A-549-98
Marilyn Sharp (Appellant)
v.
Canadian Transportation Agency and Canadian Pacific Railway Company (Respondents)
Indexed as: Sharpv. Canada (Transportation Agency) (C.A.)
Court of Appeal, Isaac C.J., Décary and Rothstein JJ.A."Edmonton, May 31; Ottawa, June 11, 1999.
Transportation — Appeal from Canadian Transportation Agency's approval of construction of railway line — Canada Transportation Act (CTA), s. 98(2) permitting Agency to approve location of railway line, considering requirements for railway operations and services, interests of affected localities — Appellant opposing application on ground line not necessary — S. 98 not requiring assessment of need — Requiring Agency to focus on whether location, not construction, of railway line reasonable — —Requirements for railway operations and services— referring only to requirements enabling railway company to provide service to customers — Not referring to need for line — —Interests of the localities— contemplating Agency consider concerns respecting location of line brought to its attention by localities in determining whether location reasonable — Presumption need for line based on fact railway company making application — Reading in needs test would ignore national transportation policy that compensation, market forces prime factors in determining whether railway line should be constructed; would impose unnecessary economic regulation — In keeping with trend toward deregulation, CTA limited Agency's role in regulating entry into railway business in Canada, controlling construction of new railway lines — Inconsistent with limited role to construe s. 98 as requiring needs test for construction of railway line.
Railways — Appeal from Canadian Transportation Agency's approval of construction of railway line — Canada Transportation Act, s. 98(2) permitting Agency to approve location of railway line, considering requirements for railway operations — Appellant opposing application on ground line not necessary — S. 98 not requiring assessment of need — Reading in needs test would ignore national transportation policy compensation, market forces prime factors in determining whether railway line should be constructed, would impose form of economic regulation when not necessary to serve transportation needs of shippers — In keeping with trend toward deregulation, CTA limited Agency's role in regulating entry into railway business in Canada, controlling construction of new railway lines — Inconsistent with limited role to construe s. 98 as requiring needs test for construction of railway line.
Environment — Appeal from Canadian Transportation Agency's approval of construction of railway line — Agency finding, upon Canadian Pacific Railway (CPR) filing Canada Transportation Act (CTA), s. 98(2) application for approval, Agency —responsible authority— under Canadian Environmental Assessment Act (CEAA) — CEAA, s. 16(1)(e) requiring assessment of need for, alternatives to, project in environmental assessment process — Agency opining need, alternatives dependent on Union Carbide of Canada's (UCC) decision required direct access to CPR for plant expansion, CPR's objective to improve market share — Agency having obligation to carry out assessment itself — Although deferring to views, objectives of UCC, CPR, Agency expressing own view as to need, alternatives — Business, commercial needs legitimate basis for rejecting alternatives — As determination of whether to consider need, alternatives discretionary, within Agency's discretion to decide nature, extent of consideration of factors — Unless clear conflict, Agency must respect both Parliament's express deregulatory intention under CTA and Parliament's vesting it with environmental decision-making power under CEAA — Agency concluding construction of railway not having adverse environmental effects upon implementation of CPR's proposed mitigation measures — Performed duties under CEAA, s. 16.
This was an appeal under Canada Transportation Act (CTA), subsection 41(1) from an order of the Canadian Transportation Agency approving the construction of a 12.6 km line of railway between the Lacombe subdivision in central Alberta and the polyethylene facility of Union Carbide Canada Inc. (UCC) at Prentiss, Alberta. CTA, section 98 requires a railway company to obtain Agency approval before a line of railway is constructed, unless the line is within an existing line or close to an existing line and not more than 3 km in length. The Agency may grant approval if it considers that the location of the line is reasonable, considering requirements for railway operations and services and the interests of the affected localities. At that time only Canadian National Railway Company (CN) had a line of railway to the UCC facility and CPR's cars for movement on CPR lines had to be interchanged with CN at Red Deer and moved over CN's line in CN's trains between Red Deer and the UCC facility (interswitching). The appellant opposed CPR's application on the basis that a second line of railway to the UCC facility was not necessary. Her concerns involved adverse environmental effects, public safety and land use. Her position was that UCC could have access to CPR service through interswitching. The appellant submitted that CPR and UCC were required to demonstrate that interswitching would not be satisfactory to meet their commercial interests. Alternatively, she argued that CPR could apply to the Agency for an order allowing it to operate its trains over CN's line (running rights), and that it must be demonstrated that running rights would not be an adequate alternative to meet UCC's and CPR's business objectives.
The Agency found that upon the filing of CPR's application under subsection 98(2), it became the "responsible authority" under the Canadian Environmental Assessment Act . Paragraph 16(1)(e) thereof requires the consideration in the environmental assessment process of the need for the project and alternatives. The Agency expressed the opinion that need and alternatives were dependent on UCC's decision that it required direct access to CPR to serve its plant expansion, and CPR's objective to improve its share of the Canadian polyethylene transportation market. It went on to consider the trucking, slurry pipeline and the other railway alternatives before concluding that need had been established and that the alternatives would not meet that need. The appellant submitted that the Agency delegated to UCC and CPR the determination of need and the inadequacy of alternatives, and therefore did not carry out the mandate it had undertaken.
The issues were: (1) whether, when approval for the construction of a railway is sought, a railway company must demonstrate a need for the line; and (2) whether the Agency declined to exercise its jurisdiction by failing to assess the need for, and alternatives to, the railway line under the Canadian Environmental Assessment Act, paragraph 16(1)(e).
Held, the appeal should be dismissed.
Per Isaac C.J.: The appellant did not demonstrate that the Canadian Transportation Agency committed any error that would warrant judicial intervention.
Per Rothstein J.A.: Section 98 does not require an assessment of need. Subsection 98(2) requires the Agency to focus on whether the "location of the railway line", not its construction , is reasonable. By distinguishing between construction and location, the Agency's role is limited to considering only the reasonableness of the location of the line. No needs test is implied.
(1) In the context of a location decision, "requirements for railway operations and services" refers only to those requirements that will enable the railway company to provide service to its customers. It does not refer to the need for the line. "Requirements for railway operations and services" contemplates matters such as the efficient use of existing equipment, infrastructure and rail crews, as well as operational requirements including track grades to allow carriage of the amount of traffic offered, all of which the Agency considered.
"Interests of the localities" contemplates localities bringing to the attention of the Agency their concerns respecting the location of the line and the Agency having regard to those concerns in determining whether the location is reasonable. It is open to the Agency to determine that a location is not reasonable, but in making that assessment the Agency is not to take into account whether the line is needed. The need for the line will be presumed by reason of the application made by the railway company. To read into subsection 98(2), a needs test would ignore the national transportation policy that competition and market forces are the prime factors in determining whether a line of railway should be constructed, and would impose a form of economic regulation when it is not necessary to serve the transportation needs of shippers. Nowhere in section 98 is there, express or implied, a public interest test, or an increased facilities to business test. In accordance with this trend toward deregulation of the railway industry, the Canada Transportation Act has limited the Agency's role in regulating entry into the railway business in Canada and its role in controlling the construction of new railway lines. It would be inconsistent with this limited role for the Agency to construe section 98 as requiring a needs test for the construction of a railway line.
(2) Once the Agency decided that it was necessary to consider need and alternatives, it had an obligation to carry out such assessment itself. Had the Agency expressed no view of its own with respect to need and alternatives, it would have declined to exercise jurisdiction. Although clearly deferring to the views and objectives of UCC and CPR to a considerable extent, the Agency did express its own view.
The Agency found need based upon UCC's decision to have direct access by CPR and CPR's desire to increase its polyethylene market share by providing direct access to UCC. The Agency was entitled to base its decision on need and alternatives on what it was told by UCC and CPR. Business or commercial needs are a legitimate basis for rejecting alternatives. Both UCC and CPR are assuming a risk and incurring costs with such construction. They would not do so if they thought that an alternative was more attractive. UCC and CPR are much better placed than the Agency to make these assessments. The Agency expressly accepted the assessments of UCC and CPR and in doing so, made a decision on need and alternatives. It did not have to go further. Paragraph 16(1)(e) does not prescribe the degree of consideration required of the Agency on the question of need and alternatives. As the determination of whether to consider need and alternatives is discretionary, it is within the Agency's discretion to decide the nature and extent of its consideration of these factors. Unless there is a clear conflict, which there was not, the Agency must respect both Parliament's express deregulatory intention under the CTA and Parliament's vesting it with environmental decision-making power under the CEAA.
The Agency concluded that the construction of the railway line would not have any significant adverse environmental effects upon the implementation of CPR's proposed mitigation measures. It determined that any order to approve construction would include conditions requiring CPR to implement its mitigation undertakings. It carried out its responsibility under paragraphs 16(1)(a) to (d) and did not decline to exercise its jurisdiction under paragraph 16(1)(e).
| statutes and regulations judicially considered |
| Canada Transportation Act, S.C. 1996, c. 10, ss. 5, 41(1), 98(2). |
| Canadian Environmental Assessment Act, S.C. 1992, c. 37, s. 16(1)(e). |
| National Transportation Act, 1987, R.S.C., 1985 (3rd Supp.), c. 28. |
| Railway Act, R.S.C., 1985, c. R-3, s. 127. |
| Railway Interswitching Regulations, SOR/88-41. |
| cases judicially considered |
| considered: |
| Upper Lakes Group Inc. v. Canada (National Transportation Agency), [1995] 3 F.C. 395; 125 D.L.R. (4th) 204; 62 C.P.R. (3d) 167; 181 N.R. 103 (C.A.). |
| appearances: |
| Darin J. Hannaford for appellant. |
| Ron Ashley for respondent Canadian Transportation Agency. |
| Glen H. Poelman and Paul A. Guthrie for respondent Canadian Pacific Railway Company. |
| William G. McMurray for intervener Canadian National Railways. |
| solicitors of record: |
| Miller Thomson, Edmonton, for appellant. |
| Canadian Transportation Agency, Hull, Quebec, for respondent Canadian Transportation Agency. |
| MacLeod Dixon, Calgary, for respondent Canadian Pacific Railway Company. |
| Canadian National Railways, Montréal, for intervener Canadian National Railways. |
The following are the reasons for judgment rendered in English by
[1]Isaac C.J.: I have had the privilege of reading, in draft, the reasons for judgment which my colleague, Rothstein J.A., has prepared in this appeal.
[2]While I am in agreement with his proposed disposition, I prefer, nevertheless, to rest my concurrence on the simple ground that the appellant has not demonstrated that the Canadian Transportation Agency committed any error that would warrant the interference of this Court.
[3]I, too, would dismiss this appeal with costs.
* * *
The following are the reasons for judgment rendered in English by
Rothstein J.A.:
ISSUES
[4]This is an appeal, leave having been granted, under subsection 41(1) of the Canada Transportation Act,1 from an order of the Canadian Transportation Agency (Agency) dated April 21, 1998, approving the construction of a line of railway. There are two issues to be decided:
(A) Did the Agency decline to exercise its jurisdiction by failing to consider the need for the railway line under subsection 98(2) of the Canada Transportation Act?
(B) Did the Agency decline to exercise its jurisdiction by failing to assess the need for, and alternatives to, the railway line under paragraph 16(1)(e) of the Canadian Environmental Assessment Act?2
FACTS
[5]On December 22, 1997, the Canadian Pacific Railway Company (CPR), pursuant to subsection 98(2) of the Canada Transportation Act, applied to the Agency for approval of the construction of a 12.6 km line of railway between mile 103.2 of its Lacombe subdivision in central Alberta and the polyethylene facility of Union Carbide Canada Inc. (UCC) at Prentiss, Alberta. The line of railway would give CPR direct access to UCC's polyethylene facility, that is to say, CPR's locomotives and trains would be able to operate directly to and from the UCC facility. Previously, only Canadian National Railway Company (CN) had a line of railway to the UCC facility and cars for movement over the lines of CPR had to be interchanged with CN at Red Deer and moved over CN's line in CN's trains between Red Deer and the UCC facility. This is called interswitching. The CPR line would provide a second railway line to the facility and render CPR a direct competitor to CN in the transportation of polyethylene from UCC's facility to markets in Canada and the United States.
[6]The appellant opposed CPR's application on the basis that a second line of railway to the UCC facility was not necessary. Her concerns involved adverse environmental effects, public safety and land use. The appellant's position was that UCC could have access to CPR service through interswitching. Under the Railway Interswitching Regulations [SOR/88-41], CN, at regulated rates, is obliged to move CPR cars over its line between the UCC facility and the interchange with CPR at Red Deer. The appellant said that CPR and UCC were required to demonstrate that interswitching would not be satisfactory to meet their commercial interests. Alternatively the appellant said that CPR could apply to the Agency for an order allowing it to operate its locomotives and trains over CN's line, serving the UCC facility at Prentiss. This is called running rights. Again, the appellant said that it must be demonstrated that running rights would not be an adequate alternative to meet UCC's and CPR's business objectives.
ANALYSIS
Section 98 of the Canada Transportation Act
[7]Section 98 of the Canada Transportation Act provides:
98. (1) A railway company shall not construct a railway line without the approval of the Agency.
(2) The Agency may, on application by the railway company, grant the approval if it considers that the location of the railway line is reasonable, taking into consideration requirements for railway operations and services and the interests of the localities that will be affected by the line.
(3) No approval is needed for the construction of a railway line
| (a) within the right of way of an existing railway line; or |
| (b) within a 100 m of the centre line of an existing railway line for a distance of no more than 3 km. |
[8]Section 98 requires a railway company to obtain Agency approval before a line of railway is constructed, unless the line is within an existing line or close to an existing line and not more than 3 km in length. The Agency may grant approval if it considers that the location of the line is reasonable, considering requirements for railway operations and services and the interests of the affected localities. The question is whether, when approval for the construction is sought, a railway company must demonstrate a need for the line. The appellant says that the words "taking into consideration requirements for railway operations and services" mean that need is to be assessed. It is argued that in order to assess these requirements, it is necessary to consider the already existing CN line and the availability of interswitching and the possibility of running rights for CPR over the CN line. In considering the interests of the localities, the appellant says that it is necessary to consider whether the line is necessary at all. The appellant argues that the location of the line can only be found to be reasonable if the line itself is in fact needed.
[9]I am unable to accept the appellant's contention that section 98 requires an assessment of need. Subsection 98(2) requires the Agency to focus on whether the "location of the railway line is reasonable" [underlining added]. It is significant that although the application is for approval to construct a railway line, the Agency is not mandated to consider whether the construction of the line is reasonable. That may have imported a needs test. On the contrary, it is apparent that Parliament distinguished between construction and location, limiting the Agency's role to considering only the reasonableness of the location of the line. There is no needs test implied in a consideration of the reasonableness of the location of the line.
[10]Nor do the words "taking into consideration requirements for railway operations and services" suggest that the need for the line is a relevant consideration for the Agency. In the context of a location decision, "requirements for railway operations and services" refers only to those requirements that will enable the railway company to provide service to its customers. It does not refer to the need for the line. In this case the Agency considered the efficient use of existing equipment, infrastructure and rail crews, as well as operational requirements including track grades to allow carriage of the amount of traffic offered. These are the types of matters contemplated by the words "requirements for railway operations and services".
[11]Nor does the requirement to consider the "interests of the localities" import consideration of whether or not the line is needed. What is contemplated is localities bringing to the attention of the Agency their concerns respecting the location of the line and the Agency having regard to those concerns in determining whether the location is reasonable. It is, of course, open to the Agency to determine that a location is not reasonable, in which case it will not grant approval for the construction of the line. However, in making that assessment, the Agency is not to take into account whether the line is needed. The need for the line will be presumed by reason of the application made by the railway company.
[12]This interpretation of subsection 98(2) is consistent with the national transportation policy set forth in section 5 of the Canada Transportation Act. Section 5 provides in relevant part:
5. It is hereby declared that a safe, economic, efficient and adequate network of viable and effective transportation services . . . is essential to serve the transportation needs of shippers . . . and that those objectives are most likely to be achieved when all carriers are able to compete, both within and among the various modes of transportation, under conditions ensuring that . . .
. . .
| (b) competition and market forces are, whenever possible, the prime agents in providing viable and effective transportation services, |
| (c) economic regulation of carriers and modes of transportation occurs only in respect of those services and regions where regulation is necessary to serve the transportation needs of shippers and travellers and that such regulation will not unfairly limit the ability of any carrier or mode of transportation to compete freely with any other carrier or mode of transportation. |
[13]To read into subsection 98(2) a needs test would ignore the policy that competition and market forces are the prime agents in determining whether a line of railway should be constructed and would impose a form of economic regulation when it is not necessary to serve the transportation needs of shippers. This would be contrary to the national transportation policy.
[14]Finally, it is instructive to consider section 98 in the context of the trend toward deregulation of the transportation industry in Canada over the last three decades. In referring to the predecessor legislation, the National Transportation Act, 1987 [R.S.C., 1985 (3rd Supp.), c. 28], Isaac C.J., in Upper Lakes Group Inc. v. Canada (National Transportation Agency),3 although in dissent in the result, accurately describes, in my view, the legislative history up to the time of that case. At pages 412-413 he states:
The Act [National Transportation Act, 1987] is one of a number of statutes enacted by Parliament in the last decade to give effect to the policy, still in vogue, of deregulation of the national economy. This development signalled a marked departure in national economic management from the regime, in existence since the early years of Confederation, in which key sectors of the national economy were regulated by the state. Under this new dispensation the economy would be driven not by state regulation but by market forces. Henceforth, the role of the state would be to provide a framework in which market forces could have free reign . . . . The most important of these is the National Transportation Act, 1987, in issue here, which effectively deregulated air transportation in Canada south of the 60th parallel and adopted market oriented rules to facilitate intra-modal rail competition and to break down joint rate setting by railways. It is said that this statute is the cornerstone of the strategy of the Government of Canada to develop a competitive transportation system serving the diverse needs of Canadian travellers and shippers. The goal of this legislation is to replace reliance upon state regulation of the transportation sector with decisions made in reaction to the market-place. Henceforth, transportation decisions would be governed more by the needs and wants of shippers and travellers than by the state. [Footnotes omitted.]
[15]The Canada Transportation Act is a further step towards deregulation of the transportation industry in Canada. In this respect, it is relevant to compare section 98 of the Canada Transportation Act with a predecessor provision, section 127 of the Railway Act.4 Section 127 provided in part:
127. (1) The Commission, if satisfied that the branch line is necessary in the public interest or for the purpose of giving increased facilities to business, and if satisfied with the location of the branch line . . . may . . . authorize the construction . . . .
Nowhere in section 98 is there, express or implied, a public interest test, or an increased facilities to business test. All that is left is the location test. This change is in keeping with Canada's move towards deregulation of the railway industry as described by Isaac C.J. in Upper Lakes Group, supra. In accordance with this trend toward deregulation, the Canada Transportation Act has limited the Agency's role in regulating entry into the railway business in Canada and its role in controlling the construction of new railway lines. It is inconsistent with this limited role for the Agency that section 98 be construed as requiring a needs test for the construction of a railway line.
[16]For all of these reasons I am satisfied that the Agency did not err in not considering the need for the line under subsection 98(2) of the Canada Transportation Act.
Subsection 16(1) of the Canadian Environmental Assessment Act
[17]The Agency found that upon the filing of CPR's application under subsection 98(2) of the Canada Transportation Act, the Agency became the "responsible authority" under the Canadian Environmental Assessment Act [CEAA], being required to ensure that an environmental assessment of the line be conducted. It is not necessary to embark upon a detailed analysis of the CEAA. It is only necessary to focus on section 16 of the CEAA which provides for factors to be considered in the environmental assessment process.
[18]Subsection 16(1) provides:
16. (1) Every screening or comprehensive study of a project and every mediation or assessment by a review panel shall include a consideration of the following factors:
| (a) the environmental effects of the project, including the environmental effects of malfunctions or accidents that may occur in connection with the project and any cumulative environmental effects that are likely to result from the project in combination with other projects or activities that have been or will be carried out; |
| (b) the significance of the effects referred to in paragraph (a); |
| (c) comments from the public that are received in accordance with this Act and the regulations; |
| (d) measures that are technically and economically feasible and that would mitigate any significant adverse environmental effects of the project; and |
| (e) any other matter relevant to the screening, comprehensive study, mediation or assessment by a review panel, such as the need for the project and alternatives to the project, that the responsible authority or, except in the case of a screening, the Minister after consulting with the responsible authority, may require to be considered. |
With specific reference to paragraph 16(1)(e), the Agency ruled that it would consider the need for the line and alternatives in the context of its environmental assessment. The appellant acknowledges that under paragraph 16(1)(e), the Agency has a discretion to decide whether or not to consider need for the line and alternatives. However, it is said that once the Agency decided to assess need and alternatives, it was obliged to perform that function itself and make its own determinations on those issues. The appellant says the Agency failed to do so and that such failure constitutes a declining of jurisdiction.
[19]I agree with the appellant that once the Agency decided that it was necessary to consider need and alternatives, it had an obligation to carry out such assessment itself. The question then is whether the Agency's reasons disclose that it carried out an assessment of need and alternatives.
[20]In its reasons, the Agency stated that it considered the need for the project and alternatives to the project:
In the preparation of the screening report, the Agency considered among other things:
" the need for the project;
" alternatives to the project; . . . .
[21]The Agency expressed the opinion that need and alternatives were dependent on UCC's decision that it required direct access to CPR to serve its polyethylene plant expansion and CPR's objective to improve its share of the Canadian polyethylene transportation market. The Agency then went on to consider the trucking, slurry pipeline and the other railway alternatives. The Agency then concluded that need had been established and that the alternatives would not meet that need.
[22]The argument of the appellant here is that the Agency delegated to UCC and CPR the determination of need and the inadequacy of alternatives, and therefore did not carry out the mandate it had undertaken. For example, with respect to the trucking and slurry pipeline alternatives, the Agency, after stating that it did not disagree with UCC's decision to reject these alternatives, says:
Such decisions must remain in the hands of the business operator, in this case the shipper of the polyethylene, CC.
The balance of the Agency's reasons on need and alternatives contain similar references, deferring to UCC and CPR the determination of need and the desirability of alternatives.
[23]If decisions as to need and the desirability of alternatives are to remain with UCC and CPR, has the Agency declined to exercise its jurisdiction? I think if the Agency expressed no view of its own with respect to need and alternatives, it would have declined to exercise jurisdiction.
[24]However here, although clearly deferring to the views and objectives of UCC and CPR to a considerable extent, the Agency did express its own view. It did not disagree with UCC's rejection of the trucking and pipeline alternatives. It acknowledged that indirect access was less attractive from a shipper's point of view than direct service, and that direct service is inherently more efficient and effective. It noted that the risk of operational problems relating to scheduling and dispatch are of concern with respect to running rights. The Agency found that there was a risk to UCC's ability to provide service to its customers arising from the need for coordination between two carriers under the running rights option. These are findings of the Agency and they do indicate that the Agency itself considered the question of alternatives.
[25]The Agency found need based upon UCC's decision to have direct access by CPR and CPR's desire to increase its polyethylene market share by providing direct access to UCC. Counsel for CPR referred to this as market need. The appellant seems to take the view that the agency was obliged to conduct a detailed analysis of its own as to whether the alternatives could meet the need and not simply rely on the business objectives of UCC and CPR. However, I think in the circumstances of this case, the Agency was entitled to base its decision on need and alternatives on what it was told by UCC and CPR.
[26]Business or commercial needs are a legitimate basis for rejecting alternatives. The construction of a railway line is not costless. Both UCC and CPR are assuming a risk and incurring costs with such construction. They would not do so if they thought an alternative was more attractive. UCC and CPR are much better placed than the Agency to make these assessments. The Agency expressly accepted the assessments of UCC and CPR and in doing so, made a decision on need and alternatives. It did not have to go further.
[27]Paragraph 16(1)(e) of the CEAA does not prescribe the degree of consideration required of the Agency on the question of need and alternatives. As the determination of whether to consider need and alternatives is discretionary, so is it within the discretion of the Agency to decide the nature and extent of its consideration of these factors.
[28]While the Agency may consider need and alternatives in the context of an environmental assessment, paragraph 16(1)(e) is not a back door means of reempowering the Agency with economic regulatory control over the construction of railway lines. Unless there is a clear conflict, which there is not here, the Agency should strive to harmonize its approach under the CTA and the CEAA. In other words it must respect both Parliament's express deregulatory intention under the CTA and Parliament's vesting it with environmental decision-making power under the CEAA. In cases in which it is able to determine that a project is environmentally acceptable, the Agency may not find it necessary to consider need and alternatives. However, I do not rule out the case of a proposed project having so severe adverse environmental consequences that the Agency may consider it necessary to rigorously analyse the question of need and alternatives.
[29]As required by paragraphs 16(1)(a) to (d) of the CEAA, the Agency considered the adverse environmental effects of the project and the significance of those effects, the comments of the public, CPR's technically and economically feasible mitigation measures and the significance of the effect with implementation of the mitigation measures. In particular the Agency dealt with air quality, hydrology, restoration and follow-up, wildlife, the impact on agriculture, noise and public safety. The Agency concluded that the construction of the railway line would not have any significant adverse environmental effects upon the implementation of CPR's proposed mitigation measures.
[30]The Agency determined that any order to approve construction would include conditions requiring CPR to implement its mitigation undertakings. A detailed restoration plan and a wildlife incident reporting program would have to be submitted and a follow-up program would have to be designed with public notice of the program required. The Agency imposed additional requirements regarding alienation of land at curves and the safe movement of cattle. Additional noise level conditions were imposed.
[31]I am satisfied that in the case at bar, the Agency carried out its responsibility under paragraphs 16(1)(a) to (d) and did not decline to exercise its jurisdiction under paragraph 16(1)(e) of the CEAA.
DISPOSITION
[32]The appeal will be dismissed with costs.
Décary J.A.: I agree.
1 S.C. 1996, c. 10.
2 S.C. 1992, c. 37, s. 16(1)(e).
3 [1995] 3 F.C. 395 (C.A.).
4 R.S.C., 1985, c. R-3.