Decision Date: January 27, 2022

Panel: Linda Michaluk

Keywords: Environmental Management Act – s. 16; Administrative Tribunals Act – ss. 11, 25; stay application; permit amendment; effluent; monitoring; reconsideration; admissibility of evidence

Gibraltar Mines Ltd. (“GML”) operates a copper and molybdenum mine, the Gibraltar Mine (the “Mine”), near Williams Lake, British Columbia. GML holds a permit under the Environmental Management Act (the “Act”), which authorizes GML to discharge Mine and mill effluent to the ground, saddle dam seepage and runoff to Arbuthnot Creek, and tailings impoundment supernatant to the Fraser River, subject to numerous conditions.

GML applied for an amendment of its permit. GML wanted to remove water from one previously mined pit (Gibraltar East Pit) and transfer the water to another previously mined pit (Granite Pit), so GML could further mine the Gibraltar East Pit. The amendment application sought to add a section to the permit to allow the discharge of effluent from Gibraltar Pit East to Granite Pit.

In May 2021, the Director, Environmental Management Act (the “Director”), amended the permit. The amendments allowed the effluent transfer that GML had requested, but also included several amendments that GML did not request and that GML claimed adversely affected its interests (the “Unsolicited Amendments”).

GML appealed the amendment decision. One of the remedies GML requested was a temporary stay of the Unsolicited Amendments, pending the Board’s final decision on the merits of the appeal.

After considering the parties’ written submissions, the Board denied the stay application (Decision No. EAB-EMA-21-A006(a), December 13, 2021). In making that decision, the Board refused to consider evidence in a second affidavit (Affidavit #2) included in GML’s final reply submissions. The Board’s Practice and Procedure Manual (the “Manual”) provided that no new evidence should be included in an appellant’s reply submission. Given that the Director’s submissions did not raise any unexpected issues, and that the Director had no opportunity to respond to Affidavit #2, the Board found that the new evidence was inadmissible.

GML then requested that the Board revisit its decision not to admit Affidavit #2, and reconsider its decision denying the stay application.

The Board noted that its Rule 16 states that an application for a stay must be made in writing, and the application must include any evidence that the applicant is relying on. GML’s stay application stated that it was relying on one affidavit. Contrary to Rule 16 and GML’s own application, GML tried to submit further evidence in a second affidavit, Affidavit #2, in its final reply submission. The Board held that if GML wanted to submit additional evidence, GML should have applied for permission and explained why the Board should waive Rule 16. GML failed to do so.

The Board also considered section 11(3) of the Administrative Tribunals Act, which states that the Board may waive or modify its rules “in exceptional circumstances.” The Board found that GML did not claim, during the hearing of the stay application or the request for reconsideration, that there were exceptional circumstances justifying an exception to Rule 16.

The Board concluded that it was consistent with Rule 16, the Manual, and the principles of procedural fairness to refuse to admit Affidavit #2. Given that there was no change in the admissible evidence on which the stay application was decided, there was no need to reconsider the decision denying the stay application.

Accordingly, the Board denied GML’s request to reconsider the decision denying the stay application.