The Honourable Madam Justice Prowse
	The Honourable Madam Justice Huddart
	The Honourable Madam Justice Kirkpatrick

 

J.J. Arvay Q.C.	Counsel for the Appellant, (CA034328)
No one appearing	Counsel for the Respondent, B.C. Utilities Commission
D.G. Cowper, Q.C., A.W. Carpenter and C. Buistrom	Counsel for the Respondent, B.C. Transmission Corporation
C.W. Sanderson, Q.C. and M. Storoni	Counsel for the Respondent, B.C. Power and Hydro Authority
Place and Date of Hearing:	Vancouver, British Columbia
25 January 2007
Place and Date of Judgment:	Vancouver, British Columbia
12 February 2007

 

Written Reasons by:

The Honourable Madam Justice Huddart

Concurred in by:

The Honourable Madam Justice Prowse The Honourable Madam Justice Kirkpatrick

Reasons for Judgment of the Honourable Madam Justice Huddart:

[1]                This application to vary an order of a chambers judge centres on the question whether the “precautionary principle” is a rule of statutory construction that must be applied to environmental legislation.

[2]                The issue was not framed in quite this way before the chambers judge when she denied leave to appeal on this issue:

The Commission erred in law by failing to apply the precautionary principle or the principle of prudent avoidance in interpreting sections 45 and 25 of the [Utilities Commission] Act.

[3]                The applicant acknowledges the meaning and application of the precautionary principle are controversial in academic literature and little discussed in jurisprudence.  That debate is reflected in the submissions on this application and the materials provided to us that were not before the Commission or the chambers judge.  The precautionary principle considered in 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town) was expressed in the Bergen Ministerial Declaration on Sustainable Development (1990), [2001] 2 S.C.R. 241 at para. 7:

In order to achieve sustainable development, policies must be based on the precautionary principle.  Environmental measures must anticipate, prevent and attack the causes of environmental degradation.  Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

[4]                The essence of the applicant’s submission is that Levine J.A., like the Commission, erred when she failed to recognize the applicants are seeking to extend the application of the precautionary principle from the permissive rule discussed in Spraytech to a mandatory rule of construction of provisions like ss. 45 and 25 of the Utilities Commission Act.

[5]                In my view, this is a pure question of law deserving of consideration by a panel.  I would vary the order of Levine J.A. to grant leave to appeal on this issue.

“The Honourable Madam Justice Huddart”

I agree:

“The Honourable Madam Justice Prowse”

I agree:

“The Honourable Madam Justice Kirkpatrick”