Great Lakes United and MiningWatch Canada v. Minister of the Environment

Two environmental public interest organizations (Great Lakes United and MiningWatch Canada) challenged the Minister of the Environment's ongoing failure under the Canadian Environmental Protection Act, 1999 (CEPA) to require mining facilities to report releases or transfers of pollutants to waste rock storage areas (WRSAs) and tailings impoundment areas (TIAs). Since the National Pollutant Release Inventory (NPRI) was established in 1993, mining had been subject to various exemptions. In 2006, the Minister removed the total mining exemption but did not require reporting of substances contained in tailings and waste rock moved inside a facility to TIAs or WRSAs, even though such substances leave these areas and other industrial sectors report similar on-site disposals. Over 99% of materials removed in mining become waste rock and tailings, containing pollutants like arsenic, cadmium, mercury, and sulphuric acid. Extensive multi-stakeholder consultations since 1992 had failed to achieve consensus on how to report this information, with stakeholders agreeing the information should be collected but disagreeing on whether it should appear in the NPRI or a separate inventory.

• Whether the application is time-barred under section 18.1(2) of the Federal Courts Act
• Whether the Applicants have standing to bring the application
• Whether the Minister's decision constitutes a policy or legislative action not subject to judicial review
• What is the appropriate standard of review
• Whether section 46 of CEPA grants the Minister absolute discretion to exclude information from the NPRI
• Whether releases and transfers of pollutants to TIAs and WRSAs constitute 'releases of pollutants' requiring inclusion in the national inventory under sections 48 and 50 of CEPA
• Whether the Minister has failed to discharge mandatory statutory duties under CEPA
• Whether a writ of mandamus should issue

The Court declared that the Minister erred in his interpretation of CEPA as not requiring him to provide pollutant release information through the NPRI for releases and transfers to TIAs and WRSAs by mining facilities in 2006 and subsequent years. An order in the nature of mandamus was issued directing the Minister to publish this information through the NPRI for 2006 and subsequent reporting years in accordance with sections 48 and 50 of CEPA. The parties were invited to make written submissions on costs.

Section 46 of CEPA is an enabling provision that grants the Minister power to gather information for various purposes but does not grant absolute discretion to refuse to collect information required to fulfill mandatory duties under sections 48 and 50. Section 48 imposes a mandatory duty on the Minister to establish "a national inventory of releases of pollutants" using information collected under section 46 "and any other information to which the Minister has access." The Minister cannot use section 46 to exempt a sector from reporting requirements where: (1) the information concerns releases of pollutants within the ordinary meaning of those terms in CEPA; (2) the Minister has ready access to the information; (3) all stakeholders agree the information should be reported; and (4) similar information from other sectors is already being reported. To permit such sectoral exemptions would violate the Government's duties under section 2 of CEPA to protect the environment, provide information to Canadians, and apply and enforce CEPA in a fair, predictable and consistent manner. On-site deposits and transfers of pollutants to waste storage areas constitute "releases" within the broad definition in section 3(1) of CEPA, which includes "discharge, spray, inject, inoculate, abandon, deposit, spill, leak, seep, pour, emit, empty, throw, dump, place and exhaust."

The Court noted that while multi-stakeholder consultation is formally recognized in CEPA and has characterized the development of the NPRI, at some point "incremental becomes glacial, study becomes stasis, and stasis clearly favours those who are not required to report." The Court observed that over 16 years of consultation without resolution was unreasonable. The Court also suggested that publishing the information under NPRI would not prevent the Minister from continuing to study whether a separate inventory might also be appropriate. The Court commented that the Canadian public is "the loser" when important pollution information is not readily accessible, preventing them from participating in debate or gauging environmental and health concerns. Justice Russell expressed sympathy for the Applicants' frustration, noting that the impasse among stakeholders "does not serve the needs of the Canadian public."

This case is significant for establishing that: (1) A Minister's discretion to gather information under section 46 of CEPA cannot be used to circumvent mandatory duties to establish and publish a comprehensive national pollutant inventory under sections 48 and 50; (2) Environmental legislation must be interpreted to ensure fair, predictable and consistent application across all industrial sectors; (3) Sectoral exemptions cannot be created through ministerial inaction where statutory duties exist; (4) The definition of "release" in CEPA encompasses on-site deposits and transfers to waste storage areas, not just releases that leave a facility; (5) Multi-stakeholder consultation processes cannot indefinitely delay compliance with statutory obligations to provide environmental information to the public; (6) Courts will intervene through mandamus where ministers fail to discharge clear statutory duties, even in areas involving policy considerations; (7) Public interest environmental organizations have standing to challenge ministerial failures to provide information required under environmental protection statutes; (8) The case reinforces the principle that Canadians have a right to comprehensive information about environmental hazards and that this right cannot be defeated by indefinite consultation processes or sectoral preferences for alternative reporting mechanisms.