A community group against Lafarge Canada's proposal to burn tires for fuel at a cement plant in Brookfield, N.S., was told they could not include evidence from a toxicologist in a decision from the Nova Scotia Supreme Court on Friday.
Justice Denise Boudreau wrote in her decision that courts generally do not allow new evidence to be introduced in an application for judicial review and said it would be "an inappropriate distraction" to admit the evidence.
"This is because since the new evidence was not before the Minister when his decision was made, it cannot assist in determining whether he made a reasonable decision on the evidence before him," Boudreau wrote.
Group wanted toxicologist's testimony
CABOT, or Citizens Against the Burning of Tires, filed for a review in August on the Nova Scotia Department of Environment's decision to approve a pilot project to burn tires at Lafarge.
The group is arguing that Environment Minister Iain Rankin did not consider all the scientific evidence, and asked to have Douglas Hallett, an Ontario toxicology expert, present evidence at the hearing.
Lydia Sorflaten, a spokesperson for CABOT who lives near the cement plant, said the group wasn't surprised by the decision, but hoped the expert witness would be allowed.
"We would like to see the Department of the Environment address the environment and put the priority on the land, water and air that surrounds us and affects our farming communities, our fisheries, our own water supply and our own health," she said.
In his affidavit, quoted in Friday's decision, Hallett wrote he was "seriously concerned" the project could be operated without adverse environmental effects. He also offered to write his own report for the hearing.
Environment Department declines comment
When asked about Friday's decision, Environment Department spokesperson Rachel Boomer said in an email it would be inappropriate to comment as the matter is before the courts.
Lawyers for Lafarge and the Department of Environment previously argued in court that allowing new evidence at this stage would "distort the legislative process," taking away a public-policy decision from the minister and giving it to the court.
The judicial review is scheduled for March 6 and 7 at the Nova Scotia Supreme Court in Halifax.