Alberta Wilderness Association et al. v. Cardinal River Coals Ltd., (1999) 165 F.T.R. 1 (TD)

• Judge: Campbell, J.
• Court: Federal Court (Canada)
• Case Date: April 08, 1999
• Jurisdiction: Canada (Federal)
• Citations: (1999), 165 F.T.R. 1 (TD)

Alta. Wilderness v. Cardinal River Coals (1999), 165 F.T.R. 1 (TD)

MLB headnote and full text

Temp. Cite: [1999] F.T.R. TBEd. AP.056

Alberta Wilderness Association, Canadian Nature Federation, Canadian Parks and Wilderness Society, Jasper Environmental Association and Pembina Institute for Appropriate Development (applicants) v. Cardinal River Coals Ltd. (respondent)

(T-1790-98)

Indexed As: Alberta Wilderness Association et al. v. Cardinal River Coals Ltd.

Federal Court of Canada

Trial Division

Campbell, J.

April 8, 1999.

Summary:

Cardinal applied for Alberta regulatory approvals and a Federal Department of Fisheries and Oceans authorization to con­struct a wide open pit coal mine in its mine permit area east of the Jasper National Park boundary. A joint federal and provincial review panel recommended that the Minister approve the project. The Federal government issued a response, stating that it would issue the authorization. The applicants sought judicial review of the panel's decision.

The panel dismissed the application. The applicants appealed. The Minister issued the authorization. The applicants sought judicial review to quash the authorization and to prohibit the issuance of further authori­zations.

The Federal Court of Canada, Trial Divi­sion, allowed the applicant's appeal and referred the matter to the Federal Court of Canada, Trial Division. Both matters were heard jointly before the court.

The Federal Court of Canada, Trial Divi­sion, quashed the Minister's authorization and gave directions regarding the joint review panel completing the environmental assessment. The court declined to grant relief regarding the appeal matter and the issuance of further authorizations.

Pollution Control - Topic 4

General principles - Environmental legisla­tion - Interpretation - [See Pollution Con­trol - Topic 1004 and first, second, third, fourth and fifth Pollu­tion Control - Topic 1847.1 ].

Pollution Control - Topic 1004

Licensing or approval - General - Applica­tion of legislation - Cardinal applied for Alberta regulatory approvals and a Federal Department of Fisheries and Oceans auth­orization to construct a wide open pit coal mine - The Minister referred the matter to a federal and provincial review panel because of the potential significant adverse environmental effects - The panel recom­mended approving the project - The auth­orization was issued - The applicants sought judicial review to, inter alia, quash the authorization, asserting that the autho-rization was "contrary to law" under s. 18.1(4)(f) of the Federal Court Act - The Federal Court of Canada, Trial Division, held that the authorization was contrary to law - The court interpreted the Migratory Birds Convention Act Regulations and the phrase "any other substance harmful to migratory birds" - See paragraphs 96 to 106.

Pollution Control - Topic 1847.1

Environmental assessments or impact studies - Environmental Assessment and Review Process Guidelines Order (Cana­dian Environ­mental Assessment Act) - Joint review panel - Cardinal applied for Alberta regula­tory approvals and a Federal Department of Fisheries and Oceans auth­orization to construct a wide open pit coal mine - The Minister referred the matter to a federal and provincial review panel because of the potential significant adverse environmental effects - The panel recom­mended approving the project - The auth­orization was issued - The applicants sought judicial review to, inter alia, quash the authorization - The Federal Court of Canada, Trial Division, held that the panel must perform to a high standard given the Mini­ster's environmental conclusions and the need for the panel to gather informa­tion to meet Canadian Environmental Assessment Act requirements (s. 16) - See paragraphs 31 to 36.

Pollution Control - Topic 1847.1

Environmental assessments or impact studies - Environmental Assessment and Review Process Guidelines Order (Cana­dian Environ­mental Assessment Act) - Joint review panel - Cardinal applied for Alberta regula­tory approvals and a Federal Depart­ment of Fisheries and Oceans auth­orization to construct a wide open pit coal mine - The Minister referred the matter to a federal and provincial review panel because of the project's potential signifi­cant adverse environmental effects - The panel recommended approving the project -The authorization was issued - The appli­cants sought to, inter alia, quash the auth­orization - The Federal Court of Canada, Trial Division, discussed the panel's clear and onerous evidence gathering duty because of the joint review panel agree­ment and the Canadian Environmental Assessment Act - See paragraphs 37 to 42.

Pollution Control - Topic 1847.1

Environmental assessments or impact studies - Environmental Assessment and Review Process Guidelines Order (Cana­dian Envi­ron­mental Assessment Act) - Joint review panel - The Federal Court of Canada, Trial Divi­sion, discussed the reporting obliga­tions of a joint review panel established under the Canadian En­vironmental Assessment Act re­garding an environmental assessment from both feder­al and provincial authorities - By s. 35 of the Act (production of evidence powers), the panel had a duty to use these powers to the full extent necessary to obtain and make available "all information required for the conduct of its review" (the joint panel's agreement) - The panel had a duty to require the production of informa­tion which it knew existed and which was appar­ently relevant to s. 16 factors - See para­graphs 43 to 51.

Pollution Control - Topic 1847.1

Environmental assessments or impact studies - Environmental Assessment and Review Process Guidelines Order (Cana­dian Environ­mental Assessment Act) - Joint review panel - The Federal Court of Canada, Trial Divi­sion, held that a joint review panel established by the Canadian Environmental Assessment Act regarding an environmental assessment, could focus con­sideration of environmental effects through the lens of physical, biological and social/economic components of the en­vironment - However, this approach did not limit the joint review panel's duty to meet the requirements of s. 16 of the Act -See paragraph 54.

Pollution Control - Topic 1847.1

Environmental assessments or impact studies - Environmental Assessment and Review Process Guidelines Order (Cana­dian Environ­mental Assessment Act) - Joint review panel - The Federal Court of Canada, Trial Divi­sion, held that a joint review panel esta­blished by the Canadian Environmental Assessment Act regarding an environmental assessment, was required to define and describe the environmental effects (Cana­dian Environmental Assess­ment Act, s. 16(1)(a)) and then make a finding regard­ing the weight to be placed on each effect (Act, s. 16(1)(b)) - In ascribing weight, mitigation of an effect was an important factor to be considered (Act, s. 16(1)(d)) - The court discussed the meaning of the word "signifi­cant" in s. 16(1)(d) - See paragraphs 55 to 57.

Pollution Control - Topic 1847.1

Environmental assessments or impact studies - Environmental Assessment and Review Process Guidelines Order (Cana­dian Environ­mental Assessment Act) - Joint review panel - The Federal Court of Canada, Trial Divi­sion, discussed the duty to consider cumu­lative effects by a joint review panel esta­blished by the Canadian Environmental Assessment Act given the Act and the panel's agreement - See para­graphs 58 to 76.

Pollution Control - Topic 1847.1

Environmental assessments or impact studies - Environmental Assessment and Review Process Guidelines Order (Cana­dian Environ­mental Assessment Act) - Joint review panel - Cardinal applied for Alberta regulatory approvals and a Federal Department of Fisheries and Oceans auth­orization to construct a wide open pit coal mine - The Minister referred the matter to a feder­al and provincial review panel because of the potential significant adverse environmental effects - The Federal Court of Canada, Trial Division, held that the joint review panel failed to consider the cumu­lative effects of forestry and other mining development - The panel failed to: obtain all available information about likely forestry and mining in the project's vicinity; consider this information regard­ing cumulative environmental effects; reach conclusions and make recommenda­tions about this factor; and substantiate these conclusions and recommendations in its report - See paragraphs 58 to 63.

Pollution Control - Topic 1847.1

Environmental assessments or impact studies - Environmental Assessment and Review Process Guidelines Order (Cana­dian Environmental Assessment Act) - Joint review panel - Cardinal applied for Alberta regulatory approvals and a Federal Department of Fisheries and Oceans auth­orization to construct a wide open pit coal mine - The Minister referred the matter to a federal and provincial review panel because of the potential significant adverse environmental effects - The Federal Court of Canada, Trial Division, held that the joint review panel failed to consider the effects of alternate means to open pit mining (being underground mining) con­trary to s. 16(2)(b) of the Canadian Envi­ronmental Assessment Act - See para­graphs 77 to 83.

Pollution Control - Topic 1847.1

Environmental assessments or impact studies - Environmental Assessment and Review Process Guidelines Order (Cana­dian Environ­mental Assessment Act) - Joint review panel - The Federal Court of Canada, Trial Division, held that there was a breach of due process because a joint review panel established under the Cana­dian Environmental Assessment Act did not consider informa­tion that it accepted for consideration - See paragraphs 84 to 86.

Words and Phrases

All information required - The Federal Court of Canada, Trial Division, discussed the meaning of the phrase "all information required" as found in an agreement of a Joint Review Panel that was established under the Canadian Environmental Assess­ment Act, S.C. 1992, c. 37 - See paragraph 40.

Words and Phrases

Significant - The Federal Court of Canada, Trial Division, discussed the meaning of the word "significant" as found in s. 16(1)(d) of the Canadian Environmental Act, S.C. 1992, c. 37.

Words and Phrases

Any other substance harmful to migra­tory birds - The Federal Court of Canada, Trial Division, discussed the meaning of the phrase "any other substance harmful o migratory birds" as found in Migratory Birds Convention Act Regula­tions, C.R.C. 1978, c. 1035.

Cases Noticed:

Alberta Wilderness Association et al. v. Express Pipelines Ltd. et al. (1996), 201 N.R. 336; 137 D.L.R.(4th) 177 (F.C.A.), refd to. [para. 23, footnote 12].

Friends of the West Country Association v. Canada (Minister of Fisheries and Oceans) et al., [1998] 4 F.C. 340; 150 F.T.R. 161 (T.D.), refd to. [para. 26, footnote 13].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82; 38 C.R.R. 232; 57 D.L.R.(4th) 231; 47 C.C.C.(3d) 1; 33 C.P.C.(2d) 105; [1989] 3 W.W.R. 97, refd to. [para. 94, footnote 50].

Stubart Investments Ltd. v. Minister of National Revenue, [1984] 1 S.C.R. 536; 53 N.R. 241; 84 D.T.C. 6305; [1984] C.T.C. 294, refd to. [para. 96, footnote 54].

Lor-Wes Contracting Ltd. v. Minister of National Revenue, [1985] 2 C.T.C. 79; 60 N.R. 321; [1986] 1 F.C. 346 (F.C.A.), refd to. [para. 96, footnote 54].

National Bank of Greece (Canada) et autres v. Simcoe & Erie General Assur­ance Co. et autres, [1990] 2 S.C.R. 1029; 115 N.R. 42; 32 O.A.C. 25; 74 D.L.R.(4th) 197, refd to. [para. 97, foot­note 55].

Alberta Wilderness Association et al. v. Canada (Fisheries and Oceans) et al. (1998), 238 N.R. 88 (F.C.A.), refd to. [Appendix 1].

Statutes Noticed:

Canadian Environmental Assessment Act, S.C. 1992, c. 37, sect. 2(1) [para. 19 and para. 20]; sect. 4(a) [para. 20]; sect. 5(1)(d), sect. 11(1) [para. 5]; sect. 15 [para. 18]; sect. 16 [para. 20]; sect. 24 [para. 90]; sect. 34 [para. 17]; sect. 35 [para. 42]; sect. 41 [para. 32].

Federal Court Act, R.S.C. 1985, c. F-7, sect. 18.1(3)(b) [para. 88]; sect. 18.1(4)(f) [para. 105];

Fisheries Act, R.S.C. 1985, c. F-14, sect. 35(2) [para. 5];

Migratory Birds Convention Act, S.C. 1994, c. 22, sect. 4 [para. 99]; sect. 12 [para. 101].

Migratory Birds Convention Act Regula­tions (Can.), Migratory Birds Regula­tions, C.R.C. 1978, c. 1035, sect. 35(1) [para. 96].

Mirgratory Birds Regulations - see Migra­tory Birds Convention Act Regulations (Can.).

Authors and Works Noticed:

Canada, Canadian Environmental Assess­ment Act Responsible Authority Guide, Canadian Environmental Assessment Agency (November 1994), generally [para. 46, footnote 24].

Driedger, Elmer A., Construction of Stat­utes (2nd Ed. 1983), p. 87 [para. 96, footnote 54].

Driedger, Elmer A., Construction of Stat­utes (3rd Ed. 1994), p. 131 [para. 96, footnote 54].

Counsel:

Stewart A.G. Elgie and Jerry V. DeMarco, for the applicants;

Dennis R. Thomas, Q.C., and Allan E. Domes, for the respondent, Cardinal River Coals Ltd.;

James A. Baird and Mary King, for the respondent, Minister of Fisheries and Oceans in T-2354-97;

Robert D. Heggie, for the intervenor, Cheviot Coal Project Review Panel in T-2354-97.

Solicitors of Record:

Sierra Legal Defence Fund, Toronto, Ontario, for the applicants;

Milner, Fenerty, Edmonton, Alberta, for the respondent, Cardinal River Coals Ltd.;

Morris Rosenberg, Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the respondent, Minister of Fisheries and Oceans in T-2354-97;

Alberta Energy & Utilities Board Legal Group, Calgary, Alberta, for the intervenor, Cheviot Coal Project Review Panel in T-2354-97.

This application was heard in Edmonton, Alberta, on March 1, 2, 3 and 26, 1999, before Campbell, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on April 8, 1999.