These were appeals from a Federal Court order granting the application of the respondent, Inter-Church Uranium Committee Educational Co-operative (the ICUCEC), to quash an operating licence issued in 2001 by the Atomic Energy Control Board to Cogema Resources Inc.
One of the responsibilities of the Board was to regulate uranium mining in Canada through a licensing regime set out in the Uranium and Thorium Mining Regulations. The most important feature of those Regulations is the "staged licensing", which requires a separate license for each stage in the development and operation of a uranium production facility.
The license authorized the operation of a "tailings management facility" for the McClean Lake Project, a uranium mine in northern Saskatchewan. It was ruled invalid because its issuance was not preceded by an environmental assessment under section 5 of the Canadian Environmental Assessment Act (CEAA). There had already been an environmental assessment under the Environmental Assessment and Review Process Guidelines Order which were in effect when the Project was first proposed.
In 1991, a single joint federal-provincial panel was established for a number of uranium mining proposals, including the McClean Lake Project. It recommended that the McClean Lake Project be delayed for at least five years but, the Minister of Natural Resources did not accept the Panel’s recommendation. The Project was permitted to proceed under the Board’s staged licensing process. The CEAA was enacted in 1992 to replace the Guidelines with a different regime for environmental assessments. Included in the CEAA is a transitional provision, subsection 74(1), which provides that the Guidelines shall continue to apply in respect of any proposal that prior to the coming into force of this section was referred to the Minister for public review and for which an Environmental Assessment Panel was established by the Minister.
The ICUCEC commenced an application for judicial review to challenge the Board’s decision to issue the license on the ground that it was not preceded by an environmental assessment under the CEAA. The Trial Judge found the challenge to be well founded. Subsection 74(1) of the CEAA was clearly engaged because a Panel was established for the McClean Lake Project pursuant to the Guidelines before the CEAA came into force.
The issue was whether the Trial Judge erred in concluding that subsection 74(1) did not relieve the Board from requiring an environmental screening or assessment under the CEAA prior to the issuance of the license.
The Federal Court of Appeal held that the appeals should be allowed.
To interpret subsection 74(1) as requiring a second environmental assessment under the CEAA would render the process under the Guidelines meaningless, and would require the work of the Panel to be repeated after the planning process is complete. Such interpretation was consistent neither with the objective of subsection 74(1) as a transitional rule, nor with important objectives of the CEAA as a whole.
However, the end of the work of the Panel did not mean an end to all environmental review for the McClean Lake Project. Environmental issues had to be considered for each license issued under the Uranium and Thorium Mining Regulations and their successor, the Uranium Mines and Mills Regulations. The respondent was seeking a fresh environmental assessment of a project that had already undergone scrutiny under the Guidelines. The statutory scheme of the CEAA did not require such a second review.