Date: 19981009
Docket: T-2019-97
BETWEEN:
QIKIQTANI INUIT ASSOCIATION,
Applicant,
- and -
ATTORNEY GENERAL OF CANADA
as representative of
THE MINISTER OF INDIAN AFFAIRS AND
NORTHERN DEVELOPMENT and
NANISIVIK MINES LTD.,
Respondents.
REASONS FOR ORDER
REED, J.
[1] This is an application pursuant to section 18.1 of the Federal Court Act for judicial review of a decision of the Nunavut Water Board. The decision is dated July 31, 1997, and it granted a water licence renewal to Nanisivik Mines Ltd. ("NML"), authorizing it to use water for industrial purposes at its lead/zinc mining and milling operations located in Nanisivik, Northwest Territories. The Qikiqtani Inuit Association ("QIA" or the "Association") seeks to have that decision set aside.
[2] The Nunavut Water Board was the first tribunal created as part of the soon to be established Nunavut Government under the Agreement Between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in Right of Canada (the "Agreement"). The Agreement was "ratified, given effect and declared valid" by the Nunavut Land Claims Agreement Act, S.C. 1993, c. 29, (the "Act"). Although Nunavut comes into existence on April 1, 1999, the Board came into existence on July 9, 1996, pursuant to the terms of the Agreement and the Act. It is not necessary to describe the legislative provisions pursuant to which this occurred but merely to note that the Nunavut Water Board took over responsibilities previously exercised by the Northwest Territories Water Board. The decision under review is the first industrial water licence decision by the Board.
[3] The Agreement was signed by the Tunquvik Federation of Nunavut, as the representative of the Inuit of the Settlement Area. The Agreement provides that responsibilities under it are to be exercised by Designated Inuit Organizations. Again, it is not necessary to set out the relevant provisions in detail but simply to note that QIA is one such organization, having been so designated by Nunavut Tunquvik Inc. ("NTI").1 QIA was given responsibilities for one of the three regions of Nunavut, the Baffin region. As such QIA holds title to the Inuit-owned land of Baffin Island on behalf of approximately 12,000 Inuit beneficiaries, and controls access to and administration of that land. The Association prior to mid-February 1997 was known as the Baffin Region Inuit Association ("BRIA"). I shall hereafter refer to the organization before that time as QIA (BRIA) and after that time as QIA.
[4] The decision under review is challenged under two main headings: the procedure followed by the Board did not comply with the rules of natural justice or with the statutory standard required of the Board; the Board ignored evidence that was before it and failed to exercise its jurisdiction, particularly with regard to the dumping of raw sewage into Northwest Territories waters and the development of guidelines to govern the payment of compensation for environmental degradation caused by the mine's use of water pursuant to the licence.
A. Procedure Followed, Natural Justice and Statutory Requirements
[5] The procedural defects that are alleged relate to the lack of notice and the lack of information provided ahead of time by the Board with respect to a public hearing held on September 24, 1996, in Arctic Bay, as well as to what must be described as the ad hoc post-hearing procedure followed by the Board.
[6] The Nunavut Water Board's powers are described as being at least equivalent to the powers and responsibilities previously exercised by the Northwest Territories Water Board under the Northern Inland Waters Act, R.S.C. 1985, c. N-25. It has responsibility for approving the use of water and the disposal of waste into the waters of the Northwest Territories, soon to be Nunavut. There is, however, one significant difference between the Nunavut Water Board's powers and those of its predecessor. The Board is specifically directed to take into account Inuit culture, customs and knowledge and the Agreement expressly states that one of its objectives is to provide for the right of the Inuit to participate in decision-making that relates to the use of land, water and resources.2
[7] When the Board came into existence on July 9, 1996, it took over the processing of the NML licence renewal application. That application had been filed on January 17, 1996, in anticipation that it would take at least six months for it to be processed. The five year licence that NML held at the time was due to expire on October 31, 1996.
[8] Not only did the Board inherit the processing of the licence application, part way through, it also inherited a lot of past history concerning monitoring that had not been done with respect to the operation of the mine and its use of water, as well as consequences arising from past decisions of the Government of the Northwest Territories. The Board was faced with a situation in which: it had never dealt with the issuing of a water licence, or the renewal thereof; it did not have established procedures or procedural rules in place; it had an application before it with respect to which there were time constraints, as the existing licence was due to expire on October 31, 1996; the mine had been in existence since 1976 and employed a number of people, and neither QIA (BRIA) nor anyone else wished to see it closed down; and there were significant expectations that the Board would operate in a different manner than its predecessor and pay more attention to the concerns of the Inuit that would be directly affected by the decisions that were being made than had been done in the past.
[9] There is no doubt that the situation created difficulties for everyone. The question to be answered is whether the procedure that was followed led to either a breach of the rules of natural justice or a breach of the statutory requirements imposed on the Board by the Agreement and the Act. I will first describe the procedure that was followed and then assess whether a breach or breaches occurred.
1. Procedure Followed
[10] As noted the mine had been in operation since 1976. It had received industrial water use licences on a periodic basis since that time. The immediately previous licence renewal had been granted in October 1991 and was for a five year term. Thus, QIA (BRIA) and others knew in 1991 that there would be a licence renewal application in 1996 and that it would have to be dealt with before the end of October 1996. There was also a general knowledge by QIA (BRIA) that environmental concerns about the mine existed. A report had been prepared, in October of 1995, by the Kakivak Association, a subsidiary organization of QIA (BRIA).
[11] The Northwest Territories Water Board used a Technical Advisory Committee ("TAC") to assist it in making decisions. TAC made recommendations concerning the decisions that should be made by that Board. There was also in place, by at least mid-January 1996, a Nunavut Water Board Transition Team whose members eventually became the new Nunavut Water Board.
[12] On March 11, 1996, the Department of Indian Affairs and Northern Development ("DIAND") wrote to the members of TAC notifying them that NML had made an application for a licence renewal and seeking their comments for the purpose of conducting an environmental screening pursuant to the Canadian Environmental Assessment Act, S.C. 1992, c. 37. Included with that letter were copies of a number of documents including the NML application, the existing water licence, information from Yellowknife on metal loading in Strathcona Sound, record inspection reports that suggested non-compliance with some terms of the existing licence and NML's response thereto. QIA (BRIA) received a copy of the letter; it has no record of having received the attachments. No comments were forwarded by QIA (BRIA) to DIAND as a result of having received a copy of the letter.
[13] On June 14, 1996, the Northwest Territories Water Board wrote to members of TAC advising them that there would be a meeting concerning the licence renewal application in Yellowknife on June 20, 1996, at which time NML representatives would make a presentation to them. The letter noted that an information package would be provided to those who attended. QIA (BRIA) received a copy of this letter but did not seek to attend nor to obtain a copy of the information package that was distributed to those who did attend. Counsel for QIA notes that the notice period was very short, distances were great, and that QIA (BRIA) had to operate within its budget allocations.
[14] The Nunavut Water Board Transition Team was kept apprised of these events. By the end of June, a representative of NML was expressing concern about the fact that there appeared to be inadequate time to complete the licence renewal process before the existing licence expired. The Nunavut Water Board Transition Team expressed similar concern.3
[15] In any event, by letter dated July 8, 1996, DIAND notified the Northwest Territories Water Board that the environmental screening had been done, and that it had been determined that the water use project was "unlikely to cause significant adverse environmental effects". DIAND also reported that the concerns that had been raised about adverse environmental effects "are being addressed" and recommended the incorporation of mitigation measures as conditions in the licence.
[16] After the Nunavut Water Board took over responsibility for processing the licence, it placed notices in various newspapers that a public hearing would be held in Arctic Bay, on September 24, 1996. These were placed in the Nanutsiaq News on July 26, 1996, the Yellowknifer on August 2, 1996, News North on August 5, 1996, and in the Kivalliq News on August 7, 1996. The notices indicated that the licence renewal application could be reviewed at the Board offices in Gjoa Haven or by contacting the Board's Director of Operations. It is unclear whether these newspaper notices were seen by the relevant persons at QIA (BRIA) but on August 9, 1996 that organization wrote to the Board indicating that QIA (BRIA) had heard that there was to be a public hearing on the NML application in the near future and wanted to receive information concerning it. The letter also indicated that QIA (BRIA) wanted "to be involved in all processes that may affect the Inuit" in the Baffin region and asked that it be provided with information on all future Board hearings in that region.
[17] At that time, the Board appears to have been in the process of preparing a letter to the Northwest Territories Water Board TAC members, asking them to contribute to the Nunavut Water Board in the same role and manner as they had previously done for the Northwest Territories Water Board, on the Nanisivik Mines renewal application. An unsigned copy of a letter to those members, dated August 11, 1996 is in the record. It does not show (QIA) BRIA as being one of the organizations to which a copy of that letter was to be sent. However, the signed copy, dated August 22, 1996, has QIA (BRIA) listed as an organization to which a copy was eventually sent. The letter states that a public hearing is scheduled for September 24, 1996 in the Arctic Bay community gymnasium. In addition, on August 26, 1996 QIA (BRIA) received a handwritten fax response to its August 9, 1996 letter informing it of the date of the public hearing.
[18] On September 11, 1996, QIA (BRIA) wrote to the Board stating that it had not received notice of the September 24 meeting in Arctic Bay until the last week of August, that there was insufficient time, in the circumstances, for it to consult with its beneficiaries and to prepare for the hearing. It stated that in order to allow the Inuit to have a meaningful participation in the meeting QIA (BRIA) was requesting that a temporary extension of NML's licence be considered on September 24, 1996, and the public hearing for the licence renewal as a whole be rescheduled to December, 1996. The letter also questioned the adequacy of a notice given by newspaper advertisement in the summer months when fifty percent of the Inuit are not in their communities. It noted that QIA (BRIA) was an organization having a very wide mandate and that it needed more lead time and assistance than a specialized branch of government. The Qikiqtaaluk Wildlife Board and the Nunavut Tunquvik Inc. supported QIA (BRIA)'s request for an adjournment of the public hearing.
[19] The Chairperson of the Nunavut Water Board responded to QIA (BRIA), by letter dated September 16, 1996, noting that the request for an adjournment had come late in the day, that 60 days notice of the public meeting had been given, that other organizations had already filed representations (these would have been the mine and three federal government departments), that arrangements had been made for the use of the facilities in Arctic Bay and that in the Board's view it would not be in the public interest to postpone the meeting. The letter stated, however, that after the public meeting the Board might consider issuing an interim licence to NML "for a period necessary to fully assess community issues, as well [as] possible long term technical issues, through further public consultation". The Board indicated that "[t]his could require a further hearing to be scheduled for later this year or early 1997". The letter also stated that the terms and conditions of any licence renewal would not be issued until there had been full public consultation with respect to them, and that the Board was in the process of establishing a Technical Advisory Committee to assist it in fulfilling its functions. On September 18, 1996, QIA (BRIA) received a letter from the Board with a document setting out the procedures that the Board intended to use. This document was stamped DRAFT and a separate document that allegedly outline the procedures for a public hearing was not included.
[20] QIA (BRIA) reiterated its request for an adjournment, noting in addition to the points it had made in its September 11, 1996 letter, that the procedural rules that the Board intended to use were only published in September and only in draft form and without attachments, and that the materials that QIA (BRIA) needed to review were very technical in nature, requiring time and the hiring of a consultant, all of which QIA (BRIA) could not do in the time available. This second request was read by the Chairman of the Board at the September 24th meeting and the request for an adjournment was again denied.
[21] On October 2, 1996, the Board wrote to the TAC members to convene a meeting, asking them to advise the Board and make recommendations on the conditions to be inserted in a licence if one were granted. This procedure was objected to by QIA (BRIA) and others, on the ground that the Board was abdicating its decision-making responsibility, was doing nothing more than adopting the old procedure that had been used by the Northwest Territories Water Board, was raising potential problems of bias because intervenors and parties at the hearing were part of the TAC.
[22] By letter dated October 29, 1996 the Board sent NML formal notification that the licence had been extended on a temporary basis and stated that the Board was going to give the public until January 31, 1997 to present written submissions respecting the renewal of the water licence. It added that the Board expected to be able to make a final decision by March 31, 1997.
[23] By letter dated November 5, 1996, the Board notified the TAC members that it would not employ them to advise it but would be hiring its own independent experts (which QIA (BRIA) asserts was never done). The Board expressed the view that it wanted to avoid the perception that some intervenors had privileged access to the Board. I quote part of the letter:
| ... after careful considerations and some informal discussions with various parties involved in the implementation of the Nunavut Land Claims Agreement, the Nunavut Water Board now believes that the NWTWB [Northwest Territories Water Board] model may not offer the most appropriate design for the Nunavut context. |
| The Board admittedly needs to obtain technical and scientific advice on issues under review, and it is certainly not realistic, particularly for financial reasons, to develop in-house expertise on a wide range of subjects. Surely, the Board will have, to a certain extent, to rely on outside expertise. We still intend to seek proper advice and guidance from government experts on purely scientific or technical matters, and will probably put in place a panel of experts within the next few months. However, and aside the fact that the current TAC members have considerable technical and scientific expertise in water issues, we favour the involvement of independent experts viewed by the public as unbiased and who do not represent the interests of a group, an association, or even the Crown. [Underlining added.] |
[24] At this point QIA (BRIA) applied through the Board for intervenor funding from DIAND. This was refused. QIA (BRIA) then hired a consultant, Dr. Scott, and his report was filed with the Board on January 29, 1997.
[25] On January 31, 1997 the Board modified its previous deadline and stated that the public and others would have until February 14, 1997 to make submissions. This appears to have been done to allow NML and others an opportunity to comment on Dr. Scott's report. That report was reviewed by NML. The covering letter to the mine's reply indicated that it felt it had addressed QIA (BRIA)'s concerns in its submissions to the Northwest Territories Water Board during the duration of NML's previous licence and more recently to the Nunavut Water Board in its presentation for a licence renewal. The letter expressed the view that the mine had attempted on numerous occasions to explain to the residents of Arctic Bay the "significance of tailings dust and acid drainage and what effects we are making to minimize their effect in both the short and the long term". One has to acknowledge that Dr. Scott's comments lacked depth and detail.
[26] By letter dated April 10, 1997, the Nunavut Water Board circulated a draft water licence to the interested parties seeking their comments before April 24, 1997. QIA responded with comments from Dr. Scott dated April 21, 1997. On May 2, 1997, the Board advised QIA and the public that it was making the comments it had received on the draft licence available to the other interested parties and would allow them to comment thereon. The letter received by QIA reads, in part:
| As indicated in our let[t]er to the intervenors dated April 10, 1997, all submissions to the NWB are deemed final. However, the NWB decided to give the opportunity to reply to the other parties' submission. ... The NWB will then review all submissions, take into consideration the validity and accurateness of the comments received, and render its decision in due time. |
The licence was issued on July 31, 1997.
[27] In cross-examination and re-examination Lazarus Arreak, President of QIA stated that the continuously changing procedures adopted by the NWB over the course of nearly one year made it difficult for QIA to prepare a response to the case to be met:
| ... QIA was witnessing a process that was very confusing to QIA -- the dates changing, the procedures changing. ... So, basically, QIA is not sure what rules are going to be followed, so the concern is rising. My earlier comments that we want to set a good precedent that is positive to all the parties concerned, and QIA is beginning to feel left out, with no time frame, not to mention lack of funds that we now have to absorb, and then having to communicate with a community that's almost 1000 miles out of Iqaluit, our headquarters office. |
[28] Mr. Arreak's affidavit contains the following with respect to QIA's objection that it did not receive the relevant technical reports in sufficient time to allow a considered analysis thereof:
| ... on or about September 12, 1996 the QIA received for the first time scientific and technical material relating to the Application, ... including |
| a) information relating to a Dust Generation Monitoring Study; |
| b) information relating to a Waste Rock Disposal Plan; |
| c) information relating to a Tailings Deposition Plan, including "as-built' drawings of the retention dyke structure; and |
| d) information relating to Effluent Treatment Options. |
| This material also makes reference to a number of scientific and technical reports and proposals which appear to be relevant to the Application including: |
| a) 1992 "Waste Rock Disposal Plan"; |
| b) 1993 "Annual Water Report"; |
| c) 1994 "Metal Loading Study"; |
| d) 1992 "Tailings Deposition Plan"; |
| e) 1993 "Effluent Quality Proposal and Implementation Schedule"; |
| f) 1992 "Twin Lakes Creek Metal Loading Study"; |
| g) 1993 "Implementation Proposal for the Reduction or Elimination of Sources of Metal Loadings to Twin Lakes Creek"; |
| h) 1991 "Plan for the Monitoring of On-the-Land Disposal of Tailings"; |
| i) 1992 "Revised Abandonment and Restoration Plan"; |
| j) 1992 "Test Cover Studies Proposals"; and |
| k) Ongoing Nickel Analysis, |
| however these scientific and technical reports were not included within the material and to the best of my knowledge were not provided to the QIA. |
[29] Also the above list does not mention the joint Environment Canada and Department of Fisheries and Oceans submission respecting the renewal of the NML licence which does not appear to have been prepared until August 30, 1996, (it may not have been publicly available before the September 24, 1996 hearing in Arctic Bay). That prepared by DIAND was not sent to the Board until September 10, 1996. In addition, the Report for the Department of Municipal and Community Affairs of the Government of the Northwest Territories, prepared by Vista Engineering, concerning the discharge of raw sewage into Twin Lakes Creek was not prepared until October 23, 1996.
2. Natural Justice / Statutory Requirements / Analysis
[30] Ever since the decision in Nicholson v. Haldimand-Norfolk Regional Board of Commission of Police, [1979] 1 S.C.R. 311, there has been no need to classify decisions into the old categories of administrative, quasi-judicial or judicial in order to determine what procedural processes must be observed in the decision-making process. The requirements will vary depending upon a number of factors: the nature of the interest involved; the nature of the decision-making body; the relationship between the decision-making body and the applicant for judicial review; the statutory requirements, if any, that exist. In this regard see, for example, Knight v. Indian Head School Division No. 19, [1990] S.C.R. 653, esp. at 682, S. Blake, Administrative Law in Canada, 2nd ed. (Toronto: Butterworths, 1997) at 9-22, and J.M. Evans, et al., Administrative Law: Cases, Text, and Materials, 4th ed. (Toronto: Emond Montgomery Publications, 1995) at 45-74.
[31] In the present case the nature of the decision and its effects are of a type to require a very high degree of procedural fairness. They are concerned with the continued operation of the mine affecting as it does the employment of a number of people, on the one hand, and the potential degradation of the environment and adverse effects on the health of the residents of the area, on the other. That very important interests are at stake, it seems to me, is recognized by the fact that public hearings were held by the Board to allow for submissions by the mine officials and others and to allow public questioning by residents of the area and by government officials and Board members.
[32] I turn then to the relevant statutory provisions. The preamble to the Act sets out the principles and objectives upon which it and the Agreement are based. These read in part:
| AND WHEREAS the Parties have negotiated this land claims Agreement based on and reflecting the following objectives: |
| to provide for certainty and clarity of rights to ownership and use of lands and resources, and of rights for Inuit to participate in decision-making concerning the use, management and conservation of land, water and resources, including the offshore; |
| to provide Inuit with wildlife harvesting rights and rights to participate in decision-making concerning wildlife harvesting; |
| to provide Inuit with financial compensation and means of participating in economic opportunities; |
| to encourage self-reliance and the cultural and social well-being of Inuit; [Underlining added]. |
The Agreement is given constitutional recognition. Section 2.2.1 of the Agreement provides:
| 2.2.1 The Agreement shall be a land claims agreement within the meaning of Section 35 of the Constitution Act, 1982. |
Finally, the Agreement prevails when there is an inconsistency or conflict with other laws. Section 6 of the Act states:
6. (1) In the event of an inconsistency or conflict between the Agreement and any law, including this Act, the Agreement prevails to the extent of the inconsistency or conflict.
(2) In the event of an inconsistency or conflict between this Act and any other law, this Act prevails to the extent of the inconsistency or conflict.
6. (1) Les dispositions de l'Accord l'emportent sure les dispositions incompatibles de toute règle de droit, y compris la présente loi.
(2) Les disposiitons de la présente loi l'emportent sur celles de toute autre règle de droit.
[33] The Agreement provides, in Article 13, for the establishment of the Nunavut Water Board. Subsections 13.3.13, 13.3.14 and 13.3.15 set out requirements respecting its procedure:
| 13.3.13 In designing its by-laws and rules of procedure for the conduct of public hearings, the NWB shall: |
| (a) allow and give appropriate weight to evidence to be admitted at public hearings that would not normally be admissible under the strict rules of evidence; and |
| (b) give due regard and weight to Inuit culture, customs and knowledge. |
| 13.3.14 Prior to the holding of public hearings on any water application, the NWB shall take steps necessary by way of notice, dissemination of information and scheduling and location of hearings to provide and promote public awareness in such public hearings. |
| 13.3.15 Within a reasonable period of time prior to the commencement of any public hearing, the information provided to the NWB in relation to any water application shall be made available to the public. [Underlining added.] |
[34] I am not persuaded that QIA (BRIA) was given adequate notice of the September 24, 1996 meeting. While there may be some merit to NML counsel's argument that QIA (BRIA) should have been anticipating the hearing, collecting information and consulting with its beneficiaries, even before the date of the public hearing was known, there is also merit to QIA's argument that, as an organization with a very significant interest in the proceeding, it should not be required to rely on public notice in newspaper ads for precise information concerning the date, time and place of the hearing and it should be provided with the technical reports by reference to which the decision is to be made sufficiently ahead of time to allow it to analyze them.
[35] QIA has now asked the Board to automatically provide it with notice of all the applications and hearings and other materials relevant thereto and, I have no doubt the Board will adopt the practice of doing so. I am sure that the procedural difficulties that arose in this case are not likely to occur again. They arose as a result of the newness of the situation that both the Board and QIA (BRIA) faced and because there were time constraints arising out of the imminent expiry of the existing licence.
[36] I make no determination as to whether adequate notice was given to the individual Inuit of Nanisivik and Arctic Bay - six residents did turn up at the meeting. There are no affidavits from others who might have attended but did not receive notice. I accept that many Inuit are not in their communities in the summer months and that communication by newspaper advertisement may not in any event, be an effective way of giving notice to many members of those communities. Also, the appointment of Inuit members to the Board does not alone mean that in designing its rules of procedure the Board has met the requirement that it give due regard to Inuit culture, customs and knowledge. Nor does it mean that the purposes of the Agreement have been met. Participation by the Inuit who will be affected by a particular decision is what is important.
[37] I turn then to the arguments under section 13.3.15 of the Agreement that the Board provide information concerning a water application to the public. I agree that this does not require the Board to automatically distribute translated or untranslated copies of the full text of all reports, especially voluminous technical reports, to the public who have not asked for them. The requirements must be interpreted in a common sense way. In the case of technical reports it will often be sufficient to notify the public that access to the reports can be obtained at a certain location or by contacting a given individual and that a copy will be provided on request. In the case of an organization like QIA, however, which has placed what I will call a "standing order" for a copy of such reports, these should be provided automatically. The control of information is a very effective method of controlling the decision that is ultimately made. This is undoubtedly the reason that one finds section 13.3.15 imposing obligations on the Board with respect to the dissemination of information that is provided to it. That requirement was not initially met.
[38] The Board's sensitivity to the need to ensure that information is provided to the community affected by the decision is however shown in its July 1997 decision, in which it required NML to provide members of the community with executive summaries in Inuktitut of all reports prepared as a condition of the licence:
| The requirements imposed on the licensee in this licence are for the purpose of ensuring that the NWB has an accurate annual update of the mine's activities during a calendar year. From evidence presented by residents of Arctic Bay at the public hearing, there is a clear need for increased effective communication between the mine and the residents of Arctic Bay. The NWB has requested that the mine provide an executive summary in Inuktitut of all studies and reports prepared under this licence. The Board feels that it is important that the information collected and analyzed as requirements of this licence be summarized in the appropriate languages and given back to the residents of nearby communities. |
[39] I conclude that the September 24, 1996 procedures, insofar as QIA (BRIA) is concerned did not meet the requirements of common law natural justice. Nor did they meet the statutory requirement imposed on the Board. QIA (BRIA) was not given adequate notice of the meeting, nor was it provided with the technical reports that would form the foundation for that decision sufficiently ahead of the meeting to allow it to make informed comments thereon at that time.
[40] I have to conclude, however, that these defects were essentially cured by the actions the Board took at the end of October, 1996. It issued an interim licence to NML and it extended the period within which it would receive submissions. It did not schedule another public hearing in Arctic Bay but as counsel for the respondents notes, it was not asked by QIA (BRIA) to do so. QIA (BRIA) quite rightly in my view recognized that it was important to focus its attention, at that stage, on the technical reports that had been filed. I am not persuaded that anyone doubted the evidence given by the Inuit witnesses.
[41] Insofar as the ad hoc post-hearing procedures are concerned, again, it is likely that this was a unique occurrence arising because of the inexperience of the Board and QIA in dealing with the new situation. While I accept Mr. Arreak's evidence that the frequently changing procedure created some prejudice for QIA, in that it did not know the procedural "rules of the game" ahead of time, including, for example, how much time it had to prepare submissions on the technical evidence, I cannot conclude on the basis of the evidence that that prejudice was sufficiently serious to justify setting aside the Board's decision.
B. Ignoring Evidence / Failing to Exercise Jurisdiction
1. Evidence Allegedly Ignored
[42] The evidence that QIA alleges was ignored is that of the six Inuit inhabitants of Nanisivik who attended the public hearing on September 24, 1996 and the expert evidence of Dr. Scott, dated January 29, 1997, and April 21, 1997. The matters with respect to which it is alleged the Board declined to exercise jurisdiction are the establishment of guidelines for the payment of compensation as a result of damage done to the environment by NML's use of water and the continued dumping of raw sewage into Twin Lakes Creek which flows into Strathcona Sound and thus the Arctic Ocean.
[43] The evidence of the Inuit residents of the area that it is alleged was ignored is, for example, that of Mr. J. Okadluk:
| This spring when it was cold and the sun was back, I went caribou hunting close by. I saw some caribou close to the vicinity of Nanisivik. I could hardly see them because of the haze coming from that particular area. I lost sight of them. I thought, that whenever there are people coming for a conference or a meeting next time I'm going to state my comments and concerns. |
| DFO said they would not initiate any studies in respect to health concerns. I am very concerned about this, and I would push all to initiate studies as to the health of the humans. For example, if I caught a narwhal and you saw some of the things which we have seen on certain organs, that, I think, when you see outside it might not look sick, but when you cut it up, it's only then you see it. |
| And I'm very concerned, that maybe it's only when Inuit start dying off, that will be when the Government initiates health studies as to the level of contaminants in the animals in and around the north. |
| That if I committed a crime, the judicial system would come cracking right down right away, but here, when we are concerned about the health issues and the health of wildlife, Government puts it off and procrastinates. We have too many areas where we harvest wildlife. |
| ... and I think it is time there was an extensive study as to the particular health of animals. |
Ms. T. Qavavauo:
| The discharge that is going to destroy some marine mammals, is that okay, if this discharge to ocean, is that okay for seals and all that? Marine mammals. ... |
| ... What I wanted to know, the question I had, just in some parts to the Inuit around 1992, there was, in Strathcona Sound, we were told never to eat seals because there were some effluent involved or some kind of minerals in the seals due to some child because -- due to a child going out for head cases. |
One of the Nanavut Water Board members clarified this evidence:
| ... just to clarify and if you didn't understand what she was just trying to say is, at one point, there was a child who ate some seal meat from near Nanisivik, and, apparently, the child got sick, ill. And they were warned earlier about the metal, not to eat any sea mammals from that area. At one point, she didn't specify what year, when, but, there was a concern from over the years. Just to clarify what she was saying. ... |
Ms. L. Uyunga:
| The seals tend to have bad livers in that area. I'm not trying to blame Nanisivik for everything. There might be studies far a long while that I'm not to happy with the way the results come out from DFO, and that they place the onus on the health side of Government, that they have to be the ones for to push for these kinds of studies. |
| And it might take a long time in between these studies. Sometimes I wonder if whether or not Inuit are just one of the resources around or whether we are less valuable than some of the other resources? |
Mr. A. Qavavauo:
| And sometimes you can see that this dust is collecting all over the environment from 18 to 20 miles. We have concerns here, that it could effect the physiology of the wildlife in the area mainly in respect to the herbivores. |
| Because I have seen cases where, in some areas, where the dust has blown from the tailings pond because at it had a certain colour. ... in cases where there is a lot of wind versus, let's say, a week of small winds, the changes even in the town of Nanisivik because of all the winds that is blowing, even half the dust is coming from the tailings. |
Mr. M. Akumalik:
| Now, if it is only mineral, in recent history, that this black dust, which seemingly originates from the tailing pond, that this black dust is of recent origin. Before this came about, there used to be clear water and we never used to see black snow that use to occur around this area. It is only in the last few recent years that it seems to be a little more prevalent. But it seems to go to areas now. |
| I might have something to do with the change in the atmosphere, but, I can tell you, from my own history of this area, that there never used to be black dust in and around Strathcona Sound. ... |
| Because of the steepness of the geography, it is deposited all the way down to the ocean and every time it starts melting, this offshoot of whatever, starts leaching down into the Sound. And, I think, there is three main creeks in and around Nanisivik and there are a few creeks here and there, but I'm referring to three but there are a few in and around Nanisivik. ... |
[44] The evidence of Professor Scott, dated January 29, 1997, addresses: (1) dust from the tailings disposal area; (2) leaching of waste rock deposits and the generation of acid drainage; (3) abandonment and reclamation requirements that should be imposed on NML. The evidence of Dr. Scott dated April 21, 1997 addresses the three above noted subjects as well as the studies respecting hydrologic, geotechnical and geoenvironmental impacts, that the Board was proposing be completed as some of the conditions of the licence.
[45] Dr. Scott's report of April 21, 1997, was sent to the Board under cover of a letter dated April 23, 1997, from Mr. Arreak on behalf of QIA. These representations can be summarized as asserting that the Board was imposing no meaningful requirements on the mine but was merely asking the mine to study matters further. The QIA letter asserts that the Board should insist that measures be undertaken to contain all tailings dust, that there should be a requirement that the acid rock drainage be collected and treated, that the Board should undertake independent studies and monitor the implementation of the measures identified as required to ameliorate the situation. The letter reads in part:
| There does not appear to be any direct connection between the results of the studies and actions to be taken by the NWB in the form of restrictions on the Water Licence. Unfortunately, this is consistent with the approach historically taken by the Northwest Territories Water Board with respect to the Nanisivik Mine, wherein the Water Board has over the years requested the Mine Operator to undertake a variety of environmental and environmental health studies. Some of the studies were never completed, and those that were had minimal impact upon the terms and conditions of the Water Licence granted to the Mine. |
[46] The letter also objected to the Board's decision to grant a long term licence before the results of the studies it was requiring the mine to conduct were completed. QIA stated that in its view the mine was not being required to adequately provide for the potential abandonment and reclamation of the mine site. It was anticipated, as of that date, that the mine would have a remaining life of six years. And lastly, QIA objected that the Board had not issued compensation guidelines to NML:
| As you are aware, section 13.8.1(d) of the Nunavut Final Agreement provides: |
| "Consistent with subsection 13(2) of the Northern Inland Waters Act, RSC 1985, c. N-25, the NWB, when considering a water application, may issue guidelines to the applicant for provision of information with respect to the following: |
| (d) steps which the proponent proposes to take to compensate interests adversely affected by water use." |
| We are unaware that any guidelines have been issued by the NWB to Nanisivik Mines Limited with respect to compensation of interests adversely affected by the Mine's water use. Such interests include loss of wildlife for harvesting and fear of use of wildlife by local residents. Further, the Draft Water Licence makes no provision to require the Mine Operator to compensate such interests. |
[47] Counsel for QIA argues that the Board completely ignored the public health concerns raised by the six Inuit residents, that the Board's decision in effect was a decision based on no evidence because the only evidence before it was the evidence of the Inuit residents attesting to health concerns. Counsel argued that the Board should have taken greater initiative with respect to the public health issues raised by this evidence, that there was an obligation on the Board to seek information held by Health Canada in this regard, that the Board has investigative powers under the Inquiries Act and should have used them. The Board's decision with respect to the applicant's concerns will be considered under the following headings: (i) toxicity (public health); (ii) tailings dust; (iii) acid rock drainage; (iv) restoration and abandonment plans; (v) compensation; (vi) raw sewage.
2. The Decision Under Review
(i) Toxicity (public health)
[48] In its reasons for decision the Board addressed the toxicity issue. It noted that residents of Arctic Bay had expressed concerns about the levels of toxicity and the Board regretted that base line studies had not been done at an earlier time, presumably to enable it to evaluate how much present toxicity was the result of the natural rock composition in the area and how much was the result of the mine's activity:
| Chronic Toxicity Study |
| Toxicity testing is vital in understanding the effects of the mine on the environment and the health of the inhabitants of the region. The residents of Arctic Bay expressed serious concerns concerning the effects of contaminants on living organisms. The NWB believes that chronic toxicity testing must be done to determine possible contamination and potential impacts on aquatic resources at the mouth of Twin Lakes Creek. Requirements for chronic toxicity tests are normally imposed on applicants during the collection of baseline information before construction of a project or early during its operation. These tests should have been done at the time of the original licence application. This makes it important that such tests be carried out now, and the NWB has concluded that this type of data is necessary to assess the full effects of the mine on the environment, and particularly at the mouth of Twin Lakes Creek where it flows into Strathcona Sound. [Underlining added.] |
[49] The Board required, as a condition of the licence that NML, within six months of the issuance of the licence, submit terms of reference for chronic toxicity testing and an implementation schedule.
(ii) Tailings Dust
[50] The blowing of tailings appears to be a recent problem as a result of tailings being deposited on the surface rather than under water. Initially the mine placed its tailings into West Twin Lake and thus they were covered with water. In more recent years as the tailings pond becomes fuller, more tailings appear to be on the surface in what is referred to as the tailings deposit area. These tailings are covered with shale to prevent them blowing in the spring and fall, which is the time of year when blowing is most likely to occur.
[51] The Board addressed the issue of blowing tailings dust in its reasons as follows:
| The Board is of the opinion that all tailings produced by the mine must be deposited and contained in the disposal area. The licensee must take all necessary action and measures to ensure that tailings are not allowed to be dispersed, at any time, outside of the approved disposal area. |
| . . . . |
| Concerns were expressed at the public hearing regarding the continued problems associated with the depositing of tailing on land. The NWB believes that the licensee must investigate options for solving the problems of tailing becoming air borne. Furthermore, the licensee must document the extent of the amount and types of particulate matter that becomes air borne to determine the level and extent of environmental contamination. [Underlining added.] |
[52] One of the conditions the Board attached to the licence was that NML "deposit and contain all tailings in the West Twin Disposal Area". This is a mandatory obligation the breaching of which could presumably lead to the revocation of the licence. It was imposed on NML, despite the mine's objections and DIAND's advice that imposing defined standards and restrictions on NML might make the mine inoperable. The licence conditions also require that NML conduct studies relating to the containment of tailings:
| The Licensee shall submit to the Board for approval within eight (8) months of issuance of this licence a study proposal which investigates tailings stabilization techniques for the exposed tailings. The study shall include, but not be limited to, the following: |
| a. Physical stabilization; |
| b. Chemical stabilization; and |
| c. An implementation schedule. |
| 7. The Licensee shall submit to the Board for approval within six (6) months of the issuance of this licence an updated plan for the monitoring of on-land disposal of tailings. The plan shall include, but not be limited to, the following: |
| a. Establishment of a thermistor and frost gauge network within the above-surface deposition cell; |
| b. Leachate water quality analysis from the above-surface deposition cell; |
| c. Consultation with HTO and other appropriate agencies in developing the Terms of Reference for monitoring wind blown tailings. The Terms of Reference shall include, but not be limited to, the following: |
| i. Map indicating location of Hi-volume air samplers; |
| ii. Assessment of particle size distribution, chemical composition of particulate samples collected; and |
| iii. Ground photo documentation during snow cover of area between Arctic Bay and Strathcona Sound. |
| c. An implementation schedule. |
| (iii) Acid Rock Drainage |
[53] The Board addressed the question of acid rock drainage in its reasons:
| Acid Rock Drainage |
| The objective of static tests is to identify samples (rock, tailings, soils) that have the potential to generate net acidity. The test procedure, known as acid-base accounting (ABA), provides a value known as Net Neutralization Potential used to determine if a particular sample will theoretically generate acidity over time. Once samples have been identified, kinetic tests are used to subject the samples to chemical weathering under controlled laboratory conditions in order to confirm the potential to generate net acidity, to measure the rates of acid generation and sulfide oxidation, and to determine the leaching of heavy metals. |
| Kinetic tests must be performed over several months in order to provide reliable data. The information obtained is critical as it may show the acid generation is negligible or that it may be severe only for a relatively short period, which would suggest that long term treatment is unnecessary. On the other hand, if the results of the kinetic tests show that long term treatment is necessary, then the kinetic data can be used to address the severity and duration of acid drainage. These same test results can then be used to optimize treatment and control techniques before and after abandonment. |
| To ensure that appropriate actions are taken to control and treat potential ARD areas, the licensee is required to submit a plan which in turn will be implemented according to conditions set out by the NWB upon approval of the plan. |
| (iv) Restoration and Abandonment |
[54] The Board's decision reads:
| Abandonment and Restoration (A & R) |
| The current A & R plan on file with the Board is only an interim plan. Given that the proponent is likely to request only one more licence renewal before closure, the NWB would like to ensure that no complications are encountered and that all required data are available well before final abandonment. To accomplish these objectives, the NWB considers that additional detailed information from the licensee and progressive A & R is necessary. |
The conditions in the licence relating to abandonment and restoration are too extensive to set out in full. They read in part as follows:
| 1. The Licensee shall submit to the Board for approval within nine (9) months of issuance of this license a revised Interim Abandonment and Restoration Plan in accordance with the Northwest Territories Water Board's "Guidelines for Abandonment and Restoration Planning for Mines in the Northwest Territories, September 1990" which shall take into consideration all areas referred to in Part H, Item 2. |
| 2. The Licensee shall provide the following additional elements to address abandonment and restoration concerns: |
| a. Specific abandonment and restoration objectives for each mine component which shall include, but not be limited to, the following: |
| i. Open pits; |
| ii. All abandoned and active solid waste disposal sites; |
| iii. Underground workings; |
| iv. West Twin Disposal Area and associated piping facilities; |
| v. Waste rock storage areas; |
| vi. Water management structures (dams, diversion channels, intake, and delivery system); |
| vii. Dump Ponds; |
| . . . . |
| (v) Compensation |
[55] The Board's decision reads:
| Compensation |
| Article 13.8.1 of the NLCA states that: "The NWB, when considering a water licence [sic], may issue guidelines to the applicant for provision of information with respect to the following: (d) steps which the proponent proposes to take to compensate interests adversely affected by water use." |
| The NWB has the discretion to issue guidelines with respect to steps which a proponent proposes to take to compensate interests adversely affected by water use. There is no requirement that it be done, and the Board decided not to do so for the following reasons: the application was originally made to the NWT Water Board; and this was a licence renewal and because no significant change in water use was proposed, there was little reason to think that new compensations issues would be raised. |
| The Board exercised this discretionary power in a reasonable manner in light of the above reasons, and the fact that no one raised the issue of compensation until long after the hearing and deadline for written submissions had passed. [Underlining added.] |
| (vi) Raw Sewage |
[56] The Board's conclusion with respect to the dumping of raw sewage into Twin Lakes Creek was that this matter was not a concern that it should address in the licence renewal application:
| In its decision, the NWB also took into consideration the fact that some of Nanisivik's infrastructures, such as the sewage treatment plant, are the property and responsibility of the Government of the Northwest Territories, and are not part of this licence renewal. |
[57] As noted above, the Nanisivik mine project was commenced in 1976 pursuant to an agreements of a tripartite nature between NML and the Federal Government (including the Government of the Northwest Territories). One of the obligations under that agreement required NML to design and construct the townsite of Nanisivik and its services. Once built these were to be turned over to the Government of the Northwest Territories to operate. Pursuant to this agreement, NML completed the construction of the sewage treatment plant in July 1978. The plant was then turned over to the Commissioner of the Northwest Territories to operate.
[58] Prior to turning the sewage treatment plant over to the Commissioner, NML had held the water licence for the municipal use of water by the town, covering the town's water supply system and disposal through the sewage treatment plant. With the transfer of the sewage treatment facility, the Government of the Northwest Territories applied for the municipal water licence for the townsite. The application was approved by the Northwest Territories Water Board but for some reason no licence was ever issued. Thus from 1978 until the present, the town of Nanisivik has been operating without any municipal water licence. What is more, after operating the sewage treatment plant for a short time, the Government of the Northwest Territories decided to stop doing so and diverted all sewage directly into Twin Lakes Creek. In 1987 the Government of the Northwest Territories repaired and upgraded the plant but again, the next year, decided to by-pass the plant, discharging all sewage directly into the Creek.
[59] The evidence discloses that in 1991 the Northwest Territories Water Board raised the issue of the direct discharge of sewage into the Creek with the Government of the Northwest Territories. Environment Canada and the Department of Fisheries and Oceans raised the issue at the Nunavut Water Board hearing in September 24, 1996, in Arctic Bay. NML took the position that it was not responsible for the failure to operate the plant. It is willing to pay a share of the operating costs of the plant (in proportion to its usage) but it is not prepared to pay for the refurbishment of the existing plant. It states that it paid for the construction of the plant once, and it would be unjust to require it to pay again when it was the Government of the Northwest Territories that either chose not to operate the plant or neglected to do so. I note that the study prepared by Vista Engineering, that had been commissioned by the Department of Municipal and Community Affairs of the Government of the Northwest Territories and was sent to the Board, asserts that the original cause of the decision not to use the plant was inadequate construction for the ice and cold conditions that exist and that the preferred solution to the problem is refurbishment of the plant. In any event, insofar as NML is concerned, the sewage it generates is discharged into the municipal sewage system. It is then passed through the sewage treatment plant untreated by those responsible for the operation of that plant, as is all sewage from the townsite.
3. Applicant's Arguments and Analysis
[60] Counsel for the applicant argues that the Board declined to exercise its jurisdiction and ignored relevant evidence in that, first, with respect to the health concerns raised by the Inuit residents who attended the September 24, 1996 meeting, it did not take any initiative to investigate those concerns. While the Board required a toxicity study, this was very limited in nature and did not include any toxicity studies beyond the mouth of Twin Lakes Creek, toxicity testing with respect to land mammals, toxicity testing with respect to residents, or mammal harvesting studies. The Board did not seek any information that Health Canada might have regarding the health of the residents in the area. The Board did not use its powers under the Inquiries Act to investigate the situation. It is argued that the only evidence that was before the Board on the public health issue was that of the Inuit residents and therefore the Board's decision refusing to investigate further, except for minor toxicity testing, was a decision made without evidence to support it.
[61] Counsel argues that an inference arises, when relevant evidence is not mentioned in the reasons of a decision-making body that the evidence was ignored. It is argued that the evidence of the six Inuit residents and Dr. Scott falls into that category. The applicant argues that the Board ignored Dr. Scott's evidence concerning measures that should have been taken with respect to the tailings dust, acid rock drainage and abandonment and restoration. It also argues that the Board either declined to exercise its jurisdiction or abused that jurisdiction in refusing to consider either compensation guidelines or the discharge of raw sewage when reaching its decision.
[62] As is the case with procedural fairness, the test for determining whether a decision has met the tests required to comply with the requirements of non-procedural natural justice vary with the circumstances. Among the relevant circumstances are: whether the Board's decision is being challenged for error of law or for error relating to the facts; whether there are any relevant statutory standards imposed on the Board; whether there is a privative clause or a statutory right of appeal; the nature of the tribunal and its level of expertise. This approach was set out in Pezim v. British Columbia (Superintendent of Brokers), [1994] S.C.R. 557, and more recently articulated in Pushpanatham v. Canada (Minister of Citizenship and Immigration) (1998), 160 D.L.R. (4th) 193.
[63] In the Pushpanatham case it was explained that the pragmatic and functional approach to judicial review allows for the weighing of several different factors in order to decide where on a spectrum, from the lowest to the highest level of deference, the particular standard for the matter under review is found. Mr. Justice Bastarache discussed four relevant factors: 1) the nature of the problem and whether it is a question of law or a question of fact; 2) the purpose of the Act as a whole and whether the tribunal decides issues of a bipolar nature between opposing parties or issues of a polycentric nature involving a large number of interlocking and interacting interests and considerations; 3) whether a privative clause exists; 4) the degree of expertise required for the particular issue under consideration and the relative expertise of the tribunal and the Court with respect thereto.
[64] In the present case, the decision is not being challenged on the basis of an error of law, except to the extent that errors in evaluating evidence are sometimes characterized as errors of jurisdiction and therefore errors of law. There is no privative clause, nor is there a statutory right of appeal. There is, however, a statutory right of judicial review found in section 18.1 of the Federal Court Act. Subsection 18.1(4) of the Federal Court Act not only establishes a statutory right of judicial review it also describes the standard of review to be applied:
| 18.1(4) The Trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal |
| (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; |
| (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; |
| (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; |
| (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; |
| (e) acted, or failed to act, by reason of fraud or perjured evidence; or |
| (f) acted in any other way that was contrary to law. [Underlining added.] |
[65] The decision under review is not bipolar in the sense of deciding a matter between opposing parties. The Inuit residents have an interest in the mine remaining open. QIA makes it very clear that it is not interested in seeing the mine closed down but it wants the best decision possible to protect the present and future health of the residents and the environment within which they live, consistent with that constraint. The decision to be made then, requires the balancing of a number of interlocking factors and interests.
[66] Insofar as expertise is concerned, the Board members themselves in their letter of November 5, 1996, (see paragraph 23, supra) stated that they did not have sufficient expertise themselves to decide the issues but needed expert advice. It is not clear from the record exactly where that advice came from. Nevertheless, the decision is one that does require extensive expertise.
[67] Considering all the factors, the test to be applied in evaluating the evidence is one of considerable deference. I return to the words of subsection 18.1(4): was the Board's decision made "without regard for the material before it"?
[68] I agree with counsel for the applicant that setting out the names of all the witnesses that were heard and listing all the submissions made, does not demonstrate that the Board considered all the evidence. These are "boiler-plate" statements that in general tell a reviewing Court nothing. I also agree that the general statement by the Board that it considered all the evidence does not demonstrate that it did so. This again is a "boiler-plate" assertion. At the same time, a failure to specifically refer to evidence in a decision does not mean that the evidence was ignored by the Board. On judicial review one considers the text of the reasons given for the decision, when reasons have been given. One reads the decision that was rendered in the light of the record on which it is based to determine whether it can be concluded that significant evidence was ignored?
[69] In the case of toxicity and the public health concerns, the Board expressly referred in its reasons to the concerns raised by the residents of Arctic Bay. It expressed regret that base line studies had not been done at an earlier period of time. Also, the Board had before it DIAND's environmental screening report, which had been completed before the public hearing phase of the licence renewal application had been commenced. That report concluded that the mine's activities were "unlikely to cause significant adverse environmental effects." The Board required the mine to undertake chronic toxicity testing as a condition of its licence. I cannot conclude that the evidence to which counsel for the applicant refers was ignored or that the Board declined to exercise its jurisdiction when it did not undertake independent investigations. The Board's authority to exercise powers under the Inquiries Act is permissive, not mandatory. It could have instituted a more extensive inquiry but it chose not to pursue that course of action; this is a decision that was reasonably open to it. I cannot conclude that it ignored evidence.
[70] With respect to the tailings dust, again the Board referred to the concerns that had been expressed at the public hearing. It imposed on the mine the requirement that all tailings be "contained" in the disposal area. This requirement was imposed despite the objection of NML and DIAND's advice that imposing such clearly defined standards and restrictions on NML might make the mine inoperable. The Board also imposed the requirement that studies be undertaken to monitor the situation. Again, it is not possible to conclude that the evidence of the residents or Dr. Scott was ignored.
[71] With respect to acid rock drainage and the abandonment and restoration plans, conditions were placed in the licence relating to these. While the Board reached conclusions different from those the applicant would have liked, I cannot conclude that the Board ignored Dr. Scott's evidence or that of the Inuit witnesses. Counsel for NML is correct when he points out that Dr. Scott's evidence was, in any event, very sketchy and lacking in detail.
[72] With respect to the decision not to issue compensation guidelines and not to deal with the operation of the sewage treatment plant, I agree with counsel for the applicant that the fact that QIA did not address the first until April 1997, and the second until this application for judicial review, does not prevent QIA from raising those issues in the context of this application. The fact that QIA did not raise the concerns earlier is not an answer to its arguments now. Also all three government departments (Environment Canada, Department of Fisheries and Oceans and DIAND) raised the sewage issue at an early stage.
[73] The Board, however, did not decline to consider material relating to either the possibility of compensation guideline or the discharge of raw sewage. It addressed those matters and gave reasons for its decisions. It was reluctant to impose compensation guidelines on the licensee because the licence renewal was a continuation of a proceeding started under the Northwest Territories Water Board. It was unwilling to impose conditions respecting the operation of the sewage plant because the responsibility for such operation belonged with the Government of the Northwest Territories. While the applicant clearly considers these responses to be inadequate they demonstrate that the Board turned its mind to the issues, did not ignore the evidence, did not decline to exercise its jurisdiction. It considered the material before it, made decisions thereon and articulated reasons for those decisions.
C. Conclusion
[74] In all the circumstances I have no choice but to dismiss the applicant's request that the Board's decision be quashed.
Judge
OTTAWA, ONTARIO
October 9, 1998
__________________1 Nunavut Tunquvik Inc. is a successor to Tunquvik Incorporated, the corporation named in the Agreement .
2 Infra, para. 32. See especially the preamble to the Agreement.