Docket: T-2601-14
Citation: 2015 FC 898
Ottawa, Ontario,
July 23, 2015
PRESENT: The Honourable Mr. Justice Manson
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BETWEEN:
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MINNOVA CORP
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Applicant
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And
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ATTORNEY
GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review of
the decision of the Canadian Environmental Assessment Agency [the Agency] to
characterize the Applicant’s gold mine in Manitoba as a “new” mine when it
resumed operations, rather than an existing one since 1987, and finding that the
mine is subject to section 16(c) of the Schedule to the Regulations Designating
Physical Activities [the Regulations] [the Schedule to the Regulations].
I.
Background
[2]
Minnova Corp [Minnova], formerly the Auriga Gold
Corp [Auriga], owns PL Mine (also known as the Puffy Lake Mine) in Northern Manitoba. The mine was constructed by its former owner Pioneer Metals Corporation
[Pioneer]. A license was initially issued under the Manitoba Environment Act
[EA License] in November of 1987 to Pioneer.
[3]
The PL Mine operated from December of 1987 to
March of 1989, at which time Pioneer closed its mining operations and the PL
Mine was placed in care and maintenance in accordance with a Closure Plan
approved by Manitoba’s Director of Mines.
[4]
In May of 2012, Minnova became the licensee
under the EA License. As it exists now, the license “allows
for underground mining and processing at 1,000 tpd [tonnes per day].”
[5]
PL Mine is also subject to a subsisting Closure
Plan, developed by Pioneer in 2010, and approved by the Manitoba Director of
Mines. Current care and maintenance of the PL Mine is governed by Manitoba’s Environment Act, CCSM, CEI25, the Mines and Minerals Act, CCSM,
CM162, and the Water Rights Act, CCSM, CW80.
[6]
The existing PL Mine is a decline and
underground mine, associated mill, tailings management area, and associated
infrastructure, which includes an access road and security gate.
[7]
On June 4, 2014, Minnova (then Auriga) submitted
a Notice of Alteration to Manitoba Conservation and Water Stewardship, seeking
approval to add open pit mining methods to existing underground methods for the
near surface portion of the Mine. New features to be constructed included the
opening, closing, and rehabilitation of a succession of open pits, to be
operated concurrently with the existing underground workings. However, this
open pit proposal was abandoned in December of 2014, in favour of the
resumption of underground activities.
[8]
On July 30, 2014, the Project Manager of the Agency,
Sean Carriere, wrote to Minnova to inform them that the re-opening of the mine
would fall within subsection 16(c) of the Schedule to the Regulations,
characterizing it as a “new” mine.
[9]
On August 26, 2014, Minnova received further
correspondence from the Agency, stating “the mine has
not been in operation since 1989. The re-opening of the mine in addition to the
development of five open surface mining pits [and other related new features]
constitutes a “new” mine for the purposes of paragraph 16(c) of the
Regulations.”
[10]
The August 26, 2014 letter also stated that section
128(1)(a) of the Regulations, a transitional provision making the Canadian
Environmental Assessment Act 2012 [CEAA 2012] inapplicable to projects
already under construction, did not apply to the Notice of Alteration, because
the proposed project was characterized as “distinct and separate” from the
existing mine and facilities.
[11]
In a letter dated December 1, 2014, Minnova
informed the Agency that it no longer planned to proceed with the open pit
plan, and instead intended to re-start the existing mine, with an output of
less than 600 tpd. Minnova asked for confirmation that this re-start would not
constitute a “new mine” pursuant to section 16(c) of the Schedule to the
Regulations.
[12]
In a letter dated December 3, 2014 [the
Decision], the Agency replied, acknowledging the abandonment of the open pit
plan, and stating that they still viewed a re-opening of the existing
underground mine to fall under section 16(c) of the Schedule to the
Regulations.
[13]
On December 23, 2014, Minnova filed this
application for judicial review.
[14]
The Agency requires a project description of the
PL Mine from the Applicant, pursuant to section 16(c) of the Schedule to the
Regulations, as a “new” mine, in order to continue the process of deciding
whether the project requires an environmental assessment.
II.
Issues
[15]
The issues are:
- Is this
application for judicial review premature?
- Is the Agency’s
requirement that the Applicant submit a project description reasonable?
III.
Standard of Review
[16]
The standard of review to be applied to the
second issue is reasonableness, given that the decision maker in this case is
interpreting its home statute (Agraira v Canada (Minister of Public Safety
and Emergency Preparedness), 2013 SCC 36 at para 50).
IV.
Statutory Provisions
[17]
The relevant statutory provisions are attached
as Appendix A hereto.
V.
Analysis
A.
Is this Application for Judicial Review
Premature?
[18]
The Applicant argues that the CEAA’s decision
that the PL Mine is a designated project subject to section 16(c) of the
Schedule to the Regulations is a final decision, not interlocutory in nature.
To decide otherwise would be to condone an improper collateral attack by the
Respondent on the Applicant’s PL Mine status as an existing mine.
[19]
The Respondent replies that the Applicant’s
application is premature. The Agency’s decision to require a project
description from the Applicant is interlocutory in nature, and thus judicial
review is premature.
[20]
Before applying to this Court, the Respondent
argues that the Applicant was expected to pursue all available effective
remedies, and to wait until the completion of the administrative process. Only
in truly exceptional circumstances should this practice be departed from, and
no such exceptional circumstances exist here. The Applicant is not being denied
the benefit of a fair hearing, subjected to an apprehension of bias, or had its
substantive rights curtailed (CB Powell Ltd v Canada (Canadian Border
Services Agency), 2010 FCA 61 at paras 31-33; Lundbeck Canada Inc v
Canada (Minister of Health), 2008 FC 1379 at paras 27-28; Fairmont
Hotels Inc v Director Corporations Canada, 2007 FC 95 at para 10).
[21]
The Agency is required per section 10(b) of the CEAA
2012 to “decide” whether an environmental assessment need be conducted. The
Applicant has admitted that they intended to avoid the requirement of an
environmental assessment. Since the Agency may conduct its screening and
determine that an assessment is not required, it is further illustrated that
the impugned decision is not final.
[22]
The Respondent summarizes the required
information outlined in the Schedule to the Prescribed Information for the
Description of the Designated Project Regulations as follows:
a)
general information: project name, proponent
name, description of any consultations with other
jurisdictions/parties/Aboriginal peoples, description of any environmental
studies;
b)
project information: description of the context
and objectives of the project, physical works, production capacity, production
processes, waste likely to be generated, waste management plans and anticipated
phases of construction/operation/decommissioning/abandonment;
c)
project location information: geographic
coordinates, site maps, legal description of lands, proximity to
residences/reserves/traditional territories, resources currently used for
traditional purposes by Aboriginal peoples;
d)
federal involvement: federal financial support,
federal lands used, federal permits/licenses/authorizations required;
e)
environmental effects: description of physical
and biological setting, changes that may be caused to fish/aquatic species and
fish habitat or migratory birds, effects on Aboriginal peoples of any changes
to the environment.
[23]
The heart of the matter before the Court is
whether an environmental assessment is required, and not whether the Applicant
is required to submit a project description. No such decision has yet been
made. The structure and wording of the CEAA 2012 outlines that determining if a
project is designated is not a “final decision”, and is an administrative step
necessary to support a final and substantive decision. As the Applicant agrees,
a proponent is even open to declare its own project as designated. The
submission of a project description does not necessarily result in the
requirement of an environmental assessment.
[24]
I agree with the Respondent that this
application for judicial review is premature. A final determination appropriate
for review in the current circumstances would be the Agency’s decision to
require, or not require, an environmental assessment of the PL Mine project.
The current impugned “decision” appears, from the process outlined in the CEAA
2012 and the mandate of the Agency, to be an interim part of the process of
reaching a final determination concerning an environment assessment.
[25]
The emphasis on sustainable development and the
employment of the precautionary principle in the CEAA 2012 supports such a
finding. The Agency is charged with determining whether an environmental
assessment is required. To review the requirement of basic information on a
project, so as to determine whether an assessment is required, is to require a
review of an interlocutory step in the overall process.
[26]
While the Applicant may have an arguable case
that their project does not fall under the heading of “new” pursuant to the
CEAA 2012 and its Regulations, that is an argument that can and should be made
once a final determination has actually been reached.
B.
Is the Agency’s Decision that the Applicant Submits
a Project Description Reasonable?
[27]
However, if I am wrong in my decision that this
application is premature, I will go on to consider whether the Agency’s
decision is reasonable, that the PL Mine is a new mine subject to section 16(c)
of the Schedule to the Regulations, as opposed to an existing mine not subject
to that section of the Schedule.
[28]
There is no definition of “new” or “existing”
mines under the CEAA 2012, or the relevant Regulations.
[29]
The Applicant’s position, succinctly expressed
to the Court in oral argument and in its written submissions, is that an
existing mine that was in operation from 1987 to 1989, and under care and
maintenance as a non-operating mine under valid provincial laws for the past 26
years, cannot be regarded as a new mine.
[30]
Simply put, what is old cannot be new again, and
if one purposively interprets the CEAA 2012 and Schedule to the Regulations as
a whole, the meaning of “new” mines as distinguishable from “existing” mines
contextually makes it clear that a pre-existing mine still in existence cannot
be determined to be a new mine under the CEAA 2012 and Schedule to the
Regulations.
[31]
Moreover, the Applicant argues that Parliament’s
intent is that what triggers federal environmental assessments is the
determination of what is new or existing, in its plain and ordinary meaning,
not by whatever activities have been undertaken, over whatever period of time,
as a prerequisite in finding that a mine that has been in operation is either
new or existing.
[32]
Accordingly, “new” must mean mines not in
existence, and not mines that are so old they should be considered new again.
[33]
Finally, the Applicant also directs the Court to
the A.C.A. Howe Report, July 9, 2014, Exhibit E to the Affidavit of Shawna Sigurdson,
page 184 of the Respondent’s Record, which specifies that:
The processing plant crushing complex,
fine-ore bin, grinding complex and concentrator/recovery plant site is compact
and well-planned. The fire of 1989 did not affect the concentrator and
associated structures.
[34]
A such, the Applicant argues that while there
may well be refurbishment and reactivation of the existing PL Mine, no
reasonable interpretation can result in the PL Mine being designated as a new
mine under the CEAA 2012 or the Schedule to the Regulations.
[35]
The Respondent argues that since the damage
suffered to the infrastructure at the PL Mine during its dormancy was so
extensive, re-opening the mine would constitute the operation of a new mine,
and not simply the “flick of a switch” to re-start operations.
[36]
The Respondent lists a number of major and minor
licenses and permits that were required of Pioneer when the mine originally opened.
Further, the Respondent lists damage and changes to the dormant property since
its placement in “care and maintenance”:
a)
the majority of the Property was burned in the
1989 fires and now contains young, deciduous forest;
b)
Ragged Lake (the former Tailings Impoundment
Area) is now frequented by fish; and
c)
the decline ramp and the underground mine-shaft
have been flooded.
[37]
The Respondent also lists what they consider to
be relevant characteristics of the property:
a)
24 plant and berry species that are traditionally
harvested by Aboriginal people may occur at the site, several of which were
observed at the Property during a 2012 terrestrial field visit;
b)
moose and black bear are common in the region
and use the general area for foraging; and
c)
northern leopard frogs, listed as a species of
special concern under the Species at Risk Act, may occur within the
region.
[38]
In determining the reasonableness of a
particular statutory interpretation, the Court may look to the purpose, context,
and text of the statutory instrument. Further, the provisions of a statute are
to be read as a harmonious whole. The stated purposes of the CEAA 2012 are as
follows:
To protect the components of the environment
that are within the legislative authority of Parliament from significant adverse
environmental effects caused by a designated project…
To encourage federal authorities to take
actions that promote sustainable development in order to achieve or maintain a
healthy environment and a healthy economy.
British Columbia (Securities Commission)
v McLean, 2013 SCC 67 at para 39
Celgene Corp v Canada (Attorney General), 2011 SCC 1 at para 21, citing Canada Trustco Mortgage Co v
Canada, 2005 SCC 54 at para 10
[39]
The Respondent also argues that the CEAA 2012 is
explicitly intended to encourage federal authorities to “take actions that promote sustainable development in order
to achieve or maintain a healthy environment and a healthy economy.” Pursuant
to section 4(2) of the CEAA 2012, the Agency is mandated to apply the
precautionary principle in exercising its powers. Both of these considerations
support the reasonableness of requiring more project information from the
Applicant to reach a final determination on whether an environmental assessment
is required for their project.
[40]
The Respondent states that the word “new” can be
interpreted in a number of ways and holds a highly nuanced meaning. Its
ordinary meaning need not play an overriding role in the current interpretive
analysis. The Canadian Oxford Dictionary gives eleven different definitions for
“new”, including “renewed or reformed; reinvigorated”.
[41]
Finally, I am asked to consider the February 3,
2014 internal Operational Guidance used by the Agency in determining whether a
proposed designated project is a new mine or an expansion of an existing mine,
in Exhibit K to the Affidavit of Shawna Sigurdson, pages 378-379 of the
Respondent’s Record. Included in that document are four factors to be
considered:
a)
proximity to existing operational mine;
b)
use of existing infrastructure;
c)
same vs. different ore body; and
d)
temporary cessation of operations vs. permanent
closure of existing mine.
[42]
Counsel for the Respondent conceded that the
first three factors don’t assist the Respondent’s view that a “new” mine can
cover an already existing mine under the CEAA 2012 or the Regulations. Only the
fourth factor, which provides that where a proponent proposes to “re-open” a
former mine that is now closed or decommissioned and is no longer producing a
mined ore, can be considered possible support for a decision that the former PL
Mine is new.
[43]
However, as pointed out by the Applicant, the PL
Mine is not decommissioned or closed, but simply non-operating for an extended
period of time and in need of refurbishment.
[44]
The Court’s role is to fairly and purposively
construe the meaning and use of the words “new” and “existing” in sections 16
and 17 of the Schedule to the Regulations, in light of the relevant CEAA 2012
provisions and the Regulations.
[45]
It is not the Court’s role to expand or limit
such a construction for policy reasons; that is the role of the legislation,
and by extension the legislators.
[46]
While the Respondent’s invitation to construe
“new mine” in a more expansive light is persuasive, given the substantial
length of the suspension of operations, the substantial need for new
infrastructure and reconstruction, the significant environmental changes over
25 years, and consideration of the purposes of the CEAA 2012 and the mandate of
the Agency, nevertheless, the Applicant’s argue it should not be so construed
on the following bases:
- given the plain and ordinary meaning of
“new mine”, in the context of the underlying legislation enacted in the
CEAA 2012 and related Schedule to the Regulations;
- the PL Mine has never been closed and
holds a valid and subsisting Manitoba Environment Act license to
operate;
- the PL Mine is subject to a valid and
subsisting Closure Plan binding on Minnova;
- the PL Mine is placed in care and
maintenance and continues to be so placed;
- the PL Mine meets at least three of four
operational factors to be considered by the Agency according to their own
operational guidance, which favour a finding that the PL Mine is an
existing mine; and
- section 14(2) of the CEAA 2012
contemplates that even if an existing mine’s activities are not covered by
physical prescribed activities that would trigger section 16 or 17 of the
Schedule to the Regulations, and if activities of that existing mine cause
an adverse environmental impact or public concerns related to those
effects may warrant it, the existing mine may still be designated by the
Minister.
[47]
It is unfortunate for both parties that the
language of the impugned legislation is ambiguous and leaves room for multiple interpretations.
However, I find that a purposive construction of the terms “new mine” and
“existing mine”, in the context of the CEAA 2012 and in sections 16 and 17 to
the Schedule to the Regulations, results in the PL Mine being an existing mine,
not a new mine. As such, the Respondent’s decision is unreasonable.
[48]
To find otherwise is to go down a slippery slope
in subjectively deciding what a new mine is under the CEAA 2012 and
Regulations, without defined parameters, based on questions of “how long must a mine be non-operating?”, and, “in what state of rebuilding must it be?”, in order to
ascertain whether it is a still existing mine, or now, is new again. That is a
slide this Court should not go down, since it invites uncertainty and
subjective analysis that is neither a helpful or pragmatic approach to legislative
construction. While I acknowledge deference is owed to the Respondent in
matters of policy decisions, in my view the Respondent’s position is not a
reasonable interpretation of the terms “new mine” and “existing mine”, as
included in the CEAA 2012 and sections 16 and 17 of the Schedule to the
Regulations.
[49]
However, given my finding above that this
application is premature, the application must be dismissed.
THIS COURT’S JUDGMENT is that:
1.
The application is dismissed;
2.
Costs to the Respondent fixed in the amount of
$3500.
"Michael D. Manson"
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