ENVIRONMENT |
Hamilton-Wentworth (Regional Municipality) v. Canada (Minister of Environment)
T-1400-99, T-1401-99, T-1993-99
2001 FCT 381, Dawson J.
24/4/01
77 pp.
Judicial review of Environment Minister's decision to refer proposed expressway project to review panel under Canadian Environmental Assessment Act (CEAA)--At issue construction and operation of north-south expressway to link two existing east-west limited access expressways (Queen Elizabeth Way, or QEW, and Highway 403) in Hamilton, Ontario--1977 study of all alternate alignments for north-south portion of Expressway recommended proposed route through Red Hill Creek Valley--Regional Municipality of Hamilton-Wentworth (Region) approved route in 1979--Joint Board, consisting of members of Ontario Municipal Board and Ontario Environmental Assessment Board, approved proposed freeway, and project received all provincial approvals--But provincial government withdrew commitment to fund north-south portion of Expressway in 1990--Construction of Expressway below Niagara Escarpment in Red Hill Valley suspended, but east-west segment of Expressway and north-south portion of Expressway above Niagara Escarpment continued--When funding restored in 1995, Region initiated consultations to see whether original design could be improved--In 1997 Region submitting Draft Summary Report (DSR)--DFO advising Region proposal might have harmful impact upon fish, fish habitat which was prohibited by Fisheries Act, s. 35(1) necessitating issuance of authorization under s. 35(2), in turn triggering application of CEAA--On May 6, 1999, further to Fisheries Minister's request, Environment Minister referring project to review panel pursuant to CEAA, s. 25(a), (b)--On July 5, 1999 Environment Minister issued panel's terms of reference, appointed panel members--On July 9, 1999, Region refusing to participate in CEAA process--On August 4, Region filed T-1400-99 challenging July 5 decision, Chamber of Commerce filed T-1401-99 challenging appointment of Sally Lerner to review panel--On October 15, 1999 panel released Environmental Impact Statement (EIS) Guidelines--On November 15 Region filed T-1991-99 challenging consideration of project under CEAA, appointment of Nick Mulder, issuance of EIS Guidelines--Panel suspended review until Region submitted EIS--Issues Region seeking to raise: whether Minister's referral of matter to panel review and panel's terms of reference constitutionally or statutorily ultra vires; whether EIS Guidelines statutorily ultra vires; whether there was jurisdiction to refer matter to panel review, to appoint panel, to set panel's terms of reference; whether CEAA applies to project; whether panel disqualified by Mulder's appointment--Preliminary issues whether Federal Court Act, s. 18.1(2) barring challenges to May 4, 6 decisions; whether issues Region asserting as to applicability of CEAA to project barred due to delay--As neither consent nor delay can confer any power to act beyond limits imposed, respondent Ministers could not refer project to panel review or apply CEAA in excess of statutory limits--Arguments directed to statutory limits therefore not barred--If CEAA, as matter of law, inapplicable to project, any referral made thereunder nullity because referring Minister would have not jurisdiction to refer project to panel review--Statutory requirements must be met and failure to challenge earlier step not changing those requirements--Primary relief prohibition of panel from proceeding with panel review--Applications in respect of present acts, intended future acts implementing prior decision to refer matter to panel review--Pursuant to Krause v. Canada, [1999] 2 F.C. 476 (C.A.) those implementing actions reviewable--Region entitled to argue CEAA not applicable either because of effect of s. 74(4) or because project not "project" to which CEAA applies because CEAA cannot be applied in excess of statutory limits--Too late to challenge on other than jurisdictional grounds need for Fisheries Act authorization--Notwithstanding whether CEAA applies to project, Region must comply with process required under Fisheries Act absent jurisdictional reason--(1) CEAA, s. 74(4) providing where construction or operation of physical work or carrying out of physical activity initiated before June 22, 1984, Act shall not apply in respect of issuance of approval of project unless entails modification--As expressway "physical work", phrase "or the carrying out of a physical activity" in s. 74(4) not applicable--Thus questions whether with respect to Expressway (a) construction or operation of physical work initiated before June 22, 1984 or (b) issuance of any approval involving modification--(a) Purpose of CEAA to require proponent of project to consider, be prepared to justify, things such as need for project, alternatives to project, alternative means of carrying out project, in planning stages of project, and before irrevocable decisions made concerning project--"Construction" as used in s. 74(4) including series of events such as acquiring and clearing land, imposing building restrictions, securing funding, approvals, all dedicated to and prerequisites to, actual physical step of construction--Whether action both necessary prerequisite to "shovel hitting the ground" and dedicated to particular project so that evidences irrevocable decision to proceed with project crucial to determination of whether step part of initiation of construction within s. 74(4)--Actions by Region, predecessor, to designate location, right of way of highway on official plan, acquire land for freeway purposes, demolish buildings in preparation of highway corridor, restrict development, acquire easements, impose development standards with respect to that corridor, constituting initiation of construction of physical work including project at issue--Such construction initiated before June 22, 1984--(b) For purpose of interpreting applicability of CEAA, s. 74(4) respondents bound by scoping of project--Proposed panel review not in respect of any "modification", "alteration" so as to oust grandfathering effect of s. 74(4)--CEAA also not applicable to proposed work because prior to coming into force of CEAA, irrevocable decisions made by Region about proposed transportation corridor--Applications for judicial review in T-1400-99, T-1993-99 allowed and declaration issued that CEAA not applicable to completion of project, and no review required under CEAA--Judicial review in T-1401-99 dismissed--(2) Fisheries Minister requested Environment Minister to refer project, as scoped by DFO to review panel based on level of public concern--Whether purported exercise of federal authority to refer matter to panel review under CEAA linked to Minister's jurisdiction with respect to migratory birds, or otherwise properly grounded because of level of public concern--Respondent Ministers contending Migratory Birds Convention conferring jurisdiction upon federal government with respect to habitat protection to extent some effects on habitat can constitute direct threat to migratory birds, nests, eggs--As main purpose of panel review to explore independently genuine need for project, not sufficient proximity between migratory bird concerns, establishing independently need for Expressway--Environmental assessment must be connected to regulatory authority capable of triggering CEAA--Federal power in respect of migratory birds not supporting referral of project to panel review--Jurisdiction over environmental matters must be linked to head of power--Applies to provisions in CEAA authorizing Environment Minister to refer project to panel review based on public concerns--Any referral on this ground must be based upon public concern about environmental effects linked to some federal head of power--Public concern focussed on need for, alternatives to project, areas of exclusive provincial jurisdiction, could not support exercise of federal authority referring project to panel review--Environment Minister's decision to refer project to panel review not supported by valid head of federal power, thus ultra vires--Canadian Environmental Assessment Act, S.C. 1992, c. 37, ss. 25, 74(4)--Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1(2) (as enacted by S.C. 1990, c. 8, s. 5)--Fisheries Act, R.S.C., 1985, c. F-14, s. 35.