ENVIRONMENT
Appeal from Federal Court decision (2004 FC 1150) quashing referral of Bennett High-Temperature Thermal Oxidizer (HTTO) Project at Belledune, New Brunswick to review panel under Canadian Environmental Assessment Act (CEAA), ss. 46, 48—HTTO exposes contaminated material to high temperatures to separate, remove, destroy contaminants —Gasses from process subjected to scrubbing, filtering before release into air—HTTO facility on 20-acre parcel at industrial park near port area of Belledune which also has lead-zinc smelter, coal-fired generation station—It is 1.3 kilometres from Baie des Chaleurs, 32 kilometres from nearest Indian reserve—Facility intended to treat up to 100,000 tonnes per year of soils from brownfield site remediation projects in North America—Not intended for treatment of PCB-contaminated materials—Provincial environmental approval (Certificate of Determination), subject to 24 conditions, granted January 17, 2003—Conditions included: conduct human health risk assessment (HHRA); install continuous emission monitoring system; install pollution control equipment; establish soil, groundwater monitoring programs; prepare environmental protection plan—Not alleged respond-ent failed to meet any condition in Certificate of Determination—HHRA conclusion: facility would not add appreciably to existing level of contaminants in Belledune area —No adverse acute, chronic human health effects expected— Approval to Construct issued by Province September 9, 2003 and construction began September 15, 2003—Approval extended only to operation for commissioning, performance testing, and prior to going into commercial operation Approval to Operate required—Many additional conditions imposed—Approval to Operate involved 180-day public review process—Draft Approval to Operate made available for public review February 18, 2004—Setting out detailed conditions, standards for transportation of contaminated material, stockpiling, emission limits, insurance, monitoring, reporting—Federal Environment Minister received two letters in October 2003 requesting his involvement as feared project may cause significant adverse environmental effects in Quebec, N.B.—First letter asked Minister to immediately halt construction, refer toxic waste incinerator project to mediator or independent review panel— Second letter, from First Nations, expressed concern for pollution, insisted Minister take steps necessary to protect health, traditional lands, demanded Minister live up to fiduciary obligations by imposing moratorium—Under CEAA, ss. 46(1), 48(1), Minister empowered to refer project for federal environmental review though not otherwise subject to federal regulatory control—Following receipt of these petitions, Canadian Environmental Assessment Agency conferred with Health Canada which put certain questions, none relating to transboundary effects, to respondent and it provided detailed response—Environment Canada experts prepared detailed report on issues, concluded concentration of contaminants so low that unlikely would result in significant adverse environmental effects on federal lands (First Nations reserves, Baie des Chaleurs) or Quebec—Even so, it identified issues worthy of attention in management of facility, passed these on to provincial, municipal governments—Department of Fisheries and Oceans advised project unlikely to cause significant, noticeable increase in habitat, resource contamina-tion in Baie des Chaleurs, or have toxic effects on fish in Gulf of St. Lawrence—Even so, Health Canada advised data available to it too limited to say with absolute confidence no human health concerns for transboundary communities— But Agency’s review team of opinion no reason to conclude project likely to cause significant adverse transboundary environmental effects—Respondent given copy of report, assumed therefrom project would not be referred to review panel—But on May 21, 2004 Agency issued press release Minister giving notice of intention to refer project due to Health Canada’s opinion data too limited to be confident no health concerns—Respondent asked Agency for chance to furnish additional information before Minister decided whether to refer but received no reply and Minister announced decision to refer—Respondent applied for judicial review of Minister’s decision, which was quashed—HTTO facility substantially completed, at cost of $29 million, when Minister decided to refer for review—Approval to Operate not issued as performance testing yet to be completed—For purposes of appeal, Court assumed building permit, Approval to Construct valid—Respondent’s objection to decision to refer was that when decision made, construction almost finished—Issue whether CEAA, ss. 46(1) or 48(1) empowered Minister to refer at that time i.e. at time of decision was HTTO facility a “project” within s. 2 and Judge below said it was not— Purposes of CEAA enumerated in s. 4—“Project” defined in s. 2(1), (3), speaks of “proposed construction” and, for greater certainty, “any construction . . . in relation to a physical work . . . for at least so long as . . . person or body referred to in subsection 5(1) or (2), 8(1), 9(2), 9.1(2), 10(1) or 10.1(2) is considering, but has not yet taken, an action referred to in those subsections”—S. 5 project reviews explained— Proceedings herein conducted on basis HTTO facility outside scope of s. 5 but project might be reviewable under ss. 46(1), 48(1) if having environmental impact upon another province, on lands in which Indians have interest or that are subject to land claims agreement—Under ss. 46(4), 48(5), Minister has to give proponent, certain others, at least 10 days’ notice of intention to refer and proper notice here given—Parties agreed something not “project” unless at proposal stage—Crown’s argument: as facility had not begun operation when Minister made decision, “proposed operation”, as opposed to its construction, was then a “project” within statutory definition —But Judge correctly agreed with respondent i.e. by time decision made to refer HTTO facility to review panel, not project within statutory definition because construction substantially complete—May be situations where proposed operation of fully constructed physical work is “project” within statutory definition as where existing facility to be used for different purpose than previously but that is not to say every new facility “project” until commences operation— Where approval given to build something designed for specific purpose, approval will normally contemplate both construction and operation in which case proposal phase ends by time building complete—Parliament deliberately aimed CEAA at proposed activities of specified kinds, not at every possible activity that might be undertaken by anyone, any time —Reason for such focus to ensure potential environmental effects assessed at planning stage so that regime effective, efficient, fair to project proponents—If project too dangerous to proceed, should be stopped reasonably early in planning stage to avoid environmental damage, loss of proponent’s investment or, if risk can be reduced by mitigation measures, such can be identified, assessed, imposed at planning stage— This brings degree of finality to assessment process, avoids unfairness of retroactively imposing environmental standards On facts, Minister’s argument it was “proposed operation” that was referred, could not prevail—When Minister made decision, operation approval process had advanced almost to conclusion—Provincial environmental assessment process assumed inextricable link between construction, operation of facility, which was understandable in that was built specifically for intended use—While not foregone conclusion Approval to Operate will be granted once test burns complete, given history of this environmental approval process, that operation approval not yet granted could not justify Minister in treating “proposed operation” as if were something new, different from construction—S. 2(3) inapplicable, as applies only to undertaking under federal jurisdiction or that involves one or more federal approvals—While statutory right to petition may be exercised at any time, does not follow that Minister’s power of referral thereby expanded to permit referral of something outside statutory definition of “project” Judge correct in quashing Minister’s decision—Crown questioned prohibition against Agency proceeding with review of matter—As decision to refer to review panel, not to Agency, which does not undertake review of sort carried out by review panel, Court agreeing with Crown—Quashing decision to refer HTTO facility to review tribunal all that was necessary and portion of Order referring to Agency set aside—Respondent further submitted that, even if Minister authorized to refer, to do so was unreasonable—Test for what is unreasonable explained by Iacobucci J. in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247: reviewing court must stay close to tribunal’s reasons, “look to see” whether any of them adequately support decision—Only reasons given for Minister’s decision were those contained in Agency’s press release and indication was that decision taken only because Health Canada believed lacked sufficient information to have absolute confidence no human health risks—Respondent correct in suggesting can never be determined with absolute confidence no health concern due to substance’s release into environment and if Minister of view facility could not proceed unless that standard met, decision might be found unreasonable—But Minister’s decision was only to refer so that more information could be gathered, assessed and that was not unreasonable—Minister’s decision not influenced by partisan politics even though press release issued just two days before date for federal election announced—Minister should not have acted on petitions without giving respondent chance to respond to factual allegations contained therein, chance to address questions identified by Health Canada in February 2, 2004 letter—Statutory 10-day notice requirement serves no useful purpose unless parties allowed chance to supply additional information—Respondent did make timely request but it was ignored—Appeal allowed in part, order to quash affirmed—Canadian Environmental Assessment Act, S.C. 1992, c. 37, ss. 2(1) “project”, (3) (as enacted by S.C. 2003, c. 9, s. 1), 5, 46 (as am. idem, s. 21), 48 (as am. by S.C. 1993, c. 28, s. 78; 2002, c. 7, s. 123; 2003, c. 9, s. 23).
Bennett Environmental Inc. v. Canada (Minister of the Environment) (A-509-04, 2005 FCA 261, Sharlow J.A., judgment dated 19/7/05, 46 pp.)