The law is supposed to be based on precedent, and judges are supposed to rely on qualified experts and consider the public good when they weigh the arguments of defendants and plaintiffs. Yet when it comes to disputes over resource development, anything goes. Indeed, the only certainty is to expect the unexpected.
Two recent cases — Voisey’s Bay in Labrador and Cheviot coal in Alberta — illustrate how special-interest groups have successfully used the courts to circumvent the regulatory process established by government agencies. These cases also provide compelling evidence that judicial interference in resource development has been to the detriment of the public good.
In the case of Voisey’s Bay, a court sided with a citizens’ group that sought to stall a proposed underground exploration program until a full environmental assessment was done. As a result of the September 1997 ruling, Inco was prohibited from undertaking advanced exploration to prove up additional reserves beyond the known Ovoid. Yet it was, and continues to be, common industry practice to carry out advanced exploration during the mine-planning and permitting phases. After all, mineral deposits are full of surprises, and bankers don’t like surprises; they want the geological risks reduced to a minimum before they sink in their dollars, and that usually means going underground to confirm results from surface drilling.
In our view, this court ruling was unprecedented and unfair. It was unwarranted too, because, contrary to the protests of special-interest groups, the environment was never at risk. Like most provinces, Newfoundland and Labrador have stringent regulations governing advanced exploration. As it turned out, the decision was unwise too, because had the program been allowed to proceed, Voisey’s Bay might have grown to the size necessary to support downstream metallurgical facilities. A major new discovery might have provided enough ore to justify a smelter and a refinery, rather than just a mine and mill, thereby satisfying the aspirations of most Labradorians and Newfoundlanders.
Had the courts ruled against the special-interest group, Voisey’s Bay might now be serving the greater public good, instead of sitting undeveloped in the midst of a nickel price boom. Had the courts listened to technical experts instead of anti-development rhetoric, young people would be employed and learning new skills, instead of falling victim to idleness and despair.
The Cheviot coal mine proposal was also hijacked by special-interest groups who refused to accept a 1997 go-ahead recommendation by a joint review panel of the Alberta Energy and Utilities Board (EUB) and the Canadian Environmental Assessment Agency. The court’s decision kept the mine proposal, which had been fully approved by the panel, on the drawing board.
Why? Because a coalition of environmental groups, bankrolled by a powerful legal fund, argued that, among other things, Cardinal River Coals ought to have examined an underground mining alternative, rather than the open-pit mining proposed in the plan. The request was bizarre. Given weak coal prices, it was common knowledge that, in this case, underground mining was not economically feasible. Was it, then, a stalling tactic or a deliberate project-killing demand?
Whatever it was, the judge agreed with the environmental coalition and ruled that the environmental assessment done by the joint panel “was not in compliance” with the Canadian Environmental Assessment Act, and that permits authorized by the Department of Fisheries and Oceans had been issued “without jurisdiction.”
The ruling was stunning, not to mention confusing. Should mining companies be forced to complete costly engineering studies for mining options they know are not feasible? Should environmental groups — and, by extension, judges — have the right to dictate the technical options a company must consider before it files its mine plan?
The court also agreed with the environmental coalition that companies must consider the cumulative effects of other resource activities, such as forestry, oil and gas, and recreational developments. In the case of Cheviot, the project developers were asked to do exactly that. Granted, a broad brush overview of other resource activities provides useful baseline information, but the nebulous nature of the futuristic exercise raises liability concerns for any company, not to mention logistical challenges. And again, costs mount, making it difficult for all but the most robust of projects to survive. But the real point to be considered here is that if cumulative effects assessments (and the study of uneconomic mining options) are to be part and parcel of mine planning, then government agencies — and not the courts or environmental groups — should set the rules of the game up-front.
Cheviot was stalled for more than three years while the Joint Review Panel reconvened to consider the information required by the court. The underground mining option was considered, along with other resource activities and their cumulative environmental effects.
As it did in 1997, the Panel recommended that the project receive approval from the government of Canada. It found that most of the environmental effects, including cumulative effects, were “insignificant.” It found that the surface mining design was “the only economically feasible method of coal extraction” and that there was no real reduction in the eventual cumulative adverse environmental effects associated with the underground mining alternative. And it found, yet again, that the project met regulatory requirements and was “in the public interest.”
We are left to wonder, What was all that sound and fury by environmental group really about? Did Cheviot stand in the way of a grand-scale wilderness preservation program, the “Yellowstone to Yukon Conservation Initiative,” proposed by a powerful group in the anti-Cheviot coalition? Was that the real reason it was singled out for a no-holds-barred court challenge?
Local residents were upset by the setback too, in particular those who had hoped to find employment in the mine. “This project is environmentally sound,” says Robin Campbell, president of the United Mine Workers of America, Local 1656, “yet because of the ongoing opposition by environmentalists, the lives of about 400 mine workers and their families have needlessly been put on hold.”
The recent findings of the Joint Review Panel is a validation of the 1997 environmental review and the overall integrity of the project. The tragedy is that it took three years of hard work and millions of dollars to prove the point.
At this year’s Mining Millennium conference in Toronto, several prominent environmentalists said their intervention in mining ventures is necessary because government agencies have neither the will nor the resources to do their job properly. We can do the job better, they say. If these two cases are any indication, we beg to differ.
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