ENVIRONMENT
Judicial review concerning environmental assessment, regulatory approval of Cheviot coal mine project in western Alberta—Applicants challenging legality of authorization issued by Department of Fisheries and Oceans (DFO) pursuant to Fisheries Act permitting respondent Cardinal River Coals (CRC) to begin construction of coal mine—Applicants also challenging DFO’s decision not to conduct environmental assessment, under Canadian Environmental Assessment Act (CEAA), of changes to project—In 1996, CRC submitted project application to Alberta Energy and Utilities Board, Alberta Department of Environment, DFO proposing to develop coal mine (Cheviot project) near Hinton, Alberta— Three authorizations required under Fisheries Act, s. 35(2)— Joint federal-provincial review panel (Joint Review Panel) established to conduct required environmental assessment recommending, in 1997, Cheviot project receive regulatory approval subject to mitigation measures—In response (federal response), DFO concurred with panel’s recommendation, confirming need for mitigation measures, notably in relation to grizzly bears, need to include conditions for protection of migratory birds in relevant authorizations under Fisheries Act—After judicial review (Alberta Wilderness Assn. v. Cardinal River Coals Ltd., [1999] 3 F.C. 425 (T.D.)), second Joint Review Panel Report issued in September 2000, again recommending Cheviot project receive regulatory approval— Federal response followed—In August 2002, CRC announcing would proceed with Cheviot project in modified form on much reduced scale—Coal to be transported to existing plant by new haulroad—Haulroad received required approvals, in operation since October 2004—In December 2003, CRC requesting authorization from DFO for activities relating to construction of mine pit—Mine Pit Authorization, subject of judicial review, issued in September 2004, without further environ-mental assessment—Authorization permitting installation of water control structure so as to backflood creek, forming sediment pond—Issues: (1) whether DFO required to prepare environmental assessment of modifications made to Cheviot project pursuant to CEAA, s. 15(3); (2) whether DFO erred by concluding haulroad did not trigger environmental assessment under CEAA, s. 5; (3) whether DFO erred in issuing Mine Pit Authorization without ensuring implementation of mitigation measures identified in federal responses, such that, under CEAA, s. 37(1.1), authorization not in conformity with federal responses; (4) whether DFO acted contrary to law in issuing authorization permitting activities prohibited by Migratory Birds Convention Act, Migratory Birds Regulations—In context of CEAA, questions relating to interpretation of statutory provisions subject to standard of review of correctness, while questions relating to exercise of discretion by responsible authority pursuant to CEAA, ss. 15, 16 subject to standard of review of reasonableness simpliciter—Without final determination on question, standard of review for DFO’s decision under CEAA, s. 37(1.1) that of reasonableness simpliciter—Applications dismissed—(1) No obligation to assess haulroad arising from CEAA, s. 15(3) as haulroad not “modification” to Cheviot project within meaning of “project” in CEAA, s. 2(1), within meaning of CEAA, s. 15(3)—No case law compelling responsible authority to, in effect, re-open completed environmental assessment—CEAA, s. 15(3) not imposing free-standing obligation to conduct environmental assessment outside scope of project as determined under CEAA, s. 15(1)—Herein, haulroad not included in scope of project—Modifications to Cheviot project in fact reducing environmental impacts—Fact impact assessment biologist incorrectly identified CEAA, s. 24 as provision under which acting irrelevant as correctly carried out appropriate task required under CEAA, s. 37(1.1)—CEAA, s. 15(3) not applying to require further assessment of Cheviot mine project —(2) DFO did not err by concluding haulroad did not trigger environmental assessment under CEAA, s. 5—Causeway, over which haulroad placed, applied for, authorized as part of original project; primary purpose of causeway to create sediment pond—As such, assessed by Joint Review Panel—(3) DFO did not err in issuing Mine Pit Authorization without ensuring implementation of mitigation measures identified in federal responses—(a) With respect to Harlequin ducks, based on information before decision maker, decision to omit any conditions related to Harlequin ducks from authorization not unreasonable—In any event, DFO committed to amending authorization should it be deemed necessary by Environment Canada—(b) With respect to grizzly bear protection, DFO took necessary steps to ensure mitigation measures identified in federal responses would be implemented—Disbanding of particular committees created for protection of grizzly bear irrelevant in view of joint federal-provincial initiatives to address cumulative impact on grizzly bear population, implement recommendations of Joint Review Panel reports— Decision to issue Mine Pit Authorization in conformity with federal responses on issue of grizzly bear protection—(4) Doctrine of issue estoppel not applicable on basis of conclusions made in Alberta Wilderness Association as parties not identical; as Mine Pit Authorization had not been drafted at time of decision, issues not identical; Court’s findings therein with respect to Migratory Birds Regulations did not form basis of final judgment—Given important difference as to amount of waste rocks involved, deference to or reliance on conclusion that deposit of rocks would be harmful in context of Access Corridor authorization would be inappropriate in context of Mine Pit Authorization, on basis of limited facts now before Court—DFO, as regulatory body, bearing no responsibility for actions of CRC in event of breach of Migratory Birds Regulations, s. 35(1) by CRC—R. v. Ontario (Ministry of the Environment), [2001] O.J. No. 2581 (Ct. J.) (QL) not standing for proposition that, by granting approval within its statutory mandate, DFO “permitting deposit” in context of Migratory Birds Regulations, s. 35(1)—Case serving to highlight distinction between government entity acting as authorizing body on one hand, government entity in actual management, control of property on other—In issuing Mine Pit Authorization under Fisheries Act, DFO not “permitting” CRC to deposit “millions of tonnes of waste rock, materials into waters, other areas frequented by migratory birds”—Even then (far from proven), actions of DFO in issuing Fisheries Act authorization not “contrary to law” within meaning of Federal Courts Act, s. 18.1(1)(4) simply because deposit of such materials may be prohibited under Migratory Birds Regulations, s. 35(1)—Fisheries Act, R.S.C., 1985, c. F-14, s. 35(2)—Canadian Environmental Assessment Act, S.C. 1992, c. 37, ss. 5, 15(1), (3) (as am. by S.C. 1993, c. 34, s. 21(F)), 24 (as am. idem, s. 27(F); 1994, c. 46, s. 2), 37(1.1) (as enacted idem, s. 3)—Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 18.1(1) (as enacted by S.C. 1990, c. 8, s. 5), (4) (as enacted idem; 2002, c. 8, s. 27)—Migratory Birds Regulations, C.R.C., c. 1035, s. 35(1)—Migratory Birds Convention Act, R.S.C., 1985, c. M-7.
Pembina Institute for Approriate Development v. Canada (Minister of Fisheries and Oceans) (T‑1488‑04, 2005 FC 1123, Snider J., order dated 17/8/05, 39 pp.)