Five years after an exploration company proposed a new access road off the Trans-Canada Highway near Holyrood, a Supreme Court ruling has condemned the handling of the project’s environmental assessment.
This case has included a provincial cabinet decision (under the former Progressive Conservative government) to OK the project despite advice to the contrary from staff; a subsequent appeal left without any decision, put “on hold” during transition to a Liberal government; and an unlawful decision made by the Liberals to then restart the appeal and demand a costly environmental impact statement (EIS) from the company.
Eagleridge International Inc. filed for the environmental assessment of the proposed 11-kilometre-long Big Triangle Pond Mineral Exploration Access Road on Sept. 16, 2013.
The lengthy process that followed is “an extreme rarity” according to Environment Minister Andrew Parsons, who spoke to The Telegram about the case this week.
“It’s not something I think we see at all. It’s not a regular occurrence by any means,” he said when asked about the missteps, delays and contravention of legislated timelines.
Parsons said the legal decision issued on Aug. 30, 2018, in favour of the company will not be appealed by the province.
It’s unclear at this point if the project will or will not proceed.
Government versus cabinet
The assessment in question began under the former Progressive Conservative government. In November 2013, with an initial review completed under then-Environment minister Joan Shea, the company was directed to file an environmental preview report. It’s a requirement for more information, but not at the level of an even more detailed environmental impact statement.
The company obliged and provided the report as required. Following comments from other departments and a public comment period, as Justice Alphonsus Faour summarized in his decision, “it was clear that the recommendation of the (government) officials was to reject the proposal at this time.” Shea advised the cabinet.
Around that time, there were rapid changes in Environment ministers. But a subsequent cabinet meeting dealing with the project was followed by the project being released from further assessment, by then-Environment minister Dan Crummell.
In one of the oddities of the case, arguments were made in court saying that decision should have been made only by the minister and was instead made by cabinet. There were calls for Faour to intervene on that point, in the public interest.
In his decision, Faour stated cabinet has the authority to reject any project. In the absence of a rejection, as in this case, the minister can then sign off on release of the project.
“It is not the court’s role to usurp the decision-making authority of the cabinet, nor its ability to provide direction on policy matters to ministers,” he stated.
“There were a number of individuals opposed to the project on environmental grounds, including the officials in the department. There were also individuals who expressed support for the project on economic grounds. It is the role of cabinet to balance these views and in doing so define the public interest,” he wrote.
Staff member censured
After the Progressive Conservatives decided to release the project from further assessment, an environmental scientist with a key role in the review tried to stir-up opposition.
He wrote an email to someone he thought might help.
“I am hoping to communicate with you in confidence about this project. As you know, I work for the EA division and I chaired the EA committee on this file,” he stated.
A copy of the email is contained in court documents associated with the case.
“I believe that this decision to release this project from EA can be successfully challenged with an uptick in opposition from concerned parties. … People may be able to challenge this decision if they make some noise and get some media attention,” he stated, adding he wanted “to (confidentially) encourage it.”
That email got back to supervisors, and the staff member was moved out of the environmental assessment division.
Faour stated he did not believe the actions had any bearing on final decisions in the case.
Parsons said the department does not have any standing concern of staff undermining the environmental review process.
The Trimper decisions
Parsons was also asked about decisions made in the case by former Environment minister Perry Trimper, who is now Speaker of the House of Assembly.
After taking office, Trimper decided to allow a restart of an appeal process, despite legislated timelines of an appeal having to be resolved in 30 days and the company never being notified of a “hold” (something the act gives the minister no authority to allow). He ultimately demanded more from the company.
“I think the information before the minister at the time … from his perspective, from his opinion, based on the information he had and based on everything he had in front of him, he felt that an EIS was necessary. And then when you look at the decision, it’s just that the procedure, the process that was followed, was ruled as basically invalid,” Parsons said.
In his written decision, Faour stated it this way: “No authority was provided for the revival of an appeal which had lapsed or had been abandoned. Minister Trimper provided no rationale for a revival. … He gave no rationale or reasons, even when Eagleridge made submissions on the point.”
Specifically, a letter from the company highlighted relevant legislation and timelines stated there. It stated the appeal “should be dismissed on principle” and that it had “no legal standing.”
There was no response.
Faour quashed the decisions of the Liberal minister.
Eagleridge International Ltd. was being led by Al Chislett, co-discoverer of the Voisey’s Bay nickel, copper and cobalt deposit, who died in April.
Eagleridge’s vice-president during pursuit of the access road near Holyrood was Bradley Chislett. The Telegram attempted to contact Chislett this week, but received no response as of deadline.
As part of the legal case, the company was awarded legal costs and has the ability to seek damages.
Holyrood Mayor Gary Goobie said Thursday the town is aware of the court decision. He said he had yet to be briefed on the case, but a briefing was to happen in short order and the project would be subject to discussion at a future council meeting, assuming the proponent wanted to proceed.
In addition to provincial assessment, there are municipal permits required for the project.
Key dates — Big Triangle Pond Mineral Access Road
September 2013 — The project is registered for environmental assessment.
November 2013 — Environment minister Joan Shea tells the company it must file an environmental preview report, with more information, before a final decision.
July 2014 — A cabinet submission from senior officials recommends rejection of the project as proposed. A subsequent cabinet meeting is held, including then-Environment minister Vaughan Granter. A decision is issued out of the meeting, authorizing the minister to release the proposal from any further assessment, subject to conditions.
September 2014 — Dan Crummell is appointed Environment minister.
October 2014 — Crummell sends a notice to the company, stating the project has been released on conditions.
October 2014 — The government staff member who chaired the environmental assessment committee for the project sends an email to a citizen opposed to the project, encouraging further opposition and public activism, suggesting the government’s decision could yet be successfully challenged.
February 2016 — The new environment minister, Perry Trimper, writes to the company to say the appeal had been “placed on hold” during the change in government, and it was now being revived. Eagleridge writes to the minister within the week to challenge the legal status of the appeal. The company receives no response.
May 2016 — Trimper decides the earlier order of Crummell will be overturned and the project is not released from environmental assessment. Instead, he says the company must begin a more detailed and costly review process, including the development of an environment impact statement. The decision doesn’t address the company’s objections from its letter months before.
January 2017 — A challenge by Eagleridge International to the handling of the case is heard in the Supreme Court of Newfoundland and Labrador.
August 2018 — A decision is issued by Justice Alphonsus Faour in favour of the company.