EDITORIAL & OPINION — Courts ignore greater public good — Usurping democracy

We were heartened that the issue was discussed at all, because a public debate is certainly warranted. Even so, we were less than impressed with the conclusion, proferred by some respected Canadians, that court involvement in resource developments has done little to throw them off schedule.

Columnist and historian Gwynne Dyer recently told members of the Canadian Bar Association that, in his view, there appears to be no consistent problem with the court’s role in resource-based projects. We were told other speakers disagreed.

The discussion related to the Voisey’s Bay project in Labrador, where a court-related delay has prohibited Inco from proceeding with a temporary airstrip and road at the site to facilitate underground exploration. Aboriginal groups were granted the order based on the argument that this infrastructure should be subject to the same environmental review as other permanent aspects of the project.

It was a precedent-setting ruling, as most companies have exercised the right to build temporary infrastructure for advanced exploration without going through a comprehensive environmental review. This does not mean that such activities are carried out in a regulatory void. Quite the contrary; advanced exploration is still subject to a variety of environmental guidelines and consultation with local communities.

After asking the rhetorical question, “Has this [the court ruling] sabotaged Inco’s project?” Dyer responded by saying that he sees “no evidence that it has.”

Having had a ringside seat in this and a few other high-profile resource projects, we say hogwash. Moreover, we believe the courts should not be given a broad mandate to solve contentious public policy issues surrounding resource development. Judges are not elected and should not be used to circumvent or usurp our democratically based policy-making process.

Taking into account legal semantics, Dyer may be correct; there is no hard “evidence” that the ruling has “sabotaged” Inco’s project. But it has certainly done a great deal to create the current impasse between the company and the Newfoundland government. It has benefited three new Australian nickel mines, which were racing to come on-stream before Voisey’s Bay, and have now crossed that strategically important finish line. And it has been a boon for New Caledonia, which has lured Canada’s top nickel producers to develop large-scale operations there. It has done nothing to keep mining and good-paying jobs in Canada.

Had Inco been allowed to proceed with a deep underground program, it might already have enough reserves proved up to justify a smelter and refinery. It might have found another rich deposit, which would turn the project into a mining camp, rather than one main deposit.

The court ruling denied Inco something other companies take for granted, for no good reason, and to the detriment of the greater public good. That they did so at the behest of a few aboriginal leaders is, in our view, no excuse. After all, these leaders have been given a seat at the negotiating table. The existing system allows them a forum from which to pursue their aspirations and protect their interests.

Environmentalists, too, have a seat at the table. The review process is designed to accommodate anyone with specific concerns about a new mine proposal. Most allow extensive periods of public comment, and intervenor funding is often made available to ensure all stakeholders have representation.

What is happening lately is that certain parties are using the courts to circumvent the process, pursue a hidden agenda, or fight an unfavorable ruling. Judges may be well-versed in law, but how many understand the complexities of exploration and resource development? And who speaks for the silent majority, those who go to work each day in order to raise their families, with little time, money and energy for much else?

Exploration was the best hope there was for the Newfoundland government to prove its case that a smelter and refinery would be economically viable. After all, down-stream processing of this type is rarely, if ever, built for a single mine. Smelters and refineries are built for mining camps, with enough reserves and resources to ensure decades of production.

Vosiey’s Bay is a wonderful deposit, a truly world-class discovery. But it is not yet a mining camp. The hundreds of juniors who flocked there after the discovery was made have yet to produce a sizable discovery of economic interest. Inco has found resources outside the high-grade Ovoid, but the tonnage is low-grade and would not justify a mine and mill, let alone a smelter and refinery.

Geologists argue that nickel deposits rarely occur alone, and the Thompson camp in Manitoba and the Sudbury camp in Ontario bear out this theory. Our hope is that Voisey’s Bay will follow in this grand tradition. If it please the court.