Cantwell et al. v. Canada (Minister of the Environment) et al., (1991) 41 F.T.R. 18 (TD)

• Judge: MacKay, J.
• Court: Federal Court (Canada)
• Case Date: January 18, 1991
• Jurisdiction: Canada (Federal)
• Citations: (1991), 41 F.T.R. 18 (TD)

Cantwell v. Can. (1991), 41 F.T.R. 18 (TD)

MLB headnote and full text

Earl Cantwell, Mark Eyking, David MacDonald, Bruno Marcocchio, Allan Nicholson, Kevin Squires, Greenpeace Canada and Ecology Action Centre (applicants) v. The Minister of the Environment, The Minister of Fisheries and Oceans and The Nova Scotia Power Corporation (respondents)

(T-2975-90)

Indexed As: Cantwell et al. v. Canada (Minister of the Environment) et al.

Federal Court of Canada

Trial Division

MacKay, J.

January 18, 1991.

Summary:

The Minister of Fisheries and Oceans approved construction of a coal fired generating station by Nova Scotia Power Corporation, the Point Aconi Project, on Boularderie Island in Cape Breton. Also, following an initial environmental assessment, the Minister ruled that all requirements of the Environmental Assessment and Review Process Guideline Order were complied with in relation to the project and a referral to the Minister of the Environment for a public review by a panel was not necessary. The applicants, individuals who lived in the area and groups who were concerned with the environmental and social effects of the project, applied for certiorari to quash the decisions of the Minister.

The Federal Court of Canada, Trial Division, dismissed the application.

Pollution Control - Topic 1842

Environmental assessments - Environmental Assessment and Review Process Guidelines Order (EARP Guidelines Order) - Interpretation - S. 13 - Following an initial environmental assessment, the Minister of Fisheries and Oceans approved a coal fired generating station without referring the matter to the Minister of Environment for public review by a panel - Project opponents argued that the Minister failed to comply with s. 13 of the EARP Guidelines Order by taking into account irrelevant considerations in deciding not to refer the matter for public review - The Federal Court of Canada, Trial Division, held that the Minister complied with s. 13, where his decision was not based entirely on irrelevant considerations, nor could it be said that he clearly relied on irrelevant factors - See paragraphs 47 to 54.

Pollution Control - Topic 1842

Environmental assessments - Environmental Assessment Review Process Guidelines Order (EARP Guidelines Order) - Interpretation - S. 13 - S. 13 provided that notwithstanding initial screening of a project by an initiating department under s. 12 of the order, where public concern about the proposal is such that a public review is desirable, the initiating department, should refer the proposal to the Minister for public review by a panel - The Federal Court of Canada, Trial Division, stated that "the discretion vested in the Minister by s. 13 is not absolute, ... it must be exercised reasonably and in good faith taking into account relevant considerations, having regard to the purposes of the Guidelines Order" - See paragraph 48.

Pollution Control - Topic 1842

Environmental assessments - Environmental Assessment and Review Process Guidelines Order (EARP Guidelines Order) - Interpretation - S. 12(c) - S. 12(c) provided that initiating departments would screen projects to determine if the potentially adverse environmental effects are insignificant or mitigable with known technology, in which case the project could proceed or proceed with mitigation as the case might be - Nova Scotia Power proposed to establish a trust fund to meet expenses incurred by area residents with domestic wells which might be adversely affected by a proposed coal fired generating station - The Federal Court of Canada, Trial Division, stated that monetary compensation, if that was all that was envisaged by the operation of the trust fund (which was not the case here) would not constitute "mitigating with known technology" within the meaning of s. 12(c) - See paragraphs 32, 33.

Pollution Control - Topic 1842

Environmental assessments - Environmental Assessment and Review Process Guidelines Order (EARP Guidelines Order) - Interpretation - S. 12 - Following an initial environmental assessment, the Minister of Fisheries and Oceans approved a coal fired generating project without referring the matter to the Minister of the Environment for public review by a panel - Project opponents argued that the Minister failed to comply with s. 12 of the EARP Guidelines Order in not referring the matter for public review by a panel where certain potential and environmental effects were not insignificant or mitigable with known technology or were unknown - The Federal Court of Canada, Trial Division, rejected the opponents' arguments where the Minister made no error of law in making his decision - See paragraphs 25 to 46.

Pollution Control - Topic 1842.1

Environmental assessments - Environmental Assessment and Review Process Guidelines Order (EARP Guidelines Order) - Interpretation - "Mitigable with known technology" - See first Pollution Control - Topic 1842.

Pollution Control - Topic 1843

Environmental assessments - Environmental Assessment and Review Process Guidelines Order (EARP Guidelines Order) - Whether provisions mandatory - The Federal Court of Canada, Trial Division, stated that the EARP Guidelines Order "provides a mandatory process for environmental assessment applicable for any proposal to be undertaken by any federal department or agency, that may have environmental effect on an area of federal responsibility, for which the Government of Canada makes a financial commitment, or that is located on lands, including the offshore, that are administered by the Government of Canada" - See paragraph 19.

Pollution Control - Topic 1847

Environmental assessments - Environmental Assessment and Review Process Guidelines Order (EARP Guidelines Order) - Public review by a panel - [See first and third Pollution Control - Topic 1842].

Pollution Control - Topic 1852

Environmental assessments - Environmental Assessment and Review Process Guidelines Order (EARP Guidelines Order) - Judicial review - The Federal Court of Canada, Trial Division, held that jurisprudence dealing with judicial review of arbitrators' decisions was not applicable to the review of a decision by a Crown Minister respecting an assessment under the EARP Guidelines Order - See paragraph 26.

Pollution Control - Topic 1852

Environmental assessments - Environmental Assessment and Review Process Guidelines Order (EARP Guidelines Order) - Judicial review - [See second Pollution Control - Topic 1842].

Cases Noticed:

Canadian Wildlife Federation Inc. et al. v. Canada (Minister of the Environment) and Saskatchewan Water Corp. (No. 1), [1990] 2 W.W.R. 69; 99 N.R. 72; 4 C.E.L.R.(N.S.) 1; 38 Admin.L.R. 138; 27 F.T.R. 159 (F.C.A.), affing. [1989] 3 F.C. 309; 26 F.T.R. 245; 3 C.E.L.R.(N.S.) 287; 37 Admin.L.R. 39; [1989] 4 W.W.R. 526 (F.C.T.D.), refd to. [para. 19, footnote 5].

Angus et al. v. Canada (1990), 111 N.R. 321 (F.C.A.), refd to. [para. 19, footnote 5].

Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1990] 2 F.C. 18; 108 N.R. 241 (F.C.A.), refd to. [para. 19, footnote 7].

Canadian Wildlife Federation Inc. v. Canada (Minister of the Environment) and Saskatchewan Water Corp. (No. 2) (1989), 31 F.T.R. 1; 4 C.E.L.R.(N.S.) 201, refd to. [paras. 21, 33, footnotes 16, 25].

Trans Mountain Pipe Line Company Ltd. v. National Energy Board et al., [1979] 2 F.C. 118; 29 N.R. 44, refd to. [para. 23, footnote 17].

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; 26 N.R. 341; 25 N.B.R.(2d) 237; 51 A.P.R. 237; 77 C.L.L.C. 14,209; 97 D.L.R.(3d) 417, refd to. [para 26, footnote 18].

Blanchard v. Control Data Canada Ltd. et al., [1984] 2 S.C.R. 476; 55 N.R. 194; 14 D.L.R.(4th) 289, refd to. [para. 26, footnote 18].

Alberta Union of Provincial Employees, Branch 63 v. Alberta Public Service Employees Relations Board and Board of Governors of Olds College, [1982] 1 S.C.R. 923; 42 N.R. 559; 37 A.R. 281; 136 D.L.R.(3d) 1, refd to. [para. 26, footnote 18].

Canadian Wildlife Federation Inc. et al. v. Canada (Minister of the Environment) and Saskatchewan Water Corp. (1990), 121 N.R. 385 (F.C.A.), refd to. [paras. 21, 33, footnotes 16, refd to. [paras. 21, 33, footnotes 15, 21, 25].

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183, refd to. [para. 48, footnote 36].

Padfield v. Minister of Agriculture, Fisheries and Food, [1968] A.C. 997 (H.L.), refd to. [para. 50, footnote 38].

Re Doctors Hospital and Minister of Health et al. (1976), 12 O.R.(2d) 164 (Div. Ct.), refd to. [para. 50, footnote 38].

Secretary of State for Education v. Tameside Borough Council, [1977] A.C. 1014 (H.L.), refd to. [para. 50, footnote 38].

Re Multi-Malls Inc. and Minister of Transportation and Communications (1976), 73 D.L.R.(3d) 18 (Ont. C.A.), refd to. [para. 50, footnote 38].

Hyundai Motor Co. v. Canada (1987), 14 F.T.R. 316, refd to. [para. 54, footnote 39].

Statutes Noticed:

Department of the Environment Act - see Environment Act, Department of the.

Environment Act, Department of the, R.S.C. 1985, c. E-10, sect. 4(1)(a) [para. 41, footnote 33].

Environmental Assessment and Review Process Guidelines Order, S.O.R./84-467, generally [para. 1]; sect. 3, 4(1) [para. 20]; sect. 12 [paras. 20, 22, 25-46, 55]; sect. 12(c) [paras. 20, 25, 33, 46, 55]; sect. 12(d), sect. 12(e) [paras. 20, 25]; sect. 13 [paras. 20, 40, 46-54, 56]; sect. 14 [paras. 20, 34, 44]; sect. 15, sect. 20 [para. 20].

Federal Court Act, R.S.C. 1985, c. F-7, sect. 18 [para. 1].

Fisheries Act, R.S.C. 1985, c. F-14, sect. 35 [para. 18, footnote 4].

Counsel:

Brian A. Crane and Martin Mason, for the applicants;

Michael Donovan and John J. Ashley, for the respondent;

Minister of the Environment;

Harvey Morrison, Stuart McInnes and Mr. Penick, for the respondent, Nova Scotia Power Corp.

Solicitors of Record:

Gowling, Strathy & Henderson, Ottawa, Ontario, for the applicants;

John C. Tait, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent, Minister of the Environment;

McInnes, Cooper & Robertson, Halifax, Nova Scotia, for the respondent, Nova Scotia Power Corp.

This application was heard in Halifax, Nova Scotia, on December 12 and 13, 1990, before MacKay, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on January 18, 1991.