Date: 20040604
Dockets: A-528-02
A-549-02
Citation: 2004 FCA 218
CORAM: RICHARD C.J.
ROTHSTEIN J.A.
SHARLOW J.A.
BETWEEN:
ATOMIC ENERGY CONTROL BOARD and COGEMA RESOURCES INC.
Appellants
(Respondents)
and
INTER-CHURCH URANIUM COMMITTEE EDUCATIONAL CO-OPERATIVE,
of the City of Saskatoon, the Province of Saskatchewan
Respondent
(Applicant)
and
ATTORNEY GENERAL OF SASKATCHEWAN, LAC LA RONGE
INDIAN BAND, KITSAKI DEVELOPMENT LIMITED PARTNERSHIP
and NORTHERN RESOURCE TRUCKING LIMITED PARTNERSHIP
Interveners
Heard at Calgary, Alberta, on May 3 and 4, 2004.
Judgment delivered at Ottawa, Ontario, on June 4, 2004.
REASONS FOR JUDGMENT BY: SHARLOW J.A.
CONCURRED IN BY: RICHARD C.J.
ROTHSTEIN J.A.
Date: 20040604
Docket: A-528-02
A-549-02
Citation: 2004 FCA 218
CORAM: RICHARD C.J.
ROTHSTEIN J.A.
SHARLOW J.A.
BETWEEN:
ATOMIC ENERGY CONTROL BOARD and COGEMA RESOURCES INC.
Appellants
(Respondents)
and
INTER-CHURCH URANIUM COMMITTEE EDUCATIONAL CO-OPERATIVE,
of the City of Saskatoon, the Province of Saskatchewan
Respondent
(Applicant)
and
ATTORNEY GENERAL OF SASKATCHEWAN, LAC LA RONGE
INDIAN BAND, KITSAKI DEVELOPMENT LIMITED PARTNERSHIP
and NORTHERN RESOURCE TRUCKING LIMITED PARTNERSHIP
Interveners
REASONS FOR JUDGMENT
SHARLOW J.A.
[1] These are appeals of an order of the Federal Court dated September 23, 2002, which granted the application of the respondent, Inter-Church Uranium Committee Educational Co-operative (the "ICUC"), to quash Operating Licence AECB-MFOL-170-0.5 (the "0.5 licence") issued by the Atomic Energy Control Board to Cogema Resources Inc. on June 21, 1999. The 0.5 licence authorized, among other things, the operation of a "tailings management facility" for the McClean Lake Project, a uranium mine in northern Saskatchewan approximately 350 kilometres north of the town of La Ronge. On November 7, 2002, the order under appeal was stayed by Noël J.A. pending the disposition of these appeals.
[2] The basis of the order is that the 0.5 licence was invalid because its issuance was not preceded by an environmental assessment under section 5 of the Canadian Environmental Assessment Act, S.C. 1992, c. 37 (the "CEAA"). There had already been an environmental assessment under the Environmental Assessment and Review Process Guidelines Order, SOR/84-467 (the "Guidelines") enacted under the Government Organization Act, 1979, S.C. 1978-79, c. 13, s.14.
[3] Separate appeals of the order were commenced by Cogema and the Board. The appeals were heard together. It was not noticed until late in the proceedings that Cogema is the only proper appellant. The Board, as the maker of the impugned decision, should have been permitted intervener status at most. However, as none of the parties raised a timely objection on the question of status, the Board's appeal was permitted to proceed.
Facts
[4] The ICUC was formed in 1980 and incorporated in 1991 under the Co-operatives Act, S.S. 1989-1990, c. C-37.2 [repealed and replaced by the Co-operatives Act, S.S. 1996 c. C-37.3]. Its members represent a number of different churches, First Nations and Métis communities. One of the reasons for its incorporation was to work toward phasing out uranium mining in Saskatchewan (affidavit of Linda Kathryn Murphy, AB I, p. 64). Whether that remains one of the goals of the ICUC is not clear. This case demonstrates its interest in trying to ensure, at least, that government decision makers who address issues relating to uranium mining adhere to all applicable environmental laws.
[5] Cogema operates a uranium mine in northern Saskatchewan known as the "McClean Lake Project", which is owned as to 70% by Cogema, 22.5% by Denison Mines Ltd. and 7.5% by OURD (Canada) Co. Ltd. (affidavit of Robert W. Pollock, AB VIII, page 1680). Uranium was discovered in the McClean Lake area in 1979.
[6] The Board was established as an agency of the federal government by section 3 of the Atomic Energy Control Act, R.S.C. 1985, c. A-16. One of its responsibilities was to regulate uranium mining in Canada through a licensing regime set out in the Uranium and Thorium Mining Regulations, SOR/88-243.
[7] For the purposes of these appeals, the most important feature of the Uranium and Thorium Mining Regulations is that they contemplate "staged licensing". That is, a separate licence is required for each stage in the development and operation of a uranium production facility, from the removal of uranium from the ground to the decommissioning of a uranium mine. Specifically, the Uranium and Thorium Mining Regulations require a license to remove uranium from a removal site (section 11), to excavate uranium at an excavation site (section 12), to site or construct a mine or mill (section 13), to operate a mine or mill (section 14), and to suspend or cease a licensed activity at a mining facility or decommission a mining facility (section 15). The information required in an application for a licence for any of these stages, and the terms and conditions that may be imposed in a licence, are set out in the relevant sections of the Uranium and Thorium Mining Regulations.
[8] For every licence issued under the Uranium and Thorium Mining Regulations, the licensing authority must be satisfied that the applicant has provided adequately for the protection of the environment (see paragraph 7(2)(b) for licences under section 11, section 12 or section 15, and paragraph 8(2)(b) for licences under section 13 or section 14).
[9] On May 31, 2000, the Nuclear Safety and Control Act, S.C. 1997, c. 9, came into force. It established the Canadian Nuclear Safety Commission (the "Commission") as a successor to the Board. At the same time, the Uranium and Thorium Mining Regulations were replaced by the Uranium Mines and Mills Regulations, SOR/2000-206. Nothing in these appeals turns on these changes in the regime for the regulation of uranium mining.
[10] During the period relevant to these appeals, it was the practice of the Board to issue licences with relatively short time frames. Each licence relating to a particular uranium production facility after the first one would supercede the preceding one. Activities covered by a prior licence would be included in the superceding licence if they were to be permitted to continue, so that only one licence would be in effect at any point in time.
[11] All proposals to mine uranium in Canada are affected by federal environmental legislation. As of June 22, 1984, the applicable law was set out in the Guidelines which, despite the title, imposed a mandatory requirement for environmental assessments of all proposals within its scope: Canadian Wildlife Federation Inc. v. Canada (Minister of the Environment)(T.D.), [1989] 3 F.C. 309, affirmed (1989), 4 C.E.L.R. (N.S.) 1 (F.C.A.); Friends of the Oldman River v. Canada, [1992] 1 S.C.R. 3.
[12] It is important to understand the Guidelines, as Cogema and the Board rely upon their compliance with the Guidelines as a foundation for the 0.5 licence and subsequent licences. The ICUC does not suggest that there has been a failure to comply with the Guidelines but argues that, for the 0.5 licence, there should have been compliance with both the CEAA and the Guidelines.
[13] The Guidelines were intended to ensure that every proposal within the decision making authority of the federal government was "subject to an environmental screening or initial assessment to determine whether, and the extent to which, there may be any potentially adverse environmental effects from the proposal" (subsection 10(1) of the Guidelines). The scheme of the Guidelines contemplated an environmental assessment early in the planning stages, prior to the making of "irrevocable decisions" (section 3 of the Guidelines). The term "proposal" was defined in section 2 of the Guidelines as follows:
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"proposal" includes any initiative, undertaking or activity for which the Government of Canada has a decision making responsibility.
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« proposition » S'entend en outre de toute entreprise ou activité à l'égard de laquelle le gouvernement du Canada participe à la prise de décisions.
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[14] Initiating departments were required to refer proposals to the Minister of the Environment for public review by an Environmental Assessment Panel if the potentially adverse environmental effects of the proposal were unknown or significant (paragraphs 12(d) and (e) of the Guidelines), if the proposal by its nature would have such significant adverse environmental effects that it would be referred automatically to the Minister for public review by a panel (subsections 11(b) and 12(b) of the Guidelines), or if public concern about the proposal was such that a public review was deemed to be desirable (section 13 of the Guidelines).
[15] The members of a panel were appointed by the Minister of the Environment pursuant to section 21 of the Guidelines. According to section 22, the members of a panel were required to:
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(a) be unbiased and free of any potential conflict of interest relative to the proposal under review;
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a) faire preuve d'objectivité et ne pas être dans une situation où il y a risque de conflit d'intérêts quant à la proposition à l'étude;
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(b) be free of any political influence; and
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b) être à l'abri de l'ingérence politique; et
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(c) have special knowledge and experience relevant to the anticipated technical, environmental and social effects of the proposal under review.
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c) posséder des connaissances particulières et une expérience se rapportant aux effets prévus de la proposition sur les plans technique, environnemental et social.
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[16] The terms of reference of each panel were set by the Minister of the Environment after consultation with the Minister responsible for the initiating department (subsection 26(1) of the Guidelines). The proceedings of a panel were public and were conducted, according to subsection 27(1) of the Guidelines, in a "non-judicial and informal but structured manner" ( « de manière informelle suivant des règles déterminées mais non judiciaires » ).
[17] The rules governing the proceedings of a panel allowed for public access to information submitted to a panel, and an opportunity for public input (section 29 of the Guidelines). Provision was also made for the negotiation of provincial participation in a public review by a panel (section 35(c) of the Guidelines). Following the review of a proposal, the panel was required to report its conclusions and recommendations to the Minister of the Environment and the Minister responsible for the initiating department, who were required to make the report available to the public (section 31 of the Guidelines).
[18] The additional responsibilities of an initiating department upon receipt of a report from a panel are set out in section 33 of the Guidelines, which reads in part as follows:
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33.(1) It is the responsibility of the initiating department in a public review to [...]
(c) subject to subsection (2), decide, in cooperation with any other department, agency or board of the Government of Canada to whom the recommendations of a Panel are directed, the extent to which the recommendations should become a requirement of the Government of Canada prior to authorizing the commencement of a proposal;
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33.(1) Lors d'un examen public, il incombe au ministère responsable :
[...]
c) sous réserve du paragraphe (2), de décider, en collaboration avec d'autres ministères, commissions or organismes fédéraux visés par les recommandations de la commission, de la mesure dans laquelle ces recommandations devraient devenir des exigences fédérales avant d'autoriser la mise en oeuvre d'une proposition;
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(d) subject to subsection (2), ensure, in cooperation with other bodies concerned with the proposal, that any decisions made by the appropriate Ministers as a result of the conclusions and recommendations reached by a Panel from the public review of a proposal are incorporated into the design, construction and operation of that proposal and that suitable implementation, inspection and environmental monitoring programs are established [...].
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d) sous réserve du paragraphe (2), s'assurer, en collaboration avec d'autres organismes responsables, que les décisions prises par les ministres responsables à la lumière des conclusions et des recommandations qu'a formulées une commission à la suite de l'examen public d'une proposition, sont prises en considération dans la conception, la réalisation et l'exploitation de cette proposition et que des programmes appropriés de mise en oeuvre, d'inspection et de surveillance environnementale sont établis [...].
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2. Where the initiating department has a regulatory function in respect of the proposal under review, the responsibilities set out in paragraphs (1)(c), (d) ... shall be amended to account for and not to interfere with the decision making responsibilities of that initiating department.
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2. Lorsque le ministère responsable a un rôle de réglementation à l'égard de la proposition à l'étude, les responsabilités énoncées aux alinéas (1)c), d) [...] sont modifiées de façon à tenir compte des décisions de ce ministère et à ne pas y nuire.
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[19] The Guidelines were in force in 1991, when the McClean Lake Project was first proposed. Also in force in Saskatchewan was The Environmental Assessment Act, S.S. 1979-80, c. E-10.1. For the purposes of these appeals, it is not necessary to consider the Saskatchewan statute in detail. It is enough to note that the regulatory authorities for Saskatchewan and Canada have cooperated from the outset in the regulation of the activities in issue in this case. The Attorney General of Saskatchewan has intervened to support these appeals.
[20] In 1991, a single joint federal provincial panel (the "Panel") was established under the Guidelines for a number of uranium mining proposals for northern Saskatchewan, including the McClean Lake Project. Its terms of reference read as follows (Appeal Book, Volume II, page 376-7):
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MANDATE
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1. The panel shall review the environmental, health, safety and socio-economic impacts (hereinafter referred to as "impacts") of the proposed uranium mine developments (listed in Schedule A) in northern Saskatchewan and assess their acceptability.
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In assessing the acceptability of the proposed developments, the panel will include in its review and consider:
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a) the historical experience with past and existing uranium mining operations in Saskatchewan;
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b) the cumulative impacts of existing operations and the proposed developments;
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c) the short and long term impacts of the proposed projects, spanning their construction phase, operating period, decommissioning phase and post-decommissioning phase;
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d) the impact of employment and socio-economic opportunities afforded northern residents by the proponents and the measures necessary for implementation of those opportunities;
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e) the adequacy of measures proposed by the project proponents to protect environmental quality and to safeguard worker health and safety, and whether the measures can be expected to meet the requirements of Canadian and Saskatchewan law, regulations and policies applicable to uranium mine developments;
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f) the adequacy of monitoring, enforcement and compliance systems to ensure that measures necessary for mitigating adverse impacts can be implemented; and
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g) the benefits afforded by the proposals.
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2. The panel shall determine from its review whether a project is acceptable or unacceptable.
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In concluding that a project is acceptable, the panel may recommend that specified minimum terms and conditions, including any mitigative measures or any other measures relating to the impacts under the panel's review, be implemented where it considers these necessary for the protection of health, safety and the environment or for dealing responsibly with socio-economic concerns. The panel may also suggest measures that it considers would enhance the acceptability of the proposals.
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If the panel concludes a project is unacceptable, it shall provide its reasons for this conclusion.
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3. In fulfilling its mandate, the panel shall provide full opportunities for public consultation and review.
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REVIEW PROCEDURES
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Detailed written procedures for conducting the review shall be established by the panel and made available to the public.
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TECHNICAL EXPERTS
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The panel may secure the services of independent technical experts to assist and advise on complex technical and/or socio-economic issues related to its mandate. Such experts will also be available to respond to enquiries from review participants.
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STAGES OF THE REVIEW
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Schedule A lists the five proposals to be reviewed by the panel. The five proposals have been referred due to potentially significant or unknown adverse environmental effects and public concern.
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While all of the proposals are in the planning stage, some are further advanced than others. Environmental Impact Statements (EIS) have been prepared for the first three proposals listed in Schedule A, one of which (Dominique-Janine extension) is associated with the existing operating uranium mining facility and two of which are for new uranium mining facilities. EIS documents have yet to be prepared for the last two proposals listed in Schedule A. The panel will take the differing stages of these projects into consideration when scheduling its review.
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The panel will seek public comment on the three available EIS's and determine their adequacy before proceeding to public hearings. When the panel is satisfied with the information provided, including that with respect to the cumulative impacts, it may report on one or more of these projects to the Ministers as described in the following stages of the review. The panel shall submit its final report(s) on these proposals within 18 months of its appointment.
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In reviewing the remaining two proposals, the panel will conduct scoping sessions in appropriate communities to solicit public comment and, based on these comments and its own consideration, prepare and issue Guidelines to the respective proponents for the preparation of EIS's. The cumulative impacts of these two proposals will be considered when the EIS documents have been submitted. The stages of the review following submission of these documents to the panel are outlined below. The panel shall submit its final report(s) on these two proposals within 18 months of receipt of the proponents' EIS's.
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1. Review of Information
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a) Review of the available information on the environmental, health, safety and socio-economic impacts of the uranium mining industry in Saskatchewan to date. The information and any related reports prepared will be made available to the public.
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b) Review of the past performance of the uranium mining industry in providing employment and socio-economic opportunities to northern residents. The information and any related reports prepared will be made available to the public.
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c) Review by the panel of Environmental Impact Statements (EISs) submitted by the proponents. The EISs will also be made available to the public for review and written comment.
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d) The panel may draw on proponents, technical agencies from within federal or provincial governments, independent experts and the public for available information.
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2. Should the panel, after reviewing the above information and considering public comments, deem an EIS deficient it may request additional information from the project proponent.
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3. Once the panel is satisfied with the information provided, it will announce public hearings for the project in question. If appropriate, the hearings may be structured to address more than one project.
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For the purposes of promoting public awareness and facilitating public comment, the panel will hold meetings and /or hearings in the appropriate norther communities, Regina, Saskatoon and in such other Saskatchewan communities as the panel may think necessary.
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4. When the panel is in a position, following the completion of public hearings, to provide a report on its findings, conclusions and recommendations relevant to a specific project, it will submit the report to the federal Ministers of Environment and of Energy, Mines and Resources and to the Saskatchewan Minister of Environment and Public Safety.
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The panel should, to the extent possible, ensure that the timely review of a specific project is not jeopardized by delays in the review of another project included in its mandate.
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LINKAGE TO OTHER POLICY PROCESSES
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The panel is not expected to interpret its mandate so as to duplicate the work of other public inquiries and policy processes or to focus on national or international issues which are not directly related to the impacts of the proposals.
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However, concerns may be raised by the public which extend beyond the impacts of direct concern to the panel, and in such cases the panel will ensure that the public is provided a reasonable opportunity to express these concerns.
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SCHEDULE A
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EIS Submitted
1. Dominique-Janine Extension
Amok Ltd.
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2. South McMahon Lake Project
Midwest Joint Venture (Denison Mines Ltd.)
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3. McClean Lake Project
Minatco Ltd. [later replaced by Cogema]
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EIS to be prepared
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4. McArthur River Project
McArthur River Joint Venture (Cameco Corporation)
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5. Cigar Lake Project
Cigar Lake Mining Corporation
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[21] The uranium deposits relevant to this case are referred to as the Sue A, B and C deposits and the JEB deposit, which were proposed to be developed as an open pit mine. That aspect of the McClean Lake Project was considered by the Panel and is described as follows in its first report, issued in October 1993 (Appeal Book, Volume II, pages 323 - 386, at page 366):
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The open pit mining operations for the JEB and Sue A, B and C deposits would involve overburden stripping and waste rock mining, followed by mining of the ore zones. A lined ore storage pad for the stockpiling of ore would be located close to the JEB pit. The pad would be used by mining operations at all six ore bodies. Waste rock and overburden would be placed in prepared areas close to the open pits, and might be used subsequently for construction activities if tests showed the material to be suitable.
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The Sue A, B and C pits would have a waste rock disposal site, a water treatment plant, contaminated-water holding ponds, and treated-water monitoring ponds.
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The McClean Lake proposal includes the building of a mill complex where the ore would be processed to produce yellow-cake. A water treatment facility would be built at the mill complex, located near the JEB pit. Water collected by the drainage systems for the ore storage pad would be processed here, as would JEB minewater, collected runoff, and tailings seepage water. It would also treat mill process waste streams and tailings decant water from the mill. Treated water would be pumped to Sink Lake for regulated discharge through Vulture Lake to McClean Lake [...].
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Tailings from the milling process would be deposited in the mined-out JEB pit for disposal using the pervious surround concept. This would require that the ore from JEB be removed and stored while the pit is being prepared to receive the tailings.
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Ancillary facilities would include a shop and change rooms at the Sue site; offices, warehouses, shops, change rooms, a power generator plant, contaminated water storage ponds and treated water monitoring ponds at the mill site; fans and air heaters, electric power generators, minewater sedimentation ponds, a waste rock disposal area and an ore transfer pad at the McClean Lake underground mine site; and a camp designed to accommodate construction and production crews for all sites, to be built 800 m from the mill.
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All active areas would be linked by roads and power lines. Pipelines would be used to transport minewater from the McClean Lake underground mine to the Sue Water treatment plant, and from the Sue and JEB treatment plants to Sink Lake.
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It is proposed that the McClean Lake project and the Midwest Joint Venture be developed in a complementary way, with the McClean Lake site developed first, and the Midwest Joint Venture brought into production by 1999. Ore from the Midwest site would be milled at the JEB mill; tailings from the Midwest operation would also be disposed of in the mined-out JEB pit.
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[22] The Panel received numerous submissions, including submissions from the ICUC. The list of submissions is set out in Appendix D to the report (Appeal Book, Volume II, pages 379 - 384). Details of the steps taken by the Panel, including a list of hearings, are set out in Appendix C to the report (Appeal Book, Volume II, pages 378-9). The Panel's conclusion with respect to the McClean Lake Project was that it be delayed for at least five years, and that approval at that time be subject to a number of conditions.
[23] The Panel was particularly concerned with the problem of tailings management. Broadly speaking, tailings may be stored above ground or in the ground. For the McClean Lake Project, the proposal was to store them in the ground, in the pit left after the excavation of the JEB deposit. After decommissioning of the mine, in-ground facilities would be required to divert ground water around the tailings, either by relying on an envelope of porous rock and gravel constructed around the tailings ("pervious surround"), or by relying on the permeability of the natural rock surrounding the tailings ("natural surround").
[24] The initial proposal for the JEB pit was to use a pervious surround method. The Panel discussed that aspect of the proposal at page 45 of the October 1993 report (Appeal Book, Volume II, page 370) (emphasis in original):
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Tailings management can also have a substantial deleterious effect on the quality of surface water downstream from the mine site. For this project, it has been proposed that the mined-out JEB pit be used as a pervious surround disposal facility to contain mill tailings from both the McClean Lake project and the Midwest Joint Venture mine. The use of one tailings facility for two projects should be environmentally beneficial because it would reduce the proliferation of such sites. Placement of the tailings in a pit would also decrease the likelihood of surface water contamination (but raises the spectre of possible ground water contamination).
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Despite these theoretical advantages, we were reminded by the public that the pervious surround method for tailings containment has not yet been adequately tested. The only such pit in the Athabaska Basin, the nearby Rabbit Lake facility, has not been in operation long enough to demonstrate its viability. It is the panel's opinion that it would be prudent to observe the operation of that facility for a few more years before deciding on whether or not to license another. This is one of the primary reasons why we are recommending a delay in the start-up of this project for at least five years. The time interval will provide the regulatory agencies with an opportunity to observe and evaluate the facility at Rabbit Lake; it will also undoubtedly provide the proponents with information that can be used to improve the design of the JEB facility.
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[25] On December 23, 1993, the Minister of Natural Resources published a response to the Panel's report. By that time, Cogema had taken over from the original proponent. The Minister did not accept the Panel's recommendation for a five year delay of the McClean Lake Project. Rather, the Project was permitted to proceed under the Board's staged licensing process. It was anticipated that the Board's process would take several years, and would over time deal with all of the issues raised by the Panel relating to the tailings management problems.
[26] The final choice of the appropriate technique for the tailings management facility was the natural surround method. That choice followed further work by the Panel, culminating in its final report in November, 1997 (Appeal Book, Volume VIIIA, pages 1686.5 to 1686.131). The following comment appears at pages 1-2 of that report:
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We recommend approval of the concept for tailings disposal represented by the JEB Tailings Management Facility (TMF) proposal, but with major site-specific reservations. The proposed JEB TMF, to be constructed using natural surround technology, is an attractive option for tailings disposal because it provides an opportunity to realize several environmental benefits relative to other methods for tailings disposal. Among these benefits are an increase in worker protection through the use of subaqueous deposition; reduction of the number of locations undergoing environmental disruption, as a result of combining deposition of tailings from many ore bodies at one site; the avoidance of engineered barriers; the minimization of weathering problems; and the protection of the contents of the pit from scarification by glaciers during the next ice age. Because of these potential advantages, the concept for tailings disposal represented by the JEB TMF proposal is recommended. However, there are critical site-specific technical and managerial concerns that must be resolved before application of the concept can be recommended for this particular tailings management facility. Chief among the technical concerns is the need for convincing evidence that operation of the TMF would not result in the contamination of Fox Lake in the long term. There is also concern about the managerial and scientific competence of the proponent and its attitude toward the regulators.
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We are aware that resolution of these concerns, likely to cause a long delay in the licensing process, would have fiscal implications. The wish to maximize immediate economic benefits from the development of these resources does not, however, justify the approval of this facility until it has been demonstrated that all reasonable environmental safeguards are in place.
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[27] The recommendations made by the Panel were subsequently addressed through the licensing process (see Board Member Document 99-53, Appeal Book, Volume II, page 1399).
[28] The Board has issued the following licences for the McClean Lake Project:
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1994
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Mining facility removal licence AECB-MFRL-148-2, for the preparation of the site by removal of surface vegetation and materials.
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June 29, 1994
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Mining facility construction licence AECB-MFCL-169-0, for the construction of all necessary surface support facilities, in preparation to mine four open pits, one underground mine and to operate a mill and a waste treatment system. (Appeal Book, Volume II, page 482)
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December 19, 1994
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Mining facility construction licence AECB-MFCL-169-0.1, to change the milling process from a strong acid to an ammonium sulphate stripping process in the solvent extraction circuit. (Appeal Book, Volume II, page 557)
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September 18, 1995
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Mining facility construction licence AECB -MFCL-169-0.2, an amendment to 169-0.1, to permit surface stripping of the JEB pit and the operation of associated dewatering and water treatment facilities. (Appeal Book, Volume III, page 645)
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March 12, 1996
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Mining facility operating licence AECB-MFOL-170-0, to permit operation of the JEB open pit mine and associated surface facilities including a water treatment plant, JEB dewatering system, and the Sink/Vulture treated effluent management system for a two year period upon attainment of certain approvals. Expiry date: March 12, 1998. (Appeal Book, Volume III, page 762)
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February 27, 1997
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Mining facility operating licence AECB-MFOL-170-0.1, to permit preparation of the SUE C1 pit for uranium mining and to operate the associated surface facilities including a water treatment plant and the effluent discharge line to the Sink/Vulture treated effluent management system, for the period February 20, 1997 to March 12, 1998. Expiry date: March 12, 1998. (Appeal Book, Volume IV, page 894)
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August 14, 1998
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Mining facility operating licence AECB-MFOL-170-0.3, to proceed with the preparatory work to construct the dewatering drift, the raise system and the filter drain for the JEB pit tailings management facility. (Appeal Book, Volume V, page 1193)
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March 26, 1999
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Mining facility operating licence AECB-MFOL-170-0.4, to permit the construction of the JEB pit tailings management facility and associated tailings and water handling systems. Expiry date: September 30, 1999. (Appeal Book, Volume VI, page 1383)
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June 21, 1999*
The licence in issue
in these appeals.
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Mining facility operating licence AECB-MFOL-170-0.5, to permit the operation of the JEB mill and the JEB pit tailings management facility.
Expiry date: June 30, 2001 (Appeal Book, Volume VII, page 1631)
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November 9, 1999
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Mining facility operating licence AECB-MFOL-170-0.6, to mine the Sue open pits and to process the ore from the SUE and the JEB pits at the McClean Lake mill, disposing of the tailings in the JEB pit tailings management facility.
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May 29, 2000
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Mining facility operating licence AECB-MFOL-170-0.7, to permit the operation of the JEB mill and the JEB pit tailings management facility, including storage of tailings in the tailings management facility, to mine the SUE pits and to operate the associated ore and waste management and effluent treatment systems. This licence was similar to the preceding one, but included certain conditions required to facilitate compliance with international agreements related to safeguards for nuclear materials. Expiry date: June 30, 2001. (Appeal Book, Volume XI, page 2027)
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[29] In 2001, after the Uranium Mines and Mills Regulations came into force, the Commission issued two further licences to Cogema in respect of the McClean Lake Project. The first was Uranium Mine Operating Licence UMOL-MINEMILL-McCLEAN.08/2001, issued on June 25, 2001, which was in effect from July 1, 2001, to August 31, 2001. It essentially extended the term of the last licence issued by the Board (AECB-MFOL-170-0.7).
[30] On August 23, 2001, the Commission issued Uranium Mine Operating Licence UMOL-MINEMILL-McCLEAN.09/2005. It came into effect on September 1, 2001, and expires on August 31, 2005 (Appeal Book, Volume XI, pages 2042-2054 and pages 2078-91). The McClean Lake Project, including the JEB tailings management facility, is currently being operated under that licence.
[31] The CEAA was enacted in 1992 to replace the Guidelines with a different regime for environmental assessments. The substantive provisions of the CEAA came into force on January 19, 1995 (SI/95-11), after the issuance of the second construction licence for the McClean Lake Project (AECB-MFCL-169-0.1) and before the issuance of the first operating licence (AECB-MFOL-170-0).
[32] The purposes of the CEAA are stated in section 4, which reads as follows:
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4. The purposes of this Act are
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4. La présente loi a pour objet_:
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(a) to ensure that the environmental effects of projects receive careful consideration before responsible authorities take actions in connection with them;
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a) de permettre aux autorités responsables de prendre des mesures à l'égard de tout projet susceptible d'avoir des effets environnementaux en se fondant sur un jugement éclairé quant à ces effets;
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(b) to encourage responsible authorities to take actions that promote sustainable development and thereby achieve or maintain a healthy environment and a healthy economy;
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b) d'inciter ces autorités à favoriser un développement durable propice à la salubrité de l'environnement et à la santé de l'économie;
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(b.1) to ensure that responsible authorities carry out their responsibilities in a coordinated manner with a view to eliminating unnecessary duplication in the environmental assessment process;
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b.1) de faire en sorte que les autorités responsables s'acquittent de leurs obligations afin d'éviter tout double emploi dans le processus d'évaluation environnementale;
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(c) to ensure that projects that are to be carried out in Canada or on federal lands do not cause significant adverse environmental effects outside the jurisdictions in which the projects are carried out; and
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c) de faire en sorte que les éventuels effets environnementaux négatifs importants des projets devant être réalisés dans les limites du Canada ou du territoire domanial ne débordent pas ces limites;
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(d) to ensure that there be an opportunity for public participation in the environmental assessment process.
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d) de veiller à ce que le public ait la possibilité de participer au processus d'évaluation environnementale.
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[33] It is not necessary for the purposes of these appeals to identify the differences between the environmental assessment and public review procedures mandated by the CEAA and those mandated by the Guidelines. It is not alleged that the Guidelines are deficient in any substantial way, or that an environmental problem associated with the McClean Lake Project was missed or ignored because of the application of the Guidelines and not the CEAA.
[34] Included in the CEAA is a transitional provision which reads as follows:
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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.
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74. (1) Le Décret sur les lignes directrices visant le processus d'évaluation et d'examen en matière d'environnement approuvé par le décret C.P. 1984-2132 du 21 juin 1984 et enregistré sous le numéro DORS/84-467 continue de s'appliquer aux examens publics qui y sont visés et pour lesquels les membres de la commission d'évaluation environnementale ont été nommés sous son régime avant l'entrée en vigueur du présent article.
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(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.
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(2) Le décret visé au paragraphe (1) continue de s'appliquer aux examens préalables ou aux évaluations initiales commencés sous son régime avant l'entrée en vigueur du présent article, jusqu'au moment où, le cas échéant, une proposition est soumise au ministre pour examen public aux termes de l'article 20 du décret, auquel cas la présente loi commence de s'appliquer et le ministre peut prendre une décision aux termes de l'article 29.
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(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
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(3) Dans le cas où un promoteur propose la réalisation de tout ou partie d'un projet à l'égard duquel l'examen préalable ou l'évaluation initiale a été effectuée sous le régime du décret visé au paragraphe (1), l'autorité responsable peut utiliser le rapport de l'examen ou de l'évaluation, ou en permettre l'utilisation, dans la mesure appropriée pour l'observation des articles 18 ou 21 dans chacun des cas suivants_:
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(a) the project did not proceed after the assessment was completed,
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a) le projet n'a pas été réalisé après l'achèvement de l'évaluation;
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(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,
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b) le promoteur d'un projet lié à un ouvrage en propose une réalisation différente de celle qui était proposée au moment de l'évaluation;
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(c) the manner in which the project is to be carried out has subsequently changed, or
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c) les modalités de réalisation du projet sont nouvelles;
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(d) the renewal of a licence, permit, approval or other action under a prescribed provision is sought,
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d) la présentation d'une demande de renouvellement d'un permis, d'une licence, d'une autorisation ou d'une autre mesure en vertu d'une disposition désignée par règlement.
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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.
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(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.
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(4) Dans les cas où la construction ou l'exploitation d'un ouvrage ou la réalisation d'une activité concrète a été entamée avant le 22 juin 1984, la présente loi ne s'applique à la délivrance ou au renouvellement d'une licence, d'un permis, d'une autorisation ou à la prise d'une autre mesure en vertu d'une disposition désignée par règlement à l'égard du projet que si telle mesure entraîne la modification, la désaffectation ou la fermeture d'un ouvrage en tout ou en partie.
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[35] The second licence issued by the Commission in 2001 under the Uranium Mines and Mills Regulations, UMOL-MINEMILL-McCLEAN.09/2005, was subject to an environmental screening report under the CEAA because Cogema wished to produce up to 8 million pounds of uranium concentrate per year. That was an increase of up to 2 million pounds per year beyond that considered by the Panel established under the Guidelines. As I understand it, the "project" that was the subject of that screening report was not the McClean Lake Project itself, but only the increase in production. The Commission determined, pursuant to paragraph 20(1)(a) of the CEAA, that "the project, taking into account the appropriate mitigation measures, is not likely to cause significant adverse environmental effects"(Appeal Book, Volume XI, page 2072). As a consequence, the proposal for increased production was not referred to the Minister for referral to a mediator or panel pursuant to section 29 of the CEAA. The decision to issue licence UMOL-MINEMILL-McCLEAN.09/2005 was made on August 9, 2001, and has not been challenged.
The application for judicial review
[36] On July 19, 1999, the ICUC commenced an application for judicial review to challenge the June 21, 1999, decision of the Board to issue the 0.5 licence. The application was heard on September 12, 2002, after the expiry date of the 0.5 licence, and during the term of the current operating licence, UMOL-MINEMILL-McCLEAN.09/2005.
[37] The challenge to the 0.5 licence is based on the fact that it was not preceded by an environmental screening report or an environmental assessment under the CEAA. The Judge found the challenge to be well founded. He concluded that the licence was invalid, for the reasons set out in paragraph 72 of his judgment:
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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.
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[38] The appellants had argued in the Federal Court that subsection 74(1) of the CEAA is a complete answer to the allegation that the Board was required to carry out an additional screening or assessment pursuant to theCEAA before issuing the 0.5 licence. The Judge rejected that argument, although he recognized at paragraph 35 of his reasons that the operation of the JEB pit tailings management facility was considered by the Panel.
[39] It is clear that subsection 74(1) is engaged in this case because a Panel was established for the McClean Lake Project pursuant to the Guidelines before the CEAA came into force. However, the Judge reasoned as follows that compliance with the CEAA was also required (paragraph 42 of his reasons):
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By s.74(1), where a proposal has been referred to the Minister and a panel has been appointed under [the Guidelines] prior to CEAA coming into force, the panel is to go ahead and complete its work under [the Guidelines] 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.
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Discussion
[40] The threshold issue in these appeals is whether, as the Board and Cogema argue, the Judge erred in concluding that subsection 74(1) of the CEAA did not relieve the Board from requiring an environmental screening or assessment under the CEAA prior to the issuance of the 0.5 licence. This is a question of statutory interpretation for which the standard of review is correctness.
[41] Section 74 of the CEAA maps the transition from the Guidelines regime to the CEAA regime. For ease of reference, subsection 74(1) is reproduced here:
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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.
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74. (1) Le Décret sur les lignes directrices visant le processus d'évaluation et d'examen en matière d'environnement approuvé par le décret C.P. 1984-2132 du 21 juin 1984 et enregistré sous le numéro DORS/84-467 continue de s'appliquer aux examens publics qui y sont visés et pour lesquels les membres de la commission d'évaluation environnementale ont été nommés sous son régime avant l'entrée en vigueur du présent article.
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[42] I must respectfully disagree with the Judge that the absence in subsection 74(1) of any explanation as to what is to occur after a panel completes its work under the Guidelines indicates that the process mandated by the CEAA must be undertaken for the same project. In my view, the interpretation of subsection 74(1) propounded by the Board and Cogema should be accepted because it is consistent with both the statutory language and the object of subsection 74(1).
[43] Subsection 74(1) states that the Guidelines "shall continue to apply" ( « continue de s'appliquer » ) in respect of any proposal for which a panel has been established. There is no limit placed on this continued application. Subsection 74(2), in contrast, provides that the Guidelines continue to apply to an initial screening or assessment until it is referred to public review, and then states that, when a referral is made, "this Act [CEAA] shall thereupon apply". Unlike subsection 74(2), subsection 74(1) does not need to deal with a track change from the Guidelines to the CEAA because the completion of the work of a panel under the Guidelines marks the end of the environmental review process for the proposal it is reviewing, and the commencement of the process for implementing the proposal, including the making of decisions required under applicable regulatory controls. It would serve no useful purpose to require another environmental assessment under the CEAA at that stage. As the words of subsection 74(1) do not compel that conclusion, they should not be so interpreted.
[44] The purpose of subsection 74(1), read in the context of the remainder of section 74 and other provisions of the CEAA, also supports the interpretation propounded by the Board and Cogema. Subsection 74(1) is a transitional provision, and as such is intended to ensure the orderly transition from one legislative scheme to another. Professor Ruth Sullivan lists the principles underlying transitional law as "certainty, predictability, stability, rationality, and formal equality." (Driedger and Sullivan on the Construction of Statutes, 4th ed., Markham, Ont.: Butterworths, 2002 at 544-545.) She goes on to say:
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[i]t is unfair to take people by surprise. It is unfair to establish rules, invite people to rely on them, then change them in mid-stream, especially if the change results in negative consequences.
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[45] To interpret subsection 74(1) as requiring a second environmental assessment under the CEAA renders that process under the Guidelines meaningless, and requires the work of the Panel to be repeated after the planning process is complete. That is not consistent with the objective of subsection 74(1) as a transitional rule.
[46] Nor is it consistent with two of the important objectives of the CEAA, namely, the avoidance of the unnecessary duplication of work (see subsection 4(b.1) of the CEAA, quoted above), and the general understanding of environmental assessment as a planning tool to ensure that government decision makers consider environmental issues early in the planning process of projects: Friends of the Oldman River (cited above), at paragraph 71. Subsection 11(1) of the CEAA reads as follows:
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11(1) Where an environmental assessment of a project is required, the federal authority referred to in section 5 in relation to the project shall ensure that the environmental assessment is conducted as early as practicable in the planning stages of the project and before irrevocable decisions are made, and shall be referred to in this Act as the responsible authority in relation to the project.
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[47] That does not mean that the end of the work of the Panel means an end to all environmental review for the McClean Lake Project. Environmental issues must be considered for each licence issued under the Uranium and Thorium Mining Regulations and their successor, the Uranium Mines and Mills Regulations. In addition, the CEAA environmental screening and assessment process may be triggered in future if subsection 74(3) of theCEAA applies. That would be the case if, for example, there is a proposal to undertake some activity relating to the McClean Lake Project that was not within the Panel's terms of reference (such as the increase in production proposed and permitted by the Commission in 2001, which had not been considered by the Panel established under the Guidelines).
[48] The ICUC is concerned that too narrow an interpretation of subsection 74(1) of the CEAA could mean that when the McClean Lake Project is finally decommissioned many years from now, there will be no new environmental assessment. Such concerns are speculative at this stage. The extent to which a new environmental assessment will be required for a decommissioning licence will depend on the circumstances at that time, and the precise proposal that is presented to the Commission in the application for a decommissioning licence.
[49] The ICUC also argued that subsection 74(1) of the CEAA does not apply because the current McClean Lake Project is not the same "proposal" that was reviewed by the Panel under the Guidelines. The ICUC points to several changes in the Project since 1993, including a change in the proponent and majority owner, design changes, the discovery of new environmental threats from arsenic, a scientific study indicating radioactive contaminant can migrate over long distances in groundwater faster than originally thought, a new regulatory climate with regard to water quality guidelines for arsenic, and the addition of radionuclides from uranium mills to the List of Toxic Substances in Schedule I to the Canadian Environmental Protection Act, S.C. 1999, c.33. In my view, none of these changes transform the McClean Lake Project into a new proposal. The Panel recognized that changes in science and technology would occur over the life of the Project and acknowledged that it would be the Board's responsibility to evaluate the effects of these developments in the context of its licensing responsibilities.
[50] The ICUC's position is driven by the honestly held opinions of its members regarding the harmful effects of uranium mining. However, the ICUC is seeking a fresh environmental assessment of a project that has already undergone scrutiny under the Guidelines. The statutory scheme of the CEAA does not require such a second review.
[51] As subsection 74(1) of the CEAA is dispositive of these appeals and the application for judicial review, it is unnecessary to consider the remaining arguments made by the appellants.
[52] I would allow the appeals, set aside the order of the Federal Court dated September 23, 2002, and dismiss the application for judicial review. Cogema should be awarded its costs in this Court and in the Federal Court. Counsel for the Board indicated that the Board is not seeking costs.
"K. Sharlow" J.A.
"I agree
J. Richard"
"I agree
Marshall Rothstein"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-528-02 and A-549-02
STYLE OF CAUSE: ATOMIC ENERGY CONTROL BOARD AND COGEMA RESOURCES INC. AND INTER-CHURCH URANIUM COMMITTEE EDUCATIONAL CO-OPERATIVE ET AL
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: May 3 and 4, 2004
REASONS FOR JUDGMENT: SHARLOW J.A.
CONCURRED IN BY: RICHARD C.J.
ROTHSTEIN J.A.
DATED: 4 JUNE, 2004
APPEARANCES:
Mr. Robert G. Richards, Q.C. FOR THE APPELLANT, COGEMA RESOURCES INC.
Mr. Kirk Lambrecht, Q.C. FOR THE RESPONDENT, ATOMIC ENERGY CONTROL BOARD
Ms Stefania Fortugno and FOR THE RESPONDENT, INTER-CHURCH
Ms Theresa McClenaghan URANIUM COMMITTEE EDUCATIONAL COOPERATIVE
Mr. Barry J. Hornsberger, Q.C. FOR THE INTERVENER, ATTORNEY GENERAL OF SASKATCHEWAN
Mr. Brian J. Scherman, Q.C. FOR THE INTERVENER, LAC LA RONGE INDIAN BAND et al
SOLICITORS OF RECORD:
MacPherson, Leslie, Tyerman, LLP FOR THE APPELLANT
Regina, SK COGEMA RESOURCES INC.
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada ATOMIC ENERGY CONTROL BOARD
Edmonton, AB
Fortugno Law Office FOR THE RESPONDENT
Saskatoon, SK INTER-CHURCH URANIUM COMMITTEE
EDUCATIONAL CO-OPERATIVE
Saskatoon Department of Justice FOR THE INTERVENER, THE ATTORNEY
Regina, SK GENERAL OF SASKATCHEWAN
Balfour Moss FOR THE INTERVENER, LAC LA RONGE
Saskatoon, SK INDIAN BAND, et al
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