T-865-89
Friends of the Oldman River Society (Applicant)
v.
Minister of Transport and Minister of Fisheries
and Oceans (Respondents) *
INDEXED AS: FRIENDS OF THE OLDMAN RIVER SOCIETY V.
CANADA (MINISTER OF TRANSPORT) (T.D.)
Trial Division, Jerome A.C.J.—Edmonton, August
11; Ottawa, October 4, 1989.
Environment — Construction of dam on Oldman River,
Alberta — Application for certiorari to stop construction and
for mandamus to order respondents to comply with Environ
mental Assessment and Review Process Guidelines Order —
Neither respondent Minister bound by Guidelines Order and
neither having authority to require environmental review —
Canadian Wildlife Federation Inc. v. Canada (Minister of the
Environment) distinguished — Delay in launching attack and
comprehensive environmental review by Alberta make it inap
propriate to grant discretionary relief.
Judicial review — Prerogative writs — Construction of dam
on Oldman River, Alberta — Neither respondent Minister
bound by Environmental Assessment and Review Process
Guidelines Order and neither having authority to require
environmental review — Certiorari and mandamus denied.
In March, 1986, after ten years of studies, reports and public
meetings, the Alberta Department of the Environment applied
under the Navigable Waters Protection Act (NWPA) for
approval for the construction of a dam on the Oldman River. In
May, 1986, the governments of Alberta and Canada entered
into an agreement concerning environmental impact assess
ments of projects in the Province whereby Alberta would apply
its environmental assessments procedures where primary re
sponsibility for the approval of development initiatives was
within its constitutional jurisdiction. Alberta carried out a
* Editor's Note: This decision has been reversed on appeal.
The reasons for judgment of the Federal Court of Appeal
(A-395-89), rendered on March 13, 1990, will be published in
the Reports. It was held that both the Minister of Transport
and the Minister of Fisheries and Oceans were bound by the
Environmental Assessment and Review Process Guidelines
Order and that this was an appropriate case to grant the
discretionary relief sought. Furthermore, it was held that the
Federal Court had jurisdiction over the provincial Crown and
that the latter was not immune from the provisions of the
Navigable Waters Protection Act.
comprehensive environmental impact review for the Oldman
River project. In September, 1987, the federal Minister of
Transport approved construction of the dam.
As of March, 1989 construction of the dam was 40% com
plete. It was expected that the reservoir created by the dam
would be filled in the spring of 1991.
Notice of motion in the instant case was filed in April, 1989.
This was an application for certiorari quashing the approval
issued by the Minister of Transport pursuant to the NWPA; for
mandamus directing the Minister of Transport to comply with
the Environmental Assessment and Review Process Guidelines
Order; for a declaration that the Department of Fisheries and
Oceans was the initiating department for the purposes of the
Guidelines Order; and for mandamus requiring the Minister of
Fisheries and Oceans to comply with the Guidelines Order.
The four main issues were 1) the standing of the applicant to
bring this application; 2) whether the Ministers of Transport
and Fisheries and Oceans were bound to invoke the Guidelines
Order with regards to the Oldman River project; 3) the applic
ability of the decision in Canadian Wildlife Federation to the
facts of this case; and 4) whether this was an appropriate
situation to favourably exercise the Court's discretion and grant
the requested remedies.
Held, the application should be dismissed.
For the purposes of this application only, it was assumed that
the applicant had sufficient status.
It was argued that the Minister's approval under subsection
5(1) of the NWPA should be set aside for his failure to trigger
environmental review pursuant to the Guidelines Order. The
difficulty with this, however, was that the NWPA set out no
requirement for environmental review of any sort, nor did the
Department of Transport Act require the Minister to consider
environmental factors in carrying out his duties. And the
Minister of Transport being restricted to consideration of fac
tors affecting marine navigation when issuing approval, he was
without authority to require environmental review. Mandamus
therefore could not be granted. Nor did the approval fall under
any of the conditions for the issuance of a writ of certiorari.
The Minister of Fisheries and Oceans cannot be required to
proceed with environmental review because his department has
not undertaken a project. The Department is not bound by the
Guidelines Order because it is not an "initiating department"
within the meaning of the Order and because it has not
received a proposal requiring its approval. Mandamus therefore
cannot issue to order the Minister to proceed with such a
review.
Environmental factors are not raised under either of the
Fisheries Act or the Department of Fisheries and Oceans Act
and there would be no justification for the Minister of Fisheries
and Oceans to involve the Minister of the Environment, nor to
trigger the Guidelines Order.
In the case of Canadian Wildlife Federation, certiorari and
mandamus were granted to stop construction of dams on the
Souris, an international river. That case was clearly distinguish
able. The applicable legislation therein was the International
River Improvements Act and it required the prior approval of
the Minister of the Environment. Here, no prior approval of
any federal Minister was necessary. In that case, the Guidelines
Order was brought into play because the Minister of the
Environment was directly involved.
This was not a situation where the Court should favourably
exercise its discretion and grant the remedies sought. Many of
the members of the applicant were individually aware of and
opposed to the project from the early 1970's. Yet this motion
was not filed until April 1989, nearly two years after approval
was granted and when the project was 40% complete. There
was no justification for allowing all of this activity to take place
before bunching the present attack. Furthermore, the extent
and comprehensive nature of the environmental review carried
out by the Province of Alberta negated the need for the exercise
of discretion by granting the relief sought. It would only bring
about needless repetition of a process which has been exhaus
tively canvassed over the past twenty years.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
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. 91(12).
Department of Fisheries and Oceans Act, R.S.C., 1985,
c. F- I 5.
Department of the Environment Act, R.S.C., 1985, c.
E- I 0, s. 6.
Department of Transport Act, R.S.C., 1985, c. T-18.
Environmental Assessment and Review Process Guide
lines Order, SOR/84-467, ss. 2, 3, 5, 6, 8, 10, 12, 13,
21, 22.
Federal Court Rules, C.R.C., c. 663, R. 603.
Fisheries Act, R.S.C., 1985, c. F-14, ss. 35, 37(1),(2),
40(1).
International River Improvements Act, R.S.C., 1985, c.
I-20.
Navigable Waters Protection Act, R.S.C., 1985, c. N-22,
ss. 4, 5(1), 6(4).
Navigable Waters Works Regulations, C.R.C., c. 1232,
ss. 4, 5, 6, 7.
Water Resources Act, R.S.A. 1980, c. W-5.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Canadian Wildlife Federation Inc. v. Canada (Minister
of the Environment), [ 1989] 3 F.C. 309; [1989] 4
W.W.R. 526; (1989), 26 F.T.R. 245 (T.D.), affd by
(1989), 99 N.R. 72 (F.C.A.).
REFERRED TO:
Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R.
607; 33 D.L.R. (4th) 321; (1986), 71 N.R. 338; [1987] 1
W.W.R. 603; 23 C.P.C. (2d) 289; 23 Admin. L.R. 197.
COUNSEL:
Kim C. Roberts for applicant, Friends of the
Oldman River Society.
Brian J. Saunders for respondents, Minister
of Transport and Minister of Fisheries and
Oceans.
Andrea B. Moen for respondent, Her Majesty
the Queen in Right of Alberta as represented
by the Minister of Public Works, Supply and
Services.
SOLICITORS:
Nadler, Thau, Roberts & Lee, Vancouver, for
applicant, Friends of the Oldman River
Society.
Deputy Attorney General of Canada for
respondents, Minister of Transport and Min
ister of Fisheries and Oceans.
Milner & Steer, Edmonton, for respondent,
Her Majesty the Queen in Right of Alberta as
represented by the Minister of Public Works,
Supply and Services.
The following are the reasons for order ren
dered in English by
JEROME A.C.J.: This matter came on for hear
ing at Edmonton, Alberta on July 21, 1989. On
August 11, 1989 I dismissed the application from
the bench and indicated that these written reasons
would follow. The application is for:
1) an order by way of certiorari quashing the
approval issued by the Minister of Transport
pursuant to the Navigable Waters Protection
Act, R.S.C., 1985, c. N-22 (hereinafter
NWPA) granting permission to carry out
works in relation to construction of a dam on
Oldman River;
2) a writ of mandamus directing the Minister of
Transport to comply with the Environmental
Assessment and Review Process Guidelines
Order, SOR/84-467 (hereinafter, the "Guide-
lines Order") in relation to the application by
the Alberta Department of the Environment
for an approval under the NWPA;
3) a declaration that construction and operation of
the dam has had and/or may have an environ
mental effect in the area of federal responsibili
ty relating to inland and coastal fisheries and
that the Department of Fisheries & Oceans is
the initiating department for the purposes of
the Guidelines Order; and
4) a writ of mandamus requiring the Minister of
Fisheries and Oceans to comply with the
Guidelines Order, in relation to construction of
the dam.
The facts in this matter are outlined in the
affidavits filed in support of each of the parties'
positions and the cross-examinations conducted
thereupon.
In May, 1958 as part of a preliminary analysis
of potential water storage sites, the Alberta gov
ernment requested the Prairie Farm Rehabilitation
Administration (PFRA) of the federal Depart
ment of Agriculture to determine the feasibility of
constructing a water storage reservoir at a site
called Livingstone Gap. The PFRA submitted its
report in December, 1966 raising doubts about the
Livingstone Gap site but suggesting the Three
Rivers site on the Oldman River (the site eventual
ly chosen) for further investigation. Accordingly
the Alberta Department of the Environment,
through the formation of an eighteen member
Technical Committee, initiated Phase I of the
Oldman River Planning Studies in July, 1974
which dealt with water demand and potential stor
age sites on the Oldman River and its tributaries.
In July, 1976 the reports of the Technical Com
mittee dealing with water demand, water supply
and environmental considerations including parks,
recreation, fish, wildlife, archaeology, sedimenta
tion and water quality were released to the public.
Volume Three of the report dealt with preliminary
environmental and social impacts of identified
water storage sites.
The public was given the opportunity to respond
to those reports in public meetings and through
written submissions. From these responses, issues
were identified and Phase II Planning Studies
were commenced. The Phase II studies were car
ried out by a six member Management Commit
tee, the purpose of which was to make recommen
dations regarding overall water management in the
Oldman River Basin, incorporating the concerns of
area residents, including such issues as saliniza-
tion, sedimentation, recreation, fish habitat and
other environmental issues relating to various dam
sites. The Management Committee provided for
information exchange with the public through
various forums:
—press releases and conferences;
—open house public information exchange ses
sions;
—twenty-two meetings on local levels;
—public workshops addressing concerns raised by
the public; and
—meetings with various affected groups, as well as
public interest groups.
The final report of the Phase II studies was
released in August, 1978 and over 3,000 copies
were distributed to libraries, groups and individu
als. Information centres were established across
the Basin to provide residents with the opportunity
to review and comment on the report.
In July, 1978 the Environment Council of
Alberta (ECA) was ordered to hold public hear
ings on the management of water resources within
the Oldman River Basin. The terms of reference
included consideration of conservation, manage
ment and utilization of water resources within the
Basin, and the merits of alternative means of
providing for future water requirements. Ten
public meetings were held in an informal, non-
judicial atmosphere and 200 presentations were
received representing the interests of businesses,
agricultural committees, Indian Bands, local gov
ernments, environmental and other special interest
groups and individuals. In its report submitted
August, 1979 the ECA recommended that if a
dam was necessary, the Brockett site be considered
over the Three Rivers site.
The Alberta government announced plans in
August, 1980 to build a dam on the Oldman River
but the decision regarding the exact site was
deferred until submissions were received from the
Peigan Indian Band, as the Brockett site suggested
by the ECA was located on the Peigan Reserve.
The Weasel Valley Studies conducted by the
Peigan Indian Band covered matters including:
social-economic impacts, water use for industry,
land irrigability classification, wildlife resources,
historical resources inventory, water quality, fish
resources and potential recreational development.
In 1981 the Regional Screening and Co-ordinat-
ing Committee (RSCC), a committee of the feder
al Department of the Environment, registered and
reviewed the Alberta proposal to construct a dam
on the Oldman River. The RSCC is composed of
officials from Environment Canada, the Depart-
ments of Fisheries and Oceans and Forestry
Canada and its purpose is to ensure that proposals,
initiatives, undertakings or activities which may
have environmental implications of concern to the
federal government are subjected to appropriate
environmental review. All projects which may have
environmental implications for federal lands or
other federal interests are registered and examined
to determine the exact federal lands or interests
affected, potential environmental impacts, and
possible action to address the concerns of the
participating bodies of the RSCC. The project on
the Oldman River was actively followed by the
RSCC until 1984 when it was decided that the
dam would not be built on Indian lands. In 1987
the RSCC received a request from the Department
of Indian and Northern Affairs to evaluate the
impact of the project on the Peigan Indian Reserve
located a short distance downstream from the
Three Rivers site. It was concluded that generally
the effects would be either favourable or mitigable.
On August 8, 1984 the Alberta government
announced that a dam would be built at the Three
Rivers site on the Oldman River. At this point,
design of the dam commenced and development of
an Environmental Mitigation/Opportunities
Action Plan (the Plan) was initiated. The Plan
generated numerous studies relating to all areas of
environmental concern. Mechanisms were estab
lished providing for ongoing dissemination of
information to and input from the public. Six
sub-committees were formed focusing on recrea
tion, agriculture, land use, fish, wildlife, historical
resources and transportation which carried out
reviews and environmental assessments.
The Alberta Ministry of the Environment
appointed a Local Advisory Committee (LAC) in
January, 1985 to provide input on Regional and
Municipal District interests and area farming mat
ters, the relocation of reservoir crossings, local fish
and wildlife concerns, recreational opportunities
and the development of a reservoir land use plan.
As the Peigan Indian Reserve is located approxi
mately three kilometres downstream from the dam
site, the Alberta government agreed in 1986 to
fund the Peigan Band for an independent study on
the impact of the dam on the Band. For the
purposes of this study the Peigans were given
access to technical data, studies and Alberta per
sonnel and departments.
An application for approval under the NWPA
was made by the Alberta Department of the Envi
ronment on March 10, 1986 and in August of that
same year advertisements appeared in local news
papers regarding this application. Approval for
construction of the dam was issued by the federal
Minister of Transport on September 18, 1987. The
approval authorizes work in terms of its effect on
marine navigation, and a number of conditions
were imposed with regards to measures to be taken
to ensure vessel safety during and after construc
tion. The approval also required that the work
commence within six months and be completed
within three years from the date of issuance of the
approval.
In May, 1986 the governments of Alberta and
Canada entered into an agreement concerning
environmental impact assessments of projects in
the province. Alberta was to apply its environmen
tal assessment procedures where primary responsi
bility for the approval of development initiatives
was within its constitutional jurisdiction. It was
agreed that Alberta shall ensure that the relevant
interests and concerns of the federal government
are included and addressed in any environmental
impact assessment procedures undertaken.
Construction of works related to the dam was
commenced in the fall, 1986 and the contract for
the construction of the dam was awarded to Ste-
venson Construction in February, 1988. In that
same month the Alberta Minister of the Environ
ment issued an interim licence pursuant to the
Alberta Water Resources Act [R.S.A. 1980, c.
W-5] authorizing construction of the dam for the
purpose of impounding water for water manage
ment, flood control, flow regulation, conservation
and recreation. The licence imposed conditions
pertaining to the monitoring and measuring of the
water flow and elevation, complaints relating to
water supply sources affected by the dam, bridge
and utility modifications, as well as requiring an
operation strategy including an instream flow
release plan, a fishery and wildlife mitigation plan,
a flood action plan, a normal operations plan and
an emergency preparedness plan.
Following the issuance of the licence, construc
tion on the dam commenced. It is expected that
the reservoir created by the dam will be filled in
the spring of 1991. As of March, 1989 construc
tion of the dam was 40% complete. The estimated
budget for the dam and its related works was
$353.3 million.
The applicant, Friends of the Oldman River
Society, was formed in 1987 to oppose construc
tion of the dam on the Oldman River. Current
membership is approximately 500 and includes
people who allegedly are or will be affected by
construction of the dam, those that used to live on
the land that will be flooded or who use the land
for fishing, hunting, canoeing and other activities.
The Southern Alberta Environmental Group
forwarded a letter to the Minister of Fisheries and
Oceans in August, 1987 setting out concerns
regarding construction of the dam and requesting
that an initial environmental assessment and
public review be established pursuant to the
Guidelines Order. The Minister responded that he
would not be intervening in the matter since his
regional staff had consulted with provincial gov
ernment biologists who are responsible in Alberta
for the day to day administration of fisheries
management issues and potential problems
associated with the dam were being addressed.
Later that same year the applicant forwarded a
letter to the federal Minister of the Environment
setting out its concerns regarding the dam and
referring to the unwillingness of the Minister of
Fisheries and Oceans to comply with the Guide
lines Order and requesting that the Minister of the
Environment ensure compliance with the said
Order.
The Office of the Minister of the Environment
responded that as the federal government is not
directly involved with the proposal it would be
inappropriate for Environment Canada or Fisher
ies and Oceans Canada to intervene directly. It
was noted that Environment Canada had responsi
bility to ensure that the pollution control provi
sions of the Fisheries Act [R.S.C., 1985, c. F-14]
are implemented and reviews had already been
carried out in that regard. In her letter the Minis
ter's Special Assistant concluded that: "In view of
the long-standing administrative arrangements
that are in place for the management of the envi
ronmental impact assessment proposals and the
fisheries in Alberta, and because the potential
problems associated with the dam are being
addressed, it is not appropriate for Environment
Canada to intervene."
The applicant again requested the federal Min
ister of the Environment in February, 1988 that
the project be the subject of review under the
Guidelines Order. The Minister's Special Assistant
reiterated that: "the Oldman River dam project is
a provincial initiative involving provincial land,
and is not subject to the federal Environmental
Assessment and Review Process. The federal gov
ernment, therefore, has no authority to intervene
and stop construction of the diversion tunnels and
dam."
It is the applicant's position that the Guidelines
Order mandates a consideration of the environ
mental impact of the project as it applies to areas
of federal responsibility. As the dam will have
environmental effects in federal areas of responsi
bility such as navigable waters and fisheries, the
Ministers of Fisheries and Oceans and Transport
have failed to meet their statutory obligations
under the Guidelines Order by not carrying out
the required environmental assessment.
In response to the province's position that it is
not bound by the NWPA, the applicant maintains
that the province is required to seek the approval
of the Minister of Transport pursuant to section 4
of that Act. In the alternative, it is argued that the
province is bound since it has already subjected
itself to the Act by applying for and obtaining
approval under section 5. The applicant also points
out that the federal government has authority for
sea coast and inland fisheries pursuant to subsec
tion 91(12) 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 I) [R.S.C., 1985, Appendix II,
No. 5]] and according to the provisions of the
Fisheries Act, R.S.C., 1985, c. F-14 any work that
would result in harmful alteration of fish habitat
must be authorized by the Minister. It is submit
ted that the province has not sought this approval,
nor can the federal government delegate this au
thority to the province.
Once federal responsibility for these areas of
concern is established, the applicant argues that
pursuant to sections 2, 3, 10, 12, 13, 21, and 22 of
the Guidelines Order, the Ministers of Fisheries
and Oceans and Transport are "decision making"
authorities with regards to this proposal. They
become therefore "initiating departments" and are
required to subject this proposal to an initial
screening, and then refer it to the federal Minister
of the Environment for public review since there
are significant environmental implications and
public concern is such that public review is desir
able. Since the Minister of Transport has not
complied with the Guidelines Order, certiorari
should issue to quash the approval issued under the
NWPA and mandamus should issue against the
Ministers of Transport and Fisheries and Oceans
to compel compliance with the Guidelines Order.
The applicant further contends that section 8 of
the Guidelines Order regarding duplication avoid
ance is not applicable here as the Ministers and
Departments of Transport and Fisheries and
Oceans are not a board, agency or regulatory body
as defined by the Order. Even if the section was
applicable, there would be no duplication because
the proposal has not been reviewed by a body
having the responsibilities of the Ministers of
Transport and Fisheries and Oceans, nor has there
been a public review as contemplated by the
Order.
On the question of the Court's discretionary
nature of the relief sought, the applicant advances
three arguments. First, the purpose of the Guide
lines Order to provide an opportunity for environ
mental review will be defeated if this application is
not granted. Second, the applicant has been dili
gent in requesting public review since its forma
tion, and did not bring this application sooner due
to legal advice that mandamus would not lie with
respect to non-compliance with the Guidelines
Order. With the decisions in Canadian Wildlife
Federation Inc. v. Canada (Minister of the Envi
ronment), [1989] 3 F.C. 309; [1989] 4 W.W.R.
526; (1989), 26 F.T.R. 245 (T.D.); (affd by
(1989), 99 N.R. 72 (F.C.A.)); Finlay v. Canada
(Minister of Finance), [1986] 2 S.C.R. 607; 33
D.L.R. (4th) 321; (1986), 71 N.R. 338; [1987] 1
W.W.R. 603; 23 C.P.C. (2d) 289; 23 Admin. L.R.
197, the applicant realized the possibility of the
availability of these remedies to a public interest
group and the failure to file sooner was not a result
of bad faith. Third, mandamus issued in the
Canadian Wildlife case and the facts here are not
dissimilar.
Finally, the applicant relies on Finlay for the
principle that public interest standing is a matter
of judicial discretion that must be exercised within
the parameters of the following four fold test:
1) Is there a justiciable issue?
2) Is there a serious issue?
3) Does the plaintiff have a genuine interest in the
issue?
4) Is there no other reasonable and effective
manner in which the issue may be brought
before the Court?
The applicant maintains it satisfies this test and
has standing to bring this motion.
Counsel for the respondents, the Ministers of
Transport and Fisheries and Oceans argues that
federal departments are not obliged to invoke the
process of the Guidelines Order just because a
project may have environmental impact on an area
over which Parliament has legislative competence.
In order for the Guidelines to apply, a federal
department must participate in the sense of
making a decision in connection with a provincial
project, as was held in the Canadian Wildlife case.
Furthermore, it is contended that while the prov
ince is bound by the NWPA, the Guidelines Order
does not apply to the Minister of Transport
making decisions under the NWPA. Approval
under that Act authorizes work only in terms of its
effect on marine navigation and in granting such
approval under subsections 5(1) or 6(4) the Minis
ter may only take into consideration matters relat
ing to the project's effect on marine navigability.
In addition, the NWPA provides for approval
either before, during or after construction of a
project and is thereby inconsistent with the Guide
lines Order which contemplates occurrence of the
environmental review process before irrevocable
decisions are taken.
Similarly, it is contended that the Department
of Fisheries and Oceans is not bound by the provi
sions of the Guidelines Order in that it is not an
"initiating department" faced with a "proposal"
thereunder as the Minister has not been called
upon to make a decision pertaining to the project,
nor has he made one. In addition, section 35 of the
Fisheries Act is inconsistent with the Guidelines
Order since the Minister's considerations there-
under are limited by the purpose of the section and
an application could not be refused for other
reasons.
Counsel for the Ministers of Transport and
Fisheries and Oceans further contends, based on
the reasoning in the Canadian Wildlife case, that
the Guidelines Order should not be applied where
a duplication of efforts undertaken by another
authority would occur. It is pointed out that in
conducting its environmental studies, Alberta has
examined areas of both federal and provincial
interest, as did the Peigan Indian Band.
It is also submitted that pursuant to Rule 603
[Federal Court Rules, C.R.C., c. 663] a declara
tion is not available by way of an originating
motion absent special circumstances, which do not
exist here.
Finally, this respondent argues that the discre
tionary remedies sought by the applicant should be
refused based on the unreasonable delay of the
applicant in bringing this application before the
Court and the duplication of the environmental
review process that would occur should the
application be allowed.
The respondent, Minister of Public Works,
Supply and Services for the Province of Alberta
argues that in the absence of clear language bind
ing the Crown in the right of any province, the
provisions of the NWPA do not require a province
to seek approval. If that proposition is sound, it
cannot be prejudiced by the mere fact that the
province has already sought and obtained such
approval nor could an order from this Court
quashing such approval in any way adversely
affect the right of the province to proceed with the
project. Counsel underlines the fact that Alberta
has withdrawn its application to the Minister and
indeed an order of this Court quashing it would be
welcomed by the province. Certainly should such
an order issue, the province has no intention of
making a fresh application. As a minimum result,
there is certainly no current proposal before the
Minister of Transport which could properly form
the basis of an order of mandamus.
Counsel for the province maintains that the
Minister of Fisheries and Oceans has no jurisdic
tion to order public review under the Guidelines
Order. Based on a plain and common sense read
ing of the provisions of the Guidelines Order and
the interpretation adopted by the Court in
Canadian Wildlife, a federal department must
have a "proposal" before it on which a decision
must be made before that department has jurisdic
tion to implement the Guidelines Order, and the
Minister of Fisheries and Oceans is not in that
position here. In Canadian Wildlife, it is argued,
the Court held that a "decision making responsi
bility" under the Guidelines Order means issuing a
licence or approval on a particular aspect of a
proposal.
All of the environmental assessments and public
review hearings that have occurred since the build
ing of the dam was initially discussed have been
outlined by the province and it is submitted that
this demonstrates that not only duplication, but
triplication, would occur if the Guidelines Order
was enforced. Furthermore, most of the activity
contemplated by it took place prior to the enact
ment of the "Guidelines Order" legislation. Should
the Court now enforce it, it would give the Order
retroactive effect, and ignore the effect of the
federal/provincial agreement intended to avoid
duplication. Retroactive force should not be
ascribed to new laws unless the law is clear that it
intends to have such effect. Here, that effect is not
clear and the Guidelines Order should not be
enforced on a project where the decision to pro
ceed was made prior to its enactment.
Further, the province maintains that the appli
cant cannot establish standing under Finlay as it
does not meet the test outlined therein. Neither the
applicant nor any of its members will be directly
affected by the building of the dam, nor do they
have any direct proprietary interest in the land
over which the dam is being built. In addition, the
issue relating to the Department of Fisheries and
Oceans could be dealt with by the criminal courts
under sections 35 and 40 of the Fisheries Act. It is
further argued that the applicant, which did not
exist throughout the planning stages of the dam,
should not now be able to challenge a project close
to completion on which millions of dollars of
public funds have been expended. Finally, it is
contended that standing should not be accorded to
single issue groups that simply challenge projects
at any time with impunity and without liability,
thereby creating an uncertain climate for govern
ment and business.
Finally, the province contends that based on the
equitable principle of laches it would be unjust to
grant the remedy sought in the circumstances of
this case. The applicant, knew of the NWPA
approval fifteen months before contesting it, which
constitutes an unreasonable delay. In addition, the
position of the parties has altered since the approv
al was granted, the dam now being 40% complete.
Finally the applicant's explanation that it did not
apply earlier because it did not have a legal opin
ion that the Guidelines Order could be enforced by
mandamus amounts to reliance on an ignorance of
the law excuse.
The relevant statutory provisions in this matter
are subsections 5(1) and 6(4) of the Navigable
Waters Protection Act:
5. (1) No work shall be built or placed in, on, over, under,
through or across any navigable water unless
(a) the work and the site and plans thereof have been
approved by the Minister, on such terms and conditions as
the Minister deems fit, prior to commencement of
construction;
(b) the construction of the work is commenced within six
months and completed within three years after the approval
referred to in paragraph (a) or within such further period as
the Minister may fix; and
(c) the work is built, placed and maintained in accordance
with the plans, the regulations and the terms and conditions
set out in the approval referred to in paragraph (a).
6....
(4) The Minister may, subject to deposit and advertisement
as in the case of a proposed work, approve a work and the plans
and site of the work after the commencement of its construction
and the approval has the same effect as if given prior to
commencement of the construction of the work.
Section 6 of the Department of the Environment
Act [R.S.C., 1985, c. E-10]:
6. For the purposes of carrying out his duties and functions
related to environmental quality, the Minister may, by order,
with the approval of the Governor in Council, establish guide
lines for use by departments, boards and agencies of the
Government of Canada and, where appropriate, by corpora
tions named in Schedule 111 to the Financial Administration
Act and regulatory bodies in the exercise of their powers and
the carrying out of their duties and functions.
Portions of sections 2, 3, 5 and 6 of the Guidelines
Order:
2....
"initiating department" means any department that is, on
behalf of the Government of Canada, the decision making
authority for a proposal;
"proponent" means the organization or the initiating depart
ment intending to undertake a proposal;
"proposal" includes any initiative, undertaking or activity for
which the Government of Canada has a decision making
responsibility.
Scope
3. The Process shall be a self assessment process under
which the initiating department shall, as early in the planning
process as possible and before irrevocable decisions are taken,
ensure that the environmental implications of all proposals for
which it is the decision making authority are fully considered
and where the implications are significant, refer the proposal to
the Minister for public review by a Panel.
5. (I) Where a proposal is subject to environmental regula
tion, independently of the Process, duplication in terms of
public reviews is to be avoided.
(2) For the purpose of avoiding the duplication referred to in
subsection (I), the initiating department shall use a public
review under the Process as a planning tool at the earliest
stages of development of the proposal rather than as a regulato
ry mechanism and make the results of the public review
available for use in any regulatory deliberations respecting the
proposal.
Application
6. These Guidelines shall apply to any proposal
(a) that is to be undertaken directly by an initiating
department;
(b) that may have an environmental effect on an area of
federal responsibility;
(c) for which the Government of Canada makes a financial
commitment; or
(d) that is located on lands, including the offshore, that are
administered by the Government of Canada.
And section 35 and subsections 37(1),(2) and
40(1) of the Fisheries Act:
35. (1) No person shall carry on any work or undertaking
that results in the harmful alteration, disruption or destruction
of fish habitat.
(2) No person contravenes subsection (1) by causing the
alteration, disruption or destruction of fish habitat by any
means or under any conditions authorized by the Minister or
under regulations made by the Governor in Council under this
Act.
37. (I) Where a person carries on or proposes to carry on
any work or undertaking that results or is likely to result in the
alteration, disruption or destruction of fish habitat, or in the
deposit of a deleterious substance in water frequented by fish or
in any place under any conditions where that deleterious sub
stance or any other deleterious substance that results from the
deposit of that deleterious substance may enter any such
waters, the person shall, on the request of the Minister or
without request in the manner and circumstances prescribed by
regulations made under paragraph (3)(a), provide the Minister
with such plans, specifications, studies, procedures, schedules,
analyses, samples or other information relating to the work or
undertaking and with such analyses, samples, evaluations, stud
ies or other information relating to the water, place or fish
habitat that is or is likely to be affected by the work or
undertaking as will enable the Minister to determine
(a) whether the work or undertaking results or is likely to
result in any alteration, disruption or destruction of fish
habitat that constitutes or would constitute an offence under
subsection 40(1) and what measures, if any, would prevent
that result or mitigate the effects thereof; or
(b) whether there is or is likely to be a deposit of a deleteri
ous substance by reason of the work or undertaking that
constitutes or would constitute an offence under subsection
40(2) and what measures, if any, would prevent that deposit
or mitigate the effects thereof.
(2) If, after reviewing any material or information provided
under subsection (1) and affording the persons who provided it
a reasonable opportunity to make representations, the Minister
or a person designated by the Minister is of the opinion that an
offence under subsection 40(1) or (2) is being or is likely to be
committed, the Minister or a person designated by the Minister
may, by order, subject to regulations made pursuant to para
graph (3)(b), or, if there are no such regulations in force, with
the approval of the Governor in Council,
(a) require such modifications or additions to the work or
undertaking or such modifications to any plans, specifica
tions, procedures or schedules relating thereto as the Minis
ter or a person designated by the Minister considers neces
sary in the circumstances, or
(b) restrict the operation of the work or undertaking,
and, with the approval of the Governor in Council in any case,
direct the closing of the work or undertaking for such period as
the Minister or a person designated by the Minister considers
necessary in the circumstances.
40. (1) Every person who contravenes subsection 35(1) is
guilty of an offence and liable
(a) on summary conviction, to a fine not exceeding five
thousand dollars for a first offence and not exceeding ten
thousand dollars for each subsequent offence; or
(b) on conviction on indictment, to imprisonment for a term
not exceeding two years.
The four main issues then, are 1) the standing of
the applicant to bring this application; 2) whether
the Ministers of Transport and Fisheries and
Oceans are bound to invoke the Guidelines Order
with regards to the Oldman River project; 3) the
applicability of the decision in Canadian Wildlife
to the facts of this case; and 4) whether this is an
appropriate situation to favourably exercise the
Court's discretion and grant the requested
remedies.
Since I have decided that this application cannot
succeed, I do not intend to deal with the question
of status in any depth. For the purposes of this
application only, and without prejudice to argu
ment at trial, if there is one, I will simply assume
and accept without deciding that the applicant has
sufficient status to bring this application before
the Court. The affidavit evidence claiming that the
Society represents individuals who use the prop
erty that will be affected by the project establishes
a personal interest. Though at trial this may be
found to be an inadequate interest, for the pur
poses of this application I accept it as sufficient.
Subsection 5(1) of the NWPA provides that no
work shall be built or placed in, through, or across
any navigable water unless the work, the site and
the plans have been approved by the Minister of
Transport. In issuing approval, the Minister is
entitled to impose terms and conditions. Here, the
terms and conditions related specifically to ensur
ing vessel safety during and after construction.
Further the section requires that the work be built,
placed and maintained in compliance with those
terms and conditions and in compliance with the
regulations. Sections 4, 5, 6 and 7 of the Navigable
Waters Works Regulations, C.R.C., c. 1232, out
line measures that the Minister must enforce with
regard to the building of any work in a navigable
water. These include proper installation of lights,
buoys and other markers, safety and debris control
on the site during and after construction, the
installation and operation of log chutes, safe pas
sage for the public around the work and provision
of the records of flow, elevation of water and all
other material relating to navigation that may be
required by the Minister. This application seeks to
set aside the Minister's approval under subsection
5(1) for his failure to trigger environmental review
pursuant to the Guidelines Order. The difficulty
with this premise is that the NWPA sets out no
requirement for environmental review of any sort,
nor does the Department of Transport Act,
R.S.C., 1985, c. T-18 require the Minister to
consider environmental factors in carrying out his
duties. As the Minister of Transport is restricted to
consideration of factors affecting marine naviga
tion when issuing approval, I find that he was
without authority to require environmental review.
Certiorari will issue where there is a lack of
jurisdiction, which includes acting upon irrelevant
considerations; a breach of the duty to act fairly;
or an error of law on the face of the record. I am
unable to conclude that the Minister of Transport
has erred under any of these categories. The
approval granted here was within the authority
accorded by the NWPA. Indeed any triggering of
the Guidelines Order by this Minister would have
required him to exceed the limits of his authority.
Certiorari should not therefore issue against the
Minister of Transport. Furthermore, since I have
found that there is no requirement in the NWPA
or the Department of Transport Act to invoke the
environmental review process, the requested order
for mandamus directing the Minister to comply
with that process is also refused.
Turning to the claim for an order of mandamus
against the Minister of Fisheries and Oceans, it
too is in difficulty. The basis of this relief is that
the Ministry is an "initiating department" as that
term is used in the Guidelines Order. The appli
cant is candid enough to admit that the relief is
sought by way of a declaration which in my opin
ion, is the proper avenue. Rule 603 dictates that
such relief can follow only as a result of trial
judgment and the applicant was good enough to
withdraw that portion of the motion. The applicant
maintains the claim for mandamus but again
unfortunately the relief seems to me to presume a
declaration. It would I think be entirely inappro
priate for me to conclude on affidavit evidence
such a vigorously disputed fact that this Ministry
was an "initiating department" within the terms of
the Guidelines Order. That matter is properly
resolved in the context of a trial.
Section 6 of the Department of the Environment
Act, R.S.C., 1985, c. E-10 states the Guidelines
Order is for use by departments, boards and agen
cies of the Government of Canada in exercising
their powers and carrying out their duties and
functions. The Guidelines Order itself is addressed
to those federal departments which are "initiating
departments" in connection with a "proposal".
The definitions of these terms require that the
federal department have decision making responsi
bility in relation to a project. Subsection 6(b)
provides that the Guidelines will apply to any
proposal that may have an environmental effect on
an area of federal responsibility.
I see no reason to conclude that in enacting the
Guidelines Order, Parliament had any intention of
extending such authority beyond federal agencies.
Clearly then, the Minister of Fisheries and Oceans
cannot be required to proceed with environmental
review because his department has not undertaken
a project. In the alternative, if the Guidelines can
be seen to extend to those projects initiated provin-
cially, then the use of the word "proposal" must
mean that a federal department will bring the
Guidelines into play if it in fact receives a proposal
requiring its approval. Since the Fisheries Act does
not contemplate an approval procedure for any
permit or licence, referral to environmental review
under the Guidelines Order is not required of the
Minister. It follows, therefore, that mandamus
cannot issue to order the Minister of Fisheries and
Oceans to proceed with such a review.
Equally important, the same doubts arise here
as I expressed in connection with the scope of the
Minister of Transport to take into account envi
ronmental factors under the NWPA. Even if the
Fisheries Act provided for issuance of a permit or
licence, the powers of the Minister to consider
factors is limited by the scope of that statute and
the Department of Fisheries and Oceans Act,
R.S.C., 1985, c. F-15. Environmental factors are
not raised under either of the statutes and I do not
believe there would be any justification for the
respondent Minister to involve the Minister of the
Environment, nor to trigger the Guidelines Order.
Turning then, to the distinctions from the
Canadian Wildlife decision. That case was an
application for certiorari to quash and set aside a
licence issued by the federal Minister of the Envi
ronment pursuant to the International River
Improvements Act [R.S.C., 1985, c. I-20] (herein-
after IRIA) to the Saskatchewan Water Corpora
tion to carry out works in connection with the
Rafferty-Alameda Project and an order for man-
damus requiring the Minister to comply with the
same Guidelines Order in question here in consid
ering the application for licence under the IRIA.
Dams, in this case, were being built on the Souris
River, an international river, and according to the
provisions of the IRIA a licence had to be issued
by the federal Environment Minister granting per
mission to carry out the works. The applicant
requested the Minister to carry out environmental
review under the Guidelines Order in considering
the licence application. This was not done and no
review by the province of Saskatchewan was
undertaken regarding the impact of the project in
North Dakota, U.S.A. or Manitoba, nor did
Manitoba proceed with any environmental review
itself. Saskatchewan did prepare an environmental
impact assessment for its own purposes.
The issues in the case were stated by my col
league Mr. Justice Cullen as [at page 316]:
I) whether the federal Minister of the Environment, before
granting a licence under the International River Improvements
Act and Regulations, is required to comply with the EARP
Guidelines Order; and
2) whether the federal Minister of the Environment, in grant
ing a licence to the respondent Saskatchewan Water Corpora
tion, exceeded his jurisdiction, in view of the fact that no
environmental assessment and review was carried out pursuant
to the EARP Guidelines Order.
The Court found that the purpose of the IRIA is
to safeguard the national interest in water resource
developments in international rivers and that the
legislation properly required that a licence be
issued before work on such developments can pro
ceed. It was held that issuing a licence under the
IRIA for this project constituted a "decision
making responsibility" for the purposes of the
Guidelines Order and since the Department of the
Environment Act, R.S.C., 1985, c. E-10 clearly
provides that the duties and functions of the Min
ister of the Environment extend to the preservation
and enhancement of the quality of the natural
environment, the Court concluded the Minister
was obligated to carry out an environmental
review pursuant to the Guidelines Order. The
Court also found that a number of federal con
cerns were not dealt with by the Provincial Envi
ronmental Impact Statement, so that imposition of
the Guidelines would not result in unwarranted
duplication.
I have concluded that the circumstances of this
case are significantly different from those in
Canadian Wildlife. In that case the statute
involved was the IRIA and prior approval of the
project by the Minister of the Environment was
required. Here, no prior approval of any federal
Minister is necessary. Though a licence must be
sought under the NWPA, this can occur even after
the project is commenced. Furthermore, in the
Rafferty Dam case, the Minister of the Environ
ment was directly implicated in the approval
sought by the Saskatchewan Water Corp., and his
statutory duties included consideration of environ
mental factors, which led directly to the applica-
tion of the Guidelines Order. There is no direct
involvement of the Minister of the Environment in
this case and I have already concluded that neither
the Minister of Fisheries and Oceans nor the
Minister of Transport are statutorily obligated to
deal with environmental considerations or apply
the Guidelines Order. Therefore, the result
obtained in Canadian Wildlife is not similarly
available to this applicant.
Finally, on the issue of the discretionary nature
of the relief sought, I turn to the history of this
project and the question of delay. Approval under
the NWPA was granted on September 18, 1987
following the publication in August 1986 of public
notices that Alberta's request for approval was
under consideration. No steps were taken to quash
the approval and to compel the application of the
Guidelines Order until this notice of motion was
filed on April 21, 1989. By that date the Oldman
River project was approximately 40% complete. I
would also note that even though the Society was
not formed, many of the members were individual
ly aware of and opposed to the project from the
early 1970's. The applicant was further aware of
the position taken by the Minister of Fisheries and
Oceans in August, 1987 that he did not intend to
intervene in the project. There is no justification
for allowing all of this activity to take place before
launching the present attack. It would be, in my
opinion, entirely inappropriate to grant the relief
sought at this time.
Nor can I ignore the extent and the comprehen
sive nature of environmental review carried out by
the Province of Alberta. I am satisfied that the
public review process carried out here has identi
fied every possible area of environmental social
concern and has given every citizen, including the
members of the applicant organization, ample op-
portunity to voice their views and to mobilize their
opposition. The exercise of discretion in favour of
the relief sought would, in my opinion, bring about
needless repetition of a process which has been
exhaustively canvassed over the past twenty years.
I am unable to conclude that this is the excep
tional case where the discretionary relief sought
should be awarded prior to trial. Accordingly, on
August 11, 1989 at Edmonton, Alberta, I dis
missed the application. No order as to costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.