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Environmental Appeal Board

Fourth Floor 747 Fort Street Victoria British Columbia Telephone: (250) 387-3464 Facsimile: (250) 356-9923 Mailing Address: PO Box 9425 Stn Prov Govt Victoria BC V8W 9V1 Website: www.eab.gov.bc.ca E-mail: [email protected]

DECISION NOS. 2013-EMA-007(b), 2013-EMA-007(c), 2013-EMA-010(b) and 2013-EMA-010(c)

In the matter of two appeals under section 100 of the Environmental Management Act, S.B.C. 2003, c. 53.

BETWEEN: Emily Toews Elisabeth Stannus

APPELLANTS

AND: Director, Environmental Management Act RESPONDENT

AND: Rio Tinto Alcan Inc. THIRD PARTY PERMIT HOLDER

BEFORE: A Panel of the Environmental Appeal Board Alan Andison, Chair

DATE: Conducted by way of written submissions concluding on August 12, 2014

APPEARING: For Appellant, Elisabeth Stannus: Chris Tollefson, Counsel For Appellant, Emily Toews: Richard Overstall, Counsel

For the Respondent: Dennis Doyle, Counsel

For the Permit Holder: David Bursey, Counsel

PRELIMINARY APPLICATIONS

[1] On July 17, 2014, the Appellants requested that the Board accept two amendments to their Notices of Appeal, including the addition of a new ground for their appeals. Rio Tinto Alcan Inc. (“Rio Tinto”) objected to the addition of the new ground for the appeals, and submitted that the Board should deny the Appellants’ application in that regard.

[2] On July 25, 2014, the Appellants also applied to the Board for an order requiring Rio Tinto to produce certain categories of documents pursuant to section 34(3)(b) of the Administrative Tribunals Act, S.B.C. 2004, c. 45 (the “ATA”). In response, Rio Tinto submitted that the application should be denied.

[3] The applications were conducted by way of written submissions.

DECISION NO. 2013-EMA-007(b), 2013-EMA-007(c), 2013-EMA-010(b) and 2013-EMA-007(c) Page 2

BACKGROUND

[4] Below is a brief background to these appeals, focusing on the information that is relevant to the present applications.

[5] The Appellants filed separate appeals against a decision issued on April 23, 2013, by Ian Sharpe on behalf of the Director, Environmental Management Act (the “Director”), Northern Region - Skeena, Ministry of Environment (the “Ministry”). The decision was to amend multimedia permit P2-00001 (the “Permit”), which authorizes Rio Tinto to discharge effluent, emissions, and waste from a smelter located in Kitimat, BC. The Kitimat smelter produces aluminum. Rio Tinto sought the Permit amendment in support of a project that is designed to modernize and increase the production at the Kitimat smelter.

[6] Among other things, the Permit amendment allows an increase in the smelter’s total emissions of SO2 (sulphur dioxide). The previous limit was a maximum of 27 Mg/d (tonnes per day). The new limit is a maximum of 42 tonnes per day. The amendment also amends the authorized works that are listed in the Permit, and adds several conditions to the Permit including requirements to develop an environmental effects monitoring plan for Ministry approval, and to conduct public consultations regarding the environmental effects monitoring plan. Rio Tinto advises that the project will reduce the smelter’s emissions of polycyclic aromatic hydrocarbons, fluorides, and particulate matter.

The Appellants’ application to amend their Notices of Appeal

[7] The Appellants’ Notices of Appeal, as originally filed on May 21 (Ms. Toews) and May 22 (Ms. Stannus), 2013, contain the same grounds for appeal, except for the last two grounds in each Notice of Appeal. The Appellants’ original grounds for appeal are as follows:

• The Director erred in determining that there is sufficient information to set requirements for the protection of human health and the environment with regards to the proposed SO2 emissions.

• The Director erred in his assessment of potential impacts of SO2 to human health.

• The Director erred in his assessment of potential impacts of SO2 to local and regional agriculture.

• The Director erred in his assessment of potential impacts of SO2 to the environment.

• The Director erred in his assessment of potential impacts of SO2 to local and regional fisheries. [Ms. Toews only]

• The Director erred in his finding that public consultation for this project is adequate. [Ms. Toews only]

• The Director erred in his assessment of the SO2 treatment options; in particular, the Director erred in his finding that no SO2 scrubber installation is required for this permit amendment. [Ms. Stannus only]


• The Director erred in his assessment of cumulative impacts of this project, including other current and proposed air emissions in the region. [Ms. Stannus only]

[8] By a letter dated March 19, 2014, the Board granted a request from the Appellants to add the following ground to their Notices of Appeal:

• The Director’s discretion was fettered by a pre-existing agreement between the Province of British Columbia and Rio Tinto Alcan.

[9] The Board received no objections to that amendment.

[10] On March 27, 2014, the Appellants filed their statements of points, which were subsequently amended on April 16, 2014.

[11] On May 26, 2014, the Board held a pre-hearing teleconference with all parties. Among other things, the parties agreed to preserve the weeks of October 6 – 10, 14 – 17, 20 – 24, and 27 – 31, 2014, for the hearing of the appeals in Kitimat, BC.

[12] In a letter dated July 17, 2014, the Appellants requested that the Board accept two further amendments to their Notices of Appeal. They sought to amend the ground added on March 19, 2014 by changing the phrase “a pre-existing agreement” to “pre-existing agreements.” They also sought to add the following further ground to their Notices of Appeals:

• The decision under appeal is invalid due to the presence of a reasonable apprehension of bias.

[13] In their application, the Appellants submitted that the new ground only arose after they reviewed documents that were disclosed to them on June 6, 2014, by the Director. Those documents included emails between senior Ministry staff about a memorandum of understanding whereby Rio Tinto agreed to fund a Ministry staff position, held by Mr. Fraser McKenzie, to work as a “technical advisor, inspector, and representative of the Director” in relation to the permitting aspects of the smelter moderization project.

[14] By a letter dated July 18, 2014, the Board accepted the requested amendments to the Notices of Appeal, subject to any objections from the other parties.

[15] The Board received no objection from the Director.

[16] On August 5, 2014, the Appellants filed several expert reports in support of the arguments they intend to make at the appeal hearing.

[17] On August 6, 2014, Rio Tinto Alcan Inc. (“Rio Tinto”) filed an objection to the new ground for appeal that alleges a reasonable apprehension of bias. Rio Tinto submits that the Board should deny the Appellants’ application to add this ground, because it has no reasonable prospect of success.

[18] By a letter dated August 6, 2014, the Board offered the Appellants and the Director an opportunity to provide comments on the matter.


[19] The Director provided no submissions.

[20] The Appellants submit that Rio Tinto’s submissions misstate the facts that the Appellants rely on in seeking to add the new ground, and Rio Tinto’s submissions rely on a different legal test than the Board has previously applied when considering applications to amend Notices of Appeal.

The Appellants’ application for document disclosure

[21] In a letter dated July 25, 2014, the Appellants requested that the Board order Rio Tinto to produce certain categories of documents, as follows:

1. All records of communications and correspondence between any of the authors of the Sulphur Dioxide Technical Assessment Report (“STAR”) and any employees or officials of Rio Tinto, in relation to the preparation of the STAR.

2. All records in Rio Tinto’s possession, including:

• correspondence;

• studies conducted or prepared for Rio Tinto;

• studies conducted by ESSA Technologies Ltd. (“ESSA”); or

• research documents referred to or relied upon by Rio Tinto or ESSA

in relation to the Kitimat smelter modernization project that pertain to:

• the cost (capital and operating);

• engineering design;

• effectiveness; and

• installation

of potential sulphur scrubbing technology at the Kitimat aluminum smelter during or after the completion of the Kitimat smelter modernization project

3. All records of communications and correspondence between Rio Tinto and the Respondent in relation to:

a. the application by Rio Tinto to the Ministry to amend the Permit;

b. the memorandum of understanding between Rio Tinto and Her Majesty the Queen in Right of British Columbia concerning the modernization of the Kitimat aluminum smelter and sulphur dioxide permitting that was signed in December 2007 (the “2007 MOU”), including:

i. all drafts of the 2007 MOU;

ii. all amendments to the 2007 MOU;

iii. all records of communications and correspondence leading up to the signing of the 2007 MOU; and

iv. records of communications and correspondence concerning the 2007 MOU after its signing;


c. the memorandum of understanding between Rio Tinto and Her Majesty the Queen in Right of British Columbia concerning the modernization of the Kitimat aluminum smelter and sulphur dioxide permitting that was signed in October 2011 (the “2011 MOU”), including:

i. all drafts of the 2011 MOU;

ii. all amendments to the 2011 MOU;

iii. all records of communications and correspondence leading up to the signing of the 2011 MOU; and

iv. records of communications and correspondence concerning the 2011 MOU after its signing;

d. the memorandum of understanding between Rio Tinto and Her Majesty the Queen in Right of British Columbia concerning Rio Tinto’s funding for Fraser McKenzie’s position in the Ministry in relation to the “Alcan re-development permitting project” (the “McKenzie MOU”), including:

i. all drafts of the McKenzie MOU;

ii. all amendments to the McKenzie MOU;

iii. all records of communications and correspondence leading up to the signing of the McKenzie MOU; and

iv. records of communications and correspondence concerning the McKenzie MOU after its signing.

4. Such other relief as the Board deems appropriate.

[22] The application for document disclosure was made pursuant to section 34(3)(b) of the ATA, which states:

Power to compel witnesses and order disclosure

34 (3) Subject to section 29, at any time before or during a hearing, but before its decision, the tribunal may make an order requiring a person

(a) …

(b) to produce for the tribunal or a party a document or other thing in the person's possession or control, as specified by the tribunal, that is admissible and relevant to an issue in an application [in this case, an appeal].1

[23] The Board’s Procedure Manual establishes a number of factors that the Board will consider when deciding whether to issue an order under this section. The factors are:

1 This power under the ATA applies to the Board pursuant to section 93(11) of the Act.


• whether the party has requested voluntary compliance before making the request to the Board,

• whether the information sought to be obtained is relevant to the appeal,

• whether the person is reasonably likely to be able to supply the information, and

• any other factors that the Board considers relevant.

[24] By a letter dated July 28, 2014, the Board offered Rio Tinto an opportunity to provide comments on the Appellants’ application, and an opportunity for the Appellants to reply to Rio Tinto’s comments.

[25] On August 8, 2014, while the parties were in the process of exchanging written submissions on the Appellants’ applications, the Director disclosed a memorandum of understanding between the Province, Mr. McKenzie, and Rio Tinto governing Mr. McKenzie’s secondment to Rio Tinto (the “Secondment Agreement”). The Secondment Agreement, dated November 13, 2007, is for a two-year term with the potential for an extension to 2012. Among other things, it provides that Mr. McKenzie would be dedicated full-time to carrying out the Ministry’s “regulatory mandate as it relates to the modernization of the Rio Tinto Alcan aluminum smelter,” and during that time he would remain an employee of the Province, but Rio Tinto would reimburse the Province for Mr. McKenzie’s salary and benefits. In their reply submissions, the Appellants provided a copy of the Secondment Agreement in support of their applications.

[26] Rio Tinto submits that the Appellants have not established that the requested categories of documents are relevant to the appeals. Rio Tinto argues that the probative value of the documents is negligible, and is outweighed by the effort and cost to produce the documents. Moreover, Rio Tinto argues that the Appellants are engaged in a wide-ranging “fishing expedition” late in the proceedings, and the appeals are becoming a “moving target” which is creating a lengthy and inefficient process that is unfair to Rio Tinto.

[27] The Appellants submit that it is likely that the requested documents will be relevant to the appeals, Rio Tinto is likely to be able to produce the documents, and Rio Tinto has refused voluntary disclosure of the documents except for those in category 3. The Appellants provided copies of letters showing that they had previously requested voluntary disclosure of the categories of documents except category 3, and Rio Tinto has refused. In regard to category 3, the Appellants ask that the Board grant the application despite the absence of a previous request for voluntary disclosure, in order to facilitate timely document disclosure prior to the hearing of the appeals.


ISSUES

[28] The Panel has addressed the following issues in this preliminary decision:

1. Whether the Panel should grant the Appellants’ application to add the following ground to their Notices of Appeal: “The decision under appeal is invalid due to the presence of a reasonable apprehension of bias.”

2. Whether the Panel should grant the Appellants’ application for an order requiring Rio Tinto to disclose certain categories of documents.

[29] It should be noted that, except to the extent necessary to decide these applications, the Panel will make no findings regarding the merits of the appeals. Nothing in this decision should be taken as a finding that applies to the merits of the appeals.

DISCUSSION AND ANALYSIS

1. Whether the Panel should grant the Appellants’ application to add the following ground to their Notices of Appeal: “The decision under appeal is invalid due to the presence of a reasonable apprehension of bias.”

The Appellants’ application

[30] The Appellants submit that the documents disclosed by the Director on June 6, 2014, regarding Rio Tinto’s agreement to fund Mr. McKenzie’s position, provide sufficient basis for adding this ground to their Notices of Appeal. The Appellants submit that the issue of a reasonable apprehension of bias is a serious one that the Board ought to consider, and that the amendment to the Notices of Appeal will not prejudice the other parties as they are not required to file their statements of points until September 5, 2014.

[31] The Appellants advise that, if their request is granted, they intend to seek further disclosure (which they have done in their application for document disclosure) and adduce evidence regarding the nature and scope of Mr. McKenzie’s position that was funded by Rio Tinto, and the level of input that Mr. McKenzie had in relation to the decision under appeal.

[32] In support of their submissions, the Appellants cite the test for reasonable apprehension of bias set out by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 [Baker].

Rio Tinto’s submissions

[33] Rio Tinto submits that the Panel should deny the Appellants’ application to add the new ground for appeal, because this ground for appeal has no reasonable prospect of success. Rio Tinto argues that the Appellants’ sole basis for adding this ground is that Rio Tinto funded the salary of a technical advisor to the decision-


maker who issued the Permit amendment, and this does not support a claim for reasonable apprehension of bias.

[34] Rio Tinto submits that, in civil cases, the courts consider applications to amend pleadings based on the test that is applied when considering applications to strike pleadings. According to that test, pleadings may not be amended where they do not disclose a reasonable claim. The Supreme Court of Canada held in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 [Imperial Tobacco], at paras. 17 – 25, that a claim may be struck if it has no reasonable prospect of success, and that striking pleadings “promotes litigation efficiency, reducing time and cost” (at para. 20). Rio Tinto submits that the Panel should apply the same principles to the Appellants’ application to amend.

[35] In addition, Rio Tinto submits that a motion to strike pleadings proceeds on the basis that the facts pleaded are true. In Imperial Tobacco, the Court stated that a claimant “is not entitled to reply on the possibility that new facts may turn up as the case progresses,” and must rely on the facts as pleaded (at para. 22).

[36] Turning to the Appellants’ allegation that the decision under appeal is invalid due to a reasonable apprehension of bias, Rio Tinto submits that the facts, as pleaded by the Appellants, do not support the claim that there is a reasonable apprehension of bias, based on the test set out in Baker at para. 46.

The Appellants’ reply submissions

[37] In reply, the Appellants submit that Rio Tinto’s submissions contain two errors: (1) they misstate the facts that the Appellants rely on in seeking to add the ground for appeal; and, (2) they rely on a different legal test than the Board has previously applied when deciding whether to accept amendments to Notices of Appeal.

[38] The Appellants submit that the Board only has the power to strike a ground of appeal where the ground pertains to a matter that is beyond the Board’s jurisdiction. The Appellants note that the Board does not have the statutory power of summary dismissal found in section 33(1) of the ATA. On that basis, the Appellants argue that the Board could not grant the remedy that Rio Tinto seeks, even if Rio Tinto’s objection had merit.

[39] Moreover, the Appellants submit that it would be wrong in principle and practice for the Board to embark on a detailed assessment of the evidentiary strength of a ground for appeal at this stage.

[40] Further, the Appellants submit that Rio Tinto has not argued that it will be prejudiced by the requested amendment, and the Director has not objected to the requested amendment.

[41] In support of those submissions, the Appellants referred to the Board’s decision in Cobble Hill Holdings Ltd. v. Ronald Witherspoon et al (Decision Nos. 2013-EMA-017(a), 019(b), 020(a) and 021(a), issued February 5, 2014) [Cobble Hill]. The Appellants also referred to to the Board’s decision in Joan Sell et al v. Assistant Regional Waste Manager (Decision Nos. 2000-WAS-028(a) and 2000-WAS-031(a), issued May 11, 2001) [Sell]. The Appellants argue that Sell is the


most instructive previous decision of the Board regarding amending Notices of Appeal.

[42] The Appellants submit that, in any event, the funding arrangement for Mr. McKenzie’s position is relevant to another ground for the appeals which Rio Tinto has not objected to; namely, the Appelants’ allegation that the Director’s discretion was fettered by pre-existing agreements between the Province and Rio Tinto pertaining to the smelter modernization project.

[43] In support of their submisions, the Appellants referred the Panel to documents disclosed on June 6, 2014 by the Director, including a series of emails amongst the Director, Mr. McKenzie, and two other Ministry staff, regarding the McKenzie MOU/Secondment Agreement. According to the emails, it was proposed that Rio Tinto would commit to funding a minimum of two-year’s salary for Mr. McKenzie to work “exclusively on permitting aspects of the Kitimat smelter modernization project, and transitional aspects of evolving and administering the current permit in the context of the project.” The emails state that Mr. McKenzie’s responsibilities would include being the “technical advisor, inspector and representative of the Director as the EMA permitting authority.” Also, Mr. McKenzie’s deliverables would include “permit amendments and correspondence associated with planning and implementing the 5 year project… .” The emails indicate that one of the Ministry staff other than the Director and Mr. McKenzie asked the question, “What if [Mr. McKenzie] decides his actions are being fettered but Alcan doesn’t see it that way? Who has violated the MOU?” The same staff also asked, “What would you think of not delegating certain authorities under EMA to [Mr. McKenzie] so that we keep an arms length relationship?”

The Panel’s findings

[44] The Panel has first considered the appropriate test for deciding this preliminary application. The Appellants argue that the Board’s decision in Sell sets out the relevant test and is the most instructive case, although they also cite Cobble Hill in support of their submissions. In contrast, Rio Tinto submits that the Board should apply the test set out in Imperial Tobacco and used by the courts to decide applications to strike a claim, which is whether the claim has no reasonable prospect of success.

[45] The Board does not have the express statutory power of summary dismissal that is provided for in section 33(1) of the ATA, as section 33 is not included in the list of ATA sections that apply to the Board under section 93(11) of the Act. Given the nature of Rio Tinto’s submissions on the applicable test in this case, section 33(1)(f) of the ATA would be particularly relevant, as it provides that a tribunal may summarily dismiss all or part of an application if “there is no reasonable prospect the application will succeed”. However, the Panel finds that the Board may, as a preliminary matter, exercise the power to dismiss part or all of an appeal summarily on the basis that the matter is outside of the Board’s jurisdiction, as the Board did in Cobble Hill. At para 42 of Cobble Hill, the Board stated as follows:

As a starting point, even though the summary dismissal powers set out in section 31(1) of the Administrative Tribunals Act do not apply to the Board, the Panel finds that it has the jurisdiction to decide


whether, as a preliminary matter, the issues raised by the appeal are within its jurisdiction. This is supported by the provisions in part 8 of the Act establishing the Board and its processes.

[underlining added]

[46] In Cobble Hill, the Board considered applications by the Permit Holder to strike one appeal in its entirety, and to strike specified grounds for appeal in several other appeals against a permit issued under the Act. In deciding whether to grant the applications to strike, the Board considered a number of issues including: (1) the test to be appled in deciding the applications; and (2), the Board’s jurisdiction in relation to the appeals, and particularly, what types of matters the Board may consider in the context of appeals of a permit issued under the Act. The Board reviewed the relevant statutory provisions, including the Director’s authority to issue permits under section 14 of the Act, and the Board’s powers in an appeal under the Act. The Board also reviewed a number of judicial decisions. The Board then set out the test for deciding the applications to strike, at paras. 46 to 50:

… The language used in legislation is not always amendable to “black and white”, “yes and no” answers. There are often many grey areas. In these circumstances, a proper interpretation may benefit from a factual context, evidence, and additional argument. In the context of an application to strike, it would be careless - and could result in significant unfairness - to strike a claim or a ground for appeal unless it is “plain and obvious” that such a claim or ground for appeal is not within the tribunal’s jurisdiction.

Although the “plain and obvious” test establishes a high threshold to meet in order to succeed on an application, the Panel is of the view that the threshold should be high. In addition to the reasons provided above, during a preliminary application, neither the parties, nor the Board, have had time to fully comprehend the legislative framework and the implications of different interpretations of the legislation. There are occasions when evidence can be helpful to interpreting the “mischief” intended to be prevented by the legislation, the consequences of certain interpretations, as well as any technical meanings of words within a specialized area or context.

In addition, one of the reasons for the existence of administrative tribunals is to make the process more accessible to parties who are not represented by legal counsel. The threshold must be high to ensure that they have a chance to be heard on matters that are, arguably, within the tribunal’s jurisdiction.

With this latter point in mind, the Panel agrees with the philosophy adopted by the courts that a claim, in this case a Notice of Appeal, should be read “as generously as possible and to accommodate any inadequacies in the form of the allegations which are merely the result of drafting deficiencies” (per Speckling).

Accordingly, the test to be applied on these applications will be whether, based upon a generous reading, it is plain and obvious that


the appeal, or the ground for appeal, is beyond the statutory jurisdiction of the Board.

[underlining added]

[47] The Panel finds that the Board’s analysis in Cobble Hill provides assistance in deciding the present application. The Panel finds that a threshold issue in deciding whether to grant an application to add a new ground for appeal is whether the ground is, on a generous reading, within the Board’s jurisdiction. In the present case, Rio Tinto has not argued that the new ground for appeal is outside the Board’s jurisdiction. Indeed, the Panel finds that the question of whether the decision under appeal is invalid due to the presence of a reasonable apprehension of bias, is clearly within the Board’s jurisdiction in deciding these appeals.

[48] However, the Panel finds that, in an application to add a new ground for appeal, as opposed to an application to strike existing grounds for appeal, there are additional considerations. In particular, the Panel finds that, even if the new ground for appeal is, on a generous reading, within the Board’s jurisdiction, the other parties’ right to procedural fairness is also a relevant consideration in deciding whether to allow a material amendment to the grounds for an appeal. In this regard, the Panel finds the Board’s decision in Sell to be instructive.

[49] In Sell, the Appellants requested that the Board consider, in writing, a preliminary motion to quash a permit on the ground that the decision-maker had fettered his discretion. Fettering had not previously been raised as a ground for the appeal, and an oral hearing of the merits of the appeal was scheduled to commence approximately six weeks later. The Board found that it had the jurisdiction to allow an amendment to a Notice of Appeal, and that it would not be a breach of procedural fairness to allow the appellants to add a new ground for their appeal, because the other parties had received adequate advance notice of the material change to the grounds for appeal. However, the Board declined to hear the preliminary motion in writing, prior to the oral hearing, because the subject matter of the motion would best be dealt with at the full hearing on the merits of the appeal.

[50] Based on the foregoing, the Panel finds that the Board’s previous decisions in Cobble Hill and Sell set out the relevant factors for the Panel to consider in deciding the present application. The Panel finds that the common law test set out in Imperial Tobacco provides a more restrictive approach than the Board has used in previous cases, and sets a threshold that may be unduly difficult for appellants to meet in the context of a preliminary application before an administrative tribunal where the parties often are unrepresented by legal counsel. Although the Appellants in the present case are represented by legal counsel, the Board held in Cobble Hill that one of the reasons for the existence of administrative tribunals is to provide a process that is more accessible than the civil court process. For that reason, the threshold for striking a ground for appeal, and in this case denying an application to add a ground for appeal, must be generous to ensure that appellants have a chance to be heard on matters that are within the Board’s jurisdiction. However, an appellant’s right to a fair opportunity to be heard must be balanced against any potential prejudice to the other parties. In particular, it is important to consider whether the other parties will have adequate time to prepare their cases in


response to the new ground for appeal, and whether adding the new ground for appeal will unduly lengthen or delay the appeal proceedings.

[51] The Panel notes that the Appellants applied to add the new ground for appeal on July 17, 2014, approximately six weeks after the Director disclosed the documents that brought the issue to the Appellants’ attention, and approximately 11 weeks before the hearing of the appeals is scheduled to commence on October 6, 2014. The Director and Rio Tinto are not required to file their statements of points until September 5, 2014. Consequently, the Panel finds that the Director and Rio Tinto will have adequate time to prepare their cases in response to the new ground for appeal.

[52] Furthermore, the Panel finds that allowing the additional ground for appeal will not significantly lengthen or delay the hearing process. While allowing the new ground may result in more submissions being presented at the hearing, the Appellants have advised that they intend to file evidence regarding Mr. McKenzie’s role even if the new ground for appeal is not allowed, because they argue that such evidence is relevant to the issue of fettering, and the other parties have not objected to that ground for appeal. Consequently, the Panel finds that allowing the additional ground for appeal will not result in more evidence being presented than there would have been if the new ground was not added to the Notices of Appeal.

[53] Finally, the Panel finds that, although the test for reasonable apprehension of bias pertains primarily to the person who made the impugned decision (i.e., the Director), the majority of the Court held at page 849 of Baker that, where subordinates of the ultimate decision-maker “play a significant role in the making of deciisons,” the duty to act fairly and with an open mind applies “whether they are subordinate reviewing officers, or those who make the final decision.” Consequently, the Board finds that this ground for appeal should be decided with the benefit of evidence and full submissions from all parties at the hearing of the appeals. Neither the parties, nor the Board, have had time to fully comprehend the evidence disclosed to date regarding the nature of Mr. McKenzie’s role and involvement as an advisor to the Director, and the implications of that evidence.

[54] For all of these reasons, the Panel grants the Appellants’ application to add the new ground for appeal.

2. Whether the Panel should grant the Appellants’ application for an order requiring Rio Tinto to disclose certain categories of documents.

The Appellants’ submissions

[55] The Appellants submit that the Board set out the test for ordering pre-hearing disclosure of documents in Seaspan ULC v. Domtar Inc. (Decision Nos. 2010-EMA-004(a), 005(a), 006(a) and 2011-EMA-003(a), issued June 11, 2013) [“Seaspan”]. In regard to the question of whether the requested documents are relevant, the Appellants cite para. 56 of Seaspan where the Board stated as follows:

The Panel agrees that pre-hearing access to relevant documents is required to ensure that the parties can properly prepare, and effectively argue, their


respective cases to the Board. The parties must be able to ascertain the facts (both favourable and unfavourable) in order to properly understand and assess their cases, evaluate the possibility of a settlement, and, if necessary, prepare their cases for a hearing. This can only be done when the parties have access to documents which, it is “reasonable to suppose”, may be relevant to proving or responding to an issue in the appeal.

[italics in original]

[56] Based on that decision, the Appellants argue that the key question is whether it is reasonable to suppose that the requested documents may be relevant to an issue in the appeal. Other considerations include whether it is reasonably likely that the party will be able to supply the requested documents.

Category 1 documents

[57] Regarding the category 1 documents, the Appellants submit that the issues in the present appeals include the methodology used in the STAR, the reliability of the STAR’s conclusions, and the comprehensiveness of the STAR. The Appelants submit that it is reasonable to suppose that the requested documents relating to the preparaion of the STAR may be relevant to those issues. Although the Appellants already have a copy of the STAR, and Rio Tinto’s response to the Appellants’ request for voluntary disclosure was that the methodology used in the STAR, the reliability of the STAR’s conclusions, and the comprehensiveness of the STAR are set out in the STAR itself, the Appellants submit that the requested documents are “contextual” and may be relevant to a thorough assessment of the STAR’s methodology, reliability, and comprehensiveness. They also submit that the STAR is being tendered by the Director in the appeal process as part of the record of the materials he considered in making his decision, and the available information suggests that the Director relied heavily on the STAR as the scientific and technical basis for his decision.


[58] The Appellants submit that it is reasonable to suppose that the documents regarding potential sulphur scrubbing technology at the Kitimat smelter during or after the completion of the smelter modernization project may be relevant to the issues in the appeals. One of the Appellants’ grounds for appeal is that the Director erred in finding that sulphur scrubber installation is not required for the Permit amendment. The Appellants argue that the Director relied on Rio Tinto to provide information about potential scrubber technologies and their use at the smelter, and therefore, documents possessed by Rio Tinto that pertain to those matters may be relevant to the appeals. Further, the Appellants submit that the Board has the power to conduct an appeal as a hearing de novo or new hearing, and as such, the Board may consider whether the installation of scrubber technology ought to be required.

Category 3(b) and (c) documents

[59] Another of the Appellants’ grounds for appeal is that the Director’s discretion was fettered by pre-existing agreements between the Province and Rio Tinto. In that regard, the Appellants submit that the 2007 and 2011 MOUs regarding sulphur


dioxide permitting are two pre-existing agreements that fettered the Director’s discretion. The Appellants argue that it is reasonable to suppose that the requested documents may be relevant to the issue of fettering, as the documents may provide evidence about the parties’ intentions regarding the scope, nature, purpose, and meaning of the MOUs.

Category 3(d) documents

[60] The Appellants submit that it is reasonable to suppose that these documents regarding the funding of Mr. McKenzie’s position are relevant to their new ground for appeal; namely, that the Permit amendment is invalid due to a reasonable apprehension of bias. The Appellants also submit that the requested documents are in Rio Tinto’s possession and control. In support of their submisions, the Appellants referred the Panel to documents disclosed on June 6, 2014 by the Director, including the series of emails amongst the Director, Mr. McKenzie, and two other Ministry staff, regarding the McKenzie MOU/Secondment Agreement, which are summarized in this decision under Issue 1.

Rio Tinto’s submissions

[61] Rio Tinto submits that section 34(3) of the ATA empowers the Board to order the disclosure of documents that are relevant and admissible to the appeals, but it does not grant the Appellants a general right of discovery as they would have in civil litigation. Rio Tinto argues that the Appellants have not established that the categories of documents they seek are relevant to the issues in the appeals. Rio Tinto also argues that the probative value of the documents is neglible, and is outweighed by the effort and cost to produce the documents.

[62] Rio Tinto agrees with the Appellants that the Board’s decision in Seaspan sets out the test for pre-hearing disclosure of documents. In regard to that test, Rio Tinto submits that relevancy must be assessed against the issues raised in the Appellants’ Notices of Appeal and statements of points (which the Appellants filed on March 27, 2014, but have since amended). Rio Tinto refers to para. 86 of Seaspan, as follows:

Initiating documents, such as a Notice of Appeal, help to frame the issues that will have to be decided during a hearing on the merits. Although the Board is not a “slave” to these documents, in the context of these pre-hearing applications the Panel finds that they should be used to frame the issues and relevancy analysis. There are three main reasons for this:

• if the parties are able to continuously expand their appeals on the basis of prehearing submissions, the appeals become “moving targets” and document disclosure can become abusive and/or more in the nature of a “fishing expedition”;

• these particular applications could involve hundreds of documents and expensive searches; and…

[63] Rio Tinto’s submissions addressing each category of documents has been summarized by the Panel, below.



[64] Rio Tinto submits that the Appellants do not explain how the background correspondence to the STAR, or Rio Tinto’s discussions with its consultant, are relevant to the question of whether the Director had sufficient evidence to make his decision, or what the Board may find to be sufficient. Rio Tinto submits that the issue before the Board is whether the Director erred in granting the Permit amendment, and the record that was before the Director will be in evidence before the Board. Rio Tinto submits that the Seaspan test does not contemplate “contextual” documents, and it is not apparent from the Appellants’ submissions how this context will be helpful to the Board.

[65] In addition, Rio Tinto argues that the Appellants have not the identified specific aspects of the STAR’s “methodology, reliability and comprehensiveness” that are in issue, nor have they linked their objections to the STAR’s “methodology, reliability and comprehensiveness” to the issues outlined in their statement of points. Rio Tinto submits that, according to the Appellants’ statement of points, they intend to call one expert witness, Dr. Mark Cherniak, who has prepared a report addressing human health concerns. However, Dr. Cherniak’s report states as follows at page 3:

I do not see any readily apparent methodological flaws in the air pollutant dispersion modelling used in the STAR with respect to predictions of SO2 levels. In fact, for the purposes of this report, I assumed that the air pollutant dispersion modelling presented in the STAR reliably predicts ambient air levels of SO2 under pre-KMP [Kitimat Modernization Project] and post-KMP scenarios.

[underlining added in Rio Tinto’s submissions]

[66] Moreover, Rio Tinto argues that the STAR speaks for itself, and the probative value of the requested background information is neglible, if any. In that regard, Rio Tinto submits that:

• the STAR explains its methodology in detail, and the Appellants’ expert, Dr. Cherniak, states that he sees no flaws in that methodology;

• the Appellants have not identified a specific issue related to methodology that they are pursuing; and

• the reliability and comprehensiveness would be assessed against the final record before the Director – the foundation for the Permit amendment – not the earlier internal Rio Tinto communications.


[67] Rio Tinto submits that the Appellants do not explain the relevance of this category of documents, and only refer to the ground of appeal that “The Director erred in his assessment of SO2 treatment options, in particular, that the Director erred in his finding that no SO2 scrubber installation is required for this permit amendment.” Rio Tinto argues that this is insufficient to establish relevance, and furthermore, it is the Director’s knowledge and decision that is being reviewed by the Board, not Rio Tinto’s. Rio Tinto submits that the Appellants are engaging in a “fishing expedition,” and the Board held at para. 86 in Seaspan that such document requests should not be encouraged.


[68] Moreover, Rio Tinto submits that it commissioned a study on the technical options to reduce SO2 emissions, which sets out the relevant information on scrubbers. That report, dated April 17, 2013, was prepared by HATCH, and is entitled “FEL1 Feasibility Report on Technical Options to Reduce SO2 Emissions Post-KMP.” Rio Tinto submits that the Appellants have that report.

Category 3(a) documents

[69] Rio Tinto submits that this category of documents is overly broad and seeks irrelevant and privileged material. Rio Tinto argues that the Appellants are essentially asking it to re-create the entire history of its application for the Permit amendment prepared over the course of six years, without limiting the documents to those that are relevant to specific issues in the appeals.


[70] Rio Tinto submit that the Appellants’ statement of points (at para. 38), including the amendments dated August 5, 2014 (at paras. 41 – 43), challenges only one clause in the 2007 MOU and 2011 MOU; namely, subsection (c) of Article 1, which concerns the alleged use of the BC Pollution Control Objectives. That clause states as follows in the 2011 MOU:

The purpose of this MOU is to establish the performance objectives and adopt an adaptive management approach for SO2 emissions after the Kitimat Modernization Program. Elements of the program for adaptive management include: …

c. regulating the SO2 emissions from the Kitimat Modernization Project until the end of 2018 according to the policy entitled “Pollution control Objectives for the Mining, Smelter and Related Industries of British Columbia, 1979 (Reprinted in 1989)”, in its existing form on the effective date of this MOU.

[71] This clause contains the same language in the 2007 MOU except that the reference to “the end of 2018” is, in the 2011 MOU, instead of to “the end of 2015”.

[72] In regard to the Appellants’ ground for appeal which alleges fettering of the Director’s discretion, Rio Tinto argues that actions flowing from the executed MOUs may be relevant, but the preceding negotiations, and especially drafts, amendments and any record of the negotiations, which may or may not reflect the final agreement, are irrelevant.

[73] Moreover, Rio Tinto argues that only subsection (c) of Article 1 has been challenged by the Appellants, yet they seek documents relating to other provisions in the MOUs.


[74] Rio Tinto objects to the request for background documents to the McKenzie MOU/Secondment Agreement. Rio Tinto argues that the preceding negotiations, and especially drafts, amendments and a record of negotiations, which may or may not reflect the final agreement, are irrelevant to the issue of whether there was a reasonable apprehension of bias.


The Appellants’ reply submissions

[75] In reply to Rio Tinto’s argument that the probative value of the requested documents is neglible and is outweighed by the effort and cost to produce the documents, the Appellants submit that Rio Tinto has provided no evidence of the quantity of documents involved, or the cost to disclose them. In addition, the Appellants argue that the “cost-benefit” approach for determining whether to order disclosure was developed by superior courts in the context of complex civil litigation, and should not be adopted by the Board in a case that involves the public interest.

[76] In addition, the Appellants submit that a hearing before the Board is de novo in nature, and Rio Tinto’s approach to determining relevance risks usurping the role of the Panel that will hear the appeals to determine the relevance and admissibility of evidence at the hearing.

[77] In regard to the efficiency of the appeal process, the Appellants submit that denying the requested document disclosure may result in documents not being disclosed until the cross-examination stage of the appeal hearing, which could result in delays to the hearing, especially given that the appeal hearing is scheduled for four successive weeks in Kitimat. The Appellants argue that the hearing will be more expeditious and fair if all parties have the documents they need before the hearing commences.


[78] The Appellants submit that the STAR is the technical basis for the Director’s decision and was commissioned by Rio Tinto, and therefore, Rio Tinto should have to disclose communications between itself, the STAR’s authors, and Ministry staff that may be relevant to the “methodology, reliability and comprehensiveness” of the STAR.

[79] In reply to Rio Tinto’s submissions regarding Dr. Cherniak’s report, the Appellants submit that Dr. Cherniak actually identifies numerous methodological and related flaws with the STAR. Rio Tinto’s assertion stems from that fact that Dr. Cherniak, unlike some of the Appellants’ experts, did not purport to address the flaws in the STAR’s use of the CALPUFF air-dispersion model. The Appellants submit that Dr. Cherniak’s overarching conclusion about the STAR is that “the potential human health effects linked to SO2 exposure within Kitimat at the concentrations contemplated post-KMP would be substantial and irreversible, and that the contrary conclusions in the STAR are incorrect.” Moreover, the Appellants argue that they have tendered other expert reports, including those of Dr. Ouimet, Dr. Bowering, and Dr. Kryzanowski, which offer specific scientific criticisms of the STAR.


[80] The Appellants submit that its request for documents regarding potential sulphur scrubbing technology is very specific and clear in scope. The Appellants argue that the STAR is very brief in addressing scrubber treatment options, and therefore, it is reasonable to suppose that some information and documentation in Rio Tinto’s possession was relevant to the Director’s decision. Moreover, the Appellants submit that they have tendered an expert report by Dr. Scarfe that


addresses various issues surrounding scrubber technology that the Appellants intend to pursue at the appeal hearing, including: a critique of the STAR’s conclusion that scrubbers are not justified; the use of scrubbers in other jurisdictions; and, a cost-benefit analysis of installing scrubbers as part of the KMP.


[81] The Appellants submit that the 2007 and 2011 MOUs may not be self-evident, and it will be proper to question the signatories of the MOUs regarding their understanding of the meaning and intention of the provisions in the MOUs. Their testimony will provide contextual evidence surrounding the meaning and intention of the MOUs. For the same reason, the Appellants submit that the documents that they seek, which may provide context, should also be relevant and admissible.


[82] The Appellants submit that the background documents to the McKenzie MOU/Secondment Agreement are relevant to both the new ground for appeal (that is addressed above), and the ground for appeal which alleges that pre-existing agreements (including the McKenzie MOU/Secondment Agreement) fettered the Director’s discretion. In any case, the Appellants argue that the Board has broad discretion to determine the relevance and admissibility of evidence.

The Panel’s findings

[83] In deciding this preliminary matter, the Panel has applied the test set out in Seaspan, which the parties agree applies to this application. That test is based on the language in section 34(3) of the ATA, as well as decisions of the courts and administrative tribunals regarding applications for document disclosure in a pre-hearing context.

[84] In terms of the issues raised by the appeals, the Panel finds that Rio Tinto’s characterization of the issue before the Board is overly narrow. The issue is not limited to “whether the Director erred in granting the Permit amendment.” The Board’s powers on an appeal are not limited to reviewing the Director’s decision for errors based on the evidence and information that was before the Director. While many of the grounds for appeal in the Notices of Appeal have been expressed by the Appellants in terms of “errors” by the Director, it is well established that the Board has the statutory authority to hear evidence that may not have been before the Director, to conduct an appeal as a new hearing of the matter, and to make any decision that the Director could have made. Consequently, the evidence that may be relevant to the issues in the appeals is not limited to the record that was before the Director.

[85] In paras. 56 to 64 of Seaspan, the Board identified the key considerations for ordering document disclosure in a pre-hearing context, as follows: (1) whether it is reasonable to suppose that the requested documents may be relevant to proving or responding to an issue in the appeal, based on the issues raised in the applicant’s Notice of Appeal and (if available) statement of points; (2) whether the requested documents are admissible (i.e., whether the requested documents are subject to a recognized form of privilege); and (3) whether the person who is being asked to


disclose the documents has possession and control of the documents. If there is no evidence before the Board regarding possession or control, the Board will consider the applicant’s submissions on the basis of whether “the person is reasonably likely to be able to supply the information.”

[86] The Panel now turns to the specific categories of documents that the Appellants have requested that the Board order Rio Tinto to disclose.


[87] The Panel finds the Appellants’ initial framing of this category, as stated in their application, was less specific than how they have framed this category in their subsequent submissions. The initial request for all communications between the authors of the STAR and Rio Tinto’s employees or officials in relation to the “preparation of the STAR” is much broader than those that may be relevant to the “methodology, reliability and comprehensiveness” of the STAR. The Panel finds that the Appellants are challenging the STAR’s “methodology, reliability and comprehensiveness,” and they have linked those objections to the issues outlined in their statement of points and expert reports.

[88] Further, the Panel finds that the STAR is a key technical report that the Director considered in his decision-making process, and as such, it is relevant to the merits of the Director’s decision and the question of whether the Permit amendment provides adequate protection for human health and the environment in relation to the increased SO2 emissions from the smelter.

[89] Given that the STAR was commissioned by Rio Tinto, the Panel finds that Rio Tinto is likely to possess records documenting the communications between the authors of the STAR and Rio Tinto’s employees or officials regarding the “methodology, reliability and comprehensiveness” of the STAR.

[90] Accordingly, in regard to the category 1 documents, the Panel grants the Appellants’ application in part. Rio Tinto is ordered to disclose the following category of documents:

All records of communications and correspondence between any of the authors of the STAR and any employees or officials of Rio Tinto, in relation to the methodology, reliability and comprehensiveness of the STAR.


[91] The Panel finds that the Appellants’ grounds for appeal, statements of points, and expert reports raise issues regarding whether Rio Tinto should have been required to install SO2 scrubbers as part of the Permit amendment. Many of the Appellants’ grounds for appeal relate to the alleged adverse effects on human health and the environment arising from the increase in SO2 emissions authorized by the Permit amendment. The question of whether SO2 scrubbers are warranted in the circumstances of this case is clearly relevant to the issues in the appeals.

[92] The Panel notes that Rio Tinto maintains that it commissioned a study on the technical options to reduce SO2 emissions; namely, a report by HATCH dated April 17, 2013, and entitled “FEL1 Feasibility Report on Technical Options to Reduce SO2 Emissions Post-KMP.” Rio Tinto also maintains that the Appellants have that report,


which sets out the relevant information on scrubbers. However, the Appellants are requesting disclosure of other documents relating to the potential use of SO2 scrubbing technology at the smelter. The Panel is not prepared to presume, at this preliminary stage, that the HATCH report is the only document in Rio Tinto’s possession that may be relevant to the potential use of SO2 scrubbing technology at the smelter. If the requested documents do not exist, or are not in Rio Tinto’s possession or control, Rio Tinto could have said so, but it did not.

[93] In addition, the Panel finds that this category of documents is reasonably specific and clear in scope, but is potentially overbroad insofar as the Appellants seek “All records in Rio Tinto’s possession… in relation to the Kitimat smelter modernization project that pertain to… the cost, engineering design, effectiveness, and installation of potential sulphur scrubbing technology at the Kitimat aluminum smelter during or after the completion of the Kitimat smelter modernization project” [underlining added]. Given that the smelter modernization project has not yet been completed, the Board cannot order Rio Tinto to disclose documents that do not yet exist. The Panel finds that relevant time line is up to the date when this decision is issued.

[94] Accordingly, in regard to the category 2 documents, the Panel grants the Appellants’ application in part. Rio Tinto is ordered to disclose the following category of documents:

All records in Rio Tinto’s possession, including:

• correspondence;

• studies conducted or prepared for Rio Tinto;

• studies conducted by ESSA Technologies Ltd. (“ESSA”); or

• research documents referred to or relied upon by Rio Tinto or ESSA

in relation to the Kitimat smelter modernization project that pertain to:

• the cost (capital and operating);

• engineering design;

• effectiveness; and

• installation

of potential sulphur scrubbing technology at the Kitimat aluminum smelter, that are in existence on the date when the Board’s decision on the Appellants’ document disclosure application (Decision Nos. 2013-EMA-007(b) & 2013-EMA-010(b)) is issued.


[95] In general, although the category 3 documents were not the subject of a request for voluntary disclosure before the Appellants’ applied for a document disclosure order, Rio Tinto has, in its submissions on the disclosure application, objected to disclosing these documents. In these circumstances, and given that the appeal hearing is scheduled to commence in approximately six weeks, it is appropriate for the Panel to consider whether Rio Tinto should be ordered to


disclose these documents, despite the absence of a previous request for voluntary disclosure.

Category 3(a) documents

All records of communications and correspondence between Rio Tinto and the Respondent in relation to:

a. the application by Rio Tinto to the Ministry to amend the Permit;

[96] The Panel finds that the Appellants have not clearly addressed how these documents may be relevant to the issues in the appeals. Also, the Panel is concerned that the Appellants are asking Rio Tinto to produce a potentially large volume of documents prepared over the course of several years, without limiting the request to the documents that may be relevant to the issues raised by the Appellants’ grounds for the appeals, statement of points, or expert reports. As the Board held in Seaspan, Notices of Appeal and statement of points help to frame the issues that will be decided at the appeal hearing, and they should be used in the context of pre-hearing applications to frame the issues and relevancy analysis. One of the reasons for this approach is to prevent requests for document disclosure from becoming an overly broad “fishing expedition,” which may unnecessarily delay the appeal process and impose an unreasonable burden on the party ordered to disclose the documents. Moreover, the Panel finds that the documents that are potentially most relevant to the merits of the Directors’ decision, and the appeals of that decision, are included in the other categories of documents sought by the Appellants, which are more specific.

[97] For these reasons, the Panel denies the Appellants’ application in regard to the category 3(a) documents.


[98] The Panel finds that, although the Appellants take issue with one clause of the 2007 and 2011 MOUs in their statement of points, the Appellants’ ground for appeal which alleges fettering of the Director’s discretion is broader than that. It is concerned with whether the Director was fettered by “pre-existing agreements” between the Province and Rio Tinto.

[99] The Panel agrees with Rio Tinto that drafts of the 2007 and 2011 MOUs, and any records of the negotiations leading up to the signing of the MOUs, are irrelevant, because they may not be reflected in the signed final versions MOUs. Those documents would be of limited assistance to the Board in deciding whether the Director’s discretion was fetterd by these MOUs, since they may not reflect the terms that allegedly fettered the Director’s discretion. However, the Panel finds that any amendments made after the MOUs were signed, and any records of communications and correspondence concerning the signed versions of the 2007 and 2011 MOUs, may be relevant to the issue of alleged fettering. Rio Tinto acknowledges that actions flowing from the executed 2007 and 2011 MOUs may be relevant to the issues in the appeals. Further, the Panel finds that the intended meaning of the 2007 and 2011 MOUs, and the Director’s understanding of how the MOUs should be interpreted and applied, may not be self-evident from the language in the MOUs. Consequently, document evidence regarding the meaning and intention of the signed MOUs may be relevant to the issues in the appeals.


[100] Accordingly, in respect of categories 3(b) and (c), the Panel grants the Appellants’ application in part. Rio Tinto is ordered to disclose the following categories of documents:

b. Records of communications and correspondence between Rio Tinto and the Respondent in relation to:

i. the signed final version of the 2007 MOU; and

ii. any amendments to the 2007 MOU that were made after it was signed.

c. Records of communications and correspondence between Rio Tinto and the Respondent in relation to:

i. the signed final version of the 2011 MOU; and

ii. any amendments to the 2011 MOU that were made after it was signed.


[101] Similar to the Panel’s findings regarding documents pertaining to the 2007 and 2011 MOUs, the Panel finds that documents relating to negotiations before the signing of the McKenzie MOU/Secondment Agreement, including drafts and records of negotiations, may not reflect the final McKenzie MOU/Secondment Agreement, and are irrelevant to the issues of whether the Director was fettered or there was a reasonable apprehension of bias. However, any amendments made after the McKenzie MOU/Secondment Agreement was signed, and any records of communications and correspondence concerning the signed version, may be relevant to the issues in the appeals. Evidence regarding the meaning and intention of the signed McKenzie MOU/Secondment Agreement may be relevant to the issues in the appeals.

[102] Accordingly, in respect of category 3(d), the Panel grants the Appellants’ application in part. Rio Tinto is ordered to disclose the following categories of documents:

d. Records of communications and correspondence between Rio Tinto and the Respondent in relation to:

i. the signed final version of the McKenzie MOU/Secondment Agreement; and

ii. any amendments to the McKenzie MOU/Secondment Agreement that were made after it was signed.

DECISION

[103] In deciding these preliminary applications, the Panel has considered all of the evidence and submissions before it, whether or not specifically reiterated herein.

[104] For the reasons set out above, the Appellants’ application to add the additional ground to their Notices of Appeal is granted.

[105] In addition, the Appellants’ application for an order requiring Rio Tinto to disclose certain categories of documents is granted in part. Rio Tinto is ordered to


disclose the documents set out in the Panel’s reasons above, by no later than September 5, 2014. In the event that the documents are not in Rio Tinto’s possession or control, it is ordered to provide a reasonably detailed summary of the efforts it undertook to locate the subject documents.

“Alan Andison”

Alan Andison, Chair Environmental Appeal Board

August 22, 2014

Documents

Fourth Floor 747 Fort Street Victoria British Columbia ... · STAR. 2. All records in Rio ... • studies conducted by ESSA Technologies Ltd. (“ESSA”); or • research documents