What to do when a new government revokes your environmental approval

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by Stanley Berger, Fogler Rubinoff LLP

Background

In Eagleridge International Ltd. v. Newfoundland and Labrador (Environment and Conservation) 2018 NLSC 180, following a change of government, the new Minister of Environment and Conservation withdrew approval for the construction of a gravel road intended to facilitate mineral exploration on lands for which mining licences were held and ordered that the project be subject to a full environmental assessment (EA). The licence holder, and project proponent, Eagleridge had already delivered an Environmental Preview Report as required by the previous government, and during the period awaiting approval had incurred approximately $400,000 in expenses including the cost of meeting the conditions for approval. The conditions included an Environmental Effects and Monitoring Plan and a Rare Lichen survey. A group of interested citizens appealed the previous government’s decision to release the project from a full EA. That appeal was filed with the Minister outside the limitation period, the Minister did not issue a decision on the appeal within the prescribed period and there was no express statutory authority to place the appeal “on hold” during this time. Over a year after the appeal had been filed, the Appellants wrote the new Minister requesting a decision on the Appeal. During that time frame, Eaglebridge continued to expend money on the project. The new government advised Eagleridge that the appeal would be revived. Eagleridge filed written submissions respecting the revived appeal process, but the decision to release the project from a full EA was nevertheless overturned by the new government without addressing the objections raised by Eagleridge. The rationale provided by the Minister focussed on the effects of the project on the biophysical and socio-economic environments of the project area, significant public concerns and the recommendations of the Environmental Assessment Committee which had issued the guidelines for the original Environmental Preview Report.

The area of the mineral access road in Newfoundland, as originally proposed by Eagleridge International in the registration for environmental assessment with the province in September 2013

Decision

The reconsideration of the appeal as a device to reverse the previous Minister’s decision to release the project from a full EA was a breach of natural justice as Eagleridge was denied any opportunity to state its case and the decision to revive the appeal was without reasons or rationale. The reconsideration of the appeal was without statutory authority and was quashed. Had the judgment stopped there it would have been a matter-of-fact administrative law opinion. However, the Newfoundland Supreme Court went further and assumed that the power existed in the Provincial Government to still call for a full EA. Notwithstanding that assumed power, the Court held that Eagleridge had recourse to the administrative law doctrine of public law estoppel. It cited the Supreme Court of Canada description of the doctrine in
Immeubles Jacques Robitaille inc. c. Québec (Ville), 2014 SCC 34 (S.C.C.):

The reconsideration of the appeal as a device to reverse the previous Minister’s decision to release the project from a full EA was a breach of natural justice as Eagleridge was denied any opportunity to state its case and the decision to revive the appeal was without reasons or rationale. The reconsideration of the appeal was without statutory authority and was quashed. Had the judgment stopped there it would have been a matter-of-fact administrative law opinion. However, the Newfoundland Supreme Court went further and assumed that the power existed in the Provincial Government to still call for a full EA. Notwithstanding that assumed power, the Court held that Eagleridge had recourse to the administrative law doctrine of public law estoppel. It cited the Supreme Court of Canada description of the doctrine in
Immeubles Jacques Robitaille inc. c. Québec (Ville), 2014 SCC 34 (S.C.C.):

“19. In the public law context, promissory estoppel requires proof of a clear and unambiguous promise made to a citizen by a public authority in order to induce the citizen to perform certain acts. In addition, the citizen must have relied on the promise and acted on it by changing his or her conduct (), 2001 SCC 41, [2001] 2 S.C.R. 281 (S.C.Centre hospitalier Mont-Sinaï c. Québec (Ministre de la Santé & des Services sociauxC.), at paras. 45-46 (“Mount Sinai“), quoting Maracle v. Travelers Indemnity Co. of Canada, [1991] 2 S.C.R. 50 (S.C.C.); J.-P. Villaggi, L’Administration publique québècoise et le processus décisionnel: Des pouvoirs au contrôle administratif et judiciaire (2005), at p. 329).

  1. However, the doctrine of estoppel must yield in the public law context to an overriding public interest and may not be invoked to prevent the application of an express legislative provision (Mount Sinai, at para. 47; St. Ann’s Island Shooting & Fishing Club Ltd. v. R., [1950] S.C.R. 211 (S.C.C.), at p. 220).”

The government argued that the overall public interest in the environment weighed against the application of promissory estoppel. Government officials initially recommended to Cabinet that the project was not in the public interest because the development would take place in proximity to a protected wilderness area and a wildlife park and could have significant implications for a nearby salmon river. The Court rejected this argument on the basis that Cabinet had considered the recommendation and decided to nevertheless release the project from a full EA.

“It goes without saying that environmental considerations are important in assessing the public interest. But defining the public interest is the role of elected officials not the Court.” (par. 115)

What was the Remedy?

Eagleridge was entitled to proceed in accordance with the release from the full EA granted by the Minister before the change in government.

“If the government determines by a lawful means that the release should be reversed, or at least altered, then Eagleridge, under the doctrine of public interest estoppel, is entitled to claim its reasonable costs associated with its actions in pursuance of the release.” (at par.117)

This article was first published in the Fogler Rubinoff LLP website.

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About the Author

Mr. Berger has practiced regulatory law for 37 years. He represents nuclear operators and suppliers , waste management operators, renewable energy operators, receivers -in -bankruptcy, municipalities and First Nations. He has been certified as a specialist in environmental law by the Law Society of Ontario since 2006.

He was an Assistant Crown Attorney in Toronto for 8 years , Senior counsel and Deputy Director for Legal Services /Prosecutions at the Ministry of the Environment for 9 years and Assistant General Counsel at Ontario Power Generation Inc for 14 years.

He is the author of a quarterly loose-leaf service published by Thomson Reuters entitled the Prosecution and Defence of Environmental Offences and the editor of an annual review of environmental law.

-Mr. Berger was the President of the International Nuclear Law Association (2008-2009) and the founder, and President of the Canadian Nuclear Law Organization .

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