Date: 20011016
Docket: T-1066-01
Neutral citation: 2001 FCT 1123
BETWEEN:
CANADIAN PARKS AND WILDERNESS SOCIETY
Applicant
- and -
SHEILA COPPS, MINISTER OF CANADIAN HERITAGE,
and
THE THEBACHA ROAD SOCIETY
Respondents
REASONS FOR ORDER
GIBSON J.:
INTRODUCTION
[1] Canadian Parks and Wilderness Society ("CPAWS") seeks judicial review of a decision of the Minister of Canadian Heritage (the "Minister") made the 25th of May, 2001, to authorize the Thebacha Road Society ("Thebacha") to construct and operate a winter road, some 118 kilometres in length, and on a road allowance 10 metres in width, through Wood Buffalo National Park (the "Park").
[2] In its Memorandum of Fact and Law, CPAWS seeks the following relief:
- an Order:
- Declaring that the Minister's authorization of the road is contrary to the powers of the Minister and/or any delegate under sections 4 and 8 of the Canada National Parks Act, Statutes of Canada, 2000, c. 32 and ultra vires the powers of the Minister and/or any delegate under the Canada National Parks Act and the National Parks General Regulations, SOR/78-213;
- Declaring that authorizing construction of the road is contrary to the maintenance or restoration of ecological integrity through the protection of natural resources and natural processes, the first priority in considering all aspects of management of the Park, pursuant to subsection 8(2) of the Canada National Parks Act;
- Quashing the decision of the Minister and/or any delegate to authorize the road;
- Prohibiting the issuance by Parks Canada of a permit under s. 12 of the National Parks General Regulations to Thebacha;
- Costs; and
- Such further and additional relief as this Court deems just.
[3] Alternatively, CPAWS seeks the following relief:
- an Order;
- Declaring that a mandatory statutory step required by the Canadian Environmental Assessment Act, Statutes of Canada, 1992 c. 37, prior to authorizing construction of the road was not complied with, namely the completion of an environmental assessment in compliance with that Act;
- Declaring that the requirements of the Canadian Environmental Assessment Act must be complied with before the Minister and/or any delegate takes any action for the purpose of enabling construction of the road or portion thereof;
- Quashing the decision of the Minister and/or her delegates to authorize construction of the road;
- Prohibiting the respondent and/or any delegates from issuing any approvals or authorizations or taking any action for the purpose of enabling or initiating construction of the road or portion thereof until such time as the requirements of the Canadian Environmental Assessment Act have been complied with;
- Costs; and
- Such further and additional relief as this Court deems just.
BACKGROUND
1) Wood Buffalo National Park
[4] Wood Buffalo National Park is the largest National Park in Canada's National Parks System. It straddles the border between Alberta and the Northwest Territories and is closer to the eastern border of Alberta than to its western border. For ease of reference, two maps situating the Park appear as Schedule I to these reasons.
[5] The following is extracted from the Wood Buffalo National Park Management Plan published in 1985, apparently the most recent Management Plan for the Park[1]:
Wood Buffalo National Park is 44,807 sq. km in size, the largest national park in the country and one of the largest in the world. It is primarily a vast, poorly drained plain covered by forests, grasslands, muskeg and a multitude of meandering streams, shallow lakes and bogs. Being a part of the Interior Plains it is underlain by sedimentary rock. A few outliers of the granitic hills of the Canadian Shield which lies to the east of the plain, are also found within the park. The Peace and Athabasca rivers, meandering through wide floodplains, enter the area from the west and south, converge to form a great inland delta in the western end of Lake Athabasca and then continue north as the Slave River to Great Slave Lake. Elsewhere the level relief and slow percolating drainage have created landscapes such as karstlands and salt plains.
The size, relative isolation and wilderness character of the park have allowed several endangered species - most notably whooping cranes, bison and peregrine falcons - to survive. By also continuing to provide the basis for the traditional lifestyles of native residents, the park protects a virtually intact northern boreal plains ecosystem: landscape, vegetation, wildlife and culture.
In 1983, the Park was designated a World Heritage Site by the United Nations Educational, Scientific and Cultural Organization, confirming the exceptional universal value of the Park as a cultural or natural site deserving of protection for the benefit of humanity.
[6] The Park is, in most of its expanse, inaccessible by road. A primary road does connect the community of Garden River, close to the western border of the Park and towards its southern border, to other communities outside the Park. The MacKenzie highway system, running north from Peace River to the west of the Park, crosses the Alberta/Northwest Territories boundary and continues in a north-easterly direction north of the northwest portion of the Park with one element of the highway system turning south to cross the north-easterly corner of the Park to eventually connect with Fort Smith which is in the Northwest Territories, outside the Park. A limited network of secondary roads services the easterly portion of the Park and connects Fort Smith, Peace Point, another community within the Park, and Fort Chipewyan on the north shore of Lake Athabasca just to the east of the Park. The proposed winter road here at issue would connect the communities of Garden River and Peace Point, both within the Park.
[7] Fort Chipewyan has a winter road connection south to Fort McMurray across Lake Athabasca. Fort Smith has a direct road connection, principally on primary roads, to Peace River as earlier indicated. Although the winter road at issue would provide a shorter route during the winter from Fort Smith to Peace River, studies have indicated that, because of the nature of the proposed road, it would not be a faster route.
2) The Parties
[8] According to an affidavit of Sam Gunsch, the Executive Director of the Edmonton Chapter of CPAWS, sworn the 29th of May, 2001[2], CPAWS is a national non-profit organization with ten (10) chapters across Canada. CPAWS' general mandate is to promote the protection and expansion of Canada's national and provincial parks. Its goals include: educating the public to recognize the value of and the need for protecting parks and natural areas; promoting the establishment of additional protected national areas; and seeking to ensure that laws protecting park lands in Canada are upheld. Mr. Gunsch attests that CPAWS seeks to ensure that activities that may harm or pose the risk of harm to parks undergo a careful and thorough environmental assessment prior to proceeding. Mr. Gunsch further attests that CPAWS has approximately 20,000 members and supporters across Canada, including 3,000 members of its Edmonton Chapter, and approximately 132 members residing in Northern Alberta and/or the Northwest Territories near the Park.
[9] In the principal affidavit of Richard Power sworn the 3rd of August, 2001 and forming part of the application record of Thebacha in this matter, Mr. Power attests[3]:
The people of Fort Smith, Smith's Landing First Nation, Salt River First Nation and Little Red River Cree First Nation live in the isolated but interconnected communities of Fort Smith, Fort Fitzgerald, and Garden River. Members of the Mikisew Cree First Nation reside at Peace Point, a reserve within [Wood Buffalo National Park]. There are family connections between these communities and many people move between these communities and have families residing in one or more of these communities. [ Wood Buffalo National Park] creates a geographical barrier which cuts off each of the communities from the other and, in particular, divides the eastern communities of Fort Smith and Fort Fitzgerald, from Peace Point, within [Wood Buffalo National Park], and Garden River on the western edges of the Park. For many there is little opportunity to visit with friends and family in the winter months due to the hardships imposed by the lack of access through [Wood Buffalo National Park]. It was largely the interest of connecting these isolated first nation and aboriginal communities that created and kept alive the interest of the residents in exploring transportation options through [Wood Buffalo National Park].
...
The town of Fort Smith is the major municipal supply and services centre in the area and is a municipal corporation established under the Cities, Towns and Villages Act of the Northwest Territories. The town is located along the banks of the Slave River north of the 60th parallel and approximately 1423 kilometres north of Edmonton. The town's population is approximately 2,600, the majority of which has aboriginal ancestry. In particular, approximately 30% of the town residents are Dene and a further 30% are of Métis ancestry. The town's economy is largely dependent on government, Aurora College, a post-secondary institution, and the [Wood Buffalo National Park] administration. Fort Smith also provides services to the communities surrounding [Wood Buffalo National Park].
[10] As noted in the foregoing quotation, members of the Mikisew Cree First Nation reside at Peace Point, a reserve within the Park, and the proposed easterly terminus of the winter road. They oppose construction and operation of the winter road and have filed a parallel application for judicial review of the decision authorizing its construction and operation.[4]
[11] In his affidavit previously cited, Mr. Richard Power attests: that Thebacha is a not for profit society incorporated under the laws of Alberta and the Northwest Territories; that it was created as a means of bringing together various groups residing near Fort Smith and otherwise in the area of the Park with common interests as they concern the proposed winter road; and that its membership is comprised of the town of Fort Smith, Fort Smith Métis Council, Salt River First Nation, Smith's Landing First Nation and Little Red River Cree First Nation.
[12] For obvious reasons, the Mikisew Cree First Nation is not a member of Thebacha.
[13] The Honourable Sheila Copps, Minister of Canadian Heritage, is the member of the Queen's Privy Council for Canada designated by the Governor in Council as the Minister for the purposes of the Canada National Parks Act [the "new Act"][5]. Further, she is the Minister responsible for, and having overall direction of, the Parks Canada Agency established by the Parks Canada Agency Act[6]. By subsection 5(1) of its constating Act, subject to any direction of the designated Minister, the Parks Canada Agency "...may exercise the powers and shall perform the duties and functions that relate to the national parks, national historic sites and other protected heritage areas and heritage protection programs that are conferred on or delegated, assigned or transferred to the Minister [of Canadian Heritage] under any Act or regulation". The Parks Canada Agency Act recites that the Agency is established "...for the purpose of ensuring that Canada's national parks, national historic sites and related heritage areas are protected and presented for this and future generations and in order to further the achievement of the national interest as it relates to those parks, sites and heritage areas and related programs..." .
3) The Road Proposal
[14] As earlier indicated, the proposed road would be approximately 118 kilometres long. It would approximately follow an old, overgrown road right of way between Garden River and Peace Point, both communities within the Park, which right of way roughly follows the north bank of the Peace River. Its design as a winter road would be to accommodate light trucks, cars and vans only; it would not accommodate tractor trailers. The "...old, overgrown road right of way" was a winter road that was used between 1958 and 1960.
[15] Since the abandonment of the earlier winter road, its route, at least along much of its length, has become relatively densely re-vegetated with native species including semi-mature pine, aspen, willow and birch. Notwithstanding the re-vegetation, residents of Garden River and Peace Point, and Parks Canada staff, travel the right of way by snowmobile in winter and, at certain other seasons, by all-terrain vehicles. It was not in dispute before me that construction of the proposed winter road would result in the loss of vegetation along the right of way, some degree of potential or actual erosion of fragile sandy soils, the exposure of some wild life in the Park to poaching and to mortality caused by vehicle collisions and increased risk of harm to sensitive karst landscape features on or adjacent to the right of way. Further, potentially at least, the new winter road would pose a risk of introduction of invasive plant species foreign to the Park environment from soil and seed residues attached to vehicles using the road.
[16] Not surprisingly, given the lack of transportation infrastructure in the region, the proposal to reopen the winter road that was used between 1958 and 1960, is not new. In the Wood Buffalo National Park Management Plan earlier referred to, published in 1985 and, apparently, the most recent Management Plan for the Park, the "Peace River Road" corridor was indicated to be a "Zone IV Recreation Area"[7]. The Plan noted:
This zone designation has resource protection objectives oriented towards minimizing the negative impacts of a broad range of general outdoor opportunities and facilities on the natural environment.
[17] The Plan continued[8]:
The limited number of Zone IV areas is also due to the limited capability of the park area, as determined by conventional landscape assessment methods, to generate and sustain recreational use of an intensity and type that makes the Zone IV designation appropriate. Despite this overall limitation, however, a number of areas not currently subject to recreational use warrant Zone IV status due to their characteristics and location. The two noteworthy examples are the Parsons Lake Road corridor and related salt plains viewpoint, and the Peace River Road corridor. The latter corridor is essentially the right-of-way which was cleared in the early 1960's. The initial investigation of the road concept (1982) determined that this alignment was the most suitable route, should a road be built along the Peace River. The designation of this corridor as Zone IV reflects the acceptance in principle of the road concept, subject to the results of detailed studies and discussions, and satisfactory conclusions of assessments carried out under the Environmental Assessment and Review Process.
It is worthy of note that the "road concept" then accepted in principle was not limited to a winter road.
[18] Parks Canada does not dispute that an all-season road has "...long been pursued as an objective by groups and individuals in the region".[9]
[19] Mr. Gunsch attests in his principal affidavit[10] at paragraph 19:
The [current] winter road project arose from a formal written submission made by the town of Fort Smith to the Secretary of State for Parks in December 1998 entitled "Opening the Trail to the Future of Wood Buffalo National Park". The proposal, ... sought approval of an all-season road following the general route of the present winter road proposal. The expressed rationale for the requested all-season road is that it will lead to an increase in tourism to Fort Smith, and a decrease in transportation costs to the community... . [emphasis in original]
[20] In the executive summary to the submission entitled "Opening the Trail to the Future of Wood Buffalo National Park"[11], the following appears:
For the past forty years, Fort Smith has been requesting a road-link with the south through Wood Buffalo National Park. The establishment of the Park immediately south and west of Fort Smith effectively prevented the development of a direct route to the south via road that could have enabled the community to maintain its strategic position along the north-south transportation routes that it had at the time of the fur trade, when waterways were the main arteries of transportation in the Northwest. As a consequence, the Park has stymied the development of Fort Smith and the entire Northeast Alberta/South Slave region.
...
Fort Smith and the communities in the region are requesting approval for the western extension of the all weather road from Peace Point along the existing right-of-way to Garden River on the western park boundary - a distance of some 120 Kilometres. From there, a gravel road would be built outside the Park some 40 kilometres to connect with Alberta Highway #58 at Wentzel River. This route - known as the Peace River Road - is authorized by the Management Plan for Wood Buffalo National Park. In fact, it is the only southern access road allowed by the Management Plan . Parks Canada does not object to the road being built but has made clear that the development of the road can only proceed if resources outside of Parks Canada can be secured.
...
...A direct road link is the single most important development measure that could be taken to stimulate economic development in the region and would be of practical benefit to Park administration. ...
[21] In a brief document entitled "Advice/Recommendation to the Minister" dated the 10th of September, 1999[12], Parks Canada addressed the issue of construction of a winter road through the Park. The key elements relating to the issue were indicated to be:
· Re-opening the winter road has been approved subject to an environmental screening.
· Acceptance of the Community's proposal for an all-season road along the winter route would be subject to project design, a comprehensive study under CEAA, and project sponsorship and financing.
Under the heading "Background" to the foregoing, Parks Canada noted:
...
· During a visit to Fort Smith, N.W.T. on August 11, 1999, the Minister of Canadian Heritage, agreed to consider a two-phased approach to a road south through Wood Buffalo National Park. The first phase would involve the re-opening of a winter road, subject to an environmental screening. The second phase would involve the construction of an all season road, subject to a comprehensive assessment under CEAA [the Canadian Environmental Assessment Act].
[22] Thus, CPAWS' concern reflected in this application for judicial review is not merely a winter road approval but, in fact, subject to a comprehensive environmental assessment, an all-season road, accomplished in two stages. This, despite the fact, that in a news release, dated the 25th of May, 2001, the same day on which approval to the winter road project was given, the following paragraph appears[13]:
Today's approval is for the re-establishment of a winter road only. Parks Canada has clearly stated that it is not prepared to consider an all-weather road proposal. The upcoming Wood Buffalo National Park Management Plan review will clearly state this direction and it will also be reflected in the scoping document and enshrined in the final plan. [emphasis added]
[23] Counsel for CPAWS emphasized the fact that, on at least five separate occasions, Parks Canada acknowledged that the winter road was not needed for "park purposes"[14].
THE DECISION UNDER REVIEW
[24] In a document entitled "Parks Canada Determination Regarding the Thebacha Road Society Proposal to Reopen a Winter Snow Road in Wood Buffalo National Park"[15], Parks Canada examines and comments on the winter road proposal under the following headings: Background; Appropriateness; Environmental Effects; Public Concern; and Road Realignment and Environmental Assessment Amendment and concludes in the following terms under the heading Finding And Determination:
Parks Canada and it's co-Responsible Authority HRDC [Human Resources Development Canada] have found the proposed reopening of the Garden River to Peace Point winter snow road is not in contradiction with Parks Canada plans and policy, (or other federal laws and regulations). It is determined that, taking into account the implementation of the Thebacha Road Society's mitigation measures, the project (construction, maintenance and operation of a winter snow road) is not likely to cause significant adverse environmental effects.
Subject to the implementation of the mitigating measures, including adaptive management and environmental management strategies, the winter snow road project is approved and can proceed.
The foregoing is the decision here under review. It was followed by an extensive Construction and Operating Agreement dated the 22nd of June, 2001, and executed on behalf of the Thebacha Road Society on the 26th of June, 2001 and on behalf of Her Majesty the Queen by the Director General, Parks Canada, western and northern Canada, on the 3rd of July, 2001. Counsel for the Minister anticipates that four permits will issue under the National Park Fire Protection Regulations and the National Park General Regulations to give effect to and to facilitate the implementation of the Agreement. They would apparently relate to flammable liquid storage, burning, clearing of the right-of-way and water withdrawal[16].
THE ISSUES
[25] In CPAWS' Memorandum of Fact and Law, the issues raised on this application for judicial review are described in substantially the following terms[17]:
· 1) Under the Canada National Parks Act:
a) Does the Minister have the implied power to approve a road through a national park, where no such power is granted in specific terms in the new Act and the road is not for park purposes?
b) Can the Minister approve a road through a national park where the first and determinative factor in her decision was not ecological integrity, and there is no evidence that she even considered ecological integrity at all?
c) Can Parks Canada issue a permit under section 12 of the National Parks General Regulations[18] to destroy 118 kilometres worth of park vegetation for a non-park management purpose?
· 2) Under the Canadian Environmental Assessment Act:
d) Can Parks Canada choose to ignore Thebacha's clearly stated intention to convert the winter road here under consideration into a full season road when determining the scope of the project to be assessed, even to the point of cleansing the project proposal of its original reference to the proposed full season road?
e) Can Parks Canada assess the road by way of a screening assessment, rather than a comprehensive study, where the obligation to conduct a comprehensive study arises whenever a proposed project within a national park conflicts with that park's management plan, and the winter road project materially conflicts with Wood Buffalo's 1984 Management Plan?
f) Can Parks Canada prevent timely public access to the registry of assessment documents maintained under the Canadian Environmental Assessment Act, by requiring the public to make an access to information request for the documents before they are released, with the result that members of the public are denied access to the assessment documents held in the registry until after the period for public comment on the assessment has ended?
While the issues before the Court, as above stated, are in somewhat argumentative language and are substantially restated in the Memorandum of Fact and Law filed on behalf of Thebacha, I will respond to the issues in the form presented by CPAWS.
THE LEGISLATIVE SCHEMES
1) The Canada National Parks Act
[26] The Canada National Parks Act (the "new Act") was assented to on the 20th of October, 2000. The provisions of the new Act that are here at issue came into force on the 19th of February, 2001[19]. Thus, the provisions at issue are of very recent vintage. Counsel assured me that this is the first occasion on which they have come before a Court for interpretation, at least in the context of an application such as this.
[27] The new Act, as it appears in the second volume of the Statutes of Canada for the year 2000 and in its electronic format, is preceded in its substantive form by a "Table of Provisions" and the following:
SUMMARY
The purpose of this enactment is to revise and consolidate the National Parks Act and, in particular, to
(a) provide a procedure for the future establishment of new parks and the enlargement of existing ones;
(b) add several new parks and park reserves and adjust the land descriptions of certain existing parks;
(c) enhance protection for wildlife and other park resources;
(d) provide for the continuation of traditional resource harvesting activities in keeping with comprehensive land claim agreements and federal-provincial agreements to establish parks;
(e) fix the boundaries of communities in parks and restrict commercial development in those communities; and
(f) make miscellaneous technical and housekeeping amendments.
SOMMAIRE
Le texte modifie et refond la Loi sur les parcs nationaux. En voici les points saillants:
a) établissement de la procédure de création d'agrandissement des parcs;
b) création de parcs et de réserves à vocation de parc et modification des descriptions de certains parcs existants;
c) protection accrue de la faune et des autres ressources dans les parcs;
d) autorisation des activités traditionelles en matière de ressources, en conformité avec les ententes sur les revendications territoriales globales et les ententes fédéro-provinciales portant création des parcs;
e) délimitation des collectivités situées dans les parcs et réglementation du développement commercial au sein de celles-ci;
f) modifications diverses mineures ou de nature administrative.
[28] Clearly of the purposes stated, for the purposes of this matter, the reference to enhancement of protection of wildlife and other park resources would appear to be the most important. I would interpret "other park resources" in the foregoing context to include the flora and natural objects within a National Park.
[29] None of the counsel appearing before me referred me to the foregoing summary statement as an interpretative aid or as being in any other way relevant for the purposes of this matter. Nor was I able in my own research to discover any guidance, from Parliament or otherwise, that would aid in a determination of the objective that Parliament, or indeed the Government, had in mind when it undertook to incorporate such a summary statement, and this in the context where such summary statements have been appearing in annual bound volumes of the Statutes of Canada since 1994.[20]
[30] For reasons that I will briefly elaborate later in these reasons, I am satisfied that neither Parliament nor the Government could have determined to add such useful "summaries" to the statute book without reason. I am prepared to determine that at least a portion of that reason was to provide an aid to interpretation somewhat akin to "legislative history". As I have indicated, I will have more to say on this subject later in these reasons.
[31] The most relevant provisions of the new Act are set out in Schedule II to these reasons.
[32] Subsection 12(1) of the National Parks General Regulations[21] reads as follows:
12. (1) The superintendent may issue a permit to any person authorizing the person to remove, deface, damage or destroy any flora or natural objects in a Park for purposes of Park management.
[emphasis added]
12. (1) Le directeur du parc peut délivrer un permis pour l'enlèvement, la mutilation, l'endommagement ou la destruction de la flore et de matières naturelles aux fins de la gestion du parc.
[je souligne]
[33] In section 2 of the same Regulations, the terms "flora" and "natural object" are defined for the purposes of those Regulations in the following terms:
"flora" means any plant matter, living or dead, and includes fungi and moulds;
...
"natural object" means any natural material, soil, sand, gravel, rock, mineral, fossil or other object of natural phenomenon not included within the terms flora and fauna that is located within a Park;
["flore" la définition n'apparaît pas dans la base de données;]
« matières naturelles » , matériaux naturels tels que de la terre, du sable, du gravier, de la pierre, des minéraux, des fossiles, ou tout autre objet d'origine naturelle non inclus dans la flore ou la faune;
As noted in the foregoing quotation, no definition of the term "flore", the French language equivalent of the term "flora", appears in either the hard copy version or the electronic version of the Regulations of Canada. However, the term "flora" is defined in the National Historic Parks General Regulations[22] in terms identical to the terms of the definition "flora" in the National Parks General Regulations except that the words "...but does not include the fossil remains" are added. A definition of the equivalent French language term "flore" appears in the National Historic Park General Regulations as follows:
"flore" designe toutes plantes, vivantes ou mortes, et comprend les champignons et moisissures mais non les restes fossiles.
I am prepared to adopt the foregoing French language definition of "flore" for the purposes of the National Parks General Regulations with the words "...mais non les restes fossiles" deleted.
2) The Canadian Environmental Assessment Act
[34] The relevant provisions of the Canadian Environmental Assessment Act for the purposes of this matter are set out in Schedule III to these reasons.
[35] Section 23 of the Law List Regulations[23] identifies subsection 12(1) of the National Parks General Regulations[24] quoted above, as a provision authorizing the grant of a permit in respect of a project for which an environmental assessment is a prerequisite. "Project" is defined in subsection 2(1) of the Canadian Environmental Assessment Act to include a "modification" of a physical work. More will be said of CPAWS' interpretation of the implications of the interrelationship of these provisions later in these reasons.
ANALYSIS
(1) Does the Minister have the implied power to approve a road through a
National Park, when no such power is granted in the new Act and the road is not for park purposes?
[36] Counsel for CPAWS urged that the new Act, in all of its detail, is, in effect, a code that should be interpreted strictly against a conferring on the Minister, or a delegate acting on her behalf, of a power not conferred in express terms by the new Act. In support of his submission, counsel referred me to Brown & Evans, Judicial Review of Administrative Action In Canada,[25] where the learned authors wrote the following at paragraph 13:1100 on page 13-1, under the heading "The Need For a Grant of Authority":
It is a fundamental principle of public law that all governmental action be supported by a grant of legal authority. With two minor qualifications, the actions and decisions of public officials and institutions that affect the rights of individuals have no legal force or effect unless authorized by a grant of statutory authority, either express or necessarily implied. Neither individuals nor institutions have inherent powers by virtue of the fact that they perform governmental functions. And although it is not a requirement that the legal source of authority be specified on the face of an administrative order, if challenged it must be possible to identify the supporting legal authorization. [citations omitted, underlining added, italics in original)
The learned authors continue at paragraph 13:1221, on pages 13-5 and 6:
As creatures of statute, administrative bodies have only such legal authority as the legislature has expressly or by implication conferred on them. And, subject to any constitutional limitations, the legislature can provide what the agency may or may not do, by the use of appropriate statutory language. However, to attribute the capacity to define the scope of, and limits on, governmental power to the legislature alone is quite misleading because it ignores the central role played by the courts, through the interpretation of legislation.
There is perhaps no clearer indication of the importance of the judiciary in administrative law than the development of the strong presumption by the courts that, when the legislature confers a grant of authority, the powers thereby granted are of limited scope: that is, they are not as extensive as those of the legislature itself. This point has been eloquently expressed in one of the most famous judgments delivered in the Supreme Court of Canada... [citations omitted, underlining added]
[37] The reference to a famous judgment delivered in the Supreme Court of Canada in the foregoing quotation is to Roncarelli v. Duplessis.[26] While the foregoing quotations sound a cautionary note, they clearly preserve the statutory interpretative role of Courts such as this in contexts such as that before me. They also expressly preserve the concept of conferral of authority by express words or by necessary implication.
[38] The dedication of the National Parks of Canada to the public that is reflected in subsection 4(1) of the new Act is essentially the same as that which was found in section 4 of the National Parks Act[27], (the "former Act"). Section 4 of the former Act read as follows:
4. The National Parks of Canada are hereby dedicated to the people of Canada for their benefit, education and enjoyment, subject to this Act and the regulations, and the National Parks shall be maintained and made use of so as to leave them unimpaired for the enjoyment of future generations.
4. Les parc nationaux du Canada sont par les présentes dédiés au peuple canadien pour son bénéfice, son instruction et sa jouissance, sous réserve des dispositions de la présente loi et des règlements, et les parcs nationaux doivent être
entretenus et utilisés de manière qu'ils restent intacts pour la jouissance des générations futures.
[39] In Young et al. v. Canada (Attorney General)[28], my colleague Mr. Justice Teitelbaum, by reference to the former Act, wrote at paragraph [52],
...The Minister responsible for the National Parks of Canada or her delegate have some expertise relative to management of parks. Furthermore, the National Parks Act provides the Minister with broad statutory power to administer, manage and control Canada's Parks. Parliament even appears to have intended discretion to be a central feature in the operation of the National Parks because of the importance of balancing human interests and environmental considerations. ...
The delicate balance between human interests and environmental considerations referred to by Justice Teitelbaum is well reflected in subsection 4(1) of the new Act and the equivalent section 4 of the former Act.
[40] Counsel for the applicant urged, first, that the context in which Mr. Justice Teitelbaum made the foregoing statement was substantially different from that before me, and that the new legislative scheme rendered Mr. Justice Teitelbaum's pronouncement inapplicable to the facts of this matter.
[41] I am not satisfied that the differing contexts between that which was before Mr. Justice Teitelbaum and that which is before me, of themselves, render Mr. Justice Teitelbaum's pronouncement inapt to this matter. However, the submission on behalf of CPAWS that the law has substantially changed, deserves more substantive consideration.
[42] Central to the argument of counsel for CPAWS is a comparison of subsections 8(1) and (2) of the new Act and subsections 5(1) and (1.2) of the former Act. The relevant provisions of the new Act appear in Schedule II. Subsections 5(1) and (1.2) of the former Act read as follows:
5. (1) Subject to section 8.2, the administration, management and control of the parks shall be under the direction of the Minister.
...
5. (1) Sous réserve de l'article 8.2, les parcs sont placés sous l'autorité du ministre.
...
(1.2) Maintenance of ecological integrity through the protection of natural resources shall be the first priority when considering park zoning and visitor use in a management plan.
(1.2) En ce qui concerne le zonage du parc et l'utilisation par les visiteurs, il importe en premier lieu de préserver l'intégrité écologique et, à cette fin, de protéger les ressources naturelles.
Subsection 5(1) of the former Act, subject to another provision that is not relevant for the purposes of this matter, place the administration, management and control of the National Parks under the direction of the Minister. Subsection 8(1) of the new Act provides that the Minister is responsible for the administration, management and control of Parks, including the administration of public lands in Parks.
[43] Subsection 5(1.2) of the former Act limited the first priority accorded to "ecological integrity" through the protection of natural resources to circumstances where park zoning and visitor use in a management plan were being considered. Under the new Act, maintenance or restoration of ecological integrity, through the protection of natural resources and natural processes is required to be first priority of the Minister "...when considering all aspects of the management of parks." "Ecological integrity" was not defined in the former Act. It is defined in the new Act in the following terms:
"ecological integrity" means, with respect to a park, a condition that is determined to be characteristic of its natural region and likely to persist, including abiotic components and the composition and abundance of native species and biological communities, rates of change and supporting processes.
« _intégrité écologique_ » L'état d'un parc jugé caractéristique de la région naturelle dont il fait partie et qui sera vraisemblablement maintenu, notamment les éléments abiotiques, la composition et l'abondance des espèces indigènes et des communautés biologiques ainsi que le rythme des changements et le maintien des processus écologiques.
[44] The foregoing changes, when read together with the detailed provisions of the new Act:
- regarding agreements (subsection 10(2));
- restricting disposition, use and occupancy of public lands in a National Park (section 13);
- regarding disposition by leases of and easements or servitudes over public lands in a Park, which do not extend to roadways of the nature here at issue (subsection 15(1)); and
- the extensive authority of the Governor in Council to make regulations respecting a wide range of subject matter including "the establishment, maintenance, administration and use of roads... and the circumstances under which they must be open or may be closed to public traffic or use" (subsection 16(1));
lead inevitably to a conclusion, counsel for CPAWS submits, that the discretion of the Minister or her delegate that was inherent or implicit in subsection 5(1) of the former Act has been severely curtailed, if not eliminated, to the point where the decision here under review should have been taken by the Governor in Council, by regulation, by a delegate under the authority of a regulation made by the Governor in Council, or perhaps even by Parliament itself. Counsel urges that this was particularly true in circumstances where, on the face of the record before me, there was no evidence whatsoever that the Minister or her delegate had given "first priority" in arriving at the decision under review to maintenance or restoration of ecological integrity.
[45] Neither counsel for the Minister nor counsel for Thebacha referred me to any regulation enacted under the former Act and continued in force under the new Act, or for that matter, to any regulation enacted by the Governor in Council under the new Act, that would provide specific authority to the Minister or her delegate to take the decision here under review.
[46] Counsel for the respondents urge that I should give a broad and liberal interpretation to the words of subsection 8(1) of the new Act, particularly given the extraordinary diversity represented by portions of some National Parks, such as Banff National Park at one end of the scale, and Wood Buffalo National Park which would be close to the other end of the scale, and further given broad responsibilities vested in the Minister and her delegates as a result of such diversity. Counsel further urge that in light of the foregoing considerations, when taken together with the burden that the interpretation urged on behalf of CPAWS would place on the Governor in Council and/or Parliament if it were adopted, only a broad and liberal interpretation of subsection 8(1) of the New Act would be consistent with Parliament's intent. In effect, counsel for the respondents urge that the interpretation put forward on behalf of CPAWS would grind the administration of Canada's National Parks to a virtual standstill and that that would not be consistent with achievement of the diverse objectives set out in section 4 of the new Act.
[47] Counsel for the respondents further submit that, notwithstanding the acknowledgement by Parks Canada that the winter road in question is not required for Park administration purposes, and further, notwithstanding that the evidence before me does not demonstrate in so many words an adoption of maintenance of ecological integrity as a first priority in arriving at the decision to authorize construction and maintenance of the winter road, the totality of the evidence before me demonstrates that ecological integrity was given first priority, and that the impact of the winter road on ecological integrity would be minimal and would, wherever possible, be ameliorated by appropriate mitigating measures. In such circumstances, counsel urge, I should find the decision in question to be within the discretion of the Minister in the exercise of her broad responsibility for the administration, management and control of the Parks and, more particularly, within the residual discretion remaining when all of the specific provisions of the new Act, none of which cover the specific circumstances here at issue, are taken into consideration.
[48] I adopt the position advocated on behalf of the Minister and Thebacha.
[49] Earlier in these reasons, I quoted the "Summary" that appears in the Statutes of Canada 2000, immediately preceding the new Act. I find that summary and the following passage from Driedger on the Construction of Statutes[29] to be helpful:
Many types of amendments are not intended to bring about a substantial change in the law. Included in this category are:
...
(4) amendments made to improve or harmonize the style of legislation.
This last is the sort of amendment Laskin J. had in mind when he wrote:
Legislative changes may reasonably be viewed as [substantive], unless there is internal or admissible external evidence to show that only language polishing was intended.
Where only formal change is intended, the amended version of the legislation has the same meaning as the previous version. This means that the previous version may be relied on to help clarify the connotation and application of the amended version.
For the quotation from Mr. Justice Laskin that is relied on by the learned author, she cites Bathurst Paper Ltd. v. New Brunswick Minister of Municipal Affairs[30].
[50] I conclude that the evolution from subsection 5(1) of the former Act to subsection 8(1) of the new Act falls within the foregoing description of formal change only as opposed to substantive change. A brief review of the legislative history leading to the enactment of the new Act discloses no substantive purpose in the change of form from subsection 5(1) of the former Act to subsection 8(1) of the new Act. Certainly, the legislative history discloses no intent on the part of the Government or Parliament to circumscribe the Minister's discretion in the administration, management and control of the Parks except where such is reflected by a specific provision of the new Act. The "Summary" previously referred to similarly discloses no such intention.
[51] Against the foregoing, and bearing in mind the earlier cited guidance provided by Brown & Evans as well as the words of Mr. Justice Teitelbaum in the Young decision, also cited above, I am satisfied that the decision here under review was within the discretion accorded by subsection 8(1) of the new Act to the Minister when that subsection is read in the context of the new Act, as a whole. I find no special significance in the modification from the wording of the former Act that is reflected in subsection 8(1) of the new Act.
[52] Further, I agree with counsel for the respondents that the record, when read in its totality, is consistent with the Minister and her delegates according first priority to ecological integrity in arriving at the decision under review. That the decision is clearly not consistent with treating ecological integrity as the Minister's sole priority is clear. However, that is not the test. I reiterate: subsection 4(1) of the new Act requires a delicate balancing of conflicting interests which include the benefit and enjoyment of those living in, and in close proximity to, Wood Buffalo National Park. This is particularly so when that Park is as remote from services and facilities as is in fact the case and as is likely to remain the case for some time. In the circumstances, while Wood Buffalo National Park, like other National Parks, is dedicated to the people of Canada as a whole, it is not unreasonable to give special consideration to the limited number of people of Canada who are by far most directly affected by management or development decisions affecting the Park. I am satisfied that it was reasonably open to the Minister and her delegates to conclude that the interest of those people overrode the first priority given to ecological integrity where impairment of such integrity can be minimized to a degree that the Minister concludes is consistent with the maintenance of the Park for the enjoyment of future generations.
(2) Can the Minister approve a road through a National Park where the first and determinative factor in her decision was not ecological integrity, and there is no evidence that she considered ecological integrity at all?
[53] My response to this issue question is essentially contained in my conclusion with regard to the first issue question. Subsection 8(2) of the Act does not require that ecological integrity be the "determinative factor" in a decision such as that under review. Rather, it simply requires that ecological integrity be the Minister's "first" priority and, as indicated immediately above, I am satisfied on the totality of the evidence before the Court that it was her first priority in reaching the decision here under review. I acknowledge that the record before me does not disclose that the Minister and her delegates used the phrase "ecological integrity" in their decision making process, or, in fact, in the decision that is under review itself. That reality does not lead inexorably to a conclusion that ecological integrity was not considered or was not given a first priority. I am satisfied on the record that it is clear that ecological integrity was taken into account by the Minister and her delegates. I am further satisfied that it was, as well, given first priority notwithstanding that it was not found to be the determinative factor in all of the circumstances.
(3) Can Parks Canada issue a permit under section 12 of the National Parks General Regulations to destroy 118 kilometres worth of park vegetation for a non-park management purpose?
[54] Earlier in these reasons, I noted that the Minister and her delegates have acknowledged in a number of places throughout the evidence before me that the winter road at issue is not required for park management purposes. Presumably, it is on that basis that Parks Canada determined that, if the winter road were to be built and maintained, it would not be paid for out of park management funds.
[55] Again, earlier in these reasons, I quoted subsection 12(1) of the National Parks General Regulations. For ease of reference, that brief provision is repeated here.
12. (1) The superintendent may issue a permit to any person authorizing the person to remove, deface, damage or destroy any flora or natural objects in a Park for purposes of Park management. [emphasis added]
12. (1) Le directeur du parc peut délivrer un permis pour l'enlèvement, la mutilation, l'endommagement ou la destruction de la flore et de matières naturelles aux fins de la gestion du parc. [je souligne]
[56] While the winter road at issue may not, itself, be required for park management purposes, once a decision, the decision here under review, to authorize its construction within the park is taken, I am satisfied that "park management purposes" are expanded by the decision itself to comprehend what is necessary to implement the decision to allow the winter road, with the implied ongoing right to use and duty to maintain. Clearly, the decision here under review, to allow construction and operation of the winter road, is meaningless unless some removal, defacement, damage or destruction of flora and natural objects can take place. All parties before me acknowledge that a 118 kilometre winter roadway, 10 metres in width, simply cannot be constructed, used and maintained without some clearing and other road work, albeit that such road work would be substantially less than that required for an all-season road.
[57] Assuming, for the purposes of answering this issue question only, that the decision to authorize construction of the winter road stands, I am satisfied that that decision renders removal, defacement, damage and destruction of flora and natural objects, to the extent required consistent with all reasonable mitigating measures, a park management purpose. Thus, the answer to this issue question is essentially in the affirmative, since I find its premise regarding a non-park management purpose to be a false premise.
[58] The remaining issue questions relate to the interpretation and application of the Canadian Environmental Assessment Act to the circumstances before me.
(4) Can Parks Canada choose to ignore Thebacha's clearly stated intention to convert the winter road into a full-season road when determining the scope of the project to be assessed, even to the point of cleansing the project proposal of its original reference to the proposed full-season road?
[59] One of the purposes of the Canadian Environmental Assessment Act (the "Assessment Act") is to ensure that the environmental effects of projects receive careful consideration before responsible authorities take action in connection with them. It was not in dispute before me that a "responsible authority" in relation to the winter road project is the Minister.
[60] Subsection 5(1) of the Assessment Act requires that an environmental assessment of a project is required when a permit is required to enable the project to be carried out, in whole or in part, and the authority in law for the issuance of the permit is prescribed in the Law List Regulations[31]. As noted earlier in these reasons, such a permit is required for the winter road project to permit clearing of the right of way. Subsection 11(1) of the assessment Act requires that an environmental assessment of a project such as the winter road must be conducted "...as early as is practicable in the planning stages of the project and before irrevocable decisions are made...".
[61] Under the authority of section 15 of the assessment Act, the Minister determined the "scope" of the project, for assessment purposes, to be the winter road project. Counsel for CPAWS urges that this "scoping" of the project constituted a reviewable error since the term "project" is defined for the purposes of the Assessment Act to include, in relation to a physical work such as a road, not only the construction and operation of the road but any proposed modification of the road. Counsel urges that Thebacha's proposal clearly contemplates "modification" of the winter road, as a second stage, into an all-season road and that failure to include the contemplated modification was contrary to both the spirit and the substance of the Assessment Act.
[62] Counsel for CPAWS urges that, while interpretation of the Assessment Act is a question of law and therefore the standard of review of decisions interpreting the assessment Act is correctness[32], the standard of review of a decision "scoping" a particular project is a mixed question of fact and law and that therefore the standard of review is "reasonableness". In this regard, counsel cites Bow Valley Naturalists Society v. Canada (Minister of Canadian Heritage)[33] where Mr. Justice Linden, for the Court wrote at paragraph [55]:
The leading case dealing with sections 15 and 16 of the Act [the "scoping" authority] is a decision of this Court in Friends of the West Country Association v. Canada (Minister of Fisheries and Oceans). Writing for the unanimous Court, Rothstein J. A. concluded that the interpretation of the Act, a statute of general application, is a question of law reviewable on a correctness standard. Consequently, this standard of review of statutory interpretation issues will be employed in this case. However, in that case, this Court did not rule on the appropriate standard of review for discretionary decisions of substance pursuant to the authority granted in the Act. The Trial judge in that case has held that the standard of review for such cases should be reasonableness. Applying the Pushpanathan factors, this would be appropriate in this case particularly because there is no privative clause, and because the level of expertise in administering the Act is minimal in this and most, if not all, other responsible authorities. [citations omitted]
[63] Counsel for CPAWS urges that the discretionary decision of the Minister to "scope" the project here at issue in a manner that limited it to the winter road, while ignoring the long history of an ultimate goal of an all-season road, constituted an unreasonable exercise of discretion. In support of this submission he noted that the Supreme Court of Canada has referred to an unreasonable decision in the following terms:
An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination.[34]
[64] I reach a different conclusion. While there can be no doubt that Thebacha and its predecessors over many years and continuing up to the time of the proposal leading to the decision under review has been advocating an all-season road on the site of the winter road at issue, it is equally clear that the Minister, as noted earlier in these reasons[35], has determined to treat the winter road, and any future proposal to build an all-season road in the same corridor through the Park, as two separate projects and not as two phases of a single project. I am satisfied that she acted entirely within the scope of her discretion under section 15 of the Assessment Act in so deciding. In Friends of the West Country[36], Mr. Justice Rothstein, for the Court, wrote:
The words "in relation to" [in the definition of "project" in subsection 2(1) and in subsection 15 (3) of the Assessment Act] in context here do not contemplate any other construction, operation, modification, decommissioning, abandonment or other undertakings that has any conceivable connection to the project as scoped. Rather the words refer to construction, operation, modification decommissioning, abandonment or other undertakings that pertain to the life cycle of the physical work itself or that are subsidiary or ancillary to the physical work that is the focus of the project as scoped.
I am satisfied that the same can be said on the facts of this matter. The project, as contemplated by the Minister, whatever Thebacha may contemplate, is a winter road. The "life cycle" of the physical work itself, that is to say the winter road, is the life cycle of the winter road, not a winter road that, by some form of evolution, converts itself, within its life cycle, to an all-season road.
[65] I am satisfied that the decision of the Minister to scope the project under review as a winter road is a reasonable one. It is supported by reasons that can stand up to a somewhat probing examination, whatever the fears of CPAWS and others may be that it will inevitably lead to an all-season road. That is a separate project. That is a separate decision for another day.
[66] In the result, my response to issue question four is in the affirmative.
(5) Can Parks Canada assess the road by way of a screening assessment rather than a comprehensive study, where the obligation to conduct a comprehensive study arises whenever a proposed project within a national park conflicts with that park's management plan, and the winter road project materially conflicts with Wood Buffalo's 1984 Management Plan?
[67] In Part I of the Schedule to the Comprehensive Study List Regulations[37] enacted pursuant to paragraph 59(d) of the Assessment Act, the "...proposed construction, decommissioning or abandonment in relation to a physical work in or on a national park, national park reserve, national historic site or historic canal that is contrary to its management plan is a project for which a "comprehensive study" under the Assessment Act is required.
[68] Counsel for CPAWS urges that while the development of a road from Peace Point to Garden River is indicated in the 1984 management plan for the Park to be accepted in principle, such acceptance is subject to the road being justified in regional transportation studies. Counsel urges that there is no evidence before the Court that such studies have been conducted and that therefore the assessment of the winter road project by way of a screening assessment, rather than a comprehensive study, is contrary to law.
[69] In the decision under review,[38] the following appears[39]:
The 1984 Wood Buffalo National Park Management Plan describes a Peace River Road which would connect Garden River to Peace Point... . This was contemplating an all-weather road. It is stated such a road is acceptable "in principle", subject to several related justifications and assessments which would determine if the potential adverse environmental effects were acceptable.
The management plan makes no specific reference to use of this route for a winter snow road, it neither contemplates nor prevents its use for this purpose. The plan does recognize Parks Canada has an objective to "support changes to the regional transportation network that are feasible from a Parks Canada viewpoint" ... . The plan discusses the continuance of winter snow roads in other locations within Wood Buffalo National Park. About 100 km of winter snow roads have been operated since the early 1960's elsewhere in Wood Buffalo National Park, without unacceptable adverse environmental impact.
The project now being proposed for the Garden River/Peace Point route is not an all-weather road; it is the reopening of a former winter snow road, again for winter operation. Neither the former, nor the revised National Parks Act, provide any specific guidance for winter snow roads as part of a regional transportation and community access system. Also, Parks Canada does not have a general nor a specific policy applicable to the reopening of a former winter road in Wood Buffalo National Park. This is not an unusual situation as national policy guidelines and regulatory statutes seldom are formed to deal with circumstances unique to a specific location. Winter snow roads are a long-standing and wide-spread method of access in large areas of northern Canada, including in the vicinity of Wood Buffalo National Park. Parks Canada has a recognized responsibility to consider traditional and historic patterns of travel, regional transportation and social construct in relation to its national parks, particularly in remote and sparsely populated territory. Consequently it is concluded, that although the proposed winter snow road is not needed for operational Parks purposes, it is acceptable to consider reopening this winter snow road for the social and transportation needs of local residents, subject to acceptable potential adverse environmental effects.
The proposed route follows the original route of an earlier snow road which operated between 1958 and 1960. After a length of 117 km, the new route requires a diversion of 2.5 km in order to avoid the last 800 m which would have crossed the Mikisew Cree First Nations Reserve at Peace Point. Notwithstanding, it is considered the proposed route is in conformance with the 1984 Wood Buffalo National Park management plan which directs that an reactivated roadway must "essentially" conform to the 1958 snow road alignment. [citation omitted]
[70] Against the foregoing, I simply cannot conclude that the proposed winter road project conflicts with the Park's Management Plan. In the result, I am satisfied that the respondent acted within the scope of her discretion in determining to assess the winter road project by way of a screening assessment, rather than by way of a comprehensive study.
(6) Can Parks Canada prevent timely public access to the Registry of assessment documents maintained under the Assessment Act, by requiring the public to make an access to information request for the documents before they are released, with the result that members of the public are denied access to the assessment documents held in the Registry until after the period for public comment on the assessment has ended?
[71] For ease of reference, subsection 55(1) of the Assessment Act is reproduced here:
55. (1) For 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 and in accordance with this Act and the regulations in respect of every project for which an environmental assessment is conducted.
...
55. (1) Est tenu, conformément à la présente loi et aux règlements, un registre public pour chacun des projets pour lesquels une évaluation environnementale est effectuée afin de faciliter l'accès aux documents relatifs à cette évaluation.
...
[72] This issue is addressed in paragraphs [59] through [66] of the affidavit of Sam Gunsch, sworn the 29th of May, 2001 and filed on behalf of CPAWS[40]. Those paragraphs read as follows:
Despite my best efforts on behalf of CPAWS, I was denied access to documents contained in the public registry regarding the environmental assessment of the winter road project, during the extended public comment period. This denial frustrated my ability to provide informed input during the public comment period.
As part of my efforts on behalf of CPAWS to obtain documents helpful to our review and comment of the assessment of the proposed road, I contacted ... of Parks Canada on or about August 30th to inquire about the existence and contents of the public registry of documents mandated by s. 55 of CEAA. At that date I was informed ... that the database of documents forming the public registry was not yet complete. The reason that I contacted [a named individual] about the public registry was that, as the Summer Reconnaissance Survey was a relevant document that was not initially put out for public review and consultation, I wished to review the public registry to determine if it contained other important information that I had not to date seen.
On August 31, in response to my inquiry for access to the public registry required by CEAA, I received an Excel spreadsheet containing numerous documents pertaining to the road proposal and assessment in the public registry by e-mail from ... of Parks Canada. ...
The public registry list was very long ..., and it took me some time to review it and prepare a list of the documents that I wished to receive. On September 6 I sent a request to Parks Canada for those documents, which were also listed in Excel spreadsheet format.
On September 7, 2000 I received a letter in response to my request..., advising me that I should submit a formal access to information request for the requested documents through the Ottawa offices of Canadian Heritage. ...
On September 15 I replied to that letter, stating that in light of s. 55 of CEAA a formal access to information request was unnecessary, and reiterating my request for the documents. I went on to state that, without indicating that I agreed with Parks Canada's position on the matter and solely for the interests of expediency, if they did not agree to produce the documents pursuant to s. 55 of CEAA they should treat my request of September 6 as a formal access to information request. ...
On September 28 I received a message from Parks Canada that the documents I had requested that were available in electronic format were being sent by e-mail, and on September 29 I began to receive those documents via e-mail. I also received a package of "hard copy" documents in response to my request on October 6.
Parks Canada's failure to provide me with timely access to the documents listed in the public registry has negatively affected my ability, on behalf of CPAWS, to make informed comment on the proposed road and assessment process during the public comment period. I understand the public registry to exist precisely because it contains documents that are relevant to the assessment process, and that may provide further useful information to assist the public in learning about and commenting on a project. Having now had a chance to review those documents, I can state that they would have been of real assistance to me in providing input during the public comment period ... . [references to particular individuals and certain other information omitted, emphasis added]
[73] While it was acknowledged before me on behalf of the respondents that CPAWS was not initially given access to the records in the public registry in a manner consistent with the intention of section 55 of the Assessment Act, the documents requested were eventually provided and an extended opportunity for comment was provided to CPAWS. In the result, counsel for the respondents urge that the failure to fully comply with the spirit of section 55 should not invalidate the decision under review.
[74] In Friends of the West Country Assn. v. Canada (Minister of Fisheries and Oceans)[41], Mr. Justice Rothstein, for the Federal Court of Appeal, commented on a similar concern in the following terms in paragraph [43] of his reasons:
The establishment and manner of operation of the public registry under subsection 55(1) is subject to the exercise of discretion by the responsible authority. 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 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 ... was the antithesis of what subsection 55(1) requires. Without embarking upon an analysis of the standard of review of discretionary decisions under subsection 55(1), I am satisfied in this case that even under the most deferential standard of review, the actions of the [responsible authority] with respect to access to the public registry were patently unreasonable. ... [citation omitted]
[75] I am satisfied that precisely the same might be said here. It is most unfortunate that the facts of this matter disclose that the lessons that should have been learned in the context of the Friends of the West Country matter have not been learned or, at least, have not been sufficiently disseminated to responsible authorities and their delegates.
[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?
[77] In Caddy Lake Cottagers v. Florence-Nora Access Road Inc.[42], Mr. Justice Helper, in concurring reasons, wrote at paragraph 42:
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,...). According to Côté, at p. 204:
Three factors appear to influence the courts: the prejudice cause by non-compliance with formalities, the potential consequences of a court finding of nullity, and the subject matter of the legislation.
[citations omitted]
[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.
[79] In the result, once again, while I conclude that the answer to issue question number 6 should be in the negative, 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.
CONCLUSION
[80] On the basis of the foregoing analysis, I conclude that this application for judicial review must be dismissed and an Order will go accordingly. No extension or renewal of the interlocutory injunction herein, granted by Order of the Court dated the 21st day of August, 2001, will be granted.
COSTS
[81] In the ordinary course on an application for judicial review such as this, costs would follow the event. Counsel for the Minister indicated before the Court that the Minister does not seek costs. By contrast, counsel for Thebacha indicates that Thebacha does seek costs. An Order will go for costs in favour of Thebacha as against CPAWS. There will be no Order as to costs as between the Minister and CPAWS.
____________________________
J. F.C.C.
Ottawa, Ontario
October 16, 2001
4. (1) The national parks of Canada are hereby dedicated to the people of Canada for their benefit, education and enjoyment, subject to this Act and the regulations, and the parks shall be maintained and made use of so as to leave them unimpaired for the enjoyment of future generations.
...
4. (1) Les parcs sont créés à l'intention du peuple canadien pour son agrément et l'enrichissement de ses connaissances; ils doivent être entretenus et utilisés conformément à la présente loi et aux règlements de façon à rester intacts pour les générations futures.
...
8. (1) The Minister is responsible for the administration, management and control of parks, including the administration of public lands in parks and, for that purpose, the Minister may use and occupy those lands.
(2) Maintenance or restoration of ecological integrity, through the protection of natural resources and natural processes, shall be the first priority of the Minister when considering all aspects of the management of parks.
...
8. (1) Les parcs, y compris les terres domaniales qui y sont situées, sont placés sous l'autorité du ministre; celui-ci peut, dans l'exercice de cette autorité, utiliser et occuper les terres domaniales situées dans les parcs.
(2) La préservation ou le rétablissement de l'intégrité écologique par la protection des ressources naturelles et des processus écologiques sont la première priorité du ministre pour tous les aspects de la gestion des parcs.
...
10.(2) The Minister may enter into agreements
(a) with any person for the development, operation and maintenance in a park of hydro-electric power pursuant to the Dominion Water Power Act for use in a park;
(b) with a local or aboriginal government having jurisdiction on lands adjacent to a park for the supply of water from the park to any place on those adjacent lands; and
(c) with any person located on lands in or adjacent to a park for the supply of water from the park to those lands for domestic purposes or for use in establishments providing services to park visitors.
...
10.(2) Le ministre peut conclure des accords avec_:
a) toute personne en vue de l'installation, l'exploitation et l'entretien de services d'énergie hydro-électrique dans un parc, en application de la Loi sur les forces hydrauliques du Canada, pour utilisation dans le parc;
b) une administration locale ou autochtone don't relèvent des terrains contigus à un parc en vue de l'approvisionnement en eau, à partir du parc, de tout lieu situé sur ces terrains;
c) une personne résidant sur un terrain situé dans un parc ou contigu à un parc en vue de l'approvisionnement en eau, à partir du parc, de ces terrains pour usage domestique ou pour usage dans les établissements qui fournissent des services aux visiteurs du parc.
...
13. Except as permitted by this Act or the regulations,
(a) no public lands or right or interest in public lands in a park may be disposed of; and
(b) no person shall use or occupy public lands in a park.
13. Sauf dans la mesure permise par les autres dispositions de la présente loi ou ses règlements, il est interdit d'aliéner les terres domaniales situées dans un parc, de concéder un droit réel ou un intérêt sur celles-ci, de les utiliser ou de les occuper.
15. (1) The Minister may
(a) enter into leases of, and easements or servitudes over, public lands in a park that are used for
(i) the right-of-way of an existing railway line or the site of a railway station,
(ii) the right-of-way of an existing oil or gas pipeline or the site of a tank, reservoir, pump, rack, loading facility or other installation connected with such a pipeline, or
(iii) the right-of-way of an existing telecommunication or electrical transmission line or the site of an exchange, office, substation or other installation connected with such a transmission line;
(b) enter into leases of, and easements or servitudes over, public lands in a park that are required for any alteration to or deviation from a right-of-way referred to in paragraph (a) or for the relocation of any station or installation referred to in that paragraph; or
(c) enter into leases or licences of occupation of, and easements or servitudes over, public lands in a park for the installation and operation of radio and television repeater stations, microwave towers, weather and telemetry stations and cosmic ray and other scientific monitoring stations.
(2) Public lands in a park in which a right or interest is held for any purpose under this section remain part of the park and, if those lands cease to be used for that purpose, the right or interest reverts to the Crown.
(3) The Minister may terminate, or accept the surrender or resiliation of, a lease of public lands in a park and may terminate, or accept the relinquishment of, a licence of occupation of such lands or an easement or servitude over such lands.
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15. (1) Le ministre peut_:
a) louer ou assujettir à des servitudes des terres domaniales situées dans un parc qui servent déjà_:
(i) soit d'emprise aux voies ferrées ou d'emplacement pour des gares ferroviaires,
(ii) soit d'emprise à un oléoduc ou un gazoduc ou d'emplacement pour des citernes, réservoirs, pompes, montures, installations de chargement ou autres s'y rapportant,
(iii) soit d'emprise à des lignes de télécommunication ou de transport d'électricité ou d'emplacement pour tout central, bureau, sous-station ou autre installation s'y rattachant;
b) louer ou assujettir à des servitudes des terres domaniales situées dans un parc qui sont nécessaires à la modification des emprises, gares ou autres installations existantes ou pour le changement de tracé de ces emprises ou le déplacement de ces installations;
c) louer des terres domaniales situées dans un parc -- ou délivrer des permis d'occupation de celles-ci ou des servitudes à leur égard -- pour l'installation et l'exploitation de stations d'amplification des ondes de télévision ou de radio, de tours à hyperfréquences, de stations météorologiques ou télémétriques, de stations d'observation des rayons cosmiques ou d'autres stations scientifiques.
(2) Les terres domaniales situées dans un parc sur lesquelles des droits réels ou intérêts ont été concédés en vertu du présent article continuent à faire partie du parc et, dès qu'elles cessent de servir aux fins visées par la concession, ces terres -- ou les droits réels ou intérêts concédés sur elles -- retournent à la Couronne.
(3) Le ministre peut résilier un bail, une servitude portant sur des terres domaniales situées dans un parc ou un permis d'occupation de telles terres et accepter la rétrocession du bail ou la renonciation à la servitude ou au permis.
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16. (1) The Governor in Council may make regulations respecting
(a) the preservation, control and management of parks;
(b) the protection of flora, soil, waters, fossils, natural features, air quality, and cultural, historical and archaeological resources;
16. (1) Le gouverneur en conseil peut prendre des règlements concernant_:
a) la préservation, la gestion et l'administration des parcs;
b) la protection de la flore, du sol, des eaux, des fossiles, de la topographie, de la qualité de l'air et des ressources culturelles, historiques et archéologiques;
(c) the protection of fauna, the taking of specimens of fauna for scientific or propagation purposes, and the destruction or removal of dangerous or superabundant fauna;
(d) the management and regulation of fishing;
(e) the prevention and remedying of any obstruction or pollution of waterways;
(f) the prevention and extinguishment of fire on park lands or threatening park lands;
(g) the issuance, amendment and termination of leases, licences of occupation and easements or servitudes, and the acceptance of the surrender or resiliation of leases and the relinquishment of licences of occupation and easements or servitudes, of or over public lands
(i) in park communities, for the purposes of residence, schools, churches, hospitals, trade, tourism and places of recreation or entertainment,
(ii) in existing resort subdivisions, for the purpose of residence,
(iii) outside park communities and existing resort subdivisions, for the purposes of schools, churches, hospitals, service stations, tourism and places for the accommodation, recreation or education of visitors to parks, and
(iv) in the town of Banff, for the purpose of the exercise by a local government body of functions specified in the agreement referred to in section 35;
(h) the restriction or prohibition of activities and the control of the use of park resources and facilities;
(i) the establishment, operation, maintenance and administration of works and services of a public character, such as water, sewage, electricity, telephone, gas, fire protection, garbage removal and disposal and cemeteries, including the designation, granting and maintenance of plots in cemeteries, and respecting the use of those works and services;
(j) the establishment, maintenance, administration and use of roads, streets, highways, parking areas, sidewalks, streetworks, trails, wharves, docks, bridges and other improvements, and the circumstances under which they must be open or may be closed to public traffic or use;
(k) the control of traffic on roads, streets and highways and elsewhere in parks, including the regulation of the speed, operation and parking of vehicles;
(l) the surveying of public lands, the making of plans of surveyed lands, the delimitation in such plans of the boundaries of park communities, existing resort subdivisions and cemeteries, their designation as towns, visitor centres, resort subdivisions or cemeteries and the subdividing of lands so designated;
c) la protection de la faune et la destruction ou l'enlèvement d'animaux sauvages dangereux ou en surnombre, ainsi que la capture d'animaux sauvages à des fins scientifiques ou de reproduction;
d) la gestion et la réglementation de la pêche;
e) l'adoption de mesures préventives et curatives concernant l'obstruction et la pollution des cours d'eau;
f) la prévention des incendies et leur extinction, dans les parcs et à leurs abords;
g) la délivrance, la modification et la résiliation de baux, de permis d'occupation ou de servitudes -- ainsi que l'acceptation de la rétrocession des baux et de la renonciation aux servitudes et aux permis d'occupation -- sur des terres domaniales situées_:
(i) dans les collectivités, pour des habitations, écoles, églises, hôpitaux, commerces, activités de tourisme et lieux de divertissement ou de récréation,
(ii) dans les centres de villégiature existants aux fins de logement,
(iii) à l'extérieur des collectivités, des centres de villégiature existants pour des écoles, églises, hôpitaux, stations-service, activités de tourisme et lieux d'hébergement, de récréation ou d'éducation destinés aux visiteurs,
(iv) dans le périmètre urbain de Banff pour qu'une administration locale puisse exercer les fonctions précisées dans l'accord visé à l'article 35;
h) le contrôle des activités dans les parcs, ou leur interdiction, et la réglementation de l'utilisation des ressources et des installations qui s'y trouvent;
i) la mise sur pied, l'exploitation, l'entretien, l'administration ainsi que l'usage d'ouvrages et de services publics, notamment pour l'approvisionnement en eau, les égouts, le téléphone, l'électricité, l'alimentation en gaz, la protection contre l'incendie, l'enlèvement et l'élimination des ordures ménagères ainsi que les cimetières, y compris la délimitation, la concession et l'entretien de terrains dans ces derniers;
j) la mise sur pied, l'entretien, la gestion ainsi que l'usage des voies routières et autres infrastructures, y compris les trottoirs, sentiers, aires de stationnement, quais, docks et ponts, et les circonstances dans lesquelles elles doivent être ouvertes ou peuvent être fermées au public, sans que cela ait pour effet d'exclure des terres d'un parc;
k) la réglementation de la circulation sur le réseau routier et ailleurs dans les parcs, notamment pour la vitesse, la conduite et le stationnement des véhicules;
l) l'arpentage des terres domaniales, l'établissement des levés, la délimitation sur ceux-ci des collectivités, centres de villégiature et cimetières existants, la désignation des terres arpentées comme collectivité, centre de villégiature ou cimetière, la désignation des terres arpentées comme périmètre urbain, centre
d'accueil ou de villégiature ou cimetière et la subdivision des terres ainsi désignées;
(m) the control of the location, standards, design, materials, construction, maintenance, removal and demolition of buildings, structures, facilities, signs and other improvements and the establishment of zones governing uses of land and buildings;
(n) the control of businesses, trades, occupations, amusements, sports and other activities or undertakings, including activities related to commercial ski facilities referred to in section 36, and the places where such activities and undertakings may be carried on;
(o) the preservation of public health and the prevention of disease;
(p) the inspection of buildings, structures, facilities and other improvements for the purpose of the enforcement of regulations made under paragraphs (m), (n) and (o);
(q) the abatement and prevention of nuisances;
r) the determination of fees, rates, rents and other charges for the use of park resources and facilities, the provision of works and services referred to in paragraph (i) and improvements referred to in paragraph (j), and the issuance and amendment of permits, licences and other authorizing instruments pursuant to subsection (3);
(s) public safety, including the control of firearms;
(t) the use, transportation and temporary storage of pesticides and other toxic substances;
(u) the control of domestic animals, including the impounding or destruction of such animals found at large;
(v) the acquisition or disposition of prehistoric and historic objects and reproductions of them and the sale of souvenirs, consumer articles and publications;
(w) the authorization of the use of park lands, and the use or removal of flora and other natural objects, by aboriginal people for traditional spiritual and ceremonial purposes;
(x) the control of access to parks by air;
(y) maximum amounts of fines in respect of contraventions of provisions of the regulations or of permits, licences or other authorizing instruments issued pursuant to the regulations, for the purposes of paragraphs 24(3)(a) and (b); and
(z) the summary removal from a park, by park wardens or enforcement officers, of persons found contravening specified provisions of this Act, the regulations or the Criminal Code, and the exclusion from a park for prescribed periods of those persons or persons convicted of offences under those provisions.
m) la réglementation de l'emplacement, de la conception, de la construction, de l'entretien, de l'amélioration, de l'enlèvement et de la démolition de bâtiments, installations, pancartes et autres structures, des normes à appliquer et des matériaux à utiliser ainsi que le zonage en vue de l'utilisation des terres ou des bâtiments;
n) la réglementation des activités -- notamment en matière de métiers, commerces, affaires, sports et divertissements --, telles que, entre autres, les activités relatives aux installations commerciales de ski visées à l'article 36, y compris en ce qui touche le lieu de leur exercice;
o) la protection de la santé publique et la lutte contre la maladie;
p) l'inspection de bâtiments, installations et autres structures pour l'application des règlements pris en vertu des alinéas m), n) et o);
q) la suppression et la prévention des nuisances;
r) la fixation des droits à percevoir pour l'utilisation des installations et des ressources se trouvant dans les parcs, pour la fourniture des ouvrages et des services visés à l'alinéa i) et des infrastructures visées à l'alinéa j) et pour la délivrance ou la modification des licences, permis et autres autorisations visés au paragraphe (3);
s) la protection de la sécurité publique, y compris la réglementation des armes à feu;
t) l'utilisation, le transport et l'entreposage temporaire des produits antiparasitaires et autres matières toxiques;
u) la réglementation des animaux domestiques, y compris la destruction ou la mise en fourrière de ceux qui errent;
v) l'acquisition ou l'aliénation d'objets préhistoriques ou historiques ou de reproductions de ceux-ci, et la vente de publications, de souvenirs et d'articles utilitaires;
w) l'autorisation de l'utilisation, par les peuples autochtones à des fins spirituelles ou cérémoniales traditionnelles, des terres situées dans les parcs ainsi que de la flore et des autres objets naturels, notamment par prélèvement;
x) la réglementation de l'accès aux parcs par aéronef;
y) la fixation du maximum des amendes prévues aux alinéas 24(3)a) et b) pour les contraventions aux règlements ou aux modalités des licences, permis ou autres autorisations délivrés en vertu de ceux-ci;
z) l'expulsion sans formalité par les gardes de parc et les agents de l'autorité des personnes prises en flagrant délit de contravention à certaines dispositions de la présente loi, des règlements ou du Code criminel, et l'interdiction d'accès pour une période déterminée prononcée à l'encontre de ces personnes ou de celles qui
(2) The establishment or use of any improvement referred to in paragraph (1)(j) does not operate to withdraw lands from a park.
ont été déclarées coupables d'une infraction à ces dispositions.
(2) La mise sur pied et l'usage des voies routières et autres infrastuctures visées à l'alinéa (1)j) n'ont pas pour effet d'exclure des terres du parc.
(3) Regulations made under this section may authorize the superintendent of a park, in the circumstances and subject to the limits that may be specified in the regulations,
(a) to vary any requirement of the regulations for purposes of public safety or the conservation of natural resources in the park;
(b) to issue, amend, suspend and revoke permits, licences and other authorizations in relation to any matter that is the subject of regulations and to set their terms and conditions; and
(c) to order the taking of any action to counter any threat to public health or to remedy the consequences of any breach of the regulations in the park.
(3) Les règlements pris sous le régime du présent article peuvent habiliter le directeur d'un parc, dans les circonstances et sous réserve des limites qu'ils prévoient, à_:
a) en modifier les exigences à l'égard du parc en vue de la protection du public ou de la préservation de ses ressources naturelles;
b) délivrer, modifier, suspendre ou révoquer des licences, permis ou autres autorisations relativement à ces matières et en fixer les conditions;
c) ordonner la prise de mesures afin de parer aux menaces pour la santé publique ou de remédier aux conséquences des contraventions aux règlements dans le parc.
2. (1) In this Act,
"federal authority" means
(a) a Minister of the Crown in right of Canada,
(b) an agency of the Government of Canada or other body established by or pursuant to an Act of Parliament that is ultimately accountable through a Minister of the Crown in right of Canada to Parliament for the conduct of its affairs,
(c) any department or departmental corporation set out in Schedule I or II to the Financial Administration Act, and
(d) any other body that is prescribed pursuant to regulations made under paragraph 59(e),
but does not include the Commissioner in Council or an agency or body of the Yukon Territory, the Northwest Territories or Nunavut, a council of the band within the meaning of the Indian Act, The Hamilton Harbour Commissioners constituted pursuant to The Hamilton Harbour Commissioners' Act, The Toronto Harbour Commissioners constituted pursuant to The Toronto Harbour Commissioners' Act, 1911, a harbour commission established pursuant to the Harbour Commissions Act, a Crown corporation within the meaning of the Financial Administration Act, a not-for-profit corporation that enters into an agreement under subsection 80(5) of the Canada Marine Act or a port authority established under that Act;
"federal lands" means
(a) lands that belong to Her Majesty in right of Canada, or that Her Majesty in right of Canada has the power to dispose of, and all waters on and airspace above those lands, other than lands the administration and control of which have been transferred by the Governor in Council to the Commissioner of the Yukon Territory, the Northwest Territories or Nunavut and lands the management of which has been granted to a port authority under the Canada Marine Act or a not-for-profit corporation that has entered into an agreement under subsection 80(5) of that Act,
(b) the following lands and areas, namely,
(i) the internal waters of Canada,
(ii) the territorial sea of Canada,
(iii) the exclusive economic zone of Canada, and
(iv) the continental shelf of Canada, and
(c) reserves, surrendered lands and any other lands that are set apart for the use and benefit of a band and are subject to the Indian Act, and all waters on and airspace above those reserves or lands;
2. (1) Les définitions qui suivent s'appliquent à la présente loi.
« _autorité fédérale_ »
a) Ministre fédéral;
b) agence fédérale ou organisme constitué sous le régime d'une loi fédérale et tenu de rendre compte au Parlement de ses activités par l'intermédiaire d'un ministre fédéral;
c) ministère ou établissement public mentionnés aux annexes I et II de la Loi sur la gestion des finances publiques;
d) tout autre organisme désigné par les règlements d'application de l'alinéa 59e).
Sont exclus le commissaire en conseil du territoire du Yukon, celui des Territoires du Nord-Ouest et celui du Nunavut et tous les organismes de ces territoires, tout conseil de bande au sens donné à « _conseil de la bande_ » dans la Loi sur les Indiens, les commissions portuaires constituées par la Loi sur les commissions portuaires, les commissaires nommés en vertu de la Loi des commissaires du havre de Hamilton et de la Loi de 1911 concernant les commissaires du havre de Toronto, les sociétés d'État au sens de la Loi sur la gestion des finances publiques, la société sans but lucratif qui a conclu une entente en vertu du paragraphe 80(5) de la Loi maritime du Canada et les administrations portuaires constituées sous le régime de cette loi.
« _territoire domanial_ »
a) Les terres qui appartiennent à Sa Majesté du chef du Canada ou qu'elle a le pouvoir d'aliéner, ainsi que leurs eaux et leur espace aérien, à l'exception des terres sur lesquelles le commissaire du Yukon, celui des Territoires du Nord-Ouest ou celui du Nunavut a pleine autorité par décision du gouverneur en conseil et de celles dont la gestion est confiée à une administration portuaire sous le régime de la Loi maritime du Canada ou à une société sans but lucratif qui a conclu une entente en vertu du paragraphe 80(5) de cette loi;
b) les eaux intérieures, la mer territoriale, la zone économique exclusive et le plateau continental du Canada;
c) les réserves, terres cédées ou autres terres qui ont été mises de côté à l'usage et au profit d'une bande et assujetties à la Loi sur les Indiens, ainsi que leurs eaux et leur espace aérien.
"project" means
(a) in relation to a physical work, any proposed construction, operation, modification, decommissioning, abandonment or other undertaking in relation to that 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);
« _projet_ » Réalisation -- y compris l'exploitation, la modification, la désaffectation ou la fermeture -- d'un ouvrage ou proposition d'exercice d'une activité concrète, non liée à un ouvrage, désignée par règlement ou faisant partie d'une catégorie d'activités concrètes désignée par règlement aux termes de l'alinéa 59b).
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
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(c) has the administration of federal lands and sells, leases or otherwise disposes of those lands or any interests in those lands, or transfers the administration and control of those lands or interests to Her Majesty in right of a province, for the purpose of enabling the project to be carried out in whole or in part; or
(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.
5. (1) L'évaluation environnementale d'un projet est effectuée avant l'exercice d'une des attributions suivantes_:
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c) une autorité fédérale administre le territoire domanial et en autorise la cession, notamment par vente ou cession à bail, ou celle de tout droit foncier relatif à celui-ci ou en transfère à Sa Majesté du chef d'une province l'administration et le contrôle, en vue de la mise en oeuvre du projet en tout ou en partie;
d) une autorité fédérale, aux termes d'une disposition prévue par règlement pris en vertu de l'alinéa 59f), délivre un permis ou une licence, donne toute autorisation ou prend toute mesure en vue de permettre la mise en oeuvre du projet en tout ou en partie.
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.
(2) For the purposes of conducting an environmental assessment in respect of two or more projects,
(a) the responsible authority, or
(b) where at least one of the projects is referred to a mediator or a review panel, the Minister, after consulting with the responsible authority,
may determine that the projects are so closely related that they can be considered to form a single project.
15. (1) L'autorité responsable ou, dans le cas où le projet est renvoyé à la médiation ou à l'examen par une commission, le ministre, après consultation de l'autorité responsable, détermine la portée du projet à l'égard duquel l'évaluation environnementale doit être effectuée.
(2) Dans le cadre d'une évaluation environnementale de deux ou plusieurs projets, l'autorité responsable ou, si au moins un des projets est renvoyé à la médiation ou à l'examen par une commission, le ministre, après consultation de l'autorité responsable, peut décider que deux projets sont liés assez étroitement pour être considérés comme un seul projet.
(3) Where a project is in relation to a physical work, an environmental assessment shall be conducted in respect of every construction, operation, modification, decommissioning, abandonment or other undertaking in relation to that physical work that is proposed by the proponent or that is, in the opinion of
(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,
likely to be carried out in relation to that physical work.
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(3) Est effectuée, dans l'un ou l'autre des cas suivants, l'évaluation environnementale de toute opération -- construction, exploitation, modification, désaffectation, fermeture ou autre -- constituant un projet lié à un ouvrage_:
a) l'opération est proposée par le promoteur;
b) l'autorité responsable ou, dans le cadre d'une médiation ou de l'examen par une commission et après consultation de cette autorité, le ministre estime l'opération susceptible d'être réalisée en liaison avec l'ouvrage.
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20. (1) The responsible authority shall take one of the following courses of action in respect of a project after taking into consideration the screening report and any comments filed pursuant to subsection 18(3):
(a) subject to subparagraph (c)(iii), where, taking into account the implementation of any mitigation measures that the responsible authority considers appropriate, the project is not likely to cause significant adverse environmental effects, the responsible authority may exercise any power or perform any duty or function that would permit the project to be carried out and shall ensure that any mitigation measures that the responsible authority considers appropriate are implemented;
(b) where, taking into account the implementation of any mitigation measures that the responsible authority considers appropriate, the project is likely to cause significant adverse environmental effects that cannot be justified in the circumstances, the responsible authority shall not exercise any power or perform any duty or function conferred on it by or under any Act of Parliament that would permit the project to be carried out in whole or in part; or
(c) where
(i) it is uncertain whether the project, taking into account the implementation of any mitigation measures that the responsible authority considers appropriate, is likely to cause significant adverse environmental effects,
(ii) the project, taking into account the implementation of any mitigation measures that the responsible authority considers appropriate, is likely to cause significant adverse environmental effects and paragraph (b) does not apply, or
20. (1) L'autorité responsable prend l'une des mesures suivantes, après avoir pris en compte le rapport d'examen préalable et les observations reçues aux termes du paragraphe 18(3)_:
a) sous réserve du sous-alinéa c)(iii), si la réalisation du projet n'est pas susceptible, compte tenu de l'application des mesures d'atténuation qu'elle estime indiquées,
d'entraîner des effets environnementaux négatifs importants, exercer ses attributions afin de permettre la mise en oeuvre du projet et veiller à l'application de ces mesures d'atténuation;
b) si, compte tenu de l'application des mesures d'atténuation qu'elle estime indiquées, la réalisation du projet est susceptible d'entraîner des effets
environnementaux négatifs importants qui ne peuvent être justifiés dans les circonstances, ne pas exercer les attributions qui lui sont conférées sous le régime d'une loi fédérale et qui pourraient lui permettre la mise en oeuvre du projet en tout ou en partie;
c) s'adresser au ministre pour une médiation ou un examen par une commission prévu à l'article 29_:
(i) s'il n'est pas clair, compte tenu de l'application des mesures d'atténuation qu'elle estime indiquées, que la réalisation du projet soit susceptible d'entraîner des effets environnementaux négatifs importants,
(ii) si la réalisation du projet, compte tenu de l'application de mesures d'atténuation qu'elle estime indiquées, est susceptible d'entraîner des effets environnementaux négatifs importants et si l'alinéa b) ne s'applique pas,
(iii) public concerns warrant a reference to a mediator or a review panel,
the responsible authority shall refer the project to the Minister for a referral to a mediator or a review panel in accordance with section 29.
(2) Where a responsible authority takes a course of action referred to in paragraph (1)(a), it shall, notwithstanding any other Act of Parliament, in the exercise of its powers or the performance of its duties or functions under that other Act or any regulation made thereunder or in any other manner that the responsible authority considers necessary, ensure that any mitigation measures referred to in that paragraph in respect of the project are implemented.
(3) Where the responsible authority takes a course of action pursuant to paragraph (1)(b) in relation to a project,
(iii) si les préoccupations du public le justifient.
(2) L'autorité responsable qui prend la décision visée à l'alinéa (1)a) veille, malgré toute autre loi fédérale, lors
de l'exercice des attributions qui lui sont conférées sous le régime de cette loi ou de ses règlements ou selon les autres modalités qu'elle estime indiquées, à l'application des mesures d'atténuation visées à cet alinéa.
3) L'autorité responsable qui prend la décision visée à l'alinéa (1)b) à l'égard d'un projet fait consigner un avis de sa décision au registre public tenu aux termes de l'article 55 pour le projet, et, malgré toute autre disposition d'une loi fédérale, aucune attribution conférée sous le régime de cette loi ou de ses règlements ne peut être exercée de façon qui pourrait permettre la mise en oeuvre du projet en tout ou en partie.
(a) the responsible authority shall file a notice of that course of action in the public registry established in respect of the project pursuant to section 55; and
(b) notwithstanding any other Act of Parliament, no power, duty or function conferred by or under that Act or any regulation made thereunder shall be exercised or performed that would permit that project to be carried out in whole or in part.
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55. (1) For 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 and in accordance with this Act and the regulations in respect of every project for which an environmental assessment is conducted.
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55. (1) Est tenu, conformément à la présente loi et aux règlements, un registre public pour chacun des projets pour lesquels une évaluation environnementale est effectuée afin de faciliter l'accès aux documents relatifs à cette évaluation.
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59. The Governor in Council may make regulations
...
(f) prescribing the provisions of any Act of Parliament or any regulation made pursuant thereto that confer powers, duties or functions on federal authorities the exercise or performance of which requires an environmental assessment under paragraph 5(1)(d);
59. Le gouverneur en conseil peut, par règlement_:
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f) déterminer les dispositions législatives ou réglementaires fédérales prévoyant les attributions des autorités fédérales relativement à un projet dont l'exercice rend nécessaire une évaluation environnementale en vertu de l'alinéa 5(1)d);
[1] Certified documents, page 463.
[2] CPAWS Application Record, Volume 1, Tab 3.
[3] Thebacha Application Record, Volume 1, Tab 1, pages 2 and 3.
[4] Court File: T-1141-01.
[5] Statutes of Canada, 2000, c. 32. As will appear later in these reasons, the Canada National Parks Act essentially replaces the National Parks Act which will be referred to as the "former Act".
[6] Statutes of Canada, 1998, c. 31.
[7] Certified documents, page 496.
[8] Certified documents, page 498.
[9] Certified documents, page 545.
[10] CPAWS Application Record, Volume 1, Tab 3.
[11] CPAWS Application Record, Volume I, page 303-4.
[12] CPAWS' Application Record, volume 1, pages 745-6.
[13] Application Record of the Minister, volume 1, Evidence and Written Submissions, page 708.
[14] CPAWS" Application Record, volume 1, page 66; volume 2, pages 779, 878, and 1102 and Certified Documents, Tab 2, page 14.
[15] CPAWS Application Record, volume II, pages 1100-08.
[16] CPAWS' Application Record, volume 3, page 1434.
[17] CPAWS' Application Record, Volume 4, pages 1456-7.
[19] P. C. 2001-228, 15 February, 2001.
[20] Albeit that, where such "summaries" appeared in the Statutes for 1994, they were entitled "explanatory notes". The adoption of the description "summary" appears to have first appeared in the Statutes of Canada for 1995.
[25] Toronto, Ontario: Canvasback Publishing, 1998.
[27] R.S.C. 1985, c. N-14.
[28] (1999), 174 F.T.R. 100.
[29] 3rd Edition: Ruth Sullivan; Butterworths, Toronto and Vancouver, 1994 at pages 453-4.
[30] (1971), 22 D.L.R. (3d) 115, at 119 (S.C.C.).
[32] See Friends of the West Country Assn. v. Canada (Minister of Fisheries and Oceans), [2000] 2 F.C. 263 (C.A.), at paragraph 10.
[33] [2001] 2 F.C. 461 (C.A.).
[35] See paragraphs 21 and 22 of these reasons.
[36] Supra, note 32, paragraph [20].
[39] CPAWS' Application Record, Volume II, pages 1101-02.
[42] [1998] 8 W.W.R. 514 (Man. C.A.).
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