Citizens' Mining Council of Newfoundland and Labrador Inc. v. Canada (Minister of the Environment) et al.

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Federal Court (Canada)
• Judge: MacKay, J.
• Citation: (1999), 163 F.T.R. 36 (TD)
• Date: 10 February 1998
• Subject Matter: STATUTES,COURTS,ADMINISTRATIVE LAW,POLLUTION CONTROL,PRACTICE

Citizens' Mining Council v. Can. (1999), 163 F.T.R. 36 (TD)

MLB headnote and full text

Temp. Cite: [1999] F.T.R. TBEd. MR.035

The Citizens' Mining Council of Newfoundland and Labrador Inc. (applicant) v. The Minister of the Environment, The Minister of Public Works and Government Services, The Minister of Fisheries and Oceans, Voisey's Bay Nickel Company Ltd. and Her Majesty the Queen in Right of Newfoundland (respondents)

(T-2015-97)

Indexed As: Citizens' Mining Council of Newfoundland and Labrador Inc. v. Canada (Minister of the Environment) et al.

Federal Court of Canada

Trial Division

MacKay, J.

March 8, 1999.

Summary:

Voisey's Bay Nickel Co. proposed a nickel mine/mill development at Voisey's Bay in Labrador and a smelter/refinery development at Argentia, Newfoundland. The Citizens' Mining Council of Newfoundland and Labrador Inc. applied for judicial review seeking, inter alia, a declaration that the two projects constituted a single "project" within the meaning of the Canadian Environmental Assessment Act requiring a single assessment encompassing both developments.

The Federal Court of Canada, Trial Divi­sion, dismissed the application.

Administrative Law - Topic 3203

Judicial review - Matters not subject to review - A mining company pro­posed a mine/mill project and a smelter/refinery project - The respon­sible federal Minister notified an interested party that the Minis­ter considered these to be separate projects under s. 15 of the Cana­dian Environmental Assessment Act (CEAA) - The interested party sought judicial review, arguing that these projects constituted a single "project" under s. 15 requiring a single environ­mental assess­ment - An issue arose re­specting the ap­propriateness of the appli­cation and its timeliness - The Federal Court of Canada, Trial Division, held that the determination by the Minister under s. 15 was a "deci­sion" within the meaning of s. 18.1(2) of the Federal Court Act and was subject to judicial review - Further, the application was timely - See para­graphs 39 to 51.

Administrative Law - Topic 3342

Judicial review - Practice - Limitation period - [See Administrative Law - Topic 3203 ].

Administrative Law - Topic 3348

Judicial review - Practice - Time for appli­cation - [See Administrative Law - Topic 3203 ].

Administrative Law - Topic 3349

Judicial review - Practice - Costs - Voisey's Bay Nickel Co. (VBNC) pro­posed a nickel mine/mill project and a smelter/refinery project - The responsible federal Minister determined that these were separate projects under s. 15 of the Cana­dian Environmental Assessment Act (CEAA) - The Citizens' Mining Council of Newfoundland and Labrador Inc. (the Council) applied for judicial review seek­ing, inter alia, a declaration that the two projects constituted a single "project" under s. 15, requiring a single environ­mental assessment - The application was dismissed - VBNC sought costs - The Federal Court of Canada, Trial Division, refused to award costs - The court held that an award of costs under old Federal Court Rule 1618 was not warranted - Further this was not a case where the court should exercise its discretion under the new 1998 Rules and award costs - See paragraphs 73 to 75.

Courts - Topic 4021.1

Federal Court of Canada - Jurisdiction - Trial Division - Decisions of federal boards, commissions or tribunals (incl. ministers) - [See Administrative Law - Topic 3203 ].

Courts - Topic 4071.3

Federal Court of Canada - Jurisdiction - Trial Division - Practice - Judicial review applications - Time for - [See Adminis­trative Law - Topic 3203 ].

Pollution Control - Topic 4

General principles - Environmental legis­lation - Interpretation - Section 15 of the Canadian Environmental Assessment Act concerned the scope of projects subject to environmental assessments - The Federal Court of Canada, Trial Division, inter­preted s. 15 - The court stated that s. 15(3) required the inclusion in a project of every phase of life-span of the project - However s. 15(3) did not require a single environ­mental assessment when two pro­jects, each relating to a physical work or works, were proposed by the same pro­ponent, even if the two projects were somewhat interre­lated - Those were cir­cumstances within s. 15(2), which author­ized one assessment for two or more pro­jects where the responsible authority de­termined that the projects were so closely related that they could be con­sidered a single project - That determina­tion was clearly discretionary, not one bound by statute - See paragraphs 55 to 69.

Pollution Control - Topic 1846.2

Environmental assessments or impact studies - Canadian Environmental Assess­ment Act - Scope of assessment -Voisey's Bay Nickel Co. proposed a nickel mine/mill project and a smelter/refinery project - The responsible federal Minister determined that these were separate pro­jects under s. 15 of the Canadian Environ­mental Assessment Act - The Citizens' Mining Council of Newfoundland and Labrador Inc. applied for judicial review seeking, inter alia, a dec­laration that the two projects constituted a single "project" under s. 15, requiring a single environ­mental assessment - The Federal Court of Canada, Trial Division, dismissed the application - Section 15 of the Act did not require that the mine/mill project and the smelter/refinery project be included in one environmental assessment - The Minister's discretion was exercised in a reasonable fashion - There was no sug­gestion of bad faith - See paragraphs 1 to 72.

Pollution Control - Topic 1846.2

Environmental assessments or impact studies - Canadian Environmental Assess­ment Act - Scope of assessment - [See Pollution Control 4 ].

Pollution Control - Topic 1852

Environmental assessments or impact studies - Canadian Environmental Assess­ment Act - Judicial review - [See Ad­min­istrative Law - Topic 3203 ].

Practice - Topic 220

Persons who can sue and be sued - Indi­viduals and corporations - Status or stand­ing - Respecting validity of administrative action by government officials or public body - Voisey's Bay Nickel Co. proposed a nickel mine/mill project and a smelter/refinery project - The Citizens' Mining Council of Newfoundland and Labrador Inc. (the Council) applied for judicial review seeking, inter alia, a dec­laration that the two projects constituted a single "project" under the Canadian Envi­ronmental Assessment Act (the Act) re­quiring a single environmental assessment encompassing both developments - An issue arose respecting standing - The Fed­eral Court of Canada, Trial Division, held that the Council had standing - The Coun­cil raised a serious issue respecting the application of s. 15 of the Act and there was no evidence that others might raise the issue - See paragraphs 29 to 37.

Practice - Topic 221

Persons who can sue and be sued - Indi­viduals and corporations - Status or stand­ing - Public interest standing - Require­ments of - [See Practice - Topic 220 ].

Practice - Topic 7035.1

Costs - Party and party costs - Entitle­ment - Against the Crown or govern­mental bodies - [See Administrative Law - Topic 3349 ].

Statutes - Topic 1806

Interpretation - Intrinsic aids - Bilingual statutes - Interpretation of one version by reference to the other - In interpreting the English version of s. 15 of the Canadian Environmental Assessment Act, the Feder­al Court of Canada, Trial Division, looked to the French version of s. 15 - See para­graph 62.

Cases Noticed:

Alberta Wilderness Association et al. v. Canada (Minister of Fisheries and Oceans) et al. (1998) 152 F.T.R. 49 (T.D.), revd. (1998), 238 N.R. 88 (F.C.A.), refd to. [para. 28, foot­note 1].

Friends of the West Country Association v. Canada (Minister of Fisheries and Oceans) et al., [1998] 4 F.C. 340; 150 F.T.R. 161 (T.D.), refd to. [para. 28, footnote 2].

Friends of the Island Inc. v. Canada (Min­ister of Public Works) et al., [1993] 2 F.C. 229; 61 F.T.R. 4 (T.D.), refd to. [para. 29, foot­note 3].

Canadian Council of Churches v. Canada et al., [1992] 1 S.C.R. 236; 132 N.R. 241, refd to. [para. 29, footnote 4].

Canadian Parks and Wilderness Society v. Banff National Park (Superintendent) et al.; Sunshine Village Corp. v. Canada (Min­is­ter of Canadian Heritage) et al. (1996), 202 N.R. 132; 44 Admin. L.R.(2d) 201 (F.C.A.), refd to. [para. 33, footnote 6].

Sunshine Village Corp. v. Canada (Min­is­ter of Canadian Heritage) et al. - see Canadian Parks and Wilderness Society v. Banff National Park (Superintendent) et al.; Sunshine Village Corp. v. Canada (Min­is­ter of Canadian Heritage) et al.

Shiell v. Atomic Energy Control Board (Can.) et al. (1995), 98 F.T.R. 75; 33 Admin L.R.(2d) 122 (T.D.), dist. [para. 34, footnote 7].

Dhaliwal v. Canada (Minister of Citizen­ship and Immigration), [1995] F.C.J. No. 982 (T.D.), refd to. [para. 42, foot­note 8].

Dumbrava v. Canada (Minister of Citizen­ship and Immigration) (1995), 101 F.T.R. 230 (T.D.), refd to. [para. 42, foot­note 9].

Szczecka v. Ministre de l'Emploi et de l'Immigration (1993), 170 N.R. 58; 116 D.L.R.(4th) 333 (F.C.A.), refd to. [para. 50, footnote 13].

Krause et al. v. Canada et al. (1999), 236 N.R. 317 (F.C.A.), refd to. [para. 51, foot­note 14].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321, refd to. [para. 52, footnote 16].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353, refd to. [para. 52, footnote 17].

Vancouver Island Peace Society et al. v. Canada (Minister of National Defence) et al., [1994] 1 F.C. 102; 64 F.T.R. 127 (T.D.), refd to. [para. 53, footnote 18].

Labatt Brewing Co. v. Molson Breweries, A Partnership (1996), 113 F.T.R. 39 (T.D.), refd to. [para. 53, footnote 19].

Friends of the Oldman River Society v. Canada (Minister of Transport and Min­ister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321, refd to. [para. 56, footnote 20].

Québec (Procureur général) v. Office national de l'énergie, [1994] 1 S.C.R. 159; 163 N.R. 241, refd to. [para. 56, footnote 21].

Québec (Attorney Gen­eral) v. National Energy Board - see Québec (Procureur général) v. Office national de l'énergie.

Cantwell et al. v. Canada (Minister of the Environment) et al. (1991), 41 F.T.R. 18 (T.D.), refd to. [para. 66, footnote 23].

Union of Nova Scotia Indians et al. v. Canada (Attorney General) et al. (1996), 122 F.T.R. 81 (T.D.), refd to. [para. 66, footnote 23].

Vancouver Island Peace Society et al. v. Canada (Minister of National Defence) et al. (1992), 53 F.T.R. 300 (T.D.), refd to. [para. 66, footnote 23].

Maple Lodge Farms Ltd. v. Canada et al., [1982] 2 S.C.R. 2; 44 N.R. 354; 137 D.L.R.(3d) 558, refd to. [para. 66, foot­note 24].

Statutes Noticed:

Canadian Environmental Assessment Act, S.C. 1992, c. 37, sect. 15 [para. 24].

Federal Court Act, R.S.C. 1985, c. F-7, sect. 18.1(1) [para. 32].

Federal Court Rules, rule 332(1) [para. 52, footnote 15]; rule 1618 [para. 75].

Federal Court Rules (1998), rule 81(1) [para. 52, footnote 15], rule 400 [para. 75].

Authors and Works Noticed:

Wade, Sir William, Administrative Law (6th Ed. 1988), pp. 637, 638 [para. 49, footnote 12].

Counsel:

Rodney Northey and Richard J. King, for the applicant;

Ian Dick and Charleen Brenzall, for the respondents, Ministers;

David Stratas, Brett Ledger and Douglas Hamilton, for the respondent, Voisey's Bay Nickel Co.;

Don Burrage, for the respondent, Her Majesty the Queen in Right of New­foundland.

Solicitors of Record:

Birchall Northey, Toronto, Ontario, for the applicant;

Morris Rosenberg, Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the respondents, Ministers;

Osler, Hoskin & Harcourt, Toronto, Ontario, for the respondent, Voisey's Bay Nickel Co.;

Justice - Civil Division, St. John's, New­foundland, for the respondent, Her Maj­esty the Queen in Right of Newfound­land.

This application was heard on February 10, 1998, at Vancouver, British Columbia, before MacKay, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on March 8, 1999.