Lake Petitcodiac Preservation Assn. Inc. v. Canada ( Minister of the Environment )
T-1132-98
MacKay J.
9/6/98
18 pp.
Application for interim relief pursuant to Federal Court Act, s. 18.2 pending disposition of judicial review application-As result of agreement between federal, New Brunswick Ministers of Transportation, Environment decision made to proceed with trial program, designed to manage fairly significant change in water level of Lake Petitcodiac from spring to late fall of 1998 to study concept to partially restore natural ecosystem of river-Lake result of construction of causeway across river-Water level of lake controlled by opening and closing gates in causeway-Gates prevent tidal inflow of salt water into lake-Trial project would allow tidal water to flow upstream past causeway, and on falling tide would control outflow from lake to reduce erosion-Initially no provision for environmental assessment under Canadian Environmental Assessment Act (CEAA)-Applicant applied for judicial review of decision to proceed with trial project, and for interim relief-While decision under reserve, federal ministers agreed to undertake environmental assessment under CEAA-Screening report, undertaken pursuant to CEAA, concluding project not likely to cause significant adverse environmental effects-Subsequently motion for interim relief dismissed without prejudice to hearing any similar motion in support of new application for judicial review in relation to respondents' decision to proceed on basis of new screening report-Such motions subsequently filed-Applicant seeking declarations project "project" within meaning of CEAA, decision contained in screening report null and void; certiorari quashing that decision and decision not to allow public opportunity to examine, comment on report before taking action-Also seeking declarations report not complying with statutory requirements of Act, particularly s. 16, respondent required to give public notice and opportunity to examine, comment on report prior to taking action under s. 20, public concerns regarding project and/or screening report warrant reference to mediator or review panel-Also seeking prohibition or injunction preventing respondents from making any decisions, taking any course of action, or providing or authorizing provision of funds for purpose of project and preventing anyone having notice of order from utilizing any funding until CEAA complied with-Request for interim relief seeking interlocutory stay of decision in screening report, interlocutory injunction restraining respondents from making any decision granting statutory approvals or authorizing provision of funds for purposes of project, preventing anyone having notice of such order from utilizing any funding, assistance or statutory authorization; order enjoining respondents from authorizing alteration of fish habitat in Lake Petitcodiac; interlocutory relief restraining respondents from authorizing deposit of substances harmful to migratory birds-Test for interim relief set out in American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 (H.L.) applied-(1) Court rejecting submission Court should dismiss application for interim relief because can make no direct order to stop or control gate opening as within authority of provincial Minister of Transportation-Court will not make orders that will be futile, but may make orders directed to respondent Ministers which might affect their involvement as parties in trial project-Could do so without affecting continuing responsibilities under statute to monitor, assess activities of provincial departments that have effects upon matters within fields of federal legislative competence-Differences between parties supporting conclusion serious issues raised about reasonableness of conclusions reached in screening report-Such issues can only be determined upon hearing argument on application for judicial review-(2) Applicant will not suffer irreparable harm in brief period between present and any reasonably early date set for hearing, if, when application for judicial review heard, applicant successful-(3) Since no irreparable harm, unnecessary to determine balance of convenience-Application dismissed-Federal Court Act, R.S.C., 1985, c. F-7, s. 18.2 (as enacted by S.C. 1990, c. 8, s. 5)-Canadian Environmental Assessment Act, S.C. 1992, c. 37.