ADMINISTRATIVE LAW |
Judicial Review |
Mandamus |
Humber Environmental Action Group v. Canada (Minister of Fisheries and Oceans)
T-56-01
2002 FCT 421, O'Keefe J.
12/4/02
16 pp.
Application for: (1) mandamus to require Minister of Fisheries and Oceans (MFO) to enforce Navigable Waters Protection Act (NWPA), in particular to order intervener to apply for retroactive approval pursuant to s. 6(4); (2) declaration that by allegedly failing to enforce NWPA, MFO in violation of duties under NWPA--Intervener allegedly built at least eight bridges in Main River watershed area without approval under NWPA--Application dismissed--(1) Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A.) setting out principles applicable to granting of mandamus-- Must be public legal duty to act imposed on respondent--As well, applicant must have satisfied all conditions precedent for issue of order in nature of mandamus, including prior demand for performance of duty; reasonable time to comply with demand unless refused immediately; subsequent refusal, either express or implied, eg. unreasonable delay--NWPA, s. 5(1), establishing duty of MFO, only coming into play if any of bridges built across navigable water--Evidence not providing basis to conclude waters navigable--Only general statements, such as "appeared to us to be navigable by canoe or other craft" and "which is navigable by canoe or other craft"--Also reference in affidavit evidence that "water flow in brook is greatly impeded by rocks and boulders"--If waters cannot be determined to be navigable, NWPA, s. 5(1) not applicable and no authority for respondent to act--Mandamus refused--Would also be refused because no prior demand made on respondent by applicant--July 4, 2000 letter to Coast Guard only asks whether DFO "will request (or has it requested) application for a retroactive permit " and "will DFO be carrying out a screening under the Canadian Environmental Assessment Act?"--(2) In order to issue declaration requested, Court would have to be satisfied respondent in violation of NWPA--As not persuaded by evidence bridges in question over "navigable waters" unable to issue declaration requested--Application dismissed-- Navigable Waters Protection Act, R.S.C., 1985, c. N-22, ss. 5, 6.