Pembina Institute for Appropriate Development et al. v. Canada (Minister of Fisheries and Oceans) et al., 2005 FC 1123

• Judge: Snider, J.
• Court: Federal Court (Canada)
• Case Date: August 17, 2005
• Jurisdiction: Canada (Federal)
• Citations: 2005 FC 1123;(2005), 280 F.T.R. 248 (FC)

Pembina Institute v. Can. (2005), 280 F.T.R. 248 (FC)

MLB headnote and full text

Temp. Cite: [2005] F.T.R. TBEd. AU.041

Pembina Institute For Appropriate Development, Canadian Nature Federation, Sierra Club of Canada, Alberta Wilderness Association, and Jasper Environmental Association (applicants) v. Minister of Fisheries and Oceans and Cardinal River Coals Ltd. (respondents)

(T-1488-04)

Pembina Institute For Appropriate Development, Nature Canada (formerly Canadian Nature Federation), Sierra Club of Canada, Alberta Wilderness Association, and Jasper Environmental Association (applicants) v. Minister of Fisheries and Oceans and Cardinal River Coals Ltd. (respondents)

(T-1946-04; 2005 FC 1123)

Indexed As: Pembina Institute for Appropriate Development et al. v. Canada (Minister of Fisheries and Oceans) et al.

Federal Court

Snider, J.

August 17, 2005.

Summary:

The applicants, various environmental organizations, applied for judicial review of an authorization issued by the Department of Fisheries and Oceans (DFO) pursuant to the Fisheries Act, which permitted Cardinal River Coals to begin construction of a coal mine. The applicants also challenged a decision of DFO not to conduct an environmental assessment under the Canadian Environmental Assessment Act of changes to the project.

The Federal Court dismissed the application.

Fish and Game - Topic 161

Fisheries - Regulation - General - [See Pollution Control - Topic 1003 ].

Pollution Control - Topic 1003

Licensing or approval - Effect of license or approval - The applicants applied for judicial review with respect to an authorization issued by the Department of Fisheries and Oceans (DFO) pursuant to the Fisheries Act, which permitted Cardinal River Coals (CRC) to begin construction of a coal mine - The applicants submitted that the Mine Pit Authorization issued under the Fisheries Act permitted CRC to deposit millions of tonnes of waste rock and materials into waters and other areas frequented by migratory birds, which was "contrary to law" within the meaning of s. 18.1(1)(4) of the Federal Courts Act because the deposit of such materials was prohibited under s. 35(1) of the Migratory Birds Regulations - The Federal Court rejected the argument -  DFO's authorization was in respect of fish and fish habitat under the Fisheries Act - Nothing in the Fisheries Act required DFO to have regard to potential deleterious impacts on migratory birds - DFO had no ability to direct the management or operation of the mine - DFO, as a regulatory body, did not bear responsibility for the actions of CRC in the event that CRC breached s. 35(1) of the Migratory Birds Regulations - See paragraphs 77 to 95.

Pollution Control - Topic 1805

Environmental assessments or impact studies - Determination of whether hearing or study required - General - The applicants applied for judicial review with respect to an authorization issued by the Department of Fisheries and Oceans (DFO) pursuant to the Fisheries Act, which permitted Cardinal River Coals to begin construction of a coal mine - The applicants also challenged DFO's decision not to conduct an environmental assessment under the Canadian Environmental Assessment Act (CEAA) of changes to the project, including a haulroad - The applicants argued that s. 15(3) of the CEAA required that every environmental assessment under the CEAA include an assessment of modifications in relation to physical works that were proposed by the proponent - The Federal Court held that s. 15(3) of CEAA did not apply to require a further assessment of the mine project - Section 15(3) only had meaning when read together with s. 15(1) and it did not impose a free-standing obligation on a responsible authority to conduct an environmental assessment outside the scope of the project as determined under s. 15(1) - The use of the word "shall" in s. 15(3) had to be read in association with the scoping decision in s. 15(1) - The haulroad was not included in the scope of the project and no obligation to assess the haulroad arose from s. 15(3) - The haulroad was not a "modification" caught by s. 15(3) - A "modification" was one that could be identified at the time of the application - See paragraphs 18 to 40.

Pollution Control - Topic 1805

Environmental assessments or impact studies - Determination of whether hearing or study required - General - The applicants applied for judicial review with respect to an authorization issued by the Department of Fisheries and Oceans (DFO) pursuant to the Fisheries Act, which permitted Cardinal River Coals (CRC) to begin construction of a coal mine - The applicants also challenged DFO's decision not to conduct an environmental assessment under the Canadian Environmental Assessment Act (CEAA) of changes to the project, including a haulroad - The applicants argued that s. 15(3) of the CEAA required that every environmental assessment under the CEAA include an assessment of modifications in relation to physical works that were proposed by the proponent - The Federal Court held that s. 15(3) of CEAA did not apply to require a further assessment of the mine project - The court added that the conclusion that s. 15(3) did not operate to require a re-opening of the assessment did not mean that CRC could carry out any manner of amendments without oversight - In some cases, a modification could, on its own or cumulatively with other projects, trigger an assessment under the CEAA - However, s. 5 of CEAA would be the operative provision and not s. 15(3) - Further, if, at the stage of review set out in s. 37(1.1), the responsible authority believed that the project was not "in conformity" with the "federal response", the authority could refuse to issue the authorization - See paragraph 34.

Pollution Control - Topic 1805

Environmental assessments or impact studies - Determination of whether hearing or study required - General - The applicants applied for judicial review with respect to an authorization issued by the Department of Fisheries and Oceans (DFO) pursuant to the Fisheries Act, which permitted Cardinal River Coals (CRC) to begin construction of a coal mine - The applicants also challenged DFO's decision not to conduct an environmental assessment under the Canadian Environmental Assessment Act (CEAA) of changes to the project, including a haulroad - The applicants argued that DFO erred by concluding that the haulroad did not trigger an environmental assessment under s. 5 of CEAA - They argued that the placing of fill and materials into Cheviot Creek to create a causeway over which the haulroad passed was a trigger and an assessment of the haulroad was required - The Federal Court held that the haulroad did not trigger an environmental assessment under the CEAA - If the causeway was constructed solely to support the haulroad, then s. 5 of CEAA would require an assessment of the haulroad proposal - However, the evidence demonstrated that the causeway was constructed to create the Cheviot Creek Pond - The creation of that pond was a component of the Cheviot Mine Pit which was assessed by a Joint Review Panel - The Mine Pit Authorization permitted the construction of the pond, including the causeway - The fact that CRC placed a haulroad on top of the causeway did not trigger another CEAA review - See paragraphs 41 to 51.

Pollution Control - Topic 1843

Environmental assessments or impact studies - Environmental assessment legislation - Whether provisions mandatory - [See first Pollution Control - Topic 1805 ].

Pollution Control - Topic 1846.2

Environmental assessments or impact studies - Environmental assessment legislation - Scope of project or assessment - [See first Pollution - Control - Topic 1805 ].

Pollution Control - Topic 1848

Environmental assessments or impact studies - Environmental assessment legislation - Imposition of mitigative or compensatory measures - The applicants applied for judicial review with respect to an authorization issued by the Department of Fisheries and Oceans (DFO) pursuant to the Fisheries Act, which permitted Cardinal River Coals to begin construction of a coal mine - DFO (with the approval of the Governor in Council) had issued a response to the report of a Joint Review Panel in which it concurred with the panel's recommendation that the project should receive regulatory approval - That response, referred to as the "federal response", also confirmed that mitigation measures would need to be implemented to reduce the adverse environmental effects of the project - The application raised the issue of whether the DFO erred in issuing the Mine Pit Authorization without ensuring the implementation of mitigation measures identified in the federal response, such that the authorization was not in conformity with the federal response as required by s. 37(1.1) of Canadian Environmental Assessment Act (CEAA) - The Federal Court held that the decision to issue the Mine Pit Authorization was in conformity with the federal response - See paragraphs 52 to 76.

Pollution Control - Topic 1850

Environmental assessments or impact studies - Environmental assessment legislation - When study required - [See all Pollution Control - Topic 1805 ].

Pollution Control - Topic 4084

Water - Dumping - Deleterious substances - [See Pollution Control - Topic 1003 ].

Cases Noticed:

Alberta Wilderness Association et al. v. Cardinal River Coals Ltd., [1999] 3 F.C. 425; 165 F.T.R. 1 (T.D.), refd to. [para. 8].

Environmental Resource Centre et al. v. Canada (Minister of the Environment) et al. (2001), 214 F.T.R. 94; 45 C.E.L.R.(N.S.) 114 (T.D.), refd to. [para. 16].

West Vancouver (District) v. British Columbia (Minister of Transportation) et al. (2005), 273 F.T.R. 253; 2005 FC 593, refd to. [para. 16].

Bow Valley Naturalists Society et al. v. Canada (Minister of Canadian Heritage) et al., [2001] 2 F.C. 461; 266 N.R. 169 (F.C.A.), refd to. [para. 20].

Citizens' Mining Council of Newfoundland and Labrador Inc. v. Canada (Minister of the Environment) et al. (1999), 163 F.T.R. 36 (T.D.), consd. [para. 27].

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.), affd. [2000] 2 F.C. 263; 248 N.R. 25 (F.C.A.), leave to appeal denied (1999), 262 N.R. 395 (S.C.C.), consd. [para. 27].

Tsawwassen Indian Band v. Canada (Minister of Finance) et al. (1998), 145 F.T.R. 1 (T.D.), refd to. [para. 32].

Milk Board (B.C.) v. Grisnich et al., [1995] 2 S.C.R. 895; 183 N.R. 39; 61 B.C.A.C. 81; 100 W.A.C. 81; 126 D.L.R.(4th) 191, refd to. [para. 39].

Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321, refd to. [para. 41].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207, refd to. [para. 63].

Maldonado v. Minister of Employment and Immigration, [1980] 2 F.C. 302; 31 N.R. 34 (F.C.A.), refd to. [para. 69].

Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248; 2 N.R. 397, refd to. [para. 81].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1, refd to. [para. 81].

R. v. Ontario (Ministry of the Environment), [2001] O.J. No. 2581 (C.J.), consd. [para. 87].

Statutes Noticed:

Canadian Environmental Assessment Act, S.C. 1992, c. C-37, sect. 5 [para. 41]; sect. 15(3) [para. 22]; sect. 37 [para. 52].

Counsel:

Timothy J. Howard and Justin Duncan, for the applicants;

Doreen Mueller, for the respondent, Minister of Fisheries & Oceans;

Martin Ignasiak and Shauna Finlay, for the respondent, Cardinal River Coals Ltd.

Solicitors of Record:

Timothy J. Howard, Vancouver, British Columbia, for the applicants;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent, Minister of Fisheries & Oceans;

Fraser Milner Casgrain LLP, Edmonton, Alberta, for the respondent, Cardinal River Coals Ltd.

These applications were heard on June 14 and 15, 2005, at Edmonton, Alberta, before Snider, J., of the Federal Court, who delivered the following decision on August 17, 2005.