Great Lakes United v. Canada (Minister of the Environment).

This was an application for judicial review of the Minister’s failure under the Canadian Environmental Protection Act (CEPA) to require reporting by mining facilities of releases or transfers of pollutants to waste rock and tailings disposal areas. The applicants sought a declaration that the Minister erred in interpreting the CEPA and mandatory relief directing the respondent to publish data related to releases or transfers of pollutants to waste rock and tailings disposal areas through the National Pollutants Release Inventory (NPRI) pursuant to sections 48 and 50 of the CEPA. The NPRI provides an annual inventory of industrial and commercial pollutants released into the environment and relies on multi-stakeholder consultations to determine pollutant reporting requirements. While NPRI reporting of pollutants that leave disposal areas has always been required, NPRI reporting of controlled movements of substances inside those areas has not. Consultations have taken place over the years between the Minister and stakeholders on whether those movements should be reported. In 2007, the Minister advised at a stakeholder meeting that instead of adding data from tailings and waste rock to the NPRI, a different national inventory would be established for such reporting, and that the methods for collecting and reporting that data would be determined at a later date. The principal issue was whether the Minister was required by the CEPA to provide pollutant release information through the NPRI in relation to releases and transfers to tailings and waste rock disposal areas. Section 48 of the CEPA compels the Minister to "establish a national inventory of releases of pollutants" and to use "the information collected under section 46 and any other information to which the Minister has access". This provision does not contemplate separate national inventories for separate sectors. The NPRI was the national inventory chosen by the Minister to fulfill its duties under section 48. Publishing data related to releases or transfers of pollutants to waste rock and tailings disposal areas through the NPRI will not prevent the Minister from continuing to study whether that information might not also need its own inventory, or from finding a more appropriate tool acceptable to all. The definition of "release" in subsection 3(1) of the CEPA should not be read as requiring that all forms of release are actions that signify the end of human control and the return to control by natural forces. Such a reading would mean that harmful pollutants entering the environment would not be considered to have been released, and as such would not be reportable under section 48, if they remain within some form of human control. The fact that tailings and waste rock disposal areas are on-site does not prevent the release of pollutants into the environment. The plain and grammatical meaning of the words in the CEPA and the intentions of Parliament reveals that the information regarding the release and transfer of pollutants to tailings and waste rock disposal areas should be collected and reported. The assertions that the word "may" in section 46 permitted the Minister a broad discretion on what information to collect, and that the duties to establish a national inventory and to publish information regarding releases of pollutants were subservient to the discretion under section 46 were difficult to reconcile with the Government of Canada’s obligations imposed by the CEPA, and in particular section 2. If the Minister chose not to collect information about releases of pollutants, the NPRI would not accurately or fully reveal environmental and health hazards. The NPRI thus cannot fulfill its role if the discretion under section 46 is not exercised in a way that meets the obligations of the Government of Canada. Rather, section 46 is a facilitating and enabling provision giving the Minister wide powers to gather information and cannot be used to abrogate the mandatory obligations of sections 48 and 50. The actions of the Minister were thus taken in the exercise of a statutory power and were subject to judicial review.