ENVIRONMENT |
Sierra Club of Canada v. Canada (Attorney General)
T-765-02
2003 FCT 271, Blais J.
4/3/03
43 pp.
Judicial review of decision by Minister of Fisheries and Oceans (MFO) approving request to operate mussel aquaculture facilities in St. Ann's Harbour, Cape Breton, Nova Scotia--MFO's approval granted pursuant to Navigable Waters Protection Act (NWPA), s. 5(1)(a)--Canadian Environmental Assessment Act, s. 5(1)(d) requiring environ-mental assessment--Bounty Bay (applicant for licence) and co-developer preparing environmental impact statement (EIS) --As EIS accessed by public, concerns about commercially sensitive nature of part of EIS--Copies of EIS made available at five public locations within community--Public invited to review EIS at these locations following widespread public service announcements--EIS considered copyrighted property of Bounty Bay, co-developer--Not to be copied, removed from locations--Deadline for responses June 1, 2001-- Applicant, in Ottawa, obtaining copy only on May 14-- Seeking extension of deadline--Although Minister replied on June 7 that review still underway, applicant not providing further subsmissions--(1) Whether MFO breached applicant's right to procedural fairness at common law and whether MFO breached applicant's right to procedural fairness in applying Canadian Environmental Assessment Act (CEAA), ss. 18(3) or 55(1)--S. 18(3) requires responsible authority, in present case Habitat Management Division (HMD) of DFO, to give public notice and opportunity to examine and comment on screening report and on any record filed in public registry before taking course of action under s. 20--In Lavoie v. Canada (Minister of Environment) (2000), 190 F.T.R. 181 (F.C.T.D.), Court held way in which Parliament legislated CEAA, s. 18(3) removed doctrine of public fairness in relation to public participation since s. 18(3) discretionary in nature-- S. 55(1) determines establishment of public registry ensuring convenient public access to registry in respect of every project for which environmental assessment conducted--In Friends of the West Country Assn. v. Canada (Minister of Fisheries and Oceans), [2000] 2 F.C. 263 (C.A.), Court held establishment and manner of operation of public registry under CEAA, s. 55(1) subject to exercise of discretion by responsible authority--However, Court cautioned if public registry not established and operated in close proximity to relevant geographic area of environmental assessment, other reasonable means must be provided to comply with s. 55(1)-- In present case, public registry available in close proximity to relevant geographic area, as required in Friends of the West Country Association--However, because applicant having less than three weeks to have EIS reviewed by scientific experts and prepare comments, denied reasonable opportunity as required under s. 18(3)--MFO had positive obligation to render EIS accessible for comments and cannot rely on what applicant could have done--By unjustifiably declaring EIS copyrighted and protected property, in light of supposed sensitive commercial nature of some of EIS parts, MFO failed to meet obligations--CEAA, s. 18(3) clear by indicating once responsible authority exercised discretion and determined public participation appropriate, obliged to give public opportunity to examine and comment on EIS and screening report--In present case, such brief period of time could not possibly have allowed public enough time to examine, comment on screening report--MFO's failure to fully comply with requirements of ss. 18(3) and 55(1) constitutes error justifying setting aside decision under review--(2) Whether MFO committed reviewable error in reaching decision granting approval of aquaculture project--Responsible authority had to consider effect of project on navigation-- Impossible to determine on what documents or opinion responsible authority relied to conclude no significant adverse effects on navigation--Approval of project depended on consideration of effect of project on navigation--Issue should have been addressed by responsible authority--Application granted and MFO's approval of project quashed--Navigable Waters Protection Act, R.S.C., 1985, c. N-22, s. 5(1)(a)-- Canadian Environmental Assessment Act, S.C. 1992, c. 37, ss. 5, 18(3), 55(1).