Sierra Club of Canada v. Canada (Attorney General), 2003 FCT 271

Date: 20030304

Docket: T-765-02

Neutral Citation: 2003 FCT 271

Ottawa, (Ontario), March 4, 2003

Present:    The Honourable Mr. Justice Blais

BETWEEN:

                         SIERRA CLUB OF CANADA

                                                                Applicant

                                   and

           THE ATTORNEY GENERAL OF CANADA, for and on behalf

             of the Minister of Fisheries and Oceans, BOUNTY BAY

          SHELLFISH INCORPORATED, a body corporate and 5M AQUA

                     FARMS LIMITED, a body corporate

                                                              Respondents

                         REASONS FOR ORDER AND ORDER

• [1]                 This is an application for judicial review of a decision by the Minister of Fisheries and Oceans [Minister]approving a request by Bounty Bay Shellfish Incorporated [Bounty Bay] and 5M Aqua Farms Limited [5M] to operate mussel aquaculture facilities in St. Ann's Harbour, Cape Breton, Nova Scotia. The Minister's approval was granted on April 3^rd, 2002, pursuant to subsection 5(1)(a) of the Navigable Waters Protection Act, 1985 [NWPA].

FACTS

• [2]                 Bounty Bay is an aquaculture company that grows blue mussels for sale in Canada and worldwide. Since 1999, it has operated two mussel farming sites, also known as aquaculture leases, in St. Ann's Harbour.
• [3]                 5M, a company formed by four commercial fisherman from the St. Ann's area, is Bounty Bay's co-developer in the aquaculture project at issue in this proceeding.

• [4]                 The Applicant, Sierra Club of Canada, is a not-for-profit entity. It has a general mandate to protect, preserve and restore the natural environment of Canada. Among its specific mandate, the Applicant is to ensure that environmental assessments are fair and fully publicly accessible, and that the governments subject to environmental legislation fulfill their obligations of proper and thorough environmental assessments.
• [5]                 In January 2000, Bounty Bay (later joined by 5M) applied to the Nova Scotia Department of Fisheries and Aquaculture for licenses and leases to operate mussel aquaculture facilities in St. Ann's Harbour. In order to operate the aquaculture project, Bounty Bay and 5M required provincial and federal regulatory approval.

• [6]                 The Province of Nova Scotia referred the application to the Department of Fisheries and Oceans [DFO] to address any DFO related issues.
• [7]                 At the provincial level, under the Fisheries and Coastal Resources Act, 1996, the lease applications were subject to a public consultation process that included an advertising campaign and public hearings. On April 18, 2000, Bounty Bay held an information session open to the public at Gaelic College in St. Ann's to describe the project proposal. On April 19 and 26, 2000, the Province of Nova Scotia held public hearings in Englishtown to discuss the project. Federal representatives were also in attendance at the latter hearing to answer questions and receive comments and concerns.

• [9]                 Brian Thompson, then Manager for the Habitat Management Division [HMD] of DFO, received four memoranda, one for each proposed site. The memoranda advised the HMD that work proposed by Bounty Bay would require an approval under subsection 5(1)(a) of the NWPA, and thus require that an environmental assessment be conducted in accordance with subsection 5(1)(d) of the Canadian Environmental Assessment Act, 1992 [CEAA].
• [10]            The DFO's HMD acted on behalf of the Minister and as the responsible authority to carry out the environmental assessment under the CEAA. Melinda Donovan, Regional Superintendent of the Navigable Waters Protection Program, was delegated the signing authority on behalf of the Minister.

• [11]            In October 2000, as part of the NWPA's requirements, notices soliciting written objections to the project proposal were published in the Canada Gazette, the Cape Breton Post and the Victoria Standard.
• [12]            Bounty Bay and 5M were responsible for preparing an Environmental Impact Statement [EIS]. They hired James Smith of the firm AMEC Earth and Environmental Limited [AMEC] to prepare the EIS.

It is my intention that, at the request of concerned groups, copies (five copies) of the Environmental Impact Statement will be distributed to "concerned groups" for their review. ... Typically, groups will be advised that comments should be provided to the Habitat Management Division within five weeks from the date on the covering letter.

(a)       In the hands of a competitor, the commercially sensitive information would put Bounty Bay and 5M at a competitive disadvantage;

(b)       By reason of (a), Bounty Bay and 5M were concerned that indiscriminate distribution of the EIS, such as posting and transmission on internet websites, could cause the companies significant commercial harm;

(c)       Since the information formed a substantial and material part of the EIS, the removal of the information, in order to permit widespread distribution, would compromise the integrity of the EIS while underlying the ability to formulate a full and fair response to the EIS;

(d)       Bounty Bay and 5M were concerned that the removal of information from the EIS would not be well received by the local community and public at large.

(a)       Create a public, incomplete version of the EIS with confidential information redacted for widespread distribution; or

(b)       Deposit a complete, unedited copy of the EIS in public locations where any member of the public could view and consider its entire content, but with control over copying and distribution.

• [17]            Bounty Bay and 5M believed that the second option best addressed the interests of all parties in the public consultation process. Accordingly, five copies of the EIS were to be available for viewing in public areas, with the stipulation that none of the copies were to be photocopied or removed from any of the locations.
• [18]            On April 11, 2001, the EIS entitled "Blue Mussel Marine Aquaculture Environmental Assessment" was received by the DFO.

• [19]            On that same date, a memorandum was sent to Paul Keizer, Manager of the Marine Environmental Science Division of DFO, along with the EIS prepared by AMEC, requesting advice on the validity of the scientific data and any deficiencies with the EIS. Following that request, expert advice was received from DFO scientists working under Mr. Keizer's supervision.
• [20]            On April 12, 2001, DFO was informed by Bounty Bay that it had made copies of the EIS available at five public locations within the community. Those locations were:

-          Baddeck Public Library, Baddeck;

-          Victoria North Regional Branch Library;

-          Office of Mr. MacAskill, MLA, Englishtown;

-          Office of the Strait-Highlands Regional Development Agency, Baddeck; and

-          Municipality of Victoria County, Court House, Baddeck.

• [21]            The public at large was invited to review the unedited EIS at these locations, following a "public service announcement" widely circulated to radio, television, and newspaper newsroom in the area. On April 24, 2001, a "fact sheet" inviting public comment on the EIS was also mailed to all residents serviced by the Englishtown and Baddeck post offices.
• [22]            The public was given the opportunity to express concerns and identify deficiencies related to the EIS. The deadline set for responses was May 16, 2001; however, it was extended to June 1, 2001, considered an adequate review period by the DFO.

• [23]            On April 24, 2001, and in response to specific requests, Bounty Bay provided a copy of the EIS to the Stewards.
• [24]            In April 2001, Elizabeth May, Executive Director of the Applicant, attempted to obtain a copy of the EIS in order to have it reviewed by marine experts and to submit comments to theDFO. The Applicant was informed that the EIS was considered copyrighted and protected property of Bounty Bay and 5M and was available to be viewed at one of the five locations in Cape Breton, but not to be copied or removed from these locations.

...It is a subject of concern to Sierra Club of Canada and we would like the opportunity to review the proponent's (Bounty Bay of Prince Edward Island) impact assessment. However, your department has told me that I cannot have access to the document because it is copyrighted. They further told me it was "publicly available" at 5 locations - not one of which is in Ottawa.

...I can see no rationale for this bizarre approach to public participation, which is the cornerstone of the federal Act. ...

...

• [26]            On May 14, 2001, the Canadian Environmental Assessment Agency was able to provide a copy of the EIS to the Applicant.
• [27]            That same day, Ms. May wrote a second letter to the Minister, asking him to give the Applicant an extension of five weeks from the May 16, 2001 deadline, for review of the EIS in order that it be able to make comments "in a timely, thoughtful and appropriate manner".

... Sierra Club of Canada was only able to access the document through the assistance of the Canadian Environmental Assessment Agency. Unfortunately, we only had access to the document for two weeks, effectively precluding SCC from the normal scientific review by outside experts. The community was also only able to read the document in select locations without the ability to copy or transcribe it.

I trust that given this unacceptably restrictive process, you will ensure that no more corners are cut nor procedures in the interest of public participation circumvented. The report should be rejected for a litany of deficiencies and flawed assumptions.

...

• [29]            By June 1^st, 2001, concerned individuals and interests groups, including the Applicant, had responded to the EIS.
• [30]            On June 7, 2001, in response to her letters, the Minister wrote to Ms. May. He informed her that the environmental screening was still underway and welcomed any comments she had on this environmental assessment:

...

It is my understanding that the Canadian Environmental Assessment Agency

has made a copy of the proponent's environmental impact statement available

to you. We are still in the process of reviewing the information for the

screening of the mussel aquaculture project and welcome any comments you

have to offer on this environmental assessment.

[emphasis added]

• [31]            The Applicant did not provide further submissions to the DFO.
• [32]            On June 12, 2001, a letter was sent to Mr. Smith of AMEC indicating that the EIS had been reviewed by the HMD, scientific experts from DFO and Environment Canada. It contained their comments concerning the EIS along with those received from the public, and requested further information.

• [34]            By letter dated March 26, 2002, Mr. Hominick notified Ms. Donovan of the outcome of the environmental assessment. The conclusion of the screening report was that the project was not likely to cause significant adverse environmental effects. A copy of the screening report, required mitigation measures, and follow-up program was provided to her.
• [35]            The March 26 letter contained the following passage:

Please note that, because of changes in process, the environmental assessment conclusion does not include a consideration of the effect of the project on navigation. You will need to evaluate the likeliness and significance of any adverse effects on navigation before making a decision in accordance with Section 20 of the Canadian Environmental Assessment Act.

[emphasis added]

• [36]            On March 28, 2002, Mr. Hominick, on behalf of the HMD, provided Bounty Bay with a copy of the screening report. It concluded that, subject to the adoption of mitigation measures, the aquaculture project was not likely to cause significant adverse environmental effects.
• [37]            Here are a few passages of the March 28 letter, concerning the

screening report:

         ...

         DFO has determined that, taking into account the implementation of the

         mitigation measuresoutlined in the Environmental Assessment Screening

         report, this aquaculture project is not likely to cause significant adverse

         environmental effects. To support this conclusion however, it will be necessary

         for you to conduct, a Follow-up Program [Refer to CEAA, section 38(1)] as

         outlined in Attachment 2.

         ... Changes to the project, or failure to implement the mitigation measures

         (Attachment 1) and monitoring program (Attachment 2), could result in the

         harmful alteration, disruption or destruction of fish habitat. ...

        ...

[emphasis added]

• [38]            On April 3^rd, 2002, Ms. Donovan, on behalf of the Minister, sent a letter to Bounty Bay with the approval to conduct the aquaculture project in St. Ann's Harbour, pursuant to subsection 5(1)(a) of the NWPA.

The Minister's Decision

-          #1186, Western side of St. Ann's Harbour, East of Munro Point and McLeods Point;

-          #1187, Eastern side of St. Ann's Harbour, at Conway Point;

-          #1188, North Western side of St. Ann's Harbour, South of Price Point; and

-          #1189, Eastern side of St. Ann's Harbour, at "the Rock" and MacLeods Brook.

• [40]            The decision states that the implementation of the mitigation measures, "designed to reduce the environmental impact of the work, is the responsibility of the owner(s) or person(s) in possession". It also mentions that the "document authorizes the work in terms of its effects on marine navigation", and that it is "the applicant's responsibility to obtain any other forms of approval".
• [41]            The work is approved at the said sites for a period of five years, subject to terms and conditions enumerated in Appendix "A".

ISSUES

2.        Did the Minister commit a reviewable error in reaching its decision to grant an approval of the aquaculture project?

RELEVANT LEGISLATION

• [48]            Section 14 of the CEAA defines the environmental process assessment:

• [49]            Subsection 15(3) of the CEAA refers to the requirement to conduct an environmental assessment:

ANALYSIS                               

Standard of Review

[para. 36] This Court has recognized that policy concerns militate in favour of a more deferential standard of review. The environmental assessment process is already a long and arduous one, both for proponents and opponents of a project. To turn the reviewing Court into an "academy of science" -- to use a phrase coined by my colleague Strayer J. (as he then was) in Vancouver Island Peace Society v. Canada [See Note 12 below] -- would be both inefficient and contrary to the scheme of the Act. Thus, in Bow Valley Naturalists, Linden J.A. had the following to say regarding the scope of judicial review of a decision taken upon receipt of an environmental assessment:

Note 12:[1992] 3 F.C. 42 at 51.

The Court must ensure that the steps in the Act are followed, but it must defer to the responsible authorities in their substantive determinations as to scope of the project, the extent of the screening and the assessment of the cumulative effects in the light of the mitigating factors proposed. It is not for the Judges to decide what projects are to be authorized, but, as long as they follow the statutory process, it is for the responsible authorities. [Note omitted]

[para. 37] I find this approach persuasive. ...

[para. 38] This does not mean, however, that the Court's approach to viewing the Minister's decision ought to be so deferential as to exclude all inquiry into the substantive adequacy of the environmental assessment. To adopt this approach would risk turning the right to judicial review of her decision into a hollow one.

...

[para. 40] In my opinion, Rothstein J.A.'s approach is equally applicable to the decision made in the case at bar. A standard of review of reasonableness simpliciter requires that the Minister have a reasonable basis for arriving at her decision. In conducting its review, the Court should consider all of the material available to the Minister and draw a conclusion. Such a conclusion can be drawn without the Court becoming an "academy of science". The Court is not required to agree with the Minister's decision. It must merely be able to perceive a rational basis for it.

[emphasis added]

• [59]            In Environmental Resources Centre v. Canada (Minister of the Environment), (2001) 214 F.T.R. 94, [2001] F.C.J. No. 1937, Heneghan J. determined that, to the extent that the ministerial decision is based upon the interpretation of legislation, it is reviewable on a standard of correctness:

[para. 138]    The real issue here is the decision made by the MOE made pursuant to section 23 of the CEAA. To the extent that that decision is based upon the interpretation of the legislation, it is reviewable on a standard for correctness. See Friends of the West Country Association, supra, (T.D.) at page 172 where the court said:

To the extent that the substantive issues before me are questions of law, whether as to jurisdiction or as to interpretation of statutory authority, the standard of review that I will apply is correctness. To the extent that they relate to the exercise of discretion by the responsible authority, the standard of review that I will apply is that of reasonableness.       

[para. 139]    The disposition of these applications requires consideration of both standards of review.

1.        Did the Minister breach the applicant's right to procedural fairness at common law? Did the Minister breach the applicant's right to procedural fairness in its application of subsections 18(3) or 55(1) of the CEAA?

[para. 22] Although the duty of fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected, it is helpful to review the criteria that should be used in determining what procedural rights the duty of fairness requires in a given set of circumstances. I emphasize that underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.

                                                                             [emphasis added]

[para. 97] ... subsection 18(3) of the CEAA provides a responsible authority with the discretion of deciding whether public participation in the screening of the project is needed or not. ...

[para. 99] Under the CEAA, there is a role for the common law doctrine of fairness in a number of ways but, however, I cannot accept counsel for the applicant's submission as to its independent and stand alone application in the area of public participation, the right to access relevant documents and the right to comment prior to an authorization being given. The reason is simple. Parliament has, in 1992, legislated on the content of fairness and has displaced the common law.

[para. 100] This is not to say a responsible authority can arbitrarily freeze out public participation in an environmental assessment. Such a proposition runs contrary to the fourth paragraph of the preamble to the CEAA and the stated purpose of paragraph 4(d) which is "to ensure that there is an opportunity for public participation in the environmental process".

[para. 101] Nevertheless, Parliament, in subsection 18(3), has conferred a power on the responsible authority to decide, in the particular circumstances, whether public participation in the screening of a project is appropriate in the circumstances.

[emphasis added]

[para. 43] ... While cost is certainly a factor to be considered, and there is no proximity requirement for a public registry, subsection 55(1) does require that convenient public access to the registry must be ensured. If a public registry is not established and operated in close [page290] proximity to the relevant geographic area of the environmental assessment, other reasonable means, e.g. e-mail, faxes, placing a set of timely material filed in the registry with an agent in close proximity to the projects for access by the public, must be provided to comply with subsection 55(1). Requiring the public to resort to procedures under the Access to Information Act [R.S.C., 1985, c. A-1] was the antithesis of what subsection 55(1) requires.

[emphasis added]

• [67]            Subsection 18(3) of the CEAA states: "[w]here the responsible authority is of the opinion that public participation in the screening of a project is appropriate ... [it] shall give the public notice and an opportunity to examine and comment on the screening report ...". Subsection 55(1) of the CEAA enunciates: "[f]or the purpose of facilitating public access to records relating to environmental assessments, a public registry shall be established and operated in a manner to ensure convenient public access to the registry ...". It is true that the manner in which the public is able to obtain access to pertinent documents is within the discretion of the responsible authority; however, it is essential that this discretion be exercised in a way in which the public is fully able to attain each of the above two objectives in any given circumstances.
• [68]            In the case at bar, the HMD as the responsible authority was provided with the discretion, firstly, to decide whether public participation in the screening of the project was appropriate, and secondly, to establish and operate the public registry in a manner that ensures convenient public access to it.

• [69]            I do not question the fact that in the present case, the public registry was available in close proximity to the relevant geographic area, as was required in Friends of the West Country Association, supra. However, I am of the opinion that because the EIS was only available in five locations, and that the Applicant was unable to secure a copy until May 14, 2001, leaving less than three weeks to have it reviewed by scientific experts and prepare comments, the Applicant was therefore denied a reasonable opportunity as required by subsection 18(3) of the CEAA.
• [70]          I do not agree with the Respondents that because the Stewards received a copy of the EIS as of April 24, 2001, and in light of the commonality of interests between them and the Applicant, a reasonable inference can be drawn that the latter had the means to access the EIS through the Stewards. The Minister had a positive obligation to render the EIS accessible for comments and cannot rely on what the Applicant could have done.

• [71]            Furthermore, by unjustifiably declaring the EIS copyrighted and protected property, in light of the supposed sensitive commercial nature of some of its parts, the Minister failed to meet his obligations.
• [72]            Bounty Bay and 5M allege that the EIS is copyrighted and protected property due to the commercially sensitive nature of its Part 2. Such part relates to Bounty Bay's expertise of adequate aquaculture site selection.

• [73]            Scott Dockendorff, owner of Bounty Bay, justified such allegation in his cross-examination. Based on the fact that some aquaculture leases are poorly situated, the criteria used for a site selection, "... including exposure to wind, ice conditions, predators, growth periods, quality of product, [etc.]", is therefore sensitive. What was also sensitive, according to Mr. Dockendorff, is the fact that Bounty Bay came to the conclusion that St. Ann's Harbour was a good site for aquaculture. Because past competitors' attitude was to follow where they went, Bounty Bay was scared that there would be an abundance of aquaculture project applications relative to the St. Ann's site.
• [74]            Further along in his cross-examination, Mr. Dockendorff elaborated his conclusion as to the commercially sensitive information proprietary to Bounty Bay and 5M. It related to the physical design of their aquaculture farms which, according to him, is unique in the industry.

... Despite the copyright, however, the public was given approximately five weeks to review the document, and DFO received considerable comments on the EIS from various community members. Nevertheless, actions have been taken within DFO to ensure that the copyright issue does not occur in the future.

[emphasis added]

been permitted to declare the EIS copyrighted.

• [77]            Nevertheless, with his letter dated June 7, 2001, the Minister provided the Applicant with subsequent access and opportunity to comment, thereby eliminating or at least minimizing the negative impact of his error. Unfortunately, the Applicant decided not to benefit from that opportunity.
• [78]            The Applicant further submits that it had relied upon the legitimate expectation that it would be granted five weeks for review and comment of the EIS and that it has been denied such procedural right.

[para. 26] This doctrine, as applied in Canada, is based on the principle that the "circumstances" affecting procedural fairness take into account the promises or regular practices of administrative decision-makers, and that it will generally be unfair for them to act in contravention of representations as to procedure, or to backtrack on substantive promises without according significant procedural rights.

• [80]            In respect of the Applicant's argument of legitimate expectation, I believe that the same letter of June 7, 2001, remedied the Minister's error. In that letter, the Minister stated that the screening of the project was still ongoing and informed the Applicant that it could still provide further comments about the EIS to DFO (see paragraph 30 of the present text). On March 26, 2002, 10 months later, DFO issued the screening report. It therefore appears clear to me that the Minister's breach of the Applicant's right to the legitimate expectation of a five week review period has been remedied.
• [81]            In Canadian Parks & Wilderness Society v. Canada (Minister of Canadian Heritage), [2001] F.C.J. No. 1543, Gibson J. stated:

[para 76] That being said, does the failure by the Minister to comply in a timely manner with the requirements of subsection 55(1) of the Assessment Act justify negation of the decision under review in circumstances where there is evidence before the Court to demonstrate that the Minister's officials acted to eliminate or at least minimize the negative impact of their error?

[para. 77] In Caddy Lake Cottagers v. Florence-Nora Access Road Inc. [See Note 39 below], Mr. Justice Helper, in concurring reasons, wrote at paragraph 42:

Note 39:[1998] 8 W.W.R. 514 (Man. C.A.).

It does not follow that because a statute has imposed a duty on an official by the use of the word "shall" that necessarily a failure to comply with that duty results in a nullity. Pierre-André Côté's The Interpretation of Legislation in Canada ... explains that the use of the word "shall", by itself, is "insufficient to suggest the legislator intended nullity as a consequence of non-respect." On this question, "it has been said that no general rule can be laid down, and that in every case the object of the statute must be looked at" (Montreal Street Railway v. Normandin, 33 D.L.R. 195...). According to Côté, at p. 204:

Three factors appear to influence the courts: the prejudice [caused] by non-compliance with formalities, the potential consequences of a court finding of nullity, and the subject matter of the legislation. [emphasis in original]                                        [citations omitted]

[para. 78] Here, the mandatory word "shall" is used in subsection 55(1) of the Assessment Act. The prejudice caused by failure to comply would not appear to have been great; a mere delay in an opportunity to participate in a public consultation. That being said, the non-compliance can hardly be said to have been with a mere formality. Subsection 55(1) is clear as to its purposes which are substantially more than merely formal. The consequences of a Court finding of nullity would be great to those not directly impacted by the non-compliance. The subject matter of the legislation in question is, I am satisfied, of widely recognized importance and the public consultation process facilitated by subsection 55(1) is, I am satisfied, of central importance to the objectives of the legislation. Taking all of the foregoing into account, I am satisfied that the principal factor impacting on the facts of this matter is the lack of prejudice to CPAWS that is shown by the evidence before me. I conclude that the failure on the part of the Minister's officials to fully comply with the requirements of subsection 55(1) of the Assessment Act should not, in all of the circumstances of this matter, result in rendering of the totality of the process leading to the decision under review of no force or effect.

[para. 79] ... I further conclude that the failure of the Minister's officials to fully comply in a timely manner with the requirements of subsection 55(1) of the Assessment Act is not an error that justifies setting aside the decision under review.

[emphasis added]

Where the responsible authority is of the opinion that public participation in the screening of a project is appropriate in the circumstances, ... , the responsible authority shall give the public notice and an opportunity to examine and comment on the screening report and on any record that has been filed in the public registry established in respect of the project pursuant to section 55 before taking a course of action under section 20.

[emphasis added]

• [83]            The expression "screening report" is defined in subsection 2(1) of the CEAA as the report that summarizes the results of the screening. In the case at bar, the screening report was prepared by Mr. Hominick and presented to Ms. Donovan, the signing authority, in order for her to make a decision in accordance with subsection 20(1) of the CEAA.
• [84]            After a reading of subsection 18(3) of the CEAA, it seems clear to me that, once the responsible authority exercised its discretion and determined that public participation was appropriate, it had an obligation to give the public an opportunity to examine and comment not only the EIS, but also the screening report.

• [85]            Such was not the case. Mr. Hominick sent the screening report with his conclusion to Ms. Donovan on March 26, 2002. Two days later, on March 28, he wrote a letter to Mr. Dockendorff of Bounty Bay, informing him of the screening report's conclusion. A few days later, on April 3^rd, 2002, Ms. Donovan issued the approval of the aquaculture project. Such a brief period of time could not possibly have allowed the public enough time to examine and comment on the screening report.
• [86]            Indeed, it was while reading Environmental Resource Centre, supra, that I realized the Minister's violation:

[para.12] Suncor was required to prepare a formal application for review and approval by Alberta Environment pursuant to the Environmental Protection and Enhancement Act, S.A. 1992, c. E-13.3 ("EPEA") and by the AEUB pursuant to the Oil Sands Conservation Act, S.A. 1983, c. O-55. In accordance with these requirements and existing practice between the AEUB and Alberta Environment, Suncor prepared a single EIA as part of the project application. This required Suncor to prepare terms of reference to be considered by Alberta Environment with the assistance of consultations with the public, other governments, governmental departments and agencies. The EIA was submitted on April 21, 1998 to the two agencies, according to the Affidavit of Mark Shaw.

...

[para. 22] Suncor was therefore required to apply to DFO for an authorization to harmfully alter or destroy fish habitat. This application was comprised of the same EIA that was provided to the AEUB, including all Supplemental Information Responses, and additional Supplemental Information Responses that were required by the DFO.

...

[para. 25] By letter dated May 4, 1998, DFO acknowledged receipt of Suncor's application and confirmed that since authorizations pursuant to section 35(2) of the Fisheries Act, supra are included in the Law List Regulations, SOR/94-636 under the CEAA, DFO, Habitat Management Division, would act as the federal responsible authority ("RA") for the Project. As such, the RA was required to conduct an environmental assessment in accordance with the Act. Since the mining activity for the proposed Project exceeds the limits provided in Part IV of the Comprehensive Study List Regulations, SOR/94-638, pursuant to the CEAA, the environmental assessment would be in the form of a Comprehensive Study Review ("CSR") which would be conducted in accordance with the requirements of sections 16(1) and (2) of the CEAA.

[para. 26] The CSR required a consideration of the environmental effects of the Project and any cumulative environmental effects that are likely to result in conjunction with other projects that have been or will be carried out. The CSR relied on the EIA which had been prepared by Suncor for the provincial environmental assessment. ...

...      

[para 34] In accordance with the Act, public review and comment on the CSR was solicited for a period of thirty days expiring December 10, 1998.

[emphasis added]

• [87]            In paragraph 34 of the previous decision, "CSR" stands for comprehensive study review, which is another type of environmental assessment under subsection 16(1) of the CEAA. As opposed to the cited case and in contravention of subsection 18(3) of the CEAA, the public in the present case has not been given a review or comment period on the screening report.
•       I therefore conclude that the Minister's failure to fully comply with the requirements of subsections 18(3) and 55(1) of the CEAA is an error that justifies setting aside the decision under review.

2.        Did the Minister commit a reviewable error in reaching its decision to grant an approval of the aquaculture project?

• [89]            In cases of judicial review, this Court is bound by the record that was before the decision-maker. In this case, as has been stated previously, the responsible authority was the HMD, for which Ms. Donovan was delegated the signing authority on behalf of the Minister.
• [90]            One of the Respondents' submission is that in making her decision about whether the project was likely to cause significant adverse environmental effects pursuant to subsection 20(1) of the CEAA, the signing authority only reviewed the screening report, making it the only relevant document in this matter.

... A copy of the Screening Report, Required Mitigation Measures, and Follow-up Program is attached. Taking into account the mitigation measures that the proponent has agreed to implement, the conclusion of the screening is that "the project is not likely to cause significant adverse environmental effects." Please note that, because of changes in process, the environmental assessment conclusion does not include a consideration of the effect of the project on navigation. You will need to evaluate the likeliness and significance of any adverse effects on navigation before making a decision in accordance with Section 20 of the Canadian Environmental Assessment Act.

...

[emphasis added]

• [92]            From this letter, one can conclude that the signing authority had to herself consider another issue, i.e. the effect of the project on navigation. On what documents or study did she base her evaluation? It is not known.
• [93]            Furthermore, at page 15 of the Respondent Attorney General of Canada's record, it is stated that:

The screening report took into consideration the environmental impact statement, advice from scientific experts within the DFO and Environment Canada, and public comments. In addition, the screening report addressed the environmental effects of the project, ...; the significance of these effects; comments from the public that were received in accordance with the CEAA ; ..., before it recommended to the responsible authority that the project was not likely to cause significant adverse environmental effects.

The Screening Report

• [96]            The respondents Bounty Bay and 5M had AMEC prepare an EIS. Once the HMD had received the EIS, it concluded that it contained serious deficiencies. That conclusion came from the culmination of information received by DFO throughout the environmental assessment process, whether in the form of advice, comments, reports, submissions etc., from DFO itself, Environment Canada, and the public. A Summary of Deficiencies can be found from pages 170 to 219 of the record of the applicant.
• [97]            As a component of the screening report, Bounty Bay and 5M were required by DFO to sign an agreement outlining mitigation measures and a follow-up monitoring program.

• [98]            Taking into account the mitigation measures that Bounty Bay and 5M agreed to implement, Mr. Hominick came to the conclusion that the project was not likely to cause significant adverse environmental effects. On March 25, 2002, his conclusion was approved by Faith Scattolon, Regional Director, Oceans and Environment Branch of DFO.
• [99]            In Mr. Hominick's letter to Ms. Donovan dated March 26, 2002, he informed her that taking into account the mitigation measures, the project was not likely to cause significant adverse environmental effects. He however added that she would need to evaluate the likeliness and significance of any adverse effects on navigation before making her decision in accordance with section 20 of the CEAA.

...

DFO has determined that, taking into account the implementation of the mitigation measures outlined in the Environmental Assessment Screening Report, this aquaculture project is not likely to cause significant adverse environmental effects. ...

This letter of advice should not be considered as an authorization in accordance with the habitat protection provisions of the Fisheries Act or any other legislation. ...

...

• [102]        Because the waters encompassing St. Ann's Harbour have been identified by the Navigable Waters Protection Program as navigable waters, it was determined that an approval pursuant to paragraph 5(1)(a) of the NWPA was required. Therefore, a CEAA screening was needed before this approval could be issued. The fact that navigation was the issue which gave the Federal Government jurisdiction on such a provincial matter, I find surprising that it be left unaddressed.
• [103]        Considering the aquaculture project would cover a significant portion of a restricted surface area (approximately 490 hectares), I believe the Minister was required to conduct further analysis.

Mitigation Measures and Follow-Up Program

[para. 154] In my opinion, this opinion highlights the problem with reliance by the MOE upon RSDS, as a mitigation measure, when making her decision. She has no legislative control over that process in the event of its abandonment. In my view, reliance by the MOE upon provincial regulatory powers and initiatives, including the RSDS and industry based initiatives including the CEEMI, which are beyond enforcement or control by the federal authorities, amounts to a misinterpretation of her duty to consider mitigation factors when she reviewed the CSR. She erred in her interpretation of the Act.

[para. 155] However, if I am in error in this conclusion, I will also consider her decision as an exercise of ministerial discretion. Viewed from that perspective, the question is whether the decision is reasonable.

[para. 156] I am not satisfied that reliance upon processes over which she has no control constitutes a reasonable exercise of authority or discretion.

...

[para. 158] I turn now to the decision of the MFO in issuing the authorizations dated August 17, 1999 and December 21, 1999. In my opinion, the MFO compounded the error of law committed by the MOE when he authorized the issuance of these authorizations. Section 17 of the CEAA imposes a non-delegable duty upon the RA to his taking a "course of action pursuant to section 20(1) or 37(1). Section 37(1) allows the RA to make a decision once the MOE has referred a project back to it, pursuant to section 23(a). Section 37(1)(a) further provides that the RA is to take into account the implementation of mitigation measures when exercising any power to allow a project to proceed. In this case, I interpret this to encompass the issuance of the authorizations by the RA. In my opinion, the combined effect of these sections is that the RA has a non-delegable statutory duty to ensure the implementation of mitigation measures.

[para. 159] There is nothing on the record to show that he did so. On the contrary, the record shows that he relied upon the mitigation measures proposed and in place for Alberta. In my opinion, this reliance was misplaced and the MFO acted unreasonably in issuing the authorizations.

                                                                             [emphasis added]

• [105]        The Applicant submits that in the present case, the responsible authority was content to leave monitoring measures to be the subject of later submission. I disagree.
• [106]        Indeed, the screening report contains an exhaustive list of mitigation measures in its appendix. Furthermore, the approvals for each of the four aquaculture leases similarly include an appendix of mitigation measures.

• [107]        In any event, considering my answer to the first issue in this application - that is, that the Minister failed to comply fully with the requirements of subsections 18(3) and 55(1) of the CEAA - it becomes difficult to rule on whether the signing authority's decision was valid, based as it was on the screening report.
• [108]        Indeed, the screening process was vitiated as the Minister failed to solicit public review and comment on the screening report. Given this breach in the procedure required by subsections 18(3) and 55(1) of the CEAA, this Court does not need to dispose of the second issue.                                                                                          

ORDER

[1]                 The application for judicial review is granted, and the April 3^rd, 2002 decision of the Minister of Fisheries and Oceans approving the project is quashed. In order for the aquaculture project to move along according to lawful process, a reasonable period must be given so that public review and comment on the screening report be solicited pursuant to the CEAA.

[2]                 With costs in favour of the Applicant.

                    "Pierre Blais"                  

                       J.F.C.C.

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             T-765-02

STYLE OF CAUSE:                           SIERRA CLUB OF CANADA v.

THE ATTORNEY GENERAL OF CANADA ET AL

PLACE OF HEARING:                     HALIFAX, NOVA SCOTIA

DATE OF HEARING:                       JANUARY 13, 2003

REASONS FOR ORDER AND ORDER : BLAIS J.

DATED:                                                MARCH 4, 2003

APPEARANCES:

JACQUELINE SCOTT AND                                                     FOR APPLICANT

MICHELLE HIGGINS

RICHARD SOUTHCOTT                                                            FOR RESPONDENTS

AND DANIELLA BASSAN                                                        BOUNTY BAY SHELLFISH AND 5M AQUA FARMS LIMITED

JESSICA HARRIS                                                                        FOR RESPONDENT ATTORNEY GENERAL OF CANADA

SOLICITORS OF RECORD:

PATTERSON PALMER                                                              FOR APPLICANT

HALIFAX, NOVA SCOTIA

STEWART MCKELVEY STIRLING SCALES                        FOR RESPONDENTS

HALIFAX, NOVA SCOTIA                                                        BOUNTY BAY SHELLFISH AND 5M AQUA FARMS LIMITED

MORRIS ROSENBERG                                                              FOR RESPONDENT THE

DEPUTY ATTORNEY GENERAL ATTORNEY GENERAL OF

OF CANADA                                                                               CANADA