Vale Canada Limited v. Sandy Pond Alliance to Protect Canadian Waters Inc.

At issue in this decision was the extent of the mining industry’s participation rights as interveners in the challenge of a law affecting their industry. Vale Canada Limited (Vale Canada) and two mining organizations, the Mining Association of Canada and the Mining Association of British Columbia, were granted intervener status in a judicial review proceeding commenced by Sandy Pond Alliance, a not-for-profit entity. In the judicial review proceeding, Sandy Pond Alliance seeks a declaration that Schedule 2 to the Metal Mining Effluent Regulations (made pursuant to the Fisheries Act) is unlawful and of no force and effect. Vale Canada had been successful in having Sandy Pond Alliance added to Schedule 2, with a view to using it as a tailings impoundment area in connection with its operation of a nickel processing plant in nearby Long Harbour, Newfoundland and Labrador. The interests of the mining companies represented by the associations went far beyond Sandy Pond Alliance. Although the Federal Court granted Vale Canada and the associations the intervener status they sought, the Court had placed restrictions on their participatory rights. The interveners were limited to one expert witness each and were denied the right to cross examine the other parties’ witnesses. In addition, their right to appeal any final decision was made subject to the discretion of the application judge. The interveners appealed the Federal Court’s decision, seeking broader participation rights. The Federal Court of Appeal agreed that broader participation was warranted, finding that the Federal Court had failed to appreciate that the interveners could be directly affected by the outcome of the judicial review, because a successful challenge of the law would almost certainly be given retroactive effect. The interveners were granted the right to two expert witnesses each, as well as, the right to cross-examine other parties’ deponents. Whether the interveners would have a right to appeal a final decision was left for the applications judge to decide.