A-560-91
Alcan Aluminium Limited, Minister of the
Environment, Minister of Indian Affairs and
Northern Development, Minister of Fisheries and
Oceans, and Minister of Transport (Appellants)
v.
Carrier-Sekani Tribal Council, Marvin Charlie,
Chief of the Cheslatta Indian Band, on behalf of
himself and all other members of the Cheslatta
Indian Band, Maureen Ogen, Chief of the Broman
Lake Indian Band, on behalf of herself and all
other members of the Broman Lake Indian Band,
Geoffrey Thomas, Chief of the Stoney Creek
Indian Band, on behalf of himself and all other
members of the Stoney Creek Indian Band, Peter
Quaw, Chief of the Fort George Indian Band, on
behalf of himself and all other members of the
Fort George Indian Band, Ernie Nooski, Chief of
the Fraser Lake Indian Band, on behalf of himself
and all other members of the Fraser Lake Indian
Band, Robert Michell, Chief of the Stellaquo
Indian Band, on behalf of herself [sic] and all
other members of the Stellaquo Indian Band,
Leonard Thomas, Chief of the Necoslie Indian
Band, on behalf of himself and all other members
of the Necoslie Indian Band, Edward John, Chief
of the Tl'azt'en Nation Indian Band, on behalf of
himself and all other members of the Tl'azt'en
Nation, Roy French, Chief of the Takla Lake
Indian Band, on behalf of himself and all other
members of the Takla Lake Indian Band, Wilf
Adam, Chief of the Lake Babine Indian Band, on
behalf of himself and all other members of the
Lake Babine Indian Band, Robert Charlie, Chief
of the Burns Lake Indian Band, on behalf of
himself and all other members of the Burns Lake
Indian Band (Respondents)
A-561-91
Alcan Aluminium Limited, Minister of the
Environment, Minister of Indian Affairs and
Northern Development, Minister of Fisheries and
Oceans, and Minister of Transport (Appellants)
v.
Save the Bulkley Society, Nechako Neyenkut
Society, United Fishermen and Allied Worker's
Union, B.C. Wildlife Federation, The Steelhead
Society of British Columbia, Canadian Association
of Smelter and Allied Workers (Respondents)
INDEXED AS: CARRIER-SEKANI TRIBAL COUNCIL V. CANADA
(MINISTER OF THE ENVIRONMENT) (CA.)
Court of Appeal, Heald, Marceau, and Linden B.A.
—Vancouver, December 16, 17, 18, 19 and 20, 1991,
and April 8, 9 and 10, 1992; Ottawa, May 8, 1992.
Environment — Kemano Completion Project (KCP) for
expansion of hydro-electric facility on Nechako River to supply
Alcan smelter at Kitimat — Whether subject to Environmental
Assessment Review Process Guidelines Order (EARPGO) —
Order in council declaring project not subject to EARPGO —
Ministers of Transport and Fisheries and Oceans giving clear
ances under Navigable Waters Protection Act and Fisheries
Act — Supreme Court deciding in Oldman River case
EARPGO applying where exercise of ministerial power or duty
legally necessary to execution of project — Ministerial exemp
tions not such power or duty — Finding of fact not constituting
exercise of regulatory power.
Judicial review — Equitable remedies — Declarations —
Motions Judge holding order in council ultra vires on applica
tion for certiorari against named ministers — Granting orders
of certiorari and mandamus upon hearing of preliminary
motion to strike — Decision declaratory in nature — Declara
tion against order in council only available by action against
Attorney General — Certiorari remedy for administrative
actions, not legislative enactments — Granting orders without
hearing substantive defence denial of right to be heard.
Constitutional law — Governor in Council enacting by sub
sequent order in council EARPGO not applying to specific pro
ject — Whether subsequent order ultra vires — Delegate
empowered to enact subordinate legislation able to dispense
from such legislation in absence of directory language in ena
bling statute.
This was an appeal and cross-appeal from a Trial Division
decision granting applications for certiorari and mandamus.
In 1967, Alcan dammed the Nechako River in west-central
British Columbia to furnish electricity for its smelter at Kiti-
mat. In 1979, the Department of Fisheries and Oceans brought
an action against Alcan in the Supreme Court of British
Columbia, in which the Attorney General of British Columbia
was joined, to enforce water flows through the dam. That liti
gation was settled in 1987. Pursuant to the Settlement Agree
ment, the Governor in Council passed regulations directing the
Minister of Fisheries and Oceans to exercise, consistently with
the Agreement, his discretion to approve Alcan's works on the
Nechako and enacting (by SOR/90-729) that the Environmen
tal Assessment Review Process Guidelines Order did not apply
to the subsequent phase of those works, called the Kemano
Completion Project (KCP). The Minister of Fisheries and
Oceans issued an opinion, under subsection 20(10) of the Fish
eries Act, that the water flows anticipated from the KCP would
be sufficient for the safety and spawning of fish. The Minister
of Transport issued exemption and approval orders under the
Navigable Waters Protection Act.
The respondents seek to have the KCP subjected to a full
environmental review. They had brought an action in Federal
Court in April, 1988, but have taken no steps to move it for
ward since Alcan filed its statement of defence in May, 1989.
The instant proceedings were commenced in October, 1990 by
originating motions. The applications were for certiorari and
mandamus against the execution of the Agreement, the minis
terial approvals, and, by subsequent amendment to the applica
tions, SOR/90-729. The appellants brought motions to strike.
After the hearing on the preliminary motions, the Motions
Judge dismissed the motions to strike and granted the principal
applications.
Held, the appeals should be allowed, the cross-appeal
denied.
The cross-appeal is from the Motions Judge's failure to
make the rights guaranteed to native peoples under section 35
of the Constitution Act, 1982 a ground for the relief granted;
but an appeal can only be against a decision, and not the rea
sons for the decision.
The vires of an order in council can only be attacked in an
action against the Attorney General. The Ministers named in
the applications do not represent the Governor in Council. An
order giving effect to the challenge mounted against the order
in council—that it is ultra vires and contrary to the Constitu-
tion—is declaratory in nature, and the summary procedure of
originating motion cannot be used to seek a declaration, but
only to apply for a prerogative writ, such as certiorari. Certio-
rari is a remedy for the review of administrative decisions, not
legislative acts. While the respondents argue that what is chal
lenged is the recommendation which resulted in the adoption
of the order, that recommendation cannot be challenged inde
pendently of the order, the only legal instrument to which
effect can be given.
The hearing before the Motions Judge was devoted entirely
to the preliminary motions to strike. Appellants' counsel did
not address, and was not given an opportunity to address, the
substantive issues raised by the originating applications. This
deprived the appellants of their right to place before the Court
all their means of defence. The Motions Judge was not entitled
to grant the orders sought before the appellants had been
afforded a full opportunity to present their case.
None of the challenged ministerial actions constituted deci
sions capable of bringing the project within the purview of the
EARP guidelines. The EARPGO requirements apply to "pro-
posals", defined to mean any "initiative ... for which the Gov
ernment of Canada has a decision-making responsibility". The
applicable law is Friends of the Oldman River Society v.
Canada (Minister of Transport), recently decided by the
Supreme Court of Canada. The Court held that the Guidelines
are not brought into play whenever there is some potential
environmental effect on a matter of federal jurisdiction. They
apply in all cases where Parliament has conferred upon a fed
eral minister the power and duty to give or refuse permission
to carry on a work, or to regulate the way in which it will be
carried on, ministerial permission being a pre-condition to the
execution of the work. The signing of the Settlement Agree
ment by the Minister of Fisheries and Oceans was not such an
exercise of power. The decision to settle was an executive
decision of the Governor in Council, effected by order in coun
cil. Similarly, the issuance of an opinion that the volume of
water to be released was sufficient for the downstream fishery
was not an approval of proposed works, but a direction as to
how existing and proposed works should be operated to satisfy
the statutory obligations on the owner, so that the Minister
would not consider it his duty to intervene. The declarations of
exemption under the Navigable Waters Protection Act were
based on the Minister of Transport's finding of fact that the
works would not interfere substantially with navigation, and
the legal consequence of that fact is that the Minister has no
regulatory power or duty under the Act. The making of a find
ing of fact is not an exercise of regulatory power.
Order in council SOR/90-729 is, on its face, a bar to the
relief sought by the respondents. Whether the order in council
be characterized as an amendment to the EARP Guidelines or
as a clarification of their scope, it was clearly authorized by
Parliament under section 6 of the Department of the Environ
ment Act. The power to adopt regulations necessarily includes
the power to clarify or vary them. While a minister has no
power to dispense from the operation of the law, a delegate
empowered to make subordinate legislation may dispense from
the rule he makes, in the absence of directory language in the
statute. Just as the original Guidelines could have been enacted
with an exempting provision for the Project, the same result
may equally be achieved by a later regulation. If the purpose of
the Act has not been breached, there can be no question of bad
faith in the enactment of SOR/90-729. It cannot be said that the
Government was in breach of its fiduciary duty toward aborig
inal peoples without knowing the exact content of that duty.
There is nothing in the record to indicate that the Govern
ment's duty to the aboriginals could be fulfilled only by the
application of the EARP Guidelines to the KCP. The doctrine
of legitimate expectation does not apply as there is no promise
from someone in authority on which reliance was placed by
the respondents. Furthermore, the doctrine applies only to
administrative procedure; it has no bearing on the validity of a
legislative enactment.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44],
s. 35.
Department of the Environment Act, R.S.C. 1970 (2nd
Supp.), c. 14, s. 6 (as am. by S.C. 1978-79, c. 13, s. 14).
Department of the Environment Act, R.S.C., 1985, c.
E-10, ss. 4, 5, 6.
Environmental Assessment and Review Process Guide
lines Order, SOR/84-467.
Federal Court Rules, C.R.C., c. 663, RR. 321.1 (as
enacted by SOR/88-22l, s. 7; as am. by SOR/90-846, s.
8; SOR/92-43, s. 4), 419, 1203 (as am. by SOR/79-57,
s. 20).
Fisheries Act, R.S.C. 1970, c. F-14, ss. 20(10), 33.1 (as
enacted by R.S.C. 1970 (1st Supp.), c. 17, s. 3; S.C.
1976-77, c. 35, s. 8).
Fisheries Act, R.S.C., 1985, c. F-14, ss. 22(3), 37.
Government Organization Act, 1979, S.C. 1978-79, c. 13,
s. 6.
Kemano Completion Project Guidelines Order, SOR/90-
729.
Kenney Dam and Skins Lake Spillway Orders Regula
tions, SOR/87-723.
Navigable Waters Protection Act, R.S.C., 1985, c. N-22,
ss. 5(2), 10(2).
Utilities Commission Act, S.B.C. 1980, c. 60.
CASES JUDICIALLY CONSIDERED
APPLIED:
Friends of the Oldman River Society v. Canada (Minister
of Transport), [1992] 1 S.C.R. 3; [1992] 2 W.W.R. 193;
(1992), 7 C.E.L.R. (N.S.) 1.
REFERRED TO:
Attorney General of Canada et al. v. Aluminum Co. of
Canada et al.; B.C. Wildlife Federation, Intervenor
(1987), 35 D.L.R. (4th) 495; [1987] 3 W.W.R. 193; 10
B.C.L.R. (2d) 371; 26 Admin. L.R. 18; 15 C.P.C. (2d)
289 (B.C.C.A.); rev'g [1987] 1 C.N.L.R. 10; (1986), 15
C.P.C. (2d) 8 (B.C.S.C.).
AUTHORS CITED
Hogg, Peter W. Constitutional Law of Canada, 2nd ed.,
Toronto: Carswell Co. Ltd., 1985.
APPEAL AND CROSS-APPEAL from an order of
the Trial Division (1991), 6 C.E.L.R. (N.S.) 265,
allowing applications for certiorari and mandamus.
Appeal allowed, cross-appeal dismissed.
COUNSEL:
Brian J. Wallace, Q.C. and Ron A. Skolrood for
appellant Alcan Aluminium Limited.
H.J. Wruck, Q. C. and Valerie Osborne for appel
lants Minister of the Environment, Minister of
Indian Affairs and Northern Development, Min
ister of Fisheries and Oceans, and Minister of
Transport.
Arthur Pape and John Rogers for respondent
Carrier-Sekani Tribal Council.
Martin L. Palleson for respondent Save the
Bulkley Society.
SOLICITORS:
Lawson, Lundell, Lawson, Vancouver, for appel
lant Alcan Aluminium Limited.
Deputy Attorney General of Canada for appel
lants Minister of the Environment, Minister of
Indian Affairs and Northern Development, Min
ister of Fisheries and Oceans, and Minister of
Transport.
Pape & Salter, Vancouver, for respondent Car-
rier-Sekani Tribal Council.
Ferguson, Gifford, Vancouver, for respondent
Save the Bulkley Society.
The following are the reasons for judgment ren
dered in English by
MARCEAU J.A.: Two appeals and a cross-appeal are
before the Court. They are all directed against a deci
sion of a Motions Judge in the Trial Division issuing
various orders in the nature of certiorari and manda-
mus. At the root of the proceedings is the construc
tion of the so-called Kemano Completion Project, the
second phase of Alcan Aluminium Limited's
("Alcan") hydro-electric generation facilities and alu
minum reduction facilities in west-central British
Columbia. Several parties are involved in the pro
ceedings. On one side, with Alcan, are four ministers
of the federal Crown: Environment, Fisheries and
Oceans, Transport, Indian and Northern Affairs
("appellant Ministers"), who are said to have illegally
allowed the Project to proceed. On the other side
stand the Carrier-Sekani Tribal Council and the
Chiefs of eleven Carrier Indian bands representing
themselves and their members ("the Tribal Council"),
together with a coalition of environmental and fishing
interests led by the Save the Bulkley Society ("the
Save the Bulkley Society"), who attack the Ministers'
actions and seek a federal environmental review of
the Project. The issues are numerous and complex
and, to be properly addressed, they need to be care
fully put in context. This will require a complete
review of the facts that have led to the litigation and a
history of the proceedings themselves.
Factual Background
The Existing Facilities
In 1950, Alcan reached an agreement with the
Government of British Columbia relating to the con
struction of hydro-electric and aluminum reduction
facilities in west-central British Columbia. The com
pany was given the right to store and direct water
flows in the Nechako and Nanika Rivers. Prior to
commencing construction of the first phase of its pro
ject, the company held discussions with the federal
Department of Fisheries that culminated in 1952 with
the Minister's determination that minimum water
flows could be met by the release of 100 cubic feet
per second into the Nechako River through a spillway
to be dug at Skins Lake.
Work was completed in 1967. The essential feature
of these primary facilities was a dam (the Kenney
Dam) controlling the flow of the eastward running
Nechako River which permitted the storage of a large
quantity of water in a reservoir (the Nechako Reser
voir) and the diversion of some of it westward to a
powerhouse at Kemano whose function was to supply
electricity to an aluminum smelter plant at Kitimat.
The Project of Expansion of the Facilities
During the 1970's, Alcan developed a plan for the
second phase of its facility which called for the
expansion of its capacity to store and divert water
from both the Nechako and Nanika Rivers. The plan
came to be known as the Kemano Completion Project
or the KCP.
The Dispute with the Federal Authorities
In 1979, the federal Department of Fisheries and
Oceans became concerned about the level of water
released into the Nechako River from the existing
facilities, particularly through the Skins Lake spill
way. When Alcan disputed the validity of the Depart
ment's analysis, the Attorney General of Canada
commenced an action in the Supreme Court of Brit-
ish Columbia and obtained a mandatory injunction
forcing the company to meet certain water flows.
Alcan opposed the action and filed a counterclaim.
The Attorney General of British Columbia was then
joined as a defendant. As time passed, Alcan, in
1983, determined to go ahead with the KCP in spite
of the pending action, applied for an energy project
certificate pursuant to the provincial Utilities Com
mission Act, S.B.C. 1980, c. 60. Alcan later post
poned its application and, in an attempt to come to a
full agreement with the federal authorities, submitted,
for the Department's consideration, water flow stud
ies it itself had conducted.
While the litigants were attempting to resolve their
dispute, other parties indicated an interest in the mat
ter. In 1984, the Tribal Council advised the Minister
of Indian Affairs that the management of the
Nechako River system would be a central issue in
their forthcoming land claim negotiations. In June
1985, after Alcan filed a revised counterclaim, the
Tribal Council even sought to be added as a party to
the pending action but were eventually denied by the
British Columbia Court of Appeal on the ground that
the litigation dealt with a constitutional question, the
resolution of which could not impair the legal posi
tion of the Indians. 1
The action finally came to trial in August 1987.
The main issue was the scope of the Minister of Fish
eries and Oceans' power to control flows on the
Nechako River under the Fisheries Act, R.S.C., 1985,
c. F-14; there were also some subsidiary issues, such
as the quantity of water actually released and the
level of flow required for the protection of the fish.
The Settlement of the Litigation
On September 14, 1987, at the beginning of the
third week of the trial, the three parties to the action,
the Queen in Right of Canada, the Queen in Right of
British Columbia and Alcan, reached an agreement
("the Settlement Agreement") that effectively termi
nated the litigation. Alcan gave up the rights con
ferred on it in 1950 to dam and direct the flow into
the Nanika River watershed as well as its rights to
certain portions of the flow of the Nechako River; it
also undertook to construct facilities that would
enhance water quality in the river and promote the
preservation of fish. In return, Alcan ensured the
establishment of clear standards for the local fisheries
1 Attorney General of Canada et al. v. Aluminum Co. of
Canada et al.; B.C. Wildlife Federation, Intervenor (1987), 35
D.L.R. (4th) 495 (B.C.C.A.); rev'g [1987] 1 C.N.L.R. 10
(B.C.S.C.).
resource, something it needed to complete its expan
sion; and, to that effect, an opinion was immediately
issued by the Minister of Fisheries and Oceans, pur
suant to subsection 20(10) of the Fisheries Act
[R.S.C. 1970, c. F-14], stating that, provided certain
remedial measures were taken, current water flows
and the flows associated with KCP in the Nechako
River would be sufficient for the safety and spawning
of fish. 2 It was also agreed that a committee formed
by representatives of each of the three parties would
have the responsibility of supervising and managing
water flows on the Nechako River.
On December 10, 1987, the Governor in Council
issued orders in council P.C. 1987-2481 and 1987-
2482 [Kenney Dam and Skins Lake Spillway Orders
Regulations, SOR/87-723]. The first order, passed
pursuant to section 6 of the Government Organization
Act, 1979 [S.C. 1978-79, c. 13], approved the Settle
ment Agreement; the second order, passed pursuant
to paragraph 33.1(3)(b) [as enacted by R.S.C. 1970
(1st Supp.), c. 17, s. 3; S.C. 1976-77, c. 35, s. 8] (now
paragraph 37(3)(b)) of the Fisheries Act, directed the
Minister to exercise his powers under subsection
33.1(2) [as enacted idem] (now subsection 37(2)) of
the Act in a manner consistent with the Settlement
Agreement and the written opinion he had given
under subsection 20(10) of the said Act.
The Aftermath of the Settlement Agreement
On April 14, 1988, an action was commenced in
the Federal Court by the Save the Bulkley Society
and other plaintiffs, directed against Her Majesty the
Queen in Right of Canada, the Minister of Fisheries
and Oceans and the Attorney General of Canada,
challenging the validity of the Settlement Agreement.
An amendment to the statement of claim filed on
June 8, 1988 alleged that the Settlement Agreement
was invalid on the grounds inter alia that it consti
tuted an unlawful delegation and/or fettering of the
Minister of Fisheries and Oceans' discretion under
the Fisheries Act. Alcan obtained approval to be
2 This is one of the Ministers' actions to be reviewed, so I
will come back to it later.
added as a defendant in the litigation and filed its
statement of defence on May 5, 1989. Since then, the
plaintiffs have taken no further steps in the action.
On August 10, 1988, Alcan, now in possession of
the necessary provincial authorization, announced its
intention to proceed with the expansion of its power
generating facilities. In due course, construction of
the KCP commenced in the fall of 1988.
Certain of the works associated with the KCP
involved construction in or across navigable waters.
With respect to those works, the Minister of Trans
port issued, during 1988 and 1989, a series of
"exemption orders" pursuant to subsection 5(2) of the
Navigable Waters Protection Act, R.S.C., 1985, c.
N-22. One other work called for modifications to the
existing spillway, and with respect to it the Minister
of Transport also issued an "approval" under subsec
tion 10(2) of the same Act. 3
On October 12, 1990, the Governor in Council
passed, as recommended by the Minister of the Envi
ronment on October 4, 1990, the Kemano Completion
Project Guidelines Order ("SOR/90-729"). This
order provided that the environmental regulations,
enacted pursuant to section 6 of the Department of
the Environment Act [R.S.C. 1970 (2nd Supp.), c. 14;
as am. by S.C. 1978-79, c. 13, s. 14; now R.S.C.,
1985, c. E-10], by order in council SOR/84-467 and
called the Environmental Assessment and Review
Process Guidelines Order (the "EARP Guidelines" or
the "Guidelines Order") did not apply to the KCP. It
is often referred to as the "Exemption Order".
Construction of the KCP proceeded as planned
until June 1991 when, as a result of the decision ren
dered by the Motions Judge in the present proceed
ings, Alcan moved to suspend work until such time
as the appeal litigation is finally settled. By then, a
large part of the project had been completed.
Procedural Background
The proceedings now before the Court were com
menced in October 1990. The Save the Bulkley Soci-
3 They too will be discussed later.
ety were the first to file their originating motion on
October 5; the Tribal Council filed theirs on October
11. Both groups, dissatisfied with the response of the
Ministers to their requests for a full environmental
review of the KCP, were moving against the Minis
ters seeking orders quashing the Settlement Agree
ment and the aforementioned ministerial actions
taken under the Fisheries Act and the Navigable
Waters Protection Act and enjoining a full environ
mental review of the KCP, pursuant to the EARP
Guidelines. On November 5, 1990, the parties con
sented to a hearing on February 26, 1991.
There was no reference to SOR/90-729, the
Exemption Order, in the applications and Alcan was
not a party to them. On January 17, 1991, both the
Tribal Council and the Save the Bulkley Society (the
respondents herein) amended their respective
originating motions with a view to adding to the list
of orders sought one quashing SOR/90-729. A few
days later, Alcan made an application to be joined as
a respondent, which was granted.
In answer to the originating motions, Alcan and
the Ministers (the appellants herein) filed a number
of preliminary motions contending that the applica
tions should be struck or, at least, that the hearing be
postponed. On February 18, 1991, the Motions Judge,
before whom the matter came, determined that it was
preferable to adjourn the hearing to a special session
to be held on February 26, 1991, at the outset of
which the preliminary objections would be dealt
with.
Accordingly, on February 26, 1991, the Motions
Judge had before him the two originating motions for
prerogative relief made by the Save the Bulkley Soci
ety and the Tribal Council and the two preliminary
motions to quash or postpone of the Ministers and
Alcan.
In the originating motions, the relief sought, in
spite of some variations in the wording, was to the
same effect:
(a) An Order in the nature of certiorari quashing and setting
aside the execution by the Minister of Fisheries and Oceans
of the Settlement Agreement;
(b) An Order in the nature of certiorari quashing and setting
aside the decision of the Minister of Fisheries and Oceans
made pursuant to subsection 20(10) of the Fisheries Act;
(c) An Order in the nature of certiorari quashing and setting
aside the following Declarations of Exemption and an
Approval issued by the Minister of Transport pursuant to the
Navigable Waters Protection Act.
(i) Declaration of Exemption dated June 22, 1989, File
No. 8200-T-3489.1;
(ii) Declaration of Exemption dated July 24, 1989, File
No. 8200-T-7558-1;
(iii) Declaration of Exemption dated September 26, 1989,
File No. 8200-T-7560-1;
(iv) Declaration of Exemption dated December 15, 1989,
File No. 8200-T-2768.2;
(v) Approval dated February 19, 1990, File No. 8200-
4560.
(d) An Order in the nature of mandamus requiring the
respondent Ministers of Fisheries and Oceans, Transport,
Indian Affairs and Northern Development, and Environment
to comply with the EARP Guidelines and to subject the
decisions noted in paragraphs (a) to (c) above to an environ
mental screening and assessment pursuant to section 10 of
the EARP Guidelines.
(e) An Order in the nature of certiorari quashing and setting
aside the Kemano Completion Project Guidelines Order
SOR/90-729.
In the preliminary motions, it was submitted prin
cipally that the relief sought by the Save the Bulkley
Society and the Tribal Council was not available on
the applications as they stood, the Ministers contend
ing that none of the orders contemplated could be
issued while Alcan only challenged one, namely that
related to the quashing of order in council SOR/90-
729. It was submitted, alternatively, that a trial on the
issues should be heard, or at least an adjournment of
this hearing granted, so as to permit Alcan and the
Ministers to submit their own evidence addressing
the allegations contained in the voluminous material
filed in support of the originating motions.
A transcript of the three-day hearing is on file. At
its conclusion, judgment was reserved.
On May 14, 1991, the learned Motions Judge
handed down his decision: the preliminary motions to
quash were denied and all the relief sought in the
originating applications was granted. Appeals to this
Court were immediately launched.
A cross-appeal, as I mentioned at the outset, was
also filed with this Court. The Tribal Council regret
ted that the Motions Judge had not added to the
grounds on which he had found the order in council
SOR/90-729 to be ultra vires the additional alleged
ground that it was inconsistent with some constitu
tionally protected rights of the native people pursuant
to section 35 of the Constitution Act, 1982 [Schedule
B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C.,
1985, Appendix II, No. 44]]. It was extremely doubt
ful that such procedure was open to the cross-appel
lant as a cross-appeal must be directed at the decision
itself, not the reasons therefor (see Rule 1203 of the
Rules of the Court [Federal Court Rules, C.R.C., c.
663, as am. by SOR/79-57, s. 20]). Besides, in the
appeals themselves, the validity of the judgment a
quo would have to be confirmed with respect to all
the grounds raised in the originating motions. In any
event, the cross-appeal was never pursued indepen
dently of the appeals.
The appeal hearing lasted seven and a half days,
five in December 1991 and two and a half in April
1992, during which every facet of all the legal
problems arising were thoroughly addressed and dis
cussed by a battery of first-class counsel. The written
arguments covered hundreds of pages. Some of the
discussion had to be reopened after the Supreme
Court of Canada, on January 23, 1992, handed down
its long awaited judgment in the case of Friends of
the Oldman River Society v. Canada (Minister of
Transport) [[1 992] 1 S.C.R. 3] which was at the heart
of all presentations and ought to be the primary gov
erning authority for the disposition of the originating
motions.
I see no reason, in these reasons for judgment, to
review and discuss at length each and every submis
sion made. After analysis and reflection, I have come
to the view that—if I have grasped the facts properly
and if my understanding of the legal principles
involved, particularly the teachings of the Supreme
Court in the Oldman River case, is correct—these
appeals can be disposed of on the basis of arguments
less complex and involved than the extended and
knowledgeable presentation of counsel would make
one believe. I intend to carefully limit myself to stat
ing my conclusions and explaining clearly, but as
briefly as possible, the approach and legal reasoning
that support them.
The appellants place their several grounds of attack
against the Motions Judge's decision under three gen
eral allegations. First, they say that the Motions
Judge erred in refusing to strike out paragraph 5 of
the originating motions. Second, they contend that, in
deciding to immediately consider the originating
motions, the Motions Judge denied them a full and
fair hearing. Third, they submit that, in any event, the
relief sought in the originating motions could not be
granted. While each allegation may lead to the grant
ing of the appeal, obviously each of them do not have
the same scope and, thus, cannot lead to the same
final disposition. Each must be analysed separately
but, in view of my conclusion on the third one, I will
deal with the first two quickly.
I
Paragraph 5 of each of the originating motions
sought an order quashing SOR/90-729. In the appli
cation of the Tribal Council, it reads as follows:
(5) To the extent necessary, an order in the nature of certio-
rari quashing and setting aside the Kemano Completion Pro
ject Guidelines Order, S.O.R./90-729, on the grounds that it
is ultra vires Section 6 of the Department of the Environ
ment Act; or it was made in bad faith because it breached
fiduciary duties the Respondents owed to the Applicants, to
comply with S.O.R./84-467 before taking decisions or
actions which might adversely affect Applicants' rights or
interests; or it is inconsistent with the recognition and affir
mation of the Applicants' existing aboriginal rights in Sec
tion 35 of the Constitution Act, 1982.
In the application of the Save the Bulkley Society,
the same relief was sought but set out differently:
(5) An order in the nature of certiorari quashing and setting
aside the Kemano Completion Project Guidelines Order,
SOR/90-729 for breach of the duty of fairness.
The appellants contend that an order of the Gover
nor in Council could be the subject of a judicial
attack only in a proceeding directed against the
Attorney General; that such an order passed in the
exercise of a legislative function is not reviewable by
certiorari; and that, in any event, the relief sought,
which is really a declaration, is only available in pro
ceedings commenced by way of action.
I think that each of these three procedural objec
tions has validity. There is no doubt that the Minis
ters against whom the proceedings are directed do not
and cannot act as the legal representatives of the
Governor in Council. The Deputy Attorney General
appeared and acted for the respondent Ministers, as it
was his legal responsibility to do, but he was not
there on behalf of the Attorney General of Canada
and even less so on behalf of the Cabinet and the
Governor in Council. It is clear to me also that, how
ever broad its scope may have become, certiorari is a
common law remedy which was developed and still
exists to review administrative determinations or
decisions, not legislative prescriptions. And above
all, it is well established that the summary procedure
of originating motion can only be used to seek a pre
rogative writ, not a declaratory remedy.
The respondents' reply that what is really chal
lenged is the recommendation of the Minister of the
Environment which resulted in the adoption of the
order in council rather than the Order itself is, in my
view, of no avail. The recommendation of the Minis
ter has no force of law in itself and cannot be isolated
and challenged independently of the order in council
which is the only legal instrument to which effect can
be given. Likewise, it is no answer to say that the
objections are not substantive, as if we were dealing
with a usual motion to quash directed against a state
ment of claim and based on the contention that the
allegations made reveal no reasonable cause of
action. The objections are indeed of a procedural
nature, but it would be a mistake to look at them as
being merely technical as some basic requirements of
the proper administration of justice are directly
involved. The importance and possible consequences
of a challenge to the validity of an order in council
are too great to permit it to be done via a short-cir
cuited route and without all the normal procedural
safeguards. And finally, it is specious to argue that no
formal declaration was sought or made. The order in
council was being challenged on the basis that it was
ultra vires, enacted in bad faith and contrary to sec
tion 35 of the Constitution; a court order giving effect
to any such challenge is certainly declaratory in
nature.
In my judgment, therefore, the objections raised by
the appellants as to the availability of the relief
sought in paragraph 5 of the amended originating
motions are all valid. Does it follow that the Motions
Judge had no choice but to strike out in both applica
tions the impugned paragraph? I do not think so. The
usual motion to strike made pursuant to Rule 419 of
the Rules of the Court and directed against an action
will normally lead to the dismissal of the proceeding.
But, as pointed out before, the preliminary motions
here were only analogous to Rule 419 motions; they
were not based on the proposition that the respon
dents herein had obviously no right to obtain the
relief they were seeking, but merely that they had
resorted to an inappropriate procedure. If it was pos
sible to correct the situation by ordering that certain
measures be taken, and no doubt that was the case,
the striking out of the impugned paragraph would not
only be unnecessary but could amount to a wrong
remedy. What remains undeniable, however, is that
the appellants are entitled to say that the Motions
Judge could not, on the sole basis of the procedure
before him, grant, as he did, the relief sought in para
graph 5 of the two originating motions.
II
The appellants, as I said, do not leave it at that.
They submit that the Motions Judge could not grant,
as he did, any of the relief sought in the originating
motions without breaching the most basic principle
of natural justice. They refer to the transcript of the
proceedings to show that the hearing was devoted
exclusively to the preliminary motions to strike, fol
lowing a determination that the originating motions
themselves would be referred to the Associate Chief
Justice for scheduling, a referral which would have
allowed them to file material and to cross-examine on
the affidavits relied on by the respondents herein.
They did not address the issues raised by the originat
ing motions, they say, and they were given no oppor
tunity to do so. What apparently happened is that, fol
lowing the completion of the hearing and during the
course of his deliberations, the learned Motions
Judge came to the conclusion that he could deal with
the substantive issues, despite not having heard from
counsel in respect thereto, since all the material nec
essary to establish the factual background supporting
the originating motions was already on file and to do
so immediately would preclude further expensive and
lengthy proceedings.
Counsel for the respondents do not deny that the
issues raised by the originating motions were not
squarely addressed at the oral hearing. They contend,
however: first, that Alcan had dealt with these issues
in their written submission filed prior to the hearing
and that the federal Ministers had only themselves to
blame if they had failed to do so contrary to the
requirements of Rule 321.1 [as enacted by SOR/88-
221, s. 7; SOR/90-846, s. 8; SOR/92-43, s. 4]; sec
ond, that the issues were almost entirely ones of law
requiring little reference to factual material; and
third, that the Motions Judge had the jurisdiction and
the discretion to make immediate decisions and, in
the context of the case as a whole, he had valid
grounds to so exercise his discretion.
With respect, I disagree with counsel for the
respondents. It seems clear to me, in reviewing the
transcript, that the procedures adopted below may
have had the effect of depriving the appellants of a
complete and fair hearing. The audi alterarn partem
rule is, of course, too fundamental to be tampered
with for the sake of saving time and money. The
appellants are right when they say that the Motions
Judge was not entitled to grant the orders sought in
the originating motions before they had been
afforded a full opportunity to present their case.
This natural justice argument acquired even further
substance in the course of the appeal hearing. In their
amended notices of motion, the respondents had
listed among the several ministerial decisions for
which they were seeking certiorari a certain
Approval dated February 19, 1990 granted to Alcan
pursuant to the Navigable Waters Protection Act.
During the hearing in the court below, counsel for the
respondents had agreed to delete that Approval from
the list; they had been led to believe that the docu
ment was not relevant to the KCP by statements con
tained in an affidavit filed by Alcan. The formal Trial
Division decision still refers to this particular
Approval (probably because the written motions had
not been formally amended), but it was common
ground that the issue was not before the Motions
Judge who, in fact, does not refer to it anywhere in
his reasons. In the course of the appeal hearing, how
ever, it was realized that there had been some misun
derstanding by all concerned since, in fact, the partic
ular Approval was actually linked to the KCP and
counsel for the respondents asked the Court for leave
to withdraw their agreement not to attack it so as to
revive the issue. Counsel for Alcan were prepared not
to oppose the withdrawal, but they advised that they
intended to adduce evidence to show the circum
stances in which the Approval was issued with a view
to arguing alternatively, if necessary, that its issuance
was borne of an abundance of caution; it was not nec
essary for the completion of the project.
In light of these flaws, there is no doubt in my
mind that this Court could not uphold the conclusions
of the learned Motions Judge without depriving the
appellants of their right to place before the Court all
their means of defence.
III
The appellants go even further. They submit that,
in any event, on the face of the record as it stands,
however unsatisfactory and incomplete it is, even
adding the issue with respect to the February 19,
1990 Approval, the only conclusion the Motions
Judge could reach was that the EARP Guidelines did
not apply to any of the impugned ministerial actions
identified in the applications as having been made in
relation to the Kemano Completion Project, so that
the remedies sought in the originating motions could
not be granted. In my judgment, this final and deci
sive submission is also correct.
Indeed, as I see it: (a) none of the impugned minis
terial actions which are said to have triggered the
application of the EARP Guidelines to the KCP con
stituted decisions capable of bringing the KCP within
the purview of the Guidelines; and (b) if there was
any doubt to that effect, order in council SOR/90-729
would have definitely settled the matter.
(a) The actions were not decisions within the mean
ing of the Guidelines.
Section 6 of the EARP Guidelines provides that
the requirements set out therein apply only to "pro-
posals", a term which, pursuant to section 2, means
"any initiative, undertaking or activity for which the
Government of Canada has a decision-making
responsibility". The Supreme Court of Canada, in its
recent judgment in the Oldman River case, was called
upon to determine, for the first time, the scope of
application of the Guidelines by commenting on that
definition of the term "proposal" given by section 2.
In writing the reasons for a unanimous Court (Mr.
Justice Stevenson dissented on other issues), Mr. Jus
tice La Forest, after having rejected a suggestion that
the Guidelines could be applicable only to projects
where the federal government would be the promi
nent or sole decision-making authority, wrote as fol
lows, at pages 47-50:
That is not to say that the Guidelines Order is engaged every
time a project may have an environmental effect on an area of
federal jurisdiction. There must first be a "proposal" which
requires an "initiative, undertaking or activity for which the
Government of Canada has a decision making responsibility".
(Emphasis added.) In my view the proper construction to be
placed on the term "responsibility" is that the federal govern
ment, having entered the field in a subject matter assigned to it
under s. 91 of the Constitution Act, 1867, must have an affirm
ative regulatory duty pursuant to an Act of Parliament which
relates to the proposed initiative, undertaking or activity. It
cannot have been intended that the Guidelines Order would be
invoked every time there is some potential environmental
effect on a matter of federal jurisdiction. Therefore, "responsi-
bility" within the definition of "proposal" should not be read as
connoting matters falling generally within federal jurisdiction.
Rather, it is meant to signify a legal duty or obligation. Once
such duty exists, it is a matter of identifying the "initiating
department" assigned responsibility for its performance, for it
then becomes the decision-making authority for the proposal
and thus responsible for initiating the process under the Guide
lines Order.
That there must be an affirmative regulatory duty for a
"decision making responsibility" to exist is evident from other
provisions found in the Guidelines Order which suggest that
the initiating department must have some degree of regulatory
power over the project. For example s. 12 provides:
12. Every initiating department shall screen or assess each
proposal for which it is the decision making authority to
determine if
(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.
Again, s. 14 reads:
14. Where, in any case, the initiating department deter
mines that mitigation or compensation measures could pre
vent any of the potentially adverse environmental effects of
a proposal from becoming significant, the initiating depart
ment shall ensure that such measures are implemented.
Those provisions amplify the regulatory authority with which
the Government of Canada must have clothed itself under an
Act of Parliament before it will have the requisite decision-
making responsibility.
Applying that interpretation to the present case, it will be
seen that the Oldman River Dam project qualifies as a proposal
for which the Minister of Transport alone is the initiating
department. In my view the Navigable Waters Protection Act
does place an affirmative regulatory duty on the Minister of
Transport. Under that Act there is a legislatively entrenched
regulatory scheme in place in which the approval of the Minis
ter is required before any work that substantially interferes
with navigation may be placed in, upon, over or under, through
or across any navigable water. Section 5 gives the Minister the
power to impose such terms and conditions as he deems fit on
any approval granted, and if those terms are not complied with
the Minister may order the owner to remove or alter the work.
For these reasons I would hold that this is a "proposal" for
which the Minister of Transport is an "initiating department".
There is, however, no equivalent regulatory scheme under
the Fisheries Act which is applicable to this project. Section 35
prohibits the carrying on of any work or undertaking that
results in the harmful alteration, disruption or destruction of
fish habitat, and s. 40 lends its weight to that prohibition by
penal sanction. The Minister of Fisheries and Oceans is given a
discretion under s. 37(1) to request information from any per
son who carries on or proposes to carry on any work or under
taking that will or may result in the alteration, disruption or
destruction of fish habitat. However, the purpose of making
such a request is not to further a regulatory procedure, but is
merely to assist the Minister in exercising an ad hoc delegated
legislative power granted under s. 37(2) to allow an exemption
from the general prohibition. That provision reads:
37....
(2) If, after reviewing any material or information pro
vided under subsection (1) and affording the persons who
provided it a reasonable opportunity to make representa
tions, 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 per
son des nated by the Minister may, by order, subject to reg
ulations made pursuant to paragraph (3)(b), or, if there are
no such regulations in force, with the approval of the Gover
nor 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 Min
ister or a person designated by the Minister considers nec
essary 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 Minis
ter considers necessary in the circumstances. [Emphasis
added.]
In my view a discretionary power to request or not to
request information to assist a Minister in the exercise of a leg-
islative function does not constitute a decision-making respon
sibility within the meaning of the Guidelines Order. Whereas
the Minister of Transport is responsible under the terms of the
Navigable Waters Protection Act in his capacity as regulator,
the Minister of Fisheries and Oceans under s. 37 of the Fisher
ies Act has been given a limited ad hoc legislative power which
does not constitute an affirmative regulatory duty. For that ma
son, I do not think the application for mandamus to compel the
Minister to act is well founded.
The key words in these passages are "affirmative
regulatory duty" which appears to be used in contrast
to the expression "ad hoc delegated legislative
power". Their exact meaning in the context in which
they are used is not perfectly clear and counsel obvi
ously were in complete disagreement as to their
scope and content when came the time to apply them
to the facts and legislation of the present case. Coun
sel for the appellants would have assigned to them
quite a limited reach, arguing, for instance, that in the
case of an "ad hoc delegated legislative power", such
as the one conferred on the Minister of Fisheries and
Oceans by subsection 37(2) of the Fisheries Act, the
EARP Guidelines would never be triggered. Counsel
for the respondents, on the contrary, favoured an
extended interpretation, seeking support in the strong
words used by La Forest J. at the outset of his reasons
in stressing the importance that the protection of the
environment had acquired in today's society.
My understanding of the judgment differs some
what from that of counsel. I do not think that La For
est J. ever had in mind, in discussing the discretion of
the Minister of Fisheries and Oceans to request infor
mation under section 37, the actual exercise of the
powers he has under subsection 37(2) to impose
modifications, additions or restrictions to a proposed
work or undertaking. Nor do I think that the impor
tance assigned today to the protection of the environ
ment could have any bearing on whether an EARP
review is triggered or not. The protection of the envi
ronment, in our country, is the responsibility of all
levels of government, and the challenge it has
become, to use the words of La Forest J., must be
presumed to have been assumed by all levels of gov
ernment with regard to their respective legislative
authority; so it is not, in itself, the issue here. The
significance of environmental protection cannot help
us determine which government is entitled to, and
has the duty to, assume responsibility.
The propositions for which the judgment stands, as
I read it, are the following. The EARP Guidelines
must be given full application in all cases where Par
liament has conferred on a federal minister the power
and duty to give or refuse permission to carry on a
work or to impose terms and conditions under which
the work could be carried on, the promoter being pre
cluded from acting without prior ministerial consent.
The Guidelines have no application, however, when a
minister, who has been conferred the power and duty
to intervene in certain conditions, is still in the stage
of supervising, controlling and verifying whether
those conditions requiring his intervention actually
exist. The environmental impact assessment man
dated by the Guidelines Order is not meant to satisfy
mere academic curiosity but to help a minister in the
exercise of a duty to intervene and act positively with
respect to the execution or completion of a project.
It is on the basis of these propositions that I have
concluded that none of the impugned actions of the
Ministers namely: i) the execution of the Settlement
Agreement; ii) the decision pursuant to subsection
20(10) of the Fisheries Act; iii) the several declara
tions of exemption pursuant to subsection 5(2) of the
Navigable Waters Protection Act; and finally iv) the
Approval pursuant to subsection 10(2) of the Naviga
ble Waters Protection Act, required the previous
application of the Guidelines to the Project, because
none was the result of a decision made in the exercise
of a federal Minister's decision-making responsibil
ity.
(i) The execution of the Settlement Agreement by
the Minister of Fisheries and Oceans was not such an
action. First, as we have seen, this was an agreement
between Alcan, Her Majesty the Queen in right of
Canada and Her Majesty the Queen in right of the
Province of British Columbia which was aimed at,
inter alia, settling litigation between Alcan and the
federal Crown. The decision to settle was an execu
tive decision taken by the Government of Canada.
The Minister of Fisheries and Oceans simply signed
the Agreement on behalf of the Crown. He prepared
the decision, of course, and his influence in Cabinet
would surely be an important factor given his poten
tial future responsibility, but he did not exercise any
independent decision-making authority with respect
to it; an order in council, P.C. 1987-2481, approving
the Settlement Agreement had to be passed.
Besides, the lawsuit which was being settled by the
Agreement had been initiated, as indicated above, as
a result of concerns raised by the federal fisheries
officials about the level of water released into the
Nechako River from the existing facilities and the
main issue was the scope of the Minister's statutory
and constitutional power to control flows on the
Nechako River under the Fisheries Act. It was of
course inevitable that, in determining the conditions
of the settlement, not only the existing facilities but
also their projected extension would be taken into
account. But, that did not make the decision to enter
into the Agreement one taken pursuant to any affirm
ative regulatory duty established under an Act of Par
liament.
It is argued that, by virtue of the provisions of the
Settlement Agreement, the Minister of Fisheries and
Oceans has assumed some type of regulatory duty in
relation to the KCP. That may be the case, but the
duty would be new and assumed; it would not be a
duty conferred under a federal statute, and the Agree
ment was obviously not entered into pursuant to any
such duty. On the other hand, if the creation of a
mechanism for the cooperative management of the
fish and water resources of the Nechako River is, no
doubt, one of the main aspects of the Agreement,
such a mechanism simply provides a means of assist
ing the Minister in carrying out his general responsi
bilities in relation to fish. The mechanism does not by
itself create an affirmative regulatory duty in the
Minister. On the contrary, it is meant to render
unnecessary the exercise of his power to intervene
and enforce special terms and conditions that may
become warranted.
(ii) Similarly, the signing by the same Minister of
Fisheries and Oceans of an opinion-letter pursuant to
subsection 20(10) (now subsection 22(3)) of the Fish
eries Act, was not a decision which could trigger the
application of the Guidelines.
Subsection 22(3) provides as follows:
22....
(3) The owner or occupier of any obstruction shall permit
the escape into the river-bed below the obstruction of such
quantity of water, at all times, as will, in the opinion of the
Minister, be sufficient for the safety of fish and for the flood
ing of the spawning grounds to such depth as will, in the opin
ion of the Minister, be necessary for the safety of the ova
deposited thereon.
This provision does not concern the approval or
rejection of a proposal or project. Rather, it contem
plates an obstruction already in place. Besides, in
expressing his view as to the flows required to pro
vide sufficient water for the safety of fish and the
flooding of the spawning grounds, the Minister was
not exercising an affirmative regulatory duty, but
rather, stating the conditions under which he would
not consider it to be his duty to intervene. In other
words, the opinion-letter was not an approval but
merely a direction as to how the project should pro
ceed to satisfy the obligations imposed on the owner
or occupier by the law.
(iii) It is also clear to me that the declarations of
exemption issued by the Minister of Transport for
certain elements of the KCP that required construc
tion in, or across, navigable waters could not trigger
the application of the Guidelines.
The section of the Navigable Waters Protection Act
which was applicable is the following:
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 construc
tion;
(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).
(2) Except in the case of a bridge, boom, dam or causeway,
this section does not apply to any work that, in the opinion of
the Minister, does not interfere substantially with navigation.
In providing in subsection 5(2) that, where a pro
ject does not interfere substantially with navigation,
subsection 5(1) does not apply, Parliament has
clearly indicated that the Minister has no regulatory
duty or power in relation to works which do not
interfere with navigation. This limitation is wholly in
keeping with the federal jurisdiction under the Con
stitution, which only arises when there is an actual or
eventual impact on navigation.
The declarations of exemption in question here
were all strictly based on an acknowledgement that
the works described would not interfere substantially
with navigation. As a result, the approval provisions
of subsection 5(1) were not applicable. We are
strictly concerned here with a finding of fact. The
word exemption may be misleading, although there
is, in a sense, an exemption from the necessity of
approval. In reality, a subsection 5(2) "exemption" is
an acknowledgement based on a finding of fact. It
may be that the finding of fact behind the acknowl
edgement was not accurate and could somehow be
disputed. But obviously, the mere making of a find
ing of fact cannot be treated, in this context or in any
other, as an exercise of regulatory power.
(iv) The same reasoning applies, it seems to me, to
the Approval, dated February 19, 1990, granted by
the Minister of Transport pursuant again to the Navi
gable Waters Protection Act, more precisely its sub
section 10(2).
Section 10 of the Navigable Waters Protection Act
reads thus:
10. (1) Any lawful work may be rebuilt or repaired if, in the
opinion of the Minister, interference with navigation is not
increased by the rebuilding or repairing.
(2) Any lawful work may be altered if
(a) plans of the proposed alteration are deposited with and
approved by the Minister; and
(b) in the opinion of the Minister, interference with naviga
tion is not increased by the alteration.
(3) For the purposes of sections 5, 6 and 12, a reference to
the plans of a work shall be construed as including the plans of
the alteration thereof referred to in subsection (2).
(4) Where, in the opinion of the Minister, an existing lawful
work has become a danger to or an interference with naviga
tion by reason of the passage of time and changing conditions
in navigation of the navigable waters concerned, any rebuild
ing, repair or alteration of the work shall be treated in the same
manner as a new work.
In my view, an approval under subsection (2) is of
the same type as a subsection 5(2) exemption. It is
true that, on the face of the enactment, the Minister
has to make a decision of approval; but one should
not be misled by the legislative technique. The deci
sion under subsection 10(2) amounts to an acknowl
edgement that the alteration will not, as a fact, inter
fere substantially with navigation, with the result that
the Minister will not have to exercise his power to
intervene.
Thus, in my judgment, none of the impugned
actions of the Minister could have drawn the applica
tion of the Guidelines to the Project.
(b) SOR/90-729: The Exemption Order
In any event, even if my analysis above is faulty,
the "Exemption Order" would have settled the mat
ter. SOR/90-729 expressly provides that the EARP
Guidelines do not apply to the Kemano Project. It
reads as follows:
P.C. 1990-2252 12 October, 1990
His Excellency the Governor in Council, on the recommen
dation of the Minister of the Environment, pursuant to section
6 of the Department of the Environment Act, is pleased hereby
to approve the annexed Order establishing the Kemano Com
pletion Project Guidelines, made by the Minister of the Envi
ronment on October 4, 1990.
ORDER ESTABLISHING THE KEMANO
COMPLETION PROJECT GUIDELINES
Short Title
1. This Order may be cited as the Kemano Completion Pro
ject Guidelines Order.
2. The Environmental Assessment and Review Process
Guidelines Order does not apply to the project known as the
Kemano Completion Project and, in particular, to any deci
sions made as a result of the Settlement Agreement entered
into by Her Majesty in right of Canada, Her Majesty in right of
the Province of British Columbia and Alcan Aluminum Lim
ited on September 14, 1987 and approved by the Governor in
Council by Order in Council P.C. 1987-2481 of December 10,
1987.
This order in council was, on its face, an obvious
bar to the relief sought by the respondents in their
originating motions and the Motions Judge saw
immediately that, in spite of his reservations about
whether it was open to him to do so, he had to quash
it, if his conclusions that the Guidelines were applica
ble were to be given effect. He said as follows (at
page 300):
Paragraph 5 presents a more difficult problem in view of the
Order in Council SOR/90-729, since there is considerable
doubt by virtue of the jurisprudence whether it can be quashed
in the present proceedings, if at all. The applicants insist that it
is the recommendation of the Minister leading to the adoption
of the Order in Council which they seek to quash, and, if it is
quashed, then the Order in Council itself will be without effect.
While I am prepared to quash the Minister's decision, it would
appear that if nothing is said with respect to the Order in Coun
cil, it may well be subsequently relied on by respondents in
order to defeat the order to be made herein to hold an environ
mental assessment review under the EARP process. This would
result in subsequent time-consuming proceedings. In practice,
therefore, in order to avoid this, it may be necessary not only
to quash the Minister's recommendation that no review be
made, but also the resulting Order in Council adopting this rec
ommendation, so I will also grant certiorari with respect to
para. 5 of the motions.
The learned Judge does not indicate the legal basis
on which he relies to set the order in council aside.
Elsewhere in his reasons, he vaguely addresses criti
cism with respect to its adoption and notes, with
some irritation, that it was passed the day following
the filing of the originating motions. But in this cen
tral passage just quoted, while he gives an explana
tion as to why he feels it necessary to quash the
order, he does not say on what ground he was doing
so. The respondents, in defending the Judge's conclu
sion, reiterated what they had alleged in the proceed
ings, namely: that the order was ultra vires the pow
ers conferred by the Act; that it was enacted in bad
faith and contrary to section 35 of the Constitution;
and finally that it was passed in disregard of the legit
imate expectations of the respondents. Could any of
these grounds be sustained? I think not.
Whether the order in council is characterized as an
amendment to the EARP Guidelines enacted for the
purpose of specifically exempting the Project from
their application, or as a mere confirmation that the
scope of the Guidelines did not extend to it, made
with a view to clarifying the situation, it seems to me
that, passed, as it was, pursuant to section 6 of the
Department of the Environment Act, it was clearly
authorized by Parliament. The power to adopt regula
tions or other legislative enactments necessarily
includes the power to clarify, amend or vary those
regulations or enactments subsequently, provided, of
course, that the power is not exercised in a manner
which would contravene the intentions of the legisla
ture. But, I simply do not see how it could be said
that the order in council is not in conformity with the
duties and functions of the Minister of the Environ
ment defined in section 4 of the Department of the
Environment Act or was enacted without due regard
to the prescriptions set out in section 5 of the said
Act. 4
4 I reproduce here ss. 4, 5 and 6 of the Department of the
Environment Act:
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;
(c) water;
(d) meteorology;
(Continued on next page)
It was argued that there is a fundamental constitu
tional principle to the effect that a delegated legisla
tive authority cannot dispense with the law unless
power to do so has been formally conferred on it. A
passage of Professor Hogg's treatise on the Constitu
tional Law of Canada (2nd ed., 1985), at page 631,
was relied upon with the cases referred to therein.
The passage is the following:
(Continued from previous page)
(e) notwithstanding paragraph 4(2)W of the Department
of National Health and Welfare Act, the enforcement of
any rules or regulations made by the International Joint
Commission, 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;
(f) 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
coordinate 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 control 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 environment and that a further review is car
ried out of those projects, programs and activities
that are found to have probable significant adverse
effects, and the results thereof taken into account,
and
(iii) to provide to Canadians environmental informa
tion in the public interest;
(b) promote and encourage the institution of practices and
conduct leading to the better preservation and enhance
ment of environmental quality, and cooperate with pro
vincial governments or agencies thereof, or any bodies,
organizations or persons, in any programs having similar
objects; and
(Continued on next page)
A corollary of cases such as Entick v. Carrington and Ron-
carelli v. Duplessis is that the Prime Minister (or Premier) or a
Minister of the Crown or any other representative of the gov
ernment has no power to suspend the operation of a law for a
time, or to dispense with a law in favour of a particular person
or group. These "suspending" and "dispensing" powers were
asserted by the Stuart Kings, but were abolished by the Bill of
Rights of 1688. From time to time, modern governments assert
such powers, and the assertions are repudiated by the courts,
who always add a stern admonition that the Crown is not
above the law 2'
And footnote 21 reads thus:
21 Fitzgerald v. Muldoon [1976] 2 N.Z.L.R. 615 (N.Z. S.C.)
(N.Z. Prime Minister may not suspend statutory obligation
to contribute to state pension plan); Re Anti-Inflation Act
[1976] 2 S.C.R. 373 (Lieutenant Governor in Council may
not change law by agreement with Governor in Council);
Man. Govt. Employees Assn. v. Govt. of Man. [1978] 1
S.C.R. 1123 (same decision); R. v. Catagas (1977) 81
D.L.R. (3d) 396 (Man. C.A.) (Minister may not dispense
with Migratory Birds Convention Act in favour of native
people.)
A misunderstanding must be avoided here. It is
obvious that the will of Parliament is paramount and
no administrative or executive authority is entitled to
contravene it, whether directly or indirectly. But that
does not mean that a delegate empowered to make
subordinate law has no power to dispense from the
law he makes. This could be so, I agree, if it appears
that Parliament's intention was that the law to be
made would be applicable to everyone. For example,
had the word "must" been used in section 6 of the
Department of the Environment Act instead of "may",
an argument could have been made that the intention
was to forbid any exemption. But this is not the case.
And if the original Guidelines could have had a
clause exempting the KCP, why could the same result
(Continued from previous page)
(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.
6. For the purposes of carrying out his duties and func
tions related to environmental quality, the Minister may, by
order, with the approval of the Governor in Council, esta
blish guidelines for use by departments, boards and agencies
of the Government of Canada and, where appropriate, by
corporations named in Schedule Ill to the Financial Admi
nistration Act and regulatory bodies in the exercise of their
powers and the carrying out of their duties and functions.
not be achieved in two steps? Frequent use of this
device could undermine the credibility of the Guide
lines, but surely this is a matter for Parliament to
resolve, not the Courts. It is obvious to me that
SOR/90-729 cannot be said to have been passed in
contravention of the intentions of Parliament.
On the other hand, the allegation that the order in
council would have been passed in bad faith and con
trary to section 35 of the Constitution, if relevant,
which I doubt, remains totally unsubstantiated. If the
purpose of the Act has not been breached, there can
be no question of bad faith, and, on the evidence
before the Court, section 35 of the Constitution can
have no bearing whatsoever. To say that in passing
the order in council, the Government was illegally
breaching its fiduciary duty towards aboriginals, not
only would one have to be aware of the precise con
tent of that duty but, more particularly, be satisfied
that the only way to fulfill that duty, in the circum
stances, would be to confirm the application of the
Guidelines to the Project. Of course, there is nothing
in the record that could lead to such a conclusion.
Finally, I do not see how the order could be
impugned on the ground of legitimate expectation.
First, the circumstances required to give support to a
possible application of this recently developed doc
trine of legitimate expectation do not exist as the evi
dence does not show that there has ever been a prom
ise from someone in authority on which reliance was
placed by the respondents. Second, and more impor
tantly, the doctrine, as I understand it, was meant to
apply in matters of administrative procedure; it does
not and cannot, it seems to me, have any bearing on
the validity of legislative enactment.
There is simply no basis, in my judgment, on
which order in council SOR/90-729 could be
declared of no force and effect. If I am wrong in
thinking that none of the impugned ministerial
actions by themselves were subject to the application
of the EARP Guidelines to the KCP, this so-called
Exemption Order would settle all difficulties.
My overall conclusion, therefore, is that the
appeals should be allowed and the cross-appeal dis
missed; the various orders issued by the Motions
Judge should be quashed and the originating motions
of the respondents should be dismissed.
The appellants should be entitled to their costs
both here and in the Trial Division. While the
originating motions were argued together both here
and below, the appellant Alcan and the appellant
Ministers were represented by separate counsel in
both Divisions. Accordingly, the appellant Alcan and
the appellant Ministers should be entitled to a sepa
rate set of costs in this Court as well as in the Trial
Division.
HEALD 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.