Manitoba's Future Forest Alliance v. Canada ( Minister of the Environment )
T-434-98
Nadon J.
18/6/99
46 pp.
Application to set aside approval of construction of Sewap Creek Bridge pursuant to Navigable Waters Protection Act (NWPA), s. 5-Respondent Tolko Manitoba Inc.'s projects encompassing conversion, expansion of existing pulp mill, construction of new pulp mill, hundreds of kilometres of all-season roads, other related forestry operations-Bridge proposed for development in 1997 Annual Plan-As part of licensing process, Plan circulated among various federal, provincial governmental departments for review, including Canadian Coast Guard (CCG) which identified Sewap Creek as navigable waterway-Application submitted to CCG for approval pursuant to NWPA s. 5(1) to construct bridge across Sewap Creek-Approval process triggered environmental assessment pursuant to Canadian Environmental Assessment Act (CEAA), s. 5(1)(d)-No environmental assessment triggered pursuant to CEAA, except in respect of Sewap Creek Bridge-Only decision to allow Sewap Creek Bridge project to go forward proper subject of judicial review application-CEAA, s. 2 defining "project" in relation to physical work as "any proposed construction, operation, modification, decommissioning, abandonment or other undertaking in relation to that physical work"-CCG, as responsible authority, determined scope of project pursuant to CEAA, s. 15(1) `construction of bridge along with approaches, accesses directly relating to bridge'-No error in determination of scope of project-S. 15(3) dealing with scope of environmental assessment-CCG determined scope of environmental assessment including environmental effects at, downstream of bridge site and any works related to construction, operation, maintenance of bridge-Under s. 16(1)(a) concluding cumulative effects of project limited to hydraulic impacts of project in combination with other works along waterway, within confines of Sewap Creek-CCG concluding project would not likely cause significant adverse effects, and approving application under NWPA-Construction completed in 1997-CCG not erring in determination of scope of assessment pursuant to s. 15(3)-According to definition any "other undertaking in relation to that physical work" meaning undertakings within same class as those undertakings specifically mentioned-These undertakings possible events in life cycle of physical work i.e. Sewap Creek Bridge-French version supporting this construction-Scope of "project", meaning bridge itself and all undertakings in relation to life cycle of bridge, for CCG to determine under s. 15(1)-Under s. 15(3) responsible authority shall conduct environmental assessment not only in regard to undertakings in relation to physical work proposed by proponent, but also in regard to undertakings which in opinion of responsible authority "likely to be carried out in relation to that physical work"-Wording of s. 15(3) with respect to nature of undertakings subject to responsible authority's environmental assessment, wording of s. 15(3) same as s. 2-Must assess all undertakings relating to life cycle of physical work, i.e. Sewap Creek Bridge-Although change in terminology from "any proposed construction" in s. 2 to "every construction" in s. 15(3), both expressions qualified by phrase "in relation to that physical work" thus restricting scope of assessment to those undertakings related to physical work-Respondent's forestry operations neither undertakings in relation to Sewap Creek Bridge nor undertakings "likely to be carried out" in relation to Sewap Creek Bridge-In screening project, CCG considering environmental effects of bridge, any work related to construction, operation, maintenance of bridge, cumulative environmental effects-Open to CCG to determine scope of factors under s. 16(1)-No basis for intervention in regard to that determination-CCG's decision project not likely to cause significant adverse effects on fish habitat after taking into account implementation of appropriate mitigation matter reasonable-Gibson J.'s interpretation of CEAA, s. 15(3) Friends of the West Country Assn. v. Canada (Minister of Fisheries and Oceans), [1998] 4 F.C. 340 (T.D.) disagreed with-Gibson J. giving application of CEAA broad interpretation based on CEAA, s. 4, setting out purposes of Act, and certain comments of La Forest J. in Friends of the Old Man River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3-Concluding s. 15(3) requiring responsible authority to include within scope of environmental assessment road, perhaps forestry operations, if "in relation to" projects-Giving word "undertaking" meaning not contemplated by subsection, particularly when read with definition of "project"-Although Gibson J. held could not interfere with responsible authority's determination regarding scope of projects, in effect recharacterized scope of projects through analysis of scope of environmental assessments under s. 15(3)-Not open to him to do so-Based expansive view of scope of environmental assessments under s. 15(3) on "independent utility test" for which found support in American case law, and Canadian Environmental Assessment Act Responsible Authorities Guide-American case law not relevant since American legislative scheme bearing no similarity to CEAA-Guide simply reflecting thoughts of Canadian Environmental Assessment Agency, administrative body, regarding implementation of Act-Gibson J. apparently giving Guide, hence "independent utility" principle, precedence over wording of CEAA-Responsible authorities having duty to follow, implement CEAA, not Guide-Although Guide may be helpful, cannot oust statute-Regardless, Gibson J.'s interpretation of Guide inconsistent with what Guide actually says-Passage cited to aid interpretation of s. 15(3), relevant to responsible authority's discretion regarding determination of scope of project, not to determination of scope of assessment-Gibson J. holding in regard to what physical works accessory to principal project using criteria enunciated in Guide: "linkage", "interdependence"-In applying "linkage" criterion, Gibson J. finding as fact building of bridges made building of road "inevitable"-"Inevitable" in relation to "linkage" criterion meaning building of principal project rendering "inevitable" building of another physical work-Building of bridges not rendering building of road inevitable-Perhaps not making sense to build bridges without road leading to and from bridges, but building of bridges not requiring building of roads-As to "interdependence" criterion, Sewap Creek crossing "principal" project-"Principal project" can proceed without undertakings regarding construction of roads, paper mill-Thus roads, paper mill not components of scoped project-Both "linkage", "interdependence" criteria making it clear intent to address not determination of environmental assessment, but rather determination of scope of project-Under s. 15(1) scope of assessment not pretext to modify, amend project as determined under s. 15(1), but project as determined by responsible authority and environmental effects to be examined by responsible authority-Only caveat that under s. 15(3) responsible authority must conduct environmental assessment not only of project but of other undertakings "likely to be carried out in relation to that physical work" i.e. undertakings within class of undertakings specifically mentioned in definition of "project" in CEAA, s. 2-Had projects triggered environmental assessment under CEAA, s. 5(1) responsible authority could have exercised discretion under s. 15(2), determined projects "so closely related that can be considered to form single project"-Application dismissed-Navigable Waters Protection Act, R.S.C., 1985, c. N-22, s. 5-Canadian Environmental Assessment Act, S.C. 1992, c. 37, ss. 2 "project" 5, 15, 16.