[1999] 2 F.C. D-67
Citizen's Mining Council of Newfoundland and Labrador Inc. v. Canada (Minister of the Environment)
T-2015-97
MacKay J.
8/3/99
37 pp.
Application concerning environmental assessments of Voisey's Bay nickel project—Applicant challenging environmental assessment process by two separate environmental impact assessments of developments proposed by respondent Voisey's Bay Nickel Co. (VBNC), one for proposed mine/mill development at Voisey's Bay in Labrador, other for proposed smelter/refinery development at Argentia in Newfoundland—Applicant submitting two projects require assessment by single process encompassing both developments—In January 1997, Memorandum of Understanding (MOU) agreed to by federal and provincial governments and native groups concerned for conduct of environmental assessment of mine and mill project at Voisey's Bay—Smelter/refinery project at Argentia not included in environmental assessment arrangements for mine/mill project—Parties to MOU considered possible inclusion of smelter/ refinery project at Argentia but concluded great distance between two projects, difference in environments and affected populations, along with different natures of proposed projects and of their potential impacts on environment, warranted two separate assessments—Further, not anticipated that, given distance between projects, would be any cumulative environmental impact and also noted that knowledge and experience required of potential assessment panel members would differ for two developments—Final guidelines for environmental impact statement for mine/mill project issued in June 1997 did not include provision for environmental assessment of smelter/refinery project at Argentia—For smelter/refinery project at Argentia, because of large marine terminal to be constructed, comprehensive environmental study required—Opportunity for public participation by commenting on review process at later stage, whatever process retained—In May 1997, after having submitted draft terms of reference for Argentia Environmental Impact Statement, VBNC commenced preparation of environmental assessment for project, to be used by federal and provincial Ministers to assess environmental viability of project and appropriate next steps, if any, in assessment process—Public Works determined two separate assessments appropriate in view of: given large distance between two projects, environmental impacts would affect different environments and populations, no potential for cumulative effects; projects not interdependent; absence of Aboriginal interests at Argentia site; industrial nature of Argentia region compared with Voisey's Bay region; and difference in by-products produced by each facility—Evidence projects administered separately, each with own separate management team, and own manager of environmental assessment, within company—Decision (scoping decision) rejecting single environmental assessment of two projects in letter to applicant dated August 12, 1997—Canadian Environmental Assessment Act applied—Application dismissed—Three general preliminary procedural issues: applicant's standing, focus and timeliness of application and evidence provided by applicant's affidavit material—Applicant's standing—Applicant incorporated non-profit body without financial stake in projects—Standing to be accorded to applicant under doctrine of public interest—Application of test in Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236: applicant must show serious issue raised regarding invalidity of legislation or administrative action; genuine interest in issue; no other reasonable and effective manner to bring issue before court—Serious issue raised by applicant: application of Act, s. 15 at initial stage of environmental assessment process by responsible authority—Also, applicant's primary objective, environmental protection, particularly with regard to Voisey's Bay and Argentia regions, coupled with evident interest of members in assessment process sufficient to meet genuine interest requirement of test for public interest standing—While any member of general public in Newfoundland and Labrador may have interest in matter, applicant only one to demonstrate sufficient interest or means to launch court challenge—Focus and timeliness of application—Application for judicial review commenced in timely fashion given date of scoping decision of Minister of Public Works (MPW)—Issue in application can only be whether MPW, responsible authority for smelter/refinery development, acted within Act in excluding mine/mill project from smelter/refinery assessment, treating smelter/refinery as separate project for purposes of environmental assessment under Act—Scoping determination under Act, s. 15 decision within meaning of Federal Court Act, s. 18.1(2), and subject to judicial review—Judicial review not premature in regard to decision, by responsible authority, determining scope of project to be assessed, and which assessment that authority will later approve or disapprove—Even if determination viewed as interlocutory decision, extraordinary circumstances, within Szczecka v. Canada (Minister of Employment and Immigration) (1993), 116 D.L.R. (4th) 333 (F.C.A.), exist to warrant review herein—Scoping decision fundamental to assessment to be undertaken—Support for this view found in Krause v. Canada, [1999] 2 F.C. 476 (C.A.)—Evidence provided in applicant's affidavit material—Given conclusion on merits, no need to determine what elements of evidence objected to as hearsay should be admitted—Was there error in failure to combine projects in one assessment process? While Act, s. 15(3) requiring inclusion in project involving physical work every phase of life-span of work, every construction, operation, modification, decommissioning, abandonment or other undertaking in relation to that work, Act, s. 15(3) not requiring single environmental assessment when two projects, each relating to physical work or works, proposed by same proponent, even if two projects somewhat interrelated—While Act, s. 15(2) authorizing one assessment in respect of two or more projects where responsible authority or Minister of Environment determines projects so closely related they can be considered single project, that determination clearly discretionary, not compulsory—No project to be assessed until decision or action within Act, s. 5 to be made—Here, two projects proposed by VBNC, which treats them as separate projects, and it sought necessary approvals at different times, by different responding authorities—If two to be combined within single environmental assessment under Act, determination to do so must be made under Act, s. 15(2)—Where proponent does not include phase in project, discretion may be exercised to include it, but by deliberate decision of responsible authority or Minister—Public Works did not err in law when did not include mine/mill project within scope of smelter/refinery project for purposes of environmental assessment—Where statutory discretion, as here exercised under Act, s. 15(1), has been exercised reasonably, in good faith, without reference to irrelevant considerations and has not been exercised illegally, reviewing court will not intervene even if it might have exercised discretion differently—Each party to bear its own costs—Canadian Environmental Assessment Act, S.C. 1992, c. 37, ss. 5(1)(c),(d), 14, 15(1),(2),(3)—Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1(2) (as enacted by S.C. 1990, c. 8, s. 5).