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Federal Court Rules Data from Tailings and Waste Rock Stored Inside Mining Facilities Must be Collected and Reported on by Environment Canada

On April 23, 2009, Mr. Justice James Russell of the Federal Court trial division ruled in Great Lakes United and MiningWatch Canada v. Minister of Environment and Mining Association of Canada 2009 FC 408, that the Minister of Environment is required by the Canadian Environmental Protection Act (“CEPA”) to collect and report in the National Pollutant Release Inventory (“NPRI”) data from mining facilities of releases to tailings impoundment areas (“TIAs”) and waste rock disposal areas (“WRSAs”) from the 2006 reporting year and subsequent years.

According to information provided in the case, Environment Canada previously exempted the industry from disclosure requirements because it viewed waste mining material as held in storage and potentially available for further mineral extraction. In this view, the wastes weren't technically released into the environment.  While the Minister has always required the NPRI reporting of NPRI substances that leave a TIA or WRSA, the Minister has never required the NPRI reporting of substances that are deposited to a TIA or WRSA.

In part, the Minister argued that section 46 of CEPA (which sets out that the Minister “may” publish a notice requiring persons to provide information) permitted Environment Canada to use its discretion in using its power to gather information in respect of pollutants.   In the Minister’s view, this meant there was no legislative duty imposed on the Minister to either use the provisions of section 46 or to require specific data.  However, the judge found that the Minister’s discretion and power to gather information under section 46 cannot be used to abrogate what he viewed as mandatory obligations on the Minister under section 48 and 50 of CEPA to establish and report on pollutants in the NPRI, “Simply put, I cannot see how the national inventory that must be established under section 48 can, when the full context of CEPA is examined, be entirely governed by whatever information the Minister may, or may not, choose to collect under section 46.”

Although the decision is under review by parties to the case, it is not yet known whether any parties to the case will appeal the decision.

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Lawson Lundell's Project Law Blog focuses on updating proponents on issues emerging in the law and policy that applies to the development of major projects in Canada. The focus of the blog is on matters relating to environmental assessment and compliance, regulatory matters and Indigenous consultation.

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