Update: Sandy Pond Alliance to Protect Canadian Waters Inc. v. Attorney General of Canada

As reported in previous issues through its not for profit corporation, the Sandy Pond Alliance has launched a challenge to sections 5 and 27.1, and Schedule 2 of the Metal Mining Effluent Regulations (“MMER”).  Where a mining project cannot operate its tailing impoundment area in compliance with the thresholds set out in the MMER, adding a water body to Schedule 2 permits a proponent to convert the water body into a tailings impoundment area.  The Sandy Pond Alliance is a coalition that includes the Council of Canadians, MiningWatch, the Newfoundland and Labrador Natural History Society, Sierra Club Atlantic, and a number of individuals.  The applicant is seeking a declaration that these sections are of no force and effect because they are contrary to the prohibitions against deposits of deleterious substances into waters frequented by fish set out in section 36 of the Fisheries Act and outside Cabinet’s regulation-making authority under certain sections of that Act.  In the alternative, the applicant is seeking a declaration that Cabinet acted beyond its jurisdiction or without jurisdiction in issuing the amendments in October 2006 that created or amended these sections of the MMER.

Vale Canada Ltd, the proponent of the Long Harbour Processing Plant project that will use Sandy Pond as a tailings impoundment area, has obtained leave to intervene in a limited role, as set out in an Order of the Federal Court of Appeal on April 8, 2011 (file A-93-11, decision 2011 FCA 129).  The Mining Association of BC and Mining Association of Canada have obtained leave to intervene in a limited role, as set out in 2011 FCA 129. Intervener materials are due to be filed on about May 8, 2011.


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