T-2230-89
Edelbert Tetzlaff and Harold Tetzlaff (Applicants)
v.
Minister of the Environment (Respondent)
and
Saskatchewan Water Corporation (Intervener)
INDEXED AS: 7ETZLAFF V. CANADA (MINISTER OF THE
ENVIRONMENT) (TD.)
Trial Division, Muldoon J.—Winnipeg, September
11; Ottawa, September 30, 1991.
Environment — Motion for enforcement of Court order
requiring panel to (1) determine whether Rafferty-Alameda
Dam Project compatible with sound development of Canadian
resources, economy and (2) require Saskatchewan Water Cor
poration to file Environmental Impact Statement — Panel sub
mitting report to Minister day before motion returnable —
Minister arguing now . functus officio, issue moot — Prelimi
nary objection denied — Current panel having replaced initial
panel which resigned because Saskatchewan Water pushing
project forward to nullify panel's efforts — Had Court known
Saskatchewan Water's intentions, project licence would have
been quashed — Panel having neglected duty to comply with
the Environmental Assessment and Review Process Guidelines
Order and International River improvements Act requirements
— Panel failing to demand cost benefit analysis though
mandatory under Regulations — Until fatal . flaw remedied,
panel not having reported to Minister — Motion adjourned for
amendment of notice of motion in view of recent development.
Practice — Judgments and orders — Enforcement — Appli
cation for order enforcing compliance with previous order that
panel determine whether Rafferty-Alameda Dam Project com
patible with sound development of resources and economy of
Canada — Panel submitting report to Minister day before
applicant's notice returnable — Whether . filing of report suffi
cient compliance with previous Court order that no lis remain
ing and issue moot — Report failing to exact, consider and test
economic analysis of direct and indirect benefit and costs of
project pursuant to International River Improvements Regula
tions, s. 6(g) — Mandatory provisions of law not complied with
— Report to Minister of no force or effect until fatal . flaw reme
died — Motion adjourned with applicants given leave to
amend notice of motion as to remedies sought considering
unforeseen developments.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Environmental Assessment and Review Process Guide
lines Order, SOR/84-467, ss. 30(1), 33(1)(a), 34(a).
Federal Court Rules, C.R.C., c. 663.
International River Improvements Act, R.S.C., 1985, c.
I-20.
International River Improvements Regulations, C.R.C., c.
982 (as am. by SOR/87-570), s. 6(g),(h).
CASES JUDICIALLY CONSIDERED
REFERRED TO:
Tetzlaff v. Canada (Minister of the Environment) (1991),
47 Admin. L.R. 290; 40 F.T.R. 114 (F.C.T.D.); Tetzlaff v.
Canada (Minister of the Environment) (1991), 47 Admin.
L.R. 275; 40 F.T.R. 104 (F.C.T.D.).
COUNSEL:
Alan W. Scarth, Q.C., and Gordon H. A. Mack
intosh for applicants.
Craig J. Henderson for respondent.
D. E. Gauley, Q.C., R. G. Kennedy and C.
Wheatley for intervener.
SOLICITORS:
Thompson, Dorfman, Sweatman, Winnipeg, and
Gowling, Strathy & Henderson, Ottawa, for
applicants.
Deputy Attorney General of Canada for respon
dent.
Gauley & Company, Saskatoon, Saskatchewan,
for intervener.
The following are the reasons for order rendered in
English by
MULDOON J.: Pursuant to this Court's order of Feb-
ruary 8, 1991, in this matter, the applicants move for:
I. An Order enforcing compliance with the Order issued
herein February 8, 1991, (the "Order"), including
a) A direction that the three-member panel of John Archer,
William J. Stolte and Roderick R. Riewe (the "Panel")
shall in the course of the Public Review which the Order
required it to conduct (the "Public Review"), determine
whether the Rafferty-Alameda Dam Project (the "Propo-
sal") is "compatible with a sound development of the
resources and economy of Canada", in accordance with
paragraph 6(h) of International River Improvements Regu
lations;
b) A direction that the Panel require the Intervener to file an
Environmental Impact Statement (the "EIS") and support
ing documents, pursuant to subsection 34(a) of the Envi
ronmental Assessment and Review Guidelines Order
SOR/84-467; that the Respondent ensure that this respon
sibility of the Intervener is fulfilled as required by para
graph 33(1)(a) thereof; and that the Panel issue the appro
priate Guidelines under subsection 30(1) thereof;
c) A direction that the EIS contain an "economic analysis of
the direct and indirect benefit and costs of and resulting
from" the Proposal in accordance with paragraph 6(g) of
the International River Improvements Regulations (the
"Benefit/Cost Analysis"), the Benefit/Cost Analysis to
include an analysis of the direct and indirect costs of the
Proposal in the areas of federal responsibility as well as in
the areas of provincial responsibility, and an analysis of
the agricultural and recreational benefits of the Proposal in
light of the evidence presented to the Panel including, in
particular, the evidence as to the rate of evaporation from
the proposed reservoirs;
d) A direction that the Applicant have an opportunity to con
sider the EIS, including the Benefit/Cost Analysis, and
bring evidence before the Panel in respect thereof; and
e) A direction in general that the Panel not conduct its Public
Review on the assumption that the Proposal will be con
structed and maintained as an international river improve
ment under the International River Improvements Act
R.S.C., 1985, Chap I-20 (the "IRIA") and that the Panel is
therefore confined in its mandate to mitigation of the envi
ronmental effects of the Proposal, but instead to conduct
its Public Review with the object of determining whether
the Proposal is compatible with a sound development of
the resources and economy of Canada, and whether it
should be constructed and maintained as an international
river improvement;
and such other direction as the Court deems appropriate;
2. In the alternative, an order in the nature of certiorari
quashing the licence issued for the Proposal by the
Respondent under the IRIA on August 31, 1989 on the
grounds, inter alia that the Order and the earlier order of
this Court issued December 28, 1989 have not been com
plied with; and
3. The costs of this Application;
AND TAKE NOTICE THAT in support of this Application
will be read the Affidavit of Gordon H.A. Mackintosh, filed,
and such further and other evidence as counsel may advise and
this Honourable Court permits.
The notice was returnable in Winnipeg on Septem-
ber 11, 1991. At the opening of that session, the
respondent's counsel, seconded by the intervener's
counsel, asserted that these proceedings are termi
nated because the panel (successor to the earlier, first
panel) appointed by the respondent on February 5,
1991, had submitted to the respondent a printed form
of report entitled "Report of the Rafferty-Alameda
Project Environmental Assessment Panel." The
panel, according to the respondent's counsel, had ten
dered such document to the Minister as recently as
September 10, 1991, the day before the applicants'
notice was made returnable in this Court. Counsel
tendered a copy of that report which was received as
an exhibit at the hearing.
The respondent's and the intervener's position is
that, in so far as enforcement of the Court's previous
order of February 8, 1991 is concerned, that panel is
now functus officio, so is this Court, and the issue is
accordingly moot.
The applicants' counsel asserted that the panel was
rushing to file an inadequate report, as a last-ditch
measure of desperation in order to avoid a proper
review. It is not certain that counsel was levying
those accusations at the members of the panel, but if
not at them alone, then he must have been hinting at
some sort of conspiracy between them and the Minis
ter, an inference to be drawn only from proper evi
dence. In any event, the applicants' counsel went on
to allege that the report as tendered deals with mitiga
tion only and has nothing to say about the soundness
of the project. In its deficiencies, counsel asserted,
the report fulfils the dire prophesies of the Rawson
Academy of Aquatic Science of March, 1991, and
those of the Tetzlaffs themselves. Moreover, the
applicants' counsel averred, if the panel can come in
after a short number of weeks with an inadequate
review, it frustrates the purpose of the review pro
cess. He stated that the Minister has been "resisting
an economic review for the past three years" and "the
panel has explicitly avoided" the same, but that "such
a review is required." "This report constitutes avoid
ance of the panel's duty. If they haven't done it, the
[intervener's] licence should be quashed."
The respondent's and the intervener's averrals,
then, are in the nature of a preliminary objection to
the effect that there is now no /is—no real issue to be
determined by this Court as between the contending
parties, with the intervener on the respondent's side
of the preliminary objection. The latter two urge that
the appointment of the panel and the reception of its
report are all the Court could order the Minister to
do, and the same are now done fully.
There being a contentious issue raised between the
parties inter se and the intervener as to that prelimi
nary objection, the matter was adjourned to the fol
lowin g day for argument.
In the meanwhile counsel appeared for Joseph
Dolecki, one of the applicants in Canadian. Wildlife
Federation Inc. v. Canada (Minister of the Environ
ment), [ 1989] 3 F.C. 309 (T.D.). He sought to be
accorded intervener status and to participate in these
present proceedings. The applicants' counsel
expressed no objection to Mr. Dolecki's filing of
material bearing the substantive matters in issue as
defined by the applicants' notice of motion. Counsel
said the material is on the public record in other
places, in any event. The respondent and the inter-
vener, not without justification, objected to this late
attempt by Mr. Dolecki to interject himself into this
proceeding and stated that if the matter he now
ended, there is no need to hear from Mr. Dolecki. In
view of these objections and the fact that, under the
Federal Court Rules [C.R.C., c. 663], Mr. Dolecki is
not endowed with an absolute right to intervene at
this time, if at all, the Court declined to receive his
intervention, but did not foreclose Mr. Dolecki's
right to move for such status later, in the event that
this Court were to dismiss the above-mentioned pre
liminary objection and to embark on the substantive
adjudication.
In effect, has such compliance with this Court's
order of February 8, 1991 been effected that, with the
filing of the panel's report of September, 1991, there
remains no living /is in these proceedings, thus end
ing them, and that the contentious matter is simply
moot for having been completely undercut? Or is the
document tendered by the panel no report at all, sim
ply a nullity? If that be so, then the Minister must
insist upon the panel doing its proper job and com
plying with the Court's order.
As mentioned, the panel which tendered a report to
the Minister on the eve of the hearing herein was the
second panel to have been assembled in regard to the
Rafferty-Alameda project. The first panel resigned on
October 12, 1990, because of their not unjustified
sense that the intervener was deliberately proceeding
apace with the project in order to circumvent the
panel's work and conclusions. Had the Court known
in December, 1989 that the intervener would adopt
such a posture, the Court would have quashed the
licence out of hand in order to give the environmental
panel an opportunity to do its work without being
upstaged by the intervener's relentless pushing for
ward of the dam construction and related works.
Obviously, some people will not behave in a reasona
ble manner, even when afforded the opportunity to
do so. Here, then, is the preambulatory paragraph of
the order of February 8, 1991:
UPON NOTING that on February 5, 1991, the respondent
Minister anticipated the order of the Court by appointing a
new environmental assessment panel mandated "to undertake a
review of the environmental and directly related social impacts
(resulting from changes to the biophysical environment) of the
Rafferty-Alameda Dam Project" in Saskatchewan;
Here is what was, and is, required pursuant to this
Court's order of February 8, 1991:
1. THIS COURT ORDERS AND ADJUDGES that insofar as
they are or may be omitted from the mandate conferred by the
respondent on the three-member panel of John Archer, William
J. Stolte and Roderick R. Riewe, the terms and conditions
expressed in the first paragraph of this Court's order pro
nounced on December 28, 1989 shall be included in, or added
to the said panel's mandate forthwith by the respondent, pursu-
ant to the said Environmental Assessment and Review Process
Guidelines Order, that is:
... said Panel is to conduct a public review of all the signifi
cant adverse environmental effects, called significant and
moderate impacts not mitigable with known technology for
which mitigation is not factually provided, mentioned in
Volume I, Technical Report, of the Initial Environmental
Evaluation of the Rafferty-Alameda Dam Project performed
by Environment Canada and dated August, 1989, a copy of
which Volume I is annexed as exhibit "E" Vol. Ito the affi
davit of Kenneth A. Brynaert sworn October 6, 1989, and
filed in Court file No. T-2102-89
and was confirmed by the Federal Court of Appeal in its unan
imous judgment dated December 21, 1990, (A-48-90), except
insofar as any of the aforementioned mandated duties have
already been fully, carefully and satisfactorily performed by
the panel which resigned on October 12, 1990, unless bringing
the former panel's data, recommendations and public review
up-to-date be necessary or desirable because of the effluxion of
time or inaccessibility to the panel and to the public of the for
mer panel's work and records; and
2. THIS COURT FURTHER ORDERS that in any further
applications, failures, contentions or any matter whatsoever
between the parties, the intervener, their agents, servants and
contractors regarding the aforesaid Rafferty-Alameda Dam
Project and the continuity, suspension, conditions or quashing
of the Minister's licence therefor, this Court shall remain
seized of these matters; and it may be convoked on proper,
timely notice to any of the appropriate parties, persons, firms
or corporations above mentioned or any interested person,
including the intervener, for such relief by way of judicial
review and extraordinary remedies as may be granted accord
ing to law or equity; and
4. THIS COURT FURTHER ORDERS that the counsel and
the solicitor for the respondent shall bring the text and terms of
this order and its supporting reasons specifically to the atten
tion of their client, the Minister of the Environment.
There was the order. One expects that apart from
what the Court specifically orders, parties, and espe
cially a Minister of the Crown and a Crown corpora
tion, will otherwise comply with the law without
being ordered to do so. If parties had additionally to
be ordered to comply specifically with every law
which governs their behaviour, Court orders would
be encyclopedic in volume and number of subjects.
The notion is absurd, and no part of the Court's duty,
but that does not relieve anyone from his, her or its
general and eternal obligation to comply with the
law. Such obligation applies equally to boards, com
missions and all other subordinate tribunals, who, if
in doubt, ought to engage solicitors or counsel.
In regard to the above observations, here is a pas
sage drawn from the Court's written reasons for the
order of February 8, 1991, published as Tetzlaff v.
Canada (Minister of the Environment) (1991), 47
Admin. L.R. 290 (F.C.T.D.), at page 294:
From that judgment [Federal Court of Appeal, unanimous
per lacobucci C.J., December 21, 1990, A-48-90], it becomes
clear that this Court is still properly seized with the litigation.
Even before considering its lucid passages one may note that
in contention was the very licence which the former Minister
issued on August 31, 1989, a very pertinent nexus, indeed.
That nexus relates of course to the intervenor's very same Raf-
ferty-Alameda water control and dams construction project for
which a federal minister's licence is required pursuant to the
International River Improvements Act, R.S.C., 1985, c. l-20
("I.R./.A."). Section 2 of I.R.I.A. defines an "international river
improvement", which the intervenor's project has been shown
to be; s. 4 prohibits everyone from constructing, operating or
maintaining such improvement without holding a valid licence
therefor issued under I.R.I.A.; and s. 5 makes contravention a
hybrid offence which may be prosecuted either on indictment,
or by way of summary conviction proceedings, and prescribes
fines and imprisonment upon conviction. Section 7 prescribes
exceptions which do not apply here, and s. 8 of I.R./.A. runs as
follows:
"8. This Act is binding on Her Majesty in right of Canada or
a province."
Was that not a sporting reminder of necessary com
pliance with the provisions of the International River
Improvements Act?
Was the Court obliged in formulating its orders to
pronounce—"Oh, by the way, do not forget, Minister
and Sask Water, that you are bound to comply with
IRIA?" Both the Minister and the intervener are pro
vided with the services of lawyers. That reminder
was not incorporated into the Court's order, but it
surely was present, as above recited, in the Court's
reasons for that order. Needless to emphasize, the
obligation to comply with IRIA did not arise only in
February, 1991: it was always operative and required.
The Court merely redundantly reminded the respon
dent and the intervener of it in the Court's reasons of
February, 1991. That was a luxury which was not
their due, but provided as a free service by the Court.
Keeping in mind that the intervener's licence is
issued purportedly pursuant to the terms of IRIA, one
should note certain provisions of the International
River Improvements Regulations, C.R.C., c. 982
(hereinafter IRIR). The particular provision invoked
by the applicants is section 6 of the IRIR, which runs:
6. An application for a licence under the Act shall be
addressed to the Minister and shall contain the following infor
mation:
(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;
(e) 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;
(D details off 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 bene
fit 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.
A copy of the IRIR is exhibit A to Gordon H. A.
Mackintosh's affidavit.
Now, normally, it is a presumption of law that all
things and acts are presumed to he correctly and sol
emnly done: Omnia praesumuntur rite et solemniter
esse acta. That ancient proposition of law asserts that
rebuttable presumption, of course, only until the con
trary is proved.
Exhibit B to Mr. Mackintosh's affidavit is a copy
of 50 pages of the transcript of the submission on
behalf of the applicants to the panel, on June 24,
1991. Although late in the overall process which has
been going along since the late years of the last dec
ade, the nineteen-eighties, the panel's proceedings
must be considered to be the very last opportunity for
the Minister's and Sask Water's compliance with the
requirements of the law in regard to the Rafferty-Ala-
meda Dam Project. That is to say, if it were not
already too late.
Some passages from that transcript will serve to
illustrate that the applicants' counsel, like the Court
in its reasons of February 5, 1991, sought to remind
the panel that it should require of the intervener,
since the Minister evidently had never done so, that
compliance with section 6, and paragraph 6(g) of the
IRIR made pursuant to the IRIA was mandatory.
Here they are:
THE CHAIRMAN: Thank you for your courtesy.
MR. ALAN SCARTH: Mr. Chairman and members of the ...
panel, I want first to comment ... that one of your obligations
is to look at the cost/benefit ratios applicable to this project
and, in doing so, we will look to you to make a fresh assess
ment of the costs and a fresh assessment of the benefits.
(page 57)
Some years ago the proponent developed what was called an
environmental impact statement, but it dealt only with provin
cial benefits and provincial costs which is like looking at one-
half of the animal and trying to assume that it will run.
(page 58)
So what we are talking about is a valley with a viable eco
nomic purpose and we are going to ask the question: "What are
we going to get instead of that valley?" That's a really simplis
tic expression of what is the cost/benefit of this project.
(page 59)
If they were told that was the purpose of the project, the pur
pose of Rafferty being to supply water to the Shand generator
system, but having no other benefit than maybe even failing at
that and the purpose of Alameda to supply the United States'
needs for flood and water, what then would Praxis tell us if the
people knew the truth?
Going back to cost benefit, which, gentlemen, is your heavy
responsibility. Aside from the money paid by the United States
as a contribution to the cost of the Alameda Dam—and we
know why it was paid. It was paid because it was less expen
sive to have this valley flooded than the valley just south of the
border. In other words, it's cheaper to buy a Canadian valley
than it is to flood a valley in the United States.
Now, aside from that money payment which comes to some
thing like $50 million Canadian dollars, there is no benefit to
Canadians to offset the environmental cost of the loss of this
Moose Mountain Creek Valley.
If you take away irrigation and recreation you are right down
to money. Fifty million to keep industry here going for three or
four years and what about the other 96 or 97 years?
Actually, this system is designed simply to work for the Shand
Generation Plant. To work for Minot flooding and United
States water supply.
(pages 67-68)
MR. ALAN SCARTH: [after quoting section 34 of the
EARPGO to the panel on June 24, 1991]
That is the responsibility of the proponent. And this is not a
document dealing just with provincial impacts, this is a docu
ment dealing with the impacts which are within your mandate
and those are all of the federal impacts, including the destruc
tion of this lovely valley.
There has been no such filing. The law requires it and if the
panel wishes assistance from the judge, the judge's door is
open and I am here to assist. There is no question but that there
has to be an environmental impact statement which says,
"What are the benefits?" Irrigation, recreation on the mud
slopes of these two unfilled dams, reservoirs? Irrigation, when
they may never fill? That is the kind of decision you are going
to have to take. What are really the benefits of this thing? They
get right down to $50 million. Is that what we have sold out
for? Some water for the Shand plant? Indeed, if we can get it
there without borrowing from another basin, which is the sug
gestion of the Rawson Academy. It is the only thing that can
be done. What are the real benefits? Fifty million dollars and
all the rest are south. And what are the costs? One of the costs
will be the loss of these two valleys and you have to ask your
selves: "For what?"
(pages 79-80)
What are the benefits in costs? And you do have the authority
and the responsibility which is a heavy onus upon you—if
indeed you find that there is no favourable cost benefit ratio, to
say so.
(page 81)
There has been comment that the International Joint Commis
sion was not consulted in this matter. Surprising, considering
that they are responsible for transboundary issues. But, this
deal between Canada and United States which seemed to be
politically advantageous to both governments, was carried on
behind closed doors and out of sight. If it had been put through
the International Joint Commission I would not be here today,
because the project would never have been approved. One of
the recommendations that are available to you is to have this
project referred to the International Joint Commission, an inde
pendent body, and then see what they think of the costs and of
the benefits. That is available to you under that same
Canada/U.S. Agreement.
(pages 83-84)
DR. WILLIAM STOLTE: [a panel member, after reading sub
section 25(3) of the EARPGO] The socio-economic [effect of a
proposal], I assume is a cost benefit.
MR. ALAN SCARTH: Yes.
The environmental effects, such as the loss of a valley, or the
intense evaporation which would evaporate all the water out of
the Rafferty Reservoir that comes into it. Those are long term
economic effects. The difference between environmental
effects and economic effects is only one of time scale. What
we are doing, if we pass this project, is to impose the cost on
the next generation. So, that yes, socio-economic effects are
part and parcel of an environmental impact statement and
should be assessed basis cost benefit. And if does not stack up
on cost benefit, then you are entitled to ask: "Why are we
doing this?"
(page 87)
So, if the panel were not aware that a cost-benefit
study was required of the Saskatchewan Water Cor
poration, it was not for want of trying to make the
panel aware on the applicants' part. It is true that the
provisions of the EARPGO in section 34 speak of the
proponent's preparing the environmental impact
statement in accordance with any guidelines estab
lished by the panel pursuant to subsection 30(1),
which provides that guidelines for the preparation of
such a statement may be issued by a panel to a propo
nent in a public review. So, it is contended by the
respondent and the intervener, if the panel declined
or even failed to issue such guidelines, it was entitled
so to do. Such may be the effect of the EARPGO, but
the contention is devoid of any thought that the
licence in question was issued pursuant to the IRIA
and its IRIR including mandatory paragraph 6(g).
The Minister, whose counsel now says "contented"
to the panel's report exhibited herein, did not forget
the mandatory provisions in his terms of reference to
the panel. Exhibit A to the affidavit of Linda Jones
contains those terms of reference, which in addition
to prominent reference to studies prepared in accor
dance with the EARPGO, also and even more promi
nently mandate the panel to:
provide advice to the Minister on the adequacy of the mitiga
tion plans prepared by the proponent pursuant to the Interna
tional Rivers Improvement Act [sic] licence;
How much more specifically and cogently would the
intervener Sask Water, or the panel itself, need to he
reminded that the former failed to comply with para
graph 6(g) of the IRIR and that, if not the Minister,
then at least the panel ought to have held Sask Water
to its obligation to comply, so long as it sought to
hold its IRIA licence? Both have apparently failed to
see that the mandatory provisions of law under which
they operate were enforced. Such is the effect of
exhibit C to Mr. Mackintosh's affidavit, being Linda
Jones' index of the documents filed with the panel.
The Court, with its present shortage of judges, cannot
be expected to "hold their hand" in the discharge of
their duties. Nor even otherwise.
If the submission of the panel's alleged report had
not been accomplished one day prior to the return of
the applicants' motion, dated and filed as early as
August 23, 1991, it was obviously the applicants'
intention to move the Court to remind the panel of its
now obviously overlooked or rejected duty to comply
with the statutory requirements of both EARPGO and
IRIA including IRIR. However, even when put on
such notice in late August, 1991, the panel contrived
to get its report into the Minister's hands on Septem-
ber 10, 1991, purportedly rendering itself functus
before the September 11 return of the August 23
notice of motion.
The Court is not persuaded that the panel has sub
mitted a report to the Minister within the meaning of
the EARPGO or IRIR because there appears to have
been a failure initially on the part of Sask Water to
effect, then on the part of the Minister, and finally on
the part of the panel to require compliance with the
International River Improvements Act and its Regula
tions. The panel's document, because of the panel's
failure to exact, to consider and to test an "economic
analysis of the direct and indirect benefit and costs of
and resulting from" the project pursuant to IRIR, par
agraph 6(g), an imperative law of Canada, is fatally
inadequate. Until the long-standing flaw is remedied,
the panel has simply not reported to the Minister. No
"report" has yet been submitted to the Minister, and
the Court so finds that to be the fact, in law.
The fatal flaw in the whole process, afflicting as it
does the panel's submission of September 10, 1991,
does not mean that the panel's work is not objectively
and well done. The Court is not to be taken to arro
gate to itself the rôle of critic in any field other than
the missing legal sine qua non which fatally flaws the
panel's submission to the Minister because the latter
apparently never insisted upon the proponent's com
pliance with the IRIR provisions. Had there been a
cost-benefit study, that study would have been, of
course, the stuff of public airing by the panel, and the
basis of some of the panel's conclusions. It was an
essential factor which was never properly aired, even
although it is mandatory under the IRIR.
A necessarily swift study of the panel's document
exhibited here indicates the panel's own misgivings
with the proponent's over optimism (par. 5.1.3., page
25; par. 5.7, page 33), failures to take important mat
ters into consideration (also par. 5.1.3) and inade
quate addressing of the real problems (par. 5.2.3,
page 28; par. 5.9, page 34). Such observations by the
panel indicate the need for cost-benefit comparisons
because the proponent itself is apparently not to be
trusted to be forthcoming and objective with the peo
ple it was created to serve.
The preliminary objection of the respondent Min
ister, seconded by the intervener, Saskatchewan
Water Corporation, is dismissed. The applicants are
now entitled to get on with their principal motion
which, by now, will have been generously adjourned
to accommodate Sask Water's request for an adjourn
ment.
The intervener may govern itself in accordance
with Tetzlaff v. Canada (Minister of the Environment)
(1991), 47 Admin. L.R. 275 (F.C.T.D.).
In light of the unforeseen and unforeseeable fact of
the panel's submission of its fatally defective non-
report to the Minister on the eve of the scheduled
hearing in Winnipeg, the applicants shall be entitled
to amend their notice of motion in order to re-specify
the remedies which they seek, in regard only to that
new fact, as it was, the morning after in Court. The
applicants are also entitled to their taxed solicitor-
and-client costs of and incidental to the respondent's
and intervener's counter-motion in the form of a pre
liminary objection, in any event of the cause. The
parties and the intervener are directed, as soon after
the filing of an amended notice by the applicants as
possible, to apply to the Associate Chief Justice to fix
a date for the resumption of the proceedings.
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.