T-1153-96
BETWEEN:
MR.
FRANÇOIS GHALI
-and-
MS. CAROLINE SAUVÉ
-and-
MS. NATHALIE DUHAMEL
-and-
MR. LUC PHARAND
-and-
MR. LUCIEN PIGEON
-and-
MS. PAMELA MORROS
-and-
MR. LOUIS J. OTTONI
-and-
CITOYENS POUR UNE QUALITÉ DE VIE/
CITIZENS FOR A QUALITY OF LIFE
-and-
C.É.S.A.M.M.
Applicants
AND
Hon.
DAVID ANDERSON, in his capacity as
Minister of Transport
-and-
Hon. SERGIO MARCHI, in his
capacity as
Minister of the Environment
Respondents
AND
AÉROPORTS
DE MONTRÉAL
Intervenor
REASONS
FOR ORDER
NOËL J.:
This is an application for judicial review
pursuant to section 18.1 of the Federal Court Act, by which the
applicants are asking this Court to order the Honourable David Anderson, in his
capacity as Minister of Transport, to proceed under sections 5, 11 and 14ff. of
the Canadian Environmental Assessment Act with an environmental assessment of the
project by Aéroports de Montréal (hereinafter the “intervenor”, or “ADM”) of
“liberalizing” the allocation of scheduled international flights.
I.THE
PARTIES
A. THE
APPLICANTS
(i)Citizens
for a quality of life
The applicant members of the not-for-profit
corporation “Citizens for a quality of life” are all owners or occupants of
properties situated in the municipalities of Pointe-Claire and Ville
Saint-Laurent, the properties themselves being located within the air corridor
used by planes taking off from and landing at Dorval airport.
“Citizens for a quality of life” is a
not-for-profit corporation constituted under Part III of the Companies Act
and composed of Canadian citizens who
(a)inhabit
the municipalities in which Dorval airport is located: Dorval, Pointe-Claire
and Ville Saint-Laurent, in the province of Quebec; or
(b)inhabit
the municipalities that are not directly located on the edge of Dorval airport
but who are nevertheless affected by the noise, pollution and risks of airplane
crashes associated with proximity to Dorval airport.
(ii)C.É.S.A.M.M
The Coalition élargie pour le soutien de
l’aéroport Montréal-Mirabel (hereinafter “C.É.S.A.M.M”) is a not-for-profit
corporation with the particular objective of defending and promoting
environmental protection.
B.THE
INTERVENOR
(i)ADM
ADM is the corporation responsible under the
Airport Transfer (Miscellaneous Provisions) Act for managing Montreal’s
international airports, which are located at Dorval and Mirabel.
Under the ADM’s letters patents, which were
issued on November 21, 1989 pursuant to Part II of the Canada Corporations
Act, the objects of the ADM are, in particular:
[Translation]
a.to act as a public agency providing quality airport
services that respond to the specific needs of the community, while pursuing
efficiency and economic and commercial development, for example through
developing the potential of the facilities for which it may be responsible;
b....
c.to ensure the operation of the facilities for which it
may be responsible in the best interest of the public, on a sufficiently viable
financial basis to raise the necessary funds for the optimal development of air
transport;
d.to contribute to the economic development of the
greater Montréal community while meeting the present and future needs of the
national and international air transport systems and of the air transport and
aeronautics industries;
e.to act as a stakeholder with the competent authorities
in relation to any issue pertaining to the management or development of the
facilities that may be the responsibility of the corporation or to the
interests or needs in this regard of the community that is serviced by such
facilities.
The members of the ADM’s board of directors
are appointed from among the members of the Société de promotion des aéroports
de Montréal (“SOPRAM”).
SOPRAM is a not-for-profit corporation
created pursuant to Part III of the Quebec Companies Act on December 22,
1987 under the name Conseil de l’aéroport international de Montréal. The
Conseil’s letters patent were amended on November 21, 1989, the day on which
the ADM was constituted, to adopt the new name, SOPRAM, and new objectives,
which are now, inter alia:
[Translation]
(a)To bring together the representative economic and
political authorities of the greater Montréal community which are concerned
with all issues affecting air transport in the region serviced by the airport
facilities used by this community;
...
(c)To promote the development and expansion of the
airport facilities used by the greater Montréal community;
(d)To promote the interests and needs of the public
served by the airport facilities used by the greater Montréal community;
(e)To appoint the members of Aéroports de Montréal, a
not-for-profit corporation constituted under letters patent issued pursuant to
Part II of the Canada Corporations Act.
C.THE
RESPONDENTS
The Honourable David Anderson is the Minister
of Transport and in this capacity is the individual who is the subject of this
proceeding.
The Honourable Sergio Marchi is the Minister
of the Environment. In their originating motion, the applicants sought a writ
of mandamus enjoining the Minister of the Environment to examine the
possibility of referring the proposed liberalization of the allocation of
scheduled international flights to an environmental assessment panel. However,
the Minister of the Environment subsequently decided to examine the possibility
of subjecting the ADM project to an environmental assessment panel; as a result
of this decision, this second cause of action became moot. As we will see, the
results of this study were announced several days prior to the commencement of
the hearing.
II.BACKGROUND
AND FACTS
In 1946 the Canadian government designated
Dorval airport as the point of entry for international flights, thereby making
it the hub for North Atlantic and North American air transport. Parallel to the
ongoing operation of Dorval airport by the Department of Transport, the
Canadian government decided to begin building and to open in 1975 Mirabel
airport, the original role of which was to be the point of entry for all
international, transborder and domestic long haul commercial flights serving
the Montreal area; since its opening, Mirabel airport has been the point of
entry for international flights.
In December 1986, after public debates over
the appropriateness of maintaining Montréal as a two-airport city, in
accordance with the allocations established in 1975, the federal government
announced its decision to maintain both airports in their respective roles and
to integrate Dorval and Mirabel within a centralized management structure.
As early as 1987, the federal government
envisaged the possibility of transferring the property and operation of the
federal airports to interested agencies or groups such as, inter alia,
the provincial governments, municipalities, local authorities or the private
sector, for the purposes of implementing a new concept of airport management
focused on the commercial orientation of the airports, their potential
contribution to economic development and their sensitivity to local concerns
and interests.
Within the context of this new federal government
policy, it was understood that the federal government would continue to be in
charge of safety and security issues, air navigation services, air traffic
control and airport certification, and that the client successor agencies would
operate the airports transferred by the federal government in compliance with
the terms and conditions of their operating certificates and the safety and
security regulations prescribed for the type of activities and aircraft at the
respective airports.
Following the adoption of this new federal
government policy in 1987, 36 supplementary basic principles were added in June
1989 to govern the creation and operation of the local airport authorities
(LAAs). For example, it was understood and specifically stated therein that the
federal government would initiate transfer negotiations in relation to the
long-term leasing of the airports and that the LAAs, which were established to
manage and operate a local airport system, were to be ostensibly financially
independent companies whose boards would include representatives of the
business community and community interests and be responsible for administering
the companies according to a commercial orientation that would promote economic
development while being sensitive to local concerns and interests.
On March 19, 1992 the Governor in Council
issued an Order in Council authorizing the Minister of Transport to sign on
behalf of Her Majesty in right of Canada a transfer agreement with the
intervenor ADM transferring to the latter the management, operation and
maintenance of the integrated system comprising the Dorval and Mirabel
airports.
Under a transfer agreement signed on April
1, 1992 between Her Majesty in right of Canada and the intervenor, the federal
Crown agreed to cease managing, operating and maintaining the Montreal
international airport (Dorval and Mirabel) effective August 1, 1992. The
intervenor agreed to lease the said airport and to take over its management,
operation and maintenance. Through a ground lease signed on July 31, 1992, Her
Majesty in right of Canada leased to the intervenor for a sixty (60) year
period the integrated system of the Montreal international airport (Dorval and
Mirabel).
On February 20, 1996 the intervenor publicly
announced its proposal to “liberalize” as of April 1997 the allocation of
scheduled international flights with a view to letting the airline companies
elect, as of that date, whether to direct their scheduled international flights
to Dorval or to Mirabel. Several days earlier, at a meeting of representatives
of the intervenor and the Minister of Transport, the intervenor had informed
the Minister of its intention to so liberalize the allocation of scheduled
international flights.
This decision entails a change in the respective
roles of the Dorval and Mirabel airports. In the first place, Dorval airport,
as ADM states, will become a North American entry point for connections between
the continent and Europe. Scheduled international flights may now leave from
this airport and Mirabel will be the assigned destination and departure point
for all freight and vacation charter flights.
Confronted with this proposal, and in the
absence of an environmental assessment conducted in accordance with the Act,
the applicants issued a formal notice to the Minister of Transport on May 2,
1996 calling on him to initiate the assessment process under the CEAA.
Receiving no reply in the weeks that followed, they filed the present
application on May 17, 1996.
Three days prior to the commencement of the
hearing, on October 18, 1996, the Minister of the Environment released his
decision not to submit the ADM project to an environmental assessment panel. At
that time the Minister published a document entitled “[Translation] Environmental analysis of the proposed
liberalization of scheduled international flight allocation between Dorval and
Mirabel”. The Minister’s decision was explained as follows in a news release
issued by the Canadian Environmental Assessment Agency:
No
significant adverse environmental effects found
for
transfer of flights from Mirabel to Dorval
Ottawa
‑ October 18, 1996 ‑ The federal Minister of the
Environment, Sergio Marchi, after consulting with other government departments,
made public the study prepared by his Department which concludes that the
planned transfer of scheduled international flights from Mirabel to Dorval
would not have significant adverse environmental effects. The analysis by
Environment Canada is based on a projected increase of eleven takeoffs per day.
As
a consequence of this study which was completed September 16, 1996, the
Canadian Environmental Assessment Agency has recommended, after considering
other aspects of the Canadian Environmental Assessment Act (the Act),
that the Minister not refer this issue to a review by an environmental
assessment panel. The Minister has accepted this recommendation.
The
Minister took into account the concerns raised by many people who have asked
him to refer to a panel review the decision of les Aéroports de Montréal (ADM)
to allow the transfer of the scheduled international flights to Dorval.
Projects
on most Canadian airports were originally subject to federal environmental
assessment. However with the proclamation of the Canadian Environmental
Assessment Act and the transfer of airports to local airport authorities,
the Act no longer applies to many projects on these leased lands.
To
address this situation, the Minister has asked his officials, in consultation
with the airport authorities and Transport Canada, to propose measures that
would ensure that the appropriate environmental assessment of projects proposed
by the airport authorities on these lands would occur under the Act.
III.ISSUES
The applicants are of the opinion that the
Minister of Transport has a duty to ensure that an environmental assessment is
performed before the ADM project is implemented. More specifically, they argue
that:
[Translation]
(a)through the benefits he will derive from the fees
imposed or levied by ADM in the context of its decision of February 20, 1996,
the Minister of Transport becomes the proponent, in part, of the project within
the meaning of section 5(1)(a) CEAA; he is also, in part, the proponent as
owner subject to a suspensive condition of the improvements that ADM will make
to Dorval airport and through the control he retains as Lessor over ADM’s
operations;
(b)through his role in the payment of ADM’s municipal
taxes and the fact that ADM’s rent is postponed, the Minister of Transport is
financing, guaranteeing the financing or awarding some other financial
assistance for the work performed by ADM in the context of its flight
allocation liberalization project, within the meaning of section 5(1)(b) CEAA;
(c)through the terms of the lease, the Minister of
Transport is authorizing the transfer of federal lands in the context of his
flight allocation liberalization project, within the meaning of section 5(1)(c)
CEAA.
ADM and the Minister of Transport submit in
reply that the Minister is exercising none of the powers described in
paragraphs 5(1)(a), (b) or (c) of the CEAA in relation to the project in
question. They argue accordingly that the Minister is not bound to conduct an
environmental assessment of the project.
ADM submits that the applicants’ proceeding
is in any event out-of-date since the Minister of the Environment concluded on
October 18, 1996, as a result of the study he made of the project, that it
“will not result in any significant adverse environmental effects”.
IV.RELEVANT
STATUTORY PROVISIONS
The CEAA was assented to on June 23, 1992,
but did not come into force on that date. Sections 61 to 70, 73, 75 and 78 to
80 came into force on December 22, 1994, while sections 1 to 60, 71, 72, 74, 76
and 77 came into force on January 19, 1995. On this latter date, the Environmental
Assessment and Review Process Guidelines Order, which since 1984 had
governed the federal environmental assessment process, was repealed.
The CEAA provisions relevant to this case
all came into force on January 19, 1995.
Preamble
WHEREAS
environmental assessment provides an effective means of integrating
environmental factors into planning and decision‑making processes in a
manner that promotes sustainable development;
WHEREAS
the Government of Canada is committed to exercising leadership within Canada
and internationally in anticipating and preventing the degradation of
environmental quality and at the same time ensuring that economic development
is compatible with the high value Canadians place on environmental quality;
AND
WHEREAS the Government of Canada is committed to facilitating public
participation in the environmental assessment of projects to be carried out by
or with the approval or assistance of the Government of Canada and providing
access to the information on which those environmental assessments are based;
2.
(1) In this Act,
“federal
authority” means
(a) a Minister of the Crown in right of Canada,
“responsible
authority”, in relation to a project, means a federal authority
that is required pursuant to subsection 11(1) to ensure that an environmental
assessment of the project is conducted;
“environmental
assessment” means, in respect of a project, an assessment of the
environmental effects of the project that is conducted in accordance with this
Act and the regulations;
“screening”
means an environmental assessment that is conducted
pursuant to section 18 and that includes a consideration of the factors set out
in subsection 16(1);
“comprehensive
study list” means a list of all projects or classes of projects that
have been prescribed pursuant to regulations made under paragraph 59(d);
“exclusion
list” means a list of all projects or classes of projects that
have been prescribed pursuant to regulations made under paragraph 59(c);
“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);
“proponent”,
in respect of a project, means the person, body, federal authority or
government that proposes the project;
Projects
requiring environmental assessment
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
(a) is the proponent of the project and does any act or
thing that commits the federal authority to carrying out the project in whole
or in part;
(b) makes or authorizes payments or provides a guarantee
for a loan or any other form of financial assistance to the proponent for the
purpose of enabling the project to be carried out in whole or in part, except
where the financial assistance is in the form of any reduction, avoidance,
deferral, removal, refund, remission or other form of relief from the payment
of any tax, duty or impost imposed under any Act of Parliament, unless that
financial assistance is provided for the purpose of enabling an individual
project specifically named in the Act, regulation or order that provides the
relief to be carried out;
(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.
Exclusions
7.
(1) Notwithstanding section 5, an environmental assessment
of a project is not required where
(a) the project is described in an exclusion list;
(b) the project is to be carried out in response to a
national emergency for which special temporary measures are being taken under
the Emergencies Act; or
(c) the project is to be carried out in response to an
emergency and carrying out the project forthwith is in the interest of
preventing damage to property or the environment or is in the interest of
public health or safety.
(2)
For greater certainty, an environmental assessment is not required where a
federal authority exercises a power or performs a duty or function referred to
in paragraph 5(1)(b) in relation to a project and the essential details of the
project are not specified before or at the time the power is exercised or the
duty or function is performed.
...
11.
(1) Where an environmental assessment of a project is
required, the federal authority referred to in section 5 in relation to the
project shall ensure that the environmental assessment is conducted as early as
is practicable in the planning stages of the project and before irrevocable
decisions are made, and shall be referred to in this Act as the responsible
authority in relation to the project.
(2)
A responsible authority shall not exercise any power or
perform any duty or function referred to in section 5 in relation to a project
unless it takes a course of action pursuant to paragraph 20(1)(a) or 37(1)(a).
...
13.
Where a project is described in the comprehensive study list or is referred to
a mediator or a review panel, 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 the project to be
carried out in whole or in part unless an environmental assessment of the
project has been completed and a course of action has been taken in relation to
the project in accordance with paragraph 37(1)(a).
14.
The environmental assessment process includes, where applicable,
(a) a screening or comprehensive study and the
preparation of a screening report or a comprehensive study report;
(b) a mediation or assessment by a review panel as
provided in section 29 and the preparation of a report; and
(c) the design and implementation of a follow‑up
program.
...
18.
(1) Where a project is not described in the comprehensive
study list or the exclusion list, the responsible authority shall ensure that
(a) a screening of the project is conducted; and
(b) a screening report is prepared.
(3)
Where the responsible authority is of the opinion that public participation in
the screening of a project is appropriate in the circumstances, or where
required by regulation, the responsible authority shall give the public notice
and an opportunity to examine and comment on the screening report and on any
record that has been filed in the public registry established in respect of the
project pursuant to section 55 before taking a course of action under section
20.
...
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
(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.
...
29.
(1) Subject to subsection (2), where a project is to be
referred to a mediator or a review panel, the Minister shall
(a) refer the environmental assessment relating to the
project to
(i) a mediator, or
(ii) a review panel; or
(b) refer part of the environmental assessment relating
to the project to a mediator and part of that assessment to a review panel.
...
37.
(1) Subject to subsection (1.1), the responsible authority
shall take one of the following courses of action in respect of a project after
taking into consideration the report submitted by a mediator or a review panel
or, in the case of a project referred back to the responsible authority
pursuant to paragraph 23(a), the comprehensive study report:
(a) where, taking into account the implementation of any
mitigation measures that the responsible authority considers appropriate,
(i) the project is not likely to cause significant
adverse environmental effects, or
(ii) the project is likely to cause significant adverse
environmental effects that can be justified in the circumstances,
the responsible authority may exercise any power or
perform any duty or function that would permit the project to be carried out in
whole or in part and shall ensure that those mitigation measures are
implemented; or
(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.
V.ANALYSIS
AND DECISION
The only issue to be determined is whether
the Minister of Transport is required to conduct an environmental assessment
pursuant to paragraphs (a), (b) or (c) of subsection 5(1) of the CEAA. Insofar
as the Minister has such an obligation, there will be a further issue as to the
impact on that obligation of the very recent decision of the Minister of the Environment.
As a preliminary point, the applicants
submit that the environmental assessments in relation to the expansions of the
Vancouver and Pearson (Toronto) airports were conducted under the Order in
Council that was replaced by the CEAA. They add that it is hard to believe that
the CEAA, in light of its preamble, is of lesser scope and more limited effect
than the Order in Council.
1.PARAGRAPH
5(1)(a)
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
(a) is the proponent of the project and does any act or
thing that commits the federal authority to carrying out the project in whole
or in part;
The applicants submit that the Minister of
Transport is the proponent of the project in at least three capacities:
1.as a
person who is sufficiently entitled under the lease and the agreement
concerning the aeronautics services and facilities to prevent or authorize the
project. In the circumstances, the applicants submit, the Minister’s silence
amounts to authorization;
2.as the
owner subject to suspensive conditions of the improvements made by ADM in the
context of carrying out the project; and
3.in terms
of his economic interest and in particular in regard to the percentage of the
fees imposed on passengers by ADM and the parking revenues he will receive as
the lessor.
In regard to the first point, the applicants
rely on a vast number of clauses in the lease and the Agreement concerning the
aeronautics services and facilities which, they say, are indicative of a right
of control. They add that since the Minister, through his silence, has approved
the project, he is its proponent.
In regard to the second point, the
applicants note that the Minister of Transport is the owner, subject to a
suspensive condition, of all the improvements that may be made to the leased
premises. Although this right will be realized only
at the termination of the lease, the applicants point out that under the
relevant provisions of the Civil Code of Québec the Minister of Transport
will, as of that time, be deemed to have been the owner since July 31, 1992 of
any facility that has been built by ADM. In this context, the applicants wonder
how it can be claimed that the owner of property is not the proponent thereof
while such property is being built.
In regard to the third point, the applicants
note that the Minister of Transport will participate in the economic benefits
associated with the ADM project in two respects, and that he is thereby the
proponent thereof.
In reply to these submissions based on
paragraph 5(1)(a), the respondent notes that the section in question requires
that the federal authority be not only the proponent of the project but also
the one who carries it out in whole or in part. He further argues that the
applicants have failed to demonstrate how the Minister of Transport is to carry
out the ADM project in whole or in part.
The intervenor and the respondent also note
by way of preliminary submission that under the terms of the lease, ADM is to
manage, operate and maintain the airport system solely on its own account and
to the exclusion of anyone. No agency or mandatary relationship is
understood or implied. They further argue that all the rights enjoyed by the
Minister of Transport under the lease are the normal prerogative of such an
agreement, bearing in mind the fact that it was necessary for the Minister to ensure
he had the necessary access to fulfil his obligations in the aeronautical
field. More specifically, the intervenor and the
respondent argue that all the rights reserved by the Minister of Transport are
intended either to protect his interests as ground lessor or to enable him to
perform his obligations in the aeronautical field.
In addition, the respondent and the
intervenor refer to the definition of the word “proponent” and point out that
the Minister of Transport has denied having proposed the ADM project or being
involved in any way whatsoever as proponent of this project within the meaning
of the Act. They add that a specific objective in the
privatization of the Montreal airports, out of which ADM originated, was to
turn the administration of these airports over to the private sector to the
exclusion of the federal administration, including the Minister of Transport.
This, they say, is the explanation for why the Department of Transport played
no role in the development and establishment of the proposal circulated by ADM.
I note at this point that the applicants do
not allege that there has been any subterfuge concerning the factual and legal
relationship between ADM and the Minister of Transport. They acknowledge that
this relationship is consistent with what is suggested by the contracts binding
the parties. They further acknowledge that the perception ADM and the Minister
have given us of their deeds and actions is consistent with the reality.
Bearing this in mind, the only way to make
the Minister of Transport a proponent of the ADM project within the meaning of
the Act is to argue that the Minister, through his silence on the ADM project,
in fact proposed it. And that is what the applicants argue in paragraph 87 of
their factum. If I clearly understand their position, the Minister of
Transport, by virtue of the rights and powers he exercises under the lease and
the associated agreement, could have blocked the project, and, since he did not
do so, he becomes a proponent of it. Unfortunately, even on the assumption that
the Minister of Transport had the discretion to block the project and that, to
this extent, he can be accused of having authorized it, this does not make him
a proponent of the project within the meaning of the definition. Similar
reasoning applies to the fact that the Minister of Transport now has, through
the prior lease, a financial interest in the project, to the fact that he can
at the end of the day facilitate the financing of the project, and to the fact
that he is likely to become the immediate or potential owner of the buildings
that are to be constructed in the course of the project.
Although the usual meaning of “proponent” is
very broad, the meaning employed by Parliament in the
CEAA is limited. Under the Act, a proponent of a project is the person that
proposes it. In this regard, the record is unequivocal. The Minister of
Transport neither directly nor indirectly proposed the project or any part
thereof. It is ADM which, within the framework of the exclusive authority
conferred on it by the lease and the 1992 agreement, assumed the management of
the airport system and, in the performance of that authority, decided to
liberalize the flights and promote its project. The only privilege to
which the Minister of Transport was entitled as such was to be informed of
ADM’s decision a few days before the public. This does not make him the author
or co-author of ADM’s proposal.
2.PARAGRAPH
5(1)(b)
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
(b) makes or authorizes payments or provides a guarantee
for a loan or any other form of financial assistance to the proponent for the
purpose of enabling the project to be carried out in whole or in part, except
where the financial assistance is in the form of any reduction, avoidance,
deferral, removal, refund, remission or other form of relief from the payment
of any tax, duty or impost imposed under any Act of Parliament, unless that
financial assistance is provided for the purpose of enabling an individual
project specifically named in the Act, regulation or order that provides the
relief to be carried out;
In regard to paragraph 5(1)(b), the
applicants argue that both the right given to ADM to defer the payment of rent
for a six-year period and the payment by the Minister of
Transport to the municipalities concerned of an amount equivalent to the
municipal taxes otherwise payable constitute financial assistance within the
meaning of this paragraph.
The applicants concede, however, that such
assistance cannot have been granted for the purpose of helping ADM to carry out
its project since, in 1992, the project had yet to be conceived and thus no one
had it in mind. They do however argue that financial
assistance, if any, was nonetheless granted “for the purpose” of helping ADM
carry out its project, as required by paragraph 5(1)(b).
The applicants rely for this purpose on
certain tax decisions which, they argue, indicate that all that
paragraph 5(1)(b) requires is that there be concomitance between the use of the
financial assistance and the project in question. But the decisions on which
the applicants rely in reaching this conclusion are to the diametrically
opposite effect. The principle they establish is that a dollar is deductible
even if it did not in fact produce any income, so long as it was spent for the
purpose of producing income.
The words “for the purpose of”, or “en vue
de” in the French version, are unambiguous, as the cases cited by the
applicants hold. For financial assistance to trigger the application of section
5, it must have been advanced or granted “for the purpose of” the project that
one is seeking to subject to an environmental assessment. Since, in the case at
bar, it is common ground that the financial assistance, if any, could not have
been granted “for the purpose of” the project, paragraph 5(1)(b) cannot be applicable.
3.PARAGRAPH
5(1)(c)
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
(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;
In regard to paragraph 5(1)(c) of the Act,
the applicants refer to the terms of paragraphs 3.01.03 and 3.01.04 of the
lease, which read, in part, as follows:
[Translation]
3.01.03
The lessor expressly waives in favour of the lessor the benefit of its
right of accession to any facility newly erected on any land capable of
development...
3.01.04
If the lessee so requests, the lessor shall also waive the benefit of
the right of accession to any new facility that shall be erected on any other
part of the leased premises. ...
The applicants explain that the lease is not
emphyteutic in nature and that the Minister of Transport prima facie retains
the ownership of the facilities that are to be erected. It is only through the
waiver of this ownership, as provided in paragraphs 3.01.03 and 3.01.04, that
ADM becomes owner of the new facilities, and that, the applicants argue, is a
sale or lease within the meaning of paragraph 5(1)(c). Once again, I note that
the transfer covered in paragraph 5(1)(c) must take place “for the purpose of
enabling the project to be carried out”.
It’s an either-or proposition. Either the
reconveyance of the buildings to be erected under the lease takes place at the
time when the Minister of Transport waived his right of accession, i.e. when
the lease was signed in 1992, or there is a reconveyance of the buildings at
the time they are erected. In the first case, the application of
paragraph 5(1)(c) is ruled out, since, as we have seen, it is conceded that
neither of the parties involved had the ADM project in mind when the lease was
signed. In the second case, the application of paragraph 5(1)(c) is likewise
ruled out, since, according to the evidence, there is not at present any
building capable of reconveyance.
Beyond this, I will take the liberty of
saying, in obiter, that the issue as to whether paragraph 5(1)(c) is
likely to be triggered if and when some facilities are built must be answered in
the negative. In my view, it was when the lease was signed that the Minister of
Transport formally undertook to convey the ownership of any buildings that
might be erected, and it is therefore at that date that he authorized the
conveyance thereof within the meaning of paragraph 5(1)(c).
I conclude, therefore, that section 5 of the
Act does not apply and that the environmental review process that the
applicants are attempting to set in motion cannot therefore take place.
To those who will argue that this conclusion
is consistent with the letter of the Act but ignores its spirit, I will say the
following, over and above the fact that they have a remedy before the Court of
Appeal. The spirit of the Act must be deciphered from the words used by
Parliament to express it. In this instance, the Minister of the Environment
indicated in his October 18 news release that he is disturbed that section 5 of
the Act allows projects initiated by the privatized airport authorities to
escape environmental review. I agree, and as a citizen I am happy to
note that the Minister has this concern. But it is not my job, as a judge, to
decide what the policy of the Minister of the Environment should be in this
regard, or to misconstrue the current Act by deciding myself what it should be.
The Act as it appears before me is clear and
unequivocal. My only duty is to apply it. One can fault the judges for
misconstruing laws, but they cannot be faulted for complying with the law and
leaving the legislative task to our elected officials.
For these reasons, the motion in mandamus
is dismissed.
“Marc
Noël”
J.
Montréal,
Quebec
October 24,
1996
Certified
true translation
Christiane
Delon
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