ENVIRONMENT |
Environmental Resource Centre v. Canada (Minister of Environment)
T-274-99, T-1799-99, T-100-00
2001 FCT 1423, Heneghan J.
20/12/01
66 pp.
Applicants, public interest groups engaged in promoting protection of environment and beneficial management of natural resources, bring three applications for judicial review relative to major oil sands project (Project Millennium) undertaken by Suncor Energy Inc. in northern Alberta-- Challenging legality of Minister of Environment's (MOE) decision pursuant to Canadian Environmental Assessment Act (CEAA) and Minister of Fisheries and Oceans' (MFO) decisions to issue authorization pursuant to Fisheries Act, allowing Suncor to alter or destroy fish habitat for construction or operation of project--Alberta MOE granted leave to participate as intervener on basis of extensive role played by Alberta MOE in overall regulatory process employed by province of Alberta in relation to exploitation and development of natural resources in that province, including oil sands development--Suncor required to prepare formal application for review and approval by Alberta Environment pursuant to Alberta Environmental Protection and Enhancement Act (EAPA) and by Alberta Energy and Utility Board (AEUB) pursuant to Alberta Oil Sands Conservation Act--Suncor prepared single Environmental Impact Assessment as part of project application--AEUB required public hearing into project--Suncor obtained two approvals, by AEUB and Alberta Environmental Protection (AEP) pursuant to Alberta regulatory process--AEUB satisfied if Suncor and all other companies in oil sands region continued to participate in Regional Sustainable Development Strategy (RSDS) and Cumulative Environmental Effects Management Initiative (CEEMI), initiatives could adequately and effectively address regional cumulative environmental effects--Federal environmental process invoked as project required authorization from DFO for harmful alteration, destruction or disruption of fish habitat--Application to DFO comprised of same EIA provided to AEUB--Environmental assessment to be in form of Comprehensive Study Review (CSR) conducted in accordance with requirements of CEAA, s. 16(1), (2)--Clear from CSR that DFO, as responsible authority (RA), as authors of report, acutely aware of initiatives undertaken in Alberta both by government and industry to address environmental effects of oil sands development--CSR containing many references to Alberta initiatives in its consideration of various effects of project--Ultimate action issuance of two authorizations by RA to allow exploratory drilling (August 17, 1999), and to authorize completion of project by Suncor (December 21, 1999)--Applications allowed--Applicants meeting three-part test for award of public interest standing established by SCC in Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236-- Applicants challenging legality of decisions made by respondent ministers, and this is appropriate forum for such challenge--As to standard of review, to extent MOE's decision based upon interpretation of legislation, applicable standard of review that of correctness--To extent issues relate to exercise of discretion by responsible authority, applicable standard of review that of correctness--Scoping of project matter to be determined in discretion of RA--Decision of MOE to act under either CEAA, s. 23(a) or (b) also discretionary decision within MOE's authority--Assessment of significance in relation to environmental effects also discretionary decision--MOE did take RSDS into account in making her decision and did accept it as constituting mitigation measures--Since CEAA requires MOE to take CSR into account and since CEAA, s. 16 requires RA to consider mitigation measures in preparing CSR, question becomes whether reliance by MOE upon RSDS correct interpretation of requirements of s. 16 or alternatively, reasonable decision made in exercise of discretion--Reliance by MOE upon provincial regulatory powers and initiatives, including RSDS and industry-based initiatives including CEEMI, which are beyond enforcement or control by federal authorities, amounting to misinterpretation of her duty to consider mitigation factors when she reviewed CSR--MOE therefore erred in interpretation of Act--Even if that conclusion wrong, reliance upon processes over which MOE has no control not constituting reasonable exercise of authority or discretion--Nothing in CEAA, s. 12 or elsewhere allowing MOE or any federal RA to discharge their respective obligations by voluntary participation in provincial regulatory processes and initiatives--MFO compounded error of law committed by MOE when authorized issuance of authorizations--Combined effect of CEAA, ss. 17, 20(1), 23(a), 37(1) RA has non-delegatable statutory duty to ensure implementation of mitigation measure--Record showing MFO relied upon mitigation measures proposed and in place for Alberta--Reliance misplaced, and MFO acted unreasonably in issuing authorizations--As to relief, work authorized by authorizations completed by time applications heard--Pointless to make order in nature of prohibition--No benefit in making order to quash MOE's decision as no useful purpose served in doing so--However, declaration issued MOE's decision wrong in law--Declaration MFO's decisions unreasonable and, if any purpose in doing so, should be set aside--Declaration that, should need arise, respondent ministers should take steps to adhere to duties as provided in CEAA--Canadian Environmental Assessment Act, S.C. 1992, c. 37, ss. 17, 20(1), 23(a), 37(1) (as am. by S.C. 1994, c. 46, s. 3)--Environmental Protection and Enhancement Act, S.A. 1992, c. E-13.3--Oil Sands Conservation Act, S.A. 1983, c. O-5.5.