A-408-89
Cominco Ltd. (Appellant)
v.
Northwest Territories Water Board (Respondent)
INDEXED AS: COMINCO. LTD. v. NORTHWEST TERRITORIES
WATER BOARD (C.A.)
Court of Appeal, Pratte, Hugessen and Desjardins
JJ.A.—Yellowknife, March 12; Ottawa, April 22,
1991.
Environment — Appeal from dismissal of application to
amend conditions of licence, issued under Northern Inland
Waters Act, allowing use of water in operation of zinc and lead
mine — Appellant arguing Board lacking jurisdiction either to
impose limits on quantity or types of waste in effluent where
no standards prescribed by regulation or to impose stricter
restrictions than in Regulations — Arguments irrelevant as not
directed against decision attacked — Failure to prescribe
standards under s. 29(e) not limiting Board's power to impose
conditions — Restrictions in regulations of general application
may be inadequate to preserve water resources in particular
areas — S. 12(3) merely requiring licence conditions not
contravene restrictions in regulations.
Construction of statutes — Northern Inland Waters Act, s.
12(1) and (3) — S. 12(1) empowering Board to impose licence
conditions based on water quality standards prescribed by
regulation — Literal interpretation leading to absurd result of
preventing Board from attaining objects if regulations pre
scribing water quality standards not made — Interpretation
consistent with Board's objects leaving power to impose condi
tions intact where standards not prescribed — Prohibiting
Board from imposing stricter restrictions than those in Regu
lations would result in Board refusing licence to prevent
pollution — S. 12(3), requiring licence conditions not "vary"
from Regulations, meaning may not contravene.
This was an appeal from the Northwest Territories Water
Board's dismissal of an application to increase the percentages
of zinc and lead in effluent from the appellant's mine permitted
under licence conditions imposed under the Northern Inland
Waters Act. The appellant argued that the Board lacked juris
diction even to impose such conditions. Subsection 12(1) of the
Act permits the Board to impose licence conditions based on
water quality standards prescribed by regulation. The appellant
argued that licence conditions relating to the quantity and types
of waste imposed under subsection 12(1) must be based on
prescribed water quality standards and, since no regulations
prescribing such standards had been enacted, the Board had
exceeded its jurisdiction. Under subsection 12(3), the condi
tions attached to a licence relating to the quantity and types of
waste that may be deposited must not "vary from" the restric
tions relating to the deposit of deleterious substances prescribed
by the Metal Mining Liquid Effluent Regulations (made for
the purposes of subsection 36(4) of the Fisheries Act). The
maximum concentration of lead and zinc permitted to be
deposited thereunder exceeded both the concentration of those
metals that were authorized by the appellant's licence and the
requested amendment thereto. The appellant argued that the
Board should have raised the maximum concentration of metals
to that authorized by the Regulations.
Held, the appeal should be dismissed.
The appellant's arguments were not relevant to the appeal.
They were not directed against the decision under attack, but
tended to show the invalidity of the conditions in the appellant's
licence. Furthermore, they had not been not submitted to the
Board: the application had assumed that the Board had
jurisdiction.
Even if appellant's submissions were considered to be rele
vant, they should be rejected. The only limitation imposed on
the general power under subsection 12(1) to impose conditions
that the Board considered appropriate is that, if water quality
standards are prescribed, the conditions imposed must be based
on those standards. If, as in this case, no standards have been
prescribed, the power of the Board to impose appropriate
conditions remains intact. Otherwise, a failure to make regula
tions prescribing water quality standards would lead to the
absurd result of preventing the Board from attaining its objects.
As "to vary from" means "to differ from", a literal interpre
tation of subsection 12(3) would require that there be no
difference between the conditions of a licence and the restric
tions found in the regulations under the Fisheries Act. Such an
interpretation is difficult to reconcile with the objects of the
Board. The regulations are rules of general application. Condi
tions of a licence apply to a particular undertaking in a
particular location and are attached to the grant of a privilege.
The restrictions found in regulations of general application may
be insufficient to preserve water resources in the areas con
cerned. It would be incongruous to prohibit the Board from
imposing stricter restrictions than those provided for in the
regulations. To prevent water pollution, the Board would be
bound to refuse to grant a licence when the same result could
be achieved by imposing appropriate conditions. A literal inter
pretation would lead to absurd results. Subsection 12(3) merely
requires that the conditions of the licence should not contravene
the restrictions found in the regulations.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Water Act, R.S.C., 1985, c. C-11.
Fisheries Act, R.S.C., 1985, c. F-14, s. 36.
Metal Mining Liquid Effluent Regulations, C.R.C., c.
819.
Northern Inland Waters Act, R.S.C., 1985, c. N-25, ss.
10, 11, 12, 24 (as am. by S.C. 1990, c. 8, s. 58), 29(e).
CASES JUDICIALLY CONSIDERED
APPLIED:
CRTC v. CTV Television Network Ltd. et al., [1982] 1
S.C.R. 530; (1982), 134 D.L.R. (3d) 193; 41 N.R. 271.
COUNSEL:
Marvin R. V. Storrow, Q.C. and Joanne R.
Lysyk for appellant.
Richard J. Peach for respondent Northwest
Territories Water Board.
Paul F. Partridge for Attorney General of
Canada.
SOLICITORS:
Blake, Cassels, Graydon, Vancouver, for
appellant.
Cooper, Hardy & Regel, Yellowknife,
N.W.T., for respondent Northwest Territories
Water Board.
Deputy Attorney General of Canada for
Attorney General of Canada.
The following are the reasons for judgment
rendered in English by
PRATTE J.A.: This is an appeal, pursuant to
section 24 of the Northern Inland Waters Act
("the Act") [R.S.C., 1985, c. N-25 (as am. by
S.C. 1990, c. 8, s. 58)], from a decision of the
respondent, the Northwest Territories Water
Board.
The appellant operates a zinc and lead mine,
known as the Polaris Mine, on Little Cornwallis
Island, in the Northwest Territories. Since 1981, it
holds a licence issued under section 11 of the Act
authorizing it to use a certain quantity of water in
the operation of its undertaking. That licence is
subject to the conditions that the wastes produced
by the milling process of the mine must be dis
charged into a body of water known as Garrow
Lake and, also, that the wastes discharged from
Garrow Lake into the Arctic Ocean must not
contain more than certain specified percentages of
lead and zinc.
In June 1988, the appellant applied to the Board
for an order amending the conditions of its licence
so as to increase the percentages of zinc and lead
that could be contained in the effluent from
Garrow Lake. The Board held a hearing in connec
tion with that application and, ultimately, dis
missed it. The appeal is directed against that
decision.
The main contention of the appellant is that the
Board erred in law in deciding as it did because
the conditions of the licence limiting the concen
tration of zinc and lead in the effluent from
Garrow Lake was illegal and exceeded the juris
diction of the Board. In order to understand that
contention, it is necessary to have in mind the
wording of section 12 of the Act:
12. (1) Subject to subsections (2) and (3), a board may
attach to any licence issued by it any conditions that it consid
ers appropriate, including conditions relating to the manner of
use of waters authorized to be used under the licence and
conditions based on water quality standards prescribed pursu
ant to paragraph 29(e) relating to the quantity and types of
waste that may be deposited in any waters by the licensee and
the conditions under which any such waste may be so deposited.
(2) Where a board issues a licence in respect of any waters
that form part of a water quality management area designated
pursuant to the Canada Water Act, it may not include in the
licence conditions relating to the quantity and types of waste
that may be deposited in any such waters or under which any
such waste may be so deposited, that vary from any restrictions
relating to the deposit of waste prescribed with respect to those
waters by the Governor in Council pursuant to the Canada
Water Act.
(3) Where a board issues a licence in respect of any waters,
other than those referred to in subsection (2), to which any
regulations made by the Governor in Council for the purposes
of subsection 36(4) of the Fisheries Act are applicable, it may
not include in the licence conditions relating to the quantity and
types of waste that may be deposited in any such waters or
under which any such waste may be so deposited, that vary
from any restrictions relating to the deposit of deleterious
substances prescribed with respect to those waters by those
regulations.
(4) Where a licence has been issued in relation to waters with
respect to which no restrictions relating to the deposit of waste
or deleterious substances and described in subsection (2) or (3)
are applicable, and the licence contains conditions relating to
the quantity and types of waste that may be deposited in any
such waters or under which any such waste may be so deposit
ed, the subsequent prescription of any such restrictions is
deemed, on that prescription, to amend the conditions to con
form to those restrictions.
The appellant puts forward two arguments on
the basis of that section. First, it says that if
subsection 12(1) empowers the Board to attach to
a licence "conditions ... relating to the quantity
and types of waste that may be deposited in any
waters by the licensee" those conditions must
necessarily be based on water quality standards
prescribed pursuant to paragraph 29(e);' as it is
common ground that no such standards were ever
prescribed, it follows, according to the appellant,
that the Board had no jurisdiction to impose limits
on the quantity or types of waste that can be
contained in the waters flowing from Garrow
Lake.
The appellant's second argument is based on
subsection 12(3). Under that provision, when a
regulation made for the purposes of subsection
36(4) of the Fisheries Act [R.S.C., 1985, c. F-14] 2
applies to waters in respect of which the Board
grants a licence, the conditions of the licence
relating to the quantity and type of waste that may
be deposited in those waters must not differ from
the restrictions relating to the deposit of deleteri
ous substances prescribed by that regulation. It is
common ground that the Metal Mining Liquid
S. 29(e) reads:
29. The Governor in Council may make regulations
(e) prescribing water quality standards for water manage
ment areas that are not, or are not included in whole or in
part within, a water quality management area designated
pursuant to the Canada Water Act;
2 Ss. 36(3) and (4) of the Fisheries Act read in part as
follows:
36....
(3) Subject to subsection (4), no person shall deposit or
permit the deposit of a deleterious substance of any type in
water frequented by fish ...
(4) No person contravenes subsection (3) by depositing or
permitting the deposit in any water or place of
(b) a deleterious substance of a class, in a quantity or
concentration and under conditions authorized by or pur
suant to regulations ... made by the Governor in Council
under subsection (5).
It is interesting to observe that, contrary to what s. 12(3) of the
Northern Inland Waters Act seems to assume, regulations
made for the purposes of s. 36(4) of the Fisheries Act do not
actually impose restrictions on the right to deposit deleterious
substances in waters; they, on the contrary, authorize the
deposit of specified quantities of certain wastes in certain
waters.
Effluent Regulations' were made for the purposes
of subsection 36(4) of the Fisheries Act and apply
to the waters here in question; it is also common
ground that the maximum concentration of lead
and zinc that may be deposited in those waters
under those Regulations far exceeds not only the
concentration of those metals that are authorized
by the appellant's licence but also the concentra
tion that the licence would have authorized if it
had been amended in accordance with the appel
lant's request. It follows, says the appellant, that
the Board should have amended its licence by
raising the maximum concentration of lead and
zinc that it authorized to the levels authorized by
the Metal Mining Liquid Effluent Regulations.
It should first be observed that these two argu
ments were never submitted to the Board. On the
contrary, the appellant's application to the Board
assumed that the Board had jurisdiction to include
in the appellant's licence conditions relating to the
quantity of lead and zinc that the appellant was
authorized to deposit in the waters in question
even though these conditions were more severe
than those prescribed by the Metal Mining Liquid
Effluent Regulations and even though no water
quality standards had been prescribed pursuant to
paragraph 29(e). In effect, those two arguments
are not really directed against the decision under
attack but, rather, tend to show the invalidity of
the conditions contained in the appellant's licence.
For that reason alone, I consider that those argu
ments are not relevant to this appeal. How could
the Board be blamed for not having considered a
question that was never submitted to it and for
having rejected a motion which, according to the
appellant's present position, it had no power to
grant?
I must add that if, contrary to what I think,
these two arguments were really relevant to the
validity of the decision under attack, I would reject
them.
Under subsection 12(1) of the Act, "a board
may attach to any licence issued by it any condi
tions that it considers appropriate". In my opinion,
the only limitation that is imposed on that general
power by the words used in the rest of the subsec
tion is that, if and when water quality standards
3 C.R.C., c. 819.
are prescribed pursuant to paragraph 29(e), the
conditions that the Board imposes in relation to
the types and quantity of waste that may be
deposited in water must be based on those stand
ards. If, as in this case, no such standards have
been prescribed, the power of the Board to impose
appropriate conditions remains intact. To adopt
another interpretation of subsection 12(1) would
lead to the absurd result that the failure of the
Governor in Council to make regulations prescrib
ing water quality standards would prevent the
Yukon Territory Water Board and the Northwest
Territories Water Board from attaining their
objects as described in section 10 of the Act. 4
The appellant's second argument is based on
subsection 12(3) that prohibits the Board from
imposing any conditions relating to the quantity
and types of waste that may be deposited in any
waters that vary from any restrictions relating to
the deposit of deleterious substances prescribed in
regulations made for the purposes of subsection
36(4) of the Fisheries Act. As the expression "to
vary from" means "to differ from", that section, if
interpreted literally, would clearly require that
there be no difference between the conditions of a
licence and the restrictions found in the regula
tions made under the Fisheries Act. But it would
be difficult to reconcile that interpretation with
the objects of the Board described in section 10.
The regulations made under the Fisheries Act, as
well as those made under the Canada Water Act
[R.S.C., 1985, c. C-11] (to which subsection 12(2)
makes reference), are rules of general application
that set the maximum quantity of waste or
deleterious substances that may, in any circum
stances, be deposited in any waters. Conditions of
a licence, on the other hand, apply to a particular
undertaking that operates in a particular location;
they are, moreover, conditions to the grant of a
privilege. The restrictions found in the regulations
of general application may, in particular cases, be
insufficient to preserve the water resources in the
areas concerned. It would be incongruous that, in
4 S. 10 reads thus:
10. The objects of the boards are to provide for the
conservation, development and utilization of the water
resources of the Yukon Territory and the Northwest Territo
ries in a manner that will provide the optimum benefit
therefrom for all Canadians and for the residents of the
Yukon Territory and the Northwest Territories in particular.
such cases, the Board be prohibited from imposing
stricter restrictions than those provided for in the
regulations. This would mean that, in those cases,
the Board would, in effect, in order to prevent
water pollution, be bound to refuse to grant a
licence even though the pollution could be prevent
ed by simply imposing appropriate conditions on
the licensee. The literal interpretation proposed by
the appellant leads, once again, to absurd results.
For that reason, I am of opinion that subsection
12(3) should be interpreted as merely requiring
that the conditions of the licence should not con
travene the restrictions found in the regulations
adopted for the purposes of subsection 36(4) of the
Fisheries Act.'
Another ground of appeal raised by the appel
lant was that the hearing held by the Board "was
conducted ... in the most informal way, without
testimony under oath, and in a manner that could
only be described as `non-judicious'." Suffice it to
say, with respect to that contention, that a careful
reading of the transcript reveals that the Chair
man of the Board conducted the proceedings in a
manner which, though informal, was intelligent
and fair for all parties concerned.
The last point raised by the appellant is that the
Board denied it a fair hearing, first, by failing to
inform it of the case it had to meet and, second, by
receiving recommendations from its Technical
Advisory Committee without giving the' appellant
a chance to answer or comment on those
recommendations.
5 Counsel for the respondent argued, in support of that
conclusion, that the objects and purposes of the Northern
Inland Waters Act (the conservation, development and utiliza
tion of water resources in a manner that will provide the
optimum benefit for all Canadians), being more important than
those of the Fisheries Act (the conservation of fish), it logically
followed that a board under the Northern Inland Waters Act
should have the discretion to attach to a licence conditions
more severe than the restrictions imposed by regulations adopt
ed under the Fisheries Act. This argument loses all its force, in
my view, once it is realized that the terms of s. 12(3) are
identical to those of s. 12(2) except that the latter subsection
refers to regulations made under the Canada Water Act the
purposes of which are certainly as broad and important as those
of the Northern Inland Waters Act.
I do not see any merit in these submissions. The
appellant was seeking an amendment to the condi
tions of its licence relating to the quantity of water
deposits. It knew what were the Board's objects
and authority and, as stated by Laskin C.J. in
CRTC v. CTV Television Network Ltd. et al., 6
"An applicant seeking a statutory privilege has no
right to know in advance of a probable decision
unless the statute commands it or the administer
ing tribunal wishes to disclose it." Moreover, the
Board denied the appellant's application because it
was of the view that the appellant could "maintain
compliance within the existing licence conditions
by the construction of a control structure at the
Garrow Lake outlet"; a reading of the transcript
shows that the possibility of building such a struc
ture was openly discussed at the hearing. It, there
fore, cannot be said that the applicant did not
know the case it had to meet.
As to the recommendations and advice that the
Board received from its technical advisors, the
appellant's contention is that it should have had an
opportunity to comment on them because the
Chairman of the Board, at the hearing, gave the
assurance that all participants would have that
opportunity. The answer to that submission is
simply that no such assurance was given. Indeed,
when the transcript of the hearing is read in its
entirety, it appears clearly that the undertaking
given by the Chairman of the Board was only that
the Board would, before forwarding to the Minis
ter a recommendation to amend the appellant's
licence, give all parties concerned an opportunity
to comment on the recommendations of the Tech
nical Advisory Committee. As the Board ultimate
ly decided not to recommend that the appellant's
licence be amended, they never had the occasion to
carry out the Chairman's undertaking.
I would dismiss the appeal.
HUGESSEN J.A.: I agree.
DESJARDINS J.A.: I agree.
6 [1982] 1 S.C.R. 530, at p. 546.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.