Details of NL Govt Appeal of Grieg Court Decision

CBC NEWS - Newfoundland

Judge's errors led to environmental assessment order of Grieg fish farm proposal, says N.L. government

Atlantic Salmon Federation says EIS order should stand and wants province and Grieg to pay its court costs

By Mark Quinn, CBC News Posted: Nov 16, 2017 8:01 AM NT

The Newfoundland and Labrador government says a judge failed to see that it was reasonable for the province's environment minister to release a massive Placentia Bay salmon farm proposal from further environmental assessment.

In court documents filed in St. John's, the province argues Supreme Court Justice Gillian Butler made errors that led her to order an environmental impact statement (EIS) for the project.

It's calling on the Newfoundland Court of Appeal to set aside Butler's decision and allow the minister's previous decision to stand.

The protracted fight over the aquaculture project, which aims to double the province's farmed salmon production, returns to court in December.

Court documents say former minister's decision was reasonable

CBC News has obtained the details of what the province, Grieg NL and the Atlantic Salmon Federation will argue in those court hearings.

The province and Grieg say Butler misinterpreted the environmental assessment regulations that they say allowed former environment minister Perry Trimper to release Grieg from carrying out an EIS.

They argue the minister's decision was reasonable because Fisheries and Oceans Canada and provincial regulations would prevent the project from causing environmental damage.

"The province submits the minister was entitled to consider and rely upon the mitigation of risk that would result from the regulation of the project by the federal and provincial governments," the document reads.

"That was a reasonable interpretation of the legislation." 

They also argue that the Butler failed to show deference to the minister's interpretation of the regulations.

"The judge stated the minister's interpretation of the legislation was entitled to deference and therefore, that interpretation would be reviewed on the standard of reasonableness. However, it does not appear she applied that standard."

ASF defends court decision

For its part, the Atlantic Salmon Federation is arguing Butler's decision was correct.

"The applications judge correctly concluded that the minister lacked jurisdiction to release the project, as the only possible conclusion he could reach was that the project had both significant public concerns and the potential for significant negative environmental effects requiring an EIS," says the federation's factum.

The ASF also says the province's interpretation of the regulation was unreasonable.

"The [Environmental Assessment] regulations constrain the minister's discretion and he is statutorily required to order an EIS," said the federation.

"The regulation clearly intends that when a project might cause significant, negative environmental affects, or causes significant, public concern, it requires an EIS regardless of whether those factors will be mitigated by a federal or provincial Act."

The ASF is calling on the Court of Appeal to dismiss the appeal to let Judge Butler's decision stand, and is also asking the court to order the province and Grieg NL to pay the ASF's court costs.

EIS launched ahead of appeal decision

Although Grieg is an intervenor in the appeal of Butler's decision, the company released a statement on Nov. 9 saying it is launching an EIS before the appeal is heard.

"As a prudent business step, Grieg NL is willing to commence an Environmental Impact Statement (EIS) for the Placentia Bay Aquaculture Project effective immediately," the company wrote.

But the court case still matters because if the appeal is successful, Grieg could drop the EIS and start the project right away.

"Grieg NL believes the completion of an EIS is unnecessary from an environmental perspective. Grieg NL looks forward to resuming work on the project if the appeal is successful." wrote the company.

ASF says appeal unnecessary

In a statement to CBC News Wednesday the Atlantic Salmon Federation said it doesn't believe the appeal should go ahead now that Grieg has started an EIS.

"By arguing that existing provincial and federal regulations will mitigate the environmental effects of the project, the Crown is chasing a disingenuous loophole that runs contrary to the intent of the Environmental Protection Act which is to 'facilitate the wise management of the natural resources of the province.' If the minister can simply release a project because a licensing regime exists, why have an Environmental Protection Act?" the statement read.

The federation is also criticizing Grieg NL's position on the EIS.

"That Grieg NL would begin the full environmental assessment, only to stop if they are not compelled to continue by a court ruling shows a lack of commitment to sustainability. An environmental assessment is the best tool the public has to understand and prevent damage to the ecosystem. Instead, the company seems to view this requirement as an unnecessary burden," said the ASF.​

What's at stake

Grieg NL wants to produce 33,000 tonnes of salmon annually at 11 sea cage sites around Placentia Bay. The project also includes a $75-million land-based hatchery/nursery in Marystown that would raise fish to stock the sea cages.

Grieg expects the project to create more than 300 direct jobs.

When the Conservatives were still in power they promised to buy a $45-million-dollar equity stake in Grieg's quarter of a billion dollar project.

The current Liberal provincial government hasn't followed through on that promise. It said it's still considering whether it will make that investment or not.

A coalition of groups that wants stricter regulation of the aquaculture industry said it would be a conflict of interest for the province to own part of the industry and regulate it.

Chronology of the court battle

Feb. 19, 2016 Grieg Nursuries Ltd. and Grieg NL Seafarms Ltd.  Placentia Bay Atlantic Salmon aquaculture project registered by the provincial Department of Environment and Conservation.

July 2016 Then-environment minister Perry Trimper released Grieg's proposal from having to carry out further environmental assessment through an Environment Impact Statement.

August 2016 Lawyer Owen Myers and the Atlantic Salmon Federation  challenged the minister's decision in court.

July 2017 Supreme Court Judge Butler ruled that it was not reasonable for the minister to release Grieg from further environmental assessment and ordered an EIS.

August 2017 The province announced it will appeal the Supreme Court decision.

Dec. 14-15 Newfoundland and Labrador Court of Appeal scheduled to hear the appeal.