Date: 20080305
Docket: T-535-07
Citation: 2008 FC 302
Ottawa, Ontario, March 5, 2008
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
PEMBINA INSTITUTE FOR
APPROPRIATE DEVELOPMENT,
PRAIRIE ACID RAIN COALITION,
SIERRA CLUB OF CANADA, and
TOXICS WATCH SOCIETY OF ALBERTA
Applicants
and
ATTORNEY GENERAL OF CANADA,
MINISTER OF FISHERIES AND OCEANS,
MINISTER OF ENVIRONMENT, and
IMPERIAL OIL RESOURCES VENTURES LIMITED
Respondents
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an application for judicial review
brought by the applicants pursuant to ss. 18 and 18.1 of the Federal Courts
Act, R.S.C. 1985, c. F-7, as amended, respecting a report dated February
27, 2007 by the Joint Review Panel Established by the Alberta Energy and
Utilities Board and the Government of Canada (the “Panel”) concerning an
environmental impact assessment of the Kearl Oil Sands Project (the “Kearl
Project” or the “Project”), wherein the Panel recommended to the responsible
federal authority, the Department of Fisheries and Oceans (“DFO”), that the
Project receive authorization.
[2]
The applicants, various non-profit organizations
concerned about the environmental effects of the Kearl Project, submit that the
environmental assessment conducted by the Panel did not comply with the
mandatory steps in the Canadian Environmental Assessment Act, S.C. 1992,
c.37 (“CEAA”) and in the Panel’s Terms of Reference.
BACKGROUND
[3]
Imperial Oil wishes to construct and operate the
Kearl Project, an oil sands mine, in northern Alberta. This project includes the design, construction, operation and
reclamation of four open pit truck and shovel mines and three trains of ore
preparation and bitumen extraction facilities, as well as tailings management
facilities and other supporting infrastructure. It will be capable of
producing over 48,000 cubic metres of bitumen per day at full production in
2018, and will terminate mining operations in 2060.
[4]
The Kearl Project will be located approximately
70 kilometres north of Fort McMurray. Further, it is situated in the upper Muskeg River Watershed, a
tributary of the Athabasca
River, which flows through Wood
Buffalo National Park to the
Mackenzie River drainage basin in the Northwest
Territories.
[5]
The Kearl Project requires an authorization from
the federal Minister of Fisheries and Oceans under section 35(2) of the Fisheries
Act, R.S.C., 1985, c. F-14. Before any federal approval can be given, an
environmental assessment under the CEAA is required.
[6]
Pursuant to the Canada-Alberta Agreement for
Environmental Assessment Cooperation, the Canadian Environmental Assessment
Agency notified Alberta that it wished to participate with Alberta in a cooperative environmental
assessment of the Kearl Project. Federally, the Canadian Environmental
Assessment Agency confirmed it would carry out the role of Federal
Environmental Assessment coordinator, and DFO would be the responsible
authority, with Environment Canada (EC), Health Canada (HC) and Natural
Resources Canada (NRCan) providing DFO with specialist advice.
[7]
Imperial Oil filed its Environmental Impact
Assessment (EIA) relating to the Kearl Project in July 2005. Representatives
of DFO, EC, HC and NRCan assessed the information provided by Imperial Oil as
part of the joint environmental assessment with Alberta.
[8]
On January 18, 2006, DFO recommended to the
Minister of the Environment that the Kearl Project be referred to a review
panel due to the potential for the proposed project to cause significant
adverse environmental effects, including cumulative effects, over large areas
and on a number of valued ecosystem components. Canada entered into an agreement with the government of Alberta to conduct a joint review panel.
The Joint Panel would render a project approval decision on behalf of Alberta authorities and make an approval recommendation
to the responsible federal authority.
[9]
The Panel held 16 days of public hearings in
November 2006. In addition to the EIA report filed by Imperial Oil, 20 parties
filed submissions with the Panel, a number of which also gave oral evidence and
were cross-examined at the hearing.
The Panel
Report
[10]
On February 27, 2007, the Panel issued its
report, setting out its decision for the Alberta authorities and making recommendations to DFO regarding project
authorization.
[11]
The Panel reviewed the project as well as its
purpose, need, project alternatives, and alternative means of implementation.
The Panel reviewed the views of various stakeholder groups and summarized
issues relating to social and economic effects, mine plan and resource
conservation, tailings management, reclamation, air emissions, surface water,
aquatic resources, Cumulative Environmental Management Association (CEMA) (a
voluntary partnership of stakeholders charged with identifying environmental
thresholds before irreversible damage occurs from oil sands development),
traditional land use and traditional ecological knowledge, the need for
follow-up, and human health.
[12]
The Panel recommended that DFO approve the Project
given its view that provided proposed mitigation measures and recommendations
were implemented, the Project was not likely to cause significant adverse
environmental effects.
LEGISLATIVE
CONTEXT
[13]
The law governing Environmental Impact
Assessments is set out by the provisions of the CEAA as interpreted in the
jurisprudence of the Federal Court, Federal Court of Appeal, and the Supreme
Court of Canada.
[14]
The CEAA establishes a two-step decision-making
process. The first step is an environmental assessment where potentially
adverse environmental effects of a project are analysed (s. 5). The second step
involves decision-making and follow-up where a federal authority decides,
taking into consideration that assessment, if a particular project should be
authorized and what follow-up measures, if any, are required to verify the
accuracy of the assessment and the effectiveness of mitigation measures (ss. 37
and 38).
[15]
The purpose of environmental assessment was
described by the Supreme Court of Canada in Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, [1992] S.C.J. No. 1 (QL), at para. 95. While
the case involved assessment under the Environmental Assessment and Review
Process Guidelines Order, S.O.R./84-467 (the “EARPGO”, predecessor to the
current CEAA), I find the general principles espoused to be particularly
instructive:
Environmental
impact assessment is, in its simplest form, a planning tool that is now
generally regarded as an integral component of sound decision-making. Its
fundamental purpose is summarized by R. Cotton and D. P. Emond in
"Environmental Impact Assessment", in J. Swaigen, ed., Environmental
Rights in Canada (1981), 245,
at p. 247:
The basic concepts behind environmental assessment are simply
stated: (1) early identification and evaluation of all potential environmental
consequences of a proposed undertaking; (2) decision making that both
guarantees the adequacy of this process and reconciles, to the greatest extent
possible, the proponent's development desires with environmental protection and
preservation.
As a planning
tool it has both an information-gathering and a decision-making component which
provide the decision maker with an objective basis for granting or denying
approval for a proposed development; see M. I. Jeffery, Environmental Approvals
in Canada (1989), at p. 1.2, (SS) 1.4; D. P. Emond, Environmental Assessment
Law in Canada (1978), at p. 5. In short, environmental impact assessment is
simply descriptive of a process of decision-making. […]
The First
Step: Environmental Assessment
[16]
With respect to the first step, the CEAA
contemplates three “levels” of assessment: screening (ss. 18-20), comprehensive
study (ss. 21-24), and mediation and panel reviews (ss. 29-36).
[17]
Mediation and panel reviews are the most stringent
level of assessment and are to be carried out upon a referral to the Minister
by the responsible authority after consideration of a screening report and
any comments filed where: 1) the responsible authority 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; 2) the responsible authority is of
the opinion that, 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; or 3) public
concerns warrant a reference to this type of procedure (s. 20).
[18]
Further, s. 25 of the CEAA indicates that the
responsible authority may also refer the project to the Minister for a panel
review at any time where it is of the opinion that the project, taking
into account the implementation of any mitigation measures that the responsible
authority considers appropriate, may cause significant adverse environmental
effects, or where public concerns warrant a reference to this type of procedure.
[19]
Pursuant to s. 40 of the CEAA, joint review
panels involving federal and provincial authorities may be constituted
by agreement or arrangement. This agreement or arrangement shall provide that
the “environmental assessment of the project shall include a consideration of
the factors required to be considered under subsections 16(1) and (2) and be
conducted in accordance with any additional requirements and procedures set out
in the agreement” (s. 41). Further, s. 41(c) indicates that “the Minister
shall fix or approve the terms of reference for the panel.” The “terms of
reference” shall determine the scope of certain factors to be taken into
consideration by a review panel in its assessment (s. 16(3)(b)). These terms
of reference may significantly increase the obligations incumbent upon the
Panel (see Alberta Wilderness Assn. v. Cardinal River Coals (T.D.)
[1999] 3 F.C. 425, [1999] F.C.J. No. 441 (QL)).
[20]
Specifically, the general duties that a review
panel is mandated to fulfill are four-fold (s. 34). First, it must ensure that
the information required for an assessment is obtained and made available to
the public (s. 34(a)). Second, the panel is required to hold hearings in a
manner that offers the public an opportunity to participate in the assessment
(s. 34(b)). Third, the panel is charged with fulfilling a reporting function
whereby it must prepare a report setting out “the rationale, conclusions and
recommendations of the panel relating to the environmental assessment of the
project, including any mitigation measures and follow-up program” as well as a
summary of public comments received (s. 34(c)). Finally, it must submit that
report to the Minister and the responsible authority (s. 34(d)).
[21]
Within the ambit of these general duties, a
review panel shall include a consideration of the various specific
factors enumerated in ss. 16(1) and (2). These factors include the environmental
effects of a project including effects of accidents and malfunctions,
cumulative environmental effects, the significance of environmental and
cumulative effects, public comments, technically and economically feasible mitigation
measures, and any other matter relevant to a review panel assessment that the
Minister, after consulting with the responsible authority, may require to be
considered (s. 16(1)). Furthermore, the purpose of the project, alternative
means of carrying it out, the need for and requirement of any follow-up
programs, and the capacity of renewable resources that are likely to be
significantly affected by the project to meet the needs of the present and
those of the future are also to be considered (s. 16(2)).
[22]
With respect to assessing the significance of
environmental effects, the jurisprudence reveals that this assessment is not a
wholly objective exercise but rather contains “a large measure of opinion and
judgement.” The Federal Court of Appeal has asserted that “[r]easonable people
can and do disagree about the adequacy and completeness of evidence which
forecasts future results and about the significance of such results […]” (Alberta
Wilderness Assn. v. Express Pipelines Ltd., [1996] F.C.J. No. 1016 (QL), at
para. 10).
[23]
The adequacy and completeness of the evidence
must be evaluated in light of the preliminary nature of a review panel’s
assessment. In Express Pipelines, supra, at para. 14,
Hugessen J.A. discussed the predictive and preliminary nature of the panel’s
role:
The panel’s view
that the evidence before it was adequate to allow it to complete that function
“as early as is practicable in the planning stages … and before irrevocable
decisions are made” (see section 11(1)) is one with which we will not lightly
interfere. By its nature the panel’s exercise is predictive and it is not
surprising that the statute specifically envisages the possibility of “follow
up” programmes. Indeed, given the nature of the task we suspect that finality
and certainty in environmental assessment can never be achieved.
This view was
echoed in Inverhuron & District Ratepayers’ Association v. Canada (Minister of the Environment), 2001 FCA 203, [2001] F.C.J. No. 1008 (QL), at para. 55, by Sexton
J.A. Therefore, given the predictive function of an environmental assessment
and the existence of follow-up mechanisms envisioned by the CEAA, the Panel’s
assessment of significance does not extend to the elimination of uncertainty
surrounding project effects.
[24]
Similarly, it is evident that the assessment of
environmental effects, including mitigation measures, is not to be
conceptualized as a single, discrete event. Instructively, in Union of Nova
Scotia Indians v. Canada (Attorney General), [1997] 1 F.C. 325,
[1996] F.C.J. No. 1373 (QL), Mackay J. indicated, at para. 32 that he was not
persuaded that the CEAA requires that all the details of mitigating measures be
resolved before the acceptance of a screening report. He further asserted that
the nature of the process of assessment was “ongoing and dynamic” with
continuing dialogue between the proponent, the responsible authorities and
interested community groups.
[25]
Moreover, jurisprudence relating to the EARPGO
is also instructive as to the content of the legal duty to consider mitigation
measures. In Tetzlaff v. Canada (Minister of the Environment (F.C.A.),
[1991] 1 F.C. 641, at p. 657, Iacobucci C.J.A. described the assessment of
mitigation measures in s. 12(c) of the EARPGO in the following terms:
“If the initial assessment procedure reveals that the potentially adverse
environmental effects that may be caused by the proposal “are insignificant or
mitigable with known technologies” the proposal […] may proceed or proceed with
mitigation, as the case may be.” In the case of Canadian Wildlife Federation
Inc. v. Canada (Minister of the Environment) (1990), 31 F.T.R. 1, at p. 12,
the decision which was upheld by the Court in Tetzlaff, Muldoon J.
analysed s. 12(c) of the EARPGO and asserted that “since the Minister did not
identify any known technologies but only vague hopes for future technology, it
is not possible to consider that the recited adverse water quality effects are
mitigable”. Thus, in the context of a panel assessment, the possibilities of
future research and development do not constitute mitigation measures.
[26]
I note also that s. 16(1)(d) of the CEAA (the
equivalent of s. 12(c) of the EARPGO), the provision mandating consideration of
mitigation measures, adds the proviso that mitigation measures must be
technically and economically feasible as opposed to solely technically
feasible (“known technologies” in the wording of the EARPGO). This second
condition, in effect, imposes an additional requirement for measures to be
classified as mitigating under the CEAA: under the current Act mitigation
measures must also be economically feasible in order to qualify as such.
The Second Step:
Decision and Follow-up
[27]
Once the panel report is completed, the federal
authority responsible for the decision must take the report into consideration,
and shall take a course of action that is in conformity with the approval of
the Governor in Council (s. 37(1.1)). 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, either where the project is not likely to
cause significant adverse environmental effects, or where it is likely to cause
significant adverse environmental effects that can be justified in the
circumstances (s. 37(1)).
[28]
Where a federal authority decides to authorize a
project following a panel review, it is mandated to design a follow-up program
for the project and ensure its implementation (s. 38(2)). The results of the
follow-up program may be used to implement adaptive management measures or to
improve the quality of future environmental assessments (s. 38(5)).
Guiding
Tenets
[29]
The powers associated with the administration of
the CEAA are to be exercised “in a manner that protects the environment and
human health and applies the precautionary principle” (s. 4(2)).
[30]
In recent amendments to the CEAA, acting in a
manner consistent with the precautionary principle was specifically introduced
in s. 4 as a duty bearing upon “the Government of Canada, the Minister, the
Agency and all bodies subject to the provisions of this Act, including federal
authorities and responsible authorities” in the administration of the CEAA.
[31]
In the case of 114957 Canada Lteé (Spraytech, Société
d’arrosage) v. Hudson (Town), [2001] 2 S.C.R. 241,
[2001] S.C.J. No. 42 (QL), at para. 31, the Supreme Court of Canada cited the
definition of the precautionary principle from the Bergen Ministerial
Declaration on Sustainable Development (1990):
In order to
achieve sustainable development, policies must be based on the precautionary
principle. Environmental measures must anticipate, prevent and attack the
causes of environmental degradation. Where there are threats of serious or
irreversible damage, lack of full scientific certainty should not be used as a
reason for postponing measures to prevent environmental degradation.
[32]
An approach that has developed in conjunction
with the precautionary principle is that of “adaptive management”. In Canadian Parks and Wilderness
Society v. Canada
(Minister of Canadian Heritage), 2003 FCA 197,
[2003] F.C.J. No. 703, at para. 24, Evans J.A. stated that “[t]he concept of
“adaptive management” responds to the difficulty, or impossibility, of
predicting all the environmental consequences of a project on the basis of
existing knowledge” and indicated that adaptive management counters the
potentially paralyzing effects of the precautionary principle. Thus, in my
opinion, adaptive management permits projects with uncertain, yet potentially
adverse environmental impacts to proceed based on flexible management
strategies capable of adjusting to new information regarding adverse
environmental impacts where sufficient information regarding those impacts and
potential mitigation measures already exists.
[33]
Accordingly, the scope of the duties incumbent
upon a panel must be viewed through the prism of these guiding tenets: the
precautionary principle and adaptive management. As an early planning tool,
environmental assessment is tasked with the management of future risk, thus a
review panel has a duty to gather the information required to fulfill this
charge.
[34]
In sum, the CEAA represents a sophisticated
legislative system for addressing the uncertainty surrounding environmental
effects. To this end, it mandates early assessment of adverse environmental
consequences as well as mitigation measures, coupled with the flexibility of
follow-up processes capable of adapting to new information and changed
circumstances. The dynamic and fluid nature of the process means that perfect
certainty regarding environmental effects is not required.
ISSUES
[35]
This application involves the determination of whether
the Panel committed reviewable errors by failing to consider the factors
enumerated in ss. 16(1) and 16(2) of the CEAA, more particularly by relying on
mitigation measures that were not technically and economically feasible and by
failing to comply with the requirement to provide a rationale for its recommendations
pursuant to s. 34(c)(i) of the CEAA.
[36]
The applicants focus on these reviewable errors
in relation to the following three issues:
A)
Cumulative Effects Management Association (CEMA),
Watershed Management and Landscape Reclamation;
B)
Endangered Species; and
C)
Greenhouse Gas Emissions
STANDARD OF REVIEW
[37]
All parties agree that to the extent that the
issues posed involve the interpretation of the CEAA, as questions of law, they
are reviewable on a standard of correctness (Friends of West Country Assn.
v. Canada (Minister of Fisheries and Oceans), [2000] F.C. 263, [1999]
F.C.J. No. 1515 (QL), at para. 10; Bow Valley Naturalists Society v. Canada
(Minister of Canadian Heritage), [2001] 2 F.C. 461, [2001] F.C.J. No. 18 (QL),
at para. 55). However, issues relating to weighing the significance of the
evidence and conclusions drawn from that evidence including the significance of
an environmental effect are reviewed on the standard of reasonableness simpliciter
(Bow Valley, supra, at para. 55; Inverhuron, supra,
at paras. 39-40).
[38]
The crux of the standard of review determination
in the present case involves the characterization of the alleged
errors. According to the applicants, the Panel report contains numerous legal
errors relating to the interpretation of the CEAA that are reviewable on the
standard of correctness. However, the respondents indicate that these alleged
errors are in fact errors relating to the conclusions drawn from the evidence
before the Panel and therefore are reviewable on the standard of
reasonableness.
[39]
As noted by Campbell J. in Cardinal River
Coals Ltd., supra, at para. 24, “it is important to appropriately
characterize a perceived failure to comply [with the requirements of the CEAA]
as a question of law or merely an attack on the “quality” of the evidence and,
therefore the “correctness” of the conclusions drawn on that evidence” (see
also Express Pipelines Ltd., supra, at para. 10).
[40]
With respect to the arguments relating to the
Panel’s reliance on mitigation measures that were not technically and
economically feasible, there is no indication in the Report that the Panel misunderstood
the legal interpretation of technically and economically feasible mitigation
measures. In essence, what the applicants are challenging is the
underlying completeness or quality of the evidence which in their view was not
sufficient to allow the Panel to conclude as it did given the
uncertainties that still remained regarding the Project. Thus, this
question is reviewable on the standard of reasonableness simpliciter.
[41]
With respect to the question of providing a
“rationale” for the conclusions and recommendations of the Panel, this question
relates to the interpretation of the requirements of s. 34(c)(i) of
CEAA. The applicants do not attack the rationale provided but rather question
whether any rationale at all was put forth by the Panel. Whether or not
the Panel has provided a rationale for its conclusions and recommendations is
question of law, reviewable on a standard of correctness.
ANALYSIS
A) CEMA, Watershed Management and
Landscape Reclamation
i. CEMA
[42]
The applicants submit that while the Panel recognized
that CEMA was vital in addressing the cumulative impacts of oil sands
development and had the responsibility to address most of the critical cumulative
effects challenges in the Athabasca oil sands region, it also expressed deep
concern at the inability of CEMA “to establish and maintain priority for
critical items such as the Water Management Framework for the Athabasca River,
the Muskeg River Watershed Integrated Management Plan, and the Regional
Terrestrial and Wildlife Management Framework” and cited specific examples of
CEMA failing to meet timelines and complete its work.
[43]
The respondent, Imperial Oil, argues that the applicants’
assertion is based on a narrow reading of the Report restricted to that portion
dealing solely with integrated watershed planning which is only one of the many
issues addressed by the Panel. I agree.
[44]
The Panel’s discussion of CEMA was tied closely
to regional watershed management planning. As a regional association
comprised of industry and government representatives as well as community and
civil society stakeholders, CEMA is expected to address the objectives of
watershed management planning. Given this important role in regional
effects management, it was therefore appropriate for the Panel to raise
concerns regarding CEMA’s functioning. Based on the Report, I could not
conclude that the Panel considered CEMA as a mitigation measure, but rather as
the proper vehicle for the development of environmental management frameworks.
[45]
While the Panel discussed CEMA extensively and
highlighted the numerous problems associated with its functioning, it also made
detailed recommendations regarding its operation in order to ensure that
CEMA would function properly in years to come, and to provide the ultimate
decision-maker with a concrete evaluation of this key stakeholder association.
I note also the Panel’s comments with respect to regulatory backstopping by Alberta
Environment (“AENV”) in the event that CEMA is unable to meet its timelines for
management frameworks. I find this to be consistent with the precautionary
principle in that if CEMA is unable to complete a management plan by March
2008, the regulator should be engaged to prevent potentially adverse
environmental consequences.
ii. Watershed Management
[46]
With respect to Watershed Management, I am
satisfied that the Panel took into consideration mitigation measures that were
both technically and economically feasible. A fair reading of the Report shows
that the Panel addressed the issue of surface water extensively. In fact, the
Panel considered the issue under three distinct subheadings: in-stream flow
needs, integrated watershed planning, and water quality, and additionally under
fish and fish habitat.
[47]
Contrary to the applicants’ assertion that there
was no evidence or the scantest evidence upon which to evaluate the existence,
nature and effectiveness of the mitigation measures, the Panel’s
recommendations on the issue of water quality refer to mitigation measures
contained in Imperial Oil’s EIA as well as the Environmental
Protection and Enhancement Act, R.S.A. 2000, c. E-12 (the
“EPEA”) approval conditions. The Panel concludes:
[…] the Joint
Panel believes that by implementing a comprehensive monitoring plan, the
suggested EPEA approval conditions, the Joint Panel’s
recommendation, and the mitigations identified by Imperial Oil in its EIA,
the KOS [Kearl Oil Sands] Project
is unlikely to result in significant adverse environmental effects on water
quality. [Emphasis added] (p. 83 of the Report)
Further, as
pertains to aquatic resources, the Panel concluded:
[…] The Joint
Panel concludes that with the implementation of Imperial Oil’s mitigation
measures, the completion of an NNLP [No Net Loss Plan] satisfactory to DFO,
and the Joint Panel’s recommendations, the KOS Project is unlikely to result in
significant adverse environmental effects on aquatic resources. [Emphasis
added] (p. 86 of the Report)
[48]
Specifically, the mitigation measures identified
by Imperial Oil in its EIA for managing groundwater include the following:
(a)
Recycling of process-affected waters and runoff
within the Kearl Project footprint in a closed-circuit system during
operations;
(b)
Directing Muskeg drainage and overburden waters
to polishing ponds equipped with oil separation capability, if required;
(c)
Diverting natural headwater flow around
construction and mining areas and discharging it into receiving streams without
contact with oil sands or process-affected waters;
(d)
Using a perimeter ditch and pumping system to
capture seepage and runoff from the external tailings area and pumping back
into the process during operations;
(e)
Using a drainage system to capture and direct
seepage and runoff from the external tailings area to wetlands and terminal
lakes with sufficient residence time after reclaiming the external tailings
area;
(f)
Using wetlands and pit lakes during and after
closure to provide biological remediation and settling of particulate materials
in reclamation waters prior to discharge;
(g)
Designing pit lakes with sufficient residence
time to enhance settling and biological remediation of reclamation waters;
(h)
Using reclamation waters that collect in the pit
as process water until the start of the closure management system;
(i)
Placing of tailings only in the central pit lake
which has a large volume and long residence time;
(j)
Maintaining naturally occurring, low
permeability material between Kearl Lake and its surrounding mine pits to minimize seepage into the
lake.
·
EIA, Volume 6, at p. 5-38 and 5-39 [Imperial’s
Record, Vol 2, Tab 4(b) at pp. 312 and 313]
[49]
Further, with respect to aquatic resources,
Imperial Oil identified mitigation measures in its EIA which included the
following:
a)
Compensation habitat will be provided by the
development of new habitat area in accordance with requirements and guidance
through the appropriate regulators, such as DFO;
b)
Potential changes in flow sections of the Muskeg River
downstream of the Project development area will be minimized during the
operational phases of the Project by flow augmentation;
c)
Permanent diversion channels and drainage
systems will be designed to facilitate development of sustainable aquatic
ecosystems in order to mitigate losses of natural water courses habitats;
d)
Drainage patterns in Wapasu Creek will be
designed to mitigate flows that could change channel regime or increase
downstream sedimentation or total suspended solids; and
e)
The Kearl Project will include a system of
environmental management protocols and construction practices designed to
minimize possible effects to the aquatic environment.
·
EIA, Volume 6, at p. 6-36 to 6-38 [Imperial’s
Record, Vol. 2, Tab 4(c) at pp. 314 to 316]
[50]
Thus, contrary to the applicants’ submissions, I
am satisfied that there was evidence upon which the Panel could reasonably assess
technically and economically feasible measures that would mitigate any
significant adverse environmental effects arising from the Project on the Muskeg watershed and fish and fish
habitat.
[51]
When pressed at the hearing to provide specific
cases of mitigation measures considered by the Panel that were not technically
and economically feasible, the applicants pointed to the consolidated tailings
technology and end pit lakes as two such examples.
[52]
First, with respect to consolidated tailings,
the applicants contend that the Panel found this measure to be technically
viable but not economically feasible; nevertheless, it proceeded to rely on
this technology in its assessment, in contravention of the CEAA.
[53]
However, as explained by Imperial Oil’s counsel,
Mr. Ignasiak, and as indicated by a fair reading of the hearing transcript, it
is clear that the Panel was concerned not by the tailings technology, but by
one of the enhancements, a tailings thickener, proposed by Imperial Oil in
order to improve on the existing technology that is used at other facilities.
It is this tailings thickener, not the underlying consolidated tailings
technology that has not been commercially demonstrated. The Panel then
concluded that by implementing the tailings technology, of which a thickener
was but a proposed enhancement, significant adverse environmental effects were
unlikely to occur.
[54]
Thus, I disagree with the applicants that the
Panel was relying on a technology that was yet to be developed. As the
respondent, Imperial Oil, aptly pointed out, if the applicants’ arguments are
to be accepted, it would mean that under the CEAA process, proponents must
provide the Panel with only those technologies that have been used in
the past. In my view this would stifle innovation in the field, which could
potentially result in future benefits to the environment.
[55]
Second, with respect to end pit lakes, the
applicants submit that by recommending further testing of modelling predictions,
the Panel erred in determining that this mitigation measure was technically and
economically feasible. I cannot accept this argument. In my view, the Panel
took a precautionary approach by demanding that an operator validate modelling
predictions by testing end pit lake technology.
[56]
Indeed, this approach is broadly consistent with
the principles of adaptive management. As Evans J.A asserted in Canadian
Parks and Wilderness Society, supra, at para. 24, “[t]he
concept of "adaptive management" responds to the difficulty, or
impossibility, of predicting all the environmental consequences of a project on
the basis of existing knowledge.” The same holds true for the
assessment of mitigation measures. While there does exist some uncertainty
with respect to end pit lake technology, the existing level of uncertainty is
not such that it should paralyze the entire project.
[57]
Thus, based on the information that was before
it, including the modelling predictions, the Panel accepted the measure as
technically and economically feasible. The fact that uncertainty remained
regarding end pit lakes in the oil sands region is understandable given that
they will only become operational upon mine site closures. Thus, the Panel
recommended the validation of modelling results, including a physical test case
and continued research, well in advance of the slated closure date in 60
years.
[58]
In my opinion, the Panel is permitted and indeed
mandated to make these kinds of recommendations regarding the proposed Project,
which should include recommendations for continued study of potential impacts
on valued environmental components and the development of further mitigation
strategies. This is consistent with the ongoing and dynamic nature of
environmental assessment referred to above and ensures that new information is
obtained which facilitates the adaptation of project implementation as
required.
iii. Reclamation
[59]
The applicants further submit that the
mitigation of certain aspects of oil sands mining, e.g., reclamation of
peatlands, is not even known in general terms. Follow-up programs are
not intended to replace mitigation measures under the CEAA or to be treated as
vehicles for designing future mitigation measures. The applicants find support
in the case of Union of Nova Scotia Indians, supra. In that
particular case, mitigation measures were generally known, but the details of
the specific measures had yet to be determined. For the applicants, relying on
adaptive management to address uncertainty and future risk requires at least
some general understanding initially of the mitigation system in play.
[60]
The respondents submit that the dynamic
nature of follow-up measures and adaptive management will resolve initial
uncertainties. Further, sufficient information was available to the
Panel which enabled it to reasonably conclude as it did. I agree. The
recommendations are not necessarily flawed because the evidence was
insufficient to eliminate all uncertainty. The Panel had before it information
indicating that while the reclamation of peat-accumulating wetlands remained
uncertain, there is considerable experience with respect to wetland and marsh
reconstruction and that Imperial Oil’s closure plan called for the
reconstruction of approximately 900 hectares of marsh. This type of replacement
is consistent with s. 2(1) of the CEAA which defines mitigation as including
“restitution for any damage to the environment caused by such effects through
replacement, restoration, compensation or any other means”.
[61]
Again, I note that the Federal Court of
Appeal explained in Express Pipelines Ltd., supra, that as the
nature of the Panel’s task is predictive, finality and certainty in
environmental assessment can never be achieved. Hugessen J. stated at para. 10:
No
information about the probable future effects of a project can ever be complete
or exclude all possible future outcomes. The appreciation of the adequacy of
such evidence is a matter properly left to the judgment of the panel which may
be expected to have, as this one in fact did, a high degree of expertise in
environmental matters. In addition, the principal criterion set by the statute
is the "significance" of the environmental effects of the project:
that is not a fixed or wholly objective standard and contains a large measure
of opinion and judgment. Reasonable people can and do disagree about the
adequacy and completeness of evidence which forecasts future results and about
the significance of such results without thereby raising questions of
law.
And further at
para. 14, he states:
Finally,
we were asked to find that the panel had improperly delegated some of its
functions when it recommended that certain further studies and ongoing reports
to the National Energy Board should be made before, during and after
construction. This argument misconceives the panel's function which is simply
one of information gathering and recommending. The panel's view that the evidence
before it was adequate to allow it to complete that function "as early as
is practicable in the planning stages ... and before irrevocable decisions are
made" (see section 11(1)) is one with which we will not lightly interfere.
By its nature the panel's exercise is predictive and it is not surprising that
the statute specifically envisages the possibility of "follow up"
programmes. Indeed, given the nature of the task we suspect that finality and certainty
in environmental assessment can never be achieved.
It would be
impossible for a review panel to conduct the environmental assessment early in
the planning stages of a project if the Panel was required to eliminate all
uncertainty and precluded from commenting on follow-up activities.
[62]
Thus, while uncertainties with respect to
reclamation of peat-accumulating wetlands remained, they could be addressed
through adaptive management given the existence of generally known replacement
measures contained in Imperial Oil’s mine closure plan. Indeed, it is worth
noting that the Panel cited with approval the reclamation milestones from
Imperial Oil’s Project Application in its Report.
B) Endangered Species
[63]
The applicants argue
that the Panel failed to consider the significance of adverse environmental
effects on endangered species, particularly the Yellow Rail (listed in the Species
at Risk Act, S.C. 2002, c.29 (“SARA”)), failed to provide the responsible
authority with the requisite information in this regard, failed to consider mitigation measures that were technically and
economically feasible, and failed to provide a rationale for its conclusion.
[64]
The applicants reference the Federal
Government’s written submission to the Kearl Panel wherein it indicated that:
There are 1093
[hectares] of graminoid fen within the Kearl Project area that could provide
suitable habitat for Yellow Rails. It is not known how large or widely
distributed the local population is, and therefore it is difficult to draw
conclusions on potential impacts to the species, or to make recommendations for
mitigation actions.
Based on the
information before it, the Panel recommended that Alberta conduct a regional review of cumulative impacts on Yellow Rail
within the next two years.
[65]
For the applicants s. 79 of the SARA imposes
requirements, in addition to those contained in the CEAA, on authorities
mandated to ensure that an environmental assessment is conducted to “identify
the adverse effects of the project on the listed wildlife species and its
critical habitat and, if the project is carried out, [to] ensure that measures
are taken to avoid or lessen those effects and to monitor them.”
[66]
The federal respondent submits that the Panel
clearly set out its concerns regarding the Yellow Rail and made recommendations
for a regional review of cumulative impacts to determine mitigation options as
well as the implementation of predevelopment surveys by Imperial Oil. Given the
ongoing and dynamic nature of the environmental assessment process, complete
details need not be provided at this stage: the Panel raised concerns, provided
information, and made recommendations, and the final decision rested with DFO.
Imperial Oil echoes the federal respondent and indicates that based on the
evidence, the Panel’s conclusions and recommendations were informed and
rational.
[67]
While I note that the Panel could have included
more information regarding Environment Canada’s concerns with respect to the
Yellow Rail, particularly, that suitable habitat for the Yellow Rail is found
in localized patches throughout the region and that this habitat cannot be
reclaimed with current technology, I find the assessment of the significance of
environmental effects in the Panel report to be reasonable. In my view, the
Panel met its duty in the present case by acknowledging that Environment Canada
expressed concern regarding the effect on the Yellow Rail due to the intensity
of regional development. It made no further assessment as the information upon
which such assessment could be based was not before it.
[68]
The Panel recommended that in the next two years
AENV in collaboration with Environment Canada, coordinate a regional review of
the cumulative impacts on the Yellow Rail in the oil sands region, using
appropriate regional nocturnal surveys in areas of potentially suitable habitat
and that this initiative should determine the mitigation options to minimize
impacts on the Yellow Rail. The Panel went on to recommend that AENV establish
requirements within any EPEA approval to implement the findings of the
Yellow Rail initiative for surveys, determination of effects, and mitigation
strategies where appropriate. The Panel expressed its expectation that
Imperial Oil would implement effective Yellow Rail predevelopment surveys and habitat
mitigation strategies in its reclamation plans, unless these matters were dealt
with on a regional basis. Finally, the Panel recommended that AENV require
Imperial Oil to avoid land clearing during the period of April 1 to August 30
of each year due to potential impacts on migratory bird species.
[69]
Thus, while I agree with the applicants’
assertion that further studies of the Yellow Rail population do not constitute
mitigation measures, I do not believe that the Panel’s recommendation was meant
to be a mitigation measure. The Panel adopted an approach that was consistent
with the dynamic nature of the assessment process; it highlighted concerns and
made recommendations consistent with the information before it. I find the
approach employed to manage the existing uncertainty to be reasonable.
C) Greenhouse
Gas Emissions
[70]
The applicants submit that the Panel erred by
failing to provide a cogent rationale for its conclusion that the adverse
environmental effects of the greenhouse gas emissions of the Project would be
insignificant, and by failing to comment on the effectiveness of
intensity-based “mitigation”. According to Imperial Oil’s EIA, the Project
will be responsible for average emissions of 3.7 million tonnes of carbon
dioxide equivalent per year, which equals the annual greenhouse gas emissions
of 800,000 passenger vehicles in Canada, and will contribute 0.51% and 1.7%
respectively, of Canada and Alberta’s annual greenhouse gas emissions
(based on 2002 data).
[71]
The respondent, Imperial Oil, argues that the
EIA that was before the Panel set out the annual greenhouse gas emissions, as
well as the intensity of greenhouse gas emissions on a per barrel basis for the
Project during the operating period. Further, the Project Application sets out
Imperial Oil’s approach to greenhouse gas management including the requirement
that the most energy efficient, commercially proven and economic technology be
selected to minimize emissions. There is no evidence to suggest that the Panel
failed to consider all the evidence that was before it, and while it did not
comment specifically on the effects of the greenhouse gas emissions, pursuant
to Cantwell v. Canada (Minister of the Environment), [1991] F.C.J. No.
27, the EARPGO (predecessor to the CEAA) does not specify a particular form for
the report and thus, it is not the role of this Court to insist on a particular
form in the present case. At the hearing, Imperial Oil’s counsel added that for
the Panel to comment on the proposed intensity based mitigation measures would
shift its role into the realm of policy recommendation.
[72]
While I agree that the Panel is not to engage in
policy recommendation, nevertheless, it is tasked with conducting a science and
fact-based assessment of the potential adverse environmental effects of a
proposed project. In the absence of this fact-based approach, the political
determinations made by final decision-makers are left to occur in a vacuum.
[73]
I recognize that placing an administrative
burden on the Panel to provide an in-depth explanation of the scientific data
for all of its conclusions and recommendations would be disproportionately
high. However, given that the Report is to serve as an objective basis for a
final decision, the Panel must, in my opinion, explain in a general way why the
potential environmental effects, either with or without the
implementation of mitigation measures, will be insignificant.
[74]
Should the Panel determine that the proposed
mitigation measures are incapable of reducing the potential adverse environmental
effects of a project to insignificance, it has a duty to say so as well. The
assessment of the environmental effects of a project and of the proposed
mitigation measures occur outside the realm of government policy debate, which
by its very nature must take into account a wide array of viewpoints and
additional factors that are necessarily excluded by the Panel’s focus on
project related environmental impacts. In contrast, the responsible authority
is authorized, pursuant to s. 37(1)(a)(ii), to permit the project to be carried
out in whole or in part even where the project is likely to cause significant
adverse environmental effects if those effects “can be justified in the
circumstances”. Therefore, it is the final decision-maker that is mandated to
take into account the wider public policy factors in granting project approval.
[75]
I am fully aware of the level of expertise
possessed by the Panel. The record shows that they had ample material before
them relating to the issue of greenhouse gas emissions and climate change, and
thus any articulated conclusions drawn from the evidence should be accorded a
high measure of deference. However, this deference to expertise is only
triggered when those conclusions are articulated. Instructively, in Canada (Director of Investigation
and Research, Competition Act) v. Southam Inc.,
[1997] 1 S.C.R. 748, [1996] S.C.J. No. 116 (QL), at para. 62, Iacobucci J.
cited with approval the following excerpt from Kerans, R. P., Standards of
Review Employed by Appellate Courts (Edmonton: Juriliber, 1994), p. 17
which dealt with deference to “expertise”:
Experts, in our
society, are called that precisely because they can arrive at well-informed and
rational conclusions. If that is so, they should be able to explain, to a fair-minded
but less well-informed observer, the reasons for their conclusions. If they
cannot, they are not very expert. If something is worth knowing and relying
upon, it is worth telling. Expertise commands deference only when the expert is
coherent. Expertise loses a right to deference when it is not defensible. That
said, it seems obvious that [appellate courts] manifestly must give great
weight to cogent views thus articulated. [Emphasis added]
Thus, deference to
expertise is based on the cogent articulation of the rationale basis for
conclusions reached.
[76]
In the present case, the Panel indicated its
expectation that Imperial Oil would follow through on its commitment to:
·
reduce NOx emissions through combustion controls using low-NOx burners for stationary sources,
·
purchase and operate low-NOx mine equipment as soon as it is
commercially available, and
·
participate in AENV’s BATEA [Best
Available Technology Economically Available] study and
implement its findings. (p. 58 of the Report)
Further, the Panel
agreed with EC and encouraged Imperial Oil to implement the use of
ultra-low-sulphur diesel fuel for all of its construction and mining activities
ahead of any mandatory requirements (p. 59 of the Report).
[77]
Finally, the Panel supported Alberta developing appropriate EPEA
approval requirements to address greenhouse gas emission intensity targets:
The Joint Panel
supports Alberta developing
appropriate EPEA approval requirements to address:
·
fugitive emissions control (LDAR [leak detection and repair] program),
·
continuous benzene and acrolein monitoring,
·
VOC [volatile organic compounds] emissions monitoring,
·
participation in CEMA and WBEA [Wood Buffalo Environmental
Association] work to address trace air contaminants, including but not limited
to benzene and acrolein,
·
participation in regional acid deposition and eutrophication
monitoring
programs, and
·
GHG [greenhouse gas] emission intensity targets.
The Panel then
concluded that:
The KOS Project
is not likely to result in significant adverse environmental effects to air
quality, provided that the mitigation measures and recommendations proposed are
implemented. (p. 60 of the Report)
[78]
The evidence shows that intensity-based targets
place limits on the amount of greenhouse gas emissions per barrel of bitumen
produced. The absolute amount of greenhouse gas pollution from oil sands
development will continue to rise under intensity-based targets because of the
planned increase in total production of bitumen. The Panel dismissed as
insignificant the greenhouse gas emissions without any rationale as to why the
intensity-based mitigation would be effective to reduce the greenhouse gas
emissions, equivalent to 800,000 passenger vehicles, to a level of
insignificance. Without this vital link, the clear and cogent articulation of
the reasons behind the Panel’s conclusion, the deference accorded to its
expertise is not triggered.
[79]
While I agree that the Panel is not required to
comment specifically on each and every detail of the Project, given the amount
of greenhouse gases that will be emitted to the atmosphere and given the
evidence presented that the intensity based targets will not address the
problem of greenhouse gas emissions, it was incumbent upon the Panel to provide
a justification for its recommendation on this particular issue. By its
silence, the Panel short circuits the two step decision making process
envisioned by the CEAA which calls for an informed decision by a
responsible authority. For the decision to be informed it must be nourished by
a robust understanding of Project effects. Accordingly, given the absence of
an explanation or rationale, I am of the view that the Panel erred in law by
failing to provide reasoned basis for its conclusion as mandated by s. 34(c)(i)
of the CEAA.
[80]
As this error relates solely to one of the many
issues that the Panel was mandated to consider, I find that it would be
inappropriate and ineffective to require the entire Panel review to be
conducted a second time (Nanda v. Canada (Public Service Commission Appeal
Board), [1972] F.C. 277, at para. 55). Accordingly, the application
for judicial review is allowed in part. The matter is remitted back to the same
Panel with the direction to provide a rationale for its conclusion that the
proposed mitigation measures will reduce the potentially adverse effects of the
Project’s greenhouse gas emissions to a level of insignificance.
[81]
As it was agreed upon at the hearing, the
parties shall make representations in writing on the issue of costs. The applicants
should file and serve their representation within 15 days from the date of this
judgement. The respondents should file and serve their representations within
15 days from the date of service of the applicants’ representations.
JUDGMENT
THIS COURT ORDERS that
The application
for judicial review is allowed in part. The matter is remitted back to the same
Panel with the direction to provide a rationale for its conclusion that the
proposed mitigation measures will reduce the potentially adverse effects of the
Project’s greenhouse gas emissions to a level of insignificance.
“Danièle
Tremblay-Lamer”
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