[2000] 1 F.C. 475
T-1463-99
The Human Rights Institute of Canada, His Eminence Lazar Puhalo, Archbishop of the Ukrainian Orthodox Church Archdiocese of Canada, Rosemary Larson, Citizens Concerned About Free Trade, Constance Clare Fogal, The Defence of Canadian Liberty Committee (Le Comité de la liberté canadienne) (Applicants)
v.
Michael Goldie, The Minister of Public Works and Government Services, The Minister of Defence, The Attorney General of Canada, Her Majesty the Queen in Right of Canada, the Prime Minister and Other Members of Cabinet, The United States of America, William J. Clinton, Commander-in-Chief, United States of America Armed Forces (Respondents)
Indexed as: Human Rights Institute of Canada v. Canada (Minister of Public Works and Government Services) (T.D.)
Trial Division, Reed J.—Vancouver, August 30 and September 2, 1999.
Administrative law — Judicial review — Injunctions — Motion for interim injunctions to prevent expropriation by federal government of provincial Crown lands until challenge to validity of expropriation determined — Related to application to set aside Minister’s decision to issue notice of intention to expropriate — Whether Expropriation Act providing for expropriation of provincial Crown lands as opposed to merely giving notice to provincial Attorney General, and whether provincial Crown lands under expropriation provisions dealing with lands owned by “persons” serious questions to be tried — Applicants not establishing irreparable harm, balance of convenience favouring granting injunction — Asserting breach of constitutional imperative always causing irreparable harm, but such breach not yet proven, nor do all breaches of constitutional rules result in irreparable harm — In Charter cases, issue whether refusal to grant relief could so adversely affect applicants’ own interests that harm could not be remedied if eventual decision on merits not according with result of interlocutory application — Applicants not proving any adverse effect to own interests if injunction not granted — If expropriation unconstitutional, will be set aside — Property in question belonging to province, not applicant — Balance of convenience close to neutral, given province’s undertaking not to interfere with continued operation of torpedo testing range on disputed lands pending Court resolution of applicants’ claim — Weighed slightly in respondents’ favour given potential for thrown away costs of deemed abandoned public hearings, report — No harm to either applicants, public interest if expropriation proceeding — If applicants ultimately successful, expropriation will be annulled.
Expropriation — Motion seeking interim injunctions to restrain expropriation by federal government of provincial Crown lands used for torpedo testing by American, Canadian military — British Columbia had licensed Crown federal to use property for 10 years but cancelled licence in retaliation for failure of U.S.A. to comply with terms of fishing treaty — When subsequent federal-provincial licensing negotiations broke down over provincial objections to nuclear powered submarines, federal government issued expropriation notice — Whether Expropriation Act providing for expropriation of provincial Crown lands — Whether such expropriation unconstitutional — Whether sufficient for Minister of Public Works to issue notice of intention to expropriate or must statute be enacted.
Practice — Parties — Standing — Applicants residents of British Columbia — Seeking interim injunctions to prevent proposed expropriation by federal government of provincial Crown lands until challenge to validity of expropriation determined — Public interest standing requiring (i) action raising serious legal question; (ii) genuine legal interest in resolution of question; (iii) no other reasonable, effective manner in which question may be brought to Court — Where number of private litigants directly affected by legislation who could commence litigation to challenge provisions, public interest groups not granted standing — Province holding land for all residents — Not case where other private individuals who might litigate, or able to provide more extensive factual background for litigation than these litigants — Applying liberal interpretation to principles relating to standing, applicants having standing.
Federal Court jurisdiction — Trial Division — Motion for interim injunction to prevent hearing officer from delivering report on objections to proposed expropriation by federal government of provincial Crown lands until challenge to validity of expropriation determined — Hearing officer appointed pursuant to Expropriation Act, s. 10(2); report required by s. 10(4)(d) — “Federal board, commission, or other tribunal” defined as “any person … having jurisdiction … conferred by Act of Parliament” — Hearing officer, pursuant to Expropriation Act, s. 10, within definition — Holding public hearings, evaluation of objections decision-making functions — But no application for judicial review of any decision by hearing officer, independent of challenges to Minister’s authority, legislative jurisdiction of Parliament — Injunction to prevent hearing officer from making report to Minister not justified.
This was a motion for interim injunctions to prevent the proposed expropriation by the federal government of lands in the vicinity of Nanoose Bay, British Columbia until the applicants have had the opportunity to have their challenge to the validity of the expropriation determined. The first interim injunction sought would prevent hearing officer Michael Goldie from delivering his report on the objections to the proposed expropriation to the Minister of Public Works; the second would prevent the Minister from taking any action to confirm the expropriation; and the third would prevent members of the federal Cabinet from taking any action to enter into an agreement with any nation or entity that would involve the leasing or the encumbering of those lands. Mr. Goldie had been appointed pursuant to Expropriation Act, subsection 10(2) and the report was required by paragraph 10(4)(d).
The issues were: (1) whether Mr. Goldie, as a hearing officer, was a “federal board, commission or other tribunal, and whether he had jurisdiction to approve, disapprove, or recommend that the expropriation proceed, or not proceed; (2) whether the requirements for the grant of an injunction were met; and (3) whether the applicants had standing to bring this application.
Held, the motion should be dismissed.
(1) A “federal board, commission or other tribunal” is defined as “any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament”. Mr. Goldie, in acting as a hearing officer pursuant to Expropriation Act , section 10 falls within that definition. He held public hearings; he will evaluate the objections that were expressed. These are decision-making functions.
The application to which this motion relates sought judicial review of a decision to commence expropriation proceedings. The applicants challenged the authority of the federal Parliament and of the Minister of Public Works to expropriate provincial Crown lands, primarily on the ground that the expropriation was unconstitutional. The delivery by Mr. Goldie of his report to the Minister was one step in the expropriation process, but it did not itself affect the constitutionality or validity of the decision to commence expropriation proceedings, or of any decision that may be made by the Minister to confirm the expropriation, or of legislation enacted by the Parliament of Canada. There was no application for judicial review of any decision by Mr. Goldie, independent of the challenges to the authority of the Minister and the legislative jurisdiction of Parliament. Assuming that Mr. Goldie had authority to refer constitutional questions raised in the hearings before him to the Federal Court or the Attorney General, his refusal to do so was within his discretion. The issuance of an injunction to prevent Mr. Goldie from delivering his report to the Minister was not justified.
(2) In order to obtain the other interim injunctions sought, the applicants had to show: (i) an arguable case; (ii) that they will suffer irreparable harm if the interim injunction is not granted; and (iii) that the balance of convenience for those affected by the injunction lies in granting rather than refusing the injunction. The applicants’ constitutional arguments were fraught with difficulty, but whether the Expropriation Act provides for the expropriation of provincial Crown lands as opposed to merely giving notice to the provincial Attorney General and remaining silent with respect to what happens thereafter, and whether provincial Crown lands fall under expropriation provisions that deal with lands owned by “persons” were serious questions to be tried.
The applicants did not demonstrate that they will suffer irreparable harm if the interim injunctions are not granted. They argued that breach of a constitutional imperative always causes irreparable harm, but that breach was not yet proven. Nor do all breaches of constitutional rules result in irreparable harm. As to the applicability to constitutional cases of the private law test of irreparable harm, i.e. harm not compensable in damages, in Charter cases, the issue is whether a refusal to grant relief could so adversely affect the applicants’ own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application. The applicants were not able to prove any adverse effect to their own interests if the injunction is not granted. If the expropriation proceeds and is subsequently found to be unconstitutional, the expropriation will be set aside. Furthermore, although it is the province’s property that is being expropriated, it is not an applicant herein.
The balance of convenience was close to a neutral factor. The underwater area near Nanoose Bay has been used jointly by Canada and the United States pursuant to an international agreement for torpedo testing since 1965. In 1989, British Columbia, which owns the seabed at issue, licensed the Canadian government to use the land for a ten-year period, but in 1997 gave notice of early cancellation. This action was taken as retaliation against the U.S.A. for its failure to comply with the terms of a fishing treaty. Further negotiations for a renewal of the licence broke down due to the province’s opposition to allowing nuclear-powered submarines to enter British Columbia waters. In the result, the federal government issued a notice of intention to expropriate. If the expropriation does not take place, the licence to use the property having expired, the federal government would neither have a right to continue to use the property nor to allow the United States Navy to do so. If an interim injunction is granted, the current expropriation proceedings would be deemed abandoned, thus invalidating the four weeks of public hearings and the resultant report. If the applicants are not then successful, this public expense would have to be undertaken a second time. The scales were fairly evenly balanced given the province’s undertaking not to interfere with the continual operation of the torpedo testing range pending a court resolution of the applicants’ claim, providing the applicants’ action proceeded expeditiously, although perhaps they weighed slightly in the respondents’ favour given the potential for thrown away costs. No harm to either the applicants themselves or to the public interest, was shown to be likely to arise from allowing the expropriation to proceed. The purpose of the expropriation is to maintain the status quo, to maintain the operation of a defence facility as it has been operating for many years. If the applicants are ultimately successful the expropriation will be annulled. The applicants did not show that interim injunctions were necessary.
(3) Public interest standing is granted where a party can establish that: (1) the action raises a serious legal question; (2) it has a genuine legal interest in the resolution of the question; and (3) there is no other reasonable and effective manner in which the question may be brought to Court. Where there are a number of private litigants who are directly affected by the relevant legislative provisions and who could commence litigation to challenge the provisions, a public interest group will not be granted standing. The rationale for allowing public interest standing is to prevent the immunization of legislation and of public acts from challenge. The applicants were residents of British Columbia. The province held the land for the benefit of all residents. There are not other private litigants who might commence litigation to have the issue litigated, or who are able to provide a more extensive factual background for the litigation than these litigants. Since the principles relating to standing should be interpreted in a liberal and generous manner, the applicants had standing to proceed with the litigation.
There was merit to the respondents’ argument that judicial review of the decision to commence expropriation proceedings was out of time. There was also merit to the argument that the appropriate course of action would be for the applicants to commence an application against the expropriation decision itself, and abandon the present one. This decision did not address the question as to whether the application for judicial review was properly formulated.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
British Columbia Terms of Union, R.S.C., 1985, Appendix II, No. 10.
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5] s. 117.
Exchange of Notes (May 12, 1965) between the Government of Canada and the Government of the United States of America concerning the Establishment, Operation and Maintenance of a Torpedo Test Range in the Strait of Georgia, 12 May 1965, [1965] Can. T.S. No. 6.
Exchange of Notes between the Government of Canada and the Government of the United States of America to Provide for the Continued Operation and Maintenance of the Torpedo Test Range in the Strait of Georgia including the Installation and Utilization of an Advanced Underwater Acoustic Measurement System at Jervis Inlet, 14 April 1976, [1976] Can. T.S. No. 18.
Exchange of Notes Constituting an Agreement between the Government of Canada and the Government of the United States of America to Extend the Agreement of April 14, 1976 Providing for the Continued Operation and Maintenance of the Torpedo Test Range in the Strait of Georgia, 17 June 1986, [1986] Can. T.S. No. 40.
Expropriation Act, R.S.C., 1985, c. E-21, ss. 10(2),(4)(d), 11(2).
Federal Court Act, R.S.C., 1985, c. F-7, ss. 2(1) “federal board, commission or other tribunal” (as am. by S.C. 1990, c. 8, s. 1), 18.1(2) (as enacted, s. 5).
Federal Court Rules, 1998, SOR/98-106, r. 302.Treaty Between the Government of Canada and the Government of the United States of America Concerning Pacific Salmon, 28 January 1985, [1985] Can. T.S. No. 7.
CASES JUDICIALLY CONSIDERED
APPLIED:
RJR —MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311; (1994), 111 D.L.R. (4th) 385; 164 N.R. 1; Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607; (1986), 33 D.L.R. (4th) 321; [1987] 1 W.W.R. 603; 23 Admin. L.R. 197; 17 C.P.C. (2d) 289; 71 N.R. 338; Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236; (1992), 88 D.L.R. (4th) 193; 2 Admin. L.R. (2d) 229; 5 C.P.C. (3d) 20; 8 C.R.R. (2d) 145; 16 Imm. L.R. (2d) 161; 132 N.R. 241; Corp. of the Canadian Civil Liberties Assn. v. Canada (Attorney General) (1998), 40 O.R. (3d) 489; 161 D.L.R. (4th) 225; 10 Admin. L.R. (3d) 56; 126 C.C.C. (3d) 257; 111 O.A.C. 51 (C.A.).
DISTINGUISHED:
Grauer Estate v. The Queen, [1973] F.C. 355 (T.D.).
CONSIDERED:
Canada (Attorney General) v. British Columbia, [1999] B.C.J. No. 246 (S.C.) (QL).
REFERRED TO:
Reference re Ownership of the Bed of the Strait of Georgia and Related Areas, [1984] 1 S.C.R. 388; (1984), 8 D.L.R. (4th) 161; [1984] 4 W.W.R. 289; 52 N.R. 335; Mahmood v. Canada et al. (1998), 154 F.T.R. 102 (F.C.T.D.).
MOTION for interim injunctions to prevent the proposed expropriation by the federal government of lands in the vicinity of Nanoose Bay, British Columbia until the applicants have had the opportunity to have their challenge to the validity of the expropriation heard and determined by the Federal Court. Motion dismissed.
APPEARANCES:
Rocco Galati for applicants.
John J. L. Hunter for respondents, Ministers of the Federal Crown.
D. Geoffrey G. Cowper, Q.C. for respondent Michael Goldie.
SOLICITORS OF RECORD:
Azevedo & Associates, Vancouver, for applicants.
Davis & Company, Vancouver, for respondents, Ministers of the Federal Crown.
Russell & Dumoulin, Vancouver, for respondent, Michael Goldie.
The following are the reasons for order rendered in English by
[1] Reed J.: The applicants bring a motion seeking interim injunctions relating to the proposed expropriation by the federal government of lands in the vicinity of Nanoose Bay. The applicants seek interim injunctions to prevent the expropriation until they have had an opportunity to have their challenge to the validity of the expropriation heard and determined by this Court. The interim injunctions that are sought are three in number. One is to prevent Michael Goldie from delivering his report to the Minister of Public Works. Mr. Goldie was appointed hearing officer for the purposes of preparing a report on the objections that exist to the proposed expropriation. His appointment was made pursuant to subsection 10(2) and the report is required by paragraph 10(4)(d) of the Expropriation Act, R.S.C., 1985, c. E-21. The second interim injunction sought is to prevent the Minister taking any action pursuant to the Expropriation Act to confirm the expropriation. The third is to prevent members of the federal Cabinet taking any action to enter into an agreement with any nation or entity that would involve the leasing or the encumbering of those lands.
[2] I will consider, first, the motion for an interim injunction restraining Mr. Goldie from delivering his report to the Minister of Public Works. Counsel for Mr. Goldie argues that an interim injunction should not be issued because Mr. Goldie, as a hearing officer, is not a “federal board, commission or other tribunal”. He also argues that Mr. Goldie has no jurisdiction to approve, disapprove, or recommend that the expropriation proceed, or not proceed. He only has authority to report to the Minister “on the nature and grounds of the objections” to the expropriation that have been made, and thus an injunction against him would not serve any useful purpose except to deprive the Minister of the work that Mr. Goldie has done.
[3] The first argument is not well founded. Subsection 2(1) of the Federal Court Act [R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 1)] defines “federal board, commission or other tribunal” as “any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament”. Mr. Goldie, in acting as a hearing officer pursuant to section 10 of the Expropriation Act, falls within that definition. He held public hearings; he will evaluate the objections that were expressed. These are decision-making functions. The decision in Grauer Estate v. The Queen, [1973] F.C. 355 (T.D.), having been made before the distinction between quasi-judicial and administrative decisions was swept away for judicial review purposes, is not relevant.
[4] Counsel’s second argument, however, has more merit. The application for judicial review filed by the applicants with this Court on August 16, 1999, and to which the motion for the interim injunctions relates, seeks a review of “a notice to expropriate”. That is, it seeks judicial review of the decision to commence expropriation proceedings of the Nanoose Bay vicinity lands. Counsel argues that the application must be construed more widely, that it must be construed as a challenge to the whole process that was triggered under the Act by the issuance of the notice of intention to expropriate. The applicants’ quarrel, however, is not with the procedure established by the Act, it is with the use of that procedure to expropriate provincial Crown lands. The applicants challenge the authority of the federal Parliament and of the Minister of Public Works to expropriate provincial Crown lands, primarily on the ground that the expropriation is unconstitutional. The delivery by Mr. Goldie of his report to the Minister is one step in the expropriation process but it does not itself affect the constitutionality or validity of the decision to commence expropriation proceedings, or of any decision that may be made by the Minister of Public Works to confirm the expropriation, or of legislation enacted by the Parliament of Canada.
[5] While the applicants allege that the hearings held by Mr. Goldie were a sham, conducted contrary to the terms of the Act, natural justice and fundamental justice, I was referred to no factual basis for this allegation, other than an initial error that led to the leaving of 500 objections off the notice of hearing list, which error was subsequently corrected. It is conceded that the remedies set out in the application, in the nature of certiorari seeking to quash “the hearings being conducted by Michael Goldie” and in the nature of prohibition “prohibiting Michael Goldie from proceeding with the hearing as constituted”, are now moot. In addition, his conduct of the hearing has not been the subject of a separate application for judicial review. An application for judicial review under the Federal Court Rules, 1998 [SOR/98-106] (rule 302) relates to only one decision. When multiple decisions are sought to be reviewed, multiple applications are filed. In this case There is no application for judicial review of any decision by Mr. Goldie, independent of the challenges to the authority of the Minister and the legislative jurisdiction of Parliament.
[6] The applicants have also expressed concern that Mr. Goldie did not refer the constitutional questions they raised in the hearings before him to the Federal Court or to the Attorney General. He refused to do so, taking the position that his statutory duty is set out in section 10 of the Expropriation Act and that it is limited to reporting to the Minister “on the nature and grounds of the objections” that were made to the expropriation. Assuming he had authority to refer the questions, in the manner he was asked to do, a refusal to do so was completely within his discretion. There was no duty on him to proceed in any different manner. His refusal could not serve as a foundation for an order restraining him from delivering his report.
[7] For the reasons given, I cannot conclude that the issuance of an injunction to prevent Mr. Goldie from delivering his report to the Minister is justified.
[8] I turn then to the motion for interim injunctions to restrain the Attorney General of Canada, the Minister of Public Works and Government Services, the Minister of Defence, Her Majesty the Queen in Right of Canada, and the Prime Minister and other members of the Cabinet. There is no dispute that in order to obtain the interim injunctions, the applicants must show that: (1) they have an arguable case; (2) they will suffer irreparable harm if the interim injunction is not granted; and (3) the balance of convenience for those affected by the injunction lies in granting rather than refusing the injunction.
[9] The applicants challenge the expropriation on the ground that it is unconstitutional for the federal government to expropriate provincial Crown lands and that, in any event, even if constitutional authority to expropriate exists, the Expropriation Act does not provide for the expropriation of provincial Crown lands. It is argued that the expropriation must be accomplished by an Act of Parliament passed for that purpose and not by the Minister of Public Works issuing a notice of intention to expropriate pursuant to the Expropriation Act.
[10] There is no doubt that the applicants’ constitutional arguments are fraught with difficulty. They seek to find in section 117 of the Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]], as made applicable to British Columbia by the Order in Council bringing the former colony into Confederation [British Columbia Terms of Union, R.S.C., 1985, Appendix, II, No. 10], a prohibition against federal expropriation of provincial Crown lands. The provision, however, deals with the division of assets in Confederation, not legislative powers, and perhaps as importantly, expressly refers to the right of Canada “to assume” (in the French translation “de prendre”) provincial lands for defence purposes.
[11] The applicants’ arguments concerning the mechanism by which an expropriation can be effected, rather than the constitutional power to do so, may be of more weight. Whether the provisions of the Expropriation Act provide for the expropriation of lands belonging to Her Majesty in right of a province, as opposed to merely giving notice to the provincial Attorney General and remaining silent with respect to what happens thereafter, is uncertain. Whether lands belonging to Her Majesty in right of a province fall under the expropriation provisions that deal with lands owned by “persons” is a related question, the answer to which is also not clear. I am persuaded that the applicants have demonstrated that there exists an arguable case, a serious question to be tried.
[12] The applicants cannot demonstrate, however, that they will suffer irreparable harm if the interim injunctions are not granted, or that the balance of convenience lies in favour of granting those injunctions. Counsel for the applicant argued that a breach of a constitutional imperative always causes irreparable harm. But the applicants commenced this proceeding to try to establish that the prospective expropriation constitutes such a breach. Thus, the assertion that irreparable harm exists relies on a conclusion of law that is not yet proven. In addition, not all breaches of constitutional rules result in irreparable harm.
[13] Counsel for the applicants argues that it is not appropriate to apply the private law test of irreparable harm, harm that is not compensable in damages, when one is considering a constitutional case. He argues that one looks instead at the third element, the balance of convenience, and the competing public interests. The decision in RJR—MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, is, of course, the governing case. At page 341, Mr. Justice Cory, when talking about Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] cases, not division of power cases, makes it very clear that the assessment of irreparable harm is more difficult in such cases than in private law cases. He also asserts however:
At this stage the only issue to be decided is whether a refusal to grant relief could so adversely affect the applicants’ own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application. [Emphasis added.]
[14] The fact remains that the applicants are not able to prove any adverse effect to their own interests if the injunction is not granted. If the expropriation proceeds and is subsequently found after a trial of the issues to be unconstitutional or invalid, the expropriation will be set aside. It is important to note as well that the province of British Columbia is not among the applicants in this proceeding, and it is its property that is being expropriated.
[15] I turn next to the balance of convenience. The underwater area near Nanoose Bay has been used jointly by Canada and the United States for torpedo testing since 1965. Use by the United States began pursuant to an international agreement embodied in diplomatic notes of May 12, 1965 [Exchange of Notes (May 12, 1965) between the Government of Canada and the Government of the United States of America concerning the Establishment, Operation and Maintenance of a Torpedo Test Range in the Strait of Georgia, 12 May 1965, [1965] Can. T.S. No. 6]. That agreement was renewed in 1976 [Exchange of Notes between the Government of Canada and the Government of the United States of America to Provide for the Continued Operation and Maintenance of the Torpodo Test Range in the Strait of Georgia including the Installation and Utilization of an Advanced Underwater Acoustic Measurement System at Jervis Inlet, 14 April 1976, [1976] Can. T.S. No. 18] for a second ten-year period, and again in 1986 [Exchange of Notes Constituting an Agreement between the Government of Canada and the Government of the United States of America to Extend the Agreement of April 14, 1976 Providing for the Continued Operation and Maintenance of the Torpedo Test Range in the Strait of Georgia, 17 June 1986, [1986] Can. T.S. No. 40].
[16] In 1984, the Supreme Court of Canada held that the seabed of the Strait of Georgia was the property of the province of British Columbia, not Canada. The seabed had belonged to the United Colony of British Columbia at the time of Confederation. (Reference re Ownership of the Bed of the Strait of Georgia and Related Areas, [1984] 1 S.C.R. 388). Consequent on the Supreme Court decision, British Columbia (Her Majesty the Queen in Right of British Columbia) and Canada (Her Majesty the Queen in Right of Canada) signed, on September 5, 1989, an agreement whereby the former licensed the latter to use the property in question for 10 years. On August 22, 1997, British Columbia gave notice that it was cancelling the 10-year licence before its expiry date. Provisions in the licence allow for cancellation on 90 days’ notice under certain circumstances. The federal government commenced an action in the British Columbia Supreme Court (Canada (Attorney General) v. British Columbia, [1999] B.C.J. No. 246 (S.C.) (QL)) seeking a declaration that the notice of cancellation was invalid and that damages should be awarded. The notice of cancellation had been issued because the province was angry at the United States’ failure to comply with the terms of the Pacific Salmon Treaty [Treaty Between the Government of Canada and the Government of the United States of America Concerning Pacific Salmon, 28 January 1985, [1985] Can. T.S. No. 7] and retaliated. The litigation has not been pursued.
[17] The September 5, 1989, licence agreement expires in a few days, on September 5, 1999. Negotiations between the provincial and the federal governments for a renewal of that licence took place in April and May of this year. Negotiations broke down because of the province’s position that nuclear powered submarines should not be allowed to enter British Columbia waters. The breakdown in negotiations led to the issuance by the Minister of Public Works of the notice of intention to expropriate, which is the subject of the present application.
[18] The joint use of the underwater torpedo testing range near Nanoose Bay by Canada and the United States, as noted, has been occurring for many years. It involves the provision by Canada of land facilities valued at $47,000,000 and the provision by the United States of technical equipment worth approximately $190,000,000. Some of the equipment is installed under the water. Commander Gordon Buckingham, commanding officer for the Canadian Forces Unit involved in using the facilities asserts that the underwater area in question is unique and particularly suited for torpedo testing. He states that many types of torpedos in the Canadian Forces and United States Navy inventories have been tested, that over 300 torpedos or similar devices were tested in 1996, that no nuclear weapons are tested there, that Canada uses the area about 20% of the time and the United States Navy about 80% of the time, that an environmental assessment in 1996 found no measurable impact upon the environment from the operations in the area, that the test facility is a vital part of Canada’s military defence system, and its continued operation is necessary and important to the Canadian-United States co-operative military relationship.
[19] If the expropriation does not take place, the licence to use the property granted by British Columbia having expired, the federal government would not have a right to continue to use the property, nor to allow the United States Navy to do so. After the hearing of the present motion, on Monday, August 30, 1999, the applicants received from the province, on August 31, an undertaking to the Court that the province would not interfere with the continual operation of the torpedo testing range pending a court resolution of the applicants’ claim, proving the applicants’ action proceeded expeditiously. Counsel for the Minister of Public Works argues that while this mitigates the potential harm arising from a threatened closure of the facility, it leaves the effectiveness of the undertaking in the hands of the province, when the province is not even a party to the litigation.
[20] Counsel also notes that if an interim injunction is granted, the current expropriation proceedings would be deemed to be abandoned under subsection 11(2) of the Expropriation Act, and such a consequence would invalidate all of the work that has been done since the notice of intention to expropriate issued last May, including the four weeks of public hearings and the resultant report that has been prepared by Mr. Goldie. If an interim injunction is granted, and the applicants are not successful in their application, this public expense would have to be undertaken a second time. On the other hand there are no cost consequences arising if the injunction is not granted.
[21] I conclude that in so far as balance of convenience goes, given the undertaking that has now been received from the province, the scales are fairly even. I do recognize the validity of the argument that they weigh slightly in the respondents’ favour given the potential for thrown away costs should the expropriation proceedings have to be undertaken a second time.
[22] The applicants, of course, have the burden of establishing that an interim injunction should issue. While the balance of convenience may be a close to neutral factor, the fact remains that no harm to either the applicants themselves, or to the public interest, has been shown to be likely to arise from allowing the expropriation to proceed. Its purpose is to maintain the status quo, to maintain the operation of a defence facility as it has been operating for many years. If the applicants are ultimately successful the expropriation will be annulled. Accordingly, I must conclude that the applicants have not shown that an interim injunction is necessary. They have not proven that the requirements for the issuance of an interim injunction exist.
[23] The respondents argue that the applicants do not have standing to bring this application. The requirements for public interest standing are set out in Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607, and the Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236. Public interest standing is granted where a party can establish that: (1) the action raises a serious legal question; (2) it has a genuine legal interest in the resolution of the question; and (3) there is no other reasonable and effective manner in which the question may be brought to Court.
[24] In the Canadian Council of Churches case (supra) and in Corp. of the Canadian Civil Liberties Assn. v. Canada (Attorney General) (1998), 40 O.R. (3d) 489 (C.A.), the courts held that where there are a number of private litigants who are directly affected by the relevant legislative provisions and who could commence litigation to challenge the provisions (in the first case those affected by provisions of the refugee determination process, in the second those who were subjected to intrusive surveillance by the Canadian Security Intelligence Service), a public interest group would not be granted standing. Counsel argues that in the present case, the province of British Columbia could commence litigation and that there thus exists a reasonable and effective manner by which the matter might be brought to court, other than by granting these applicants’ standing.
[25] Mr. Justice Cory in the Canadian Council of Churches case, at pages 252-253, expressed the principles as follows:
The whole purpose of granting status is to prevent the immunization of legislation or public acts from any challenge. The granting of public interest standing is not required when, on a balance of probabilities, it can be shown that the measure will be subject to attack by a private litigant. The principles for granting public standing set forth by this Court need not and should not be expanded. The decision whether to grant status is a discretionary one with all that that designation implies. Thus undeserving applications may be refused. Nonetheless, when exercising the discretion the applicable principles should be interpreted in a liberal and generous manner.
[26] The rationale for allowing public interest standing, as Mr. Justice Cory states, is to prevent the immunization of legislation and of public acts from challenge. These applicants are residents of British Columbia. The province’s ownership of the land is not comparable to that of a private individual. The province holds the land for benefit of all residents. This is not a situation in which there are other private litigants who might commence litigation to have the issue litigated, or who are able to provide a more extensive factual background for the litigation than these litigants. Applying Mr. Justice Cory’s admonition that the principles relating to standing should be interpreted in a liberal and generous manner leads me to conclude that these applicants have standing to proceed with the litigation.
[27] There are however, some difficulties with the present application. As noted above, a judicial review application is available against a single decision of a federal board, commission or tribunal (these being defined in an expanded way). There is an obligation to identify the decision for which review is sought in the application, by its date, and by identifying the entity or person that rendered the decision. In this case, the application is somewhat confusing but I interpret it as primarily seeking a review of the decision of the Minister of Public Works to issue the notice of intention to expropriate, which occurred on May 14, 1999. Applications for judicial review must be filed within 30 days after the decision has been communicated to the affected parties. (subsection 18.1(2) [as enacted by S.C. 1990, c. 8, s. 5] of the Federal Court Act). The present application was not filed until August 16, 1999, three months late.
[28] Counsel for the applicants argues that since, in this case, a declaration is being sought concerning the validity of a legislative regime, it is not necessary to identify a specific decision to which the application relates. As I understand his argument it is that the continuing process established by the Expropriation Act is being challenged. He states that this approach was accepted by the Court in Mahmood v. Canada et al. (1998), 154 F.T.R. 102 (F.C.T.D.).
[29] While I have dealt with the motion for interim injunctions on its merits, I want to make it clear that I should not be taken as having made any decision as to whether counsel’s position on the validity of the August 16 application is correct. Indeed, there is merit to the respondents’ argument that if judicial review of the decision to commence expropriation proceedings was to be sought, it should have been sought long ago. There also appears to be merit to the argument that the appropriate course of action would be for the applicants to commence an application against the expropriation decision itself, when and if it is made, and abandon the present one. In any event, I reiterate that the present decision should not be taken as including within it acceptance that the August 16 application is a properly formulated application for judicial review. That issue was not addressed.
[30] For the reasons given, the motion seeking issuance of the three interim injuctions will be dismissed.