T-450-90
Naskapi-Montagnais Innu Association (Appli-
cant)
v.
Minister of National Defence (Respondent)
INDEXED AS: NASKAPI-MONTAGNAIS INNU ASSN. v. CANADA
(MINISTER OF NATIONAL DEFENCE) (T.D.)
Trial Division, Reed J.—Toronto, April 3, 4 and 5;
Ottawa, April 12, 1990.
Environment — Low level flying manoeuvres conducted by
NATO Air Forces over Labrador and Quebec — Substantially
increasing in number since begun in 1976 — Issue of impact of
flights and establishment of proposed Tactical Fighter Weap
ons Training Centre referred by Minister of National Defence
to Environmental Assessment Panel — Nothing in EARP
Guidelines Order imposing duty upon initiating department to
suspend project until completion of environmental review pro
cess — Only public opinion can ensure environmentally
responsible decisions — Factors militating against grant of
discretionary relief sought.
Armed forces — Application by organization representing
aboriginal people for orders quashing decision to permit three
NATO countries to use Goose Bay air base, airspace and
practice target areas in Canada and preventing Minister of
National Defence from approving of possible NATO decision
to establish Fighter Weapons Training Centre at Goose Bay
Applicant seeking mandatory stop orders pending completion
of environmental assessment process — Low level flying exer
cises held annually at Goose Bay since 1976 — Number of
sorties steadily increasing from 500 to 7,021 — Granting
application would have adverse effect on Goose Bay commu
nity which exists solely to support NATO low level flying
training — Aborigines little prejudiced by denial of order.
Native peoples — Application to prevent Minister of Na
tional Defence from agreeing to establishment of NATO
Fighter Weapons Training Centre at Goose Bay pending com
pletion of environmental assessment process — Applicant
representing aboriginal people established in vicinity and going
there to hunt and fish — Minimal prejudice to applicant,
refusal to co-operate, absence of evidence as to environmental
damage and delay in bringing proceedings justifying denial of
application.
International law — Distinction between treaty making and
treaty implementing powers — Implementation of treaty after
signing (by legislation or executive action) matter for domestic
law — Memorandum of understanding signed by Canada and
NATO countries respecting use of air base facilities for low
level flying operations by NATO Air Forces over parts of
Labrador and Quebec within scope of treaty implementing
powers — Therefore subject to Environmental Assessment and
Review Process Guidelines Order.
Judicial review — Prerogative writs — Certiorari and man-
damus to stop low level flying manceuvres over parts of
Labrador and Quebec by NATO Air Forces — Neither text
nor purpose of EARP Guidelines Order imposing duty upon
initiating department to suspend proposal until assessment
review process completed — Minimal prejudice, refusal to
co-operate, absence of evidence as to environmental damage
and delay in bringing proceedings militating against granting
discretionary relief sought.
In 1986, Canada and three other NATO countries signed a
memorandum of understanding which set out the terms and
conditions respecting the use of the Goose Bay air base facili
ties for tactical low level flying manceuvres by NATO Air
Forces over parts of Labrador and Quebec. The number of
sorties has steadily increased: from 500 in 1976 to 7,021 in
1989. Prior to 1979 the purpose of the flights was navigational
rather than tactical.
Contemporaneously with the signing of the memorandum,
the Minister of National Defence referred the issue of the
impact these flights and of the establishment of a proposed
NATO Tactical Fighter Weapons Training Centre to the Min
ister of the Environment for public review by an Environmental
Assessment Panel.
The applicant seeks certiorari and mandamus to stop the low
level flying operations. The applicant is an organization repre
senting aboriginal people whose main settlements are close to
the areas where the flights are conducted. Some members of
those communities fly into the areas, at certain times of the
year, to hunt and fish.
The issues are (1) whether once a referral has been made
under the Environmental Assessment and Review Process
Guidelines Order (the EARP Guidelines Order) an obligation
arises such that the initiating department must not proceed
with the project until the referral process has been completed
and (2) whether, in the circumstances, the discretionary relief
sought should be granted.
Held, the application should be dismissed.
The applicant's argument, that there is an implied obligation
under the terms of the Order when read in light of its purpose,
to stop the progress of any proposal once it is referred for
review, is without merit. There is nothing in the Order which
expressly or implicitly requires that a project be halted until the
completion of the review. The reference, in section 3 of the
Order, to an assessment being carried out before irrevocable
decisions are taken relates to the self-assessment process which
the initiating department must undertake. It does not relate to
the EARP Panel process. Furthermore, an implied mandatory
obligation to halt a proposal would not accord with the general
scheme of the Order and with its other provisions. Under the
Order, initiating departments and Ministers can ignore the
recommendations of a Panel. Any obligation not to proceed will
therefore depend, for enforcement, on the pressure of public
opinion and the adverse publicity which will attach to a con
trary course of action.
In addition to the finding that the EARP Guidelines Order
does not impose on an initiating department a mandatory
"stop" order once a project has been referred for review, there
were several factors which, as a matter of discretion, justified
the refusal to grant an order stopping the low level flying
operations.
Most important among those is the substantial prejudice
such an order would cause to the civilian and military com
munities of Goose Bay-Happy Valley. There was evidence that
suspension of the low level flying operations could bring about
their permanent curtailment, resulting in massive lay-offs, loss
of investment and expenditures for the civilian and military
populations. On the other hand, the applicant will suffer mini
mal prejudice since its environmental concerns will be
addressed by the EARP Panel in the course of the environmen
tal assessment. A decision not to grant the order will not
prejudice that process.
Another significant factor is the refusal by the members of
the communities represented by applicant to co-operate in
order to mitigate the effects which the low level flying exercises
might have on them. The submission that co-operation would
amount to condoning the disputed activities was not valid: one
can mitigate the effects of injurious actions taken by others
without condoning them.
The absence of unequivocal evidence respecting significant
environmental damage resulting from the low level flying
activities is another relevant factor in denying the application.
So is the fact that the proceedings could have been commenced
four years ago. Delay is always a factor in the case of discre
tionary remedies.
Respondent's_ argument, that a proposal falls outside the
scope of the EARP Guidelines Order if implicitly authorized by
the Governor in Council, as a result of being the subject of an
international agreement, had to be rejected. While the treaty-
making power resides with the federal Crown, the implementa
tion of any such treaty after its signing—by legislation or
executive action such as the 1986 memorandum of understand-
ing—becomes a matter for domestic law, including the EARP
Guidelines Order. It is to the decisions and actions which have
to be taken by the relevant government department to imple
ment a treaty that the EARP Guidelines Order attaches.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Environmental Assessment and Review Process Guide
lines Order, SOR/84-467, ss. 2, 3, 6(a), 10, 12, 13,
18(b), 20, 21, 22, 25, 26, 28, 29, 33(1)(c),(d).
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Angus v. Canada, T-47-90, F.C.T.D., Rouleau J., judg
ment dated 1 2 / 1 /90, not yet reported.
REFERRED TO:
Operation Dismantle Inc. et al. v. The Queen et al.,
[1985] 1 S.C.R. 441; (1985), 18 D.L.R. (4th) 481; 12
Admin. L.R. 16; 13 C.R.R. 287; 59 N.R. 1; Canadian
Wildlife Federation Inc. v. Canada (Minister of the
Environment), [1989] 3 F.C. 309; [1989] 4 W.W.R. 526;
(1989), 37 Admin. L.R. 39; 3 C.E.L.R. (N.S.) 287; 26
F.T.R. 245 (T.D.); affd [1990] 2 W.W.R. 69; (1989), 38
Admin. L.R. 138; 4 C.E.L.R. (N.S.) 1; 27 F.T.R. 159; 99
N.R. 72 (F.C.A.); Canadian Wildlife Federation Inc. et
al. v. Canada (Minister of the Environment) and Sas-
katchewan Water Corp. (1989), 31 F.T.R. 1 (F.C.T.D.);
Friends of the Oldman River Society v. Canada (Minis-
ter of Transport), [1990] 2 F.C. 18 (C.A.).
AUTHORS CITED
de Smith, S. A. Judicial Review of Administrative
Action, 4th ed. by J. M. Evans. London: Stevens &
Sons Ltd., 1980.
Exchanges of Notes between Canada and the United
Kingdom, November 26, 1979, [1979] Can. T.S. No.
23.
Exchange of Notes concerning the training of United
Kingdom Armed Forces in Canada, August 20, 1971,
[1974] B.T.S. No. 27.
Gotlieb, A. E. Canadian Treaty-Making. Toronto: But-
terworths, 1968.
COUNSEL:
John A. Olthuis and Margaret L. Flindall for
applicant.
Dogan D. Akman for respondent.
SOLICITORS:
Morris, Rose, Ledgett, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
REED J.: The orders sought will not be granted.
In my view, the Environmental Assessment and
Review Process Guidelines Order (SOR/84-467)
does not support what I will call the mandatory
"stop" orders which are requested. In addition,
even if such mandatory orders were supportable
under the terms of the Order, it would be inappro
priate to grant one of them. It would be inappro
priate to grant the order which requests that the
low level flying training (which has been occurring
since at least 1979, albeit with increasing intensi
ty) be stopped. An order of this nature would
result in extensive prejudice and harm to the civil
ian communities of Happy Valley and Goose Bay
as well as to the military personnel and their
families. This factor must be taken into account
together with the fact that a refusal to grant the
order will not result in any substantial prejudice to
the rights which the applicant or its members
presently have. In this regard, I note that the
present application does not and cannot involve
any determination of the rights which the appli
cant states its members have as a result of their
land claim assertions. The present application
relates to environmental concerns only. It involves
the scope and application of the Environmental
Assessment and Review Process Guidelines Order
(EARP Guidelines Order).
Nature of the Application—Interest of the
Applicant
The application seeks orders to quash a decision
of the Minister of National Defence made on
February 13, 1986, and to prevent the Minister
making certain other decisions before the environ
mental assessment process provided for by the
EARP Guidelines Order has been completed. The
decisions involve the use of certain parts of Labra-
dor and a small part of Quebec for training the
members of the Air Forces of several NATO
countries in tactical low level flying manceuvres.
The applicant is an organization representing
certain aboriginal people whose main settlements
(Sheshatshit and Utshimassit) are outside but
close to the boundaries of the areas in which the
low level flying is conducted. Some of the members
of these communities (100 to 200) fly into the area
where the low level flying training occurs, on a
temporary basis at certain times of the year, for
the purpose of following their traditional hunting
and fishing (wildlife gathering) way of life. This
usually occurs in the fall, winter and spring
months.
Decision of February 13, 1986—Agreement Pur
suant to Exchanges of Notes (Treaties)
The decision made in 1986, which is challenged,
is contained in a memorandum of understanding
signed by General MacNaughton on behalf of the
Department of National Defence. The other sig
natories to the memorandum are the United States
Air Force, the Ministry of Defence of the United
Kingdom and the Federal Ministry of Defence of
the Federal Republic of Germany. The memoran
dum sets out the terms and conditions under which
these last three will be allowed to use the air base
facilities at Goose Bay and certain airspace and
practice target areas in Canada. (These will be
referred to as the Canadian facilities and
airspace.)
The 1986 memorandum was entered into pursu
ant to provisions of exchanges of notes (treaties)
between Canada and the three aforementioned
NATO countries. These exchanges of notes were
signed at various times between 1976 and 1983. I
will refer to that with the United Kingdom, signed
in 1979, to illustrate the relationship of the deci
sion documented by the 1986 memorandum of
understanding and the exchanges of notes. The
1979 Exchange of Notes with the United Kingdom
carries the title "Agreement Amending the 1971
Agreement Concerning a Training Scheme for
Armed Forces of the United Kingdom in Canada".
As that title indicates, the document is an amend
ment to a previous agreement, by exchange of
notes, between Canada and the United Kingdom,
dated August 20, 1971. The 1979 Exchange of
Notes consists of two parts: the first, I will call the
covering note; the second is a schedule of terms
and conditions. One of the terms of the covering
note states:
IV. This Agreement and the attached Schedule of Terms and
Conditions may be amended by agreement of the Parties.
The Schedule of Terms and Conditions may also be
amended as provided therein subject to the requirement
that such amendments shall be consistent with the provi
sions of this Agreement
The relevant provisions of the schedule of terms
and conditions provide:
PART III
Royal Air Force Training
17. This part is subject to arrangements between Canada
and the United Kingdom respecting the stationing of a Royal
Air Force element at Goose Bay for the purpose of carrying out
low-level flying training operations.
18. The Royal Air Force shall have the use of facilities made
available to them at present at Canadian Forces Station Goose
Bay for tactical low-level flying training. The yearly target is a
programme of about 120 aircraft visits, each lasting about nine
or ten days. The number of aircraft participating is likely to
vary but usually about three are expected to be at Canadian
Forces Station, Goose Bay at any one time. The United King
dom may use the staging post at Canadian Forces Station,
Goose Bay for RAF aircraft in transit and may retain there an
RAF detachment of up to 150 officers and men.
19. The terms and conditions under which training facilities
in addition to those mentioned in this Part may be made
available by Canada shall be the subject of negotiation between
the Ministry of Defence (AIR) and National Defence Head
quarters in the event that a requirement is reported by the
United Kingdom. [Underlining added.]
Thus, in so far as the Ministry of Defence of the
United Kingdom and the Canadian Department of
National Defence are concerned, the 1986 memo
randum of understanding was entered into pursu
ant to the terms of section 19 of the schedule of
terms and conditions of the 1979 Exchange of
Notes.
The 1986 memorandum deals in large part with
how the costs associated with the use of the Goose
Bay air base facilities will be borne by the respec
tive parties. It also describes the facilities and
airspace which are the subject of that agreement
and it contains terms for the alteration or termina
tion of the agreement. Some of the terms are as
follows:
SCOPE
6. DND will provide to the Allied Users:
a. the use of the Goose Bay airfield, buildings, facilities,
infrastructure and equipment as detailed in this MOU
[Memorandum of Understanding] and its Annexes;
b. special use flying areas (approximating those described in
the DND Flight Information Publication GPH 205 dated 6
June 1985, Annex F) suitable for the conduct of tactical low
level flying training down to 100' above all obstacles within
200' of track under visual meteorological conditions (VMC)
during the day; and down to 200' above ground level (AGL)
under instrument meteorological conditions (IMC) or during
the night, with Terrain Following Radar (TFR); and
c. practice target areas, as may be decided between DND
and the Province of Newfoundland, which constitute suitable
tactical ranges.
OPERATION
7. Allied Users will comply with applicable Canadian military
and civil flying regulations, and will conduct flying operations
only in those areas, along those routes and under those condi
tions specified and approved by Canada. The Officers Com
manding (OC) Units of Allied Users at Goose Bay will be
informed of, and make themselves familiar with, the applicable
regulations and will bring to the attention of all personnel
under their respective commands, or attached to their units, the
requirements to comply with such regulations. Any regulation
that adversely affects the scope of allied military flying opera
tions may be referred to NDHQ for resolution if any one of the
Allied Users disagrees with its implementation.
8. Military flying activities will be performed so as to have due
regard for the safety and well being of all people and wildlife in
the area, and for the operations of civil air carriers. Local
military flying operations will be coordinated through the
Military Co-ordination Centre. Flight safety and accident
investigation will be carried out in accordance with STANAG
3531. Subject to air traffic control requirements, Military
Users will have the right to taxi aircraft over all airfield
surfaces required for their operations.
. . .
Capital Expenditures
• • •
15. Each Military User will be allocated certain buildings,
facilities, infrastructures and equipment at Goose Bay which
will be dedicated solely for its use. The capital expenditures
incurred for approved modifications, additions or extensions to
existing dedicated buildings, facilities, infrastructure and equip
ment will be borne by that User. The total cost of constructing
any new dedicated facilities requested by a User will be the
responsibility of that User.
. . .
REDUCTION, SUSPENSION AND TERMINATION
Withdrawal of, or Significant Reduction in, Activities
37. Should DND not be able to meet its commitment, as
defined in para 6 of this MOU, and thereby in the view of the
Allied User(s) degrade the operational environment, the Mili
tary User(s) will immediately enter into consultations regard
ing the matter. Should the consultations fail to resolve the
matter to the satisfaction of the objecting Allied User(s) within
30 days, such Allied User(s) may withdraw without further
notice. The financial terms of withdrawal and the settlement of
residual values will be by separate negotiations.
Annexes to this memorandum of understanding set
out the maximum number of aircraft and person
nel which each party to the agreement may station
at Goose Bay. In the case of the United Kingdom
Air Force (R.A.F.) this is 350 personnel and 20
aircraft; for the United States Air Force it is 500
personnel and 24 aircraft; in the case of the Feder
al Republic of Germany (G.A.F.) the limits are
400 personnel and 25 aircraft.
The Netherlands joined the United Kingdom,
the United States and the Federal Republic of
Germany, as a user of the base and airspace, in
1987. An exchange of notes in this regard was
signed between Canada and the Netherlands on
March 26, 1987. Pursuant to that agreement, the
terms and conditions set out in the memorandum
of understanding of 1986 with the other NATO
members became applicable to govern the terms of
the use of the Canadian facilities and airspace by
the Netherlands as well. An annex was added to
the 1986 memorandum of agreement stating that
the Royal Netherlands Air Force would be permit
ted to station up to a maximum of 400 personnel
and 25 combat aircraft at Goose Bay at any one
time.
Exchanges of Notes—Not Subject to Review Pur
suant to EARP Guidelines Order—Treaty Making
and Treaty Implementing Powers to be Distin
guished
I do not think it can be seriously contested that
the decisions to enter into the various exchanges of
notes do not fall within the scope of the Environ
mental Assessment and Review Process Guide
lines Order (SOR/84-467). That Order provides
that the review process is one under which initiat
ing departments shall first prepare an initial envi
ronmental assessment and, then, depending upon
the outcome of that assessment either proceed with
the project or refer it for review by what I will call
EARP Panel. A "department" is defined by the
terms of the Order [section 2] (subject to some
exceptions) as:
(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;
The various exchanges of notes are signed by
Canada as an exercise of prerogative powers. The
exchanges of notes are essentially international
treaties. A. E. Gotlieb's text on Canadian Treaty-
Making (Butterworths, 1968), at pages 4 and 5,
describes the process as follows:
This means, in effect, that the treaty-making power in Canada
is exercised by the Governor-General in Council on the advice
of the Canadian ministers and, in particular, the minister
responsible for foreign relations, the Secretary of State for
External Affairs. [Underlining added.]
The Governor in Council would not seem to be a
"department, board or agency of the Government
of Canada", within the meaning of the EARP
Guidelines Order.' I was referred to Mr. Justice
Rouleau's comments in Angus v. Canada (T-47-
90, January 12, 1990, not yet reported):
Under the Guidelines, the "initiating department" must not
only be the proposer of the anticipated directive, but it must
also be the decision maker, i.e. the enacting body. As you well
know, it is not up to the Court to legislate, but Parliament. It is
they who have chosen to exclude from their definition of
"initiating departments" this particular powerful executive arm
of government. Though it has been suggested to me that courts
may have, in certain circumstances, found that the Governor
General in Council could be considered a "board" under the
Federal Court Act, one cannot, by analogy, transpose that
finding to give this Court the authority to make a determina
tion that under the EARP Guidelines it was meant to include
this body in its definition of "initiating departments".
If I understand counsel for the respondent's
argument correctly, it is that since the decisions to
enter into the various exchanges of notes are ones
taken by the Governor in Council they do not fall
within the EARP Guidelines Order. Similarly, it is
argued that the 1986 memorandum of understand
ing should be considered as a mere variation of
those treaties and therefore equally outside the
ambit of the Order. (The decisions to enter into
the exchanges of notes with the United Kingdom
(1979), the United States (1976) and the Federal
Republic of Germany (1981 and 1983) would, of
course, fall outside the scope of the Order for
another reason as well: they were all taken before
the EARP Guidelines Order came into force, in
1984.)
I am not convinced that counsel's argument with
respect to the immunity of the 1986 decision,
merely because it relates to treaty obligations, can
withstand scrutiny. As I understand the treaty
This conclusion has to be read in the light, of course, of the
decision in Operation Dismantle Inc. et al v. The Queen et al.,
[1985] 1 S.C.R. 441.
making power, it is that while this resides with the
Crown federal, the implementation of any such
treaty after its signing becomes a matter for
domestic law. On some occasions legislation will
be required; this may be federal or provincial as
the case may be. On other occasions no legislation
may be necessary but implementing action of an
executive nature may be required. In that event, it
seems to me that the executive implementing
action is subject to the applicable domestic law,
including the EARP Guidelines Order when it
applies. In this regard I note that the Schedule of
Terms and Conditions to the 1979 Exchange of
Notes with the United Kingdom (paragraph 1)
provides that: "training activities shall be conduct
ed in accordance with applicable Canadian laws
and regulations." And paragraph 27 provides that
"Due attention shall be paid by the British Forces
to the environment and any regulations applicable
to the Canadian Forces in respect of environmen
tal conditions and restrictions shall be strictly
adhered to." Similar provisions are found in the
exchanges of notes with the Federal Republic of
Germany (paragraph 4) and in that with the
Netherlands (paragraph 4).
Counsel for the respondent also argued that the
decisions in question (whether under the treaties or
under the implementing arrangements of 1986)
could not fall under the EARP Guidelines Order
because they were not legally binding. That is, it
was argued that the EARP Guidelines Order con
templates that the review process only applies
when irrevocable decisions are involved. It is
argued that the agreements with the various mem
bers of NATO respecting the use of the Canadian
facilities and airspace are not irrevocable agree
ments. As international agreements, these agree
ments are by their very nature not legally enforce
able. Disputes arising thereunder are all subject to
negotiation. I do not agree with counsel's argu
ment that merely because the decisions may not be
legally enforceable under domestic law, the deci
sions taken are therefore irrevocable for the pur
poses of the EARP Guidelines Order. In my view,
the term irrevocable as used in the EARP Guide
lines Order is not synonymous with the concept
that a matter is legally binding pursuant to domes
tic law.
In summary, then, I do not agree that because a
proposal has been implicitly authorized by the
Governor in Council, as a result of being the
subject of an international agreement (the signing
of which was approved by the Governor in Coun
cil), it therefore falls outside the scope of the
EARP Guidelines Order. I think counsel for the
applicant's argument is correct, that one must look
at the decisions and actions which have to be
taken, by the relevant government department, to
implement the treaty which was entered into. It is
to those decisions and activities that the EARP
Guidelines Order may attach.
Establishment of NATO Training Centre
The decision which has not yet been made,
which the applicant seeks by these proceedings to
prevent, is an affirmative response on the part of
the Minister of National Defence to NATO,
should the Euro-NATO Training Group choose
Goose Bay as a suitable site for a new Fighter
Weapons Training Centre (hereinafter NATO
Training Centre). In July of 1984 Canada for
warded a proposal to NATO suggesting Goose
Bay as a suitable site for such a centre. Sites in
other countries are also being considered. It is
anticipated that a decision will be made in May of
1990. The applicant fears that if the NATO deci
sion is one in favour of Goose Bay, then, the
Minister of National Defence will want to respond
to that decision, immediately, regardless of wheth
er the environmental assessment process required
by the EARP Guidelines Order has been com
pleted. As will appear from what is said below, the
Minister contends that this is an ill-founded
apprehension.
Low Level Flying Training—an On-Going Activi-
ty—Nature and Extent
Low level flying training takes place out of
Goose Bay each year between the months of April
and November. This year it is scheduled to start
on April 17. Equipment, personnel and other sup
port mechanisms are moved onto the base, starting
April 1. This activity has been occurring for many
years. At the same time, the number of training
flights ("sorties") has steadily increased from year
to year. The increase in level of activity is obvious
from the following table:
Year Number of sorties
1976 500
1977 566
1978 570
1979 470
1980 860
1981 1,840
1982 2,027
1983 2,468
1984 3,008
1985 4,148
1986 5,432
1987 6,838
1988 6,807
1989 7,021
The number of flights estimated for 1990 are
7,600 with a maximum of 8,200 being possible but
not likely.
With respect to the increased activity and
changed character of the flights over the years, it
must be noted that the low level flights which
occurred before 1979 were of a different character
from those after that date (navigational as opposed
to tactical). Also, the types of planes which engage
in the exercises have changed although there is no
clear evidence that this has led to an increase
rather than a decrease in the decibel level associat
ed with each flight. The extent of the territory over
which the flights occur was smaller before 1983
than it is now.
One training flight (sortie) involves a fighter
plane taking off at approximately 160 miles per
hour, flying a preplanned route to several targets,
simulating target attacks and then returning to
Goose Bay. Within the areas designated for low
level flying, aircraft are authorized to fly down to
100 feet above all obstacles which exist within 200
feet of the aircraft's projected flight path. There is
evidence that the average altitude of low level
training flights is approximately 200 to 250 feet.
The target practices which occur are all (except
for one) of a "camera" nature with no projectiles
being released. The one exception occurs in a
particular 50 square mile area where the dropping
of inert, non-explosive devices is allowed. This area
is a burned out region and there is evidence that
the aboriginal people themselves have indicated to
the Air Force that they have no use for this area.
Application of EARP Guidelines Order to Activi
ties Commenced Before 1984
The EARP Guidelines Order clearly contem
plates that the projects to which it will be applied
are ones which will be proposed for development,
not to activities which predate the existence of the
Order. This follows from the general rule of statu
tory interpretation that legislative provisions are
not intended to have a retrospective operation
unless a contrary intention clearly appears from
the text of the provision. This conclusion also
follows from the text of the provisions of the
EARP Guidelines Order itself:
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
• • •
6. These Guidelines shall apply to any proposal
(a) that is to be undertaken directly by an initiating
department;
• • •
18. It is the responsibility of the Office to
. . .
(b) assist the initiating department in the provision of infor
mation on the solicitation of public response to proposals
early enough in the planning stage that irrevocable decisions
will not be taken before public opinion is heard;
• • •
33. (1) It is the responsibility of the initiating department in
a public review to
• • •
(c) . . . decide ... the extent to which the recommendations
[of a Review Panel] should become a requirement of the
Government of Canada prior to authorizing the commence
ment of a proposal;
(d) . . . ensure, in cooperation with other bodies concerned
with the proposal, that any decisions made by the appropri
ate Ministers as a result of the conclusions and recommenda
tions reached by a Panel from the public review of a proposal
are incorporated into the design, construction and operation
of that proposal and that suitable implementation, inspection
and environmental monitoring programs are established; ...
[Underlining added.]
The terms of the Order contemplate an applica
tion to new initiatives. While it is clear that the
possible establishment of a NATO Training
Centre at Goose Bay would fit the description of a
new initiative, this is not as true for the on-going
(but increasing) low level flying activities which
are presently being carried on. Counsel for the
applicant invites me to characterize the 1986
memorandum as a proposal (a new initiative) suf
ficient to bring the low level flying activity pro
vided for therein within the EARP Guidelines
Order. He characterizes the entering into of the
1986 memorandum as the type of irrevocable deci
sion to which the EARP Guidelines Order applies.
Counsel for the respondent, on the other hand,
argues that the Order was never intended to apply
and does not apply to this kind of activity. He
argues that the Order does not apply to the deci
sion which underlies the 1986 memorandum
because that decision relates to the continuation of
an on-going activity not qualitatively different
from that which had been occurring before the
Order came into effect. For reasons which will
appear below, I do not find it necessary to decide
this very interesting question.
Referral to an Environmental Assessment Panel—
a Voluntary Referral?
In any event, on February 13, 1986 contempo
raneously with the signing of the memorandum of
understanding of that date, the Minister of Na
tional Defence wrote to the Minister of Environ
ment, asking that an EARP review be commenced.
The relevant letter reads, in part, as follows:
As you are aware, the Department of National Defence is
sponsoring military flying activities by some of our NATO allies
in Goose Bay Labrador. This has been ongoing for some time
now. Recently the allies have requested that new tactical ranges
be provided as part of this activity. In addition, NATO is seeking
a site for a Tactical Fighter Weapons Training Centre that
could start operations in the early 1990's. Goose Bay is a
candidate for this Centre.
Due to the potential for environmental impact resulting from
the proposed activities and because of the related expressions of
public concern we have heard, I believe it is important that we
undertake a thorough public assessment before making our
final decision. I therefore request that a formal review of the
activities proposed for Labrador and parts of Quebec be under-
taken in accordance with the Federal Environmental Assess
ment and Review Process.
The activities to be reviewed are detailed in the attached
proposal description and include aircraft flying at supersonic
speeds; use of tactical fighter weapons ranges; and, airport
expansion, training facilities and infrastructure improvements
at Goose Bay itself. I believe it is important to also include
those issues associated with the current low level flight training
and the increased amount of such training which will begin in
the summer of 1986 and continue for an indefinite period.
Although Canada is committed to the low level training, I
anticipate that the result of a comprehensive review would
assist us in designing these activities further to minimize any
adverse impact.
This letter of referral carried with it a description
of the proposal which was being referred. That
description reads in part:
PURPOSE OF THE PROJECT
2. The training facilities now available to European based
NATO Air Forces are inadequate. Consequently, there is a
military need for additional training facilities. This has resulted
in four NATO Air Forces operating at Goose Bay on a bilateral
basis and additional air forces considering beginning bilateral
training operations there. Under term of a Multinational MOU
DND will provide to the Allied Users:
a. the use of the Goose Bay airfield, buildings, facilities,
infrastructure and equipment as detailed in this MOU and its
Annexes;
b. existing or equivalent special use flying areas (approx-
imating those described in the DND Flight Information Publi
cation GPH 205 dated 6 June 1985, Annex A [sic]) suitable
for the conduct of tactical low level flying training down to
100' above all obstacles within 200' of track under visual
meteorological conditions (vMc) during the day; and down to
200' above ground level (AGE.) under instrument meteorologi
cal conditions (IMc) or during the night, with Terrain Fol
lowing Radar (TFR); and
c. practice target areas, as may be decided between DND and
the Province of Newfoundland, which constitute suitable
tactical ranges.
3. In addition, during 1980 the NATO military staff was tasked
by the NATO Military Committee to study the feasibility of
establishing an integrated Tactical Fighter Weapons Training
Centre (TFwTc) as a potential long-term solution for training
NATO Air Forces. The TFWTC is expected to be established in
the early 1990s and will provide for the entire spectrum of
tactical training required to achieve and maintain high stand
ards of combat proficiency in NATO Tactical Air Forces.
Under the EARP Guidelines Order, when a
referral to the Minister of Environment has been
made, the Minister of Environment establishes an
independent Environmental Assessment Panel to
review the proposal. 2 He also establishes, in con
sultation with the initiating Minister, the terms of
reference for that Pane1. 3 This was done on July 8,
1986. The terms of reference which issued stated
in part:
The review will examine:
1) the existing and anticipated low level flight training being
carried out in accordance with bilateral agreements with NATO
allies; and
2) a proposal to establish an integrated Tactical Fighter Weap
ons Training Centre (TFWTC) for training NATO Air Forces.
The proposed TFWTC would require airport and infrastructure
expansion, as well as training facilities at Goose Bay and the
development of tactical weapons ranges in Labrador.
The Panel will consider the impacts of current, planned and
proposed military flight training activities on the quality of the
environment and on its natural resources, particularly on wild
life, such as the caribou, which are important to native
livelihood.
I have set out the content of these documents at
some length because they are important for an
understanding of part of the respondent's argu
ment.
It is argued that while the EARP Panel has
clearly been empowered to review both and the
on-going (but increasing) low level flying activities
as well as the proposed new NATO Training
Centre, the letter of referral sent by the Minister
of National Defence to the Minister of the Envi
ronment, makes it clear that the first subject-
matter was referred for review on a voluntary basis
only and not because there was any legal necessity
under the EARP Guidelines Order to do so. It is
argued that the documentation makes it clear that
the Minister of National Defence included a refer
ence to the on-going low level flying activities, in
his letter of referral, only for the purpose of seek
ing a Panel's recommendations with respect to
methods which might be taken to mitigate any
adverse effects on the environment which the low
level flying might have. This was done, it is
argued, without any legal obligation to do so.
2 Ss. 21 and 22 of the Environmental Assessment and Review
process Order (SOR/84-467).
3 Id., s. 26.
Thus, it is argued that whatever mandatory effects
or consequences the EARP Guidelines Order
might have in the case of proposals required to be
referred to a Panel these should not apply when
the referral has been voluntary in nature. That is,
if there is an obligation under the EARP Guide
lines Order not to proceed with the project being
reviewed, until the environmental assessment by
the Panel has been completed, this requirement
should not apply when a project (existing activi
ties) has been voluntarily referred to a Panel, for
advice only.
EARP Guidelines Order—Duty to Complete Envi
ronmental Assessment before Proceeding with a
Proposal?
It is well established that the provisions of the
EARP Guidelines Order are mandatory. It is well
established that mandamus will lie to compel com
pliance with the Order, and that certiorari will lie
to quash a decision which has been made in the
absence of compliance with that Order: Canadian
Wildlife Federation Inc. v. Canada (Minister of
the Environment), [1989] 3 F.C. 309 (T.D.); affd
(1989), 4 C.E.L.R. (N.S.) 1 (F.C.A.); Canadian
Wildlife Federation Inc. et al. v. Canada (Minister
of the Environment) and Saskatchewan Water
Corp. (1989), 31 F.T.R. 1 (F.C.T.D); Friends of
the Oldman River Society v. Canada (Minister of
Transport), [1990] 2 F.C. 18 (C.A.).
Unlike other cases which have come before this
Court, the issue in this case is not whether a
referral under the EARP Guidelines Order should
have been made. As has already been noted, the
issue is whether once such a referral has been
made an obligation arises so that the initiating
department or Minister must not proceed with the
project under review, until the referral process and
review has been completed.
The relevant facts respecting the incomplete
process in this case are as follows. As, already
noted, on February 13, 1986, the Minister of
National Defence referred two subjects to the
Minister of Environment. One relates to what is
clearly a new proposal (the establishment of a
NATO Training Centre); the other relates to an
on-going activity (low level flying training) which
has been increasing in intensity over the years. The
independent EARP Panel which is required to be
established under the EARP Guidelines Order was
named on July 8, 1986 and the terms of reference
relating to the review by that Panel were made
public on the same day. On August 29, 1986 the
Panel issued "operational procedures" which
would apply for the purposes of public review of
the two proposals. It also issued draft guidelines
respecting the kind of information concerning the
proposal which the Panel expected the initiating
department to provide in its Environmental Impact
Statement. An Environmental Impact Statement
("EIS") may be sought by the Panel from the
proponent of a proposal in accordance with guide
lines established by the Panel. See section 30 of
the EARP Guidelines Order.
During September and November 1986, the
Panel held public meetings in eighteen communi
ties in Newfoundland, Labrador and Quebec to
obtain comments on the draft guidelines it had
issued on August 29. Final guidelines for the
preparation of the EIS were, then, issued by the
Panel in January of 1987. The Panel reported, at
that time, that the Department of National
Defence expected that the EIS would be completed
by January 1988. The EIS was released on Octo-
ber 31, 1989, 22 months after its expected release
date.
As of the October 1989 date, the Panel indicat
ed that the procedure for review of the EIS would
be: (1) distribution of the EIS to the public; (2)
review of the EIS by the Panel, which review
process it was expected would take at least 90
days; (3) if as a result of this review the Panel
decided that the EIS was deficient it would seek
further information thereon, from the Department
of National Defence, before holding public hear
ings; (4) when the Panel decided it had sufficient
information on the relevant issues, public hearings
would be held; (5) the Panel's report to the Minis
ters would then be prepared; and (6) the final
decision of the Ministers would be made public. As
of the date of the hearing before me, on April 3,
1990 the Panel had not yet completed step two,
described above. In the middle of the hearing
before me, the Panel chose to issue a public
announcement that it was not satisfied with the
level of information provided to it in the EIS and
that it would indeed be calling for further informa
tion before holding the public hearings referred to
in step four above, which hearings are required by
the EARP Guidelines Order. 4 The Panel did not,
however, identify the precise areas of deficiency
which it found in the EIS; it indicated that it
would do so later in April after it had reviewed all
the participants' comments respecting that issue.
These comments were provided to the Panel as a
result of its invitation to members of the public,
including the applicant, seeking their comments as
to whether the EIS adequately met the guidelines
which had been established in January of 1987.
Counsel for the applicant's argument is that the
proposal under review, cannot be proceeded with
until the Panel's assessment is complete and its
report has been made to the relevant Ministers. It
is argued that the EARP Guidelines Order
imposes a duty on the initiating department, when
a proposal is referred to an EARP Panel for
consideration, not to proceed with the proposal
until that review is completed. It is argued that
this follows from the wording of specific sections
of the EARP Guidelines Order, particularly sec
tion 12, as well as from the general scheme and
purpose of the Order.
The argument based on the textual provisions of
the Order focuses on sections 10, 12, 13 and 20 as
well as on sections 3, 6, 18 and 33. Sections 10, 12,
13 and 20 provide:
10. (1) Every initiating department shall ensure that each
proposal for which it is the decision making authority shall be
subject to an environmental screening or initial assessment to
determine whether, and the extent to which, there may be any
potentially adverse environmental effects from the proposal.
(2) Any decisions to be made as a result of the environmen
tal screening or initial assessment referred to in subsection (1)
4 See: id. sections 20, 21, 25, 28 and 29, among others.
shall be made by the initiating department and not delegated to
any other body.
• • •
12. Every initiating department shall screen or assess each
proposal for which it is the decision making authority to
determine if
(a) the proposal is of a type identified by the list described
under paragraph 11(a), in which case the proposal may
automatically proceed;
(b) the proposal is of a type identified by the list described
under paragraph 11(b), in which case the proposal shall be
referred to the Minister for public review by a Panel;
(c) the potentially adverse environmental effects that may be
caused by the proposal are insignificant or mitigable with
known technology, in which case the proposal may proceed
or proceed with the mitigation, as the case may be;
(d) the potentially adverse environmental effects that may
be caused by the proposal are unknown, in which case the
proposal shall either require further study and subsequent
rescreening or reassessment or be referred to the Minister for
public review by a Panel;
(e) the potentially adverse environmental effects that may be
caused by the proposal are significant, as determined in
accordance with criteria developed by the Office in coopera
tion with the initiating department, in which case the pro
posal shall be referred to the Minister for public review by a
Panel; or
(I) the potentially adverse environmental effects that may be
caused by the proposal are unacceptable, in which case the
proposal shall either be modified and subsequently
rescreened or reassessed or be abandoned.
13. Notwithstanding the determination concerning a pro
posal made pursuant to section 12, if public concern about the
proposal is such that a public review is desirable, the initiating
department shall refer the proposal to the Minister for public
review by the Panel.
• • •
20. Where a determination concerning a proposal is made
pursuant to paragraph 12(b), (d) or (e) or section 13, the
initiating department shall refer the proposal to the Minister
for public review. [Underlining added.]
Section 12 requires an initiating department, to
undertake an initial screening of a proposal to see
whether the proposal will have (1) significant
adverse environmental effects or (2) potentially
adverse environmental effects that are unknown. If
such is the case, or if a proposal is one about which
public concern is such that a public review is
desirable (section 13), then, the proposal is to be
referred to an EARP Panel for review. Counsel's
argument is that since, under section 12, it is
specifically provided that when a proposal falls
under subsections 12(a) or 12(c) it may be pro
ceeded with after initial screening, there is an
implied obligation not to proceed with a proposal
which has been found to fall under subsections
12(b),(d) or (e) and which has been referred to an
EARP Panel. He argues that in such cases the
Order implicitly imposes on the initiating depart
ment and the Minister the obligation not to pro
ceed with the proposal until the public review
process has been completed. The argument that
such an effect follows when the referral is made
only by reason of section 13 is less strongly put.
With respect to the general scheme of the
Order, as has been noted, the Panel's procedure
involves the holding of public hearings and the
preparing of a report for the relevant Ministers.
That report is to be made public and the respon
sible Ministers must then decide to what extent the
Panel's recommendations will be incorporated into
the proposal. These decisions of the Ministers are
also to be made public. Counsel argues that if a
proposal could be referred to a Panel for review
and proceeded with at the same time, this would
undermine the whole purpose of requiring a public
review and that it would undermine the whole
purpose of the Order.
Counsel's argument on the text of section 12
and on the general scheme and purpose of the
Order, is buttressed by the provisions of sections 3,
6, 18 and 33 (set out at page 15 above). He notes
that section 3 of the Order states that the review
process is one of self-assessment pursuant to which
the initiating department "shall, as early in the
planning process as possible and before irrevocable
decisions are taken, ensure" [underlining added]
that the environmental concerns are fully con
sidered. Section 18 imposes an obligation on the
Federal Environmental Assessment Review Office
to assist the initiating department in obtaining
public response to the proposal "early enough in
the planning stage that irrevocable decisions will
not be taken before public opinion is heard"
[underlining added]. And section 33 states that it
is the responsibility of the initiating department to
decide which of the recommendations of the Panel
will be adopted into "the design, construction and
operation of the proposal".
I initially considered counsel's argument, that
there was an implied obligation, under the terms of
the Order when read in the light of its purpose, to
stop the progress of any proposal once it was
referred for review, to be well founded. On reflec
tion I have come to a different conclusion. I do not
think the text of the EARP Guidelines Order can
bear that interpretation. As has been noted, there
is nothing in the Order which expressly requires
that a project be halted until the review is com
plete. In most cases, this might very well occur as
a matter of practice. It would clearly be the pru
dent course of action for a department to follow.
But there is no express mandatory obligation of
this nature found in the Order. Secondly, the
reference to an assessment being carried out before
irrevocable decisions are taken, in section 3, relates
to the self-assessment process which the initiating
department must undertake. It does not relate to
the EARP Panel process. The provisions are silent
with respect to what happens when a proposal has
been referred for review. Section 18 relates to the
obligations of the Federal Environmental Assess
ment Review Office and thus cannot be seen as the
foundation of a mandatory stop order to the Min
ister. And, in so far as section 33 is concerned,
while a department has to make decisions as to
which of a Panel's recommendations it will adopt,
the section does not expressly state that the pro
posal in question must be halted until the review
process is complete.
In addition, an implied mandatory obligation to
halt the proposal does not accord well with the
general scheme of the Order and with its other
provisions. Under the Order initiating departments
and Ministers are able to ignore whatever recom
mendations a Panel might make. They, of course,
do so at their peril in so far as public opinion is
concerned. Under the scheme of the Order it is the
watchful eye of public opinion which is to operate
as the leverage to ensure that environmentally
responsible decisions are taken. It is entirely con
sistent with this mechanism, then, that the regime
which operates during the course of the panel
review process, in so far as any obligation may
exist not to proceed with the project is concerned,
would be of a similar nature. In my view, any
obligation not to proceed while the project is under
review also depends for "enforcement" on the
pressure of public opinion and the adverse publici
ty which will attach to a contrary course of action.
In this regard it is clear that the Minister in this
case initially at least intended that the review
process be completed before any decision respect
ing a NATO Training Centre was taken. The
referral letter of February 13, 1986 clearly indi
cates this. A subsequent letter, to the Panel, dated
July 25, 1989, indicates that the Minister did not
consider that he could proceed with respect to the
NATO Training Centre until the Panel had pro
vided at least an interim report. And before me
counsel for the Minister, speaking on his behalf,
indicated that the Minister had no intention of
proceeding with such an initiative until after the
Panel's report was received.
Another feature of the review scheme set out in
the Order which argues for the conclusion that
there is no mandatory legal obligation not to pro
ceed in circumstances such as exist in this case, is
the fact that once a proposal is referred to a Panel
for consideration, the initiating department has in
effect lost all control over the timing of the Panel's
procedures. A Panel could thereby permanently
stop any proposal referred to it by mere inaction.
In my view, if it had been intended that a referral
under the EARP Guidelines Order should have the
mandatory effect for which counsel argues, some
further provisions respecting the time limits within
which the review procedure would have to be
completed and some provisions concerning the
consequences of delay would have been included in
the provisions of the Order.
Mandamus and Certiorari—Discretionary Reme
dies
There are other reasons which would lead me to
refuse to issue one of the orders sought in this case.
The orders sought, mandamus and certiorari, are
discretionary remedies: see generally de Smith's
Judicial Review of Administrative Action, 4th ed.
1980, pages 557 ff. Counsel for the applicant
argued that Mr. Justice Cullen, in Canadian
Wildlife Federation Inc. v. Canada (Minister of
the Environment), [1989] 3 F.C. 309 (T.D.) held
that mandamus was not discretionary when there
was a statutory duty on the Minister which was to
be enforced. I do not read Mr. Justice Cullen's
decision in this way. He was merely describing the
factors relevant to the issuance of a mandamus
order; he was not drawing the conclusion which
counsel suggests. In order to obtain mandamus it
is always necessary to find that there is a statutory
or legal duty to be enforced. It is only after that
requirement has been met that one, then, asks
whether there are particular reasons which as a
matter of discretion should lead a court to refuse
to issue the order in the particular case.
In this case, there are many reasons why a court
would not be quick to issue the order sought to
prevent the low flying training activity which has
been on-going for many years (albeit increasing in
intensity).
Of overwhelming importance is the effect which
such an order would have on the Goose Bay-Hap
py Valley communities. There is every reason to
believe that, if an order was given requiring that
the low level flying training cease, substantial
prejudice would be suffered by those communities.
CFB Goose Bay, as currently established, exists
solely to support the NATO low level flying train
ing. (About 1,700 direct and indirect civilian jobs
in the area depend on the military base.) In the
event that low level flying training was suspended,
there is evidence which indicates that this might
very well result in a permanent curtailment of
those activities. This in turn would result in mas
sive lay-offs, loss of investment and expenditures
for the civilian and military populations of those
communities. In addition, Canada would have to
pay compensation to the NATO members for the
residual value of their investments and presumably
for the dislocation arising out of such disbanding.
At the very least, an order of the nature sought
would result in extensive disruption, dislocation
and prejudice to the civilian population of Happy
Valley-Goose Bay, to Canadian military personnel
and their families and to members of the Air
Forces of the NATO members referred to herein.
At the same time, the members of the aboriginal
communities who are represented by the applicant,
in this case, will suffer little prejudice as a result of
a refusal to issue the order. They will lose no rights
which they presently have. The environmental con
cerns of the applicant and of others will be
addressed by the EARP Panel in the course of its
environmental assessment. The refusal to grant the
order sought will not prejudice that process. What
ever recommendations arise therefrom will have to
be considered by the Minister. At the foundation
of this application is a disputed, but unsettled, land
claim. But that claim cannot be resolved in the
context of the present proceedings. That claim
must be resolved in the ordinary way, by court
proceedings directed to that purpose if necessary.
Those issues are not relevant to the present
application.
If there was clear evidence that the effect on the
environment of the on-going and increasing low
level flying activity was extensive and damaging,
that would be a factor which would lead a court to
grant the order sought. But, there was no such
clear evidence placed before me. There is a lot of
speculative and hypothetical comment set out in
some of the material which was filed but no con
crete evidence that the low level flying as presently
being carried out is causing extensive environmen
tal damage. There are a lot of summary criticisms
of the EIS in the materials filed. These are often
incomplete and pulled out of the context in which
they belong. Many are totally irrelevant to envi
ronmental issues. In any event, as counsel for the
applicant rightly pointed out, the question of envi
ronmental impact is the issue which the Panel
must decide; it is not directly before me. At the
same time, the absence of any clear and unequivo
cal evidence respecting significant environmental
damage is a factor that is relevant in refusing the
order sought.
Of some significance, also, in refusing an order
of mandamus or certiorari is the fact that this
action could have been commenced by the appli
cant, at least four years ago. Delay is always a
factor in the case of discretionary remedies. Coun
sel for the applicant argues that the applicant has
been involved in the environmental review process
and was anticipating that that process would have
been completed before now. That is understand
able but I am not convinced that this justifies a
delay in commencing a court action of the length
which exists here. In this regard, while the number
of training flights are increasing they are not
significantly different in number from those of
recent years and there is absolutely no evidence to
suggest that the increase is having any dramatical
ly different effect on the environment than was
previously the case.
Another very significant factor, which in my
view requires the refusal of the issuance of the
order concerning the on-going low level flying
activity, is the fact that the members of the com
munities represented by the applicant who are
bringing this action have refused to co-operate in
any way in order to mitigate the effects which the
low level flying training might have on them. They
have refused to disclose the location of their camps
so that their camps can be avoided by the aircraft
engaged in the low flying activities. The extent of
the area over which low level flying training takes
place, as noted above, is approximately equal to
the size of the provinces of New Brunswick and
Nova Scotia combined. There is no precise infor
mation as to exactly the number of people, repre
sented by the applicant in these proceedings, who
fly into this area for hunting and fishing purposes.
However, it seems clear that the number is in the
order of about 100 people; certainly no more than
200 are involved. Also, there is no reason to think
that all 100 are present in the relevant areas at the
same time. And, they are not there in the summer-
time when the low level flying activity is most
intense.
The military have a policy of ordering pilots to
avoid all camps and some concentrations of wild
life (e.g., caribou herds) when the location of such
is known. If information is given to the military
with respect to the location of a camp, pilots are
ordered not to fly within a three-mile radius there
of. All the camps have high frequency radios and
can notify the military of their location. Other
aboriginal groups who use the low level flying
territory for hunting and fishing purposes would
appear to co-operate in this way. At least, there is
a large quantity of documentation, in evidence,
showing the reported location of camps during the
years 1986-89 for which avoidance orders were
issued. The camps whose locations are reported are
in general avoided although there are on occasion
mistakes made. The individuals represented by the
applicant in these proceedings refuse to co-operate
in this way. They take the position that such
co-operation would amount to condoning the low
flying activity. This is not valid reasoning. One can
mitigate the effects of injurious actions which
might be taken by others without condoning them.
The refusal to co-operate does, of course, raise the
question in a person's mind as to whether or not
much use is being made of the territory in question
at all by the individuals presently before the Court.
That is a natural inference which arises from the
conduct in question. In any event, the conduct
militates against the issuance of mandamus and
certiorari orders.
Most of the considerations which would lead a
court, as a matter of discretion, not to issue a stop
order respecting the low level flying, of course, do
not apply to the establishment of a new NATO
Training Centre which is a completely new
initiative.
Conclusion
As is obvious from what has been set out above,
this case raises a number of interesting issues.
Among them are: when, if ever, does an activity
which pre-existed the issuance of the EARP
Guidelines Order but which is increasing in magni
tude fall within the scope of that Order; what is
the effect if a Minister refers a matter for review
to a Panel even if not strictly required by the
Order to do so; should an on-going activity which
is thus referred or which becomes subject to the
Order by virtue of some dramatic change in its
quality or character be subject to the same
requirements on referral to a Panel as if it were an
entirely new initiative (i.e., if there is an obligation
to halt a proposal until the review process is com
pleted does this apply). In any event, as appears
from the above reasons, it is not necessary for me
to deal with these issues because I am of the view
that regardless of the answers thereto, the appli
cant could not succeed in this case. I do not think
the EARP Guidelines Order can be interpreted as
imposing a mandatory "stop" order on the Minis
ter after a project has been referred for review
under that Order. In addition, with respect to any
order which might issue to stop the low level flying
activity as opposed to the establishment of a
NATO Training Centre, there are numerous fac
tors which dictate that such an order should not, in
any event, be given. Most important among them
is the considerable prejudice such an order would
visit upon a large number of people who are not
represented before the Court as compared to the
minimal prejudice which the applicant will suffer
as a result of a refusal to issue the order.
For the reasons given the application is
dismissed.
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