Publications

A new environmental authorization scheme, which is intended to be a simplified version, was implemented under the Environmental Quality Act (“EQA”) and has been in effect since March 23, 2018. How does this new scheme affect mining companies? Is the authorization scheme truly simplified? What about the right to continue unauthorized operations that could benefit certain mining companies (also called an acquired right)? Under the new EQA authorization scheme, mining activities will be subject to different schemes depending on the risk they present. While the majority of activities are subject to ministerial authorization1, others may: benefit from exemptions be subject to the new scheme of declaring compliance be subject to the environmental impact assessment and review procedure if they present an elevated risk. The implementation of the EQA’s new environmental authorization scheme involves a review of the regulations adopted pursuant to this act. This bulletin refers to the Draft Regulation on Ministerial Authorization and the Statement of Compliance in Environmental Matters (“Draft Regulation”). This Draft Regulation has been published, but it is not currently in its final form and may be modified before it comes into force.2 Consequently, a regulatory watch is required.3 What authorizations are mining companies subject to? Depending on the nature of the activity, the applicable scheme ranges from exemption to environmental impact assessment and review procedure. 4 The general environmental authorization scheme Subject mining activities Article 22 of the EQA lists several activities whose implementation requires prior authorization from the Minister.  Mining activities are not part of this list. However, the 10th item of the list is “any other activity determined by government regulation.” At present, the Draft Regulation states that “any mining activity shall be subject to authorization.”5  This leaves little room for interpretation. Thus, with the exception of the specific cases currently provided for in the Draft Regulation, any mining activity requires an authorization from the Minister. Content of the authorization request It should be noted that in addition to the documents listed in the EQA, an authorization request for mining activity may have to be accompanied by the additional information and documents listed in the Draft Regulation.6 In addition, from now on, any documents submitted in support of an authorization request are considered as being public. It is up to the person submitting the request to specify whether certain documents include a confidential industrial or commercial secret. The decision as to the public nature rests with the Minister who notifies the applicant for authorization. This decision is legally binding upon the expiration of a period of 15 days following the transmission of the notice. Once this period has elapsed, the documents are made public, hence the importance of calling on the courts quickly if it is necessary to contest the Minister’s decision.7 Right to pursue an activity without environmental authorization In its former version, the general environmental authorization scheme in Article 22 of the EQA prohibited “undertaking the operation of any industry, the performance of an activity or use of an industrial process [...]” without having obtained a prior certificate of authorization. Because of the word “undertaking,” the case law recognized the possibility of pursuing an activity without authorization when it had been undertaken before the entry into force of the EQA on December 21, 1972. In its new version, Article 22 of the EQA no longer speaks of the need to obtain an authorization to undertake but rather to carry out an activity. This demonstrates the legislator’s willingness to no longer allow an activity to continue without environmental authorization. However, certain transitional provisions specifically provide that an activity may be pursued without authorization, providing that it must then rely on the wording of the government regulation on the issue to make sure8. At present, the text of the Draft Regulation does not support the conclusion that mining companies could benefit from a right to pursue an activity without authorization. Exemption scheme Certain mining activities considered to be of little risk to the environment are completely excluded from the obligation to obtain prior environmental authorization. The Draft Regulation currently provides that the following are exempt: milestone marking, geophysical, geological, or geochemical surveys, drilling work (unless performed in wetlands and water environments9) stripping and excavation work under certain conditions (unless they are carried out in wetlands and water environments or within 30 meters of such environments). The statement of compliance scheme The statement of compliance scheme allows for proceeding by transmitting to the Minister all of the documents required by the EQA and the applicable regulatory provisions by stating compliance to them.  In this case, if thirty days after the transmission of the documents, no follow-up has been made with the Declarant, he or she may begin the activity concerned. The Draft Regulation provides that drilling work carried out in the wetlands and water environments as a part of a project searching for mineral substances would be, under certain conditions, eligible for the statement of compliance.10 It should be noted that special provisions may be applied depending on the environment in which the work is carried out. Certain conditions are specific to work carried out in a pond, marsh, swamp or peatland10, and others are specific to work carried out on a lake or shore or in a lake or river12. The compliance statement scheme requires the production of extensive and professionally signed studies. If the processing time is shortened, the declarant’s task remains complicated. The environmental impact assessment and review procedure scheme Certain mining activities are subject to the environmental impact assessment and review procedure pursuant to the Regulation on the assessment and review of the environmental impact of certain projects13currently in force.  The purpose of this bulletin is not to discuss the procedure followed under this more complicated scheme that involves the intervention of the Bureau d’audiences publiques sur l’environnement [Bureau of Public Hearings on the Environment] (“BAPE”).14 The following mining activities are subject to this review procedure: The establishment of a uranium or rare earth mine; The establishment of a mine with a maximum daily metal-bearing ore mining capacity of 2000 metric tons or more; The establishment of a mine with a maximum daily ore (other than metal-bearing) mining capacity of 500 metric tons or more; Any increase in the daily maximum mining capacity of a mine thus making it reach or exceed the thresholds identified above;15 The establishment of a mine within an urban area identified in the construction and development plan of a RCM or in an Indian reservation or within 1000 meters of such an area or reservation; Any expansion of 50% or more of the operating area of a mine in certain specific cases identified in the regulation; After the BAPE’s work, the Minister makes a recommendation to the government as to the authorization requested.  Ultimately, it is the government that decides whether or not to issue the authorization. 16 Changes to the environmental authorization scheme are major. Mining companies have every interest in taking a closer look at it and monitoring the entry into force of the regulations that allow the implementation of this scheme in order to continue their operations in Québec legally.   Article 22 EQA.    The Minister of Sustainable Development, the Environment, and the Fight against Climate Change, Ms. Isabelle Melançon, mandated Ms. Suzanne Giguère and Mr. Jean Pronovost to give their opinion on the regulatory approach adopted by the Ministry. Here is the link to the SDEFCC press release: http://www.mddelcc.gouv.qc.ca/Infuseur/communique.asp?no=3996 On July 19, a press release was issued by the SDEFCC announcing the intention of the Minister, Isabelle Melançon, to postpone the coming into force of the draft regulations considering the findings of Suzanne Giguère and Jean Pronovost. Here is a link to the SDEFCC press release: http://www.mddelcc.gouv.qc.ca/infuseur/communique.asp?no=4049 It should be noted that at the time of writing, most of the government regulations implementing the new environmental authorization scheme have been the subject of proposals published in the Official Gazette of Québec. These regulations, however, are not yet known in their final versions. The Draft Regulation on Ministerial Authorization and the Statement of Compliance in Environmental Matters, Appendix 1 (other activities subject to prior authorization), Section 2, Article 4. Draft Regulation on Ministerial Authorization and the Statement of Compliance in Environmental Matters, Article 38. The Regulation on certain transitional measures for the application of the Act to amend the Environment Quality Act to modernize the environmental authorization scheme and to amend other legislative provisions, in particular to reform the governance of the Green Fund currently provides, in a transitional manner, the documents that must be attached to a request for authorization. It should be noted that activities already in progress on March 23, 2018 and for which no environmental authorization was required pursuant to the EQA and that would now be subject to environmental authorization according to Article 22 of the EQA, could be continued without further formalities subject to any special provisions that may be provided for by a government regulation (Art. 290 of the Act to amend the Environment Quality Act to modernize the environmental authorization scheme and to amend other legislative provisions, in particular to reform the governance of the Green Fund (Bill 102, 2017, Chapter 4). It should be noted that the EQA includes a broad definition of wetlands and water environments. These environments include lakes, rivers, shorelines and flood plains of lakes and rivers, ponds, marshes, swamps and peatlands (Article 46.0.2 EQA). The Draft Regulation on Ministerial Authorization and the Statement of Compliance in Environmental Matters, Appendix 2 (activities subject to a statement of compliance), Section 8, Article 19 et seq. Draft Regulation on Ministerial Authorization and the Statement of Compliance in Environmental Matters, Appendix 2, Section 8, Article 21 Draft Regulation on Ministerial Authorization and the Statement of Compliance in Environmental Matters, Appendix 2, Section 8, Article 22 Decree 287-2018, March 21, 2018 Articles 31.1 et seq. EQA It should be noted that this does not apply to a mine existing as of March 23, 2018. Other standards apply to these mines for which any plan to increase the daily mining capacity by 50% or more is subject to the impact review procedure if this increase exceeds the applicable mining thresholds depending on the nature of the mined material. Article 31.5 EQA  

What is a mine’s equipment? What does it include? What is considered an access road to a mining operation? These are, you might think, simple, perhaps even banal questions.  Think again: the answer to these questions represents the difference between millions of dollars in property taxes pouring into the coffers of municipalities and mining companies across Québec holding on to them. The Administrative Tribunal of Québec (Immovable Property Division) (hereinafter “TAQ”) was confronted by these questions as part of an appeal lodged by Bloom Lake General Partner Limited against the City of Fermont1. The underlying principle is simple: municipal taxation is essentially applied as a function of the values entered on the property assessment roll. It is the responsibility of the assessor2 to determine the composition of each assessment unit, what immovables are to be entered on the property assessment role and what their value is. The law3 provides that certain immovables are not to be entered on the role.  Accordingly, their value has no impact on the taxes that can be collected by municipalities. Among the immovables excluded from the role:  “galleries, shafts, excavations, tunnels the equipment of underground or open mines”4 “an access road to forest or mining operations”5. Hence the importance of the questions asked above. With respect to a mine’s equipment, Bloom Lake argued that the equipment of a mine should be taken to refer to all the steps in the operation of a mine, from the extraction of the ore to its marketing and including its processing. Instead, the TAQ adopted a more limited interpretation of the concept of mine equipment that included only the equipment used to extract the ore. As for the concept of an access road to a mining operation, Bloom Lake claimed that it included all the roads located within the mining operation, i.e. all the roads used by vehicles in the mining operation.  Again here, the claim was not accepted by the TAQ, which instead circumscribed this concept to the road linking the public road to the entry gate of the mining operation. If the TAQ had accepted the Bloom Lake interpretation, it could have had a serious financial impact for mining companies, which would have had a large part of their immovables that are included in their mining operation excluded from the assessment role.6   2018 QCTAQ 04461 Also called Municipal Body Responsible for Assessment” or “MBRA”, sections 19 ff. of the Act respecting municipal taxation. Act respecting municipal taxation (AMT), ss. 63 to 68. In this case, the relevant paragraphs are 65 para 1 (4) and 65 para 1 (8). Section 65 para 1 (4) AMT. Section 65 para1 (8) AMT. It should however be noted that at the time of this writing, the time period for appealing the TAQ decision had not yet expired.      

The Supreme Court of Canada recently rendered a divided decision in which it concluded that an employer’s policy imposing mandatory random alcohol testing was not justified.1 This decision is of interest to employers in Quebec since it confirms arbitral case law on the subject.BackgroundIn 2006, Irving Pulp & Paper, Ltd. (“Irving” or the “employer”) unilaterally adopted a policy on the consumption of alcohol and other drugs (the “policy”). One aspect of this policy provided that over the course of a year, ten percent (10%) of employees occupying safety-sensitive positions were to be selected at random to undergo unannounced breathalyser tests. A positive test (i.e., blood alcohol concentration greater than 0.04%) would lead to severe disciplinary action, possibly including dismissal. Moreover, refusal to submit to the test would result in immediate dismissal.The policy also provided for mandatory testing 1) if there was reasonable cause to suspect that an employee was consuming alcohol or drugs in the workplace, 2) following a workplace accident or incident in which an employee was directly involved, and 3) as part of a monitoring program for employees returning to work after voluntary treatment for substance abuse.The grievance sought to challenge only the random alcohol testing aspect of the policy as it pertained to employees occupying safety-sensitive positions.The decisions rendered by the courts belowIn first instance, the arbitration board of New Brunswick (the “Board”), weighed the employer's interest in implementing random alcohol testing as a workplace safety measure against the violation of the employees’ right to privacy which resulted from the policy. Following its analysis, the Board allowed the grievance and concluded that random testing was not justified.The Court of Queen's Bench set aside the Board's decision, and the Court of Appeal dismissed the appeal. The latter therefore recognized the employer's right to unilaterally impose this policy, given the dangerous nature of the workplace.The Supreme Court decisionThe Supreme Court restored the Board's decision. The issue at the heart of this case is whether unilaterally implementing a mandatory random alcohol testing policy constituted a valid exercise of the employer's management rights under the collective agreement. With regards to the exercise of the employers’ management rights, the Court pointed out that, in unionized workplaces, a policy imposed unilaterally by the employer must be reasonable and must fall within the scope of the management rights clause contained in the collective agreement. The Court added that when assessing the reasonableness of a policy that affects the employees' privacy, courts generally adopt a “balancing of interests” approach.This test requires one to answer the following question: “Was the benefit to the employer from the random alcohol testing policy in this dangerous workplace proportional to the harm to employee privacy?”2On the one hand, it is necessary to evaluate the risks that the employer sought to address through random alcohol testing. Such risks included both the risk associated with the particular grievor’s position as a millwright as well as the risk associated with the particular workplace. This review led the Board to conclude that the millwright’s functions presented risks and dangers in the operations performed both to the person occupying the position, to third parties, as well as to the environment and to property. As for the workplace, it was “one in which great care must be taken with safe work practices,” and, according to the Board, “the mill in normal operation is a dangerous work environment.”3That being said, the Supreme Court recalled that this conclusion is not sufficient to justify mandatory random testing:“[45] But, as previously noted, the fact that a workplace is found to be dangerous does not automatically give the employer the right to impose random testing unilaterally. The dangerousness of the workplace has only justified the testing of particular employees in certain circumstances: where there are reasonable grounds to believe that the employee was impaired while on duty, where the employee was directly involved in a workplace accident or significant incident, or where the employee returns to work after treatment for substance abuse. It has never, to my knowledge, been held to justify random testing, even in the case of “highly safety sensitive” or “inherently dangerous” workplaces like railways (Canadian National) and chemical plants (DuPont Canada Inc. and C.E.P., Loc. 28-0 (Re)(2002), 105 L.A.C. (4th) 399), or even in workplaces that pose a risk of explosion (ADM AgriIndustries), in the absence of a demonstrated problem with alcohol use in that workplace. That is not to say that it is beyond the realm of possibility in extreme circumstances, but we need not decide that in this case.”4As for evidence of an alcohol-related problem in the workplace, the Supreme Court agreed with the Board, when it noted that there had only been eight alcohol-related incidents over a 15-year period and that it had only a small impact on the safety risks in the workplace.5 Moreover, the Board was not convinced by the employer's argument that deterrence was a major benefit of random alcohol testing.6On the other hand, the employees' right to privacy must be taken into account. The Supreme Court held that the Board's position on this point was unassailable and that breathalyser testing “effects a significant inroad” on an employee’s right to privacy.7CommentsThe Supreme Court therefore upheld the Board's ruling that the employer's policy constituted an unreasonable exercise of its management rights.However, the Court added that this decision does not mean an employer can never unilaterally impose random alcohol and drug testing on all its employees in a dangerous workplace. Such a policy may well be justified if it represents a proportionate response in light of legitimate safety concerns, which could be the case if the employer were able to demonstrate increased safety concerns, such as a generalized problem of alcoholism or drug abuse in the workplace.Moreover, the Supreme Court confirms a consistent line of arbitral case law whereby arbitrators have found that when a workplace is dangerous, an employer can test an individual employee if there exists reasonable cause to believe that the employee was impaired while on duty was involved in a workplace accident or incident, or in the event an employee is returning to work after treatment for substance abuse.These principles must of course be applied on a case-by-case basis._________________________________________  1 Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34. 2 Id., para. 43.  3 Id., para. 44.  4 Id., para. 45. 5 Id., paras. 46 and 47. 6 Id., para. 48.  7 Id., paras. 49 and 50.

As of June 13, 2009, Facebook Inc. allows Facebook users to create personalized usernames for their Facebook pages on a first-come, first-served basis.

On December 6, 2007, the Quebec Court of Appeal declared that part of Goodyear’s alcohol and drug detection policy implemented in its Valleyfield plant in the summer of 2004 was valid. The Court of Appeal’s judgement maintained in part a decision rendered on April 21, 2006 by the Superior Court that upheld grievance arbitrator Mtre Denis Tremblay’s April 12, 2005 ruling.To summarize, the Court of Appeal ruled on the validity of detection testing where an employer has reasonable and probable grounds to believe that an employee’s faculties are impaired, or where there has been an accident or an absence related to alcohol or drug consumption.The Court did not definitively rule on the validity of the provisions of the policy under consideration regarding job applicants and new employees.Only the provisions on random testing without notice of employees in high-risk jobs were struck from the policy by the Court of Appeal. However, it did not entirely rule out the possibility that such tests could be part of a detection policy where the employer can show that its business is of a dangerous nature that necessitates special protection measures, or if there are problems related to drug or alcohol use that affect the incidence of accidents in the workplace.