T-1313-99
2002 FCT 994
Inter-Church Uranium Committee Educational Co-operative (Applicant)
v.
Atomic Energy Control Board and Cogema Resources Inc. (Respondents)
Indexed as: Inter-Church Uranium Committee Educational Co-operative v. Canada (Atomic Energy Control Board) (T.D.)
Trial Division, Campbell J.--Saskatoon, September 12; Ottawa, September 23, 2002.
Environment -- Uranium mining project approved under Environmental Assessment and Review Process Guidelines Order (EARPGO) in 1993 -- Environmental assessment now triggered by provisions of Canadian Environmental Assessment Act (CEAA), which came into force in 1995 with respect to most recent operating licence granted by Atomic Energy Control Board for continuing development of project -- Interpretation of CEAA, s. 74 transitional provisions -- Nothing in wording of CEAA, s. 74 to support interpretation that proposals begun under EARPGO grandfathered from application of CEAA -- Present case dealing not with "proposed construction" but "proposed operation" of mill -- Each stage of project in fact, law new "project" as defined in CEAA, s. 2(1), requiring, by CEAA, s. 5(1)(d), environmental assessment before licence issued -- Since application of Exclusion List Regulations, s. 2, Sch. I has not been determined, no ground to conclude s. 2, Sch. I engaged to exclude project from application of CEAA -- In public interest that Court exercise discretion to quash licence.
The McClean Lake Uranium Mining Project was approved under the Environmental Assessment and Review Process Guidelines Order (EARPGO) as environmentally viable by the federal government in 1993. The project moved forward under the regulatory licensing supervision of the Atomic Energy Control Board (AECB).
The AECB has issued several licences for the McLean Lake Project to approve its staged progress. Construction licences were issued in 1994 and 1995, and operating licences began to be issued in 1996. In this application for judicial review, the applicant sought an order to quash the AECB's June 17, 1999 decision to issue a licence to operate a mill with respect to the McLean Lake Project JEB open pit mine (the JEB mill) and the related Tailings Management Facility (the TMF), on the basis that an environmental assessment was triggered with respect to a most recent licence granted by the AECB by the provisions of the Canadian Environmental Assessment Act (CEAA), which came into force in 1995, after the licensing process was well under way. The environmental concern was with the scientific integrity of the now implemented plan for the containment of tailings produced from the mining of uranium in the McLean Lake Project as well as other projects in the area. The AECB was of the opinion that CEAA did not apply in this instance because the project had been previously assessed and approved under EARPGO. The legal question was whether CEAA applied to the McLean Lake Project. The relief claimed was an order quashing the licence and an order requiring the AECB to fulfill its statutory duty to comply with CEAA and related regulations now in place.
Held, the application should be allowed in part: the licence should be quashed but no mandamus should issue.
The interpretation of CEAA and Regulations was a question of law, and the standard of review on these questions was correctness. The licence to operate the JEB mill and the TMF, issued by the AECB pursuant to Uranium Mining Regulations, triggered the provisions of the CEAA Regulations requiring an environmental assessment under the provisions of the CEAA. Since an environmental assessment was not conducted before the licence issued, the AECB did not have jurisdiction to issue the licence.
CEAA came into force in January 1995, and replaced EARPGO. The relevant transitional provisions of CEAA are found in section 74. There was nothing ambiguous about the plain wording of the English version of subsection 74(1), and there was no meaningful difference between the English and French versions. There was absolutely nothing in the wording of section 74 to support the interpretation that proposals begun under EARPGO were grandfathered from the application of CEAA. The interpretation of section 74 must be limited to its stated purpose, that is, to supply an orderly transition from the application of one environmental protection regime (EARPGO) to the application of another (CEAA) with respect to a given ongoing project.
The McLean Lake Project was a "project" within the meaning of CEAA, subject to environmental review. Each stage of the project was, in fact and law, a new "project" as that term was defined in subsection 2(1) of CEAA, which, by paragraph 5(1)(d), requires an environmental assessment before a licence is issued.
The question was raised as to whether the project was exempted from the assessment requirements of CEAA by application of section 2, Schedule I of the Exclusion List Regulations. First, it has not been determined, as is required by that provision, that environmental effects are insignificant. Such a determination is the responsibility of the AECB, not of the Court. Secondly, such a determination which would allow a judicial review on a standard to be determined, has not been made. As a result, since the application of section 2, Schedule I has not been determined, there was no ground to conclude that that provision was engaged to exclude the project from the application of CEAA.
Thus, having found no impediment to the application of CEAA, the issuance of the licence under review triggered at least an environmental assessment under paragraph 5(1)(d) of CEAA, and since an environmental assessment was not conducted before the licence issued, the AECB did not have jurisdiction to issue the licence.
There was no blame to lay against the applicant with respect to delay. The AECB knew that there was a legal question outstanding with respect to the application of CEAA, it made a determination on this question before the issuance of the licence which was found to be wrong in law, and it was not now open to it to complain that it was being held accountable.
It was argued that to quash the licence would seriously impair operations of the McLean Lake Project, and impose significant immediate human and economic costs. However, to not allow the application of CEAA to run its course would be to curb much needed public scrutiny of a highly contentious aspect of the McLean Lake Project. It was in the public interest for the Court to exercise its discretion to quash the licence.
statutes and regulations judicially
considered
Canadian Environmental Assessment Act, S.C. 1992, c. 37, ss. 2(1) "project", 4 (as am. by S.C. 1994, c. 46, s. 1), 5, 74.
| Comprehensive Study List Regulations, SOR/94-638, s. 19(b). |
| Environmental Assessment and Review Process Guidelines Order, SOR/84-467. |
| Exclusion List Regulations, SOR/94-639, Sch. 1, s. 2. |
cases judicially considered
distinguished:
Société pour vaincre la pollution v. Canada (Minister of the Environment) (1996), 136 D.L.R. (4th) 747; 22 C.E.L.R. (N.S.) 64; 114 F.T.R. 213 (F.C.T.D.); Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; (1985), 19 D.L.R. (4th) 1; [1985] 4 W.W.R. 385; 35 Man. R. (2d) 83; 59 N.R. 321; Tsawwassen Indian Band v. Canada (Minister of Finance) (1998), 27 C.E.L.R. (N.S.) 177; 145 F.T.R. 1 (F.C.T.D.); affd (2001), 37 C.L.L.R. (N.S.) 182; 270 N.R. 145 (F.C.A.).
APPLICATION for judicial review seeking an order quashing a licence granted by the Atomic Energy Control Board without conducting an environmental assessment under the CEAA which came into force after the licensing process was well under way, and an order requiring the Board to fulfill its statutory duty. Application allowed in part: the licence was quashed, but no mandamus will issue.
appearances:
Stefania A. Fortugno for applicant.
Kirk N. Lambrecht, Q.C. for respondent Atomic Energy Control Board.
Robert G. Richards, Q.C. for respondent Cogema Resources Inc.
solicitors of record:
Fortugno Law Office, Saskatoon, Saskatchewan, for applicant.
Deputy Attorney General of Canada for respondent Atomic Energy Control Board.
MacPherson Leslie & Tyerman LLP, Regina, Saskatchewan, for respondent Cogema Resources Inc.
The following are the reasons for order and order rendered in English by
[1]Campbell J.: The McClean Lake Uranium Mining Project (the McClean Lake Project) in northern Saskatchewan has, since its inception in 1989, generated community and expert opposition on ethical as well as scientific grounds. The project was approved as environmentally viable by the federal government in 1993 following the completion of a public panel process under Environmental Assessment and Review Process Guidelines Order, SOR/84-467 (EARPGO) resulting in the project moving forward since then under the regulatory licensing supervision of the respondent, Atomic Energy Control Board (AECB).
[2]Throughout the environmental approval process under EARPGO and the subsequent licensing process, the environmental community in Saskatchewan, as represented in the present application by the applicant, Inter-Church Uranium Committee Education Co- operative (ICUCEC), has worked within the legal framework applied but has, at times, strongly objected to decisions taken to carry out the project through the licensing process.
[3]However, with this application, ICUCEC seeks to impress its concerns about the continuing development of the project by attempting to halt and break open the licensing process being applied over the last eight years by arguing that an environmental assessment is now triggered with respect to a most recent licence granted by the AECB by the provisions of the Canadian Environmental Assessment Act, S.C. 1992, c. 37, (CEAA), which came into force in 1995, after the licensing process was well under way.
[4]In essence, the environmental concern that has driven the present application is with the scientific integrity of the now implemented plan for the containment of tailings produced from the mining of uranium in the McClean Lake Project as well as other projects in the area. The worry is that, if the science is insufficient, the tailings repository will be a serious environmental hazard for a very long time.
[5]The legal question which determines whether ICUCEC `s attempt can succeed is: Does CEAA apply to the McClean Lake Project? For the reasons which follow I find that it does.
A. Factual background
[6]Uranium deposits were discovered at McClean Lake in 1979. In 1991, the then majority owner of the McClean Lake Project, Minatco Limited, presented a proposal for development to the AECB. The second respondent, Cogema Resources Inc. (Cogema) is the current owner of the project.
[7]The McClean Lake proposal came forward at the same time as two other uranium mine proposals. Approval to proceed with these three proposals was required from the governments of Saskatchewan and Canada. Prior to issuing these approvals, Saskatchewan and Canada structured a single process for the public review of these three proposals.
[8]Acting pursuant to EARPGO, the AECB referred the three proposals to the federal Minister of the Environment who established a panel to conduct the public review and make recommendations. Over the course of a year and a half, from October 1991 to May 1993, the EARPGO Panel (the Panel) conducted its work and in October 1993, the Panel issued its Report in respect of the three proposals.
[9]The Panel recommended that the McClean Lake proposal be delayed for at least five years and that approval at that time should be conditional on the fulfilment of 16 conditions.
[10]In December 1993, the federal government announced its response to the Report rejecting the Panel's recommendation for a five-year delay. Instead, the federal government decided that the AECB's normal licensing process could proceed within which all of the technical issues raised before the Panel could be considered with respect to the mining and milling of uranium, and the deposit of tailings.
[11]The EARPGO Panel continued in existence, and, in 1994, it was charged with public review of two further uranium mine site proposals which involved use of the McClean Lake facilities, including the milling of ore and the deposit of tailings. Together with other factors, the Panel examined these critical aspects of the McClean Lake Project, and again recommended acceptance of their design recognizing that the regulatory process would be used to assess specific issues. In 1998 this recommendation was accepted by the federal government, which decided that the new mining proposals could move to the AECB regulatory approval and licensing process.
[12]The AECB has issued several licences for the McClean Lake Project to approve its staged progress. Construction licences were issued throughout 1994 and 1995, and operating licences began to be issued in 1996. ICUCEC has been an active and vocal participant throughout the licensing process.
B. The decision under review
[13]ICUCEC brings this judicial review seeking an order to quash the AECB's June 17, 1999, decision to issue licence AECB-MFOL-170-0.5 (the licence) to operate a mill with respect to the McClean Lake Project's JEB open pit mine (the JEB mill) and the related Tailings Management Facility (the TMF).
[14]As mentioned, a primary concern of the ICUCEC is with the scientific concept being applied to the TMF. The TMF is based on "natural surround" technology which requires that tailings be produced and deposited in such a way that they consolidate over time to give a material with a certain hydraulic conductivity which, in effect, shields the surrounding environment from contamination.
[15]ICUCEC and other interveners made submissions to the AECB before the licence was issued demanding that a new environmental assessment be conducted in the form of a comprehensive study under CEAA prior to the issuance of an operating licence for the facilities. This argument was fuelled by strong concerns about, not only the practical aspects of the application of the "natural surround" concept in the TMF, but also the milling process to be used at the JEB mill. In its reasons for the decision to issue the licence dated June 30, 1999, the AECB stated the following:
*Views of the Board
With ongoing monitoring by the licensee and the ability of the Board to take licensing action or use other means of regulatory control, the Board believes that adequate measures are in place to protect the environment.
The Board accepts the conclusion of AECB staff that the possible effects of alpha radiation caused by the operation of the JEB mill and TMF are adequately addressed.
The Board is therefore of the view that the environmental effects of this project have received careful consideration. The Board accepts the information provided by AECB staff and CRI that the monitoring programs will identify potential environmental concerns and that effective remedial measures, including stopping the deposition of tailings, are available. The Board accepts the position of AECB staff, set out in BMD 99-53 and BMD 99-85, in particular that the intent of the Canadian Environmental Assessment Act is met. [Applicant's application record, p. 25.]
[16]The AECB then went on to make the following finding of law which is accepted as the decision under review in the present application:
[The AECB] accepts the staff's finding that the Canadian Environmental Assessment Act does not clearly speak to the question of a project that has been the subject of a Panel report and that implementation of the government response to the Panel's assessment and recommendation concerning this mining facility are considered to meet the intent of the Act and to reflect the principles of "one project--one assessment" and avoidance of duplication in environmental assessment matters. [Applicant's application record, p. 26.]
[17]Some insight into the meaning of the AECB's decision is found in the following February 4, 1999 response by Mr. Sid Gershberg, the President of the AECB, to a due process concern expressed in a November 18, 1998 letter to him from Mr. Phillip Penna of the intervener the Canadian Uranium Alliance:
Thank you for your letter regarding the Atomic Energy Control Board's (AECB) licensing action for the JEB Pit Tailing Management Facility in Northern Saskatchewan.
The AECB has indicated that the August 13, 1998 meeting was held to make a licensing determination on one portion of the tailings management facility. In order to take advantage of the limited construction season in Northern Saskatchewan, Cogema Resources Inc. (Cogema) requested the early approval for the pre-construction of the filter drain system of the facility.
The AECB was aware of the limited public involvement in this decision. To compensate for this action Cogema delayed its formal request of initial consideration for the construction of the entire tailings management facility until the fall of 1998. According to AECB staff, Cogema was given approval to proceed with this portion of work under the following conditions: 1) that the approval did not prejudge a decision on the application for construction of the entire facility and 2) if the AECB decided not to approve the facility, Cogema is required to remove all structures at the tailings management facility site at their own financial cost.
With regard to your concern that AECB did not fulfill legal requirements under the Canadian Environmental Assessment Act (the Act) during its licensing meeting, the Act did not apply in this instance because the project had been previously assessed and approved. The JEB Pit Tailings Management Facility was examined by the joint federal-provincial panel on uranium mining developments in Northern Saskatchewan in 1997. The panel held public hearings as a forum for members of the public to present their comments and to participate in the environmental assessment process. The federal and provincial governments approved the uranium mining project and the JEB Pit Tailings Management Facility.
I appreciate receiving your comments on this issue and trust that my response is helpful. [Applicant's application record, p. 35; emphasis added.]
[18]In the notice of application in the present case, ICUCEC challenges the decision on the following grounds:
That the application for the licence amendment AECB-MFOL-170-0.5 by Cogema Resources Inc. and the consideration of the same by the Respondent AECB pursuant to s. 8(1) of the Atomic Energy Control Act Uranium and Thorium Mining Regulations SOR/88-243 triggered an environmental assessment, as a result of s. 8(1) of the Atomic Energy Control Act Uranium and Thorium Mining Regulations, being listed in Schedule I, Part II of the Canadian Environmental Assessment Act Law List Regulations; [and]
That the issuance of [the Licence] triggers a comprehensive study as a result of the projects under this licence being in a class of projects described in the Canadian Environmental Assessment Act Comprehensive Study List Regulations.
As a result, the relief claimed is an order quashing the licence and an order requiring the AECB to fulfill its statutory duty to comply with CEAA and related regulations now in place.
[19]During the course of the oral hearing, counsel for the respondents agreed that the legal questions raised by the grounds cited in the challenge are properly before the Court. Thus, the primary issue for determination is whether the AECB correctly interpreted the law in issuing the licence.
C. The results if CEAA applies to the issuance of the licence
[20]Counsel for ICUCEC clearly sets out the argument which I can do no better than quote as follows:
| 2. Interpretation and Application of the CEAA and Regulations |
| a. Standard of Review |
85. The applicant submits that the standard of review to be applied to the questions raised by the applicant, concerning the interpretation and application of the provisions of the CEAA and the CEAA Regulations by the AECB, is that of correctness. The applicant relies on the decision of the Federal Court of Appeal in Friends of the West Country Association v. Canada (Minister of Fisheries and Oceans) to support this submission. In that decision Rothstein J.A. wrote for the Court:
| As to the interpretation of provisions of the CEAA, there is no applicable privative clause. The CEAA is a statute of general application. It is administered by a broad range of federal authorities with the power to approve or licence projects that could have adverse environmental effects. The Coast Guard has no particular expertise in interpreting the statutory requirement of the CEAA. The interpretation of the CEAA is a question of law. I agree with Gibson J. that the standard of review on these questions is correctness. |
| b. Canadian Environmental Assessment Act Law List Regulations |
86. The applicant submits that the application for licence amendment AECB-MFOL-170-0.5 by the respondent Cogema to permit it to operate the JEB mill and the JEB TMF at the McLean Lake uranium mining facility in northern Saskatchewan and the consideration of the same by the respondent AECB pursuant to subsection 8(1) and section 14 of the Atomic Energy Control Act Uranium and Thorium Mining Regulations ("Uranium Mining Regulations") triggered an environmental assessment under the provisions of the CEAA and Regulations.
87. It is submitted that the starting point of the analysis is paragraph 5(1)(d) of the CEAA which provides:
| 5. (1) An environmental assessment of a project is required before a federal authority exercises one of the following powers or performs one of the following duties or functions in respect of a project, namely, where a federal authority. . . . |
| (d) under a provision prescribed pursuant to paragraph 59(f) issues a permit or licence, grants approval or takes any other action for the purpose of enabling the project to be carried out in whole or in part. |
. . .
90. The authority for the CEAA Law List Regulations is subsection 59(f) of the CEAA, which provides:
| 59. The Governor in Council may make regulations. . . |
| (f) prescribing the provisions of any Act of Parliament of any regulation made pursuant thereto that confer powers, duties or functions on federal authorities the exercise or performance of which requires an environmental assessment under paragraph 5(1)(d). |
91. Subsection 8(1) of the Uranium Mining Regulations is listed in Schedule I, Part II of the CEAA Law List Regulations as item 33(b). Subsection 8(1) of the Uranium Mining Regulations reads:
| Subject to subsection (2), the Board, on receipt of a written application made in accordance with section 13 or 14, may issue a licence to site, construct or operate a mine or mill, as the case may be. |
Section 2 of the Uranium Mining Regulations defines "mine" as "a uranium or thorium mine and includes any associated waste management system and all land, buildings and equipment associated therewith". Similarly, "mill" is defined as "a uranium or thorium mill and includes any associated waste management system and all land, buildings and equipment associated therewith". Thus, the JEB, TMF falls under the definition of both mill and mine under sub. 8(1) outlined above.
92. It is submitted that the purpose of the Law List Regulations is to identify projects that could have significant environmental impacts and to have them automatically referred to an environmental assessment.
93. The AECB's authority to licence the JEB TMF and mill under licence AECB-MFOL-170-0.5 is prescribed by ss. 8 and 14 of the Uranium and Thorium Mining Regulations. As a result, the AECB has clearly triggered the provisions of the Law List Regulations such that an environmental assessment under paragraph 5(1)(d) of the CEAA is required.
94. In the recent decision of Inverhuron & District Ratepayers's Association v. Canada (Minister of the Environment) et al. Pelletier J. similarly held:
| Paragraph 59(f) of the Act allows the Minister to designate which licensing and approval requirements by federal authorities will trigger the operation of paragraph 5(1)(d). It is common ground that approvals under the Atomic Energy Control Act are designated under paragraph 50(f). As a result, a Federal authority, AECB, will issue a permit for the purpose of enabling a project to be carried out, which has the effect of triggering the Canadian Environmental Assessment Act. |
| c. The CEAA Comprehensive Study List Regulations |
95. In the Inverhuron decision Pelletier J. analysed the structure of the CEAA. He outlined that once the CEAA is triggered pursuant to paragraphs 5(1)(d) and 59(f), the next issue is the type of process which must be undertaken and who is responsible for undertaking it. Pelletier J. continued:
| The opening words of section (5) "An environmental assessment of a project is required. . ." do not define the type of assessment required since "environmental assessment" is defined as an assessment conducted in accordance with the Act. Section 14 contemplates that an assessment can consist of a screening or a Comprehensive Report. Section 18 provides that where a project is not on the Comprehensive Study List or the Excluded List, a screening shall be performed. The Comprehensive Study List is a regulation made pursuant to paragraph 50(d) of the Act, which permits the Governor in Council to designate projects or types of projects which require comprehensive study. Part VI of the Comprehensive Study Regulations deals with nuclear facilities. . . . Section 21 provides that where a project is listed on the Comprehensive Study List, a comprehensive study shall be undertaken and a Comprehensive Study Report shall be prepared and forwarded to the Minister and the Canadian Environmental Assessment Agency. |
96. It is submitted that the purpose of the Comprehensive Study List Regulations is to designate those "projects and classes of projects that are likely to have significant adverse environmental effects" and thus require more in-depth assessment prior to authorization.
97. Subsection 19(b) under Part VI in the Comprehensive Study List Regulations states the following class of project requires a comprehensive study under CEAA:
| 19. The proposed construction, decommissioning or abandonment, or an expansion that would result in an increase in production capacity of more than 35 per cent of. . . |
| (b) a uranium mining facility on a site within the boundaries of an existing licensed uranium mining facility, if the proposal involves processes for milling or uranium tailings management that are not authorized under the existing licence. |
98. Section 2 of the Uranium and Thorium Mining Regulations defines a "mining facility" as "(a) a removal site, (b) an excavation site, (c) a mine, (d) a mill, or (e) any combination of the sites or facilities referred to in paragraphs (a) to (d)." The JEB mill and TMF fall under this definition of mining facility. The JEB and TMF are therefore a mining facility constructed on the site of an existing licensed mining facility, namely, the JEB open pit mine.
99. It is submitted that the operation of the JEB mill and TMF are in the class of projects described in s.19(b) of the Comprehensive Study List Regulations. Clearly the JEB TMF is a project that is "likely to have significant adverse environmental effects" and thus requires more in-depth assessment prior to authorization that provided for under an environmental screening. Moreover, it is submitted that the operation phase of the JEB mill and TMF are much more likely to have significant adverse environmental effects as opposed to the construction phase of the mill or TMF. The negative environmental impacts of the wastes from the JEB mill dumped into the JEB TMF are measured in thousands of years, longer than the length of recorded human history.
100. Section 13 of the CEAA states:
| Where a project is described in the comprehensive study list or is referred to a mediator or a review panel, notwithstanding any other Act of Parliament, no power, duty or function conferred by or under that Act or any regulation made thereunder shall be exercised or performed that would permit the project to be carried out in whole or in part unless an environmental assessment of the project has been completed and a course of action has been taken in relation to the project in accordance with paragraph 37(1)(a). |
As a result, it is submitted that the issuance of licence AECB-MFOL-170-0.5, in the absence of a comprehensive study for the JEB mill and TMF uranium mining facility, was made in contravention of section 13 of the CEAA.
101. It is also submitted that the AECB erred in law in issuing licence AECB-MFOL-170-0.5 without first referring the project for an environmental screening or comprehensive study as required by subsection 11(2) of the CEAA. The AECB ignored the prohibition outlined in sub. 11(2) of the Act which states: "A responsible authority shall not exercise any power or perform any duty or function referred to in section 5 in relation to a project unless it takes a course of action pursuant to paragraph 20(1)(a) or 37(1)(a). [Applicant's memorandum of fact and law, paras. 85-101.]
[21]I can find no error in the ICUCEC's legal argument as cited.
[22]However, assuming CEAA applies to the licence, I have a concern with respect to making a finding that a comprehensive study is required by application of paragraph 19(b) of the Comprehensive Study List Regulations [SOR/94-638]. As I understand it, paragraph 19(b) requires a precise finding of fact that there will be a 35 percent increase in capacity by the issuance of a licence before a comprehensive study is necessary. The factual point was not addressed in argument by the respondents, but I am still left with a question as to whether the fact exists; I do not believe that anything turns on the point because, as will be seen for the reasons that follow, the AECB is bound to apply the provisions of CEAA with respect to the issuance of the licence, which in turn will require a determination respecting the application of the Comprehensive Study List Regulations. Thus, ICUCEC's argument on the application of paragraph 19(b) can be made at that time.
[23]However, subject to the findings in sections D, E, and F of these reasons below, I find that the issuance of the licence under review triggers at least an environmental assessment under paragraph 5(1)(d) of CEAA, and since an environmental assessment was not conducted before the licence issued, the AECB did not have jurisdiction to issue the licence.
D. The correct interpretation of section 74 of CEAA
1. The arguments
[24]CEAA came into force on January 19, 1995, and replaced EARPGO. Section 74 of CEAA sets out the relevant transitional provisions as follows:
74. (1) The Environmental Assessment and Review Process Guidelines Order, approved by Order in Council P.C. 1984-2132 of June 21, 1984 and registered as SOR/84-467, shall continue to apply in respect of any proposal that prior to the coming into force of this section was referred to the Minister for public review and for which an Environmental Assessment Panel was established by the Minister pursuant to that Order.
(2) The Order referred to in subsection (1) shall continue to apply in respect of any proposal for which an environmental screening or initial assessment under that Order was commenced before the coming into force of this section, but where any such proposal is referred to the Minister for public review pursuant to section 20 of that Order, this Act shall thereupon apply and the Minister may refer the project to a mediator or a review panel in accordance with section 29.
(3) Where a proponent proposes to carry out, in whole or in part, a project for which an environmental screening or an initial assessment was conducted in accordance with the Order referred to in subsection (1), and
(a) the project did not proceed after the assessment was completed,
(b) in the case of a project that is in relation to a physical work, the proponent proposes an undertaking in relation to that work different from that proposed when the assessment was conducted,
(c) the manner in which the project is to be carried out has subsequently changed, or
(d) the renewal of a licence, permit, approval or other action under a prescribed provision is sought,
the responsible authority may use or permit the use of the environmental screening or initial assessment and the report thereon to whatever extent it is appropriate to do so for the purpose of complying with section 18 or 21.
(4) Where the construction or operation of a physical work or the carrying out of a physical activity was initiated before June 22, 1984, this Act shall not apply in respect of the issuance or renewal of a licence, permit, approval or other action under a prescribed provision in respect of the project unless the issuance or renewal entails a modification, decommissioning, abandonment or other alteration to the project, in whole or in part.
[25]The AECB and Cogema submit that the AECB was correct in its legal decision with respect to the issuance of the licence because the McClean Lake Project is not subject to the provisions of CEAA by operation of the transition provisions found in section 74 of CEAA; indeed, they submit that subsection 74(1) provides a complete defence to ICUCEC's challenge. The respondents argue that, in effect, subsection 74(1) applies in such a way as to make continuing environmental assessment under CEAA and its regulations unnecessary before licensing decisions are taken by the AECB with respect to the McClean Lake Project.
[26]As a practical matter, in its initial written argument in support of the present application, ICUCEC made no mention of the effect of section 74. In response, the respondents both raised the interpretation of section 74 as mentioned. As a result, ICUCEC was directed to reply to the respondents' arguments. The written and oral arguments with respect to section 74 run as follows.
| a. ICUCEC's submissions in reply |
[27]In reply to the raising of section 74 by the respondents, ICUCEC submits that the respondents have misinterpreted its meaning and have broadened its scope beyond its intended purpose. ICUCEC states that the aim of subsection 74(1) is to allow a panel appointed under EARPGO to continue its public review uninterrupted by the entry into force of CEAA. ICUCEC finds support for this submission in the French language version of subsection 74(1), which refers to "examens publics", i.e., public reviews, not the entire lifespan of a project itself.
[28]ICUCEC submits that the English language version is ambiguous and that this ambiguity is resolved by reference to the French version.
[29]ICUCEC also argues that transitional provisions are by nature temporary and have a limited application, otherwise an absurd result would occur where the EARPGO scheme, which was repealed by CEAA, would apply through the operating lifespan of the McClean Lake Project. ICUCEC submits that Parliament could not have intended for EARPGO to apply for an additional 20 to 40 years.
| b. Respondents' submission in sur-reply |
[30]The AECB submits that the legislative purpose of the transitional provisions was to avoid duplicative environmental assessments and that this specific intent is expressed in sections 4 [as am. by S.C. 1994, c. 46, s. 1] and 5 of CEAA.
[31]The AECB also points to this Court's decision in Société pour vaincre la pollution v. Canada (Minister of the Environment) (1996), 136 D.L.R. (4th) 747 (F.C.T.D.) where at page 753, Justice Reed comments that EARPGO "continues to apply in cases where public review panels have been established before the coming into force of [CEAA]".
[32]The AECB submits that the wording of the French language version must be reconciled with the English language of the section, the object of section 74, and the legislation as a whole in keeping with the approach of the Supreme Court of Canada in Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, at pages 777-778 for interpreting bilingual federal legislation.
[33]Cogema's submissions also rely on the purpose of the transitional provisions and CEAA as a whole. Cogema submits that the English language version of subsection 74(1) is not ambiguous, and when read in context the meaning is readily ascertainable.
[34]Cogema also argues that the acceptance of ICUCEC's argument would result in "serious anomalies" which could not have been intended as follows:
For example, if an EARPGO panel reported even a single day after CEAA came into force, a full CEAA environmental assessment would have to be conducted before any of the powers or duties referred to in s. 5 of CEAA could be exercised. That would result in an enormous waste of effort and resources. Section 74(1) was enacted to obviate that sort of duplication by providing, in effect, that a CEAA environmental assessment is not required in relation to a proposal which had been subjected to an EARPGO assessment by an environmental assessment panel.
On ICUCEC's reading of CEAA, there would have been no practical reason for an EARPGO panel to complete an environmental assessment after the enactment of CEAA. The report would have been immediately overtaken by the need for a CEAA -based assessment. That makes little sense. The better view is that Parliament intended that EARPGO environmental assessments underway when CEAA came into force should be completed, not just for the sake of completing them, but so that their substantive results could be applied on an ongoing basis in relation to the projects which have been reviewed. [Sur-reply of the respondent Cogema, paras. 6 - 7.]
[35]Both respondents submit that any changes that have arisen in the McClean Lake Project have not transformed it into a new project requiring a new environmental assessment. Indeed, the record indicates that the subject-matter of the licence under review, being the operation of the JEB mill and the TMF, was considered by the EARPGO panel.
[36]With respect to the relationship between the environmental and regulatory schemes, the respondents argue that environmental assessments occur as early as possible in the planning stages of a project, and as projects move into the construction phase, design evolution occurs to respond to the findings of an assessment panel and/or the environmental concerns of a regulator such as the AECB. That is, the two schemes work together to ensure environmental protection.
[37]Thus, the respondents argue that, since the panel assessment under EARPGO and the regulatory decision making of the AECB have worked together with respect to the McClean Lake Project, there is no reason for a CEAA review.
2. Conclusion
[38]In my opinion, there is nothing ambiguous about the plain wording of the English version of subsection 74(1), and there is no meaningful difference between the English and French versions. I find there is absolutely nothing in the wording of section 74 to support the interpretation that proposals begun under EARPGO are grandfathered from the application of CEAA.
[39]In my opinion, the interpretation of section 74 must be limited to its stated purpose, that is, to supply an orderly transition from the application of one environmental protection regime (EARPGO) to the application of another (CEAA) with respect to a given ongoing project. A primary objective evident in section 74 is to ensure that environmental assessment work started under the forerunner regime is not lost in the application of its successor regime.
[40]With respect to the AECB's reliance on the decision in Société pour vaincre la pollution, I am unable to find that Justice Reed's comment quoted above goes far enough to provide useful guidance with respect to the interpretation of section 74 in the fact situation of the present case.
[41]I am also not assisted, as Cogema argues, by the fact that in Société pour vaincre la pollution Justice Reed refused to exercise her discretion to require a CEAA assessment to be done based on her view that there is no meaningful difference between an assessment review conducted under EARPGO and one under CEAA. As I state below in section I of these reasons, the legal obligation on the AECB is the factor that drives the result in favour of ICUCEC.
[42]I interpret section 74 as follows:
By subsection 74(1), where a proposal has been referred to the Minister, and a panel has been appointed under EARPGO prior to CEAA coming into force, the panel is to go ahead and complete its work under EARPGO even though CEAA is in effect. It is important to note in this respect that there is no mention in the transition provision about what is to occur after the panel completes its work. In my opinion, since CEAA is in effect at that time, CEAA applies.
By subsection 74(2), where for a proposal only an environmental screening or initial assessment under EARPGO was started prior to CEAA coming into force, the provisions of EARPGO continue to apply, and CEAA is not engaged unless the proposal is referred to the Minister for public review under EARPGO; and from then on, the provisions of CEAA apply.
By subsection 74(3), where, for a proposal only, an environmental screening or initial assessment under EARPGO was started prior to CEAA coming into force, the provisions of EARPGO continue to apply, and CEAA is not engaged unless the proposal qualifies as a "project" under CEAA and there exists any one or more of three conditions: there has been a delay in proceeding with the proposal/project; there is an important change in the proposal/project; or a permission granted is to be renewed. Where CEAA is engaged by operation of subsection 74(3), the screening or assessment conducted under EARPGO can still be used as considered appropriate.
By subsection 74(4), for certain work in progress before June 22, 1984, and a permission is needed, or a permission already granted is to be renewed, CEAA is not engaged unless certain conditions apply.
[43]ICUCEC does not argue that subsection 74(3) applies in the present case. Subsection 74(4) does not apply in the present case.
[44]In my opinion, the theoretical "serious anomalies" argument posed by Cogema as cited above can be easily answered by a reasonable and practical approach to taking and judging action in the transitional phase. For example, the obligation of a responsible authority to see that a comprehensive environmental assessment is conducted with respect to a licence to issue just after a panel report is issued can be met by conducting the required assessment using the evidence and opinion then current and adding to it as needed for old or new issues concerning a project under consideration.
[45]Therefore, as I reject the respondents' argument with respect to the correct interpretation of section 74 and essentially accept that of ICUCEC, I find there is no reason on the interpretation of section 74 not to require the application of CEAA to the issuance of the licence under review.
E. The correct interpretation of the definition of "project" in subsection 2(1) of CEAA
[46]Cogema argues that CEAA does not apply to the McClean Lake Project because it is not a "project" within the meaning of CEAA and, thus, is not subject to CEAA environmental review. To advance this argument, Cogema relies on the decision of Justice Richard (as he then was) in Tsawwassen Indian Band v. Canada (Minister of Finance) (1998), 27 C.E.L.R. (N.S.) 177 (F.C.T.D.); confirmed on appeal (2001), 37 C.E.L.R. (N.S.) 182 (F.C.A.).
[47]In Tsawwassen, an application was brought to judicially review a decision with respect to a container terminal project then well under construction, with the objective of compelling an environmental assessment under CEAA. The threshold question for determination was whether the container terminal project was a "project" subject to the provisions of CEAA. In agreeing with Justice Richard's conclusion that it was not, at paragraph 9, the Appeal Division placed stress on the word "proposed" in the definition of "project" in subsection 2(1) of CEAA as follows:
2. (1) . . .
"project" means
(a) in relation to a physical work, any proposed construction, operation, modification, decommissioning, abandonment or other undertaking in relation to that physical work . . . . [Underlining added.]
[48]As a result, the Appeal Division agreed that, since environmental assessments must be done only of proposed construction which is still in the planning stages, the container terminal project was not a "project" within CEAA because construction was well under way.
[49]I find that Tsawwassen is readily distinguishable on the facts of the present case. The present case deals, not with "proposed construction", but the "proposed operation" of the JEB mill and TMF. As the arguments of both respondents set out, the McClean Lake Project has progressed in stages since construction began in 1994. In the time period under consideration in the present case, by licence AECB-MFOL-170-0.4, on March 26, 1999, approval was given for the construction of the TMF and associated tailings and water handling systems. Approval for the operation of the JEB mill and the TMF was delayed until June 21, 1999 with the issuance of the licence under review.
[50]Thus, the most important feature which distinguishes the present situation from that considered in Tsawwassen is that, in the staged mining project in the present situation, progress from one stage to another is subject to licensing approval. That is, each stage of the project is, in fact and in law, a new "project" as that term is defined in subsection 2(1) of CEAA, which by paragraph 5(1)(d), requires an environmental assessment before a licence is issued.
[51]Therefore, I dismiss Cogema's "not a project" argument.
F. The application of exclusion provisions
[52]Section 2 of Schedule 1 of the Exclusion List Regulations, SOR/94-639 provides an exemption from the assessment requirements of CEAA on the following conditions:
2. The proposed operation of an existing physical work that is the same as an operation for which an environmental assessment has been previously conducted under either the Canadian Environmental Assessment Act or the Environmental Assessment Review Process Guidelines Order where:
(a) as a result of the assessment, the environmental effects have been determined to be insignificant taking into account the implementation of mitigation measures, if any; and
(b) the mitigation measures and follow-up program, if any, have been substantially implemented.
[53]In its reply argument with respect to the interpretation of section 74 (paragraph 14), ICUCEC states the alternative argument that the McClean Lake Project JEB mill and the TMF is not the same "proposal" that was reviewed by the appointed EARPGO panel in 1992-1993 because of significant changes, and, therefore, does not fall within the ambit of subsection 74(1). To support this argument, a good deal of technical evidence is cited. This argument caused both respondents to as well argue substantive technical detail to counter it.
[54]However, during the course of the oral hearing, ICUCEC stated that, in reaching a decision, I should consider the argument at paragraph 14 only for the purpose of determining that there can be no exemption from the assessment requirements of CEAA by application of section 2 of the Exclusion List Regulations. Cogema presents the opposite argument.
[55]In sur-reply, Cogema advances the argument that, indeed, the requirements of section 2 have been met by citing the facts that the application for the licence under review concerns the operation of a physical work which is the same as that considered by the EARPGO assessment panel, "the environmental effects of the operation of the facility had been determined to be insignificant", and mitigation measures and follow-up programs had been substantially implemented (paragraphs 43-44).
[56]Cogema cites the following statement as the determination with respect to the environmental effects:
The Board's staff concludes that if the facility adheres to the operating procedures and limits prescribed in the licensing documents, there should be no long-term significant environmental impacts. . . . It was also concluded that the partially-filled facility with the placement of McClean Lake tailings only, would not have this impact so the JEB TMF could be operated in the short term without causing significant long-term environmental impact. [Board member document 99-53, certified documents, p.1084.]
[57]I have two concerns about Cogema's argument. First, section 2 of Schedule 1 of the Exclusion List Regulations requires a determination that environmental effects are insignificant: that is, on the evidence this conclusion has been reached. The statement just quoted does not say that; it projects that in the future this determination will be made.
[58]I agree with Cogema's sur-reply argument, supported by the AECB, that I should not engage in "a review of the quality of the science conducted by the AECB and the Panel" (paragraph 24), and that a determination under section 2, Schedule I is the responsibility of AECB (paragraph 40). My second concern is that I cannot find that a determination with respect to section 2, Schedule I of the Exclusion List Regulations has been made which would allow a judicial review on a standard to be determined.
[59]As a result, since the application of section 2, Schedule I has not been determined, I find that there is no ground to conclude that section 2, Schedule I is engaged to exclude the project from the application of CEAA.
G. The precautionary principle
[60]In its memorandum of fact and law, ICUCEC raises the application of the precautionary principle of international environmental law to the issuance of the licence. During the course of the oral hearing, I agreed with the respondents' objection that, since the principle was not cited as a ground of judicial review in the notice of application, it cannot be argued.
H. Arguments against the application of discretion to quash the licence
[61]Thus, having found no impediment to the application of CEAA, as provisionally addressed at the end of section C of these reasons above, I conclusively find that the issuance of the licence under review triggers at least an environmental assessment under paragraph 5(1)(d) of CEAA, and since an environmental assessment was not conducted before the licence issued, the AECB did not have jurisdiction to issue the licence.
[62]Nevertheless, two arguments have been made by Cogema that I should not exercise my discretion to quash the licence as requested by the ICUCEC.
1. Delay
[63]Cogema argues that I should not grant relief in the present case on the basis of the following principle:
Where an applicant is guilty of unreasonable delay in bringing his [sic] application before court, he may find the remedy barred to him. This is especially true where the delay would result in hardship or prejudice to the public interest or to third parties who have acted in good faith on the strength of the delegate's apparently valid decision (Jones and de Villars, Principles of Administrative Law (3rd ed.) at 583).
[64]Cogema says that ICUCEC was alert to the arguments it is advancing for a considerable time before it commenced the application in the present case. As a result, it is argued that it is inappropriate and unfair for ICUCEC to delay its legal challenge to the licensing of the McClean Lake Project until Cogema has fully constructed the facilities in issue.
[65]In answer to this submission, I accept the reasons offered by ICUCEC that it made early objections to the issuance of the licence in the best way it knew how. There is no doubt on the record that the AECB was alerted well in advance of the issuance of the licence that there was a legal issue outstanding concerning its jurisdiction to do so. Indeed, the AECB's letter of February 4, 1999 cited above is evidence of this. In addition, with respect to hearings regarding the licence held in Ottawa on April 22 and June 17, 1999, on April 16 the following written submission was made by Mr. Phillip Penna:
In other words, we are looking at a significantly different project than what has been reviewed during the environmental assessment process. The "one project-one assessment" no longer applies. Before an operational licence is approved, we demand that a comprehensive study under the Canadian Environmental Assessment Act be undertaken to review the new "site specific" design of the JEB Pit. (Certified document, Vol. VI, p.1150.)
[66]I also accept ICUCEC's explanation that, after the issuance of operating licence AECB-MFOL-170-0.4 to permit the construction of the TMF and associated tailings and water handling systems, there was a reasonable expectation that the licence to operate under review might not be issued in the staged decision-making process adopted. Thus, it is understandable that action was not instituted until the licence was issued.
[67]After the licence was issued despite the contention voiced, and after the present application was filed in July 1999, Cogema proceeded as it was authorized to do. At the oral hearing I confirmed that ICUCEC did not apply for an injunction to stop the work authorized by the licence until the present application could be finally determined. The respondents did not seriously argue that the ICUCEC was at fault for not doing so.
[68]I can find no blame to lay against ICUCEC. The AECB knew that there was a legal question outstanding with respect to the application of CEAA, it made a determination on this question before the issuance of the licence which I have found is wrong in law, and, in my opinion, it is not now open to it to complain that it is being held accountable.
2. Economic harm and the public interest
[69]On Cogema's oral and written arguments, I understand that to quash the licence under review will seriously impair operations of the McClean Lake Project, and impose significant immediate human and economic costs.
[70]Indeed, since the issuance of the licence, the JEB mill and TMF have been in operation with significant progress being accomplished. It is an agreed fact that, at its board meeting of November 4, 1999, the AECB approved the issuance of Mining Facility Operating Licence AECB-MFOL-170-0.6 which amended the licence under review in the present application. Licence 170-0.6 authorizes Cogema to mine the SUE open pits and to process the ore at the JEB mill. In the course of oral argument, counsel for the AECB agreed that, if the licence under review is not valid, then neither is licence 170-0.6.
[71]Thus, quashing the licence will result in significant immediate term consequences. However, I accept ICUCEC's argument that, to not allow the application of CEAA to run its course with respect to the issuance of the licence, would be to curb much needed public scrutiny of a highly contentious aspect of the McClean Lake Project. After careful consideration, I accept ICUCEC's argument that it is in the public interest to exercise my discretion.
I. Decision
[72]The legal question to be answered in the present case is: Does CEAA apply to the McClean Lake Project? I find that the answer is: Yes. I recognize that a great deal of effort has been put into the supervision of the project by the AECB, and that the AECB is confident that, in applying its regulatory processes, all consideration has been given to health and safety, security, and protection of the environment. However, I find that the obligation to comply with the provisions of CEAA is mandatory, and, thus, its provisions must be followed.
[73]Given all the work accomplished by the AECB on the project, in the course of oral argument, counsel for Cogema posed the question: What difference will an environmental assessment make? My answer is: Let us wait and see if the public nature of the environmental assessment process will succeed in accomplishing that which the ICUCEC says it wants; that is, an improvement on the truth about the JEB mill and the TMF.
ORDER
For the written reasons provided, as the AECB's decision to issue operating licence AECB-MFOL-170-0.5, issued on June 17, 1999, was made in error of law, I find that the AECB did not have jurisdiction to issue the licence. Accordingly, I hereby quash the licence.
As there is no failure or refusal of the AECB to act within jurisdiction, I find there are no grounds to issue an order of mandamus against it.
As it is successful in the present application, I award costs in favour of the applicant against the respondents jointly.