Date: 20021107
Docket: A-528-02
Neutral citation: 2002 FCA 437
CALGARY, ALBERTA, NOVEMBER 7, 2002
PRESENT: NOËL J.A.
BETWEEN:
COGEMA RESOURCES INC.
Appellant
and
INTER-CHURCH URANIUM COMMITTEE EDUCATIONAL CO-OPERATIVE, of the City of Saskatoon, in the Province of Saskatchewan and
ATOMIC ENERGY CONTROL BOARD
Respondents
Docket: A-549-02
BETWEEN:
ATOMIC ENERGY CONTROL BOARD and COGEMA RESOURCES INC.
Appellants
and
INTER-CHURCH URANIUM COMMITTEE EDUCATIONAL CO-OPERATIVE, of the City of Saskatoon, in the Province of Saskatchewan
Respondent
REASONS FOR ORDER
NOËL J.A.
[1] The Appellants Cogema Resources Inc. (Cogema) and Atomic Energy Control Board (AECB) move, pursuant to Rule 398(1)(b), for an order that the decision of Campbell J. of the Federal Court Trial Division dated September 23, 2002, be stayed pending the disposition of their respective appeals.
[2] Campbell, J. interpreted section 74 of the Canadian Environmental Assessment Act (CEAA) and held, inter alia, that the Environmental Assessment and Review Process Guidelines Order (EARPGO) would not continue to apply (to the exclusion of CEAA) in respect of proposals begun under EARPGO. Based on this finding, he held that Cogema's licence for the McClean Lake Project (the Project) was issued without jurisdiction, and was thus invalid, because no environmental assessment had been conducted under CEAA. He went on to order that the licence under review be quashed.
[3] While Campbell J's order only applies to a licence which has since been superseded, the logic of his decision means that the current licence could also be considered invalid. This, according to the AECB - which has since been replaced by the Canadian Nuclear Safety Commission (CNSC) - has created uncertainty with regard to the validity of the current licence as well as to the licensing process because section 26 of the Nuclear Safety and Control Act (NSCA) requires that a licence be in effect at all times.
[4] Having regard to the facts presented on this application, I am satisfied that the criteria for a stay have been met (RJR McDonald Inc. v. A.G. Canada [1994] 1 S.C.R. 311). There is at least one serious issue to be dealt with on appeal, namely the proper interpretation of section 74 of CEAA.
[5] There could be irreparable harm as the immediate application of the judgment would put the CNSC in the situation of having to choose between two courses of action, either of which would likely give rise to irreparable harm. On the one hand, if the CNSC decides not to quash the current license and shut down the Project, the legitimacy of the licensing process, which it is charged by law to administer, would be open to question. On the other hand, if the CNSC interprets the decision as requiring it to quash the decision and shut down the Project, irreparable harm could result from the drastic impact that such action would have on Cogema, its workforce and the Canadian uranium industry generally (Affidavit of E. Richard McCabe, at paras. 22-31; Nuclear Safety and Control Act s. 20).
[6] The balance of convenience is clearly in favour of maintaining the current situation in which the licensing process can continue to function in the interim without the CNSC being required to confront the above described situation which flows from Campbell J's decision.
[7] In making this determination, I have given particular consideration to the evidence suggesting that the Project would not present any particular threat to the environment during the interim period (Affidavit of E. Richard McCabe, at paras. 55-63; see also Written Submissions of the AECB, at paras. 66-67). I have also taken into account that Cogema would have no reasonable prospect of recovering from the Respondent Interchurch Uranium Committee Education Co-operative (ICUCEC) given its status as a volunteer organization with few, if any, assets.
[8] While I recognize its concerns for the environment, the ICUCEC's submissions on the balance of convenience were largely irrelevant as they contemplated risk which was not limited to the interim period. I also note that the ICUCEC's allegations are not supported by the Reasons of Campbell J., which do not purport to attribute risk to the environment as a result of the continued operation of the Project (Reasons, at paras. 72-73).
[9] The judgment will therefore be stayed pending final disposition of the appeal.
"M. Noël"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-528-02 & A-549-02
STYLE OF CAUSE: Cogema Resources Inc. v. Inter-Church Uranium
Committee Educational Co-operative et al
Atomic Energy Control Board et al v. Inter-Church Uranium Committee Educational Co-operative
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: November 6, 2002
REASONS FOR ORDER
NOËL, J.A.
DATED: November 7, 2002
APPEARANCES:
Mr. Robert G. Richards, Q.C. FOR THE APPELLANT
Regina, SK COGEMA RESOURCES INC.
Mr. Kirk Lambrecht, Q.C. FOR THE RESPONDENT
Edmonton, AB ATOMIC ENERGY CONTROL BOARD
Ms. Stefania A. Fortugno FOR THE RESPONDENT
Saskatoon, SK INTER-CHURCH URANIUM COMMITTEE EDUCATIONAL
CO-OPERATIVE
SOLICITORS OF RECORD:
MacPherson Leslie & Tyerman LLP FOR THE APPELLANT
COGEMA RESOURCES INC.
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada ATOMIC ENERGY CONTROL BOARD
Fortugno Law Office FOR THE RESPONDENT
INTER-CHURCH URANIUM
COMMITTEE EDUCATIONAL
CO-OPERATIVE
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