Date: 19990308
Docket: T-2015-97
BETWEEN:
THE CITIZENS" MINING COUNCIL
OF NEWFOUNDLAND AND LABRADOR INC.
Applicant
- and -
THE MINISTER OF THE ENVIRONMENT,
THE MINISTER OF PUBLIC WORKS AND GOVERNMENT SERVICES,
THE MINISTER OF FISHERIES AND OCEANS,
VOISEY'S BAY NICKEL COMPANY LTD., AND
HER MAJESTY THE QUEEN IN RIGHT OF NEWFOUNDLAND
Respondents
REASONS FOR ORDER
MacKAY J.
[1] This is an application concerning environmental assessments of the Voisey"s Bay nickel project. Put simply, the applicant here challenges the environmental assessment process by two separate environmental impact assessments of developments proposed by the respondent corporation, one for its proposed mine/mill development at Voisey's Bay in Labrador, and the other for its proposed smelter/refinery development at Argentia in Newfoundland. The applicant submits that the two projects require assessment by a single process encompassing both developments.
[2] The originating notice of motion, filed September 15, 1997, seeks various forms of relief, including declarations that the proposed project by Voisey"s Bay Nickel Company Limited ("the Company") to construct and operate a mine and mill at Voisey"s Bay, Labrador, and a smelter and refinery at Argentia, Newfoundland, is a single "project" within the meaning of the Canadian Environmental Assessment Act , S.C. 1992, c.37 (the "Act"), and that the Act requires a single assessment of this project. In the course of hearing this application, and again in subsequent written submissions, the Court was asked by the applicant to consider alternative relief, that is, a declaration that the respondent Ministers have unlawfully and invalidly failed to require a single environmental assessment of the proposed mine, mill, smelter and refinery, as required by s-s. 15(3) of the Act.
[3] In addition to this primary form of relief, by its originating notice of motion the applicant also seeks an order of mandamus requiring the respondents to amend the terms of reference issued to a review panel in respect of the mine/mill development to encompass both the mine/mill and the smelter/refinery, and an order in the nature of prohibition to prevent the respondents from making any decision or taking any course of action which is inconsistent with the declarations here sought.
General Background
[4] The applicant in this matter, the Citizens" Mining Council of Newfoundland and Labrador, is a coalition of over 465 persons and 12 socio-environmental organizations representing some hundreds of additional persons. The stated objectives of the applicant are: to monitor mining and related activities in Newfoundland and Labrador, to promote education and awareness of environmental issues arising from mining and related issues in Newfoundland and Labrador, and to ensure that appropriate authorities are aware of the general public"s views and concerns about environmental issues arising from mining and related developments.
[5] The respondents originally joined in this matter by the originating motion are the Canadian Government Ministers of the Environment, of Public Works and Government Services ("Public Works"), and of Fisheries and Oceans. Voisey's Bay Nickel Company Limited ("VBNC" or the "Company"), the proponent of the developments, and Her Majesty the Queen in Right of Newfoundland and Labrador ("Newfoundland") applied and were joined as respondents, on consent. All respondents were represented at hearings of this application, the three Canadian Ministers being represented by counsel on behalf of the Attorney General.
[6] The factual background to this application is complex . Voisey"s Bay, the place, is located on the northeast coast of Labrador, between Nain and Utshimasits (Davis Inlet). In November 1994, Diamond Field Resources announced a very substantial mineral find, of nickel, copper and cobalt, near the Bay. Subsequently, in June 1995, Diamond Fields transferred its interests in this discovery to the Voisey Bay Nickel Company, later renamed Voisey"s Bay Nickel Company Limited. In August 1996, the Company became a wholly owned subsidiary of Inco Limited.
[7] When this application was heard in the spring of 1998 VBNC's plans were to mine, and to process by a mill, in Labrador, the ore found in the mineral deposit, producing nickel-cobalt and copper concentrates to be shipped off-site for smelting and refining. The Company also planned to construct a smelter and refinery at Argentia. At that time the mining operation was expected to last roughly 20 years, and the proposed smelter/refinery, for dealing with some or all of the nickel-cobalt concentrates, but apparently not the copper, would be designed to operate for 40 years.
[8] On September 27, 1996, the Company registered with the federal Department of Fisheries and Oceans, a Project Description Report for the proposed construction and operation of the mine and mill project at Voisey's Bay. On the basis of this report, that Department concluded that the proposed mine and mill would require authorization under the Fisheries Act, R.S.C. 1985, c. F-14 as amended, because of anticipated disruption of fish habitat, and also a permit under the Navigable Waters Protection Act, R.S.C. 1985, c. N-22, as amended. These requirements trigger the environmental assessment requirements under the Act. Since the Department of Fisheries has the power to issue the authorizations, the Minister of Fisheries and Oceans is the responsible authority under the Act for the assessment of the proposed mine and mill development.
[9] That development also requires an environmental assessment under the Newfoundland Environmental Assessment Act, R.S.N. 1990, c.E-14 (the "NEAA"). The assessment process for the mine and mill initiative is somewhat complicated by reason of aboriginal land claims of the Labrador Inuit Association and of the Innu Nation to lands in the Voisey"s Bay region. In January 1996, the Newfoundland Minister of Environment and Labour wrote to the federal Minister of the Environment proposing a co-operative environmental assessment process for the mine and mill project that would ensure meaningful participation by the Inuit and Innu.
[10] Negotiations during the summer and fall of that year between the aboriginal groups and the two governments resulted, on November 21, 1996, in a draft Memorandum of Understanding ("MOU") for the conduct of the environmental assessment of the mine and mill project at Voisey"s Bay. Public comment on the draft MOU was invited. The applicant, then an unincorporated coalition of citizens and environmental groups, commented on December 15, 1996, on the proposed assessment process provided under the MOU. It did so without referring to the proposed smelter and refinery development that had been announced on November 29, 1996, by the Company, to be located at Argentia, on the west of the Avalon peninsula in the southeastern part of the island of Newfoundland, some 1200 kilometres southeast of Voisey"s Bay. Apparently only one of 100 written comments received on the assessment process proposed for the mine/mill development under the MOU, that from the Canadian Arctic Resources Committee, suggested that the smelter/refinery development and the mine/mill development be considered part of the same project for the purposes of an environmental assessment.
[11] Subsequently, on January 31, 1997, a final version of the MOU was agreed to by the federal and provincial governments and the native groups concerned. Its stated purpose is the establishment of "a single effective and efficient process for assessing the Environmental Effects of the Undertaking, including provisions for comprehensive public involvement." The "undertaking" includes all activities related to the proposed construction, operation, demolition, decommission, and rehabilitation of the mine/mill project. The scope of that project was determined to include the mine and mill and all physical works in relation to the mine and mill, including an evaluation of the shipping corridors from the mine/mill to existing shipping lanes off the east coast of Labrador, though apparently not including shipping lanes all the way to Argentia.
[12] The smelter/refinery initiative was not included in environmental assessment arrangements for the mine/mill project. The parties to the MOU considered possible inclusion of the smelter/refinery project at Argentia but concluded that the great distance between the two projects, the difference in environments and affected populations, along with the different natures of the proposed projects and of their potential impacts on the environment, warranted two separate assessments, one of the mine/mill project and one of the smelter/refinery project. Further, it was not anticipated that with the distance between the projects, there would be any cumulative environmental impact and it was also noted that the knowledge and experience required of potential assessment panel members would differ for the two developments.
[13] On January 31, 1997, after consultation with the province and the aboriginal groups, five panel members were appointed by the federal Minister of the Environment to conduct the environmental assessment of the mine and mill, in keeping with the MOU. By March 1997, the panel had devised draft Guidelines for the Environmental Impact Statement ("EIS") for the mine/mill project and it made these available for public and governmental review and comment. On April 29, 1997, in submissions before this review panel, the applicant, still an unincorporated association, objected to the assessment of the project without including the proposed smelter/refinery project and it raised the spectre of litigation. Principals of the applicant met with the Newfoundland Minister of Environment and with representatives of Public Works Canada in May, 1997, to renew their objection. Final Guidelines for the EIS for the mine/mill project were issued on June 20, 1997. They did not include provision for environmental assessment of the smelter/refinery project at Argentia.
[14] Under the issued Guidelines, the Company is to address in its EIS "all phases" of the mine/mill project. The EIS is to be made available to the public for comment for a review period, after which the panel would determine whether the EIS contains sufficient information to hold public hearings. Thereafter, following any hearings considered necessary by the panel, it submits a report to the signatories of the MOU describing the public review process, summarizing any comments and recommendations received from the public, and setting out the rationale, conclusions and recommendations of the panel itself. The panel is empowered under the MOU; by its own understanding it is not conducting an assessment directly under the Act or the NEAA. Once the panel"s report is submitted to the Canadian Ministers of the Environment and of Fisheries and Oceans, the latter's Department will then, pursuant to s.37 of the Act , determine whether to grant the permits necessary for work on the project at Voisey's Bay to proceed.
[15] It has been noted that VBNC announced the smelter/refinery site at the end of November 1996. On December 12, 1996, the Company registered the smelter/refinery project as required under the Act, proposing construction on a site owned by the Government of Canada and operated under the Department of Public Works and Government Services, at Argentia. As the project would involve the transfer of federal government land, Public Works is the responsible authority pursuant to the Act.
[16] The smelter/refinery also requires environmental assessment under the provincial NEAA. When the Company registered the smelter/refinery project for environmental assessment under the NEAA on December 9, 1996, it was advised that the two levels of government were negotiating a harmonized environmental process to avoid duplication of effort. On March 18, 1997, the Company was supplied with Guidelines for Preparation of Terms of Reference for the Argentia Nickel Smelter and Refinery Environmental Impact Statement and for the Comprehensive Study ("Guidelines"), to provide guidance on its completion of requirements under the NEAA and the Act. In accordance with the Comprehensive Study List Regulations, SOR/94-638, because of the proposed large marine terminal to be constructed with the smelter/refinery, Public Works, as the responsible authority, determined that a comprehensive environmental study, within the meaning of the Act and Regulations, was required. Under s.23 of the Act, should the comprehensive study identify significant environment effects or should public concern warrant, the project could still be referred to a mediator or a review panel, and there is opportunity for public participation by commenting on the review process at a later stage whatever the process.
[17] On March 26, 1997, the Company returned to the governments its draft terms of reference for the Argentia Environmental Impact Statement. It was subsequently informed, on May 23, 1997, that this draft was generally acceptable, subject to certain changes. The Company then commenced preparation of its environmental assessment for the smelter/refinery project, the report of which would be used by the federal and provincial Ministers to assess the environmental viability of the project and the appropriate next steps, if any, in the assessment process.
[18] In contemplating whether the assessment should be conducted in combination with the mine/mill analysis, Public Works determined that the large distance between the mine and mill in Voisey's Bay and the smelter/refinery at Argentia meant that environmental impacts of the project would affect different environments and populations, and that there would be no potential for cumulative effects. Further, it was determined that the mine/mill and the smelter/refinery would not be interdependent, for the concentrate from the mine may be processed at other smelters. Indeed, roughly 1/3 of the mineral concentrate produced by the mine/mill would not go to the refinery at Argentia. Thus the smelter may serve as a multi-client facility, smelting ore from other sources than Voisey's Bay. In these circumstances, the Department concluded that the two VBNC project initiatives were not so interlinked that the decision to proceed with one made inevitable the decision to proceed with the other. Other differences between the projects include the absence of aboriginal interests at the Argentia site, the industrial nature of the Argentia region compared with the Voisey's Bay region, and the difference in by-products produced by each facility.
[19] On the facts by affidavit evidence, the projects are administered separately, each with its own separate management team, and its own manager of environmental assessment, within the Company. Further, the Company established, for each of the projects, separate consultants and environmental assessment teams to assess and manage the different environmental effects of each project. At the same time, when this matter was heard the smelter/refinery was still clearly viewed by the Company as part of its overall development from the Voisey"s Bay mineral resource, and while the Court notes media reports suggest the two projects may now be considered more distinct in the view of VBNC, the smelter/refinery decisions are not likely to be made without some reference to relevant mine/mill developments, including the further exploration of ore reserves. It may be that without an approved mine/mill the Argentia smelter/refinery would probably not be constructed, and construction of the mine/mill may not necessitate construction of the smelter/refinery but there is also considerable pressure not to proceed with a mine/mill project unless the smelter/refinery project also proceeds.
The application for judicial review
[20] Following its incorporation at the end of June 1997 the applicant wrote to the respondent ministers on July 17, 1997, urging that there be a single environmental assessment of the smelter/refinery project together with the mine/mill, all as one project, as some of the applicant's principals had earlier urged in representations concerning the MOU panel's draft Guidelines for the EIS for the mine/mill project. In a letter dated August 12, 1997, a representative of the Minister of Public Works, writing of behalf of the Minister, replied to the applicant"s letter, indicating that Public Works is the lead Responsible Authority for the smelter/refinery proposal and that its responsibilities include determination of the scope of the project to be assessed. The letter further advised that Public Works considers the mine/mill proposal to be separate from the smelter/refinery proposal. That letter said in part:
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In determining the scope of the project to be assessed according to Canadian Environmental Assessment Agency advice, PWGSC considers the mine/mill proposal to be separate from the smelter/refinery proposal. It was determined that the geographical distance between the two project sites was such that one assessment of the two undertakings would be highly impractical and, in fact, could work to the detriment of the overall quality of a given review because of the very different environments typifying the respective locations, particularly in terms of ecology, geology, culture and socioeconomics. |
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Similarly, PWGSC is awaiting the results of the provincial selection process prior to making a decision concerning whether the power generation proposal will be subject to the CEAA. Should the preferred option be situated on PWGSC lands, an assessment pursuant to the Act would be mandatory. Additional consideration will be given to including such a project into the ongoing Comprehensive Study once design information has been received. |
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With regard to the other area of PWGSC's responsibilities, the scope of the environmental assessment, the potential scope of a Comprehensive Study is for all practical purposes unlimited. In this regard, the decision by PWGSC to carry out a Comprehensive Study as opposed to a referral to a Mediator or Review Panel was predicated in large part on the fact that this department could determine the scope it believed was necessary to protect the environment. Added to this is PWGSC's authority to determine related investigative protocols, including public consultation. |
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In this latter regard, I would like to assure you that PWGSC will be holding public meetings on the Environmental Impact Study following its release by Voisey's Bay Nickel Company Limited. At that time, concerned members of the public, including your Council, will have an opportunity to provide any and all comments regarding the potential environmental impact of the project on the environment. Related input will subsequently be used to determine whether a Mediator or Review Panel will be required. |
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[21] On September 15, 1997, the applicant brought this application for judicial review. The originating notice of motion does not identify a specific decision of the respondents, or of any of them, as the focus for the relief sought, but in referring to grounds for relief it does refer to written advice from the respondent Ministers in August 1997, which must mean the letter from Public Works, which denied the applicant's request that the panel's terms of reference (i.e. the panel for the mine/mill assessment) be amended to assess the entire project proposed by VBNC.
The statutory context
[22] The Canadian Environmental Assessment Act establishes the legal context within which the environmental assessment process is here challenged. Section 5 of the Act specifies that an environmental assessment is required where, inter alia, a federal authority has the administration of federal lands and disposes of them or transfers administration and control of the lands to a province to enable the project to be carried out (paragraph 5(1)(c)), or where it must authorize a statutory or regulatory approval to enable the project to proceed (paragraph 5(1)(d)). A "project", under s. 2, in relation to a physical work, means "any proposed construction, operation, modification, decommissioning, abandonment or other undertaking in relation to that physical work".
[23] By s.11, the federal authority involved under s.5 is the "responsible authority" charged with ensuring that the environmental assessment is conducted as early as is practicable in the planning stages of a project and before irrevocable decisions are made. In the case at bar, the requirement triggering an environmental assessment for the mine/mill project is a statutory trigger, the necessity for a permit or license, under paragraph 5(1)(d), and the "responsible authority" is the Minister of Fisheries and Oceans. In the case of the Argentia facility, the assessment is triggered under paragraph 5(1)(c), and the responsible authority is the Minister of Public Works and Government Services.
[24] When an assessment is required s.14 provides that the environmental assessment may comprise a screening, or a comprehensive study, mediation or assessment by a review panel and, where applicable, the implementation of a follow up program. Section 15 of the Act concerns the scope of the project to be assessed and s. 16 deals with the factors to be considered in every screening or comprehensive study of a project and every mediation or assessment by a review panel. It is s. 15 that is principally in issue in this application. It provides as follows:
| 15. (1) The scope of the project in relation to which an environmental assessment is to be conducted shall be determined by
| (a) the responsible authority; or |
| (b) where the project is referred to a mediator or a review panel, the Minister, after consulting with the responsible authority. |
(2) For the purposes of conducting an environmental assessment in respect of two or more projects,
| (a) the responsible authority, or |
| (b) where at least one of the projects is referred to a mediator or a review panel, the Minister, after consulting with the responsible authority, |
may determine that the projects are so closely related that they can be considered to form a single project.
(3) Where a project is in relation to a physical work, an environmental assessment shall be conducted in respect of every construction, operation, modification, decommissioning, abandonment or other undertaking in relation to that physical work that is proposed by the proponent or that is, in the opinion of
| (a) the responsible authority, or |
| (b) where the project is referred to a mediator or a review panel, the Minister, after consulting with the responsible authority, |
likely to be carried out in relation to that physical work.
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15. (1) L'autorité responsable ou, dans le cas où le projet est renvoyé à la médiation ou à l'examen par une commission, le ministre, après consultation de l'autorité responsable, détermine la portée du projet à l'égard duquel l'évaluation environnementale doit être effectuée.
(2) Dans le cadre d'une évaluation environnementale de deux ou plusieurs projets, l'autorité responsable ou, si au moins un des projets est renvoyé à la médiation ou à l'examen par une commission, le ministre, après consultation de l'autorité responsable, peut décider que deux projets sont liés assez étroitement pour être considérés comme un seul projet.
(3) Est effectuée, dans l'un ou l'autre des cas suivants, l'évaluation environnementale de toute opération - construction, exploitation, modification, désaffectation, fermeture ou autre - constituant un projet lié à un ouvrage:
| a) l'opération est proposée par le promoteur; |
| b) l'autorité responsable ou, dans le cadre d'une médiation ou de l'examen par une commission et après consultation de cette autorité, le ministre estime l'opération susceptible d'être réalisée en liaison avec l'ouvrage. |
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[25] The Act itself does not set out the meaning of "scope" for the purposes of s.15. The Canadian Environmental Assessment Agency, charged with overseeing the implementation of the Act , has published a Responsible Authorities Guide outlining, inter alia, factors that should be taken into consideration in determining the scope of a project, including the inter-dependence of physical works or activities, any linkage that ensures that a decision to proceed with one work or activity renders another inevitable, and the proximity of physical works.
[26] Where there is overlap between the federal environmental review process and a provincial assessment, in those assessments where a panel is required or permitted by the Act, s.40 provides that the Minister of Environment may enter into an agreement with the province respecting the joint establishment of a review panel and the manner in which an assessment of the environmental effects of the project is to be conducted by the review panel. Section 42 indicates that where the Minister establishes a joint review panel, the assessment conducted by the panel is deemed to satisfy any requirements of the Act and the regulations concerning assessments by a review panel. It is under these provisions that the review panel was established to assess the mine/mill project under the MOU, an arrangement not followed in relation to the smelter/refinery project, for which a comprehensive study has been undertaken by Public Works, the responsible authority, in cooperation with provincial authorities.
Issues
[27] There are a number of issues raised by the parties in this case, though not all have labelled the issues the same way and not all have offered submissions on each issue. I deal with their various submissions in regard to the issues as I identify them. There are three general preliminary procedural issues:
| 1. the applicant's standing to bring this application, |
| 2. the focus and timeliness of this application, and |
| 3. the evidence provided by the applicant"s affidavit material. |
After dealing with those issues I turn to the fourth, and principal issue, the substance of the application, considering whether the Responsible Authority erred in not combining in one assessment the mine/mill and the smelter/refinery projects.
[28] I note that following the hearing of this matter decisions were filed by my colleagues Mr. Justice McKeown, in Alberta Wilderness Association v. Canada (Minister of Fisheries and Oceans)1 and Mr. Justice Gibson, in Friends of the West Country Assn. v. Canada (Minister of Fisheries and Oceans)2, upon which counsel for the parties made further written submissions. Those submissions are here taken into consideration.
Analysis
1. The applicant's standing to bring this application
[29] The applicant, an incorporated non-profit body without financial stake in the projects being assessed, relies upon the three-part test for public interest standing invoked in Friends of the Island v. Canada (Minister of Public Works)3, a test based on that established by the Supreme Court of Canada in Canadian Council of Churches v. Canada (Minister of Employment and Immigration)4. Under this test, the applicant must show that a serious issue is raised regarding invalidity of legislation or administrative action, that it has a genuine interest in the issue, and that there is no other reasonable and effective manner to bring the issue before the Court.
[30] The VBNC contends that the applicant has not raised a serious issue, that it does not have a genuine interest, in the sense of a real and continuing interest, in the legality of the federal administrative action at issue in this case. It is urged that more than a mere bona fide interest and concern about social and environmental issues is necessary to obtain public interest standing. Indeed, it is urged, an applicant to claim that standing must have a longstanding reputation and it must do significant work on the subject-matter of the challenge, and its interest must be greater than that possessed by a member of the general public.
[31] In the case at bar, it is said by VBNC that the applicant cannot demonstrate a real and continuing commitment to environmental issues raised by the developments from the exploitation of the ore body, given that it was incorporated only three months before these proceedings were commenced, and it had less than a $100 is assets in the month following the commencement of the proceedings. The applicant, it is urged, is merely a shell company formed for the purposes of this litigation. Further, it is said there is no evidence that the applicant, or its members, are subject to any direct impact from the proposed projects that is distinct from the impact on the public at large, and the applicant has not identified any individual members who reside near the site of the smelter/refinery, even though it is said many members live down wind from the proposed project site.
[32] In my opinion, standing is to be accorded to the applicant in this case under the doctrine of public interest. In applying the test set by the Canadian Council of Churches case this Court has rejected argument that the words "directly affected" in s-s.18.1(1) of the Federal Court Act, R.S.C. 1985, c. F-7 as amended, should be given a relatively restricted meaning. In Friends Of The Island Madam Justice Reed, after canvassing the development of Supreme Court rulings on standing in constitutional matters, wrote:5
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I think the wording in subsection 18.1(1) allows the Court discretion to grant standing when it is convinced that the particular circumstances of the case and the type of interest which the applicant holds justify status being granted. (This assumes there is a justiciable issue and no other effective and practical means of getting the issue before the courts). ... |
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[33] Subsequently, in Sunshine Village Corp. v. Canada (Minister of Canadian Heritage) et al.6, the Federal Court of Appeal followed Reed J. in holding that s-s.18.1(1) could not be interpreted as narrowing the Supreme Court's test for public interest standing. In that case, the Canadian Council of Churches test was applied. Finding that the issue before it, whether an environmental assessment was required, was justiciable, the Court held that the applicant had a genuine interest in that its primary objective, and that of its members, was to preserve the integrity of the ecosystem in Canada's parks and wilderness areas.
[34] In the case at bar, in my opinion the issue raised by the applicant is a serious one. It concerns the application of s. 15 of the Act at an initial stage of the environmental assessment process by the responsible authority. Also, the applicant"s primary objective, environmental protection, particularly with regard to the Voisey"s Bay and Argentia regions, coupled with the evident interest of its members in the assessment process, is sufficient, in my view, to meet the genuine interest requirement of the test for public interest standing. The applicant has been granted a modest sum of intervenor funding to participate in the mine/mill panel assessment process. This level of involvement with the Voisey"s Bay development and its environmental assessment distinguishes this case from that of Shiell v. Canada (Atomic Energy Control Board)7, relied upon by the respondent Company, where the applicant seeking standing lived geographically distant from the proposed project, had only a generalized concern with the environment, and no direct personal interest and no history of involvement with the particular project there in question.
[35] While any member of the general public in Newfoundland and Labrador may have an interest in the matter, the applicant is the only one to demonstrate sufficient interest or the means to launch a court challenge. This is very different from the situation in Canadian Council of Churches where apart from the applicant, each refugee claimant, whose interests the applicant there sought to represent, clearly had a genuine interest to support a challenge to the impugned legislation. In the case at bar, a coalition has formed, and it is now incorporated, to express a communal concern and to challenge decisions that might otherwise be essentially beyond review. In my view, public interest standing may be accorded where the applicant has a genuine interest and there is no evidence of another or others with a genuine interest that could reasonably be expected to bring a challenge.
[36] In this regard VBNC urges that there are other directly affected individuals who could bring litigation concerning this matter but have not done so, in particular, individual residents of Argentia who have not litigated and, it is said, do not share the concerns of the applicant. I am not persuaded that because others might share the applicant's concerns, but have not commenced legal action, the applicant should be denied standing. There is no evidence that others might raise the important issue here raised by the applicant concerning the application of s. 15 of the Act in relation to what VBNC submits are two separate projects, which the applicant urges are required to be assessed as one under the Act.
[37] Thus, in my view, standing of the applicant to bring this application, if it is to proceed, warrants recognition in the public interest.
2. The focus and timeliness of this application
[38] Two further preliminary issues are raised in opposing this application. The first I describe as "the focus" of the application, i.e. what decision or action is here questioned and whether that is an appropriate matter for judicial review. The second issue concerns the timeliness of the application in light of the time set by s. 18.1 of the Federal Court Act for commencement of proceedings for judicial review.
[39] Earlier I noted that no decision is specifically referred to in the originating notice of motion filed September 15, 1997 as being questioned by this application. That notice does seek, inter alia, declaratory relief, that is that the two projects proposed by VBNC constitute one project within the meaning of the Act, which requires a single assessment, and it also seeks mandamus, to require amendment of the terms of reference provided for the review panel for the mine/mill project to encompass the project, implicitly to include the smelter/refinery and its environment effects. Further, in the course of the hearing, the applicant requested a declaration that the respondent Ministers have unlawfully failed to require a single assessment of VBNC's mine, mill, smelter and refinery project as required under s-s. 15(3) of the Act.
[40] Those forms of relief sought, and the process of discovery which apparently concentrated attention on the scope determined for the mine/mill project assessment, led VBNC and the federal Ministers to urge that the focus of the application is the decision, formally made in January 1997 when the terms of reference were settled for the review panel constituted under the MOU, and reaffirmed when the EIS guidelines for that review were finalized, after public consultation, in June 1997.
[41] It is urged by VBNC and the federal Ministers that this application was brought too late, roughly eight months after the terms of reference limiting the panel review to the mine/mill project were finalized in the MOU, approximately seven months after one of the applicant"s principals was told that the terms of reference for that assessment would not be revisited, and approximately five months after the applicant"s principal organizers made submissions on the scope of the assessment to the MOU review panel urging inclusion of the smelter/refinery project in its assessment. On the other hand, the applicant notes this proceeding commenced within 30 days of receipt of the letter from the Minister of Public Works dated August 12, 1997.
[42] Subsection 18.1(2) of the Federal Court Act requires that an application for judicial review be brought within 30 days after a decision or order is first communicated to the party directly affected. It is urged that the applicant commenced this proceeding long after it or its principals became aware of the decision concerning the terms of reference for assessment of the mine/mill project. The letter from the Minister of Public Works, it is urged, is not a decision or order for the purposes of calculating the time period under s-s.18.1(2) for it merely explained the original decision, said to have been made in January 1997 when the terms of assessing the mine/mill project were set by agreement under the MOU. Thus, it is said the Minister's August letter cannot be regarded as more than a "courtesy response", as in Dhaliwal v. Canada8, and in Dumbrava v. Canada9, where a negative response to a request to reconsider an earlier decision was found not to be a decision subject to judicial review under s. 18.1.
[43] For the federal Ministers it is urged that the applicant's principals were informed of the decision regarding the scope of the mine/mill project in February 1997 and that the 30 day period prescribed by s-s.18.1(2) commenced at that time. They concur with VBNC that the August letter from the Minister of Public Works was merely a courtesy letter affirming the scoping decision made on January 31, 1997 in the final MOU. They also support submissions that this application should be dismissed for lack of timeliness and that the Court should not exercise its discretion to extend the time.
[44] The applicant, in oral argument before me, urged that the application was brought within time but, in the alternative, that grounds exist for extending the time available for filing an application for judicial review. It is urged that the August letter from the Minister of Public Works, while referring to a decision on the scope of the project using the past tense, reflects a determination that until then was not communicated to the applicant. The applicant points to affidavit evidence suggesting that the determination of the precise scope of the smelter/refinery project was undertaken independently of and later than the decision concerning the scope of the mine/mill project. Comments by the Canadian Environmental Assessment Agency on the draft terms of reference for the smelter/refinery assessment belie the respondents' arguments that the final decisions on the scoping for both the mine/mill project and the smelter/refinery project were made at the time the MOU concerning the mine/mill project was settled in January 1997. These comments, dated April 22, 1997, read, inter alia,
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The RA [Responsible Authority] cannot determine the scope for the [smelter/refinery] project (s.15(1)) and the scope of the review (s.16(3)) until VBN takes a decision on the power plant. Lack of decision on the power plant poses the risk of significant delays for the environmental assessment of the project. |
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[45] I conclude that the responsible authority for the smelter/refinery project assessment, Public Works, had not made a final scoping decision under s.15 of the Act by late April 1997. The August 12 letter to the applicant was the first clear indication of the scoping determination made by Public Works. As a consequence, insofar as the applicant here challenges the scoping decision related to the smelter/refinery, I find that the letter was not merely a courtesy response and that the application, insofar as it seeks to question the scoping decision of the Minister of Public Works, was made in a timely fashion, within the time specified to commence proceedings for judicial review pursuant to s-s. 18.1(2) of the Federal Court Act.
[46] I am cognizant that the applicant here urges that, in fact, the mine/mill and the smelter/refinery are the same "project" within the meaning of the Act, and that, as a consequence, the original scoping decision made in January 1997, by the MOU terms of reference, should have included both initiatives. Thus, Public Works' determination of August 12 was made in circumstances where it could be urged that the Minister of Environment failed in January to meet obligations under the Act. Yet, in my view, the applicant cannot rely on the reality of this August 12 determination by Public Works to base its application for judicial review and then directly attack the January 1997 decision. In my opinion, the issue in this application can only be whether the Minister of Public Works, the responsible authority for the smelter/refinery development, acted within the Act in excluding the mine/mill project from the smelter/refinery assessment, treating the smelter/refinery as a separate project for purposes of environmental assessment under the Act.
[47] Finally, having determined that the decision here at issue is that of Public Works, relating to the scope of the smelter/refinery project, there is argument that this is not a "decision" within the meaning of s-s.18.1(2) since it was only a preliminary decision in the process of environmental review. In my opinion, a scoping determination under s.15 of the Act is a decision within the meaning of s-s.18.1(2) of the Federal Court Act, and it is subject to judicial review.
[48] VBNC urged that a scoping decision is an interlocutory decision, rather than a final determination affecting rights that is subject to judicial review. By submissions in writing after the hearing, in support of its position VBNC referred to in the decision of Mr. Justice McKeown in Alberta Wilderness Association v. Canada (Minister of Fisheries and Oceans)10 in which he held that the report of a joint panel under CEAA, where a subsequent decision of the Minister concerned was not challenged, was not a matter subject to judicial review. That decision was subsequently reversed by the Court of Appeal.
[49] With respect, I am not persuaded that judicial review is premature in regard to a decision, by the responsible authority, determining the scope of the project which will be assessed, and which assessment that authority will later approve or disapprove. That decision is not merely a recommendation; rather it meets a statutory requirement11 and provides the basis for the process of the assessment from that point on and, as a consequence, in my opinion it is a decision subject to judicial review. I find support for this view in Wade's Administrative Law12, which reads, in part:
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Certiorari and prohibition will issue in respect of any exercise of statutory power which involves a true legal decision or determination. ... They will lie where there is some preliminary decision, as opposed to a mere recommendation, which is a prescribed step in a statutory process which leads to a decision affecting rights, even though the preliminary decision does not immediately affect rights itself. |
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[50] In any event, even if the s.15 determination is viewed as an interlocutory decision, it is my view that extraordinary circumstances, within the dicta of the Court of Appeal's decision in Szczecka v. Canada (Minister of Employment and Immigration)13, exist to warrant review in this case. The scoping decision is fundamental to the assessment that is to be undertaken. In my view, it is of sufficient significance in the assessment process that it is reviewable when made, and an applicant need not wait until the assessment is completed to commence judicial review of a determination under s. 15 of the Act, on the scope of a project.
[51] I find support for this result, in the circumstances of this case, in a recent decision of the Court of Appeal in Krause et al. v. Her Majesty the Queen14. There, judicial review was commenced without reference in the application to a particular decision questioned, and an order in the nature of mandamus and declaratory relief were sought in circumstances where the applicant urged, as the applicants in this case urge, that statutory obligations were not fulfilled. The motions judge found the application was filed out of time. Speaking for the Court, Stone J.A. held that in the circumstances, in light of the relief sought, it was not essential to question a particular decision and thus the statutory 30-day time limit did not apply where the complaint concerns alleged failure to comply with statutory responsibilities.
3. The evidence provided by the applicant's affidavit material
[52] A final preliminary matter in this case is the question of what account the Court may take of the applicant's affidavit material. VBNC urges that the applicant"s affidavit evidence contains mainly statements and opinions that are not within the personal knowledge of the affiant. In discussing the environmental impact of the project, the affiants rely on others or express lay views. It is urged that an originating motion should be struck out when the affidavit in support is deficient in that it is not limited to matters personally known to the affiant as required by former Rule 332(1), as it applied as all material times15. For its part, the applicant, in oral argument before me, relied on the principled exception to the hearsay rule, established by R. v. Smith16 and R. v. Khan17, based upon principles of reliability and necessity.
[53] In Vancouver Island Peace Society v. Canada18, I had occasion to deal with this same issue in an application for judicial review questioning a decision on environmental issues under regulations then in effect. In that case, I declined to strike the whole or portions of the affidavit evidence in question since in the circumstances it was not necessary for my decision. Subsequently, in Labatt Brewing Co. v. Molson Breweries19, Mr. Justice Heald commented on the admissibility of hearsay under Rule 332 as follows:
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An affidavit may now contain statements of the deponent that are based on information and belief, if this prima facie inadmissible hearsay evidence falls within the common law exceptions to the hearsay rule. The question to be asked is whether the evidence sought to be admitted meets the common law exceptions to hearsay, which are now governed by the criteria of necessity and reliability. |
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[54] In the case at bar, I do not assess each piece of evidence in terms of its reliability and the necessity for its admission. The evidence was not addressed in that manner by counsel. Rather, it was urged for VBNC that the evidence should be excluded virtually in toto, and for the applicant that it should be admitted in toto. My conclusion on the merits of this application, even if the applicant's evidence were accepted, precludes the necessity of determining what elements of affidavit evidence objected to as hearsay should be admitted.
4. Was there error in failure to combine the projects in one assessment process?
[55] I turn to the substance of this application. The applicant says that the Act by s-s. 15(3) requires a single environmental assessment of the two projects proposed by VBNC. It is urged that the words "in whole or in part", appearing in both paragraphs (c) and (d) of s-s. 5(1), which provide respectively for environmental assessments in regard to each of the VBNC projects, mean that in an environmental assessment of either of the projects proposed the other project may be included.
[56] The applicant relies upon the Supreme Court decisions in Friends of Oldman River Society v. Canada20, and Quebec (Attorney General) v. Canada (National Energy Board)21, ("Hydro-Quebec"), as authorities supporting the proposition that a broad assessment relating to the entire project is triggered where the federal government has broad legislative power over activities to be encompassed in the entire project, including all effects, such as those "upstream" from one project. By analogy, it is urged, the federal authority to examine "upstream" facilities, including the mine/mill facility, is triggered by the use of federal lands for the proposed smelter/refinery initiative.
[57] The applicant urges that, while s-s.15(1) provides the Minister or the responsible authority, as the case may be, with the discretion to "determine" the "scope of the project",
s-s.15(3) imposes a limit on this discretion. The latter subsection provides "where a project is in relation to a physical work, an environmental assessment shall be conducted in respect of every construction, operation...or other undertaking in relation to the physical work". The word "every" is emphasized by the applicant, and it is urged that where a project is a physical work, the assessment of the project must extend to all its related undertakings, including here another physical work, with which the project is interrelated.
[58] The applicant urges that its interpretation of s-s.15(3) is supported by the definition of "project" in s.2 of the Act , which uses the term "any" to tie "proposed construction, operation, modification, decommissioning, abandonment or other undertaking" to the definition of "project", where a physical work is involved. As I understand the applicant"s argument, the use of the term "every" in s-s.15(3), rather than "any" as is found in s.2, broadens the scope of the term "project" in s-s. 15(3) to encompass, mandatorily, every construction, operation, undertaking, etc., and not just those that the decision-maker, in its wisdom, sees fit to include within the meaning of "project", something that use of the term "any" as in s.2 would otherwise permit. In oral argument, counsel for the applicant focused on the words "in relation to" within s-s.15(3), urging that it is this phrase, to be defined very broadly, that curbs the decision-maker's discretion under s.15.
[59] In sum, it is urged that, under s-s.15(3) the scope of a physical work or "project" must include every related construction, operation or other undertaking or activity that is proposed by the same proponent. Otherwise, the decision maker fails to exercise its jurisdiction and its decision is subject to be set aside on judicial review. It is urged, by the applicant, that s-s. 15(3) restricts the discretion of the decision-maker, and in this case the mine, mill, smelter and refinery are integrally related undertakings, in terms of management, economics, production, scheduling, approval and environmental effects. By s-s. 15(3), it is urged, the two projects are required to be considered as one project, subject to a single environmental assessment process.
[60] All of the respondents argue against construction of s-s. 15(3) proposed by the applicant. I am persuaded that the subsection does require inclusion in a project involving a physical work every phase of the life-span of the work, "every construction, operation, modification, decommissioning, abandonment or other undertaking in relation to that work". I am not persuaded, however, that s-s. 15(3) requires a single environmental assessment when two projects, each relating to a physical work or works, are proposed by the same proponent, even if the two projects are somewhat interrelated. Those are circumstances included within s-s. 15(2), which authorizes one assessment in respect of two or more projects where the responsible authority or the Minister of Environment determines that the projects are so closely related that they can be considered a single project. That determination is clearly discretionary, not one bound by statute.
[61] There is no project to be assessed until a decision or action within s. 5 is to be made. Here two projects were proposed by VBNC, which treats them as separate projects, and it sought necessary approvals at different times, by different responding authorities. In these circumstances, in my opinion if the two are to be combined within a single environmental assessment under the Act, a determination to do so must be made under s-s. 15(2). I am not persuaded that the applicant is correct in construing s-s. 15(3) as requiring inclusion in one project for environmental assessment of every physical work proposed by one proponent. Rather in my view, that provision relates to inclusion of all phases of the life cycle of a physical work that are proposed by the proponent. If they are not so proposed s-s. 15(3) leaves final discretion to the responsible authority or the Minister to determine "construction, operation...abandonment or other undertaking in relation to that physical work is likely to be carried out..." and is thus to be included in the assessment of that work. Where a proponent does not include such a phase in the project, discretion may be exercised to include it, but by a deliberate decision of the responsible authority or of the Minister.
[62] The French version of s-s. 15(3), phrased differently than the English version, provides for "l'évaluation environmentale de toute opération - construction, exploitation, modification, désaffectation, fermeture ou autre - constituant un projet lié à un ouvrage". That indicates that the matters to be included by s-s. 15(3) for assessment are phases of a physical work or of its life cycle. That, in my opinion is consistent with the scheme of the Act which provides in s-s. 15(2) for a determination to be made, within vested discretion, that a single assessment is warranted for two projects proposed.
[63] Thus, I am not persuaded that s-s. 15(3) imposes a duty on Public Works to include within the scope of the smelter/refinery project the mine/mill project proposed by VBNC. Public Works did not err in law when it did not include the mine/mill project within the scope of the smelter/refinery project for purposes of environmental assessment.
[64] I noted earlier that the parties provided written submissions concerning the decision in Friends of the West Country Association22. In that case the applicants sought judicial review of two environmental screening reports, each dealing with a proposed physical work, a bridge, to be constructed over rivers. The bridges were joined by a new road to provide access to and transport of logs from an area with substantial logging prospects. In the two screening reports the environmental effects of the connecting road and of exploiting the logging area were not considered. While the interpretation of s. 15 raised in the case at bar does not appear to have been a major issue in that case, Gibson J. determined that in the circumstances it was open to the responsible authority to determine that the two bridges were not so closely related as to form a single project for purposes of an environmental assessment. Moreover, there was no error in defining the scope of the projects subject to environmental review, specifically in not including within the bridge projects, or either of them, the road and the proposed forestry operations.
[65] His Lordship did find, however, that the responsible authority, in framing the scope of the environmental assessment had erred in failing to take account, under s-s. 16(1), of the cumulative effects of the road construction and the exploitation of the logging potential, activities that had been or would be carried out. That failure Gibson J. found to be an error in law, and by Order the approvals of the screening reports were set aside. In the case at bar, the issue concerns the application of s. 15 and no argument was raised about the application of s. 16 of the Act, the basis of the decision in Friends of the West Country. I do note that in the case at bar, Public Works, did consider that there was no potential for cumulative effects of the two projects in considering the scope of the project under s-s. 15(1).
[66] When this matter was heard counsel for the respondents submitted that the standard of review to be applied in this matter was one requiring significant deference by the Court for the decision of the responsible authority. I accept that, as I have in other cases23. Where statutory discretion, as here exercised under s-s. 15(1) of the Act, has been exercised reasonably, in good faith, without reference to irrelevant considerations and has not been exercised illegally, a reviewing court will not intervene even if it might have exercised the discretion differently24.
[67] It is the applicant's view that the mine/mill and smelter/refinery projects are integrally related, i.e., in their ultimate development and operation by one proponent, VBNC; in that the size of both are dependant, at least in substantial part, on the underlying economics of exploiting the mineral reserves, so that production of minerals of both projects is substantially interrelated; in that approval for both, at least initially, was interrelated; and finally since some environmental effects are interdependent. On the other hand, VBNC points to separate management teams within VBNC for each project's development, environmental assessment, and ultimately its operations, to the distance between the projects, and to the different populations and environments principally affected by each one.
[68] In its August 1997 letter to the applicant, Public Works advised that its decision for separate assessment of the smelter/refinery was based on its conclusions that the two projects are separate, that the distance between the two made one assessment of the two projects highly impractical and indeed one assessment might be detrimental because of different environments affected with different factors to be assessed. By affidavit, Mr. Paul Bernier, Vice President of the Canadian Environmental Assessment Agency, avers that Public Works' determination to proceed with a separate assessment of the smelter/refinery project included the following considerations:
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(a) In light of the large distance between the Mine and the Smelter, it was considered that any effects would impact different environments and different populations, and accordingly, there was no potential for cumulative effects; |
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(b) It was considered that the Mine and the Smelter would not be interdependent as it was understood that concentrate from the mine could be processed at other smelters; and that, because the projected life span of the Smelter was significantly longer than that of the Mine, it was expected that the Smelter could be a multi-client facility; and |
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(c) The two projects were not linked to such an extent that the decision to proceed with one made inevitable the decision to proceed with the other. |
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[69] In the circumstances, I am not persuaded that Public Works, in exercising its discretion, was unreasonable. Its determination was not based on irrelevant considerations, and the decision was open to it in light of the facts and factors known to it. There is no suggestion the department acted in bad faith. There is thus no basis on which the exercise of discretion by Public Works, the responsible authority, should here be set aside.
Conclusion
[70] I summarize my conclusions. First, the applicant in this case has public interest standing to pursue the application since it meets the test set out by the Canadian Council of Churches case. Second, the application, insofar as it relates to the smelter/refinery project, is timely, and the decision on the scope of the project by Public Works was a decision within s-s. 18.1(2) of the Federal Court Act. Third, the propriety of the applicant's affidavit evidence need not be assessed in detail, or finally, where the Court's decision on the merits of the application is not dependant on assessing that evidence.
[71] Fourth, on the main issue, the respondent Minister of Public Works did not err in law in the decision to undertake a comprehensive environmental assessment in relation to the smelter/refinery project without including the mine/mill project in that assessment, for s-s. 15(3) does not impose a duty, in the circumstances of this case, to include the two projects in one environmental assessment. Finally, the determination of the respondent Minister of Public Works, made in the exercise of statutory discretion under s-s. 15(1) of the Act, was not unreasonable and was supportable on the basis of the facts and factors relevant for consideration in that decision.
[72] Thus, there is no basis on which the Court should intervene and there is no basis for any of the declarations sought, or for the extraordinary relief by mandamus or prohibition sought, by the applicant. An Order goes dismissing the application for judicial review.
Costs
[73] The applicant, VBNC and Newfoundland all asked for costs in written submissions. The respondent federal ministers did not seek costs in written submissions but did so request when the matter was heard. At the hearing, the province, Newfoundland, withdrew its request for costs.
[74] I acknowledge that for all parties costs of the application were increased because of interruption in the hearing as originally scheduled, when as presiding judge I was not able to continue, and the matter was concluded only after an adjournment, increasing travel costs and time committed by counsel.
[75] At the time of preparations for the hearing and for its argument the Court's Rules provided that, aside from special reasons, costs were not awarded on judicial review applications (see Rule 1618, as it then applied). The Rules changed when the Federal Court Rules, 1988 came into effect on April 25, 1998 and Rule 400 now leaves the matter of costs in an application such as this, as in other cases, entirely within the discretion of the Court.
[76] Each of the applicants, VBNC and the federal ministers argued the claim for costs in light of then Rule 1618, urging there were special factors in the preparatory stages, or in the argument, of this application which unnecessarily increased the difficulties each faced in preparation or presentation of its case. The application deals with circumstances faced by the applicant in a continuing series of decisions by VBNC, two governments and more than one federal department. The circumstances created complexity for all parties. I am not persuaded that the special factors relied upon to warrant an order of costs were entirely within the capacity of any one party to control. Thus I am not persuaded that an award of costs would have been warranted under Rule 1618 as it applied when this matter was heard.
[77] Under the Court's current Rules the Court ultimately has complete discretion in regard to an award of costs. In my opinion, in this case that discretion is not to be exercised by an award to any party. That was the normal circumstance when the application was prepared and heard, and no party is substantially responsible for the complexities each of the parties faced. The Order, now issued, specifies that each party shall bear its own costs.
Judge
OTTAWA, Ontario
March 8, 1999.
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1 Court file T-2354-97, June 12, 1998 (F.C.T.D.), [1998] F.C.J. No. 821 (F.C.T.D.) online: QL(FCJ); reversed on appeal, Court file A-430-98, Dec. 1 and Dec. 4, 1998; [1998] F.C.J. No. 1746 (F.C.A.) online: QL(FCJ).
2 [1998] 4 F.C. 340, 150 F.T.R. 161 (F.C.T.D.).
3 [1993] 2 F.C. 229 (F.C.T.D.).
4 [1992] 1 S.C.R. 236 at 253.
5 Supra note 3, at 283.
6 (1996), 202 N.R. 132; 44 Admin. L.R. (2d) 201 (F.C.A.).
7 (1995), 33 Admin L.R. (2d) 122 (F.C.T.D.).
8 (June 6, 1995), File No. IMM-7381-93; [1995] F.C.J. No. 982 (F.C.T.D.), online: QL(FCJ).
9 (1995), 101 F.T.R. 230 (F.C.T.D.).
10 Supra, note 1.
11 See, Alberta Wilderness Assn. v. Canada (Minister of Fisheries and Oceans) , decision of the Court of Appeal, supra, note 1.
12 Wade, Sir William, Administrative Law , (6th ed.) Oxford, Clarendon Press, 1988, at 637-638.
13 (1993), 116 D.L.R. (4th) 333 (F.C.A.).
14 Unreported, Court file A-135-98, February 8, 1999 (F.C.A.), [1999] F.C.J. No. 179 (F.C.A.) online: QL(FCJ).
15 Rule 332(1) of the Court's former Rules provided: Affidavits shall be confined to such facts as the witness is able of his own knowledge to prove, except on interlocutory motions... A similar requirement is set out by Rule 81(1) of the Federal Court Rules, 1998, with the exception specified as being in relation to motions.
16 [1992] 2 S.C.R. 915.
17 [1990] 2 S.C.R. 531.
18 [1994] 1 F.C. 102 (F.C.T.D.).
19 (1996), 113 F.T.R. 39.
20 [1992] 1 S.C.R. 3.
21 [1994] 1 S.C.R. 159.
22 Supra, note 2.
23 See Cantwell et al. v. Minister of the Environment et al., (1991), 41 F.T.R. 18; Union of Nova Scotia Indians v. Canada (Attorney General), [1996] 122 F.T.R. 81 (F.C.T.D.). See also, Strayer J. in Vancouver Island Peace Society v. Canada (1992) 53 F.T.R. 300.
24 Re Maple Lodge Farms Ltd. v. Government of Canada et al. (1982), 137 D.L.R. (3d) 558 at 562 (S.C.C.).
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