Decision Date: November 19, 1998

Panel: Toby Vigod

Keywords: Waste Management Act – s. 48; stay; drinking water contamination; RJR-MacDonald Inc. v. Canada; stay; precautionary principle; molybdenum

This was an application for a stay of an amendment made to Noranda Mining and Exploration Ltd.’s waste permit, authorizing the discharge of treated effluent from Brenda Mine, which closed in 1990, into a creek. The amendment was to address the long term collection, treatment, and release of molybdenum-bearing water from the mine site. The applicant argued that the concentrations of molybdenum authorized by the amendment are too high and will negatively impact Peachland’s domestic and irrigation water supply. Noranda and the Deputy Director argued that the molybdenum levels are safe for humans, animals and the environment, and that there is some urgency in allowing the discharge to begin as onsite storage is running out. They argued that a stay should not be granted.

The Board applied the usual three part test to determine whether to grant a stay. The Board noted that, while it is not bound by the findings and conclusions of the decision-makers below, a relatively high threshold must be met for a stay to be granted. It found that there were serious issues regarding safety to be decided in the appeal, but that the likelihood that the permitted levels of molybdenum would irreparably harm the health of adults drawing drinking water from the creek was minimal. The Board also found that irreparable harm to ruminants or the creek would be unlikely for the duration of a stay. Although it was unclear whether the permitted levels of molybdenum could harm infants, Noranda agreed to provide bottled water to residents with infants drinking formula mixed with water from the creek. On a balance of convenience, the Board found that a stay should not be granted. It concluded that the release of treated effluent according to the permit would result in a low risk of harm, if any, to humans and animals, while the harm that may result if the amendment is stayed could be much greater. The application for a stay was denied.