Canadian Parks and Wilderness Society v. Canada ( Superintendent of Banff National Park )
A-586-94
Desjardins J.A., McDonald J.A. dissenting
29/8/96
47 pp.
Appeal from Trial Division's dismissal of application for judicial review of superintendent of Banff National Park and director of Western Region of Parks Canada's decision to enter into construction agreement with Sunshine Village Corporation on basis Parks Canada required to subject one component of larger development plan (1992 Goat's Eye Mountain project) to environmental assessment under EARPGO ((1994), 84 F.T.R. 273)-Also appealing denial of declaration of invalidity with regard to decision of Minister of Environment to approve Sunshine's long range development proposal and refusal to order Minister responsible for National Parks to subject Sunshine's long-range development proposal to environmental assessment under EARPGO-Appeal from Trial Division's dismissal of Sunshine Village Corporation's application for judicial review challenging appointment of panel to assess development plan on basis plan already approved by responsible Minister-1978 Agreement signed between Sunshine and Parks Canada setting out terms and conditions for development of ski area-EARPGO coming into force in 1984-Parks Canada and Sunshine executing agreement in 1986 termed "1986 Long-Range Development Guidelines"-Proposed amendments to plan withdrawn by Sunshine after Parks Canada concluding serious environmental impacts would result-Modified plan submitted for approval in 1992 to Minister of Environment-August 1992, plan approved in ambiguous terms by Minister and concluded no need for full public consultation process as proposal substantially same as 1978 proposal which had been subject to consultation-February 1993, environmental assessment of Goat's Eye Mountain plan approved and accepted by Parks Canada in screening decision-Concluded no consultation required as one component of larger plan approved in 1978-Per Desjardins J.A. (Stone J.A. concurring): On preliminary issue of standing, appellant Canadian Parks and Wilderness Society granted standing to bring application-Wording of Federal Court Act, s. 18.1 allowing Court discretion to grant standing when particular circumstances of case and type of interest held justify status being granted and there is justiciable issue-No rights acquired under 1981 lease so as to exclude unbuilt components from EARPGO-Panel appointed in 1995 under Environmental Assessment Act validly constituted-Appeal dismissed but no costs awarded as appellant substantially winning party-Much of relief sought by CPAWS overtaken by events-Environmental Assessment Panel Review ordered by successor to 1992 Minister of Environment-Phase I of construction project now completed, therefore issue of authority to enter into contract no longer relevant-Ministerial approving letter of 1992 ambiguous-Preliminary 1992 environmental assessment supporting Ministerial approval, nuanced-Did not determine whether environmental effects "insignificant, mitigable, unknown, significant or unacceptable" in accordance with EARPGO-Also required to compare 1992 amendments to 1992 environmental standards-Not bound by 1978 standards-No doubt subsequent responsible ministers having residual powers to act under Guidelines, s. 13-Therefore review panel appointed in 1995 by subsequent minister validly constituted-Phases II and III of construction project not reached implementation stage-Still "proposals" within meaning of EARPGO-Under transitional provisions of Canadian Environmental Assessment Act, any proposal referred for public review under EARPGO subject to provisions of CEAA-Per McDonald J.A. (dissenting): Concurring with majority opinion CPAWS has standing-No residual jurisdiction remaining in subsequent minister to appoint new review panel under EARPGO or CEAA-Minister's 1992 letter final approval of plan-Wording of letter of approval clearly rejecting need for further public consultation-Ambiguous portion of letter to be interpreted to address "how" and not "whether" to implement plan-Also, both Sunshine and Parks Canada behaving as though received final approval to proceed until intervention by CPAWS-Plan carefully reviewed by Department and studies ongoing since 1978-Sunshine should be able to rely on approvals received and move forward-As plan received final approval, no residual power in subsequent ministers and 1995 review panel invalidly constituted-Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5)-Envrionmental Assessment and Review Process Guidelines Order, SOR/84-467, s. 13-Canadian Envrionmental Assessment Act, S.C. 1992, c. 37, s. 74(1),(2).