A-48-90
Edelbert Tetzlaff and Harold Tetzlaff . (Appel-
lants/Cross respondents)
v.
Minister of the Environment (Respondent)
and
Saskatchewan Water Corporation (Respondent/
Cross appellant)
INDEXED AS: CANADIAN WILDLIFE FEDERATION INC. V.
CANADA (MINISTER OF THE ENVIRONMENT) (CA.)
Court of Appeal, Iacobucci C.J., Urie and Linden
JJ.A.—Winnipeg, November 22 and 23; Ottawa,
December 21, 1990.
Environment — Rafferty-Alameda Project — Minister of
Environment issuing licence to proceed with construction of
dams without appointing Environmental Assessment Panel to
conduct public review of environmental effects — Initial Envi
ronmental Evaluation finding some adverse environmental
impacts with varying degrees of mitigation — Trial Judge
directing appointment of Panel by certain date or licence
would be quashed — Environmental Assessment and Review
Process Guidelines Order (EARPGO), s. 12(c) eliminating need
for environmental review where adverse environmental effects
"insignificant" or "mitigable with known technology" — Two
terms equivalent — No express or implied obligation in
EARPGO to await Panel report before issuing licence —
Political accountability real sanction for not awaiting report.
Judicial review — Appeal and cross-appeal against Trial
Judge's order directing Minister of Environment to appoint
Environmental Assessment Panel by certain date on pain of
dam construction licence being quashed — Finding Minister
misconstrued Environmental Assessment and Review Process
Guidelines Order, s. 12(c) — Reference to Initial Environmen
tal Evaluation not to second-guess Minister, but to apply facts
to correct legal interpretation of s. 12(c) — Not applying
wrong standard of judicial review.
This was an appeal and cross-appeal from an order directing
the Minister of the Environment to appoint an Environmental
Assessment Panel under the Environmental Assessment and
Review Process Guidelines Order (EARPGO) to conduct a
public review of certain environmental effects of the Rafferty-
Alameda Project and further directing that, if the Panel was
not named by January 30, 1990, the construction licence issued
to Saskatchewan Water Corporation (Sask. Water) pursuant to
the International River Improvements Act be quashed. The
Project involved the construction of two dams. An Initial
Environmental Evaluation (IEE) had been prepared. It sug
gested that the altered flows and lake levels caused by the
Project would likely produce some adverse environmental
impacts with varying degrees of mitigation available. Public
meetings were held in Saskatchewan, Manitoba and North
Dakota. After referring to the IEE and the public meetings
which had taken place, the Minister found that any impacts
could be almost entirely mitigated and issued a licence without
appointing a Panel to conduct a public review. EARPGO,
paragraph 12(c) provides that a proposal may proceed if the
potentially adverse environmental effects are insignificant or
mitigable with known technology. The Trial Judge reviewed the
material before the Minister which formed the basis for the
Minister's decision, including the IEE. He identified various
environmental impacts and discussed information deficiencies
that made certain conclusions doubtful. In addition, Muldoon
J. reviewed what was said in the IEE as to the availability of
mitigation measures. Finally, he interpreted the EARPGO
provisions dealing with public review and applied that interpre
tation to the material before him. He held that the Minister
had acted unlawfully in not appointing a Panel pursuant to
sections 20 to 32 of the EARPGO. The appellants argued that
the Trial Judge had correctly ordered compliance with
EARPGO by requiring the appointment of a Panel, but that he
should have quashed the licence absolutely. They argued that
EARPGO, sections 3, 18, 31 and 33 evince an intention that
the Minister must await the Panel's report before issuing a
licence. Sask. Water argued that the Trial Judge erred in his
interpretation of "mitigable with known technology" in
EARPGO, paragraph 12(c). It argued that if paragraph 12(c)
is read in conjunction with section 14, mitigation measures do
not have to eliminate any potentially adverse effects to qualify
under paragraph 12(c), and that it is sufficient if the Minister
determines that they could prevent the adverse effects from
becoming significant. Sask. Water also argued that the Trial
Judge applied the wrong standard of judicial review in review
ing the Minister's findings of opinion and fact relating to the
Project, and, rather than confining himself to the question of
whether the Minister had erred in law or jurisdiction, he
erroneously reviewed the correctness of those findings on their
merits. The issues were whether EARPGO requires not only
referral to a Panel for public review but also that its report be
considered by the Minister prior to issuing a licence; and
whether the Trial Judge applied the wrong standard of judicial
review.
Held, the appeal and the cross-appeal should be dismissed.
The Trial Judge correctly interpreted paragraph 12(c) and
found the Minister's interpretation and conclusion to be errone
ous. The two bases in paragraph 12(c) for deciding whether
public review is warranted should be interpreted in the same
way so that "mitigable with known technology" is equivalent to
"insignificant" without applying known technology. "Mitigable
with known technology" should be interpreted as meaning
"renderable insignificant with known technology". Thus, there
are only two conditions envisioned in paragraph 12(c): insignifi
cant or significant. There cannot be a third condition of "less
than significant" because it would be impossible to determine
with any consistency. If an effect is not insignificant, it is by
definition significant, and only when environmental effects are
insignificant or with the application of known technology ren
dered insignificant can public review be avoided. If this inter
pretation will mean mandatory public reviews in almost every
case, that is a natural consequence of the words chosen and
highlights the importance of the public review in matters of this
kind. Section 14 puts an obligation on initiating departments to
ensure that mitigation and compensation measures are applied
to prevent "potentially adverse environmental effects ... from
becoming significant. As there are only significant and insig
nificant environmental effects, "effects from becoming signifi
cant" means mitigation and compensation measures must be
taken to make adverse effects "insignificant". As paragraph
12(c) was not available to the Minister, the environmental
effects were covered by paragraph 12(e) and possibly 12(b) and
(d), all of which require a public review by a Panel.
There is neither an express nor an implied requirement in
EARPGO that a licence not issue until the Panel has reported
following a public review. Section 31, which mandates the
Panel to submit a report containing its conclusions and recom
mendations for decisions by the appropriate Ministers, imposes
an obligation on the Panel to prepare and submit a report; it
does not specify that the Minister must await the report.
Section 32, which gives the Office power to "vary" any of the
requirements or procedures set out in sections 21 to 31 in any
review that involves "special circumstances", shows that the
Panel provisions were not intended to be mandatory since they
could be changed by the Office. What is required is that a
Panel be appointed and hopefully it will report before any
permanent decisions are made. The real sanction for not wait
ing for the Panel report is political accountability. The thrust of
sections 21 to 32 is for public involvement but that involvement
has not been elevated to curtailing or otherwise preventing
ministerial decisions that could be based on greater public
interest than waiting for the Panel report.
The Trial Judge did not apply the wrong standard of judicial
review. He referred to the findings reported in the IEE, not to
second-guess the Minister, but to ascertain whether the Minis
ter, in deciding whether or not to appoint a Panel for the public
review of the Project, had proceeded on a wrong principle,
taken into account legally irrelevant considerations or acted
beyond the scope of his authority. The purpose was to apply the
facts to the correct legal interpretation of section 12 which he
had earlier made. The effect of the Minister's misconstruction
of section 12 was that he had proceeded on a wrong principle.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Department of the Environment Act, R.S.C., 1985, c.
E-10, ss. 2, 4, 5, 6.
Environmental Assessment and Review Process Guide
lines Order, SOR/84-467, ss. 2, 3, 6, 10, 1 I, 12, 13, 14,
18, 31, 32, 33.
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.
Federal Court Rules, C.R.C., c. 663, R. 1102.
International River Improvements Act, R.S.C., 1985,
c. 1-20, ss. 2, 4, 5, 6.
International River Improvements Regulations, C.R.C.,
c. 982 (as am. by SOR/87-570), s. 10.
CASES JUDICIALLY CONSIDERED
APPLIED:
Naskapi-Montagnais Innu Assn. v. Canada (Minister of
National Defence), [1990] 3 F.C. 381 (T.D.).
DISTINGUISHED:
Canadian Wildlife Federation Inc. v. Canada (Minister
of the Environment), [1989] 3 F.C. 309; [1989] 4
W.W.R. 526; (1989), 37 Admin. L.R. 39; 3 C.E.L.R.
(N.S.) 287; 26 F.T.R. 245 (T.D.); Can. Wildlife Fed. Inc.
v. Can. (Min. of Environment), [1990] 2 W.W.R. 69;
(1989), 38 Admin. L.R. 138; 4 C.E.L.R. (N.S.) 1; 27
F.T.R. 159; 99 N.R. 72 (F.C.A.); Friends of the Oldman
River Society v. Canada (Minister of Transport),
[1990] 2 F.C. 18; (1990), 68 D.L.R. (4th) 375 (C.A.); Re
Braeside Farms Ltd. et al. and Treasurer of Ontario et
al. (1978), 20 O.R. (2d) 541; 88 D.L.R. (3d) 267; 5
M.P.L.R. 181; 4 R.P.R. 165 (Div. Ct.).
CONSIDERED:
Canadian Wildlife Federation Inc. et al. v. Canada
(Minister of the Environment) and Saskatchewan Water
Corp. (1989), 31 F.T.R. 1 (F.C.T.D.); Tetzlaffv. Canada
(Minister of the Environment), T-2230-89, Muldoon J.,
reasons for order dated 1/2/91 and supplementary reasons
for order dated 4/2/91, F.C.T.D., not yet reported;
Canadian Wildlife Federation Inc. v. Canada (Minister
of the Environment), [1990] 1 F.C. 595; (1989), 32
F.T.R. 81 (T.D.).
REFERRED TO:
Consumers' Association of Canada v. Attorney General
of Canada, [1979] 1 F.C. 433; (1978), 87 D.L.R. (3d) 33
(T.D.); Bakery and Confectionery Workers International
Union of America, Local No. 468 et al. v. White Lunch
Ltd. et al., [1966] S.C.R. 282; (1966), 56 D.L.R. (2d)
193; 55 W.W.R. 129; Re Rush and Township of Scugog
et al. (1978), 21 O.R. (2d) 592; 92 D.L.R. (3d) 143; 7
M.P.L.R. 196; 9 O.M.B.R. 21 (H. Ct.); Rowley v.
Petroleum and Natural Gas Conservation Board,
[1943] 1 W.W.R. 470 (Alta. S.C.); Monsanto Canada
Inc. v. Canada (Minister of Agriculture) (1988), 20
C.P.R. (3d) 193; 83 N.R. 279 (F.C.A.).
AUTHORS CITED
Shorter Oxford English Dictionary, vol. II, Oxford: Cla-
rendon Press, 1970, "mitigable", "mitigate".
COUNSEL:
Alan W Scarth, Q.C. and Gordon H. A.
Mackintosh for appellants (cross respond
ents).
Brian J. Saunders and Craig J. Henderson
for respondent.
D. E. Gauley, Q.C., R. G. Kennedy, C.
Wheatley and D. Wilson for respondent (cross
appellant).
SOLICITORS:
Thompson, Dorfman, Sweatman, Winnipeg,
for appellants (cross respondents).
Deputy Attorney General of Canada for
respondent.
Gauley & Company, Saskatoon, Saskatche-
wan, for respondent (cross appellant).
The following are the reasons for judgment
rendered in English by
IAcosucci C.J.: This is an appeal by two broth
ers, Edelbert and Harold Tetzlaff ("appellants"),
and a cross-appeal by the Saskatchewan Water
Corporation ("Sask. Water") from an Order' of
Mr. Justice Muldoon dated December 28, 1989
[(1989), 31 F.T.R. 1] directing the Minister of the
Environment ("Minister") to appoint an Environ
mental Assessment Panel ("Panel") under the
Environmental Assessment and Review Process
Guidelines Order ("EARPGO") 2 to conduct a
public review of certain environmental effects of
the Rafferty-Alameda Project ("Project") to be
described below. Pursuant to the same order, Mr.
Justice Muldoon further directed that, unless the
Minister appointed the Panel not later than 5:00
p.m. on January 30, 1990, the licence issued by the
' Appeal Book, Vol. 1, Tab 2.
2 Registration SOR/84-467, June 21, 1984.
Minister to Sask. Water for the Project pursuant
to the International River Improvements Act
("IRIA") 3 would be quashed.
Put in simple terms, the appellants argue that
Mr. Justice Muldoon's analysis was correct, but he
did not go far enough because he should have
quashed the licence unconditionally in order to
have the Panel conduct its review and make its
report to the Minister pursuant to the EARPGO
provisions prior to the issuance of the licence in
question. On the other hand, Sask. Water argues
by its cross-appeal that Mr. Justice Muldoon went
too far and his order should be set aside, or
alternatively that the appeal should be dismissed.
At the heart of the issues raised in the appeal
and cross-appeal is the interpretation to be given
to the EARPGO. The determination of these
issues is of considerable importance not only to the
parties and a wide group of affected people but
also to the scope and effect of federal environmen
tal legislation and regulations. Despite the impor
tance of the environmental issues before us, coun
sel for the Minister informed the Court he took no
position on either the appeal or cross-appeal,
apparently being satisfied with the judgment of
Muldoon J. and willing to put himself to the
guidance of this Court.
Background
The Souris River Basin consists of a number of
interrelated rivers which generally rise in Sas-
katchewan, flow into North Dakota, then back
into Manitoba and ultimately into Lake Winnipeg.
In particular, the Souris River follows this pattern
having its source in Saskatchewan, flowing into
North Dakota and back into Manitoba where it
enters the AssinibOine River. The Souris River,
like other "prairie rivers", is dependent on precipi
tation, snow melt in the spring and rainfall during
other times of the year such that often there is
either a flood or drought condition that results.
3 R.S.C., 1985, c. I-20.
Understandably water retention, storage and dis
tribution structures in the Basin have been dis
cussed and developed over many years.
On February 12, 1986, the Premier of Saskatch-
ewan, the Honourable Grant Devine, announced
that Saskatchewan would construct the Project.
Included in the Project was the building of two
Dams: the Rafferty Dam on the Souris River near
the town of Estevan, and the Alameda Dam on
Moose Mountain Creek, which flows into the
Souris near Alameda. The objectives of the Project
include flood control for Saskatchewan, North
Dakota and Manitoba, improved water-based
recreation facilities and irrigation facilities, great
er regional and municipal water supply security,
and the provision of cooling water for the Shand
Thermal Electric Generating Station being con
structed near Estevan.
The Government of Saskatchewan created the
Souris Basin Development Authority ("SBDA")
as a Crown corporation to plan, implement, and
manage the Project as agent for Sask. Water,
another Saskatchewan Crown corporation. SBDA
prepared a provincial environmental impact state
ment which was publicly released. Subsequently a
board of inquiry was constituted to review the
Project and to make recommendations to the Sas-
katchewan Minister of the Environment and
Public Safety who eventually granted authority to
proceed with the Project subject to a number of
conditions. On February 23, 1988, Sask. Water
granted SBDA approval to start construction of
the Rafferty Dam.
On June 17, 1988, the Minister issued a licence
to Sask. Water pursuant to the International River
Improvements Act with respect to the Project,
having determined that the review by Environment
Canada of the Saskatchewan environmental
impact statement together with the conditions
attached to the Saskatchewan licence were suffi
cient to protect the interests of the Federal Gov
ernment in connection with the Project.
However, the federal licence was quashed by the
order of Cullen J. on April 10, 1989 with man-
damus issuing to the Minister to comply with the
EARPGO. 4 This Court upheld the decision of
Cullen J. in this respect.'
The Minister then initiated a procedure to
comply with EARPGO by having:
(1) A draft Initial Environmental Evaluation
prepared and released to the public in June of
1989;
(2) A public consultation process chaired by an
independent Moderator and designed to receive
public opinion on the draft Initial Environmen
tal Evaluation; and
(3) The preparation of the final Initial Environ
mental Evaluation ("IEE") 6 in August of 1989.
The purpose of the IEE was to provide the
Minister with certain information which together
with submissions from the public could be used by
the Minister to decide whether to issue a second
licence in conformity with the EARPGO. 7 Public
meetings were held in Saskatchewan, Manitoba
and North Dakota and written submissions were
received.
On August 31, 1989, a second licence for the
Project was granted by the Minister under the
IRIA permitting construction to proceed subject to
the implementation of specified mitigation meas
ures. In a press conference on August 31, 1989,
the Minister apparently outlined his reasons for
granting the licence and not appointing a public
Canadian Wildlife Federation Inc. v. Canada (Minister of
the Environment), [1989] 3 F.C. 309 (T.D.). According to
Cullen J., the Project has an environmental impact on a
number of areas of federal responsibility: international rela
tions, transboundary water flows, migratory birds, interprovin-
cial affairs, and fisheries. Id., at. p. 323.
5 Can. Wildlife Fed. Inc. v. Can. (Min. of Environment),
[1990] 2 W.W.R. 69 (F.C.A.).
6 The final IEE consists of three volumes: Volume I: Techni
cal Report; Volume II: Public Consultation Process; and
Volume III: Moderator's Report. The TEE appears as Exhibits
to the affidavits of Gordon H. A. Mackintosh of October 16,
1989 (Exhibit A) and of Denis A. Davis of November 6, 1989
(Exhibit D). See Tabs 8 and 11, respectively, of the Appeal
Book.
See TEE, Volume 1, c. 12-1.
review panel under the EARPGO. 8 After referring
to: the IEE and public meetings conducted by the
Moderator, whom the Minister described as an
independent consultant, the Minister raised the
question whether the Project will create significant
adverse environmental effects which cannot be
mitigated. The Minister's answer to his question is
worth repeating. He said:
I am persuaded by the advice of the federal government's
most senior environmental experts, as well as by Mr. Millard's
[the Moderator's] report, that those [environmental] impacts
can be almost entirely mitigated. 9
This brief background description brings us to
the decision of Muldoon J. from which an appeal
and cross-appeal has been taken.
The Decision Below
Two section 18 [Federal Court Act, R.S.C.,
1985, c. F-7] proceedings were initiated in the
Trial Division against the licence: Canadian Wild
life Federation Inc. et al. v. Canada (Minister of
the Environment) and Saskatchewan Water Corp.
(1989), 31 F.T.R. 1 (F.C.T.D.) and Tetzlaff v.
Canada (Minister of the Environment), T-2230-89
[F.C.T.D., Muldoon J., reasons for order dated
1/2/91 and supplementary reasons for order dated
4/2/91, not yet reported]. 10 In both cases, extraor
dinary relief was sought by way of certiorari
quashing the licence issued by the Minister to
Sask. Water pursuant to the IRIA, and man-
damus requiring the Minister to comply with the
8 Appendix Ito Sask. Water's memorandum of fact and law
is a document entitled "Speech Discours" Notes for Remarks
by the Honourable Lucien Bouchard, Minister of the Environ
ment, August 31, 1989.
Id, at p. 2.
10 By order made ex mero motu, dated November 30, 1989
[[1990] 1 F.C. 595 (T.D.)], Muldoon J. struck out Sask. Water
as a respondent for want of jurisdiction in this Court but
allowed Sask. Water to participate as an intervenor and amend
ed the style of cause accordingly. See Appeal Book, Tab 4.
Sask. Water by notice of motion, dated November 19, 1990,
sought an order adding Sask. Water as a party respondent/
cross-appellant in these proceedings and this Court granted the
order requested relying on Friends of the Oldman River Socie
ty v. Canada (Minister of Transport), [1990] 2 F.C. 18 (C.A.),
at p. 52, and ordered the style of cause to be so amended. Sask.
Water also sought to adduce additional evidence pursuant to
Rule 1102 [Federal Court Rules, C.R.C., c. 663] but this was
denied.
EARPGO by appointing a Panel and referring the
Project to it, and otherwise complying with the
EARPGO. Although the respective applicants' in
terests were not identical particularly in that the
brothers Tetzlaff primarily seek to quash the
licence of the Minister in so far as it relates to the
proposed Alameda Dam on Moose Mountain
Creek," the Trial Judge issued one set of reasons
for both applications.
After a review of the background, the Trial
Judge stated the question before him was whether
the Minister had complied with the EARPGO in
deciding to issue the licence to Sask. Water or,
more specifically, whether the Minister, in failing
to appoint a Panel pursuant to sections 20 through
32 of the EARPGO, had acted unlawfully.
To answer the question before him, the Trial
Judge had to ascertain the applicable legal rules
and apply those rules to the relevant facts. With
respect to the facts, the IEE was of prime impor
tance because it was, as already stated, used by the
Minister in arriving at his decision to issue the
licence in conformity with the EARPGO.
According to the IEE, thè altered flows and lake
levels within the Souris River Basin caused by the
Project were expected to produce the following
adverse environmental impacts in a number of
areas with varying degrees of mitigation measures
available: 12
Significant Impacts
(1) reduced downstream flows aggravating
already poor water quality in the Souris River and
a diminished recreational value of the Souris;
(2) significant adverse effects on waterfowl pro
duction within Saskatchewan and North Dakota;
" The Tetzlaff brothers own a farm of about 1,120 acres at
Alameda which has been in the family since 1942 and which
the brothers have operated since 1949.
12 IEE, Vol. 1, at iii to v.
(3) reduced flows entering North Dakota and
associated water quality effects would result in a
decline and possible elimination of the fish popula
tion in Lake Darling, North Dakota;
(4) losses in fish habitat in Saskatchewan and
Manitoba;
(5) the loss of federal community pasture lands
because of the Project reservoirs;
(6) significant adverse effects on rare and endan
gered plant and animal species; and
(7) impacts on navigation.
Moderate Impacts
(1) reservoir releases would intermittently impact
on downstream water quality;
(2) mercury levels in fish tissue would increase in
the reservoirs and possibly downstream; and
(3) inundation of the Souris River valley by the
Rafferty reservoir would reduce critical habitat
and local populations of the Baird's Sparrow, a
threatened species.
The IEE then went on to discuss these environ
mental impacts within Saskatchewan, North
Dakota and Manitoba and then identified informa
tion deficiencies, explaining these as follows:"
Information Deficiencies
The preparation of this IEE relied primarily on the extensive
documentation previously prepared by the Project Proponent
(SBDA), other Saskatchewan provincial agencies, federal and
state agencies in the United States, Manitoba agencies, Envi
ronment Canada and other federal government departments.
Some additional data and information were compiled in the
areas of hydrology, water quality, rare and endangered species,
and migratory birds.
The lack of data and information for some areas of concern
have placed limitations on the extent to which Project impacts
can be assessed. The major areas of deficiency are categorized
below as being of significant or moderate importance.
13 IEE, Vol. 1, at ix.
The IEE then discussed some nine areas of what
were called "Significant Deficiencies" in informa
tion and four areas of "Moderate Deficiencies".
Muldoon J. quite properly reviewed the IEE
findings as the basis for the Minister's decision not
to appoint a Panel and for issuing the licence in
dispute. In doing so, the Trial Judge noted that the
classification in the IEE of "moderate" environ
mental impacts was not a term used in the
EARPGO. 14 In addition, the Trial Judge reviewed
the various environmental impacts and the infor
mation deficiencies mentioned above which made
certain conclusions doubtful or questionable. He
also examined the various assertions in the. IEE
relating to the extent that mitigation of the envi
ronmental impacts was available. His review of
these impacts, deficiencies, and mitigation meas
ures took place in the light of what he believed was
the way in which the EARPGO was to be inter
preted. Indeed, it is that interpretation, which will
be discussed below, that is the central issue in the
case.
In summary, the Trial Judge reviewed the ma
terial that was before the Minister which formed
the basis for his decision to issue the licence;
identified "significant adverse environmental
effects" as specified in the EARPGO and
described in the IEE and related documentation,
and discussed information deficiencies that made
certain conclusions doubtful, and discussed as well
the mitigation measures available; interpreted the
EARPGO provisions dealing with public review in
a certain way and applied that interpretation to
the material before him, and found the decision of
the Minister not to appoint a Panel to be unlawful;
and ordered mandamus requiring the Minister to
comply with the EARPGO Panel appointment
provisions, and in exercising his discretion ordered
"4 See reasons for order, Appeal Book, Tab 3, 12-13 [pp. 9-11
F.T.R.]. The EARPGO speaks only of significant or insignifi
cant impacts. Muldoon J. treated "moderate" impacts in the
IEE as significant since in his view they were "not insignifi
cant" and as such could only be "significant". He also said that
to be insignificant, an adverse impact cannot be moderate but
rather must be "without significance". As will be described
below, I agree with his analysis.
certiorari to quash the licence unless a Panel was
appointed prior to a specific time.
At this stage, I think it useful to refer briefly to
the legislative and regulatory provisions that are
relevant to the issues raised in the appeal and
cross-appeal.
An Overview of the Applicable Legislative and
Regulatory Provisions
The Minister issued a licence to Sask. Water
pursuant to the provisions of the IRIA and the
International River Improvements Regulations
("Regulations") 15 promulgated thereunder. It is
not disputed that the Project comes within the
definition of "international river improvement" in
the IRIA for which a licence is required by section
4. 16 Section 10 of the Regulations gives the Minis
ter a discretion to issue the licence."
15 C.R.C., c. 982 as amended by SOR/87-570.
16 Section 2 of the IRIA defines "international river improve
ment" as a
2....
... dam, obstruction, canal, reservoir or other work the
purpose or effect of which is
(a) to increase, decrease or alter the natural flow of an
international river, and
(b) to interfere with, alter or affect the actual or potential
use of the international river outside Canada;
Section 4 of the IRIA provides:
4. No person shall construct, operate or maintain an inter
national river improvement unless that person holds a valid
licence therefor issued under this Act.
Section 5 provides for offences for contravention of the TRIA
and section 6 deals with forfeiture by removal, destruction or
disposition by the Governor in Council of an international river
improvement constructed, operated or maintained in contraven
tion of the TRIA.
" Section 10 of the Regulations states:
10. (1) Where an applicant for a licence has supplied all
the information required by these Regulations the Minister
may
(a) issue to him a licence for a period not exceeding 50
years; and
(b) upon the expiration of any licence issue a further
licence for a period not exceeding 50 years.
(2) Each licence shall stipulate the terms and conditions
under which the international river improvement may be
constructed, operated and maintained, and the period for
which it is issued. [Emphasis added.]
Sections 4 and 5 of the Department of the
Environment Act 18 ("Environment Act") deal with
the powers, duties and functions of the Minister
and section 6 thereof enables him to establish
guidelines, by order with the approval of the Gov
ernor in Council, for use by departments, boards,
and agencies and other bodies of the Government
of Canada. These sections read as follows:
POWERS, DUTIES AND FUNCTIONS OF THE MINISTER
4. (1) The powers, duties and functions of the Minister
extend to and include all matters over which Parliament has
jurisdiction, not by law assigned to any other department,
board or agency of the Government of Canada, relating to
(a) the preservation and enhancement of the quality of the
natural environment, including water, air and soil quality;
(b) renewable resources, including migratory birds and other
non-domestic flora and fauna;
(e) water;
(d) meteorology;
(e) notwithstanding paragraph 4(2)(f) of the Department of
National Health and Welfare Act, the enforcement of any
rules or regulations made by the International Joint Commis
sion, promulgated pursuant to the treaty between the United
States of America and His Majesty, King Edward VII,
relating to boundary waters and questions arising between
the United States and Canada, in so far as they relate to the
preservation and enhancement of the quality of the natural
environment;
(J) the coordination of the policies and programs of the
Government of Canada respecting the preservation and
enhancement of the quality of the natural environment;
(g) national parks; and
(h) national battlefields, historic sites and monuments.
(2) The powers, duties and functions of the Minister also
extend to and include such other matters, relating to the
environment and over which Parliament has jurisdiction, as are
by law assigned to the Minister.
5. The Minister, in exercising his powers and carrying out
his duties and functions under section 4, shall
(a) initiate, recommend and undertake programs, and coor
dinate programs of the Government of Canada that are
designed
(i) to promote the establishment or adoption of objectives
or standards relating to environmental quality, or to con
trol pollution,
(ii) to ensure that new federal projects, programs and
activities are assessed early in the planning process for
potential adverse effects on the quality of the natural
environmental and that a further review is carried out of
those periods, programs, and activities that are found to
have probable significant adverse effects, and the results
thereof taken into account, and
18 R.S.C., 1985, c. E-10.
(iii) to provide to Canadians environmental information in
the public interest;
(b) promote and encourage the institution of practices and
conduct leading to the better preservation and enhancement
of environmental quality, and cooperate with provincial gov
ernments or agencies thereof, or any bodies, organizations or
persons, in any programs having similar objects; and
(c) advise the heads of departments, boards and agencies of
the Government of Canada on all matters pertaining to the
preservation and enhancement of the quality of the natural
environment.
GUIDELINES BY ORDER
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 III to the Financial Administration
Act and regulatory bodies in the exercise of their powers and
the carrying out of their duties and functions.
The guidelines contemplated by section 6 of the
Environment Act are the EARPGO which pro
vides for a Federal Environmental Assessment
Review Office ("Office") which oversees the
EARPGO as it applies throughout the Govern
ment of Canada. The EARPGO applies to
"proposal[s]" (defined as any initiative, undertak
ing or activity for which the Government of
Canada has a decision-making authority) under
taken by an "initiating department" 19 that
6....
(b) ... may have an environmental effect on an area of
federal responsibility; 20
Under this provision, the EARPGO applies to the
Project since it is an international river improve
ment under the IRIA for which a licence of the
Minister is required and which has an environmen
tal effect on an area of federal responsibility. 21
19 This term is defined in section 2 as "any department that
is, on behalf of the Government of Canada, the decision making
authority for a proposal". In this case the Department of the
Environment is the initiating department under the EARPGO
and the Minister is also the official who grants a licence under
the IRIA.
20 Section 6 of the EARPGO.
21 See Cullen J.'s comments in Canadian Wildlife Federation
Inc. v. Canada (Minister of the Environment) with respect to
the environmental impacts of the Project in several areas of
federal responsibility: supra, note 4.
The EARPGO contemplates two possible stages
of review. The first is an environmental screening
or initial assessment that must be undertaken by
the initiating department to determine whether
and to what extent there may be potentially
adverse environmental effects from the proposal. 22
The second stage is a public review process by an
independently established Environmental Assess
ment Panel that can be triggered by (i) the Minis
ter so deciding where public concern indicates a
public review is desirable, 23 (ii) the proposal being
of a type that is on a list that calls for automatic
referral to the Minister for public review by a
Panel, 24 and (iii) the initial assessment revealing
prescribed circumstances that call for public
review by a Pane1. 25 Where none of these catego
ries applies, the proposal can proceed without any
public review by a Panel. As categories (i) and (ii)
are acknowledged not to be applicable, 26 it is on
this last category that the parties in the appeal and
cross-appeal differ.
More particularly, the appellants argue that the
Trial Judge was correct in deciding that the provi
sions of paragraph 12(c) of the EARPGO were not
complied with by the Minister. Paragraph 12(c)
provides as follows:
12. Every initiating department shall screen or assess each
proposal for which it is the decision making authority to
determine if
(c) the potentially adverse environmental effects that may be
caused by the proposal are insignificant or mitigable with
22 See generally sections 10 to 17 of the EARPGO.
23 Section 13 of the EARPGO.
24 By the combined operation of paragraph 11(b) and para
graph 12(b) of the EARPGO.
25 Paragraphs 12(d) and (e). Paragraph 12(J), which deals
with unacceptable environmental effects calling for modifica
tion leading to possible abandonment of the proposal, was not
argued by either party as being applicable herein. Section 20
provides that, where a determination is made pursuant to
paragraph 12(b), (d) or (e) or section 13, the initiating depart
mental shall refer the proposal to the Minister for public
review.
26 Category (i), section 13 of the EARPGO, is not applicable
because the Minister has in effect decided no public review is
necessary. Category (ii), paragraphs I1(b) and 12(b), is not
applicable because we were informed at the hearing that the list
contemplated by these provisions has apparently not yet been
developed.
known technology, in which case the proposal may proceed
or proceed with the mitigation, as the case may be;
If the initial assessment procedure reveals that the
potentially adverse environmental effects that may
be caused by the proposal "are insignificant or
mitigable with known technology" the proposal, in
this case the Project, may proceed or proceed with
the mitigation, as the case may be. As the Trial
Judge found the Minister could not, on the basis of
the material before him, have come to that conclu
sion, the Project should have been referred to a
Panel for public review. In answer, Sask. Water
argues in its cross-appeal that the Trial Judge was
wrong in his interpretation of paragraph 12(c).
In my view, the Trial Judge was correct for the
reasons I will now discuss, but because the cross-
appeal raises issues which logically arise first, I
shall deal with those issues before dealing with the
issues in the appeal.
Cross-Appeal
The main argument raised by Sask. Water in its
cross-appeal is that Muldoon J. erred in his inter
pretation of the words "mitigable with known
technology" in paragraph 12(c) of the EARPGO.
Sask. Water also argued that the learned Judge
applied the wrong standard of judicial review in
respect of the Minister's findings of opinion and
fact relating to the Project and rather than confin
ing himself to the question of whether the Minister
had erred in law or jurisdiction, the Judge below
erroneously reviewed the correctness of those find
ings on their merits. Sask. Water also argued that
the Trial Judge erred in ordering mandamus
against the Minister.
To appreciate Sask. Water's arguments more
fully, I wish to set out the relevant provisions of
the EARPGO.
10. (1) Every initiating department shall ensure that each
proposal for which it is the decision making authority shall be
subject to an environmental screening or initial assessment to
determine whether, and the extent to which, there may be any
potentially adverse environmental effects from the proposal.
(2) Any decisions to be made as a result of the environmen
tal screening or initial assessment referred to in subsection (I)
shall be made by the initiating department and not delegated to
any other body.
11. For the purposes of the environmental screening and
initial assessment referred to in subsection 10(1), the initiating
department shall develop, in cooperation with the Office,
(a) a list identifying the types of proposals that would not
produce any adverse environmental effects and that would, as
a result, be automatically excluded from the Process; and
(b) a list identifying the types of proposals that would
produce significant adverse environmental effects and that
would be automatically referred to the Minister for public
review by a Panel.
12. Every initiating department shall screen or assess each
proposal for which it is the decision making authority to
determine if
(a) the proposal is of a type identified by the list described
under paragraph 11(a), in which case the proposal may
automatically proceed;
(b) the proposal is of a type identified by the list described
under paragraph 11 (b), in which case the proposal shall be
referred to the Minister for public review by a Panel;
(c) the potentially adverse environmental effects that may be
caused by the proposal are insignificant or mitigable with
known technology, in which case the proposal may proceed
or proceed with the mitigation, as the case may be;
(d) the potentially adverse environmental effects that may be
caused by the proposal are unknown, in which case the
proposal shall either require further study and subsequent
rescreening or reassessment or be referred to the Minister for
public review by a Panel;
(e) the potentially adverse environmental effects that may be
caused by the proposal are significant, as determined in
accordance with criteria developed by the Office in coopera
tion with the initiating department, in which case the pro
posal shall be referred to the Minister for public review by a
Panel; or
(f) the potentially adverse environmental effects that may be
caused by the proposal are unacceptable, in which case the
proposal shall either be modified and subsequently
rescreened or reassessed or be abandoned.
13. Notwithstanding the determination concerning a pro
posal made pursuant to section 12, if public concern about the
proposal is such that a public review is desirable, the initiating
department shall refer the proposal to the Minister for public
review by a Panel.
14. Where, in any case, the initiating department determines
that mitigation or compensation measures could prevent any of
the potentially adverse environmental effects of a proposal from
becoming significant, the initiating department shall ensure
that such measures are implemented.
According to Sask. Water, paragraph 12(c),
which permits a proposal to proceed without public
review by a Panel if the potentially adverse envi
ronmental effects are "insignificant or mitigable
with known technology", must be read in conjunc
tion with the only other EARPGO provision deal
ing with mitigation, namely section 14. Sask.
Water says section 14 specifies the standard to be
applied under paragraph 12(c) in determining
whether the potentially adverse environmental
effects of a proposal are "mitigable with known
technology". Under this argument section 14 pro
vides that adverse effects are "mitigable" if "miti-
gation or compensation measures could prevent
any of the potentially adverse environmental
effects of a proposal from becoming significant".
It is clear therefore from section 14 that the
mitigation measures do not have to eliminate any
potentially adverse effects to qualify under para
graph 12(c). It is sufficient if the Minister deter
mines that the mitigation or compensation meas
ures could prevent the adverse effects from
becoming significant.
I do not agree with this argument. Section 14
puts an obligation on initiating departments to
ensure that mitigation and compensation measures
are applied to prevent potentially adverse environ
mental effects from becoming significant. As will
be discussed below, there are two kinds of adverse
environmental effects in the Panel provisions of the
EARPGO: significant or insignificant. Conse
quently I interpret "effects from becoming signifi
cant" in section 14 as another way of saying that
mitigation and compensation measures must be
taken to make the adverse effects "insignificant".
Counsel for Sask. Water also supports its argu
ment by referring to the dictionary meaning of
"Mitigable": capable of being mitigated; "Miti-
gate": To alleviate . .. To reduce the severity of
... To moderate .... 27 Thus the reference in para
graph 12(c) of the EARPGO to "mitigable" does
not impose an unattainable standard of complete
27 See Shorter Oxford English Dictionary (1970 edition).
elimination of any potentially adverse environmen
tal effects before a proposal can proceed after the
initial assessment without public review.
However, to repeat, section 12 and paragraph
12(c) in particular deal with a determination of
when a proposal will or will not be sent for public
review. Where the adverse environmental effects
that may be caused by the proposal are insignifi
cant or mitigable with known technology, the pro
posal can proceed without public review. From a
logical and contextual point of view, the words
"mitigable with known technology" should be
interpreted as parallel or equivalent to "insignifi-
cant" without applying known technology. Surely
the two bases for deciding whether public review is
warranted should be interpreted in the same way.
If so, the words "mitigable with known technolo
gy" should be interpreted as meaning in effect,
"renderable insignificant with known technology".
That interpretation would treat the phrase "miti-
gable with known technology" as having the same
meaning as insignificant without the application of
known technology.
In other words, there are only two conditions
envisioned in paragraph 12(c): insignificant or sig
nificant. Sask. Water argues there are not two
conditions but three: insignificant, less than sig
nificant, and significant. I reject this since, for
example, how does one determine how "less than
significant" an environmental impact has to be? It
does not make sense to have public review depend
on a series of environmental impacts each having
less than significant effect but each in turn differ
ing from one another. I agree with Muldoon J.
that, if an effect is not insignificant, it is by
definition significant, and only when environmen
tal effects are insignificant or with the application
of known technology rendered insignificant can
public review be avoided. Counsel for Sask. Water
said such an interpretation will mean public
reviews will be mandatory in almost every case but
if that is so, that is a natural consequence which
flows from the words chosen and serves to high
light the importance of the public review in mat
ters of this kind.
In my view, Muldoon J. in effect correctly inter
preted paragraph 12(c) and found the Minister's
interpretation and conclusion based on it to be
erroneous in law. As paragraph 12(c) was there
fore not available to the Minister, the Trial Judge
concluded that the environmental effects in ques
tion were covered most likely by paragraph 12(e)
as well as possibly 12(b) and 12(d). 28 In each case,
however, a public review by the Panel is required.
As earlier pointed out, the second branch of
Sask. Water's argument was that the learned
Judge applied the wrong standard of judicial
review in respect of the Minister's findings of fact
and of opinion relating to the Project in that he
purported to review those findings on their merits.
To do so, it was argued, had the effect of substitut
ing his opinion for that of the Minister. The
jurisprudence is replete with cases cautioning a
court, sitting in judicial review of a decision by a
statutory authority, from interfering with that
decision merely because the Court might have
differently decided the matter had it been charged
with that responsibility. If that is what the learned
Judge did in this case, then I agree that he erred in
so doing.
However, as I read his reasons, I do not perceive
that that was what he did. There is no doubt that,
inter alia, he referred to the findings reported in
the IEE on the question of significant, moderate
and insignificant adverse environmental effects, on
information deficiencies, and on mitigation meas
ures. But he did so, not with a view to second-
guessing the Minister. Rather, quite properly, he
was endeavouring to ascertain whether the Minis
ter, in deciding whether he should or should not
appoint a Panel for the public review of the
Project, had proceeded on a wrong principle, taken
into account legally irrelevant considerations or
otherwise acted beyond the scope of his authority.
Unfortunately, the learned Judge did not couch his
reasons to show unmistakably that that was the
purpose of his review of the evidence. However,
the following finding clearly indicates the purpose
was to apply the facts to the correct legal interpre-
28 As already mentioned, the list mentioned in paragraph
12(b) is not in existence so that paragraph does not apply.
tation of section 12 which he had earlier made.
The Trial Judge said:
Now, since there is, at least, one and surely other, significant
adverse environmental effects which cannot be mitigated with
known technology or otherwise rendered insignificant, it is clear
that the Minister could not correctly have invoked paragraph
12(c) of the EARP Guidelines in deciding—if he did effectively
make such decision—to issue the second licence to the interven-
er [Sask. Water] on August 31, 1989. 29
The effect of the Minister's misconstruction of
section 12 was that he proceeded on a wrong
principle. In deciding the way he did, the Trial
Judge was not substituting his view for that of the
Minister nor was he applying the wrong standard
of judicial review. Moreover, as the provisions of
section 12 which were applicable required the
Minister to appoint a Panel mandamus was also
properly ordered by the Judge.
Accordingly, I would dismiss the cross-appeal.
The Appeal
In their appeal, appellants argue that, before
granting a licence under the IRIA, the Minister
must comply with provisions of the EARPGO
which include referral of the Project to public
review by a Panel whose report must be submitted
to and considered by the Minister prior to issuing
the licence. According to the appellants, Muldoon
J. was correct to have ordered compliance with the
EARPGO by requiring a Panel to be appointed
but he should have gone farther and quashed the
licence absolutely as long as a Panel was not
appointed and its report had not been considered
by the Minister prior to the issuance of the licence.
The appellants rely on previous decisions of the
Court in support of these propositions. 30
29 Appeal Book, Tab 3, at p. 20 [at p. 14 F.T.R.].
30 The appellants rely on Canadian Wildlife Federation Inc.
v. Canada (Minister of the Environment), supra note 4, as
affirmed by this Court, supra note 5, and Friends of the
Oldman River Society v. Canada (Minister of Transport),
[1990] 2 F.C. 18 (C.A.). The appellants also rely on Re
Braeside Farms Ltd. et al. and Treasurer of Ontario et al.
(1978), 20 O.R. (2d) 541 (Div. Ct.) for the proposition that no
exercise of discretion (the issuance of the licence) can be based
on an inadequate and incomplete process (failure to appoint
and wait for the report of the Panel).
At the outset, I wish to point out that the
previous decisions of the Court taken together hold
that the Minister must comply with the provisions
of the EARPGO prior to issuing a licence. How
ever, the main issue raised in the appeal herein
deals with what constitutes compliance. More par
ticularly the question is whether the EARPGO
requires not only referral to a Panel for public
review but also that its report be considered by the
Minister prior to issuing a licence. That was not a
question dealt with by the previous decisions relied
on by the appellants.
At this point, reference to applicable provisions
of the EARPGO is necessary:
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.
18. It is the responsibility of the Office to
(a) provide initiating departments with procedural guide
lines for the screening of proposals and to provide general
assistance for the development and installation of implemen
tation procedures;
(b) assist the initiating department in the provision of infor
mation on and the solicitation of public response to proposals
early enough in the planning stage that irrevocable decisions
will not be taken before public opinion is heard;
(c) publish in summary form the public information pro
vided to the Office by an initiating department on proposals
for which it is the decision making authority and for which a
determination under section 12 has been made; and
(d) inform the Minister on a periodic basis, in a report to be
made public, on the implementation of the Process by initiat
ing departments.
31. (1) At the end of its review, a Panel shall
(a) prepare a report containing its conclusions and recom
mendations for decisions by the appropriate Ministers; and
(b) transmit the report referred to in paragraph (a) to the
Minister and the Minister responsible for the initiating
department.
(2) The Minister and the Minister responsible for the initiat
ing department shall make the report available to the public.
32. Any of the requirements or procedures set out in sections
21 to 31 may be varied by the Office in the case of any
federal-provincial review or any review that involves special
circumstances.
Initiating Department
33. (1) It is the responsibility of the initiating department in
a public review to
(a) ensure that the responsibilities of the proponent in the
review are fulfilled;
(b) ensure that its senior officials and staff make presenta
tions and respond to any questions for which it has
responsibility;
(c) subject to subsection (2), decide, in cooperation with any
other department, agency or board of the Government of
Canada to whom the recommendations of a Panel are direct
ed, the extent to which the recommendations should become
a requirement of the Government of Canada prior to author
izing the commencement of a proposal;
(d) subject to subsection (2), ensure, in cooperation with
other bodies concerned with the proposal, that any decisions
made by the appropriate Ministers as a result of the conclu
sions and recommendations reached by a Panel from the
public review of a proposal are incorporated into the design,
construction and operation of that proposal and that suitable
implementation, inspection and environmental monitoring
programs are established; and
(e) subject to subsection (2), determine in what manner the
decisions made under paragraph (c) and those referred to in
paragraph (d) are to be made public.
(2) Where the initiating department has a regulatory func
tion in respect of the proposal under review, the responsibilities
set out in paragraphs (I)(c), (d) and (e) shall be amended to
account for and not to interfere with the decision making
responsibilities of that initiating department. [Underlining
added.]
Appellants argue forcefully that sections 3, 18,
31 and 33 evince, especially by the underlined
language above, an intention and meaning to the
effect that the Minister must await the Panel's
report before issuing a licence. They say this
makes sense because why go to the trouble and
expense of requiring a public review by the Panel
if the results of that review were to be ignored at
the outset by permitting a licence to be issued. The
public review would amount to a charade they
contend if the Minister could not only by-pass the
recommendations in a report of the Panel but, even
more disparagingly, would not have to wait for the
report at all. Surely, they argue, the public review
process should inform the decision to issue a
licence. These are cogent arguments but I do not
believe that the EARPGO provisions lead to the
conclusion advocated by the appellants.
In Naskapi-Montagnais Innu Assn. v. Canada
(Minister of National Defence) 31 applications were
brought before Madam Justice Reed in the Trial
Division to quash a decision of the Minister of
National Defence allowing the sharing among
some NATO countries of air base facilities at
Goose Bay, Newfoundland, and to prevent said
Minister from making other decisions regarding
the use of certain parts of Labrador and Quebec
by members of the Air Forces of some NATO
countries in tactical low level flying manoeuvres
before the environmental process in the EARPGO
had been completed. The issue before the Court in
general terms was whether under the EARPGO
the initiating department or Minister is obligated
not to proceed with the project under review until
the panel assessment is complete and its report has
been made to the relevant Ministers.
I find Madam Justice Reed's comments on this
question particularly helpful:
I initially considered counsel's argument, that there was an
implied obligation, under the terms of the Order when read in
the light of its purpose, to stop the progress of any proposal
once it was referred for review, to be well founded. On reflec
tion I have come to a different conclusion. I do not think the
text of the EARP Guidelines Order can bear that interpreta
tion. As has been noted, there is nothing in the Order which
expressly requires that a project be halted until the review is
complete. In most cases, this might very well occur as a matter
of practice. It would clearly be the prudent course of action for
a department to follow. But there is no express mandatory
obligation of this nature found in the Order. Secondly, the
reference to an assessment being carried out before irrevocable
decisions are taken, in section 3, relates to the self-assessment
process which the initiating department must undertake. It does
not relate to the EARP Panel process. The provisions are silent
with respect to what happens when a proposal has been referred
for review. Section 18 relates to the obligations of the Federal
Environmental Assessment Review Office and thus cannot be
seen as the foundation of a mandatory stop order to the
Minister. And, in so far as section 33 is concerned, while a
department has to make decisions as to which of a Panel's
recommendations it will adopt, the section does not expressly
state that the proposal in question must be halted until the
review process is complete.
In addition, an implied mandatory obligation to halt the
proposal does not accord well with the general scheme of the
Order and with its other provisions. Under the Order initiating
departments and Ministers are able to ignore whatever recom-
31 [1990] 3 F.C. 381 (T.D.).
mendations a Panel might make. They, of course, do so at their
peril in so far as public opinion is concerned. Under the scheme
of the Order it is the watchful eye of public opinion which is to
operate as the leverage to ensure that environmentally respon
sible decisions are taken. It is entirely consistent with this
mechanism, then, that the regime which operates during the
course of the panel review process, in so far as any obligation
may exist not to proceed with the project is concerned, would
be of a similar nature. In my view, any obligation not to
proceed while the project is under review also depends for
"enforcement" on the pressure of public opinion and the
adverse publicity which will attach to a contrary course of
action.
Another feature of the review scheme set out in the Order
which argues for the conclusion that there is no mandatory
legal obligation not to proceed in circumstances such as exist in
this case, is the fact that once a proposal is referred to a Panel
for consideration, the initiating department has in effect lost all
control over the timing of the Panel's procedures. A Panel
could thereby permanently stop any proposal referred to it by
mere inaction. In my view, if it had been intended that a
referral under the EARP Guidelines Order should have the
mandatory effect for which counsel argues, some further provi
sions respecting the time limits within which the review proce
dure would have to be completed and some provisions concern
ing the consequences of delay would have been included in the
provisions of the Order. 32
I agree with the reasoning of Reed J., that the
EARPGO does not contain express language that
a licence cannot issue until the Panel has reported
following a public review nor can such an obliga
tion be inferred from the provisions and scheme of
the EARPGO. Counsel for the appellants argues,
however, that Madam Justice Reed made no men
tion of section 31 which mandates the Panel to
submit, at the end of its review, a report contain
ing its conclusions and recommendations for deci
sions by the appropriate Ministers. However, sec
tion 31 imposes an obligation on the Panel to
prepare and submit a report; it does not expressly
or impliedly specify, in looking at the scheme of
the EARPGO as a whole, that the Minister or
ministers concerned must await the report.
Reference should also be made to section 32
which gives the Office power to "vary" any of the
requirements or procedures set out in sections 21
to 31 in any review that involves "special circum
stances". Without getting into a discussion of what
32 Id. at pp. 403-404.
"special circumstances" means or what "vary"
means" or whether such a provision is valid and if
so to what extent, 34 the section does show that the
Panel provisions were not intended to be complied
with in a literal or mandatory fashion since they
could be changed by the Office. What is required
is that a Panel must be appointed and, hopefully, it
will report before any permanent decisions are
made but there is no requirement that any report
be made and considered before any ministerial
decisions are made. Hence, public review is
required to inform the public,, who can then par
ticipate in the debate on the environmental aspects
of the proposal under review, but it is open to the
Minister, if in his opinion there are good reasons
for doing so, to proceed with the project during the
time the review is going on.
In that connection, as the EARPGO is intended
to ensure that decision making in government is
balanced by a concern for environmental conse
quences, I do not think that the Panel report
provisions of the EARPGO scheme, which admit
tedly has much ambiguity in it, can be taken to
prevail in an absolute and complete way over the
normal decision making of Ministers. It is not
disputed by any of the parties that the Panel
report's recommendations can be ignored by Min
isters subject to whatever political consequences
flow therefrom. Similarly that is the real sanction
for not waiting for the Panel report as Madam
Justice Reed acknowledges: the Minister respon
sible will be politically accountable for any deci-
33 For interpretations which give a comprehensive meaning to
the word "vary", see e.g. Consumers' Association of Canada v.
Attorney General of Canada, [1979] 1 F.C. 433 (T.D.); Bakery
and Confectionery Workers, International Union of America,
Local No. 468 et al. v. White Lunch Ltd. et al., [1966] S.C.R.
282; Re Rush and Township of Scugog et al. (1978), 21 O.R.
(2d) 592 (H.Ct.); Rowley v. Petroleum and Natural Gas
Conservation Board, [1943] 1 W.W.R. 470 (Alta. S.C.).
34 As mentioned above, section 6 of the Department of the
Environment Act enables the Minister, with approval of the
Governor in Council, to establish environmental protection
guidelines for use by federal departments. It is highly arguable
that the EARPGO cannot then be circumvented or abandoned
by a simple decision of the Office which, although very impor
tant in the EARPGO scheme, are officials reporting to the
Minister. However, I only raise the point in passing and make
no finding on it.
sions made. The thrust of sections 21 to 32 is for
public involvement but that involvement has not
been elevated to curtailing or otherwise preventing
ministerial decisions that presumably could be
based themselves on an arguably greater public
interest than waiting for the Panel report.
Setting up a Panel can, as Madam Justice Reed
points out, mean that the initiating department,
and more importantly, the Minister will lose con
trol over the timing of the Panel's process. Even if
the Minister had put a time limit on the process by
stipulating a deadline by which the Panel report
had to be submitted, 35 that of itself does not
guarantee that such a report will be prepared and
presented. And if it is not, could the licence not be
issued in those circumstances when the Minister
concerned was of the view that there were compell
ing arguments for proceeding with the project by
issuing the licence? I cannot accept that the
EARPGO provisions should be so read as to infer
an obligation not to proceed when those provisions
do not spell out clearly that that was the intended
result. 36 In short, I find the provisions in the
EARPGO dealing with the submission of a report
by the Panel for ministerial review to be hortatory
to but not obligatory on the Minister.
Accordingly I am of the view that Muldoon J.'s
order of certiorari was correct and properly made.
I would therefore dismiss the appeal.
In summary, I would dismiss the cross-appeal
and the appeal and make no order as to costs.
35 This presumably could be done by inserting such a dead
line in the terms of reference of public review by the Panel
contemplated by subsection 26(1) of the EARPGO.
36 For an example where legislation and regulations clearly
required a minister to consider a report before making a
decision; see Monsanto Canada Inc. v. Canada (Minister of
Agriculture) (1988), 20 C.P.R. (3d) 193 (F.C.A.) dealing with
the Pest Control Products Act, R.S.C. 1970, c. P-10 and
related regulations.
URIE J.A.: I agree.
LINDEN J.A.: I agree.
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.