SANDY POND ALLIANCE TO PROTECT CANADIAN WATERS INC. Applicant v. HER MAJESTY THE QUEEN IN RIGHT OF, 2011 FC 158

Federal Court Cour fédérale Date: 20110210 Docket: T-888-10 Citation: 2011 FC 158 Toronto , Ontario, February 10, 2011 PRESENT: The Honourable Madam Justice Heneghan BETWEEN: SANDY POND ALLIANCE TO PROTECT CANADIAN WATERS INC.

Applicant and HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS REPRESENTED BY THE ATTORNEY GENERAL Respondent REASONS FOR ORDER AND ORDER [ 1 ] Vale Inco Ltd. (“Vale”), the Mining Association of Canada (“MAC”) and the Mining Association of British Columbia (“MABC”) (collectively, the “Proposed Interveners”) seek leave, pursuant to the Federal Courts Rules , SOR/98-106 (the “Rules”) to intervene in the within proceeding with all rights of a respondent including but not limited to, the right to raise preliminary objections, bring motions, file evidence, make legal submissions, and appeal any and all orders and judgments.

Alternatively, they seek status as parties. [ 2 ] Sandy Pond Alliance to Protect Canadian Waters Inc. (the “Applicant”) commenced this application for judicial review in order to challenge certain provisions of the Metal Mining Effluent Regulations , SOR/2002-222 (the “Regulations”) and seeks the following relief: 3. The applicant makes application for: Declaratory Relief as follows: (

a) A declaration that the following sections of the Metal Mining Effluent Regulations , SOR/2002-222 as amended are unlawful as being contrary to the Fisheries Act [R.S., c. F-14, s. 1] and ultra vires the authority granted to the Governor in Council pursuant to the Fisheries Act and subsections 34(2) , 36(5) and 38(9) of the Fisheries Act and are hereby declared to be of no force and effect: i.

SCHEDULE 2 of the Metal Mining Effluent Regulations ii.

Section 5 of the Metal Mining Effluent Regulations iii.

Section 27.1 of the Metal Mining Effluent Regulations

4. That in the alternative to (

a) above, a declaration that the Governor in Council acted beyond its jurisdiction or without jurisdiction in issuing SOR/2006-239, October 3, 2006 and creating

SCHEDULE 2,

Section 5 and

Section 27.1 of the Metal Mining Effluent Regulations . [ 3 ] The Applicant is a not-for-profit corporation registered in Newfoundland and Labrador , pursuant to the laws of that province. According to the incorporation documents, the Applicant was incorporated for the following purposes: The Corporation is established for the following purposes and shall restrict itself to such activities as in its opinion, directly or indirectly, furthers such purposes:

a) To protect and conserve Canadian waters and their ecosystems; and

b) To take appropriate actions to assist the Alliance in fulfilling its purpose, including promoting and recommending laws and policies, and informing and engaging the public; and

c) To join and/or cooperate with other organizations or institutions with similar purposes. [ 4 ] Her Majesty the Queen in Right of Canada as Represented by the Attorney General (the “Respondent”) is the Respondent in the application for judicial review. The Regulations were passed pursuant to the Fisheries Act , R.S.C. 1985, c. F-14. The Respondent takes no position on the motions by the Proposed Interveners and did not participate in the hearing of the motions brought by Vale, MAC and MABC. [ 5 ] The Applicant is challenging the constitutionality of

Schedule 2 of the Regulations , as well as sections 5 and 27.1 of the Regulations as being, among other things, contrary to the protection and conservation of fish habitat which is the purpose of the Fisheries Act . [ 6 ] The focus of the Applicant’s challenge to the Regulations is the inclusion of a body of water known as Sandy Pond, located in the Long Harbour area on the Avalon Peninsula of the Province of Newfoundland and Labrador. The inclusion of Sandy Pond on

Schedule 2 of the Regulations means that that body of water is eligible to be used as a tailings impoundment area in connection with certain operations carried out in Long Harbour by Vale. [ 7 ] The brief statement of facts that appears below is culled from the affidavits filed to date in this proceeding. [ 8 ] The Applicant has filed the affidavit of Dr. John Gibson, a fisheries scientist. The Respondent has filed the affidavits of Mr. Marvin A. Barnes and Mr. Chris Doiron. [ 9 ] Vale has filed the affidavits of Mr. Don Stevens and Ms. Margarette Livie. MAC filed the affidavit of Mr.

Gordon Peeling and the MABC filed the affidavit of Mr. Pierre Gratton. [ 10 ] The Applicant filed the affidavit of Dr. John Gibson, a fisheries scientist. Dr. Gibson expressed opinions about the harmful effect on the conservation function of the Fisheries Act resulting from the inclusion of Sandy Pond on

Schedule 2 of the Regulations . [ 11 ] Vale is a Canadian company with significant mining operations throughout Canada . Vale Inco Newfoundland and Labrador Limited is a wholly owned subsidiary of Vale, operating a plant at Long Harbour, Placentia Bay , Newfoundland and Labrador . The Long Harbour operation is embarking on a proposed nickel processing plant. That plant will generate tailings and require a tailings impoundment area. Currently, eighteen “Tailings impoundment areas” are described in

Schedule 2 of the Regulations by their geographic coordinates.

[ 12 ] In December 2007, Voisey’s Bay Nickel Company Limited (“VBNC”), the former owner of the Long Harbour Processing Plant, submitted a request to the Department of Fisheries and Oceans (“DFO”) to amend the Regulations to include hydrometallurgical plants, such as the proposed project, as a regulated operation and to designate Sandy Pond as a management and storage site. On June 10, 2009, Sandy Pond was included on

Schedule 2 of the Regulations. [ 13 ] The history of the steps taken to obtain the requested amendment is set out in the affidavit of Mr. Marvin A. Barnes, Regional Manager, Environmental Assessment and Major Projects with DFO. This affidavit was filed by the Respondent in the responding application record, relative to the underlying application for judicial review. [ 14 ] Mr. Chris Doiron is the Chief of the Mining

Section of the Mining and Processing Division of Environment Canada in Ottawa . In his affidavit, he states that he played the principal supervisory role within Environment Canada relative to regulatory process leading up to the inclusion of Sandy Pond as a tailings impoundment area on

Schedule 2 of the Regulations . His affidavit outlines the key steps that were required in order to have Sandy Pond listed as a tailings impoundment area on

Schedule 2 of the Regulations. Those steps included consultations with the public. [ 15 ] Vale filed the affidavits of Mr. Don Stevens and Ms. Margarette Livie in support of its motion to participate as a respondent or as an intervener. Mr. Stevens is the General Manager of the Long Harbour Processing Plant that is operated by Vale Inco Newfoundland and Labrador Limited, a wholly owned subsidiary of Vale. [ 16 ] In his affidavit he stated that he was aware of the circumstances relative to Vale’s request to add Sandy Pond to

Schedule 2 of the Regulations and that he was aware of the challenge brought by the Applicant against the inclusion of Sandy Pond in

Schedule 2 of those Regulations . He further stated he believes that Vale is able to offer a unique perspective about the nature and operations of tailings impoundment areas, their importance to the mining industry and the extent to which they can be established and operated in an environmentally responsible manner. [ 17 ] Ms. Livie is a law clerk to Counsel for Vale.

The purpose of her affidavit is to submit certain exhibits, including a transcript of radio broadcast, a copy of a “backgrounder document” about the Applicant, documents relating to the incorporation of the Applicant, a transcript of a television news story and a copy of a video. All of these documents appear to be available in the public domain and were produced by Vale for the purpose of showing that the Applicant is focusing solely on the Long Harbour operations and Sandy Pond itself, that this application has a local and specific focus. [ 18 ] Mr. Gordon Peeling is the President and CEO of the MAC.

The MAC is a national organization for the Canadian Mining Industry and has existed since 1935, initially under the name “the Canadian Metal Mining Association”. [ 19 ] MAC represents most of the mining operations currently listed in

Schedule 2 of the Regulations . MAC says the Applicant is seeking to have

Schedule 2 declared ultra vires the authority of the Fisheries Act . At paragraph 6 of his affidavit, Mr. Peeling describes the severe effects upon 11 mining projects in Canada if the Applicant is successful in its application for review. If this application for judicial review succeeds, 11 mining projects in Canada would be affected. [ 20 ] Mr. Peeling also deposed that the MAC has been granted intervener status in the several cases described in paragraph 7 of his affidavit. [ 21 ] Mr. Pierre Gratton is the President and Chief Executive Officer of the MABC. The MABC was established in 1901 pursuant to

an act of the British Columbia legislature. It is the dominant voice of the mining industry in British Columbia and represents 49 member companies who are engaged in metal and coal mining in British Columbia and throughout the world. The MABC has been granted intervener status in those cases set out in paragraph 6 of his affidavit. Mr. Gratton also comments on the severe consequences for the mining industry should this application for judicial review succeed. [ 22 ] As stated above, Vale, MAC and MABC seek to intervene in this application for judicial review with the full rights of respondents, and alternatively, they request that they be added as parties.

[ 23 ] The Applicant, by letter dated August 6, 2010, indicated that it was prepared to consent to the intervention of the Proposed Interveners on a limited basis, as follows: (

i) That the interveners be restricted to one more affidavit. (ii) That the interveners would not seek any costs from the Applicant whatsoever for the whole of the full Application. (iii) That the normal procedures respecting cross examination etc are available to the parties but that no further motions can be brought on by any party without leave of the Court. [ 24 ] This proposal was not accepted by the Proposed Interveners. [ 25 ] I will first address the motion for intervener status. Rule 109 governs intervention and provides as follows:

Leave to intervene 109.

(1) The Court may, onmotion, grant leave to any personto intervene in a proceeding. Contents of notice of motion

(2) Notice of a motion undersubsection (1) shall (

a) set out the full name andaddress of the proposedintervener and of any solicitoracting for the proposedintervener; and (

b) describe how the proposedintervener wishes to participate inthe proceeding and how thatparticipation will assist thedetermination of a factual or legalissue related to the proceeding. Directions

(3) In granting a motion undersubsection (1), the Court shallgive directions regarding (

a) the service of documents; and (

b) the role of the intervener,including costs, rights of appealand any other matters relating tothe procedure to be followed bythe intervener. Autorisation d’intervenir 109.

(1) La Cour peut, surrequête, autoriser toute personneà intervenir dans une instance.

Avis de requête

(2) L’avis d’une requêteprésentée pour obtenirl’autorisation d’intervenir :

a) précise les nom et adresse dela personne qui désire interveniret ceux de son avocat, le caséchéant;

b) explique de quelle manière lapersonne désire participer àl’instance et en quoi saparticipation aidera à la prised’une décision sur toute questionde fait et de droit se rapportant àl’instance. Directives de la Cour

(3) La Cour assortit l’autorisationd’intervenir de directivesconcernant :

a) la signification de documents;

b) le rôle de l’intervenant,notamment en ce qui concerneles dépens, les droits d’appel ettoute autre question relative à laprocédure à suivre. [26] I refer to the decision in Rothman, Benson & Hedges Inc. v. Attorney General of Canada, (NS CA), [1990]1 F.C. 74 (T.D.), where the Court set out the following criteria to be considered when dealing with a motion for intervener status:

(1) Is the proposed intervenor directly affected by the outcome?

(2) Does there exist a justiciable issue and a veritable public interest?

(3) Is there an apparent lack of any other reasonable or efficient means to submit the question to the Court?

(4) Is the position of the proposed intervenor adequately defended by one of the parties to the case?

(5) Are the interests of justice better served by the intervention of the proposed third party?

(6) Can the Court hear and decide the cause on its merits without the proposed intervenor? [27] The factors are not cumulative and the Proposed Interveners need not meet every one of the factors; see Boutique Jacob Inc.v. Pantainer Ltd. et al. (2006), 2006 FCA 426 , 357 N.R. 384 at paras. 19-21. [28] It is clear that neither MAC nor MABC are “directly affected” because they have no direct connection with the use of SandyPond as a tailings impoundment area.

Their interest is a broad one, as representatives of the mining industry in Canada, generally. [29] Vale also argues that it is not “directly affected” by the subject matter of this application for judicial review. It submits that ifthis application for judicial review is successful, a declaration that

section 5,

section 27.1, and

Schedule 2 of the Regulations areunconstitutional and will not have retroactive effect, meaning that its entitlement to operate a tailings impoundment area at Sandy Pondwill not be affected. [30] Having regard to the Supreme Court of Canada’s decision in Canada (Attorney General) v. Hislop, 2007 SCC 10 ,[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 anyevent, based on my analysis of the remaining criteria, it is unnecessary to determine if Vale is “directly affected” by this application forjudicial review in order to dispose of its motion to intervene. [31] There is a justiciable issue raised by the application for judicial review and an interest that affects the public interest. [32] Contrary to the Applicant’s submissions on factor number 4, I am satisfied that the interests of the Proposed Interveners maynot be adequately defended by either the Applicant or the Respondent.

The interests of both the Applicant and the Respondent are not thesame as those of the Proposed Interveners.

While the Respondent represents the public interest, he does so on a broad plane and withoutan obligation to address the interests of the Proposed Interveners. [33] I am satisfied that the interests of justice are better served by the participation of the three Proposed Interveners and that thepublic interest may suffer if those three parties are denied the right to participate, albeit on a limited basis, in this proceeding. [34] Finally, having regard to the sixth factor, in my opinion the Court will be assisted in adjudicating the present application forjudicial review, by the participation of the three Proposed Interveners.

The Proposed Interveners can offer relevant and differentperspectives on the underlying application for judicial review. Their interest is not merely jurisprudential, as was the case in Canada(Prime Minister) v.

Khadr, 2009 FCA 186 (F.C.A.). [35] As the Proposed Interveners have satisfied a number of the criteria set out in Rothman, Benson & Hedges Inc., this motion tointervene will be granted. [36] Rule 109(3) provides that in granting a motion to intervene, the Court shall give directions concerning the service ofdocuments and the role of the intervener, including costs, rights of appeal and any other relevant matters concerning the procedure to befollowed by the intervener.

[37] The Proposed Interveners seek to participate on a very broad basis, including the right to make motions and to appeal any andall orders that may issue on an interlocutory basis. This degree of participation is more consistent with the role of a party, not asinterveners. The Proposed Interveners seek status as a respondent, as an alternative to obtaining status as interveners. [38] In response to a Direction issued after the hearing of the motions, the Proposed Interveners were asked to make submissionsas to the Direction that the Court should issue, as required by Rule 109, if intervener status is granted.

To a large degree, the ProposedInterveners responded by again requesting a broad participatory role, echoing what they had set out in their Notices of Motion. [39] In other words, although they request a role as “interveners”, the Proposed Interveners want to conduct themselves as parties,in this case as respondents. [40] I am not prepared to issue the Directions as sought by the Proposed Interveners. If the Proposed Interveners had submittedevidence to show that they should be granted party status, a basis would exist for the exercise of discretion to allow them to participate asrespondents.

No Directions would be required because the Rules guide the manner in which parties can participate in an application forjudicial review. I note that according to subsection 18.1(1) of the Federal Courts Act, R.S.C. 1985, c. F-7 and Rule 303(1) of the Rules, akey characteristic of a “respondent” to an application for judicial review is that such person be “directly affected” by the subject of theapplication for judicial review. [41] It is not necessary for me to comment on whether any or all of the Proposed Interveners are “directly affected” by the subjectmatter of this application for judicial review.

I am satisfied that having regard to the evidence submitted and the relevant jurisprudencepertaining to the granting of intervener status, that the three Proposed Interveners should be permitted to participate in that capacity, thatis as interveners. The role of an intervener is necessarily more limited than the participation of a respondent who enjoys all rights of aparty.

The Direction concerning the role of these Proposed Interveners, as interveners, will reflect that more limited role. [42] As indicated, in response to a request from the Court, the Proposed Interveners made submissions concerning the Directionsthat should issue in respect of their status as interveners. [43] The Proposed Interveners have made it clear that they will not be seeking costs in this matter. There is an obvious concernabout a right of appeal. [44] Ordinarily, an intervener has no right of appeal; see Edmonton Friends of the North Environmental Society v.

Canada(Minister of Western Economic Diversification), (FCA), [1991] 1 F.C. 416 (C.A.). In Chrétien v.

Attorney General ofCanada (2005), 2005 FC 591 , 273 F.T.R. 219, Prothonotary Aronovitch addressed the issue of a right of appeal for anintervener, at paras. 41 and 42 as follows: [41] Ordinarily an intervener is not granted the right to pursue an appeal should the decision in the proceeding in which it is interveningbe contrary to its interests. [42] One of the considerations in determining whether interveners ought to be granted a right of appeal is whether there is an expectationthat the respondent would have any vital interest or motivation to prosecute an appeal with the same vigor as the intervening partieswould do.

Then, the appeal is generally limited to the issues which the intervener was given leave to address below. [references omitted] [45] In the present case, it seems to me that a right of appeal for the Proposed Interveners will be of concern only in the event thatthe judicial review application is granted with retroactive effect. That situation would certainly be of great concern to Vale. The potentialdifficulty in that regard may be addressed by the Proposed Interveners seeking leave to appeal from the hearings judge upon the hearingof the application for judicial review.

The Proposed Interveners will address that issue in their respective application records. [46] Having regard to the submissions made by the parties and the relevant jurisprudence, I am satisfied that Vale, and MAC andMABC jointly, should be granted intervener status in this proceeding and their participation shall proceed on the following basis: (

i) documents will be served upon Counsel for the Applicant and Respondent, respectively, within 60 days after receipt of this

Order; (ii) Vale may file an application record, including supporting affidavits from one more fact witness and one expert witness, 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 one expert witness, in addition to the affidavits filed to date; (iv) the interveners shall not have the right to participate in cross examination of the deponents for the Applicant and the Respondent, unless there is consent from both the Applicant and the Respondent in that regard; (

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; (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. [ 47 ] There shall be no costs to any party upon the present motions. 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 60 days after receipt of this Order; (ii) Vale may file an application record, including supporting affidavits from one more fact witness and one expert witness, 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 one

expert witness, in addition to the affidavits filed to date; (iv) the interveners shall not have the right to participate in cross examination of the deponents for the Applicant and the Respondent, unless there is consent from both the Applicant and the Respondent in that regard; (

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; (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. 2. The style of cause is amended as follows: SANDY POND ALLIANCE TO PROTECT CANADIAN WATERS INC.

Applicant and HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS REPRESENTED BY THE ATTORNEY GENERAL Respondent and VALE INCO LTD., MINING ASSOCIATION OF CANADA AND MINING ASSOCIATION OF BRITISH COLUMBIA Interveners

3. There shall be no order as to costs for any party or any intervener upon these motions. “E. Heneghan” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-888-10 STYLE OF CAUSE: SANDY POND ALLIANCE TO PROTECT CANADIAN WATERS INC. v. HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS REPRESENTED BY THE ATTORNEY GENERAL PLACE OF HEARING: St. John's , NL DATE OF HEARING: September 10, 2010 REASONS FOR ORDER AND ORDER: HENEGHAN J. DATED: February 10, 2011 APPEARANCES : Owen Myers FOR THE APPLICANT Douglas Hamilton Christopher A. Wayland FOR THE INTERVENER Vale Inco Ltd. James Thistle, QC FOR THE INTERVENER Mining Association of Canada and Mining Association of British Columbia SOLICITORS OF RECORD :

Owen Myers Barrister and Solicitor St. John’s , NL FOR THE APPLICANT Myles J. Kirvan Deputy Attorney General of Canada St. John's , NL FOR THE RESPONDENT