Inter-Church Uranium Committee Educational Co-Operative v. Canada (Atomic Energy Control Board)

Inter-Church Uranium Committee Educational Co-Operative v. Canada (Atomic Energy Control Board)
Court (s) Database
Federal Court Decisions
Date
2002-09-23
Neutral citation
2002 FCT 994
File numbers
T-1313-99
Notes
Reported Decision
Decision Content
Federal Court Reports Inter-Church Uranium Committee Educational Co-operative v. Canada (Atomic Energy Control Board) (T.D.) [2003] 2 F.C. 288
Date: 20020923
Docket: T-1313-99
Neutral Citation: 2002 FCT 994
IN THE MATTER OF THE CANADIAN ENVIRONMENTAL
ASSESSMENT ACT & REGULATIONS
AND IN THE MATTER OF THE RULES OF THE
FEDERAL COURT OF CANADA
BETWEEN:
INTER-CHURCH URANIUM COMMITTEE EDUCATIONAL
CO-OPERATIVE, of the City of Saskatoon, in the Province of Saskatchewan
Applicant
- and -
ATOMIC ENERGY CONTROL BOARD and
COGEMA RESOURCES INC.
Respondents
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] The McClean Lake Uranium Mining Project (the "McClean Lake Project") in northern Saskatchewan has, since its inception in 1989, generated community and expert opposition on ethical as well as scientific grounds. The project was approved as environmentally viable by the federal government in 1993 following the completion of a public panel process under Environmental Assessment and Review Process Guidelines Order, SOR/84-467 ("EARPGO") resulting in the project moving forward since then under the regulatory licencing supervision of the Respondent, Atomic Energy Control Board ("AECB").
[2] Throughout the environmental approval process under EARPGO and the subsequent licencing process, the environmental community in Saskatchewan, as represented in the present application by the Applicant, Inter-Church Uranium Committee Education Co-operative ("ICUCEC"), has worked within the legal framework applied but has, at times, strongly objected to decisions taken to carry out the project through the licencing process.
[3] However, with this application, ICUCEC seeks to impress its concerns about the continuing development of the project by attempting to halt and break open the licencing process being applied over the last eight years by arguing that an environmental assessment is now triggered with respect to a most recent licence granted by the AECB by the provisions of the Canadian Environmental Assessment Act, S.C. 1992, c.37, ("CEAA"), which came into force in 1995, after the licencing process was well under way.
[4] In essence, the environmental concern that has driven the present application is with the scientific integrity of the now implemented plan for the containment of tailings produced from the mining of uranium in the McClean Lake Project as well as other projects in the area. The worry is that, if the science is insufficient, the tailings repository will be a serious environmental hazard for a very long time.
[5] The legal question which determines whether ICUCEC 's attempt can succeed is: Does CEAA apply to the McClean Lake Project? For the reasons which follow I find that it does.
A. Factual background
[6] Uranium deposits were discovered at McClean Lake in 1979. In 1991, the then majority owner of the McClean Lake Project, Minatco Limited, presented a proposal for development to the AECB. The second Respondent, Cogema Resources Inc. ("Cogema") is the current owner of the project.
[7] The McClean Lake proposal came forward at the same time as two other uranium mine proposals. Approval to proceed with these three proposals was required from the governments of Saskatchewan and Canada. Prior to issuing these approvals, Saskatchewan and Canada structured a single process for the public review of these three proposals.
[8] Acting pursuant to EARPGO, the AECB referred the three proposals to the federal Minister of the Environment who established a panel to conduct the public review and make recommendations. Over the course of a year and a half, from October 1991 to May 1993, the EARPGO Panel (the "Panel") conducted its work and in October 1993, the Panel issued its Report in respect of the three proposals.
[9] The Panel recommended that the McClean Lake proposal be delayed for at least five years and that approval at that time should be conditional on the fulfilment of sixteen conditions.
[10] In December 1993, the federal government announced its response to the Report rejecting the Panel's recommendation for a five-year delay. Instead, the federal government decided that the AECB's normal licencing process could proceed within which all of the technical issues raised before the Panel could be considered with respect to the mining and milling of uranium, and the deposit of tailings.
[11] The EARPGO Panel continued in existence, and, in 1994, it was charged with public review of two further uranium mine site proposals which involved use of the McClean Lake facilities, including the milling of ore and the deposit of tailings. Together with other factors, the Panel examined these critical aspects of the McClean Lake Project, and again recommended acceptance of their design recognizing that the regulatory process would be used to assess specific issues. In 1998 this recommendation was accepted by the federal government, which decided that the new mining proposals could move to the AECB regulatory approval and licencing process.
[12] The AECB has issued several licences for the McClean Lake Project to approve its staged progress. Construction licences were issued throughout 1994 and 1995, and operating licences began to be issued in 1996. ICUCEC has been an active and vocal participant throughout the licencing process.
B. The decision under review
[13] ICUCEC brings this judicial review seeking an order to quash the AECB's June 17, 1999, decision to issue licence AECB-MFOL-170-0.5 ("the Licence") to operate a mill with respect to the McClean Lake Project's JEB open pit mine ("the JEB mill") and the related Tailings Management Facility ("the TMF").
[14] As mentioned, a primary concern of the ICUCEC is with the scientific concept being applied to the TMF. The TMF is based on "natural surround" technology which requires that tailings be produced and deposited in such a way that they consolidate over time to give a material with a certain hydraulic conductivity which, in effect, shields the surrounding environment from contamination.
[15] ICUCEC and other interveners made submissions to the AECB before the Licence was issued demanding that a new environmental assessment be conducted in the form of a comprehensive study under CEAA prior to the issuance of an operating licence for the facilities. This argument was fuelled by strong concerns about, not only the practical aspects of the application of the "natural surround" concept in the TMF, but also the milling process to be used at the JEB mill. In its reasons for the decision to issue the Licence dated June 30, 1999, the AECB stated the following:
*Views of the Board
With ongoing monitoring by the licensee and the ability of the Board to take licencing action or use other means of regulatory control, the Board believes that adequate measures are in place to protect the environment.
The Board accepts the conclusion of AECB staff that the possible effects of alpha radiation caused by the operation of the JEB mill and TMF are adequately addressed.
The Board is therefore of the view that the environmental effects of this project have received careful consideration. The Board accepts the information provided by AECB staff and CRI that the monitoring programs will identify potential environmental concerns and that effective remedial measures, including stopping the deposition of tailings, are available. The Board accepts the position of AECB staff, set out in BMD 99-53 and BMD 99-85, in particular that the intent of the Canadian Environmental Assessment Act is met. (Applicant's Application Record, p. 25)
[16] The AECB then went on to make the following finding of law which is accepted as the decision under review in the present application:
[The AECB] accepts the staff's finding that the Canadian Environmental Assessment Act does not clearly speak to the question of a project that has been the subject of a Panel report and that implementation of the government response to the Panel's assessment and recommendation concerning this mining facility are considered to meet the intent of the Act and to reflect the principles of "one project - one assessment" and avoidance of duplication in environmental assessment matters. (Applicant's Application Record, p.26)
[17] Some insight into the meaning of the AECB's decision is found in the following February 4, 1999 response by Mr. Sid Gershberg, the President of the AECB, to a due process concern expressed in a November 18, 1998 letter to him from Mr. Phillip Penna of the intervener the Canadian Uranium Alliance:
Thank you for your letter regarding the Atomic Energy Control Board's (AECB) licensing action for the JEB Pit Tailing Management Facility in Northern Saskatchewan.
The AECB has indicated that the August 13, 1998 meeting was held to make a licensing determination on one portion of the tailings management facility. In order to take advantage of the limited construction season in Northern Saskatchewan, Cogema Resources Inc. (Cogema) requested the early approval for the pre-construction of the filter drain system of the facility.
The AECB was aware of the limited public involvement in this decision. To compensate for this action Cogema delayed its formal request of initial consideration for the construction of the entire tailings management facility until the fall of 1998. According to AECB staff, Cogema was given approval to proceed with this portion of work under the following conditions: 1) that the approval did not prejudge a decision on the application for construction of the entire facility and 2) if the AECB decided not to approve the facility, Cogema is required to remove all structures at the tailings management facility site at their own financial cost.
With regard to your concern that AECB did not fulfill legal requirements under the Canadian Environmental Assessment Act (the Act) during its licensing meeting, the Act did not apply in this instance because the project had been previously assessed and approved. The JEB Pit Tailings Management Facility was examined by the joint federal-provincial panel on uranium mining developments in Northern Saskatchewan in 1997. The panel held public hearings as a forum for members of the public to present their comments and to participate in the environmental assessment process. The federal and provincial governments approved the uranium mining project and the JEB Pit Tailings Management Facility.
I appreciate receiving your comments on this issue and trust that my response is helpful. (Applicant's Application Record, p.35) (Emphasis added)
[18] In the Notice of Application in the present case, ICUCEC challenges the decision on the following grounds:
That the application for the licence amendment AECB-MFOL-170-0.5 by Cogema Resources Inc. and the consideration of the same by the Respondent AECB pursuant to s.8(1) of the Atomic Energy Control Act Uranium and Thorium Mining Regulations SOR/88-243 triggered an environmental assessment, as a result of s.8(1) of the Atomic Energy Control Act Uranium and Thorium Mining Regulations, being listed in Schedule I, Part II of the Canadian Environmental Assessment Act Law List Regulations; [and]
That the issuance of [the Licence] triggers a comprehensive study as a result of the projects under this licence being in a class of projects described in the Canadian Environmental Assessment Act Comprehensive Study List Regulations.
As a result, the relief claimed is an order quashing the Licence and an order requiring the AECB to fulfill its statutory duty to comply with CEAA and related regulations now in place.
[19] During the course of the oral hearing, counsel for the Respondents agreed that the legal questions raised by the grounds cited in the challenge are properly before the Court. Thus, the primary issue for determination is whether the AECB correctly interpreted the law in issuing the Licence.
C. The results if CEAA applies to the issuance of the Licence
[20] Counsel for ICUCEC clearly sets out the argument which I can do no better than quote as follows:
2. Interpretation and Application of the CEAA and Regulations
a. Standard of Review
85. The applicant submits that the standard of review to be applied to the questions raised by the applicant, concerning the interpretation and application of the provisions of the CEAA and the CEAA Regulations by the AECB, is that of correctness. The applicant relies on the decision of the Federal Court of Appeal in Friends of the West Country Association v. Canada (Minister of Fisheries and Oceans) to support this submission. In that decision Rothstein J.A. wrote for the Court:
As to the interpretation of provisions of the CEAA, there is no applicable privative clause. The CEAA is a statute of general application. It is administered by a broad range of federal authorities with the power to approve or licence projects that could have adverse environmental effects. The Coast Guard has no particular expertise in interpreting the statutory requirement of the CEAA. The interpretation of the CEAA is a question of law. I agree with Gibson J. that the standard of review on these questions is correctness.
b. Canadian Environmental Assessment Act Law List Regulations
86. The applicant submits that the application for licence amendment AECB-MFOL-170-0.5 by the respondent Cogema to permit it to operate the JEB mill and the JEB TMF at the McLean Lake uranium mining facility in northern Saskatchewan and the consideration of the same by the respondent AECB pursuant to subsection 8(1) and section 14 of the Atomic Energy Control Act Uranium and Thorium Mining Regulations ("Uranium Mining Regulations") triggered an environmental assessment under the provisions of the CEAA and Regulations.
87. It is submitted that the starting point of the analysis is paragraph 5(1)(d) of the CEAA which provides:
5. (1) An environmental assessment of a project is required before a federal authority exercises one of the following powers or performs one of the following duties or functions in respect of a project, namely, where a federal authority...
(d) under a provision prescribed pursuant to paragraph 59(f) issues a permit or licence, grants approval or takes any other action for the purpose of enabling the project to be carried out in whole or in part.
...
90. The authority for the CEAA Law List Regulations is subsection 59(f) of the CEAA, which provides:
59. The Governor in Council may make regulations...
(f) prescribing the provisions of any Act of Parliament of any regulation made pursuant thereto that confer powers, duties or functions on federal authorities the exercise or performance of which requires an environmental assessment under paragraph 5(1)(d).
91. Subsection 8(1) of the Uranium Mining Regulations is listed in Schedule I, Part II of the CEAA Law List Regulations as item 33(b). Subsection 8(1) of the Uranium Mining Regulations reads:
Subject to subsection (2), the Board, on receipt of a written application made in accordance with section 13 or 14, may issue a licence to site, construct or operate a mine or mill, as the case may be.
Section 2 of the Uranium Mining Regulations defines "mine" as "a uranium or thorium mine and includes any associated waste management system and all land, buildings and equipment associated therewith". Similarly, "mill" is defined as "a uranium or thorium mill and includes any associated waste management system and all land, buildings and equipment associated therewith". Thus, the JEB, TMF falls under the definition of both mill and mine under sub. 8(1) outlined above.
92. It is submitted that the purpose of the Law List Regulations is to identify projects that could have significant environmental impacts and to have them automatically referred to an environmental assessment.
93. The AECB's authority to licence the JEB TMF and mill under licence AECB-MFOL-170-0.5 is prescribed by ss. 8 and 14 of the Uranium and Thorium Mining Regulations. As a result, the AECB has clearly triggered the provisions of the Law List Regulations such that an environmental assessment under paragraph 5(1)(d) of the CEAA is required.
94. In the recent decision of Inverhuron & District Ratepayers's Association v.Canada (Minister of the Environment) et al. Pelletier J. similarly held:
Paragraph 59(f) of the Act allows the Minister to designate which licensing and approval requirements by federal authorities will trigger the operation of paragraph 5(1)(d). It is common ground that approvals under the Atomic Energy Control Act are designated under paragraph 50(f). As a result, a Federal authority, AECB, will issue a permit for the purpose of enabling a project to be carried out, which has the effect of triggering the Canadian Environmental Assessment Act.
c. The CEAA Comprehensive Study List Regulations
95. In the Inverhuron decision Pelletier J. analysed the structure of the CEAA. He outlined that once the CEAA is triggered pursuant to paragraphs 5(1)(d) and 59(f), the next issue is the type of process which must be undertaken and who is responsible for undertaking it. Pelletier J. continued:
The opening words of section (5) "An environmental assessment of a project is required..." do not define the type of assessment required since "environmental assessment" is defined as an assessment conducted in accordance with the Act. Section 14 contemplates that an assessment can consist of a screening or a Comprehensive Report. Section 18 provides that where a project is not on the Comprehensive Study List or the Excluded List, a screening shall be performed. The Comprehensive Study List is a regulation made pursuant to paragraph 50(d) of the Act, which permits the Governor in Council to designate projects or types of projects which require comprehensive study. Part VI of the Comprehensive Study Regulations deals with nuclear facilities... Section 21 provides that where a project is listed on the Comprehensive Study List, a comprehensive study shall be undertaken and a Comprehensive Study Report shall be prepared and forwarded to the Minister and the Canadian Environmental Assessment Agency.
96. It is submitted that the purpose of the Comprehensive Study List Regulations is to designate those "projects and classes of projects that are likely to have significant adverse environmental effects" and thus require more in-depth assessment prior to authorization.
97. Subsection 19(b) under Part VI in the Comprehensive Study List Regulations states the following class of project requires a comprehensive study under CEAA:
19. The proposed construction, decommissioning or abandonment, or an expansion that would result in an increase in production capacity of more than 35 per cent of...
(b) a uranium mining facility on a site within the boundaries of an existing licensed uranium mining facility, if the proposal involves processes for milling or uranium tailings management that are not authorized under the existing licence.
98. Section 2 of the Uranium and Thorium Mining Regulations defines a "mining facility" as "(a) a removal site, (b) an excavation site, (c) a mine, (d) a mill, or (e) any combination of the sites or facilities referred to in paragraphs (a) to (d)." The JEB mill and TMF fall under this definition of mining facility. The JEB and TMF are therefore a mining facility constructed on the site of an existing licensed mining facility, namely, the JEB open pit mine.
99. It is submitted that the operation of the JEB mill and TMF are in the class of projects described in s.19(b) of the Comprehensive Study List Regulations. Clearly the JEB TMF is a project that is "likely to have significant adverse environmental effects" and thus requires more in-depth assessment prior to authorization that provided for under an environmental screening. Moreover, it is submitted that the operation phase of the JEB mill and TMF are much more likely to have significant adverse environmental effects as opposed to the construction phase of the mill or TMF. The negative environmental impacts of the wastes from the JEB mill dumped into the JEB TMF are measured in thousands of years, longer than the length of recorded human history.
100. Section 13 of the CEAA states:
Where a project is described in the comprehensive study list or is referred to a mediator or a review panel, notwithstanding any other Act of Parliament, no power, duty or function conferred by or under that Act or any regulation made thereunder shall be exercised or performed that would permit the project to be carried out in whole or in part unless an environmental assessment of the project has been completed and a course of action has been taken in relation to the project in accordance with paragraph 37(1)(a).
As a result, it is submitted that the issuance of licence AECB-MFOL-170-0.5, in the absence of a comprehensive study for the JEB mill and TMF uranium mining facility, was made in contravention of section 13 of the CEAA.
101. It is also submitted that the AECB erred in law in issuing licence AECB-MFOL-170-0.5 without first referring the project for an environmental screening or comprehensive study as required by subsection 11(2) of the CEAA. The AECB ignored the prohibition outlined in sub. 11(2) of the Act which states: "A responsible authority shall not exercise any power or perform any duty or function referred to in section 5 in relation to a project unless it takes a course of action pursuant to paragraph 20(1)(a) or 37(1)(a). (Applicant's Memorandum of Fact and Law, paragraphs 85-101)
[21] I can find no error in the ICUCEC's legal argument as cited.
[22] However, assuming CEAA applies to the Licence, I have a concern with respect to making a finding that a comprehensive study is required by application of s.19(b) of the Comprehensive Study List Regulations. As I understand it, s.19(b) requires a precise finding of fact that there will be a 35 percent increase in capacity by the issuance of a licence before a comprehensive study is necessary. The factual point was not addressed in argument by the Respondents, but I am still left with a question as to whether the fact exists; I do not believe that anything turns on the point because, as will be seen for the reasons that follow, the AECB is bound to apply the provisions of CEAA with respect to the issuance of the Licence, which in turn will require a determination respecting the application of the Comprehensive Study List Regulations. Thus, ICUCEC's argument on the application of s.19(b) can be made at that time.
[23] However, subject to the findings in Sections D, E, and F of these reasons below, I find that the issuance of the Licence under review triggers at least an environmental assessment under s.5(1)(d) of CEAA, and since an environmental assessment was not conducted before the Licence issued, the AECB did not have jurisdiction to issue the Licence.
D. The correct interpretation of s.74 of CEAA
1. The arguments
[24] CEAA came into force on January 19, 1995, and replaced EARPGO. Section 74 of CEAA sets out the relevant transitional provisions as follows:
Guidelines Order continued
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.
Idem
(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.
Idem
(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
(a) the project did not proceed after the assessment was completed,
(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,
(c) the manner in which the project is to be carried out has subsequently changed, or
(d) the renewal of a licence, permit, approval or other action under a prescribed provision is sought,
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.
74(4) Idem
(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.
Maintien de l'application du décret
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.
74(2) Examens préalables en cours et évaluations initiales
(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.
Utilisation d'une évaluation antérieure
(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_:
a) le projet n'a pas été réalisé après l'achèvement de l'évaluation;
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;
c) les modalités de réalisation du projet sont nouvelles;
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. Commencement des activités antérieur au 22 juin 1984
(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.
[25] The AECB and Cogema submit that the AECB was correct in its legal decision with respect to the issuance of the Licence because the McClean Lake Project is not subject to the provisions of CEAA by operation of the transition provisions found in s.74 of CEAA; indeed, they submit that s.74(1) provides a complete defence to ICUCEC's challenge. The Respondents argue that, in effect, s.74(1) applies in such a way as to make continuing environmental assessment under CEAA and its regulations unnecessary before licencing decisions are taken by the AECB with respect to the McClean Lake Project.
[26] As a practical matter, in its initial written argument in support of the present application, ICUCEC made no mention of the effect of s.74. In response, the Respondents both raised the interpretation of s.74 as mentioned. As a result, ICUCEC was directed to reply to the Respondents' arguments. The written and oral arguments with respect to s.74 run as follows.
a. ICUCEC's submissions in Reply
[27] In reply to the raising of s.74 by the Respondents, ICUCEC submits that the Respondents have misinterpreted its meaning and have broadened its scope beyond its intended purpose. ICUCEC states that the aim of s.74(1) is to allow a panel appointed under EARPGO to continue its public review uninterrupted by the entry into force of CEAA. ICUCEC finds support for this submission in the French language version of s.74(1), which refers to "examens publics", i.e., public reviews, not the entire lifespan of a project itself.
[28] ICUCEC submits that the English language version is ambiguous and that this ambiguity is resolved by reference to the French version.
[29] ICUCEC also argues that transitional provisions are by nature temporary and have a limited application, otherwise an absurd result would occur where the EARPGO scheme, which was repealed by CEAA, would apply through the operating lifespan of the McClean Lake Project. ICUCEC submits that Parliament could not have intended for EARPGO to apply for an additional twenty to forty years.
b. Respondents' submission in Sur-Reply
[30] The AECB submits that the legislative purpose of the transitional provisions was to avoid duplicative environmental assessments and that this specific intent is expressed in ss.4 and 5 of CEAA.
[31] The AECB also points to this Court's decision in Société pour vaincre la pollution v. Canada (Minister of the Environment), [1996] F.C.J. No. 806 (T.D.) (QL) where at paragraph 15, Justice Reed comments that EARPGO "continues to apply in cases where public review panels have been established before the coming into force of [CEAA]".
[32] The AECB submits that the wording of the French language version must be reconciled with the English language of the section, the object of s.74, and the legislation as a whole in keeping with the approach of the Supreme Court of Canada in Re Manitoba Language Rights, [1985] 1 S.C.R. 721 at 777-778 for interpreting bilingual federal legislation.
[33] Cogema's submissions also rely on the purpose of the transitional provisions and CEAA as a whole. Cogema submits that the English language version of s.74(1) is not ambiguous, and when read in context the meaning is readily ascertainable.
[34] Cogema also argues that the acceptance of ICUCEC's argument would result in "serious anomalies" which could not have been intended as follows:
For example, if an EARPGO panel reported even a single day after CEAA came into force, a full CEAA environmental assessment would have to be conducted before any of the powers or duties referred to in s.5 of CEAA could be exercised. That would result in an enormous waste of effort and resources. Section 74(1) was enacted to obviate that sort of duplication by providing, in effect, that a CEAA environmental assessment is not required in relation to a proposal which had been subjected to an EARPGO assessment by an environmental assessment panel.
On ICUCEC's reading of CEAA, there would have been no practical reason for an EARPGO panel to complete an environmental assessment after the enactment of CEAA. The report would have been immediately overtaken by the need for a CEAA -based assessment. That makes little sense. The better view is that Parliament intended that EARPGO environmental assessments underway when CEAA came into force should be completed, not just for the sake of completing them, but so that their substantive results could be applied on an ongoing basis in relation to the projects which have been reviewed. (Sur-Reply of the Respondent Cogema, paragraph 6 - 7)
[35] Both Respondents submit that any changes that have arisen in the McClean Lake Project have not transformed it into a new project requiring a new environmental assessment. Indeed, the record indicates that the subject matter of the Licence under review, being the operation of the JEB mill and the TMF, was considered by the EARPGO panel.
[36] With respect to the relationship between the environmental and regulatory schemes, the Respondents argue that environmental assessments occur as early as possible in the planning stages of a project, and as projects move into the construction phase, design evolution occurs to respond to the findings of an assessment panel and/or the environmental concerns of a regulator such as the AECB. That is, the two schemes work together to ensure environmental protection.
[37] Thus, the Respondents argue that, since the panel assessment under EARPGO and the regulatory decision-making of the AECB have worked together with respect to the McClean Lake Project, there is no reason for a CEAA review.
2. Conclusion
[38] In my opinion, there is nothing ambiguous about the plain wording of the English version of s.74(1), and there is no meaningful difference between the English and French versions. I find there is absolutely nothing in the wording of s.74 to support the interpretation that proposals begun under EARPGO are grand-fathered from the application of CEAA.
[39] In my opinion, the interpretation of s.74 must be limited to its stated purpose, that is, to supply an orderly transition from the application of one environmental protection regime (EARPGO) to the application of another (CEAA) with respect to a given ongoing project. A primary objective evident in s.74 is to ensure that environmental assessment work started under the forerunner regime is not lost in the application of its successor regime.
[40] With respect to the AECB's reliance on the decision in Société, I am unable to find that Justice Reed's comment quoted above goes far enough to provide useful guidance with respect to the interpretation of s.74 in the fact situation of the present case.
[41] I am also not assisted, as Cogema argues, by the fact that in Société Justice Reed refused to exercise her discretion to require a CEAA assessment to be done based on her view that there is no meaningful difference between an assessment review conducted under EARPGO and one under CEAA. As I state below in Section I of these reasons, the legal obligation on the AECB is the factor that drives the result in favour of ICUCEC.
[42] I interpret s.74 as follows:
By s.74(1), where a proposal has been referred to the Minister, and a panel has been appointed under EARPGO prior to CEAA coming into force, the panel is to go ahead and complete its work under EARPGO 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.
By s.74(2), where for a proposal only an environmental screening or initial assessment under EARPGO was started prior to CEAA coming into force, the provisions of EARPGO continue to apply, and CEAA is not engaged unless the proposal is referred to the Minister for public review under EARPGO; and from then on, the provisions of CEAA apply.
By s.74(3), where for a proposal only an environmental screening or initial assessment under EARPGO was started prior to CEAA coming into force, the provisions of EARPGO continue to apply, and CEAA is not engaged unless the proposal qualifies as a "project" under CEAA and there exists any one or more of three conditions: there has been a delay in proceeding with the proposal/project; there is an important change in the proposal/project; or a permission granted is to be renewed. Where CEAA is engaged by operation of s.71(3), the screening or assessment conducted under EARPGO can still be used as considered appropriate.
By s.74(4), for certain work in progress before June 22, 1984, and a permission is needed, or a permission already granted is to be renewed, CEAA is not engaged unless certain conditions apply.
[43] ICUCEC does not argue that s.74(3) applies in the present case. Section 74(4) does not apply in the present case.
[44] In my opinion, the theoretical "serious anomalies" argument posed by Cogema as cited above can be easily answered by a reasonable and practical approach to taking and judging action in the transitional phase. For example, the obligation of a responsible authority to see that a comprehensive environmental assessment is conducted with respect to a licence to issue just after a panel report is issued can be met by conducting the required assessment using the evidence and opinion then current and adding to it as needed for old or new issues concerning a project under consideration.
[45] Therefore, as I reject the Respondents' argument with respect to the correct interpretation of s.74 and essentially accept that of ICUCEC, I find there is no reason on the interpretation of s.74 not to require the application of CEAA to the issuance of the Licence under review.
E. The correct interpretation of the definition of "project" in s.2 of CEAA
[46] Cogema argues that CEAA does not apply to the McClean Lake Project because it is not a "project" within the meaning of CEAA and, thus, is not subject to CEAA environmental review. To advance this argument, Cogema relies on the decision of Justice Richard (as he then was) in Tsawwassen Indian Band v. Canada (Minister of Finance) [1998] F.C.J. No. 370 (F.C.T.D.); confirmed on appeal [2001] F.C.J. No. 515 (F.C.A.).
[47] In Tsawwassen, an application was brought to judicially review a decision with respect to a container terminal project then well under construction, with the objective of compelling an environmental assessment under CEAA. The threshold question for determination was whether the container terminal project was a "project" subject to the provisions of CEAA. In agreeing with Justice Richard's conclusion that it was not, at paragraph 9, the Appeal Division placed stress on the word "proposed" in the definition of "project" in s.2 of CEAA as follows:
"project" means
(a) in relation to a physical work, any proposed construction, operation, modification, decommissioning, abandonment or other undertaking in relation to that physical work ...
[48] As a result, the Appeal Division agreed that, since environmental assessments must be done only of proposed construction which is still in the planning stages, the container terminal project was not a "project" within CEAA because construction was well under way.
[49] I find that Tsawwassen is readily distinguishable on the facts of the present case. The present case deals, not with "proposed construction", but the "proposed operation" of the JEB mill and TMF. As the arguments of both Respondents set out, the McClean Lake Project has progressed in stages since construction began in 1994. In the time period under consideration in the present case, by licence AECB-MFOL-170-0.4, on March 26, 1999, approval was given for the construction of the TMF and associated tailings and water handling systems. Approval for the operation of the JEB mill and the TMF was delayed until June 21, 1999 with the issuance of the Licence under review.
[50] Thus, the most important feature which distinguishes the present situation