Grassy Narrows First Nation v. Ontario (Environment, Conservation and Parks), 2025 CanLII 21796

ISSUE DATE: March 10, 2025

CASE NO(S).: OLT-25-000006

PROCEEDING COMMENCED UNDER section 38 of the Environmental Bill of Rights 1993, S.O. 1993, c. 28, as amended

Applicant: Grassy Narrows First Nation

Instrument Holder: Great Bear Resources Ltd.

Respondent: Director, Ministry of the Environment, Conservation and Parks

Subject to leave to appeal: Decision to issue a Permit to Take Water from Box Cut, 4 Pond Excavation, Dixie Creek, and Potable Well pursuant to section 34.1 of the Ontario Water Resources Act for dewatering, industrial, and water supply purposes during the construction phase of the Advanced Exploration programme for the propose Great Bear Gold Project

Property Address: Approximately 25 kilometres southeast of the Town of Red Lake Unsurveyed Territory (Kenora Area Office)

Municipality/UT: Kenora

OLT Case No.: OLT-25-000006

OLT Lead Case No.: OLT-25-000006

OLT Case Name: Grassy Narrows First Nation v. Ontario (Environment, Conservation and Parks)

Heard: In writing

Parties	Counsel
Asubpeeschoseewagong Anishinabek	J. Castrilli, R, Lindgren, J. Esmonde and S. Lang
Director, Ministry of the Environment, Conservation and Parks	N. Harris, M. Ritchie and S. Shams
Great Bear Resources Ltd.	D. Bursey, L. Griffiths, S. Gilbert and A. Walji

DECISION OF THE TRIBUNAL DELIVERED BY HUGH S. WILKINS AND MATHIEU E. QUESNEL

1On April 11, 2024, Great Bear Resources Ltd. (“Permit Holder”) applied for a Permit to Take Water for the construction phase of an Advanced Exploration (“AEX”) programme at its property (“site”) located roughly 25 kilometres southeast of the Town of Red Lake, in northwestern Ontario. The AEX programme is part of the Permit Holder’s investigation to determine the feasibility of a possible gold mine on the site.

2The AEX programme would consist of a pilot study to determine underground conditions in the area and to gather data for the design of an underground mine. To do this, the Permit Holder needs to pump out underground water, thus requiring the Permit to Take Water. The Permit Holder’s plan is to pump the water out and then have it treated and returned to the environment using a mobile water treatment system. The proposed mobile water treatment unit is subject to a separate Environmental Compliance Approval (“ECA”) issued by the Ministry of the Environment, Conservation and Parks (“MECP”).

3On December 20, 2024, the Director (“Director”), MECP, issued Permit to Take Water No. 3438-D7RQJT (“Permit”). The Permit allows for the taking of water for dewatering, industrial, and water supply purposes during the construction phase of the AEX programme. The purposes of the water takings allowed under the Permit are for dewatering the excavation of a box cut portal, dewatering the excavation of four ponds, takings from Dixie Creek for the purpose of dust suppression, and a drinking water well.

4The Permit is for less water to be taken and for a shorter time period than the Permit Holder requested in its application. The Director reduced the water takings and water volume to allow for the AEX programme to move forward while allowing time for more studies to be completed. The maximum water taking volume was reduced from 8,362,000 litres per day to 1,220,000 litres per day. The duration of the permit was reduced from five years to one year. The number of sources of water takings was reduced from eight to four sources.

5The Permit includes conditions, including:

a. a prohibition from discharging any water taken directly to the environment without prior treatment in accordance with the ECA for the proposed mobile water treatment unit (Condition 2.2.1);

b. specifications on the scope of each water taking, including source, type, purpose, category, and total volume per source. This is to ensure that the water generated does not exceed the proposed mobile water treatment unit’s capacity (Condition 3);

c. the maintenance of three monitoring stations to measure stream flow in Dixie Creek and specification of minimum monitoring standards (Condition 4.3);

d. the preparation and implementation of a groundwater monitoring plan to provide data on the hydrogeological environment and groundwater quality between the discharge location and Dixie Creek (Condition 4.4);

e. the specification that water taking for dust suppression must be applied and infiltrate greater than 30 metres from surface water features (Condition 5.4); and,

f. the prohibition of discharges to surface water and implementation of an adaptive management plan and mitigation measures to ensure that treated effluent fully infiltrates into the ground and does not discharge to any surface water body (Condition 5.10).

6On January 3, 2025, the Asubpeeschoseewagong Anishinabek (Grassy Narrows First Nation) (“Applicant” or “Grassy Narrows”) filed an application for leave to appeal the Director’s decision under s. 38 of the Environmental Bill of Rights, 1993 (“EBR”). The Applicant is an Anishinaabe First Nation located in the vicinity of the site. Grassy Narrows people hunt, trap, fish, and practice their Anishinaabe way of life to provide for themselves, their families, and community. The Applicant’s concerns focus on (1) a lack of meaningful consultation with it; (2) the potential release and distribution of waterborne sulphate and potential mercury methylation downstream of the site; (3) a lack of baseline data, treatment capacity, and site-specific effluent criteria; and (4) disagreement with the Permit Holder’s technical assessments.

7In support of its application for leave to appeal, the Applicant filed evidence from the following individuals:

a. Brian Branfireun, who is a Hydrologist and Professor of Biology at Western University. He is an expert in the field of watershed biogeochemistry and the environmental cycling of mercury;

b. Kevin Morin, who is a Hydrogeologist with Morwijk Enterprises Ltd. and the Minesite Drainage Assessment Group; and,

c. Rina Freed, who is a Senior Environmental Engineer (Mining) with Source Environmental Associates Inc.

8In response to the application for leave to appeal, the Director filed affidavit evidence affirmed by the following individuals:

a. Adam Leus who is the Manager, Brownfields and Permit to Take Water, in the Environmental Permissions Branch of the MECP. He is the Director who issued the Permit;

b. Shannon Heggie who a Hydrogeologist, employed by the MECP; and,

c. Jacinth Gilliam-Price who a Surface Water Specialist, employed by the MECP.

9In its response to the application for leave to appeal, the Permit Holder filed affidavit evidence sworn by the following individuals:

a. Aaron MacDonell who is the Director of Environmental Services for the Permit Holder;

b. Amy Elliott who is a Senior Technical Manager, Water Quality, employed by WSP E&I Canada Limited (“WSP”);

c. Sheila Daniel who is a Senior Technical Director and Team Lead of Mine Environment Approvals at WSP; and,

d. Simon Gautrey who is a Senior Technical Director, Hydrogeology, at WSP.

1. Standing to Seek Leave to Appeal

10Section 38(1) of the EBR sets out the test for standing to seek leave to appeal. It has five components. These are:

a. the applicant must be a person;

b. the applicant must be a resident in Ontario;

c. the decision in question must be whether or not to implement a proposal for a Class I or II Instrument;

d. the applicant must have an interest in the decision; and,

e. another person must have a right of appeal under another Act.

11Neither the Director nor the Permit Holder disputes that the Applicant satisfies these requirements and has standing to seek leave to appeal.

12Based on the evidence and submissions before it, the Tribunal finds that the Applicant meets the standing requirements in s. 38(1) of the EBR. The Applicant is a legal entity based in Ontario, the Director’s decision is to implement a proposal for a Class I instrument of which notice was given under s. 22 of the EBR and the Permit Holder has the right under s. 100 of the Ontario Water Resources Act (“OWRA”) to appeal the Director’s decision. The Tribunal finds that the Applicant submitted comments on the Permit proposal and has an interest in the matter.

2. The Leave Test

13The leave test in s. 41 of the EBR has two components: a reasonableness test and a significant environmental harm test. To be granted leave to appeal, an applicant must satisfy each of these tests. Section 41 states:

41. Leave to appeal a decision shall not be granted unless it appears to the appellate body that,

(a) there is good reason to believe that no reasonable person, having regard to the relevant law and to any government policies developed to guide decisions of that kind, could have made the decision; and

(b) the decision in respect of which an appeal is sought could result in significant harm to the environment.

These two requirements will be analyzed and applied separately below.

A. The Reasonableness Test

14The reasonableness test requires the Tribunal to assess whether the Director considered the relevant laws and policies when deciding whether to issue the Permit. The standard of proof to be applied in EBR leave to appeal applications is the establishment of a good arguable case. It is not the role of the Tribunal at the leave stage to decide the merits of the appeal. In Lafarge Canada Inc. v. Ontario (Environmental Review Tribunal), 2008 CanLII 30290 (ON SCDC), [2008] O.J. No. 2460 (“Lafarge”), the Divisional Court stated at paragraph 45 of (with emphasis added):

At the leave to appeal stage, the appropriate standard of proof is an evidentiary one, i.e., leading sufficient evidence to establish a prima facie case, or showing that the appeal has "preliminary merit", or that a good arguable case has been made out, or that there is a serious question to be tried. Although worded differently, all of these phrases point to a uniform standard which is less than the balance of probabilities, but amount to satisfying the Tribunal that there is a real foundation, sufficient to give the parties a right to pursue the matter through the appeal process. This lesser standard is embodied in the words of s. 41, namely "appears" and "there is good reason to believe". It is not the function of the Tribunal member who is giving leave to determine the actual merits of the appeal; rather, the member must determine whether the stringent threshold in s. 41 has been passed.

15In the present case, the Applicant submits that it satisfies this test because the Director did not properly consider the MECP’s Statement of Environmental Values (“SEV”), did not properly consult with the Applicant as required under the Constitution Act, 1982, and did not properly apply the OWRA or Ontario Regulation 387/04 (on Water Taking and Transfer).

1. The MECP’s Statement of Environmental Values

16The Applicant submits that the Director did not properly consider the MECP’s SEV when making his decision. Specifically, it argues that the Director did not properly consider:

a. the precautionary principle;

b. cumulative effects;

c. the principle of sustainable development; or,

d. the ecosystem approach.

Each is addressed below.

(a) The Precautionary Principle

Applicant’s Evidence and Submissions

17Dr. Freed stated that the Permit Holder failed to provide detailed baseline groundwater quality data to establish pre-disturbance conditions to identify contaminants, identify whether parameters are elevated for surface water, and provide water quality predictions. She stated that the absence of detailed baseline groundwater quality data means that existing contaminants and parameters above local background surface water levels or provincial water quality objectives for surface water have not been identified. She opined that without this data, it is not possible to properly determine whether surface water quality will be impacted or whether the Permit Holder’s proposed mobile water treatment process will address all contaminants in the discharged water. She opined that there is insufficient site-specific hydrology monitoring data to characterize hydrological conditions at the site and only minimal assessment work has been completed on the exfiltration discharge location. She said this limits understanding of impacts on local water systems and results in a lack of understanding regarding the pathway of effluent from the exfiltration field to tributaries of Dixie Creek. She stated that this lack of assessment creates uncertainty regarding the potential effects of the water takings, particularly, on Dixie Creek. She said the Permit Holder seeks to discharge effluent on land, assuming that the effluent will infiltrate and recharge the aquifer or follow normal precipitation drainage routes. However, she said it is premature to conclude that the proposed infiltration area can absorb at the maximum rate that water will be discharged. She stated that precipitation and seasonal variation, groundwater-surface water interactions and additional discharge from the site based on a water-taking rate of 1,380 cubic metres per day (“m³/day”) and an infiltration field assessment assuming a discharge volume of 950 m³/day (based on the treatment capacity of the proposed mobile water treatment unit) are factors that have not been properly considered. As the Permit allows for 1,380 m³/day of water taking, she stated that the Permit Holder has failed to demonstrate how the excess water will be properly managed leading to the possibility that untreated water may enter the environment. She opined that the proposed water treatment unit may fail to properly treat the water to environmentally acceptable levels and may discharge contaminated water creating a high level of environmental risk.

18Dr. Morin stated that the information that has been provided by the Permit Holder demonstrates that Metal Leaching and Acid Rock Drainage (“ML-ARD”) can be expected almost immediately upon dewatering at the site. This could result in the discharge of potentially toxic dissolved contaminants. He opined that this would cause environmental damage until it can be brought under control, which could take decades. He stated that the proposed mobile water treatment system will not address ML-ARD and the current design of the AEX programme would allow contaminants to enter the environment. He stated that the Permit Holder’s failure to provide a detailed, integrated, scaled-up ML-ARD report does not adhere to the federal Prediction Manual,¹ best practices, and industry standards. He stated that the proposed mobile water treatment unit is not designed for all predicted contaminants at the expected full-scale concentrations as they are currently unknown and will still discharge the contaminated water “almost immediately” resulting in a high level of environmental risk.

19Dr. Branfireun stated that the release of sulphates can cause methylmercury to form resulting in contamination of fish, which can, and has already in the past in this area, lead to neurological poisoning of people consuming the fish. This includes members of the Grassy Narrows community. Dr. Branfireun said Dixie Creek is in a watershed with high methylation potential and that the proposed water taking from the Creek and its return to the ground has the potential for changes in hydrology and sulphate load that could result in enhanced formation of methylmercury, cumulatively contributing to an already mercury impaired ecosystem. He opined that the proposed mobile water treatment unit does not have treatment criteria for reducing sulphate and would not adequately protect against methylmercury production. He said that the Permit Holder’s predicted sub-surface travel time of discharged water to Dixie Creek of 30 months is too short and would result in excess sulphate entering the receiving water. He opined that the subsurface runoff would also interact with the streambank hyporheic zone, which is known as a potent site of methylmercury formation, and would then go into surface waters.

20The MECP’s SEV requires the Ministry to use a precautionary, science-based approach in its decision-making to protect human health and the environment, which, the Applicant submits, the Director failed to do. The Applicant submits that the precautionary approach states that environmental policies must anticipate, prevent, and attack the causes of environmental degradation. It submits that the Director has not demonstrated how he considered the precautionary approach when making his decision and that there are risks, information gaps, and other uncertainties that have not been addressed in the Permit Holder’s application materials. It submits that the Permit Holder failed to prepare proper baseline studies, proper ML-ARD studies, proper groundwater modeling, proper monitoring plans, and proper action plans. It submits that the Permit Holder seeks to proceed based on insufficient information, known and unknown risks, and the presumption that problems can be addressed after they arise. The Applicant argues that this is a problem because the impacts of issuing the Permit will likely be irreversible before they are detected. The Applicant submits that the monitoring of sulphate levels in Dixie Creek provides no assurance against mercury methylation or contamination of local fisheries and waterways and that, in any event, monitoring is not a substitute for applying a precautionary sulphate standard and site-specific standards for other contaminants of concern that may be in the discharged water. The Applicant argues that the use of after-the-fact adaptive management measures, at some point in the future, is insufficient.

21The Applicant submits that the ECA for the proposed mobile water treatment unit has no treatment standards or effluent limits for sulphate. It submits that the ECA was approved on a non-site specific basis and does not take into account the site and local conditions. It submits that the ECA does not establish treatment standards or effluent limits for the control of sulphate, which is a critical parameter that can be expected to be released to water during AEX construction. The Applicant submits that the human health consequences that can result from mercury methylation triggered by sulphate releases to the environment require preventive steps to be taken rather than reactive measures triggered by monitoring. It reiterates that monitoring of sulphate levels and adaptive management do not preclude its discharge.

22The Applicant submits that in determining whether the Permit appears unreasonable and could cause significant environmental harm, the Tribunal must consider the content of the ECA for the proposed mobile treatment unit. It submits that the Permit’s Condition 2.2.1 incorporates the ECA by stating that no water taken may be discharged directly to the natural environment without prior treatment in accordance with an industrial sewage works approval. It submits that there are no effluent limits or treatment standards in the ECA for direct discharges of sulphate to the natural environment.

Director’s Evidence and Submissions

23Mr. Leus stated that the precautionary approach is reflected in his decision in that he only approved a portion of the requested water takings, did not approve takings that may pose a greater risk to the environment, limited the duration of the Permit to one year, and imposed conditions requiring monitoring, reporting, contingency planning, and the implementation of mitigation measures. Acknowledging that the potential for sulphate to contribute to the methylation of mercury is an evolving area of science, Mr. Leus stated that the Permit’s requirements along with those in the ECA for the proposed mobile water treatment unit address the Applicant’s concerns regarding sulphate and the methylation of mercury. Mr. Leus stated that the MECP will continue to assess the issue when future permit and ECA applications are made for the site.

24Mr. Leus stated that the decision to scope the Permit was precautionary given the data gaps on the takings and the lack of an assessment of the potential release and impact of sulphate. Mr. Leus reiterated that he did not approve more takings as they could pose a greater risk to the environment and require more comprehensive assessment. He stated that sulphate discharges are expected to be similar to local background levels and that the distance to surface water body receptors is sufficient to ensure that existing sulphate in the discharged water will not directly enter those waters. Mr. Leus said the environmental risk associated with the Permit is low, provided that discharged water does not reach local surface water bodies and is treated through the proposed mobile water treatment unit. He said impacts are not anticipated because reductions in groundwater elevation will be within 60 metres of the source locations (while the closest surface water is 400-500 metres away), the volume of water taken from Dixie Creek will have little impact to the aquatic environment, all water will be treated prior to being discharged, and discharges will be to land and not to surface waters. Mr. Leus stated that, on behalf of the Permit Holder, Vertex Environmental Inc. (“Vertex”) submitted a Notice of Intended Location regarding the proposed mobile water treatment unit, which characterized the groundwater conditions and proposed that water be discharged within a sandy area. He said Vertex’s accompanying environmental summary report concluded that discharged water would not likely reach Dixie Creek or other surface waterbodies, but suggested that berms and other controls should be installed just in case.

25Ms. Heggie stated that conditions were added to the Permit to contain water discharge to areas with sandy soils and to require the submission of a groundwater monitoring plan to further assess the hydrogeological environment and groundwater quality between the discharge location and down-gradient surface waters, such as Dixie Creek. She stated that a further condition was added requiring that the plan include requirements for monitoring well installations, test work, measurements, sampling, data, and reporting.

26Ms. Gilliam-Price stated that site monitoring and mitigation measures supplementing the monitoring requirements in the ECA for the proposed mobile treatment unit were included to address impacts to surface water features and to ensure that environmental impacts are minimized. She acknowledged that the proposed mobile water treatment unit would not treat sulphate and that this could be a concern should discharge and overland runoff water reach nearby surface water features, such as Dixie Creek. However, she stated that conditions were included in the Permit to address sulphate concerns so that discharged water does not reach nearby surface water features. She said mitigation and monitoring requirements were also added. She stated that the ECA for the proposed water treatment unit has similar requirements, which would ensure early actions to prevent discharged water from entering Dixie Creek. She said the Director will consider comments concerning surface water quality, contaminant transport and loading, and assessment of cumulative effects during the MECP’s review of subsequent permit and approval applications for the site. She stated that Condition 2.2.1 of the Permit prohibits the discharge of water directly to the natural environment without prior treatment, except as permitted under the ECA for the proposed water treatment unit, and that Permit Condition 5.10 requires the implementation of an adaptive management plan. She stated that Condition 3.3 limits the combined volumes of water takings from the Box Cut and the four Pond Excavations to 950,000 litres/day due to the restricted discharge capacity of the proposed mobile water treatment unit.

Permit Holder’s Evidence Submissions

27Dr. Elliott opined that the collection of groundwater by dewatering activities and re-infiltration of this water nearby will not change the water quality in Dixie Creek, including for sulphate, mercury, and methylmercury concentrations. She acknowledged the Applicant’s concerns that low levels of methylmercury occurring naturally can lead to the biomagnification of mercury in aquatic environments, but she said that increases in mercury methylation rates as a result of the AEX programme activities are not expected to occur.

28Referring to the findings of Mr. MacDonell and Dr. Elliott, the Permit Holder submits that sulfate concentrations will meet baseline conditions downstream of the mixing zone and sulfate-reducing and methylating bacteria activity will remain within baseline conditions. It submits that no increase in mercury methylation rates downstream of effluent discharge is expected. It submits that its consultants considered extreme cases, whereby maximum effluent sulphate concentrations were increased multiple times and found that downstream mercury methylation would not occur. The Permit Holder submits that water discharges will meet regulatory requirements, including discharge quality limits and allowable volumes. The Permit Holder submits that it took a conservative approach in estimating the required water taking volume to allow for the enhanced prediction of potential environmental effects and comprehensive planning of mitigation measures. It submits that it has responded to the Applicant’s concerns regarding the adequacy of the baseline water quality dataset, estimated sulphate concentrations in effluent discharge, estimated sulphate concentrations downstream of discharge, and the adequacy of the proposed monitoring programmes and assessment of impacts.

29The Permit Holder submits that the test to be applied by the Tribunal is whether the Director relied on a lack of full scientific certainty to postpone measures to prevent environmental degradation where there were threats of irreversible or serious damage. It submits that the Director is not relying on a lack of full scientific certainty as a reason not to require stricter mitigation measures and the Applicant has not demonstrated that scientific uncertainty was the reason that the Director did not take additional measures to prevent environmental degradation.

30The Permit Holder submits that the Director’s decision aligns with the precautionary because the Permit’s conditions require that: water takings not stop or reduce water flow and cause interference downstream (Condition 5.2); water takings not disrupt or remove fish, invertebrates, or sediment (Condition 5.3); water used for dust suppression must be controlled to prevent undue erosion, scouring, or unnecessary pooling or channelization of water (Condition 5.5); monitoring and reporting programmes be implemented (Condition 4); daily inspections be conducted to ensure that the water takings do not cause adverse environmental effects (Condition 5.8); and there be no discharges to the environment, except in accordance with the ECA for the proposed mobile water treatment unit (Condition 5.10). It also submits that an adaptive management plan and mitigation measures will be implemented.

31The Permit Holder submits that the Director’s decision could not result in harm

to the environment because ground water takings for similar activities occur throughout Ontario, including much larger takings than allowed under the Permit. It submits that almost all of the water will be treated and then returned to the environment, and that the Director was cautious when issuing the Permit. It submits that one year of groundwater quality and hydrogeology site specific data is sufficient to characterize background conditions and together with monitoring constitutes a robust approach. It submits that the AEX programme is an opportunity to provide data to understand, evaluate, assess, and address potential risks that may be related to a potential future mine. It submits that the precautionary approach is followed by moving ahead with the programme in small steps.

32The Permit Holder submits that the Director has taken an adaptive management approach by reducing the Permit’s duration to allow it to evaluate impacts, monitor compliance, and adjust permit conditions. It submits that the Permit is only for one year and Condition 3.4 requires the Permit Holder to provide information that is recorded and maintained under the Permit when applying for further permits and approvals. It submits that this will allow the Director to evaluate impacts and monitor compliance. The Permit Holder submits that its adaptive management plan responds to the Applicant’s concerns and requires the continual evaluation of surface water impacts and follow-up monitoring. It submits that its water quality predictions are continually being refined and updated with new data allowing for decisions to be adjusted. It submits that its monitoring programmes will proactively address effects and protect receiving water, and are sufficient to detect changes that would trigger management actions before adverse effects occur.

Analysis and Findings on the Precautionary Principle

33The precautionary principle requires that where there are threats of serious or irreversible damage, a lack of full scientific certainty shall not be used as a reason for postponing measures to prevent environmental degradation. In applying the precautionary principle, the Supreme Court of Canada stated in Castonguay Blasting Ltd. v. Ontario (Environment), 2013 SCC 52, [2013] 3 S.C.R. 323, at paragraph 20, that where there is scientific uncertainty, environmental policies must anticipate and prevent environmental degradation.

34The precautionary principle has an important focus on the prevention of harm. In Spellman v. Ontario (Director, Ministry of the Environment), 2007 CarswellOnt 7915, [2007] O.E.R.T.D. No. 67, the Tribunal’s predecessor, the Environmental Review Tribunal, discussed the precautionary principle in the context of Permits to Take Water, stating that where there is scientific uncertainty the Director is required to take measures to prevent harm. The Tribunal stated at paragraph 73 (with emphasis added):

…the precautionary principle does not require that an application for a [permit to take water] be refused because risks of environmental harm have been raised. Rather, it requires, in the face of threats of environmental harm and in the presence of some degree of uncertainty, that the Director take appropriate measures to prevent harm.

35This interpretation is also reflected in the Tribunal’s decision in Erickson v. Ontario (Director, Ministry of Environment) (2011), 2011 CarswellOnt 6794, 61 C.E.L.R. (3d) 1 (Ontario Environmental Review Tribunal), at paragraphs 522-525, quoting Patricia Birnie, Alan Boyle, and Catherine Redgwell,² and David Freestone.³ They state that the precautionary principle requires that, where there is a threat of environmental harm, action should be taken to control or abate the potential harm despite scientific uncertainty regarding the harm. They state (with emphasis added):

Whether viewed as a principle or as an approach, the essence of precaution is aptly explained by Freestone:

The precautionary approach then is innovative in that it changes the role of scientific data. It requires that once environmental damage is threatened action should be taken to control or abate possible environmental interference even though there may still be scientific uncertainty as to the effects of the activities.

36The MECP’s SEV states that the MECP will apply the principles enumerated in it, including a precautionary, science-based approach. In the present case, there is scientific uncertainty regarding the impacts of the water taking authorized under the Permit on local surface quality. Although the Permit Holder has conducted studies that conclude that environmental harm is not anticipated by the proposed water takings, the Applicant’s hydrogeologist, environmental engineer, and hydrologist each produced comprehensive analyses that call into question the Permit Holder’s findings. Their evidence is that the Permit Holder has failed to prepare proper baseline studies, ML-ARD studies, groundwater modeling, monitoring plans, and action plans. The Applicant’s evidence shows that the data provided by the Permit Holder itself demonstrates ML-ARD can be expected almost immediately upon initial dewatering at the site. The Applicant’s evidence is that this would cause environmental damage, which possibly could not be brought under control for decades. Its evidence is that the proposed mobile water treatment system will not address ML-ARD contaminants and the current design of the AEX programme would allow these potentially toxic contaminants to escape the site and enter the environment. Moreover, Dr. Branfireun stated that Dixie Creek is in a watershed with high methylation potential and that the proposed water taking from the Creek and its return to the ground has the potential for changes in hydrology and sulphate load that could result in enhanced formation of methylmercury, cumulatively contributing to an already mercury impaired ecosystem. He opined that the proposed mobile water treatment unit does not have treatment criteria for reducing sulphate and would not adequately protect against methylmercury production. He opined that the Permit’s conditions and the ECA for the proposed mobile water treatment unit fail to address this issue. Based on these considerations, the Tribunal finds that there is scientific uncertainty regarding the environmental impacts of the Permit.

37As addressed in more detail below in the section on the environmental harm test, the Tribunal finds that given the possible release of contaminants and the potential for methylmercury production as a result of the proposed water takings under the Permit, it appears that there is a threat of serious environmental harm from water takings under the Permit. The Director and Permit Holder rely largely on monitoring and adaptive management as tools to address potential contamination; however, in circumstances where even a small amount of contamination can cause significant health and environmental harm, the use of monitoring and after-the-fact adaptive management measures have little use or effect. In those circumstances, the damage will already have been done.

38Section 4(2)3.1 of Regulation 387/04 (Water Taking and Transfer) requires the Director to consider, to the extent that information is available and to the extent that the matters are relevant, issues relating to the return, after use, of water, including, the manner in which the water is being returned or is proposed to be returned, and the location or area to which the water is being returned or is proposed to be returned. Under s. 41(a) of the EBR, the Tribunal must assess whether the Director considered relevant policies, including the SEV. Consideration of the SEV requires the Director to apply the principles enumerated in it, including the precautionary principle.

39The Tribunal finds that it appears that there is good reason to believe that no reasonable person, having regard to the MECP’s SEV on the precautionary principle, could have made the decision to issue the Permit.

(b) Cumulative Effects

Applicant’s Evidence and Submissions

40The Applicant submits that the consideration of cumulative effects requires an assessment of the interdependence of air, land, water and living organisms, and the relationships among the environment, the economy, and society. It submits that the Director did not undertake a robust cumulative effects study for the purposes of assessing the environmental impacts of the proposed water-takings. It submits that the Grassy Narrows community and the environment upon which it relies have been subjected to extreme cumulative effects for years from damming, flow diversion, mercury pollution, pulp mill effluent, mining, and logging. It argues that the cumulative effects have had extreme impacts on their rights, health, and well-being, including premature death, elevated suicidality, disease, poverty, and food insecurity. It argues that the AEX programme along with other proposed projects in the watershed together will increase the community’s suffering.

41The Applicant submits that the proposed work at the site and its environmental impacts have not been considered in the larger context of the impacts from past, present, and future proposed projects whose risks and impacts may add to, or interact with, and compound the risks and impacts from the AEX programme on the Applicant and its surrounding environment. It submits that given the existing cumulative impacts on their rights, environment, health, and well-being, the Applicant must not be burdened with further risks of adverse effects from the AEX programme.

Director’s Evidence and Submissions

42Mr. Leus stated that the proposed takings do not pose an unacceptable risk of sulphate reaching surface water and the MECP is not concerned that the Permit will result in cumulative impacts related to mercury contamination. He opined that with the short one year duration of the Permit, low volume of water to be taken, and localized drawdown radius, no cumulative impacts are anticipated. He said water will be returned to the same watershed and the low volume of the takings represents a low risk to the environment.

43The Director submits that the Applicant’s concerns regarding cumulative effects relate to the mining project as a whole and not to the AEX programme specifically. The Director argues that he only approved water takings that will not result in discharges into water bodies based in part on the Applicant’s concerns regarding sulphate and mercury contamination. The Director submits that he determined that the proposed takings do not pose an unacceptable risk of sulphate reaching surface water and, as such, will not result in cumulative impacts related to mercury contamination.

Permit Holder’s Evidence and Submissions

44Mr. Gautrey stated that he assessed the potential for cumulative effects and found that it is very low. He said the Permit is not anticipated to have any material effect on the upstream or downstream quality and quantity of Dixie Creek and the water flow, and temperature of the Creek are not expected to be negatively affected.

45The Permit Holder submits that the Applicant has not identified specific cumulative effects arising from the Permit, which provides for a limited volume of water takings for only a one-year duration. It submits that the Director considered the potential for cumulative effects from the Permit and found them to be very low, the Permit is not anticipated to have any material effect on the upstream or downstream quality and quantity of Dixie Creek, the watershed is not anticipated to be adversely impacted in terms of water quality or quantity, and no other industrial water takings that would result in a cumulative effects are anticipated in the area over the next five years.

Analysis and Findings on Cumulative Effects

46The MECP’s SEV states that the MECP must consider “the cumulative effects on the environment, the interdependence of air, land, water and living organisms, and the relationships among the environment, the economy and society”. The assessment of cumulative effects is intended to assess the effects of multiple human activities on the environment by examining changes to the environment that are caused in combination with other past, present, and future human actions. It is to ensure that assessments of environmental harm do not focus solely on the impacts of one project without considering the impacts of other human activities interacting and affecting the environment. This requires an assessment of all sources of harm in an area originating in the past, present, and future, and the consideration of the interdependence of air, land, water and living organisms.

47Based on the evidence before the Tribunal, the Grassy Narrows community has suffered from a history of mercury contamination, which has impacted its members’ rights, health, and well-being, including premature death, elevated suicidality, disease, poverty, and food insecurity. Based on the Permit Holder’s studies, the Director determined that the anticipated risk of environmental harm from mercury and other contamination would be low and, as a result, he failed to comprehensively consider the cumulative effects of such contamination if it occurs despite the low risk. Given the environmental conditions, history of mercury and other contamination, and the environmental and health impacts of past contamination, the Tribunal finds that the Director should have considered the cumulative effects of the proposed takings and discharges should contamination occur. Based on this, the Tribunal finds that it appears that there is good reason to believe that no reasonable person, having regard to the MECP’s SEV on cumulative effects, could have made the decision to issue the Permit.

(c) The Sustainable Development Principle

Applicant’s Evidence and Submissions

48The Applicant argues that the MECP’s SEV requires the Director to apply the sustainable development principle, including in relation to water conservation, when making environmentally significant decisions. It submits that the Permit does not contain any meaningful water conservation measures, which could have adverse impacts if drought conditions occur. It submits that the sustainable development principle relating to water conservation is reflected in s. 0.1 of the OWRA, which states that the purpose of the Act is “to provide for the conservation, protection and management of Ontario’s waters and for their efficient and sustainable use, in order to promote Ontario’s long-term environmental, social and economic well-being.” It submits that the Director’s failure to address water conservation does not align with the sustainable development principle.

Director’s Evidence and Submissions

49Mr. Leus stated that the MECP considered whether the proposed water taking will have unacceptable impacts on current or future generations. He stated that the proposed water taking is non-consumptive, is returned to the same watershed, and is only for one year. He stated that he is satisfied that the proposed water taking is sustainable.

50The Director reiterates that the proposed water taking is sustainable as it is non-consumptive and water will be returned to the same watershed. He submits that the Permit’s scope, duration, and conditions ensure that the proposed water takings will not have groundwater and surface water impacts affecting future generations.

Permit Holder’s Evidence and Submissions

51The Permit Holder submits that a lack of water conservation measures in the Permit is not sufficient to establish that the Director failed to consider the sustainable development principle. It submits that the Director has discretion to decide whether to include Permit conditions on water conservation conditions and their absence does not mean that the Director did not consider the sustainable development principle. In any event, it argues that the Director did consider the sustainable development principle, including in relation to water conservation. It reiterates that most of the water will be returned to the environment and the duration of the Permit is only for one year.

Analysis and Findings on the Sustainable Development Principle

52The MECP’s SEV requires the Director to consider the effects of his or her decisions on current and future generations, consistent with the sustainable development principle. Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs. In other words, the focus of sustainable development is the consideration of the economic development, social development, and environmental protection needs of both current and future generations. The purpose of the OWRA, as set out in s. 0.1 of the Act, encourages the application of the sustainable development principle in its aim to ensure the conservation, protection, and management of Ontario’s waters and for their efficient and sustainable use, in order to promote Ontario’s long-term environmental, social and economic well-being.

53Sustainable development should be considered with respect to all decisions affecting environmental, social development, and economic development issues. In the present circumstances, the principle should be considered in the context of the impacts of the proposed project on water quantity, water quality, and other aspects of the environment as well as the impacts of the proposed project on social and economic development. This includes consideration of the impacts of potential environmental harm on current and future generations. The focus of the submissions before the Tribunal, in the present case, was on water conservation and impacts on future generations.

54The Applicant argues that the Permit does not contain meaningful water conservation measures and this could result in adverse impacts if drought conditions occur. The Director submits that the proposed water taking is, for the most part, non-consumptive, the water will be returned to the same watershed, and the Permit is valid for just one year. Based on the evidence and submissions before it, the Tribunal agrees that a one-year, generally non-consumptive, taking of water will not likely impact the water quantity needs of current and future generations in the present case. It finds that in making his decision, the Director considered the economic development, social development, and environmental protection implications of the decision and its impacts on current and future generations in the context of water conservation.

55Based on the evidence and submissions before it, the Tribunal finds that the Applicant has failed to demonstrate that there is good reason to believe that no reasonable person, having regard to the MECP’s SEV on the sustainable development principle in the context of water conservation, could have made the decision to issue the Permit.

(d) Ecosystem Approach

Applicant’s Evidence and Submissions

56The Applicant submits that the MECP’s SEV requires the Director to apply an ecosystem approach when making environmentally significant decisions. This involves viewing the ecosystem as being composed of air, land, water and living organisms, including human beings, and the interactions among them. It submits that in situations where the evidentiary record is inadequate, flawed, or contains significant information gaps, it is unreasonable for the Director to issue a permit. The Applicant submits that where such problems exist, there is uncertainty regarding environmental impacts, which raises the potential for significant and unanticipated environmental harm. It submits that the collection of missing information after the permit is issued does not remedy the problem. The Applicant submits that there are information gaps that prevented the Director from making an informed, responsible, and safe decision, including gaps in baseline data, groundwater impact modelling, and overland effluent flows during frozen ground conditions impairing the ability to predict, monitor, prevent, and remediate impacts.

Director’s Evidence and Submissions

57Mr. Leus stated that the MECP employs an ecosystem-approach that considers both a water takers’ reasonable needs for water and the natural function of the ecosystem. He stated that the Permit has conditions for the protection of the natural functions of the ecosystem, water availability, and use of water. He stated that impacts to the local ecosystem are not anticipated from the proposed water takings based on the limited volume and location of the proposed takings. He stated that the Permit’s conditions ensure monitoring to detect groundwater impacts from the land-based discharge of the water and identify groundwater impacts that may impair nearby surface water features. He said the Permit Holder must monitor sulphate levels before and after treatment to ensure the levels are low. He said the Permit requires the implementation of an adaptive management plan to ensure that measures are in place to promote infiltration of effluent to groundwater and prevent any discharge to surface waters. He said the Permit is not anticipated to impact water levels of lakes and creeks. Regarding groundwater takings, he said reductions in groundwater elevation are anticipated to be limited to within 60 metres of source locations and the closest surface watercourses are located 400 to 500 metres away. For surface water takings, he said the proposed taking from Dixie Creek of 249,998 litres per day represents approximately 2.4% of the estimated seven-day, 20-year low flow, which is considered to represent a low risk to the environment. He reiterated that the proposed water taking is non-consumptive and the water will be returned to the same watershed.

58The Director submits that he considered and applied the ecosystem approach. The Director submits that he chose to not approve any takings where there was insufficient information to consider the potential risks. The Director submits that the scoped approach that was taken reduced the volume of water taken and limited takings to one year. The Director submits that he considered the impacts of the proposed water takings and found that they would not occur to the local ecosystem. The Director submits that the Permit has conditions to protect the natural functions of the ecosystem, water availability, and the use of water.

Permit Holder’s Evidence and Submissions

59The Permit Holder submits that the Applicant has not shown how the scientific foundation of the Permit Holder’s studies and research is inadequate. It submits that the Permit’s duration and the volume of water to be taken was reduced. It submits that any additional water takings would require a new permit application. It submits that the Permit’s conditions protect the quality of the natural environment and thereby, reflect the ecosystem approach.

Analysis and Findings on the Ecosystem Approach

60The MECP’s SEV states that the MECP “adopts an ecosystem approach to environmental protection and resource management”. It states that “[t]his approach views the ecosystem as composed of air, land, water and living organisms, including humans, and the interactions among them”. The ecosystem approach involves the integrated management of land, water, and living resources to promote conservation and sustainable use in an equitable way. The ecosystem approach requires that the decision maker consider the water takers’ reasonable needs for water along with the water needs of the ecosystem to perform its natural functions. The ecosystem approach is encouraged through s. 4 of the Regulation 387/04 (on Water Taking and Transfer), which requires the Director to consider the protection of natural ecological functions, water availability, intended water use, manner/location of water return, and interests of other persons when making a decision to issue a Permit to Take Water.

61The Applicant submits that the Permit Holder’s data and studies are inadequate, flawed, and contain significant information gaps. As a result, it is contrary to the ecosystem approach for a permit to be issued. The Director argues that the decision was based on the Permit Holder’s data and studies and he is satisfied that there will not be significant environmental harm as a result of the Permit. The Permit Holder argues that the Applicant has not shown how the scientific foundation of the Permit Holder’s studies and research is inadequate.

62Based on the evidence and submissions before it, the Tribunal finds that the Applicant has established that there are data and information gaps, and an absence of analysis on key environmental factors in the Permit Holder’s studies and research. The Applicant’s experts produced comprehensive evidence demonstrating that the Permit Holder’s data and studies are incomplete. Based on this, the Tribunal finds that the Applicant has presented an arguable case that the Director did not have the necessary data and studies before him to enable him to consider both the Permit Holder’s reasonable needs for water and the water needs of the ecosystem for it to perform its natural functions. As a result, the Tribunal finds that there is good reason to believe that no reasonable person, having regard to the MECP’s SEV on the ecosystem approach, could have made the decision to issue the Permit.

2. Other Grounds for Leave to Appeal

63The Applicant also submits that the Director did not properly consult with the Applicant as required under s. 35 of the Constitution Act, 1982 and did not properly apply the OWRA and Ontario Regulation 387/04 (on Water Taking and Transfer) when making the decision to issue the Permit. Given that the Tribunal has determined that the Applicant has satisfied the reasonableness test in relation to the SEV, the Tribunal finds that it is unnecessary to determine these issues.

Conclusions on the Reasonableness Test

64Based on the evidence and submissions before it, the Tribunal finds that it appears that there is good reason to believe that no reasonable person could have made the decision to approve the Permit.

B. The Significant Harm Test

65Section 41(b) of the EBR states:

41 (b) Leave to appeal a decision shall not be granted unless it appears to the appellate body that,

(b) the decision in respect of which an appeal is sought could result in significant harm to the environment.

Under this test, the Applicant must establish on a prima facie basis that the decision could result in significant harm to the environment. This requires that an applicant provide a substantial information base to establish that significant harm could result from the Permit to Take Water. The question for the Tribunal is whether the decision in question has the potential to cause significant environmental harm.

Evidence and Submissions on the Significant Harm Test

66The Applicant argues that the Permit could result in significant environmental harm based on the following concerns:

i) existing environmental conditions already at risk;

ii) classification of the Permit as an environmentally significant instrument;

iii) potential environmental impacts arising from the Permit;

iv) inadequate conditions in the Permit; and,

v) the proponent’s alleged history of environmental non-compliance.

1. Existing Environmental Conditions already at Risk

67The Applicant submits that there are pre-existing conditions in the geographic area of the subject property, and more broadly throughout the Grassy Narrows watershed, that create the potential for significant environmental harm arising from the water takings and discharges authorized under the Permit. The Applicant described the pre-existing environmental conditions in the vicinity of the proposed water takings and discharges. In this regard, Dr. Freed stated that there has been no detailed baseline groundwater quality data provided by the Permit Holder to establish pre-disturbance conditions to identify contaminants, identify whether parameters are elevated for surface water, and provide proper water quality predictions.

68The Director submits that the Applicant has listed a series of existing environmental conditions but is unclear on how the Permit will or possibly could have an impact and does not describe what specific harm is expected to occur in relation to these conditions.

69The Permit Holder submits that the Applicant’s mercury-related concerns were addressed with Permit Holder’s experts concluding that no increase in mercury methylation is expected. It submits that conditions in the Permit mandate that water takings shall be carried out in such a manner as to prevent the disruption or removal of any fish, invertebrates, or sediment, thereby prevent fragmentation of aquatic habitats.

2. Classification of the Permit as an Environmentally Significant Instrument

70The Applicant submits that the classification of the Permit as a Class I instrument under EBR Regulations is an indication of its environmental significance of its potential impacts.

71The Director argues that the classification is not determinative, and that the Tribunal must review the decision itself in determining whether the significant harm test is met. The Director submits that the Applicant has failed to demonstrate that there is a real foundation to show that the decision could cause significant harm to the environment, and that the terms and conditions of the decision will not eliminate or minimize that risk.

72The Permit Holder submits that while the classification of a Permit as a Class I instrument makes it potentially environmentally significant, it does not mean that it could result in significant environmental harm. The Tribunal must remain open to the possibility that specific conditions in a Class I instrument may prevent environmental harm.

3. Potential Environmental Impacts arising from the Permit

73The Applicant submits that if the daily maximum water taking volumes are drawn, a yearly amount of over 445,300,000 litres of water would be taken and that taking multi-million litres of groundwater and surface water for the AEX programme, in a sensitive geographic area that is increasingly subjected to extreme past, present, and proposed cumulative effects, where Grassy Narrows’ Aboriginal, treaty, and inherent rights are being exercised, constitutes an environmentally significant activity with considerable potential to cause adverse impacts to the environment. The Applicant also identifies a number of specific impacts that are likely to arise from the proposed work, including:

• impacts on the flow and water quality in Dixie Creek;

• impacts on fish and other biota in Dixie Creek;

• contamination of groundwater and surface water;

• increases in the methylation of mercury in Dixie Creek and in boreal forest soils at the takings and discharge point;

• erosion and deposition of particulates, which negatively alter fish habitat; and,

• other impacts described in the expert reports.

74Dr. Morin stated that ML-ARD can be expected almost immediately upon dewatering at the site, which would cause environmental damage. He stated that the proposed mobile water treatment unit will not address contaminants associated with ML-ARD. Dr. Branfireun stated that the watershed has high methylation potential and that the proposed water taking and return to the ground has the potential for changes in hydrology and sulphate load that could result in enhanced formation of methylmercury, cumulatively contributing to an already mercury impaired ecosystem. He opined that the proposed mobile water treatment unit does not have treatment criteria for reducing sulphate and would not adequately protect against methylmercury production.

75Regarding environmental impacts, the Director submits that the Permit contains unique site-specific conditions to address the concerns expressed by the Applicant.

76The Permit Holder submits that the Applicant has put forward concerns on pre-existing conditions without providing a sufficient foundation to demonstrate that the Director’s decision could cause significant harm.

4. Inadequate Conditions in the Permit

77The Applicant submits that the Director did impose conditions in the Permit but that these conditions are standard “boilerplate” provisions, impose imprecise and ambiguous requirements, or are otherwise incapable of addressing the Applicant’s concerns. The Applicant submits that the conditions imposed by the Director do not address issues related to volumes of water to be taken, impacts on stream flow, water quality including temperature, mercury dynamics, fisheries, and aquatic ecosystems in Dixie Creek. The Applicant submits that some of the conditions confer too much open-ended discretion and do not provide accountable, effective, or enforceable protection of the environment.

78The Applicant also submits that the Director has not presented any persuasive evidence-based reasons to substantiate its claim that on-land discharges of water taken under the Permit will not reach any surface water features either by overland or underground flows.

79The Applicant further submits that the Director has not included standard parameters for sulphate concentrations in water discharged to the ground. It argues that there is a significant disconnect between the maximum daily volume of water-takings (1,220 m³/day) and the volume of water that will be processed through the proposed mobile water treatment unit (980 m³/day).

80The Applicant submits that the Permit should have contained an additional condition requiring the Permit Holder to provide satisfactory financial assurance to secure performance of all conditions in the Permit.

81The Director does not agree with the Applicant’s allegations that the conditions imposed are “boilerplate” provisions. He argues that the Permit contains unique site-specific conditions that were recommended by MECP technical staff and developed in response to the concerns expressed by the Applicant.

82The Director submits that he included multiple conditions to mitigate the risk of potentially contaminated discharge water entering nearby surface waters and the possibility of sulphate contributing to the methylation of mercury. The Director submits that the Permit prohibits the discharge of untreated water and prohibits treated discharge water from reaching nearby surface waters. The Director submits that the discharge location, which is located approximately one kilometre from Dixie Creek, is capable of absorbing all treated water. The Director argues that he required that measures be implemented to direct flow and improve infiltration to ensure proper infiltration when the ground is frozen and intercept and stop any discharges before entering Dixie Creek.

83The Director further submits that baseline and wastewater quality will be closely monitored so any changes to background parameters can be identified and addressed. The Permit Holder will also be required, under the Permit, to develop and implement a robust groundwater monitoring plan to supplement existing data and further assess the hydrogeological conditions and groundwater quality between the proposed mobile water treatment unit discharge location and downgradient surface waters. He submits that the Permit includes monitoring requirements specific for sulphate levels before and after treatment by the proposed mobile water treatment unit to ensure that sulphate levels remain low and unchanged. The Permit Holder is also required to continue monitoring sulphate levels in Dixie Creek.

84The Director submits that the Applicant has not specified how the total maximum volume of water takings approved by the Permit might impact flow and water quality in Dixie Creek, nor has the Applicant provided a scientific basis for its concerns. The Ministry’s technical reviews concluded that the takings are expected to have minimal impact to the flow of Dixie Creek and the Permit has a condition to ensure that surface water takings will not stop or reduce streamflow in a manner that will interfere with downstream uses or the stream’s natural functions. The Director submits that water levels will have to be measured every fifteen minutes at three specified locations on Dixie Creek and then compared against monitoring data collected and maintained by the Water Survey of Canada.

85The Director argues that the Applicant’s position that there is a significant disconnect between the maximum daily volume of water takings and the volume of water that will be processed through the proposed mobile water treatment unit is not correct. The Director argues that only water taken from two sources of water require treatment prior to discharge and the combined volume of water taken from these two sources cannot exceed 950,000 litres per day, which accords with the proposed mobile water treatment unit’s treatment capacity.

86On the argument that the Permit confers too much open-ended discretion on the Permit Holder, the Director does not agree. The Director submits that the condition is not the only mechanism to ensure accountability. He submits that Provincial Officers are authorized by OWRA to conduct inspections and request information, and the OWRA makes it an offence to contravene a term of condition of a Permit to Take Water.

87The Permit Holder submits that the conditions imposed are adequate and some are onerous and not necessary in the circumstances to protect the environment. The Permit Holder argues that the use of one year of groundwater quality and hydrogeology data is more than sufficient to characterize background conditions to identify potential harmful environment effects at this location, particularly for such a small net water taking. As to the request for financial assurance, the Permit Holder submits that the conditions imposed by the Director are not wrong just because they are not the conditions that the Applicant would have imposed.

5. Permit Holder’s Compliance History

88The Applicant submits that the Director failed to adequately consider the Permit Holder’s compliance history. The Applicant submits that the Permit Holder’s history of non-compliance satisfies the significant harm test. The Applicant submits that the Permit Holder has a troubling history of serious environmental non-compliance by a wholly owned subsidiary of the Permit Holder’s parent company in another jurisdiction, more precisely, in the state of Washington, in the United States. The Applicant submits that since the Permit is substantially similar to most other Permits to Take Water, it is reasonable to conclude that the non-compliance track record played little or no role in the Director’s decision to issue the Permit to the Applicant.

89The Director submits that it confirmed with the MECP’s District Office that there were no outstanding compliance issues with the site. It also submits that the compliance of a completely different entity in a different jurisdiction is not a relevant factor for a decision of the Director and that the Applicant has not provided any authorities to suggest otherwise. On that point, the Applicant refers to McRae v. Ontario (Director, Ministry of the Environment), 2009 CarswellOnt 5958, O.E.R.T.D. No. 41, where the Tribunal found that a company’s entire environmental compliance history is relevant. The Director argues that this case is distinguishable because, in McRae, the previous non-compliance was in Ontario and not in another country.

90The Permit Holder submits that in Canada, it is trite law that corporate separateness is the rule. Each subsidiary or affiliated corporation is its own legal person and the conduct of a company that is legally separate and distinct from the Permit Holder is irrelevant to this leave to appeal application. It also submits that since it has no historical environmental non-compliance, there is no basis for denying the Permit or for imposing financial assurance requirements.

Analysis and Findings on the Significant Harm Test

91The issue to be determined by the Tribunal under the environmental harm test is whether it appears that the Director’s decision to issue the Permit could result in significant harm to the environment. It is the onus of the Applicant to satisfy the Tribunal that there is a real foundation to show that the specific decision could cause significant harm to the environment, and that the terms and conditions of the decision will not eliminate or minimize that risk to a point where it could no longer cause harm, or that said harm would not be significant.

92The Applicant raises concerns about potential impacts on the environment and quality of water. It also submits that the conditions in the Permit are not sufficient, are imprecise, and are too ambiguous to address the Applicant’s concerns. The Tribunal agrees. The Applicant provided evidence that the Permit does not address the possible discharge of dissolved contaminants and mercury methylation. The MECP and Permit Holder have not undertaken comprehensive technical analyses of ML-ARD issues or potential mercury methylation, nor have they conducted absorption studies to evaluate infiltration rates of on-land discharges under frozen conditions.

93The gravity of the impacts needs to be taken seriously and the lack of studies, data, and measures to ensure that activities under the Permit will not impact the environment is of a great concern to the Tribunal. The existing hydrogeological and environmental conditions in the area of the subject property must also be seriously considered.

94Given the potential for methylmercury production and the release of contaminants as a result of the proposed water takings under the Permit, the Tribunal finds that it appears that there is a threat of serious environmental impacts. In circumstances where even a small amount of contamination can cause significant health and environmental harm, the use of monitoring and after-the-fact adaptive management measures have reduced value. The conditions imposed under the Permit are not, in the view of the Tribunal, sufficient to eliminate the risk of causing significant harm to the environment.

95The Tribunal finds that it appears that the Director’s decision to issue the Permit could result in significant harm to the environment.

CONCLUSION

96The Tribunal finds that the Applicant has satisfied the tests for standing and leave to appeal under ss. 38 and 41 of the EBR.

DECISION

97The Tribunal grants leave to appeal of the Director’s decision in its entirety to Asubpeeschoseewagong Anishinabek (Grassy Narrows First Nation).

“Hugh S. Wilkins”

HUGH S. WILKINS

VICE-CHAIR

“Mathieu E. Quesnel”

MATHIEU E. QUESNEL

MEMBER

Ontario Land Tribunal

Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

Footnotes

1. 1W.A. Price, Prediction Manual for Drainage Chemistry from Sulphidic Geologic Materials (MEND Report 1.20.1, December 2009).
2. 2Patricia Birnie, Alan Boyle, and Catherine Redgwell, International Law and the Environment, 3rd ed. (Oxford University Press, 2009), at 155.
3. 3David Freestone, “The Road from Rio: International Environmental Law after the Earth Summit” (1994), Vol. 6, No. 2, Journal of Environmental Law (1994), 193, at 211.