Tsawwassen Indian Band v. Canada (Minister of Environment), docket T-1033-96

Date: 19980319

Docket: T-1033-96

BETWEEN:

     SHARON BOWCOTT, on behalf of the Band Council

     of the TSAWWASSEN INDIAN BAND and the Members

     of the TSAWWASSEN INDIAN BAND also known as the

     TSAWWASSEN FIRST NATION

     Applicant

     - and -

     MINISTER OF ENVIRONMENT and

     VANCOUVER PORT CORPORATION

     Respondents

     REASONS FOR ORDER

RICHARD J.:

NATURE OF THE PROCEEDINGS

[1]      On May 3, 1996, the applicant, Tsawwassen First Nation, brought an application for judicial review for the purpose of obtaining the following orders:

1. That the decision of the Minister of Environment, communicated in a letter dated March 28th, 1996, to decline to establish a Board of Review to examine Ocean Disposal Permit No. 4543-2-03137, issued to the Vancouver Port Corporation in relation to the Deltaport Container Terminal Project (the "Project"), be quashed or set aside.

2. That the Minister of Environment be required to subject the Project to an environmental assessment pursuant to the Canadian Environmental Assessment Act ("CEAA").

3. In the alternative, that the Minister of Environment be required to establish a Board of Review pursuant to ss. 86 and 89 of the Canadian Environmental Protection Act ("CEPA") to review Ocean Dumping Permit No. 4543-2-03137, such review to consider, inter alia, the scope of the Project to be assessed pursuant to CEAA.

[2]      The application is based on the following grounds:

1. The Minister of Environment erred in law by failing to comply with the provisions of CEAA, as the screening was limited to an inquiry into the disposal of dredgeate spoil, rather than an assessment of the Deltaport Container Terminal Project as a whole.

2. In making his decision to decline to appoint a Board of Review, the Minister erred in law, by acting on a view of the facts that could not be reasonably sustained:

(a)      in concluding that the Project had already been assessed under another federal environmental assessment process; and

(b)      in concluding that the ocean disposal component was not essential to the completion of the Project;

3. The decision of the Minister of Environment, denying the request of the Tsawwassen First Nation, was first communicated to the Applicant on April 4th, 1996.

[3]      In argument, counsel for the applicant limited the challenge to the amendment to the permit, recognizing that the applicant was out of time with respect to the original, or first permit.

[4]      This application for judicial review was heard at the same time as the proceedings in consolidated Court File Nos. T-223-96 and T-224-96 in which I have issued a separate order and reasons.

BACKGROUND

[5]      This proceeding arises out of the construction of the Deltaport Container Terminal at the Roberts Bank Port located in the Municipality of Delta, British Columbia and opened in 1970. It consists of a rectangular area of approximately 260 acres (106 hectares) of created land sited in deep water off-shore and joined to the mainland by a 4 km causeway.

[6]      The Roberts Bank Port is in the estuary of the Fraser River which is one of the most ecologically important estuaries in North America.

[7]      The Roberts Bank port facilities are administered and managed by the Vancouver Port Corporation (VPC), which is a local port corporation established under the provisions of the Canada Ports Corporation Act¹ and is a Crown corporation within the meaning of the Financial Administration Act².

[8]      The first port facilities at Roberts Bank were completed by the National Harbours Board (NHB) in 1970 and consisted of a 4 km causeway leading to a 49 acres (20 hectares) coal port terminal. The coal port terminal has been in operation from 1970 to the present.

[9]      Between 1981 and 1984, it was expanded to its current size of approximately 260 acres. The NHB also conducted the expansion work between 1981 and 1984. Following the expansion between 1981 and 1984, the extent of the area of the Roberts Bank port facilities was, and still is at present, approximately 260 acres (106 hectares).

[10]      The superport is divided into four portions, known as "pods", two of which are occupied by a bulk coal terminal operated by Westshore Terminals Limited. Up until 1993, the other two pods had remained undeveloped.

[11]      It was proposed in the early 1990s to locate the Deltaport Container Terminal on one of the unoccupied pods of the Roberts Bank superport.

[12]      The Project was completed and the Terminal was fully operational by June 1997.

[13]      Since commencing construction of the Deltaport project, the VPC applied for and obtained, under the Canadian Environmental Protection Act³ (CEPA) and under the Ocean Dumping Control Act⁴, permits and amendments to permits for disposal of dredged material. In each instance, the applications were assessed by the Department of the Environment and it was determined that environmental effects would be insignificant.

[14]      In 1993, the VPC applied for and obtained an ocean disposal permit under the CEPA from Environment Canada for the disposal of dredged material. Environment Canada completed an environmental assessment of the 1993 application, in accordance with the Guidelines Respecting the Implementation of the Federal Policy on Environmental Assessment and Review Process Guidelines Order⁵ (EARP Guidelines Order), before issuing permit No. 4543-2-03092 on September 27, 1993.

[15]      In March of 1994, the VPC requested an amendment to permit No. 4543-2-03092 to move the disposal site to a new location. Again, Environment Canada carried out an environmental assessment of the proposed relocation under EARP Guidelines Order, and gave public notice of the application. No comments were received from the applicant or any other member of the general public. The amendment to permit No. 4543-2-03092 was issued on April 25, 1994.

[16]      Similarly, a further amendment to permit No. 4543-2-03092, respecting the method of dredging and disposal, was applied for in August 1994. Environment Canada carried out an environmental assessment under EARP Guidelines Order, and gave public notice (with no response) before issuing an amendment on September 23, 1994.

[17]      And similarly, a further amendment was requested on September 29, 1994, assessed, given public notice (with no response) and issued on October 10, 1994.

[18]      On April 13, 1995, the VPC wrote to Environment Canada explaining that, although permit No. 4543-2-03092 was scheduled to expire at the end of April, 1995, only 222,000 cubic metres out of an authorized 450,000 cubic metres of dredged material had been actually disposed. Accordingly, the VPC requested a new permit to cover the 228,000 cubic metres which had previously been authorized but not disposed of.

[19]      By this point in time, the Deltaport terminal had been under construction for 19 months (since September 1993) and Environment Canada had already approved permit No. 4543-2-03092 and three subsequent amendments and had conducted environmental assessments in each case. The disposal of the remaining 228,000 cubic metres of material under permit No. 4543-2-03092 had, in particular, already been assessed and approved.

[20]      The April 1995 application by the VPC for a new permit to cover the remaining 228,000 cubic metres not disposed of under permit No. 4543-2-03092 required that the Department of the Environment conduct an environmental assessment under paragraph 5(1)(d) of the Canadian Environmental Assessment Act⁶ (CEAA) which had been proclaimed in force on January 19, 1995.

[21]      Environment Canada conducted an environmental assessment of the April 1995 application, in accordance with the requirements of the CEAA before issuing permit No. 4543-2-03137 (the permit) on June 16, 1995, for the disposal of the remaining 228,000 cubic metres of dredged material.

[22]      Before the permit was issued, the VPC advertised the application and Environment Canada gave public notice, and no comments were received from the applicant or any member of the general public.

[23]      On September 28, 1995, the VPC applied for an amendment to the permit to increase the volume of material to be disposed from 228,000 cubic metres to 430,000 cubic metres. Again, Environment Canada carried out an environmental assessment in accordance with the CEAA before approving and giving notice of the amendment to the permit (the amendment) in the Canada Gazette on October 14, 1995.

[24]      The activity authorized under permit No. 4543-2-03137 had been completed by September 1995 while the activity authorized by the amendment was completed in November 1995, before any request for a Board of Review to be established.

[25]      On December 13, 1995, the solicitors for the Tsawwassen First Nation wrote to the Minister of Environment (MOE) requesting the establishment of a Board of Review under the CEPA to review the amendment.

[26]      On March 28, 1996, the MOE wrote to the solicitors for the applicant to advise that:

Thank you for your letter of December 13, in which you request, on behalf of the Tsawwassen First Nation, that I establish a board of review to examine the ocean disposal permit issued to the Vancouver Port Corporation and the amendment.

Your request has been carefully reviewed. However, for the reasons outlined below, I do not consider it necessary to establish a board of review under section 89 of the Canadian Environmental Protection Act (CEPA).

The application and evidence that the Notice of Intent to apply for a permit had been published in a newspaper of general circulation were received on May 2, 1995. The permit application was determined to be related to a larger undertaking, which had previously been assessed under another federal environmental assessment process. Environment Canada concluded that the ocean disposal component was not essential to the completion of the larger undertaking and scoped the project as a separate one. Accordingly, the disposal project was evaluated in accordance with the Canadian Environmental Assessment Act (CEAA). All information gathered and generated in respect of this assessment was made available for public comment through the Public Registry at Environment Canada's office in North Vancouver. No concerns about the dredging and disposal project were brought to the attention of my department.

The amendment to increase the volume of material to be disposed of was sought last September and issued in October. This amendment was also assessed under the CEAA and it was determined that the environmental effects would be insignificant. The documents gathered and generated during this assessment were also available in the Public Registry.

I believe that my department has met all of the requirements of Part VI of CEPA. It ensured that notices were published by the proponent in advance of the application to allow for public participation. No concerns were brought to the attention of Environment Canada in response to this opportunity for public input and comment.

Furthermore, I am satisfied that my department followed the procedures established to comply with the CEAA. It identified and scoped the ocean disposal project, assessed the potential adverse environmental effects and provided an opportunity for public comment on the environmental assessment report of the ocean disposal project.

I trust that the foregoing clarifies my position on this issue.

[27]      In an affidavit dated September 11, 1997, Timothy R. Glasheen, Director, Engineering & Maintenance, the VPC, confirmed that the Deltaport Container Terminal has been constructed at cost to the VPC of approximately $180 million and has been in operation as a fully functioning container terminal since the first arrival of a container ship on June 8, 1997.

[28]      In a supplementary affidavit dated September 10, 1997, Dr. A. John Jordan, Environmental Professional, stated that there was no evidence of adverse environmental impacts resulting from the construction of the Terminal or the dredging works and no concerns have been raised by the Department of Fisheries and Oceans (DFO) or any other environmental regulatory authorities. Monitoring of the rock reef has shown it to be well colonized. The reef is highly productive and very successful.

[29]      The affidavit of Gerald F. Waverick, Project Manager of a joint venture, known as Containerport Constructors, retained to build the Deltaport Container Terminal at Roberts Bank, B.C., sworn June 7, 1996, sets out the history of the disposal of the fill:

In early 1995, completion of the Deltaport surface required deposit of fill on the pod surface in stockpiles for eventual placement behind the caissons;

A number of sources of suitable material were available for use as fill, and various alternatives were considered as follows:

(a)      Obtain sand from a borrow located in the Steveston Reach area which is located in the main arm of the Fraser River. The material would be dredged and transported to the Deltaport site by means of a self-propelled hopper barge (the Fraser Titan);

(b)      Obtain sand from maintenance dredging contracts in the Fraser River and transport to site;

(c)      Obtain sand from other projects in the Fraser River and Vancouver Harbour areas and transport to site;

(d)      Obtain sand by using the suction dredger which Containerport Constructors employed on the project in 1994, with the fine silt materials to be separated from the sand. The sand could then be used as fill and the separated finer silts could be disposed of off-shore.

Alternatives (a), (b) and (c) above, as considered by Containerport Constructors, would not require an ocean dumping permit. Alternative (d) would require an ocean dumping permit.

The container terminal project was not dependent on the ocean dumping permit, since there were other readily available sources of fill material if option (d) was not available. The decision to use alternative (d) and to apply for an ocean dumping permit was made only on the basis of convenience and cost. Similarly, the project was not dependent on obtaining the October 1995 amendment to the same ocean dumping permit, since the above options (a) through (c) were still available to obtain additional fill material as needed.

[30]      In an affidavit sworn on June 10, 1996, Adrian Cowper Duncan, a Professional Engineer, an employee of the Department of Environment and chair of the Environmental Review Committee (ERC) of the Fraser River Estuary Management Program (FREMP) affirmed that the ERC had reviewed earlier applications by Containerport Constructors to carry out suction dredging at various areas within the main shipping navigation channel of the Fraser River. Subsequently however, an entirely different source of material was identified by the VPC and its contractors. Under this new alternative, this fill material would be obtained by dredging within the existing turning basin at the Roberts Bank's Port rather than being obtained by dredging in the Fraser River and transported the fill material to the Deltaport construction site and storing it in a temporary underwater stockpile. The ERC subsequently reviewed several applications from the VPC and its contractors with respect to this new alternative. These applications were approved by the ERC subject to certain environmental conditions.

ISSUES

[31]      The applicant raised the following issues in its memorandum of fact and law dated June 12, 1996:

The Applicant submits that the central issue which arises in respect of the decision of the Minister of the Environment to decline to establish a Board of Review pursuant to sections 86 and 89 of the Canadian Environmental Protection Act ("CEPA") to review Ocean Dumping Permit No. 4543-2-03137 (the "Permit") is whether the Minister erred in concluding that the ocean disposal authorized by the Permit was properly evaluated without taking into account its relationship to the Deltaport Project and compliance with the Canadian Environmental Assessment Act ("CEAA").

The following specific issues arise with respect to the Minister's decision, communicated to the applicant, Tsawwassen First Nation, April 4th, 1996:

(a)      Did the Minister err in concluding that the disposal Project authorized by the Permit was properly evaluated in accordance with CEAA?

(b)      Did the Minister err in concluding that the Deltaport Project had already been assessed under another federal environmental assessment process?

(c)      Did the Minister err in concluding that the ocean disposal component, authorized by the Permit, was not essential to the completion of the Deltaport Project?

(d)      Did the Minister err in concluding that the environmental effects of the ocean disposal, authorized by the Permit, would be insignificant?

(e)      Is an environmental assessment of the Deltaport - Project now required?

[32]      The applicant seeks to set aside the exercise of the Minister's discretion not establish a Board of Review and questions the reasons given by the Minister.

[33]      In the applicant's supplementary memorandum dated October 18, 1996, the applicant submitted:

In closing, the Applicant submits that the MOE was required to establish a Board of Review pursuant to ss. 86 and 89 of CEAA since:

(a)      the decision to issue the Ocean Dumping Permit was in relation to environmental protection, an issue which is of great importance to the Government of Canada;

(b)      there is a fiduciary relationship between Canada and First Nations; and

(c)      there is the potential for an adverse effect on the rights of the Tsawwassen First Nation, which rights are constitutionally-protected.

ANALYSIS

Issue No. 1 - Ministerial Discretion

[34]      Section 86 of the CEPA has no application to the issuance of an ocean disposal permit. Section 86 of the CEPA applies only to "orders" or "regulations" made under the CEPA. An ocean disposal permit is neither an "order" nor a "regulation".

[35]      Subsection 89(3) of the CEPA provides as follows:

89.(3) Where the Minister has published a copy of a permit or of any varied terms and conditions under subsection 73(1), the Minister may, if he considers it advisable to do so, establish a board of review to inquire into complaints from members of the public in respect of the permit or the varied terms and conditions.

[36]      Under subsection 89(3), the Minister "may" establish a Board of Review "if he considers it advisable", in connection with a permit. This is a discretionary authority. As well, the Minister had ample reason to decline to appoint a Board of Review, including the following:

(a)      the request (December 13, 1995) to establish a Board of Review was made two months after the amendment had been published in the Canada Gazette (October 14, 1995);

(b)      the request to establish a Board of Review came after the ocean disposal authorized under the amendment had already been completed (November 1995);

(c)      both the amendment and the original permit (issued in June 1995) had been assessed by Environment Canada under the CEAA and it was determined that environmental effects would be "insignificant"; and

(d)      the applicant presented no evidence that there were any environmental effects from the ocean disposal completed in November 1995.

[37]      The Minister properly exercised his discretion under subsection 89(3) of the CEPA.

[38]      The Board of Directors of the VPC gave final approval to the Deltaport Container Terminal on November 17, 1992. Construction of the Terminal commenced in September 1993, and was scheduled for completion by the end of December 1996.

[39]      Environment Canada, as the responsible authority, properly exercised its authority and discretion under subsection 15(1) of the CEAA by scoping the project to be assessed as an ocean disposal project. It was determined by Environment Canada that environmental effects of the ocean disposal authorized by both the permit and the amendment would be insignificant.

[40]      A Board of Review established under subsection 89(3) of the CEPA is only empowered "to inquire into complaints from members of the public in respect of the permit or the varied terms and conditions". Accordingly, the question of whether the Deltaport Container Terminal had already been assessed is not relevant to the considerations of a Board of Review under subsection 89(3).

[41]      The facts show that the ocean disposal authorized by the amendment was not essential to the completion of the Deltaport Container Terminal. The Deltaport Container Terminal was not dependent on the ocean disposal authorized under the amendment because there were other sources of fill which would not have required ocean disposal. The applicant presented no evidence to contradict these facts.

[42]      Environment Canada conducted environmental assessments of the permit issued on June 16, 1995, and of the amendment issued October 14, 1995 and determined that environmental effects would be insignificant. The ocean disposal authorized under the permit and the amendment were both completed before the applicant asked for a Board of Review under the CEPA and well before these court proceedings were commenced. No evidence was presented by the applicant to contradict the determination of Environment Canada that there were no significant environmental effects, or to show that there were any actual environmental effects, of the ocean disposal which was completed in November of 1995.

---

Issue No. 2 -      Was the Project, Authorized by the Permit, Properly Evaluated Under the CEAA

[43]      The amendment (as well as the original permit) were both subjected to environmental assessment under the provisions of the CEAA before being issued under the provisions of the CEPA. An order to set aside the amendment would have no effect and would not serve any useful purpose since the disposal authorized was completed in November 1995, and the amendment (and the permit) expired on June 30, 1996.

[44]      The original permit has not been directly challenged in these proceedings; it must be taken to have been validly issued.

[45]      Paragraph 5(1)(d) of the CEAA requires the "responsible authority", in this case the MOE, to do an environmental assessment before issuing an ocean disposal permit under section 71 of the CEPA. Paragraph 5(1)(d) states:

5.(1) An environmental assessment of a project is required before a federal authority exercises one of the following powers or performs one of the following duties or functions in respect of a project, namely, where a federal authority

     [. . .]

(d) under a provision prescribed pursuant to paragraph 59(f), issues a permit or licence, grants an approval or takes any other action for the purpose of enabling the project to be carried out in whole or in part.

[46]      Section 15(1) of the CEAA makes provisions for determining the "scope of the project" in relation to the environmental assessment to be conducted and reads as follows:

15.(1) The scope of the project in relation to which an environmental assessment is to be conducted shall be determined by

(a)      the responsible authority; or

(b)      where the project is referred to a mediator or a review panel, the Minister, after consulting with the responsible authority.

[47]      In accordance with subsection 15(1), the Department of the Environment, as the responsible authority, determined the "scope of the project" in relation to which an environmental assessment was to be conducted as the disposal of dredged material at sea.

[48]      The scoping of the project is clearly the power and duty of the responsible authority, in this case the MOE.

[49]      In accordance with subsection 15(1) of the CEAA, Environment Canada, as the responsible authority, determined that the "scope of the project" in relation to which an environmental assessment was to be conducted was the disposal of dredged material.

[50]      Counsel for the applicant did not press the issue of scoping in argument.

[51]      This "scoping of the project" fell within the responsibility of Environment Canada under subsection 15(1) of the CEAA. Parliament gave the responsibility for determining the "scope" of the Project to the responsible authority.

[52]      The scoping of the project as an ocean disposal project was reasonable and justified:

(a)      all previous applications for ocean disposal permits and amendments to ocean disposal permits by the VPC, dating back to 1993 had been subjected to environmental assessments by the Department of the Environment as ocean disposal projects;

(b)      the proposal or project which the Department of the Environment was asked to approve or permit in each case was solely the disposal at sea of dredged material;

(c)      the physical activity of ocean disposal is, itself, defined as a project for the purposes of the CEAA by virtue of paragraph (b) of the definition of project in subsection 2(1) of the CEAA and by the regulations adopted under section 59, the Inclusion List Regulations under Part VI, paragraph 40;

(d)      in the specific context of the September 28, 1995 application to amend Permit No. 4543-2-03137, the use of dredged material for fill at Deltaport was only one alternative and was not necessary for completion of the Deltaport project. Accordingly, issuance of an amendment to Permit No. 4543-2-02137 was not required to enable Deltaport to proceed but only to enable the ocean disposal to proceed within the meaning of paragraph 5(1)(d) of the CEAA; and

(e)      the Deltaport project had been approved and had commenced construction by September 1993, which was 15 months before the CEAA was proclaimed in force and two years before the amendment of Permit No. 4543-2-03137, which was applied for on September 28, 1995.

[53]      The application for an ocean disposal permit is not a project in relation to a physical work referred to in subsection 15(3) of the CEAA. The definition of "project" in subsection 2(1) of the CEAA is as follows:

"project" means

(a)      in relation to a physical work, any proposed construction, operation, modification, decommissioning, abandonment or other undertaking in relation to the physical work, or

(b)      any proposed physical activity not relating to a physical work that is prescribed or is within a class of physical activities that is prescribed pursuant to regulations made under paragraph 59(b).

[54]      The physical activity of ocean disposal is prescribed pursuant to regulations made under paragraph 59(b), namely the Inclusion List Regulations. Accordingly, subsection 15(3) of the CEAA which refers to "physical works" is inapplicable.

[55]      The applicant submits that under section 16 of the CEAA, the screening of the application for an ocean disposal permit must include the "cumulative" effects of the Deltaport Container Terminal. There is no evidence that any other project or activity, including the Deltaport project, would combine with the insignificant effects of ocean disposal to result in any "cumulative environmental effect".

[56]      In the case of the CEAA assessment of the permit and the amendment, it was therefore within the authority of and discretion of Environment Canada as the Responsible Authority, to determine under paragraphs 16(1)(a) and 16(3)(a) that the scope of any cumulative environmental effects that are likely to result from the ocean dumping project in combination with other activities was limited to the potential environmental effects of ocean dumping activities. Environment Canada had previously assessed cumulative effects of the proposed ocean dumping, including:

(1)      the possible presence of coal particles, from the coal port terminal at Roberts Bank, in the spoils proposed for ocean disposal; and

(2)      possible shoreward sand migration occurring during previous works at the site in combination with any similar migration that might result from the proposed dredging. Environment Canada again considered similar effects in assessing the permit and the amendment. In determining that the ocean disposal activity authorized by the permit and the amendment would have no significant environmental effects, Environment Canada had given consideration to cumulative effects as determined by scoping under subsection 16(3).

[57]      I therefore conclude that the application for the amendment submitted on September 28, 1995, was properly reviewed and evaluated by Environment Canada and that a proper environmental screening assessment of the application was conducted by Environment Canada in accordance with the terms of the CEAA.

[58]      Further, the applicant raised no complaint or issue with respect to the amendment until December 13, 1995, which was well after the date when all of the ocean disposal had been completed.

Issue No. 3 - Assessment of the Terminal under Federal Environmental Process

[59]      A Board of Review established under subsection 89(3) of the CEPA is only empowered "to inquire into complaints from members of the public in respect of the permit or the varied terms and conditions". Accordingly, the question of whether the Deltaport Container Terminal had already been assessed is not relevant to the considerations of a Board of Review under subsection 89(3).

[60]      The Minister had grounds to conclude that the Terminal had been assessed under a federal environmental assessment process. The Terminal was commenced in September 1993. Under the EARP Guidelines Order, federal corporations listed in Schedule D to the Financial Administration Act had the option of adopting the EARP Guidelines Order process. The VPC adopted its own Environmental Appraisal Policy and Guidelines and applied them to the Deltaport Container Terminal. The VPC undertook environmental studies, consultations with federal and provincial governments, the Municipality of Delta, the Tsawwassen First Nation, and numerous environmental, community and business groups. In addition, in 1992, the VPC appointed a three-member Independent Project Review Panel to conduct public hearings and a technical review of the environmental and socio-economic effects of the Deltaport Container Terminal.

Issue No. 4 - Ocean Disposal not Essential to the Completion of Deltaport

[61]      The Minister's conclusion that the amendment to Permit No. 4543-2-03137 applied for in September 1995, not essential to the completion of the Deltaport project, was supported by the facts on the record. The facts on the record show that the ocean disposal authorized by the permit and the amendment was not essential to the completion of Deltaport. Deltaport was not dependent on ocean disposal to obtain landfill as there were other readily available sources of fill. The applicant presented no evidence to contradict these facts.

Issue No. 5 -      Insignificant Environmental Effects of the Ocean Disposal Authorized by the Permit

[62]      The Minister concluded that the environmental effects of the ocean disposal authorized by the amendment to Permit No. 4543-2-03137 would be insignificant.

[63]      This is a finding of fact.

[64]      There is no evidence to suggest that there were any environmental effects from the ocean disposal which was completed in November 1995.

[65]      The Minister's determination was reasonable in the circumstances, and it is not for the Court itself to decide upon the merits of the assessment.

Issue No. 6 -      Is There a Further Requirement for an Environmental Assessment of the Terminal

[66]      The application for an amendment to the Ocean Disposal Permit No. 4543-2-01317 in September 1995 did not require the Deltaport of the Environment to conduct any further environmental assessment of the Deltaport project. The environmental assessment of the ocean disposal project complied with the requirements of the CEPA.

[67]      No further environmental assessment of the Deltaport is now required. The Deltaport project underwent extensive and detailed environmental assessment before construction was commenced in September 1993, in compliance with all applicable federal laws and regulations. The CEAA was not proclaimed in force until January 19, 1995, and is not expressed to have retroactive effect.

Constitutionally Protected Rights

[68]      What the applicant seeks in the originating notice of motion is a review of the Minister's decision not to establish a Board of Review to examine Ocean Disposal Permit No. 4543-2-03137. This is a discretionary matter under section 89 of the CEPA. The applicant has not sought to set aside the decision to issue the permit. The discretionary decision not to establish a Board of Review does not infringe the applicant's rights.

[69]      The requirements of procedural fairness were met in exercising that discretion.

CONCLUSION

[70]      The application for judicial review is dismissed.

     __________________________

     Judge

Ottawa, Ontario

March 19, 1998

__________________

¹      R.S.C. 1985, c. C-9, as am.

²      R.S.C. 1985, c. F-11, as am.

³      S.C. 1992, c. 37, as am.

⁴      R.S., 1985, c. O-2, Act Repealed, R.S., c. 16 (4th Supp.), s. 148.

⁵      SOR/84-467 (June 21, 1984), as am.

⁶      R.S.C. 1985, (4th Supp.), c. 16, as am.