Northern Pulp Nova Scotia Corporation v. Nova Scotia (Attorney General)

Northern Pulp Nova Scotia Corporation v. Nova Scotia (Attorney General) Court Supreme Court Date 2021-01-19 Citation 2021 NSSC 27 Docket Hfx No. 498448 Judge/Registrar/Adjudicator Robertson, M. Heather (Honourable Justice) Document Type Decision Relations See also - Nova Scotia (Aboriginal Affairs) v. Northern Pulp Nova Scotia Corporation - 2019 NSCA 12 - 2019-02-07 - Decision Decision Content SUPREME COURT OF Nova Scotia Citation: Northern Pulp Nova Scotia Corporation v. Nova Scotia (Attorney General), 2021 NSSC 27 Date: 20210119 Docket: Hfx No. 498448 Registry: Halifax Between: Northern Pulp Nova Scotia Corporation Appellant v. Attorney General of Nova Scotia representing Her Majesty the Queen in right of the Province of Nova Scotia and the Minister of Environment Respondents and Pictou Landing First Nation Intervenor D E C I S I O N Judge: The Honourable Justice M. Heather Robertson Heard: November 19, 2020, in Halifax, Nova Scoti Written Release of Decision: January 28, 2021 (Orally – January 19, 2021) Counsel: Harvey L. Morrison, Q.C. and Sarah Douglas, Articled Clerk, for Northern Pulp Nova Scotia Corporation Sean Foreman, for the AGNS (Environment) Brian J. Hebert, for Pictou Landing First Nation James Ian Simpson, for the Proposed Intervenors – Gulf Nova Scotia Fleet Planning Board; Prince Edward Island Fishermen’s Association and Maritime Fishermen’s Union Robertson, J.: [1] Gulf Nova Scotia Fleet Planning Board (“GNSFPB”), Prince Edward Island Fishermen’s Association (“PEIFA”), and the Maritime Fishermen’s Union (“MFU”) (the “Proposed Intervenors”), seek status to intervene in an appeal by Northern Pulp Nova Scotia Corporation (“Northern Pulp”) against an order of the Minister of the Nova Scotia Department of Environment (“NSE”), issued May 14, 2020. That Ministerial Order #MO-60003 required Northern Pulp to fulfill certain conditions respecting the Boat Harbour Effluent Treatment Facility. [2] The Proposed Intervenors have filed the affidavits of Dennis McGee, a Director of GNSFPB, dated August 13, 2020, of Martin Mallet, of MFU, dated August 6, 2020 and of Melanie Giffin, of the PEIFA, dated August 5, 2020, setting out their participation in the underlying environmental assessment that preceded the order now under appeal. They had been granted intervenor status and participated fully in that environmental assessment. [3] The Proposed Intervenors represent the interest of fishers in the Maritimes, including those working in the Northumberland Strait, the body of water impacted by the operation of Northern Pulp’s proposed effluent treatment facility. [4] They say: The Proposed Intervenors have participated in each step of the Environmental Assessment process conducted by the Nova Scotia Department of Environment (“NSE”) of Northern Pulp’s proposed project. The Proposed Intervenors made submissions to NSE concern Northern Pulp’s Environmental Assessment Registration Documents (on March 8, 2019); Northern Pulp’s Focus Report Documents (November 8, 2019); and on NSE’s draft term of Reference for Northern Pulp’s Environmental Assessment (February 7, 2020). With respect to these submissions regarding the proposed Effluent Treatment Facility, the Proposed Intervenors hired independent scientific experts to review and comment on the materials submitted by Northern Pulp, and included these reports with their submissions to NSE. The Proposal Intervenors have also participated in meetings with Northern Pulp (at their request) concerning the proposed Effluent Treatment Facility. [5] They say therefore that they should be granted intervenor status, in the appeal of the ministerial order. [6] In paras. 2-9, Northern Pulp has outlined the long history of the pulp mill it now owns, which has been in operation continuously since 1967, and has been putting effluent into the Northumberland Strait which has long been the subject of public interest and discussion. That history is succinctly laid out by respondent counsel. Facts 2. North Pulp is the owner of a pulp mill located at Abercrombie Point, Pictou County (the “Mill”). Until January of this year, the Mill has been in continuous operation since 1967. Since the Mill started operation, its effluent was treated in what has become to be referred to as the Boat Harbour Effluent Treatment Facility (the “Boat Harbour ETF”), a facility owned by the Province of Nova Scotia (the “Province”). From 1967 until 1995, the Province also operated the Boat Harbour ETF. In 1996 Northern Pulp’s predecessor in title, Scott Maritimes Limited, assumed responsibility for the operation of the Boat Harbour ETF pursuant to a number of agreements with the Province included: (a) Memorandum of Understanding dated December 1, 1995; (b) Lease dated December 31, 1995; (c) License Agreement dated December 31, 1995; (d) Indemnity Agreement dated December 31, 1995; (e) Water Supply Agreement dated December 31, 1995. 3. When Northern Pulp acquired the Mill from its immediate predecessor in title (not Scott Maritimes Limited), the benefit of these agreements was assigned to Northern Pulp. Under the terms of an Acknowledgement Agreement dated May 12, 2008 the Province agreed and confirmed that Northern Pulp was entitled to the benefit of the agreements that the Province had entered into with Scott Maritimes Limited. 4. In 2015 the Nova Scotia Legislature enacted the Boat Harbour Act, which prohibited the use of the Boat Harbour ETF for the reception and treatment of effluent after January 30, 2020. 5. Subsequent to the coming into force of the Boat Harbour Act, Northern Pulp began the lengthy process of planning for the design and construction of a replacement ETF. Northern Pulp was also aware that an environmental assessment process would have to be undertaken and commissioned many studies so that the required registration documents could be prepared. On January 31, 2019 Northern Pulp filed its registration document under Part IV of the Environment Act with respect to the replacement of ETF. 6. The Minister of Environment advised Northern Pulp on March 29, 2019 that the information in the registration document was considered insufficient to make a decision with respect to the replacement ETF, The Minster [sic] required the submission of a detailed focus report. The focus report was submitted to Nova Scotia Environment on October 2, 2019. In a decision issued on December 17, 2019 the Minister of Environment determined that a further and still more detailed environmental assessment report was required. Final terms of the reference for the environmental assessment report were not issued until April 28, 2020. 7. In the meantime, the Premier, Stephen McNeil, announced on December 20, 2019 that the time limit set out in the Boat Harbour Act would not be extended. Following this announcement, Northern Pulp ceased producing pulp on January 12, 2020 and started the process to safely “shut down” the Mill and the Boat Harbour ETF. 8. The Minister of Environment, purporting to act under s. 50 of the Environment Act, issued Ministerial Order MO-55774 on January 12, 2020 which required Northern Pulp to take the steps outlined in the Order for the orderly shutdown of the Mill and the continued use of the Boat Harbour ETF for such purposes. On May 14, 2020 the Minister of Environment issued a further Ministerial Order MO-60003, also under s. 50 of the Environment Act. Ministerial Order MO-60003 imposed onerous obligation on Northern Pulp with respect to the continued operation of Boat Harbour ETF. The Order also required Northern Pulp to monitor specified environmental parameters in relation to the Boat Harbour ETF. 9. Northern Pulp filed an appeal of the Order under s. 138 of the Environment Act on June 8, 2020. The Court directed that the Motion for Directions required by Rule 7.22 be heard on August 12, 2020. On the day before the hearing of the Motion for Directions, the Proposed Intervenors filed their motion documents seeking leave to intervene in Northern Pulp’s appeal of Ministerial Order MO-60003. At the hearing of the Motion for Directions, Boudreau, J. ordered that counsel for the parties and the Proposed Intervenors appear in Chambers (virtually) on August 20, 2020 so that the Chambers Judge could give directions for the hearing of the Motion for leave to intervene as the chambers hearing on that date. Gabriel, J. set the date for the hearing of this motion as well as deadlines for the filing of briefs. [7] The sole issue in this motion is whether the Proposed Intervenors should be given leave to intervene in Northern Pulp’s appeal of Ministerial Order MO-60003. Law and Argument [8] The Proposed Intervenors seek leave to intervene in this proceeding pursuant to Rule 35.01 and 35.10 of the Civil Procedure Rules: 35.10 Person intervening (1) A person who is not a party to a proceeding and wishes to be joined may move for an order joining the person as an intervenor. (2) A judge who is satisfied that the intervention will not unduly delay the proceeding, or cause other serious prejudice to a party, may grant the order in one of the following circumstances: (a) the person has an interest in the subject of the proceeding; (b) the person may be adversely affected by the outcome of the proceeding; (c) the person ought to be bound by a finding on the determination of a question of law or fact in the proceedings; (d) intervention by the person is in the public interest. [9] The court must conduct a two-stage analysis to make a determination in motions to intervene. In stage one, the court must decide whether the proposed intervention will “unduly delay” the proceeding, or cause “serious prejudice” to a party. In stage, two, the court must determine whether any of the circumstances in subsections 35.10(2)(a)-(d) are present. The presence of any one of the four listed circumstances is sufficient to grant intervenor status. [10] Northern Pulp does not assert that the intervention of the Proposed Intervenors will unduly delay the proceeding or cause other serious prejudice. Northern Pulp does however assert that the Proposed Intervenors do not fall within any of the four categories of the stage two analysis. [11] The applicants, the Proposed Intervenors, rely on 3076525 Nova Scotia Ltd. v. Nova Scotia (Environment), 2016 NSSC 138, a case which concerned contamination and remediation of a domestic water supply that impacted the intervenors’ properties, to assert their interest, as per the four categories in the stage two analysis. [12] With respect to Rule 35.10(2) whether the Proposed Intervenors have an interest in the subject of the proceeding, the respondent says this raises two questions (a) what kind of an interest must the Proposed Intervenors have and (b) what is the “subject of the proceeding?” [13] The respondent says the subject matter is Northern Pulp’s s. 138 appeal of the order and is in particular the obligations imposed by 25 conditions of the order requiring Northern Pulp to take numerous actions managing the wastewater in the Boat Harbour facility. They say these actions include: . . . managing the wastewater in the Boat Harbour EFT “to prevent a septic condition from developing” (condition 18), to retain professional engineers to prepare decommissioning and other plans (condition 22), and to monitor specified locations for specified environmental parameters (condition 19). These conditions were imposed on Northern Pulp as if Northern Pulp were still the operator of the Boat Harbour ETF. The basic thrust of Northern Pulp’s s. 138 appeal is that the Minister cannot lawfully use his regulatory power to make orders under the Environment Act to make Northern Pulp liable to discharge obligations that, in law, rest upon the Province. [14] Northern Pulp says the central issue in the s. 138 appeal is who bears the responsibility of carrying out the order. [15] Northern Pulp asserts that in light of the agreements it has with the Province and in light of the repudiation by the Province of Northern Pulp’s lease, the Province cannot lawfully put the responsibility on Northern Pulp to take the actions specified in the order. They say if anyone has responsibility for these actions it is the Province and not Northern Pulp. [16] Thus, they argue that the intervenors do not have an interest in this “subject matter” of the legal obligations resting with either the respondent or the Province. [17] They rely on R. v. Moazami, 2020 BCCA 61 at para. 24: 24 "To establish a direct interest, a proposed intervenor must show the proceeding will directly and adversely affect its legal rights or interests, or impose additional legal obligations on it. A concern that the prospective decision will have precedential effect is insufficient": West Moberly First Nations at para. 13 (per Neilson J.A.). See also: Susan Heyes Inc. v. South Coast B.C. Transportation Society, 2010 BCCA 113 at para. 12, 286 B.C.A.C. 16. And Reference re: Impact Assessment Act (Can.), 2020 ABCA 94, at para 12: 24 I have serious concerns about supplementing the record beyond what is filed by the parties. Canada's record is due March 6, 2020. Some interveners confirmed that they would not be supplementing the record: Canadian Environmental Law Association group, Canadian Association of Petroleum Producers, Explorers and Producers of Canada, Canadian Taxpayers Association, and Independent Contractors and Businesses Association and Alberta Enterprise Group. Other interveners were able to identify those items they wished to submit as part of the record: Nature Canada, Canadian Energy Pipeline Association, Ecojustice Canada Society, and the Athabasca Chipewyan First Nation. The remaining interveners wish to supplement the record but were not yet in a position to identify the evidence they needed: Woodland Cree First Nation, Indian Resource Counsel, and Mikisew Cree (who agreed to work with the Athabasca Chipewyan First Nation). [18] Northern Pulp, on examining the applicant’s affidavit evidence, points out that the affiants make no attempt to demonstrate an interest in the issue of who is responsible for complying with the terms of the order, therefore they have shown they have no direct interest in the s. 138 appeal. [19] The applicant, the Proposed Intervenors, say the subject matter of the appeal is not who is responsible for the obligations listed in the Minister’s Order, although that may be the issue of the appeal. They say the subject matter is the on-the-ground implications of the Minister’s Order. They argue that many of the obligations of the ministerial order touch on the potential harm to the environment, including water quality around the mill and the Boat Harbour Treatment Facility. The subject matter is therefore not the legal argument, but the process of the decommissioning of the effluent treatment facility, potential water quality or other environmental harm that could result. This “subject matter” is of utmost concern to the Proposed Intervenors, whose livelihood is that of fishers in this very body of water and who are concerned about the adverse effect the decommissioning may have on them. [20] The Proposed Intervenors do not address the circumstances of 30.10(2)(c) “ought to be bound by a finding on the determination of a question of law” or 30.10(2)(d) “public interest” as they say having shown an interest in the subject matter and obvious potential adverse affect to them, intervenor status should ensue. [21] Northern Pulp does address 35.10(2)(c) and (d). Rule 35.10(2)(c) allows that an intervention may be granted where the Proposed Intervenor “ought to be bound by a finding on the determination of a question of law or fact in the proceeding.” The respondent says the Proposed Intervenors’ participation is not necessary to determine who has the responsibility to carry out the s. 138 order. [22] The respondent relies on Shubenacadie Indian Band v. Canada (Attorney General), 2002 FCA 509 at para. 8 and Amoco Canada Petroleum Co. v. Alberta and Southern Gas Co., 1993 CarswellAlta 32 at paras. 13-24; Ontario Federation of Anglers and Hunters v. Ontario (Minister of Natural Resources and Forestry), 2015 ONSC 7969 and Abrahamovitz v. Berens, 2018 ONCA 252. [23] Northern Pulp argues the Proposed Intervenors as third parties have no interest in those obligations and are not affected in any direct way by them, nor is their participation necessary to determine whether the conditions under appeal are lawfully likely or not. They say such a determination on appeal does not make the construction of a replacement effluent treatment facility any more or less likely. [24] Northern Pulp argues that the courts across Canada insist that the intervenors demonstrate that they are able to provide different and helpful submissions to the court. Ottawa (City) v. Clublink Corp. ULC, 2019 ONSC 7470; Global Maxfin Investments Inc. v. Crowell, 2015 NSCA 9; A.B. v. Bragg Communications Inc., 2010 NSCA 70, Farrar, J.A., para. 6: [6] Therefore, the proposed intervenor must identify itself , its interest in the appeal, the position it will take on the appeal, and the submissions it will advance. The submissions must be demonstrably relevant to the appeal, useful to the court, and different from those of the parties. [25] They also rely on Canada (Citizenship and Immigration) v. Ishaq, 2015 FCA 151, paras. 9-17. The matter before the court in this case involved a determination of six motions for intervention on possible Charter issues that the Supreme Court of Canada might possibly have to deal with on the appeal, although the Federal Court had not. [26] They also rely on Canada (Attorney General) v. Kattenburg, 2020 FCA 164, paras. 5-29. This is a case that dealt with food labeling, although many intervenors sought status on many wider grounds. [27] Quite obviously the Supreme Court of Canada is required to filter the vast number of potential intervenors that seek to address the subject matter of appeals before them and hear only from those who can best bring submissions that are useful to the court and different from those of other parties. [28] In this case, the Proposed Intervenors’ interest in the subject matter of the order under appeal is direct. They have a real interest in the process of the decommissioning of the Boat Harbour effluent treatment facility. The obligations under the order appealed by Northern Pulp deal with management of the facility, requirement to retain Class III Wastewater Treatment System Certified Operators and retention of a professional engineer, monitoring the suspended solids in the holding ponds, potential impacts on stormwater and landfill leachate generated at the facility and the decommissioning plan. [29] I accept that the subject matter here is broader than the legal argument of the issue of responsibility for these obligations under the order. [30] As Northern Pulp has stated, the Proposed Intervenors will not unduly delay the proceeding or cause serious prejudice. I have considered whether the Proposed Intervenors can have anything useful to add to the hearing on the appeal. [31] In the environmental assessment proceeding, the Proposed Intervenors had hired independent experts to review and comment on the very subject of the operation of the effluent treatment facility. The Proposed Intervenors believe they will be able to make submissions that will be from a different perspective and reflect their unique interest in the subject matter – the decommissioning process and who is required to meet this obligation – as well as who best can meet these obligations. [32] As a matter of discretion, the court must weigh the circumstances set out in 30.10(2)(a)-(d). I have done so and find the Proposed Intervenors should be granted status of intervenors. [33] As Justice Rosinski commented in Specter v. Nova Scotia (Fisheries and Aquaculture), 2011 NSSC 266, at para. 5: [5] . . . as a matter of law, granting the fullest procedural rights to a potential party is in the interests of justice, unless undue prejudice would result to the existing parties in this appeal. [34] I do not believe the Proposed Intervenors’ participation will result in any undue prejudice and they may indeed add a new perspective to the appeal hearing without causing delay. [35] In the absence of agreement on costs, I will receive submissions in writing from counsel. Justice M. Heather Robertson