Date:
20110408
Docket: A-93-11
A-81-11
Citation: 2011 FCA 129
CORAM: EVANS
J.A.
DAWSON J.A.
TRUDEL
J.A.
A-93-11
BETWEEN:
VALE CANADA LIMITED
Appellant
and
SANDY POND ALLIANCE TO PROTECT CANADIAN WATERS
INC. and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
AS REPRESENTED BY THE ATTORNEY GENERAL
Respondents
and
MINING ASSOCIATION OF CANADA and MINING ASSOCIATION OF
BRITISH COLUMBIA
Interveners
A-81-11
BETWEEN:
MINING ASSOCIATION
OF CANADA AND MINING ASSOCIATION OF
BRITISH COLUMBIA
Appellants
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
AS REPRESENTED BY THE ATTORNEY GENERAL
Respondent
and
SANDY POND ALLIANCE TO PROTECT CANADIAN
WATERS
Respondent
and
VALE INCO LTD.
Intervener
REASONS FOR
JUDGMENT
TRUDEL J.A.
Introduction
[1]
These
are two appeals from an Order of the Federal Court (2011 FC 158, Heneghan J.
(the Motions Judge), 10 February 2011) allowing in part the appellants’ motions
for leave to intervene in the judicial review application by Sandy Pond
Alliance to Protect Canadian Waters Inc. (SP Alliance). Her Majesty the Queen
in Right of Canada as represented by the Attorney General is the sole named
respondent (Attorney General). The Attorney General took no position on the
motions, nor on these appeals.
[2]
The
appellants mainly contest the limitations imposed by the Motions Judge on their
participation in the proceedings as interveners. More particularly, they object
to the limit of one expert witness per intervener, and the exclusion of the
rights to cross-examine witnesses and to appeal the final decision.
[3]
The
only issue to be determined in this appeal is whether the interveners should
have been granted broader participatory rights in the judicial review
proceedings. This Court will not disturb the Federal Court’s discretionary
order unless persuaded that the Motions Judge misapprehended the facts or
committed an error of principle in the conditions that she imposed on the appellants’
rights as interveners granting the interventions (Canadian Airlines
International Ltd. v. Canada (Human Rights Commission), [2010] 1 F.C.R. 226
(F.C.A.) at paragraph 6).
[4]
I
propose to allow, in part, both appeals in a single set of reasons as the appellants
have taken similar positions, albeit based on their respective circumstances,
which I shall discuss below.
The parties
[5]
Vale
Canada Limited (then Vale Inco Limited) (Vale) is a Canadian mining company
with significant activities throughout Canada. Of
particular interest to this appeal is its nickel processing plant in Long
Harbour, Newfoundland and
Labrador, near Sandy Pond, which Vale intends to use as a tailings impoundment
area.
[6]
In
order to do so, Vale sought the necessary governmental approvals, as required
by sections 5 and 27.1 of the Metal Mining Effluent Regulations,
SOR/2002-222 (the Regulations) made pursuant to the Fisheries Act,
R.S.C. 1985, c. F-14 (Fisheries Act).
[7]
Vale
has been successful in having Sandy Pond included in Schedule 2 of the
Regulations, which allows it to “deposit or permit the deposit of waste rock or
an effluent that contains any concentration of a deleterious substance and that
is of any pH into” Sandy Pond (Regulations at subsection 5(1)).
[8]
Sandy
Pond has not yet been converted into or used as a tailing impoundment area.
Vale still needs to submit for ministerial approval a compensation plan, the
purpose of which is “to offset for the loss of fish habitat resulting from the
deposit of a deleterious substance” into Sandy Pond (Regulations at subsection
27.1(2)).
[9]
The
Mining Association of Canada (MAC) represents most of the mining operations
currently listed in Schedule 2 of the Regulations, as well as mining
corporations seeking, as Vale did, the addition of “a water or place” in
Schedule 2 (Regulations at paragraph 5(1)(a)).
[10]
The
Mining Association of British Columbia (MABC) represents many mining
corporations operating in that province and around the world (reasons at
paragraph 21).
[11]
SP
Alliance is a not-for-profit corporation registered under the laws of Newfoundland and Labrador
for the purposes, amongst others, of protecting and conserving Canadian waters
and their ecosystems (reasons at paragraph 3).
[12]
SP
Alliance supports the Order below, arguing that the appellants are “missing the
point” of its application for judicial review, which is to obtain a declaration
that Schedule 2 and sections 5 and 27.1 of the Regulations are unlawful, ultra
vires the authority of the Governor in Council and, therefore, of no force
and effect for being contrary to subsections 34(2), 36(5) and 38(9) of the Fisheries
Act. The application thus raises questions of law; if granted, a
declaration of invalidity would be of general application. Accordingly, the
factual circumstances of Sandy Pond are of limited, if any, relevance. The
application is not, it adds, “to spend time reviewing the speeches of citizens
who are opposed to Vale’s project” at Long Harbour (SP
Alliance’s memorandum at paragraph 4). As a result, SP Alliance contends that the
participatory rights granted by the Federal Court are fair and more than
adequate to allow the interveners to make their cases. I disagree.
Analysis
[13]
At
paragraph 26 of her reasons, the Motions Judge set out the six factors for
consideration in a motion for intervener status, as listed in Rothmans,
Benson & Hedges Inc. v. Canada (Attorney General), [1990] 1 F.C. 74 (at
paragraph 12):
a. Is the
proposed intervener directly affected by the outcome?
b. Does there
exist a justiciable issue and a veritable public interest?
c. Is there an
apparent lack of any other reasonable or efficient means to submit the question
to the Court?
d. Is the
position of the proposed intervener adequately defended by one of the parties
to the case?
e. Are the
interests of justice better served by the intervention of the proposed third
party?
f.
Can the
Court hear and decide the cause on its merits without the proposed intervener?
[14]
Having
considered the application of these factors to the proposed interveners, and
having found that the focus of SP Alliance’s challenge to the Regulations was
the inclusion of Sandy Pond in Schedule 2, the Motions Judge granted leave to
intervene but went on to limit the interveners’ participatory rights. Never in
her reasons, however, did she fully address the first factor, i.e., whether the
proposed interveners were directly affected by the outcome. On the contrary,
the Motions Judge twice decided not to deal with this issue. At paragraph 29 of
her reasons, she held that it was unnecessary to determine whether Vale was
“directly affected” by the application for judicial review to dispose of its
motion to intervene. Then, at paragraph 41, she applied the same reasoning to
all the interveners.
[15]
Reading
the reasons as a whole, I am of the view that the Motions Judge’s decision not
to address the first factor stems from her mischaracterization of the relief
sought by SP Alliance. As I explain below, framing the issues raised by the
application as a constitutional challenge of Schedule 2, as well as of sections
5 and 27.1 of the Regulations, seems to have sent the Motions Judge down the
wrong path (reasons at paragraph 5). The misinterpretation of Vale’s
submissions ensued.
[16]
At
paragraphs 29 and 30 of her reasons, the Motions Judge summarized Vale’s
position as follows:
[29] Vale also argues
that it is not “directly affected” by the subject matter of this application
for judicial review. It submits that if this application for judicial review is
successful, a declaration that section 5, section 27.1, and Schedule 2 of the
Regulations are unconstitutional and will not have retroactive effect, meaning
that its entitlement to operate a tailings impoundment area at Sandy Pond will
be affected.
[30] Having regard to the
Supreme Court of Canada’s decision in Canada (Attorney General) v. Hislop, [2007] 1 S.C.R. 429, the
retroactive effect of a declaration of constitutional invalidity is to be
decided on a case-by-case basis. In any event, based on my analysis of the
remaining criteria, it is unnecessary to determine if Vale is “directly
affected” by this application for judicial review in order to dispose of its
motion to intervene.
[17]
But
Vale had made the concession that it was not directly affected by the
application as part of a twofold argument: (1) if the relief sought has no retroactive
effect, Vale is not directly affected by the outcome because any Order issued
will be of no effect on approvals already received by it; (2) however, if,
contrary to Vales’ principal submission, the relief sought has a retroactive
effect, Vale is directly affected by the outcome (Vale’s written submissions,
appeal book, volume 1, tab 1 at page 39).
[18]
At
the hearing of these appeals, SP Alliance confirmed that its application raises
a question of statutory vires. Had the Motions Judge examined the matter
in that light, I am convinced that she would have concluded that Vale and the
various mining corporations represented by MAC and MABC could potentially be
directly affected by the outcome as any order granting the application for
judicial review on the basis that the Regulations are ultra vires would
almost certainly have a retroactive effect on Vale’s mining operations and
those of MAC and MABC’s members. Broader intervening rights would have ensued.
[19]
The
interveners have persuaded me of their need for two expert witnesses. An expert
qualified in the general area of engineering or geochemistry is needed by Vale
to respond to the SP Alliance’s assertion that the construction of an
artificial tailings impoundment area is preferable to the use of a natural
water body. As well, Vale requires the assistance of an expert qualified in the
general area of fisheries biology or fisheries ecology to respond to SP
Alliance’s arguments regarding the impact of Vale’s mining operations on the
ecosystem and its compensation plan.
[20]
MAC
and MABC’s interests reach far beyond Sandy Pond. One expert witness will
address mining practices with respect to effluent treatment while another
expert will address SP Alliance’s submission that individual ecosystems are
generally unique and, once lost, cannot be recreated (affidavit of R.J. Gibson,
Vale’s appeal book, volume 1, tab 5 at page 79).
[21]
It
is safe to foresee that the Applications Judge will have to weigh contradictory
evidence. I agree with the appellants that they should be granted the right to
cross-examine the deponents for the Applicant and the Respondent.
[22]
Vale
also intends to argue that the application for judicial review is untimely.
This issue is not listed in the Federal Court’s Order. I propose to grant
Vale’s request.
[23]
Finally,
the interveners are asking this Court to grant them a right of appeal of the
final decision to issue. The Motions Judge has decided that this question was
better left to the Applications Judge. I see no reason to intervene.
[24]
This
being said, I propose to allow the appeals in part, each party assuming its own
costs. A copy of these reasons will be filed in both appeals.
[25]
The
Federal Court’s Order, in its relevant parts, would now read as follows (I have
underlined the changes and omitted the part of the Order that concerns the
style of cause).
ORDER
THIS COURT
ORDERS that:
1. The motions are granted, Vale
Inco Ltd. (“Vale”), the Mining Association of Canada (“MAC”) and the Mining
Association of British Columbia (“MBAC”) are granted intervener status upon the
following basis:
(i)
documents
will be served upon Counsel for the Applicant and Respondent, respectively,
within 30 days after receipt of this Order;
(ii)
Vale
may file an application record, including supporting affidavits from one more
fact witness and two expert witnesses, in addition to the affidavits
filed to date;
(iii)
MAC
and MABC, jointly, may file an application record, including supporting
affidavits from one fact witness and two expert witnesses, in addition
to the affidavits filed to date;
(iv)
the
interveners shall have the right to participate in cross examination of
the deponents for the Applicant and the Respondent;
(v)
Vale
will be permitted to bring evidence and make arguments on the following issues:
a. the use of
Sandy Pond as a tailings impoundment area is an example of a project that is
consistent with the purpose of the Fisheries Act;
b. how Sandy
Pond came to be chosen as a tailings impoundment area;
c. how it was
decided that the Regulations would apply to the use of Sandy Pond as a tailings
impoundment area and why it was decided that Vale should seek an amendment to
the Regulations;
d. the nature
and extent of the environmental assessments and public consultation conducted
by Vale in respect of Sandy Pond; and
e. full
particulars of the Compensation Plan developed by Vale and why it appropriately
compensates for the use of Sandy Pond as a tailings impoundment area;
f.
the
timeliness of the application;
(vi)
MAC
and MABC, jointly, will be permitted to bring evidence and make arguments on
the following issues:
a. the history
of the mining practices with respect to effluent, and the evolution of
standards over time;
b. the need for
and nature of tailings and the body of research and evolution of best
management practice developed through the Mine Environment Neutral Drainage
(MEND) program and the MAC Towards Sustainable Mining (TSM) Initiative;
c. the nature of
fish populations in water bodies within Canada, and the
Applicant’s position that individual populations are generally unique in any
material respect; and
d. the desirability
from a safety and environmental protection perspective of usage of natural
water body versus an artificial structure;
(vii)
the
interveners may present oral argument subject to further Directions from the
hearings judge;
(viii)
the
interveners shall not be entitled to bring interlocutory motions;
(ix)
the
interveners will have no right to appeal any interlocutory orders made in this
proceeding;
(x)
the
interveners may ask the presiding judge upon the hearing of this application to
entertain a motion for the interveners to have the right to appeal from the
final judgment disposing of the application for judicial review;
(xi)
the
interveners shall not be entitled to seek costs against the Applicant or the
Respondent nor shall the Applicant or the Respondent be entitled to seek costs
against the interveners whatsoever for the whole of this proceeding.
(xii)
The
interveners shall take all measures necessary to avoid overlapping arguments or
duplicating the material filed.
“Johanne
Trudel”
“I
agree
John M. Evans J.A.”
“I
agree
Eleanor R. Dawson J.A.”
Email this Content