T-80-89
Canadian Wildlife Federation Inc., Gordon Geske
and Joseph Dolecki (Applicants)
v.
Minister of the Environment and Saskatchewan
Water Corporation (Respondents) *
Trial Division, Cullen J.—Regina, March 30;
Ottawa, April 10, 1989.
INDEXED AS: CANADIAN WILDLIFE FEDERATION INC. V.
CANADA (MINISTER OF THE ENVIRONMENT) (T.D.)
Environment — Minister of Environment granting provin
cial Crown corporation licence under International River
Improvements Act to build dams on Souris River — Duty of
Minister to comply with Environmental Assessment and
Review Process Guidelines Order before granting licence —
Project "proposal having potential environmental effects on
areas of federal responsibility" within meaning of Guidelines
Order, s. 6 — No duplication of review as provincial environ
ment impact statement not dealing with certain areas of feder
al concern — Application for certiorari and mandamus
allowed.
Judicial review — Prerogative writs — Minister of Environ
ment required to comply with Environmental Assessment and
Review Process Guidelines Order before issuing licence under
International River Improvements Act — Guidelines enact
ment or regulation within meaning of Interpretation Act —
Failure to comply with statutory prerequisite amounting to
excess of jurisdiction — Non-performance of duty to prepare
environmental assessment and review — Certiorari and man-
damus granted.
The Saskatchewan Water Corporation, a provincial Crown
corporation, was granted a licence for the construction of the
Rafferty and Alameda dams on the Souris River Basin (the
Project). The licence was issued by the Minister of the Environ
ment pursuant to the International River Improvements Act.
The Souris River, which has its source in Saskatchewan flows
into North Dakota (U.S.A.) and then northward into Manito-
* Editor's Note: This decision has been affirmed on appeal.
The reasons for judgment of the Federal Court of Appeal
(A-228-89), rendered on June 22, 1989, will be digested for
publication. The repeated use of the word "shall" in the
Environmental Assessment and Review Process Guidelines
Order indicates a clear intention that the Guidelines shall bind
all those to whom they are addressed, including the Minister of
the Environment. The Court of Appeal also held that the
wording of section 6 of the Department of the Environment Act
supported a power to make binding subordinate legislation.
ba, is considered to be an international river, and the Project,
an international river improvement within the meaning of that
Act and Regulations thereto.
The applicant contends that the Minister, before granting the
licence, should have undertaken, pursuant to the Environmen
tal Assessment and Review Process Guidelines Order, an
assessment and review to determine whether the Souris River
Project involved any potentially adverse environmental effects.
It is alleged that in failing to conduct such an assessment, the
Minister did not comply with a statutory prerequisite, thereby
exceeding his jurisdiction. The Minister submits that the
Guidelines Order applies to proposals undertaken by a federal
agency or having an environmental impact on an area of
federal responsibility. It is further submitted that to conduct an
environmental screening of a project which has already been
subjected to a provincial environmental assessment review
would constitute an unwarranted duplication of process.
This is an application for certiorari setting aside the licence
and for mandamus requiring the Minister to comply with the
Guidelines Order.
Held, the application should be allowed.
The Minister of the Environment is required to comply with
the provisions of the Environmental Assessment and Review
Process Guidelines Order before issuing a licence under the
International River Improvements Act. Section 6 of the Guide
lines Order specifically provides that the Guidelines shall apply
to "any proposal that may have an environmental effect on an
area of federal responsibility". "Proposal" includes any initia
tive, undertaking or activity for which the Government of
Canada has a decision making responsibility. Issuing a licence
under the International River Improvements Act for the Souris
River Project constitutes such a "decision making responsibili
ty".
The Project clearly has an environmental effect on land
owned, or at the very least, held in trust and administered by
the Federal Government. It will also have an environmental
impact on a number of areas of federal responsibility, namely,
international relations, transboundary water flows, migratory
birds, interprovincial affairs and fisheries.
The application of the Guidelines Order will not result in
unwarranted duplication. Since a number of federal concerns
were not dealt with by the provincial environment impact
statement (including a review of the impact of the Project in
North Dakota and Manitoba), an assessment prepared in
accordance with the Guidelines Order will fill in necessary
information gaps.
Section 6 of the Department of the Environment Act confers
on the Minister of the Environment authority to establish
guidelines for use by departments, boards and agencies. The
Guidelines Order is therefore not a mere description of a policy
or programme. It is an enactment or regulation within the
meaning of section 2 of the Interpretation Act and, as such,
may create rights enforceable by way of mandamus.
By not applying the provisions of the Guidelines Order, the
Minister failed to comply with a statutory prerequisite, thereby
exceeding his jurisdiction. Moreover, the Minister, as partici
pant in a proposal that may have adverse environmental effects,
had the duty to prepare an assessment and review. The excess
of jurisdiction and the non-performance of that duty entitle the
applicants to certiorari and mandamus.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Boundary Waters Treaty, S.C. 1911, c. 28 Schedule.
Department of the Environment Act, R.S.C., 1985, c.
E-10, ss. 5, 6.
Environmental Assessment and Review Process Guide
lines Order, SOR/84-467, ss. 2, 3, 4, 5, 6, 10, 12, 20.
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.
International River Improvements Act, R.S.C., 1985, c.
1-20, ss. 2, 3, 4.
International River Improvements Regulations, C.R.C.,
c. 982, ss. 2, 6, 7, 8 (as am. by SOR/87-570, s. 4), 10.
Interpretation Act, R.S.C., 1985, c. I-21, s. 2.
Migratory Birds Convention, Schedule to the Migratory
Birds Convention Act, R.S.C., 1985, c. M-7.
CASES JUDICIALLY CONSIDERED
APPLIED:
Re Braeside Farms Ltd. et al. and Treasurer of Ontario
et al. (1978), 20 O.R. (2d) 541 (Div. Ct.); Re McKay
and Minister of Municipal Affairs (1973), 35 D.L.R.
(3d)627 (B.C.S.C.).
REFERRED TO:
Young v. Minister of Employment and Immigration
(1987), 8 F.T.R. 218 (F.C.T.D.); Re Ferguson and Com
missioner for Federal Judicial Affairs (1982), 140
D.L.R. (3d) 542 (F.C.T.D.); Maple Lodge Farms Ltd. v.
R., [1981] 1 F.C. 500 (C.A.); aff d [1982] 2 S.C.R. 2.
AUTHORS CITED
Jones, David P. and de Villars, Anne S. Principles of
Administrative Law. Toronto: Carswell Co. Ltd., 1985.
COUNSEL:
Brian A. Crane, Q. C. and Martin Mason for
applicants.
Craig Henderson for respondent Minister of
Environment.
D. E. Gauley, Q.C. and Clifford B. Wheatley
for respondent Saskatchewan Water Corpora
tion.
SOLICITORS:
Gowling & Henderson, Ottawa, for appli
cants.
Deputy Attorney General of Canada for
respondent Minister of Environment.
Gauley & Co., Saskatoon, for respondent Sas-
katchewan Water Corporation.
The following are the reasons for order ren
dered in English by
CULLEN J.: This is an application pursuant to
section 18 of the Federal Court Act [R.S.C., 1985,
c. F-7] for:
1. an order in the nature of certiorari quashing
and setting aside a licence issued by the respon
dent Minister of the Environment on June 17,
1988 to the respondent Saskatchewan Water Cor
poration for permission to carry out works and
undertakings in connection with the Rafferty-
Alameda Project on the Souris River Basin, pursu
ant to the International River Improvements Act;
and
2. for an order in the nature of mandamus requir
ing the respondent Minister to comply with the
Environmental Assessment and Review Process
Guidelines Order, SOR/84-467 in considering the
application of the respondent Saskatchewan Water
Corporation for a licence under the International
River Improvements Act.
On February 12, 1986, the Premier of Saskatch-
ewan announced that it was the intention of the
government of Saskatchewan to proceed with the
construction of the Rafferty and Alameda Dams
on the Souris River System (the Project). The
Souris River is both an international and interpro-
vincial river. It rises in Saskatchewan and flows
into North Dakota and then northward into
Manitoba where it eventually merges with the
Assiniboine River.
On May 6, 1986 the Souris Basin Development
Authority (the Authority), a provincial Crown cor
poration, was established with the responsibility to
develop the Project on behalf of another Crown
corporation, the respondent Saskatchewan Water
Corporation. On August 4, 1987, the Authority
submitted to the Minister of Environment for Sas-
katchewan an Environmental Impact Statement.
Approval to proceed with the Project was given on
February 15, 1988, by the Minister of Environ
ment for Saskatchewan.
On January 7, 1988, the respondent Saskatche-
wan Water Corporation applied to the respondent
Minister of the Environment pursuant to the provi
sions of the International River Improvements
Act, R.S.C., 1985, c. I-20, and Regulations there
to, for a licence to build the dams and carry out
other works on the Souris River System. The
licence was issued on June 17, 1988.
The applicant Canadian Wildlife Federation
Inc. on several occasions requested the respondent
Minister of the Environment to conduct an assess
ment and review under the Environmental Assess
ment and Review Process Guidelines Order,
SOR/84-467 (EARP Guidelines Order) in consid
ering the licence application. This was not done.
The environmental impact assessment prepared in
Saskatchewan did not contain an environmental
assessment and review of the environmental
impact of the Project in North Dakota, U.S.A., or
in Manitoba. Also, no assessment and review of
the environmental impact of the project in Manito-
ba was prepared in Manitoba.
According to the applicant Wildlife Federation,
the impact of the Project on wildlife and wildlife
habitat will be adverse and substantial. Evapora
tion from the reservoirs created behind the Raffer-
ty Dam and the Alameda Dam will account for
large declines in water flows in the Souris River to
North Dakota and Manitoba. The reduced flows
will decrease water quality downstream of the dam
in Saskatchewan, North Dakota and Manitoba as
well as damage the Upper Souris and J. Clark
Salyer National Wildlife refuges and the Lake
Darling fishery. Riparian habitat critical to
numerous rare and threatened animal and plant
species will be destroyed by flooding or other
activities associated with the construction of the
Rafferty Dam (affidavit of K. Brynaert, Exhibit L,
affidavit of L. Scott).
APPLICANTS' POSITION
The applicants' position is essentially that the
respondent Minister, before granting a licence
under the International River Improvements Act,
must comply with the provisions in the EARP
Guidelines Order. By not complying with a statu
tory prerequisite, the respondent Minister has
exceeded his jurisdiction and therefore the appli
cants are entitled to an order for certiorari, quash
ing and setting aside the licence issued by the
Minister and an order for mandamus requiring the
Minister to comply with the EARP Guidelines
Order.
Section 4 of the International River Improve
ments Act requires that a person hold a valid
licence in order to construct, operate or maintain
an international river improvement. The Souris
River is considered to be an international river
within the meaning of this Act and Regulations.
The Project (the two dams) is also considered to
be "an international river improvement" within
the meaning of this Act and Regulations. There
fore, according to the applicants, there is no dis
pute that the respondent Minister is authorized to
issue a licence for the Project upon compliance
with certain requirements set out in the Interna
tional River Improvements Regulations, C.R.C.,
c. 982, as amended by SOR/87-570, sections 6
and 10.
The Governor in Council approved the EARP
Guidelines Order on June 21, 1984 for use by
departments, boards and agencies in the exercise
of their powers and the carrying out of their duties
and functions. The applicants submit that the
EARP Guidelines Order is both a regulation and
an enactment within the meaning of section 2 of
the Interpretation Act, R.S.C., 1985, c. I-21 and
must be followed by the respondent Minister in
exercising his functions under the International
River Improvements Regulations. The applicants
further argue that the EARP Guidelines Order
applies to proposals that are undertaken by an
initiating department or that may have an environ
mental effect on an area of federal responsibility
and that the Project is just such a proposal.
Under the EARP Guidelines Order, proposals
are subject to an environmental screening or initial
assessment to determine whether there may be any
potentially adverse environmental effects from the
proposal. Where a proposal may cause significant
adverse environmental effects, the proposal must
be referred for public review by an Environmental
Assessment Panel (sections 3, 10, 12, 20). As this
was not done, the respondent Minister did not
comply with a statutory prerequisite when he
granted the licence. The applicants contend that
granting a licence without complying with a statu
tory prerequisite constitutes an excess of jurisdic
tion and submit that this excess of jurisdiction
gives rise to certiorari and mandamus.
RESPONDENTS' POSITION
The respondent Minister's position is essentially
that he is not required to comply with the EARP
Guidelines Order when issuing a licence under the
International River Improvements Act and Regu
lations. The respondent maintains that the federal
process as outlined in the EARP Guidelines Order,
applies to proposals undertaken by a federal
agency, funded by the federal government, located
on federal land or having an environmental effect
on an area of federal responsibility. Further, in
cases where a department has a regulatory func
tion in respect of a proposal, the EARP Guidelines
Order applies only if there is no legal impediment
to or duplication resulting from the application of
the process. The respondent submits that the
Projet is a provincial initiative funded by the prov
ince of Saskatchewan, located on provincial land
and has been subjected to a formal review and
board of inquiry by the provincial Department of
Environment and Public Safety. Therefore, to
undertake a federal environmental assessment
review of the Project, which has already been
subjected to the Saskatchewan process and which
in principle meets the EARP requirements would
be an unwarranted duplication.
In essence, the application before me concerns
the validity of the licence granted by the respon
dent Minister of the Environment for the Project
(namely the Rafferty-Alameda Dams). The specif
ic issues that I have to determine are:
1. whether the federal Minister of the Environ
ment, before granting a licence under the Interna
tional River Improvements Act and Regulations, is
required to comply with the EARP Guidelines
Order; and
2. whether the federal Minister of the Environ
ment, in granting a licence to the respondent Sas-
katchewan Water Corporation, exceeded his juris
diction, in view of the fact that no environmental
assessment and review was carried out pursuant to
the EARP Guidelines Order.
This is an appropriate time to review the rele
vant legislative provisions.
The International River Improvements Act is
administered by the Department of the Environ
ment. Sections 2, 3, 4 are set out below:
2. In this Act,
"international river" means water flowing from any place in
Canada to any place outside Canada;
"international river improvement" means a dam, obstruction,
canal, reservoir or other work the purpose or effect of which
is
(a) to increase, decrease or alter the natural flow of an
international river, and
(b) to interfere with, alter or affect the actual or potential
use of the international river outside Canada;
3. The Governor in Council may, for the purpose of develop
ing and utilizing the water resources of Canada in the national
interest, make regulations
(a) respecting the construction, operation and maintenance
of international river improvements;
(b) respecting the issue, cancellation and suspension of
licences for the construction, operation and maintenance of
international river improvements;
(c) prescribing fees for licences issued under this act; and
(d) excepting any international river improvements from the
operation of this Act.
4. No person shall construct, operate or maintain an interna
tional river improvement unless that person holds a valid
licence therefor issued under this Act.
The International River Improvements Regula
tions established under the International River
Improvements Act, provide the Minister of the
Environment with authority to approve water
projects developed in international rivers by issu
ing either a licence or a certificate of exception.
Licences are issued for water projects on interna
tional rivers unless they are exempt from the oper
ation of the Act and Regulations. The purpose of
the Act and Regulations is to ensure that the
long-term national interest is safeguarded in water
resource developments in international rivers. Cer
tain terms and conditions are stipulated in the
licence issued under the Regulations. Compliance
of a licensee with the terms and conditions is
monitored through a review of reports or informa
tion, or a site inspection. The Act includes a
penalty clause for violating the Act or Regulations
(Regulatory Impact Analysis Statement,
SOR/87-570).
Several conditions are contained in the licence
granted by the Minister of Environment to the
Saskatchewan Water Corporation:
I. Should the construction of any portion of the improvement,
as specified in the Licensee's application of January 7, (988,
fail to proceed within seven years from the date of issuance of
this Licence, this Licence shall apply only to the portion of the
improvement constructed or under construction.
2. The Licensee shall comply with any obligations and respon
sibilities which Canada may assume under any agreement
entered into with the United States in respect of the improve
ment, and any subsequent agreements thereto.
3. The Licensee shall meet the International Joint Commis
sion's "1959 Interim Measures" on the Souris River flow
apportionment or any subsequent amended apportionment
measures adopted by the Governments of Canada and the
United States.
4. The Licensee and the Minister shall develop in consultation
with the other affected jurisdictions by April 1, 1990 water
quality objectives for the Souris River at the international
boundary, including criteria for their application, a monitoring
plan and reporting requirements.
5. The Licensee shall, in consultation with the Minister, put in
place a program of monitoring water quality and quantity in
the areas affected by the improvement within Saskatchewan so
as to provide itself with the information needed to determine if
the water quality objectives and flow apportionment measures
are achieved at the Saskatchewan-North Dakota boundary.
6. The costs of the required water quality and quantity moni
toring activities in Saskatchewan and at the Saskatchewan-
North Dakota boundary over and above those now being
conducted by Canada shall be fully borne by the Licensee.
7. The Licensee, as and when requested, shall provide the
Minister with information on water quality and quantity within
the areas in Saskatchewan affected by the improvement.
8. The Licensee shall construct, operate and maintain the
improvement so that the improvement will not cause a net loss
of waterfowl productivity in the Saskatchewan portion of the
Souris River Basin.
9. The Licensee shall not divert water from outside the Souris
River drainage basin if such diverted waters would increase the
annual flow of the Souris River at the international boundary
above that which would have occurred in a state of nature.
10. The Licensee shall construct, operate and maintain the
improvement in such manner as shall not contravene the Inter
national Boundary Waters Treaty of 1909.
1 I . The Licensee shall comply with the provisions of all federal
statutes that relate to the improvement and with the relevant
provisions of any regulations made pursuant to such statutes. In
addition, the Licensee shall comply with the specific terms and
conditions which apply to the improvement contained in the
provincial Ministerial Approval under the Environmental
Assessment Act of the province of Saskatchewan, dated Febru-
ary 15, 1988.
12. The Licensee shall at all times indemnify and save harm
less the Minister from and against all claims and demands, loss,
costs, damages, actions, suits or other proceedings by whomso
ever made, brought or prosecuted, in any manner based upon,
occasioned by or attributable to the execution of these Presents,
or any action taken or things done or maintained by virtue
hereof, or the exercise in any manner of the rights arising
hereunder.
Section 2 of the International River Improve
ments Regulations set out the following defini
tions:
2. In these Regulations,
"Act" means the International River Improvements Act;
"international river" means water flowing from any place in
Canada to any place outside Canada;
"international river improvement" means a dam, obstruction,
canal, reservoir or other work the purpose or effect of which
is
(a) to increase, decrease or alter the natural flow of an
international river, and
(b) to interfere with, alter or affect the actual or potential
use of the international river outside Canada;
Sections 6, 7 and 8 [rep. and sub. by SOR/87-
570, s. 4] deal with applications:
6. An application for a licence under the Act shall be
addressed to the Minister and shall contain the following
information:
(a) the name, address and occupation of the applicant;
(b) the name and a clear description of the international
river on which an international river improvement is to be
made;
(c) the place where the said improvement is to be made and
a description of the improvement;
(d) details as to the effect of the improvement on the level or
flow of water at the Canadian boundary;
(e) details as to the effect of the improvement on the use of
water outside Canada;
(f) details of the adverse effects of the improvement on flood
control and other uses of water together with information as
to plans to minimize such effects;
(g) a brief economic analysis of the direct and indirect
benefit and costs of and resulting from the improvement; and
(h) any further details concerning the improvement tending
to indicate that it is compatible with a sound development of
the resources and economy of Canada.
7. An application for a licence shall be accompanied by
(a) details of any agreement if it is intended to sell outside
Canada, any part of the Canadian share of down-stream
power resulting from a proposed international river improve
ment; and
(b) a copy of the licence for the project issued by the
appropriate provincial authority.
8. An application for a licence shall contain such further
information pertaining to the international river improvement
and associated works as may be required by the Minister.
and section 10 deals with licences:
10. (1) Where an applicant for a licence has supplied all the
information required by these Regulations the Minister may
(a) issue to him a licence for a period not exceeding 50 years;
and
(b) upon the expiration of any licence issue a futher licence
for a period not exceeding 50 years.
(2) Each licence shall stipulate the terms and conditions
under which the international river improvement may be con
structed, operated and maintained, and the period for which it
is issued.
The Environmental Assessment and Review
Process Guidelines Order sets out the require
ments and procedures of the federal Environmen
tal Assessment and Review Process and the
responsibilities of the participants therein. This
Order was formulated pursuant to subsection 6(2)
of the Government Organization Act, 1979, S.C.
1978-79, c. 13, s. 14, now the Department of the
Environment Act, R.S.C., 1985, c. E-10, section 6.
Section 6 provides:
6. For the purposes of carrying out his duties and functions
related to environmental quality, the Minister may, by order,
with the approval of the Governor in Council, establish guide
lines for use by departments, boards and agencies of the
Government of Canada and, where appropriate, by corpora
tions named in Schedule III to the Financial Administration
Act and regulatory bodies in the exercise of their powers and
the carrying out of their duties and functions.
The relevant provisions of the Order are set out
below:
2. In these Guidelines,
"Environmental Impact Statement" means a documented
assessment of the environmental consequences of any pro
• posai expected to have significant environmental conse
quences that is prepared or procured by the proponent in
accordance with guidelines established by a Panel;
"department" means, subject to sections 7 and 8,
(a) any department, board or agency of the Government of
Canada, and
(b) any corporation listed in Schedule D to the Financial
Administration Act and any regulatory body;
"initiating department" means any department that is, on
behalf of the Government of Canada, the decision making
authority for a proposal;
"Minister" means the Minister of the Environment;
"proponent" means the organization or the initiating depart
ment intending to undertake a proposal;
"proposal" includes any initiative, undertaking or activity for
which the Government of Canada has a decision making
responsibility.
3. The Process shall be a self assessment process under which
the initiating department shall, as early in the planning process
as possible and before irrevocable decisions are taken, ensure
that the environmental implications of all proposals for which it
is the decision making authority are fully considered and where
the implications are significant, refer the proposal to the Minis
ter for public review by a Panel.
4. (I) An initiating department shall include in its consider
ation of a proposal pursuant to section 3
(a) the potential environmental effects of the proposal and
the social effects directly related to those environmental
effects, including any effects that are external to Canadian
territory; and
(b) the concerns of the public regarding the proposal and its
potential environmental effects.
(2) Subject to the approval of the Minister and the Minister
of the initiating department, consideration of a proposal may
include such matters as the general socio-economic effects of
the proposal and the technology assessment of and need for the
proposal.
5. (1) Where a proposal is subject to environmental regula
tion, independently of the Process, duplication in terms of
public reviews is to be avoided.
(2) For the purpose of avoiding the duplication referred to in
subsection (1), the initiating department shall use a public
review under the Process as a planning tool at the earliest
stages of development of the proposal rather than as a regulato
ry mechanism and make the results of the public review
available for use in any regulatory deliberations respecting the
proposal.
6. These Guidelines shall aply to any proposal
(a) that is to be undertaken directly by an initiating
department;
(b) that may have an environmental effect on an area of
federal responsibility;
After reviewing the above-noted provisions, it is
clear that a person must hold a valid licence in
order to construct, operate or maintain an interna
tional river improvement. The issuance of the
licence relates directly to the fact that the con
struction will have some effect or interfere with an
international river. The Minister of the Environ
ment has the discretion to issue the licence, upon
compliance with certain requirements set out in
the Regulations. There is no doubt that the Project
falls within the definition of an "international river
improvement" and that the Souris River is an
"international river".
It is also clear that the Minister of the Environ
ment, for the purpose of carrying out his duties
and functions (re preservation and enhancement of
environmental quality as set out in section 5 of the
Department of the Environment Act) may by
order, with the approval of the Governor in Coun
cil, establish guidelines for use by departments,
boards and agencies of the Government of Canada
and I agree that the EARP Guidelines Order is an
enactment or, regulation as defined in section 2 of
the Interpretation Act, i.e.:
"enactment" means an Act or regulation or any portion of an
Act or regulation;
"regulation" includes an order, regulation, rule, rule of court,
form, tariff of costs or fees, letters patent, commission,
warrant, proclamation, by-law, resolution or other instru
ment issued, made or established
(a) in the execution of a power conferred by or under the
authority of an Act, or
(b) by or under the authority of the Governor in Council;
Therefore, EARP Guidelines Order is not a mere
description of a policy or programme; it may
create rights which may be enforceable by way of
mandamus (see Young v. Minister of Employment
and Immigration (1987), 8 F.T.R. 218 (F.C.T.D.)
at page 221).
However, the question to be determined at this
stage is whether the respondent Minister of the
Environment is required to comply with the provi
sions of the EARP Guidelines Order when issuing
a licence under the International River Improve
ments Act. At first glance it appears that the
EARP Guidelines are for use only by departments,
boards, agencies of the Government of Canada
(see definitions of "department" and "initiating
department" in the Order) and there is some merit
to the respondent Minister's position that the
Project is a provincial undertaking subject only to
provincial regulations and guidelines. However,
section 6 of the EARP Guidelines Order specifi
cally provides that these guidelines shall apply to
any proposal that may have an environmental
effect on an area of federal responsibility. Proposal
includes any initiative, undertaking or activity for
which the Government of Canada has a decision
making responsibility. Issuing a licence under the
International River Improvements Act for the
Project constitutes a "decision making responsibili
ty".
The Project will also have an environmental
impact on a number of areas of federal responsibil
ity, namely, international relations, the Boundary
Waters Treaty [S.C. 1911, c. 28, Schedule] (trans-
boundary water flows), migratory birds (by virtue
of the Migratory Birds Convention [Schedule to
the Migratory Birds Convention Act, R.S.C.,
1985, c. M-7]), interprovincial affairs and fisher
ies. These areas are dealt with more specifically in
a letter dated July 6, 1987 from R. A. Halliday,
Environment Canada to R. E. W. Walker, Sas-
katchewan Environment and Public Safety
(Exhibit 6, affidavit of Lorne Scott). The follow
ing are some excerpts from this letter:
In response to your letter of June 9, Environment Canada has
reviewed the Rafferty/Alameda Environmental Impact State
ment provided by Saskatchewan Environment and Public
Safety. The Souris Basin Development Authority has provided
a comprehensive assessment of the Rafferty project, and certain
chapters and sections were complete and accurate. However,
there are a number of important information gaps related to
assessing implications for federal responsibilities concerning
this project.
Developments in the Souris Basin are subject to existing inter
national apportionment and management arrangements admin
istered by Canada and the United States under the Boundary
Waters Treaty, and licensing requirements under the Interna
tional River Improvements Act. Environment Canada has both
technical advisory and regulatory responsibilities for these
activities. In particular, our concerns centre primarily on defin
ing the details of the operating plan for the reservoirs, especial
ly during the filling period, such that downstream effects, both
water quantity and quality, can be assessed in the United States
and Manitoba. Because of these interjurisdictional concerns,
post-project monitoring and analysis is of fundamental impor-
tance. The EIS does not provide information to specifically
address these concerns.
Boundary Waters Treaty—Water Quality
Article IV of the Boundary Waters Treaty (BWT) states that
"Boundary waters and waters flowing across the boundary shall
not be polluted on either side to the injury of health or property
on the other".
The quality of water released to the United States must be
protected in accordance with Article IV. Environment Canada
recommends that all parties continue discussions on establish
ing water quality objectives for the Souris River at the interna
tional boundary. Objectives would assist in maintaining ade
quate water quality during the fill period and thereafter.
2. Boundary Waters Treaty—Water Quantity
In 1959, Canada and the United States accepted the Interim
Measures concerning the apportionment of water between the
two countries, and the International Joint Commission estab
lished the International Souris River Board of Control to
administer the agreement. In effet, the Measures provide for an
equal division of the natural flow of the Souris River as it
crosses into North Dakota, and provide for a regulated flow of
0.57 m 3 /s (20 CFS) into Manitoba from June to October. The
Measures also include certain other riparian conditions.
Any deviations from these Measures must be clearly document
ed in the EIS as any changes to the Measures must be formally
approved by both federal governments, and agreed to by Sas-
katchewan, Manitoba, and North Dakota. Once this is accom
plished, the International Joint Commission would consider a
change in the 1959 Measures.
The operational procedures negotiated by the proponent in
Saskatchewan, and parties in the United States (page 1 and 2,
Hydrology Assessment, chapter 3), have not been approved by
all parties. It should be noted that two of the four water supply
scenarios for the project (p. 74, chapter 3) do not appear to
meet the requirements of the Interim Measures. Scenarios 3
and 4 consider that Saskatchewan will retain 60 percent of the
natural flow to the international boundary.
4. Navigable Waters Protection Act
The Souris Basin Development Authority should apply to
Transport Canada for a licence or exemption from the Navi
gable Waters Protection Act. The Act requires that: the public
is adequately notified of the project; international standards are
used to mark shoals, reefs, the spillway, and intake structures;
adequate boat launching facilities are provided; and trees are
cleared from the reservoir to the Full Supply Level, and if
necessary, trash booms are installed during the first years of
operation.
5. Migratory Birds Convention Act
The Souris Basin Development Authority is to be commended
for the mitigative measures that will be implemented to reduce
the impact of the project on waterfowl. The EIS, however, does
not quantify waterfowl production and habitat losses. Environ
ment Canada seeks assurance that no net loss in waterfowl
production will occur as a consequence of the project.
7. (v) The Reservoir Filling Period
The EIS did not present information on potential impacts, plan
of operation, and international obligations during the filling
period for the Rafferty and Alameda reservoirs. Environment
Canada recommends supplementary information for the filling
period be provided on:
a. water quality and quantity changes, particularly at the
international boundary;
b. impacts to fisheries and wildlife habitat in Saskatchewan,
North Dakota, and Manitoba;
I agree that unwarranted duplication should be
avoided but it seems to me that a number of
federal concerns were not dealt with by the provin
cial Environment Impact Statement, including a
review of the impact of the Project in North
Dakota and Manitoba. As such, I do not think that
applying the EARP Guidelines Order would result
in unwarranted duplication but would fill in neces
sary information gaps.
I am also in agreement with the applicants that
the EARP Guidelines Order must be applied as
the Project clearly has an environmental effect on
a number of areas of federal responsibility, includ
ing about 4,000 acres of land "owned", or at the
very least held in trust and administered, by the
Federal Government.
This information was not known by the Federal
Department of the Environment officials when
they were advising the Minister that EARP Guide
lines Order did not apply. Incidentally, some effort
was made by counsel for the respondent Minister
of the Environment that actions taken by federal
officials met the requirements of the Guidelines or
actions were taken in the spirit of the Guidelines
but it was clear throughout that Department of the
Environment officials were maintaining that the
EARP Guidelines did not apply to this project.
There is a duty owed to the public—an essential
part of the process—and it did not occur here. I
have considered what counsel for the respondent
Minister of the Environment suggested, namely,
"look to the totality of the evidence and the pro
cess followed" but I cannot conclude that the
necessary steps were taken before the licence was
issued.
I can agree that how the Department of the
Environment or the Federal Government finds
jurisdiction to secure the necessary environmental
protection in a case such as this one may be
difficult but certainly the legislation established
conditions precedent that must be adhered to
before a licence is issued.
Certiorari, which permits the Court to deter
mine whether a statutory delegate's decision has
been made within his/her jurisdiction and man-
damus, which compels a delegate to fulfil his/her
statutory duties, are discretionary remedies: Jones
and de Villars, Principles of Administrative Law,
1985, at page 325. The jurisprudence is clear that
in order for mandamus to issue for the enforce
ment of a statutory right, the statute in question
must impose a duty, the performance or non-per
formance of which is not a matter of discretion.
The applicant must show that he/she has the legal
right to the performance of a legal duty imposed
by statute upon the party against whom the man-
damus is sought: Re Ferguson and Commissioner
for Federal Judicial Affairs (1982), 140 D.L.R.
(3d) 542 (F.C.T.D.). If the party refuses to act
and discharge the duty, then the applicant is en
titled to mandamus. In Maple Lodge Farms Ltd.
v. R., [1981] 1 F.C. 500 (C.A.); aff'd [1982] 2
S.C.R. 2, the Court of Appeal refused to issue
mandamus to compel the Minister of Industry,
Trade and Commerce to grant an applicant an
import permit as the relevant statute (the Export
and Import Permits Act) conferred on the Minis
ter a discretionary authority to issue such permits
and did not create a duty to issue them upon the
fulfilment of certain conditions.
The applicants cited the case of Re Braeside
Farms Ltd. et al. and Treasurer of Ontario et al.
(1978), 20 O.R. (2d) 541 (Div. Ct.), in support of
their contention that granting a licence without
complying with a statutory prerequisite constitutes
an excess of jurisdiction. The case involved an
application, by way of judicial review, to quash a
regulation made by the Minister of Housing of
Ontario pursuant to section 22 of the Niagara
Escarpment Planning and Development Act. One
of the arguments raised before the Ontario Divi
sional Court was that the decision of the Minister
refusing to grant the development permit should
be quashed because the report of the hearing
officer did not meet the requirements of subsection
24(11) of the Act. Griffiths J., writing for the
majority, noted at page 551:
Under s. 24(2) of the Act the Minister is required to give
consideration to the report of the hearing officer as a condition
precedent to his decision-making. If the report does not meet
the requirements of s. 24(11) then in my view the Minister is
without jurisdiction to make a decision.
The case of Re McKay and Minister of Municipal
Affairs (1973), 35 D.L.R. (3d) 627 (B.C.S.C.)
dealt with an application for a writ of mandamus
to compel the Minister of Municipal Affairs to
direct a poll to be taken before making a recom
mendation pursuant to section 18 of the Municipal
Act (B.C.). Macfarlane J. at page 630 found that:
The duty of the Minister is owed to the electorate. He cannot
make a recommendation to the Lieutenant-Governor in Council
until the electorate has spoken appropriately. The duty to direct
a poll vests a right in each member of the electorate of the
areas in question, and if the Minister, who has been designated
to perform that duty, upon demand refuses to do so then, in my
opinion, mandamus will lie.
As I indicated earlier, it is my opinion that the
Minister of the Environment is required, before
issuing a licence under the International River
Improvements Act, to comply with EARP Guide
lines Order. By not applying the provisions of the
Order, the Minister has failed to comply with a
statutory duty, has exceeded his jurisdiction and
therefore the applicants are entitled to their order
for certiorari. Further the EARP Guidelines
Order indicates that certain procedures, namely
the preparation of an environmental assessment
and review, must be carried out when dealing with
a proposal that may have an environmental effect
on an area of federal responsibility. The Project
being such a proposal, and the Minister being a
participant (in that he issued the licence under the
International River Improvements Act) and by not
complying with the Order, has in my opinion not
performed his duty and therefore the applicants
are also entitled to an order for mandamus, and
costs forthwith after taxation thereof.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.