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

The Newfoundland and Labrador government says a judge failed to see that it was reasonablefor 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 arguesSupreme Court JusticeGillianButler made errors that led herto order an environmental impact statement (EIS) for the project.

• Judge orders further environmental assessment of proposed Placentia Bay fish farm

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

The protracted fight over the aquacultureproject, whichaims to double theprovince's farmed salmon production, returns to court in December.

Court documents say former minister's decision was reasonable

CBCNews has obtained the details of what the province, Grieg NLand 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 Trimperto release Grieg from carrying out an EIS.

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

The judge stated the minister's interpretation of the legislation was entitled to deference.- N.L.government court document

"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 Butlerfailed 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."

ASFdefends court decision

For itspart, the Atlantic Salmon Federationis arguing Butler's decision was correct.

"The applications judge correctly concluded that the minister lacked jurisdictionto 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 ASFalso says the province's interpretation of the regulation was unreasonable.

"The [Environmental Assessment]regulations constrainthe 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 causessignificant, public concern, it requires anEISregardless of whether those factors will be mitigated by a federal or provincial Act."

The ASFis calling on the Court of Appeal to dismiss the appeal to let Judge Butler's decision stand, and is alsoaskingthe court to order the province and Grieg NLto pay theASF'scourt costs.

EISlaunched ahead of appeal decision

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

"As a prudent business step, Grieg NL is willingtocommencean 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 theEISand start the project right away.

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

ASFsays appeal unnecessary

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

The Crown is chasing a disingenuous loophole that runs contrary to the intent of the Environmental Protection Act.- Atlantic Salmon Federation

"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'sposition 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," saidthe ASF.

What's at stake

Grieg NL wants to produce 33,000 tonnes of salmon annuallyat 11 sea cage sites around Placentia Bay.The project also includes a $75-millionland-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 saidit's still considering whether it will make that investment or not.

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

• New coalition urging N.L. not to buy a $45M stake in Grieg's salmon farming project

Chronology of the court battle

• Feb. 19, 2016 Grieg Nursuries Ltd. and Grieg NL Seafarms Ltd. PlacentiaBay Atlantic Salmon aquaculture project registered by the provincial Department of Environment and Conservation.
• July2016 Then-environment minister PerryTrimperreleased Grieg's proposal from having to carry out further environmental assessment through anEnvironment Impact Statement.
• August 2016 Lawyer OwenMyersand the Atlantic Salmon Federation challenged the minister's decision in court.
• July 2017 Supreme Court JudgeButler ruled that it was not reasonable for the ministerto release Grieg from further environmental assessment and ordered anEIS.
• August 2017 The province announced it will appeal the Supreme Courtdecision.
• Dec.14-15 Newfoundland and Labrador Court of Appeal scheduled to hear the appeal.