Date: 19980609
Docket: T-1132-98
OTTAWA, Ontario, this 9th day of June, 1998.
PRESENT: THE HONOURABLE MR. JUSTICE MacKAY
BETWEEN:
LAKE PETITCODIAC PRESERVATION ASSOCIATION INC.,
Applicant
- and -
THE MINISTER OF THE ENVIRONMENT (CANADA)
THE MINISTER OF FISHERIES AND OCEANS (CANADA)
Respondents
- and -
FRIENDS OF THE PETITCODIAC
Intervenor
UPON Notice of Motion by the applicant for interim relief pursuant to s. 18.2 of the Federal Court Act, R.S.C. 1985, c. F-7 as amended, and in particular for
1. an order granting an interlocutory stay of a decision by or on behalf of the respondent Ministers, contained in a Canadian Environmental Assessment Act Screening Report on the proposed Petitcodiac River Trial Gate Opening Project, for 1998, dated May 19, 1998 (the "Decision"), and
2. an order granting an interlocutory injunction restraining the respondents from making any decisions, taking any action, granting statutory approvals or providing or authorizing funds for the purposes of the Project, and
3. orders granting interlocutory injunctions restraining the respondents from authorizing or permitting the alteration, disruption or destruction of fish habitat in Lake Petitcodiac and/or in Shepody and Chignecto Bays, or permitting the deposit of substance harmful to migratory birds into Lake Petitcodiac, in either case by the manipulation of the Petitcodiac River Causeway Gates,
any such order to be effective until the application for judicial review of the Decision, filed by the applicant on June 3, 1998, is determined by the Court;
UPON hearing counsel for the Applicant, for the Respondent Ministers, and for the Intervenor, with counsel for the Province of New Brunswick in attendance as an Observer, by telephone conference call on June 5, 1998 when decision was reserved;
UPON consideration of submissions then made by counsel, consideration of their written memoranda, and upon review of all affidavits filed on behalf of the parties and Intervenor, and review of the Screening Report dated May 19, 1998;
O R D E R
THIS COURT ORDERS THAT:
1. The application for interim relief is dismissed.
2. If the Applicant desires to seek an expedited hearing of its application for judicial review, counsel for the Applicant, for the Respondent Ministers and for the Intervenor shall consult and seek agreement on an expedited schedule for perfecting the application, and this Court, at the request of counsel, would seek and set the earliest convenient date for the matter to be heard.
W. Andrew MacKay
Judge
Date: 19980609
Docket: T-1132-98
BETWEEN:
LAKE PETITCODIAC PRESERVATION ASSOCIATION INC.,
Applicant
- and -
THE MINISTER OF THE ENVIRONMENT (CANADA)
THE MINISTER OF FISHERIES AND OCEANS (CANADA)
Respondents
- and -
FRIENDS OF THE PETITCODIAC
Intervenor
REASONS FOR ORDER
MacKAY J.
[1] These are reasons for an order dismissing the application by Lake Petitcodiac Preservation Association Inc. for interim relief, sought pursuant to s. 18.2 of the Federal Court Act, R.S.C. 1985, c. F-7 as amended, pending disposition of the Association's application for judicial review (No. 2) filed June 3, 1998. The application for interim relief was filed the same day in accord with a schedule fixed by previous order for filing by all parties and for a hearing by telephone conference on June 5, 1998. All parties complied with terms of the order and this matter was heard by agreement, on June 5, 1998.
The background
[2] The applicant's concern is with the decision and action to proceed with a trial program, sometimes described as the Petitcodiac River Trial Gate Opening Project, in 1998 (the "trial project"). The purpose of the trial project is to manage a fairly significant change in the water level of Lake Petitcodiac for a period of six or seven months, from the spring to late fall of 1998 to study further a concept to partially restore the natural ecosystem of the river. Among other things this would make the most of the opportunity for fish passage into and out of the Petitcodiac River from and to the sea.
[3] The lake is the result of construction in 1968 of a causeway across the river, a joint federal-provincial project, which provides road connection between the city of Moncton and the town of Riverview. The river in its natural state was tidal above the site of the causeway, a condition changed by the causeway, and the river, and its surrounding area above the causeway became Lake Petitcodiac, a body of water extending upriver some 21 kilometers. The lake so created is said to have a diverse fresh water ecosystem and it provides recreational opportunities for local residents.
[4] The water level of the lake has been maintained over the last 30 years at an average headpond level of 6 meters. The level is controlled by opening and closing gates in the causeway and the gates have been operated to prevent tidal inflow of salt water into the lake. The trial project, to acquire further data to assess the proposed concept of restoring the natural ecosystem, would allow tidal water to flow upstream past the causeway, and on the falling tide would control outflow from the lake to reduce erosion. The gates, and the causeway, are managed by the New Brunswick Department of Transportation.
[5] The trial project results from an agreement in December 1996 on behalf of and among the Ministers of Transportation and Environment of New Brunswick and the two respondent federal Ministers, with a view to furthering study of the concept to restore the natural ecosystem of the Petitcodiac River, including improved fish passage into and out of the river system from, or to, the sea. Under the memorandum of understanding among the government departments concerned three principal committees were created to deal with aspects of the concept and the trial project as the latter evolved. Among the committees or working groups is a Monitoring Working Group, in which the applicant, and other community groups, participated through representatives.
[6] By March 1998 the result of the working groups' efforts was presented at public meetings held for the purpose, and the implementation of the trial project for 1998 was firmed up, with agreement among the government agencies concerned that it should begin in May 1998. Despite the involvement of the respondent federal Ministers' departments, which are often involved in environmental assessment of others' projects, no provision was made initially for an environmental assessment under the Canadian Environmental Assessment Act, S.C. 1992, c. 37 (the "CEAA"). The applicant, and others, urged that such an assessment be carried out before the trial project is to be initiated. When that did not appear likely the applicant applied on March 23, 1998 for judicial review of the decision to proceed with the trial project (Court file T-473-98). The Association also applied then for interim relief, seeking a stay of activity to advance the trial project pending the disposition of the application for judicial review or earlier completion of an environmental assessment of the trial project under the CEAA.
[7] On April 6, 1998 I heard the application for interim relief in Fredericton. At the conclusion of the hearing I reserved decision and urged the parties, through counsel, and with continuing participation of counsel for the Province of New Brunswick, to seek to resolve matters before any order issued from the Court. Subsequently the Court was advised by counsel for the respondent federal ministers that these ministers had agreed to undertake an environmental assessment under the CEAA. That assessment was initiated on April 16, 1998. After hearing from counsel I ordered that my decision would continue under reserve pending further advice from counsel, and confirming, as orally ordered at the hearing, that New Brunswick ministers, named originally as respondents, be struck out as parties and the style of cause be revised to include the intervenor, earlier added by order as an intervenor in the original proceedings.
[8] A screening report, said to be undertaken pursuant to the CEAA, by Fisheries & Oceans Canada and Environment Canada, concerning the Proposal by New Brunswick Department of Transportation for the Petitcodiac River Trial Gate Opening Project, was completed and dated May 19, 1998. That report concludes as follows, before the signatures of the officers who prepared it and those who approved it:
PART E: ASSESSMENT DECISION AND COURSE OF ACTION
On the basis of this screening, the Responsible Authorities for the project have reached the conclusion that the project, taking into account appropriate mitigation measures, is not likely to cause significant adverse environmental effects and that the project can be supported.
(CEAA Section 20.1(a))
PART F: SCREENING CERTIFICATE
This document summarizes the results of an environmental assessment related to the above project that has been performed and completed by the Responsible Authorities in accordance with the Canadian Environmental Assessment Act.
[9] Counsel for the respondent Ministers thereafter requested a telephone conference to deal with appropriate disposition of the applicant's motion heard on April 6. That conference was held May 28 with counsel for the parties and the intervenor participating, and counsel for the province of New Brunswick in attendance as an observer. On the following day I dismissed the motion of the applicant for interim relief, without prejudice to hearing, on an expedited basis, any similar motion the applicant might file by June 3, 1998 in support of a new application for judicial review in relation to the decision by the respondents to proceed on the basis of the screening report concluded on May 19, 1998. Those motions were filed by the applicant on June 3, 1998, affidavits and memoranda of argument were filed by all parties in accord with a schedule provided by the Order of May 29, and in accord with terms of that Order the application for interim relief was heard on June 5.
[10] Another development since this Court's Order of May 29, 1998 has some significance. On May 31, the New Brunswick Department of Transportation, responsible for the operation of the causeway gates, opened one or more of the gates in the causeway, draining Lake Petitcodiac from approximately 6 meters to less than 2.5 meters at the headpond by June 1. The water was apparently higher some distance upriver where it was held back by a siltplug, a natural build up of sediment in the river channel that, it is anticipated, would be eliminated by flushing action of drawing down the level of the lake. When this matter was heard on June 5, counsel for the Province of New Brunswick, in attendance as an observer, advised the Court, when asked, that it was his understanding the siltplug was moving more quickly than anticipated. The drawing down of the water level of Lake Petitcodiac appears to have been done rapidly, perhaps more rapidly than was anticipated by some observers or representatives. This may have been done in the course of normal, but delayed, annual spring operations, to utilize the spring freshet for flushing of silt built up in the headpond. That process may have been planned to be undertaken, to remove silt deposits upstream and downstream of the causeway, so that the requirements for the trial project can be met.
The applications for relief
[11] By its Notice of Application for Judicial Review (No. 2) filed on June 3, 1998, the Association seeks judicial review of the decision, by the respondent federal ministers, their departments or designated officers or any or all of them as responsible authorities, contained in the Screening Report on the trial project, dated May 19, 1998 which determined that the Project, taking into account appropriate mitigation measures, is not likely to cause significant adverse environmental effects and that it can be supported for the purposes of s-s. 20(1) of the CEAA.
[12] By way of relief the Association seeks a declaration that the project is a "project" within the meaning of the CEAA, an Order declaring the decision null and void and of no force or effect, and Orders in the nature of certiorari quashing or setting aside the decision, and quashing or setting aside the decision of the respondents not to allow the public an opportunity to examine and comment on the report before taking action under s. 20 of the Act. The applicant also seeks a declaration that the report does not comply with the statutory requirements of the Act, particularly s. 16, a declaration that the respondent is required to give public notice and opportunity to examine and comment on the report prior to taking action under s. 20 of the Act, and a declaration that public concerns regarding the project and/or the Screening Report warrant reference to a mediator or review panel as described in paragraph 20(1)(c)(iii) of the Act. An Order is sought for a writ of prohibition or an injunction preventing the respondents from making any decisions, taking any course of action, or providing or authorizing the provision of funds for the purpose of the project and preventing anyone having notice of the Order from utilizing any funding, assistance or statutory authorization provided by the respondent for the project until the CEAA has been complied with. Finally, the applicant seeks an Order for a writ of mandamus requiring the respondents to comply with the further environmental assessment of the project, meeting statutory requirements, to properly exercise discretion under s-s. 18(3) to allow public comment on the report, and to refer the project to the Minister of Environment for referral to a mediator or review panel. The applicant also seeks interim and interlocutory Orders to preserve the integrity of Lake Petitcodiac pending final determination of the application.
[13] The request for interim relief is spelled out by the Notice of Motion heard on June 5, 1998. By it, the applicant, pending determination of its application for judicial review filed on June 3, 1998, seeks the following orders:
1) an order granting an interlocutory stay of the decision by the respondent ministers, their departments or designated officers, as responsible authorities, contained in the Screening Report of May 19, 1998 which determined that the trial project, taking into account appropriate mitigation measures, is not likely to cause significant adverse environmental effects and that it can be supported for the purpose of s-s. 20(1) of the CEAA;
2) an order granting an interlocutory injunction restraining the respondents from making any decision granting statutory approvals or providing or authorizing the provision of funds for the purposes of the project and preventing anyone having notice of such an order from utilizing any funding, assistance or statutory authorization provided by the applicant;
3) an order enjoining the respondents from authorizing or permitting the alteration, disruption and destruction of fish habitat in Lake Petitcodiac or in Shepody and Chignecto Bays by the New Brunswick Department of Transportation through the operation of the causeway gates;
4) an order granting interlocutory relief restraining the respondents from authorizing the New Brunswick Department of Transportation to cause or allow the deposit of substances harmful to migratory birds into Lake Petitcodiac by manipulation of the causeway gates.
The test
[14] The parties are agreed that the test for interim relief of the sort here sought by the applicant association is that set out in R. J. R. Macdonald Inc. v. Canada (Attorney General), elaborating on the test set out by Beetz J. in Metropolitan Stores (M.T.S.) Limited v. Manitoba Food & Chemical Workers, Local 832. While those cases dealt with the issue of a stay in the context of issues concerning the constitutional validity of legislation, the same test, based upon American Cyanamid Co. v. Ethicon Limited has been accepted for considering applications for interlocutory injunctions generally in this Court by the Federal Court of Appeal. It has been applied as the appropriate standard for considering interim relief under s. 18.2 of the Federal Court Act in relation to applications concerning environmental assessments.
[15] That test requires that the applicant for interim relief establish:
1) that there is a serious question to be determined by the Court as a result of the primary matter the applicant has raised, here by the application for judicial review,
2) that the applicant would suffer irreparable harm if the application for interim relief is not granted and the serious issue should later be determined in the applicant's favour;
3) that the balance of convenience favours the applicant in that irreparable harm from refusal of the interim relief is likely to be greater than harm to the respondents by granting the relief, pending a decision on the merits of the serious issue.
Is a serious issue raised by the Applicant?
[16] For the respondent Ministers and the Intervenor it is urged that no serious issue is raised by the application for judicial review, in part because of the nature of relief sought and in part because it is said that the applicant's concerns about shortcomings in the Screening Report are adequately addressed in the report itself.
[17] The respondent Ministers submit that since the Court has no authority to order the New Brunswick Ministers concerned to do anything and since operation of the causeway gates is within the authority of the provincial Minister of Transportation, the Court is essentially without jurisdiction to order relief that would stop the process now underway. That argument, it seems to me, is made without reference to certain specific forms of relief that the applicant here seeks both in its motion for interim relief and its application for judicial review. Moreover, it ignores the roles in planning, financing, screening and monitoring the trial project played by representatives of the respondent Ministers, and as well, the responsible role that New Brunswick authorities appear to have taken in regard to the trial project while the original application, in Court file T-473-98, was before the Court.
[18] Clearly the Court will not make orders that will be futile, but it may make orders directed to the respondent Ministers which might affect their involvement as parties in the trial project. That could be done without affecting their continuing responsibilities under statute to monitor and assess the activities of provincial departments that have effects upon matters within fields of federal legislative competence. In short, I do not accept the submission that the Court should dismiss the application for interim relief because it can make no direct order to stop or control the gate opening.
[19] It is also urged that the applicant's request for a declaration that the trial project is a "project" within the CEAA is moot, and no serious issue arises since the Screening Report has been conducted under the Act. That might be thought to be so, were it not for written submissions of the respondent Ministers which first suggest that this matter is academic since a Screening Report was done under the CEAA, but nevertheless also submit that the trial is not a "project" under the Act and thus an environmental assessment is not required.
[20] More important, the applicant raises the following issues about the Screening Report.
1) the geographic area for which the environmental effects are considered, which is said to be less than the total area affected, an allegation denied by the respondents by reference to the Report which, as I read it, is not clear on the point;
2) the absence of baseline data for certain aspects of the environment, for example, the absence of information in relation to furbearing animals and in relation to lobster and scallop fish habitat in the Upper Bay below the causeway, though the Report concludes the effects of the trial project will be insignificant in relation to these species;
3) the reliance in certain cases upon outdated information;
4) the failure of the Report to meet requirements under s. 16 of the CEAA.
[21] The respondents and the intervenor dispute these and other criticisms of the Report. The differences between the parties, it seems to me, support the conclusion, at this stage and for purposes of the motion for interim relief, that serious issues are raised about the reasonableness of the conclusions reached in the Report and of the determination based upon it. The applicant says those conclusions are patently unreasonable. These issues can only be determined upon hearing argument on the application for judicial review.
Irreparable harm alleged
[22] For the applicant it is contended that irreparable harm will be caused if the interim relief now sought is not granted. That harm is to be anticipated from sediment infilling of the lake in the river bed above the causeway which will be greater than if the lake were left unaffected, and following the trial this would result in a build up of the bottom of the lake and a reduction in its depth, unless the headpond is to be raised, with resulting effects upon aquatic and mammalian life. That harm is also anticipated in relation to the following:
- disruption for furbearing species living at or near the water's edge along the lake,
- the time required for the ecosystem above the causeway to be restored when the headpond is finally filled again,
- anticipated sediment deposits on scallop and lobster habitat in the Upper Bay below the causeway,
- the potential for mosquito breeding in the areas of the lake bed to be subjected to intrusion of tidal water,
- the potential for build up in waters above the causeway of faecal coliform bacteria levels from sewage waste, and of possible toxic chemical leachate from abandoned land fills as a result of tidal waters from below the causeway entering into the area of the headpond. The last prospect, of coliform bacteria build up, is recognized in the Screening Report as a potential danger that would particularly affect the recreational use of the lake and river above the causeway, and that may require public warnings against recreational use of waters above the causeway.
[23] In some of these cases the harm anticipated is a matter of opinion without much, if any, factual foundation provided in evidence to support the opinion in the affidavits of those supporting the applicant's case. In other cases the harm anticipated is essentially based on the lack of information available, for example the prospect of toxic leachate from abandoned land fill sites. While I respect those opinions, to find irreparable harm will be occasioned the Court must find a more sold base in fact. Moreover, the harm apprehended is related almost entirely to the harm that is foreseen from the trial project continuing through to December 1998, as planned. The harm I must be concerned to find in considering an application for interim relief, before the rights of the parties have been determined, is that which will occur between now and the date of hearing of the application for judicial review.
[24] That date is within the power of the parties and the Court to determine. There is no reason why in this case the application for judicial review could not be heard expeditiously on a timetable with scheduled dates for filing, and a hearing at the early convenience of the parties and the Court. In view of the work already done by counsel it may be that the matter could readily be heard within 30 to 60 days, in my opinion.
[25] I am not satisfied that, on the evidence before me, the applicant will suffer irreparable harm in the brief period between now and any reasonably early date that can be set for the hearing, if, when the application for judicial review is heard, the applicant should then be successful.
The balance of convenience
[26] Since I am not persuaded the applicant will face irreparable harm if this application for interim relief is not granted, it is unnecessary to deal at any length with issues concerning the balance of convenience. Were I to do so, I would find that balance favours the applicant. I am not persuaded the respondent Ministers and others involved in support of the trial project would suffer any harm at all if relief here sought were granted but subsequently their position were to be upheld when the application for judicial review is heard. If that were to happen it would be too late for the trial project to be undertaken in 1998, but there is no evidence and there was no argument that maintaining the status quo for one year before the trial is initiated would do more than cause inconvenience by delay of the trial project. No doubt the delay would permit wider public discussion and understanding, and more complete assessment of potential environmental effects, if those objectives were to be pursued, and if the project were to proceed thereafter.
Conclusion
[27] I dismiss the application for interim relief in the nature of a stay or injunction pending the hearing of the applicant's application for judicial review. While, at this stage it seems to me that application for judicial review does raise serious issues for determination, I am not persuaded on the basis of evidence before me that the applicant Association will see or suffer irreparable harm if the application for interim relief is dismissed but the application for judicial review is subsequently allowed, presuming that application can be heard on an expedited timetable, if that is what the applicant desires.
[28] The Court invites counsel for the parties to consult about a possible expedited timetable to perfect the application for judicial review, and if it will assist this Court is prepared, at counsel's initiative, to seek and set as early a date as may be convenient for all parties for the matter to be heard.
W. Andrew MacKay
Judge
OTTAWA, Ontario
June 9, 1998.
FEDERAL COURT OF CANADA TRIAL DIVISION NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE No.: T-1132-98
STYLE OF CAUSE:Lake Petitcodiac Preservation Association Inc. (Applicant)
v. The Minister of the Environment & Minister of Fisheries and Oceans (Respondents) and Friends of the Petitcodiac (Intervenor)
PLACE OF HEARING: Ottawa, Ontario (by telephone conference call)
DATE OF HEARING: June 5, 1998
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE MacKAY DATED JUNE 9, 1998
APPEARANCES:
Michael A. McWilliam and Gregory A. MacLean for the Applicant
John J. Ashley and David A. Hansen for the Respondents
Juli A. Abouchar for the Intervenor
SOLICITORS OF RECORD:
Anderson, McWilliam, Leblanc & MacDonald
Moncton, New Brunswick for the Applicant
George Thomson
Deputy Attorney General of Canada
Ottawa, Ontario for the Respondents
Juli A. Abouchar
Fredericton, New Brunswick for the Intervenor
. This is inferred from the Screening Report, Proposal by New Brunswick Department of Transportation for the Petitcodiac River Trial Gate Opening Project, May 19, 1998, p. 6.
. [1975] A.C. 396 (H.L.).
. Turbo Resources Ltd. v. Petro Canada Inc., (1989), 24 C.P.R. (3d) 1 (F.C.A.).
. Sociétépour Vaincre la Pollution Inc. v. Canada (Minister of Environment) (1995), 17 C.E.L.R. (N.S.) 225 (F.C.T.D.).
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