Société pour vaincre la pollution v. Canada ( Minister of the Environment )
T-1056-96
Reed J.
11/6/96
22 pp.
Application for declaration respondents have not complied with applicable environmental assessment law-Difference of opinion as to whether polychlorinated biphenyls (PCBs) present in heating system of barge Irving Whale, sunk in 1970, 60 km northeast of Prince Edward Island and still containing about 3,113 metric tons of heavy fuel oil, should be pumped out, in whole or in part, before barge raised from bed of St. Lawrence-Original and second assessments concluded any potentially adverse environmental effects of proposal to raise barge insignificant or mitigable with known technology-After assessment and just as recovery activity had started, Department of Environment advised PCBs on barge-As result of new information, another environmental assessement undertaken-Also concluding any potentially adverse environmental effects of proposal to raise barge insignificant or mitigable with known technology-Following litigation in Federal Court, further assessment (1996 assessment) conducted-Once more concluding any potentially adverse environmental effects of proposal to raise barge insignificant or mitigable with known technology-Then, present application for declaration environmental assessment law not complied with-Application dismissed-Canadian Environmental Assessment Act, in force 19/1/95, replacing EARP Guidelines Order-Act, s. 74 transitional provisions-Last assessment (1996 assessment) should have been prepared under terms of new legislation-However, applicant precluded from arguing Act, not EARP Guidelines Order, applicable-Applicant's conduct in failing to bring its applications to Court at earlier time, correct law, and obtain Court order based on earlier law, precluding it from obtaining declaration now sought and quashing of decision to proceed-Furthermore, discretion to refuse prerogative relief where, as here, ground on which relief sought inconsequential error: assessment under EARP Guidelines Order covered all factors set out in Act, s. 16-Reasonableness, not correctness, appropriate test applicable on judicial review-In reviewing respondents' decision to proceed, one cannot conclude they have neglected to consider fully all relevant factors-Although release of PCBs might occur on raising of barge and might contravene Fisheries Act, Canadian Environmental Protection Act and Chlorobiphenyls Regulations, leaving barge on bottom not reasonable option and raising will be done in accordance with Toxic Substances Management Policy-On basis of material on file, decision not unreasonable-However, if there has been lack of candidness about degree of uncertainty, quantity of PCBs likely to be released or about potentially adverse consequences arising therefrom, Court, and perhaps public too, will have been misled-Fisheries Act, R.S.C., 1985, c. F-14-Canadian Environmental Protection Act, R.S.C., 1985 (4th Supp.), c. 16-Chlorobiphenyls Regulations, SOR/91-152-Canadian Environmental Assessment Act, S.C. 1992, c. 37, s. 74-Environmental Assessment and Review Process Guidelines Order, SOR/84-467, s. 12(c).