Decision Date: April 26, 2007

Panel: Alan Andison

Keywords: Stay application; RJR-MacDonald

The Treaty 8 Tribal Association (the “Association”) appealed the inclusion of a section in an amended permit to allow CCS Inc. (“CCS”) to discharge refuse to the ground at its Silverberry secure landfill located near Fort St. John. The new section authorizes CCS to handle and dispose of naturally occurring radioactive materials (“NORM”). The Association filed its appeal on behalf of six First Nations and the members of those First Nations, who are also members of the Association. It also requested a stay of that section pending a decision on the merits of the appeal. The Association argued that, if the stay was not granted, it would suffer irreparable harm to aboriginal and treaty rights and to the ability of the member First Nations to effect meaningful consultation from the Province on the matter.

In determining whether a stay ought to be granted, the Board applied the three-part test set out in RJR-MacDonald Inc. v. Canada (Attorney General). With respect to the first element of the test, the Board found that the Association had raised serious issues to be tried, which were not frivolous, vexatious, or pure questions of law.

Regarding the second element of the test, the Board found that the evidence presented by the Association was insufficient to establish that irreparable harm to its members’ constitutionally-protected Treaty rights would occur if the application for a stay was denied. The Association provided no evidence regarding the location of the member First Nations’ communities in relation to the facility. Further, no evidence was adduced to support the claim that there was wildlife around the facility and/or the transportation route or that the presence of NORM would impact animals or people in the area. The Board also found that, as the required level of consultation and the adequacy of the consultation performed in relation to the amended permit is one of the issues to be decided in the appeal, it was inappropriate to make a determination about it in this preliminary application.

Turning to the third element of the test, the Board concluded that, while the Association would not suffer irreparable harm from the presence of NORM within its Treaty area or from the level of consultation that had occurred, a stay of the provision would have negative financial consequences for CCS and impact its business reputation. Therefore, the balance of convenience favoured denying a stay and, accordingly, the application was denied.