Date: 20150828
Docket: T-2300-14
Citation:
2015 FC 1027
Ottawa, Ontario, August 28,
2015
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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PEACE VALLEY LANDOWNER ASSOCIATION
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA AND THE MINISTER OF THE ENVIRONMENT, AND BRITISH COLUMBIA
HYDRO AND POWER AUTHORITY
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Respondents
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JUDGMENT AND REASONS
[1]
This application for judicial review is based
upon the decision of the Governor in Counsel [GIC] that the significant adverse
environmental effects the Minister of the Environment [the Minister] determined
would likely result from the construction of the Site C Clean Energy Project
[the Project] on the Peace River in British Columbia were “justified in the
circumstances”. The GIC is authorized under section 52(4) of the Canadian
Environmental Assessment Act 2012 (SC 2012, c 19, s 52) [CEAA 2012],
to make such a determination after the Minister decides that a project will
likely cause significant adverse environmental effects under section 52(1) of
the CEAA 2012.
[2]
A contemporaneous challenge to the GIC’s
decision on judicial review was brought by the Doig River First Nation and
other First Nations, in Court Action T-2292-14, which was heard consecutively
by me and is the subject of a separate decision to be issued by the Court.
I.
Background
[3]
The Project is a proposed dam and hydroelectric
generating station on the Peace River, near Fort St. John, British Columbia,
and would flood the Peace River Valley, inundating an area 83 km long and
creating a reservoir with a surface area of approximately 9,330 hectares.
[4]
The Project is expected to generate up to 1,100
megawatts of capacity, at an average of 5,100 gigawatts hours of electricity
per year for more than 100 years. It had an estimated cost of 7.9 billion
dollars at the time of its environmental assessment and an estimated eight year
construction period. It was suggested in oral argument that this estimated cost
has increased in the interim, to approximately 9 billion dollars, and could
continue to increase.
[5]
The Applicant, Peace Valley Landowner
Association [PVLA], is a society whose membership is comprised of landowners
who will be affected by the Project, either directly or indirectly.
[6]
On May 18, 2011, British Columbia Hydro and
Power Authority [BC Hydro] submitted a Project Description Report for the
Project to the British Columbia Environmental Assessment Office [EAO] and the
Canadian Environmental Assessment Agency [the Agency], initiating the
environmental assessment processes of both entities.
[7]
On September 30, 2011, the EAO and the Agency announced
they would conduct a cooperative environmental assessment [EA], which would
include a Joint Review Panel [the JRP or the Panel]. A draft agreement for the
process, and draft terms of reference, were released that same day. The Terms
of Reference listed thirteen factors the Panel must consider in its assessment.
Of particular note are paragraphs 2.2 and 3.14; the first provides the list of
factors to be considered, and the second provides the Panel’s mandate with
respect to information related to the justifiability of any significant adverse
effects the project may cause.
[8]
Prior to constituting the JRP, the Agency and
EAO oversaw the production of the Environmental Impact Statement Guidelines
[EIS Guidelines], which set out the scope of the factors listed in the Terms of
Reference and information to be submitted by BC Hydro in the form of an
environmental impact statement [EIS].
[9]
The first draft of the EIS Guidelines was
produced by BC Hydro and was subject to review by a Working Group who oversaw
amendments. On September 7, 2012, the Minister and the Executive Director of
the EAO determined the EIS Guidelines were adequate and issued them to BC
Hydro. They were incorporated into the Terms of Reference, pursuant to
paragraph 2.8.
[10]
On January 25, 2013, BC Hydro submitted the EIS
to the Agency and the EAO, which was then subject to review by the Working
Group, government agencies, and the public. Each comment received was responded
to, and twenty nine technical memos were written to address common themes
within those comments.
[11]
In June and July of 2013, the Agency and EAO
directed BC Hydro to amend the EIS on the basis of the comments and responses
received, and on August 1, 2014, it was determined to be satisfactory and ready
for review by the Panel.
[12]
Between September and November of 2013, the JRP
requested information from BC Hydro three times, along with follow-up requests.
On November 7, 2013, the Panel decided that the amended EIS, along with the
additional information received, was sufficient to proceed to public hearing.
[13]
Public hearings were held over 26 days in
December of 2013 and January of 2014. During this period, sessions on December
9 and 10, as well as January 23, addressed the topics “Need, Purpose and
Alternatives”.
[14]
After the public hearings were completed, on May
1, 2014, the JRP produced the Panel Report to the Minister and Executive
Director of the EAO.
[15]
On May 9, 2014, BC hydro informed the JRP of an
error in Chapter 15, Tables 16 and 18: the JRP had failed to include low liquid
natural gas [LNG] load in the load forecast (which was their stated intention),
which affected the Energy Load Resource Balance of the Project. In response, on
June 10, 2014, the JRP issued an errata to rectify the issue and stated that
they would modify the tables to include the omitted information, but that the
stated “conclusions remain as noted,” without
further explanation.
[16]
On September 8, 2014, a memo was sent to the
Minister, which, once signed and dated by her, constituted her decision under
section 52 of the CEAA 2012. The Minister signed the memo and concurred with
the statement that significant adverse environmental effects were likely to
occur if the project proceeded.
[17]
The GIC released the impugned Order-in-Council
2014-1105 on October 14, 2014, which set out its decision that the potential
significant adverse environmental effects likely to ensue, should the Project
be built, were “justified in the circumstances”.
[18]
The Minister also issued a decision statement
under the CEAA 2012 on October 14, 2014, (re-issued with some minor corrections
on November 25, 2014), allowing the Project to proceed.
[19]
The Order in Council reads as follows:
Whereas BC Hydro has proposed the
development of the Site C Clean Energy Project (the “Project”), near Fort St. John, British Columbia;
Whereas, after having considered the Report
of the Joint Review Panel – Site C Clean Energy Project and taking into account
the implementation of mitigation measures that the Minister of the Environment
considered appropriate, the Minister has decided that the Project is likely to
cause significant adverse environmental effects;
Whereas, after having made this decision,
the Minister has, in accordance with subsection 52(2) of the Canadian
Environmental Assessment Act, 2012 (the “Act”), referred to the Governor in
Council for its consideration and decision the matter of whether those effects
are justified in the circumstances;
Whereas the Government of Canada has
undertaken a reasonable and responsive consultation process with Aboriginal
groups potentially affected by the project;
Whereas the consultation process has
provided the opportunity for dialogue and for the exchange of information to
ensure that the concerns and interests of the Aboriginal groups have been
considered in the decision-making process;
Whereas the consultation process has
included opportunities for the Aboriginal groups to review and comment on
conditions for inclusion in a decision statement to be issued by the Minister
under the Act that could mitigate environmental effects and potential impacts
on the Aboriginal groups;
Whereas the Minister will consider the views
and information provided by the Aboriginal groups when the Minister determines
the conditions to be imposed on the proponent in the decision statement;
Whereas the consultation process undertaken
is consistent with the honour of the Crown;
And whereas the concerns and interests of
Aboriginal groups have been reasonably balanced with other societal interests
including social, economic, policy and the broader public interest;
Therefore, His Excellency the Governor
General in Council, on the recommendation of the Minister of the Environment,
pursuant to subsection 52(4) of the Canadian Environmental Assessment Act,
2012, decides that the significant adverse environmental effects that Site C
Clean Energy project proposed by BC Hydro in British Columbia is likely to
cause are justified in the circumstances.
A.
Position of the Parties
[20]
The PVLA takes the position that if the Project
is likely to cause significant adverse environmental effects, as determined by
both the JRP and the Minister, then in order for the GIC to decide that those
effects are justified, the justification must be based on an unambiguous need
for power and that the timing for that need was at the time of the decision. In
the PVLA’s view, the “need” speaks to a current need and there was no
justification to support such a need at the relevant time.
[21]
Moreover, the PVLA argues that the GIC’s reasons
for justification, which are limited to the one page Order in Council, with no
other frame of reference, appear to address only the consultation process with
Aboriginal Groups and their societal interests, without addressing the economic
value of the Project, or including a cumulative effects analysis, as required.
[22]
The Respondents take a different view of the
justification for the GIC’s Order in Council. They argue that the JRP, which
was available to the GIC and the Minister, who was part of the GIC (Cabinet),
reflected and considered the overall questions of costs, need for and benefits of
the Project, highlighting long term benefits to the public for future
generations.
[23]
As well, the Respondents state that the JRP, and
therefore the GIC, did consider other, reasonable alternatives for meeting the
public’s energy needs, albeit with little detail.
[24]
Finally, the Respondents also say that the penultimate
paragraph of the GIC’s Order in Council demonstrates that economic
considerations were taking into account:
And whereas the concerns and interests of
the Aboriginal groups have been reasonably balanced with other societal
interests including social, economic, policy and the broader public
interest.
[Emphasis added]
[25]
The parties agreed that extensive public
consultation with interested parties, including Aboriginal groups and the PVLA,
took place during the process leading up to the JRP being issued.
II.
Issue
[26]
Was the GIC’s decision, that the significant
adverse environmental effects likely to be caused by the Project were nevertheless
justified, a reasonable one?
III.
Standard of Review
[27]
The Applicant has not made a clear statement as
to the applicable standard of review to be applied in approaching the issue,
but does state that while the GIC is owed considerable deference in their
decision-making, their discretion conferred by the CEAA 2012 “must be exercised consistently with the purposes and
policies underlying its grant.”
[28]
The Respondent Attorney General of Canada [the AG for Canada] submits that the Applicant, in framing the sole issue on the Application,
has accepted that the standard of review to be applied in the case at bar is
reasonableness. Further, this standard should incorporate a high degree of
deference for the GIC’s decision, as it is a highly discretionary and
policy-laden decision that requires consideration of a wide array of
environmental, social, economic and political factors.
[29]
The AG for Canada further submits that the
Federal Court of Appeal established in Council of the Innu of Ekuanitshit v
Canada (Attorney General) et al, 2014 FCA 189 at paras 35-44 [Innu]
that a reviewing court must show significant deference in reviewing a GIC or
Ministerial decision under CEAA 2012, in considering sections 52(1) and 52(4).
That decision held that a reviewing court must only intervene if:
▪
the statutory process was not properly followed
before the statutory decisions at issue were made;
▪
the Governor in Council or Responsible
Minister’s decisions were taken without regard for the purpose of the statute;
or
▪
the Governor in Council or Responsible
Minister’s decisions had no reasonable basis in fact; which is tantamount to an
absence of good faith.
[30]
The Respondent BC Hydro submits that the
appropriate standard of review to be applied is reasonableness, as the issue to
be determined involves an accusation of failure to take into account relevant
factors. BC Hydro further submits that as the decision maker is made up of
elected officials who must make a highly discretionary, policy-based and
fact-driven decision, the Court should be cautious to interfere (Canada
(National Revenue) v JP Morgan Asset Management (Canada) Inc, 2013 FCA 250
at para 74).
[31]
While it was agreed in oral argument by the
parties that the standard of review should be reasonableness, that is for the
Court to decide. In my view, the appropriate standard of review to be applied
is reasonableness. The consultation process and adequacy of consultation is a
question of mixed fact and law, reviewable on a standard of reasonableness. The
GIC’s decision is one that attracts considerable deference. While the privacy
and arguably lack of transparency surrounding the GIC’s decision is not ideal, the
level of deference owed to the Federal Cabinet in allowing the GIC such
seclusion, while they balance the many interests involved in such a polycentric
decision, attracts a review based on the reasonableness of the decision (Halifax
(Regional Municipality) v Canada (Public Works and Government Services),
2012 SCC 29 at para 55; Baker v Canada (Citizenship & Immigration),
[1999] 2 S.C.R. 817 at para 53).
IV.
Analysis
[32]
It is not disputed that under the CEAA 2012, the
Project could not be carried out unless the Minister issued a decision
statement that the Project:
a)
is not likely to cause significant adverse
environmental effects; or
b)
that the significant adverse environmental
effects that it is likely to cause are justified in the circumstances.
[33]
The Minister must first have considered the
report and recommendations of the JRP. Here, the Minister decided under subsection
51(1) that there would be significant adverse environmental effects referred to
in subsection 5(1) and 5(2) of the CEAA 2012.
[34]
The JRP determined that the significant adverse
effects of the Project are not justified. The Panel determined:
a)
justification must rest on an unambiguous need
for the power, but that that need had not been established;
b)
justification must also rest on analysis showing
that financial costs are sufficiently attractive to make tolerable the substantial
environmental, social and other costs, but that the financial costs of the
Project had not been sufficiently established.
A.
Applicant’s Attacks on the Reasonableness of the
GIC Decision
[35]
The Applicant argues that the Terms of Reference
for the environmental assessment required assessment of evidence that could
support justification of the Project, based on need and economic factors. The
Terms of Reference state at section 2.2:
2.2 The Joint Review Panel must include in
its assessment of the Project, consideration of the following factors:
- The purpose of the Project;
- The need for the Project;
- Alternatives to the Project;
- The environmental, economic, social,
health and heritage effects of the Project, including the cumulative effects
that are likely to result from the Project in combination with other projects
or activities that have been or will be carried out; …
- The significance of the environmental,
economic, social, health and heritage effects; …
[36]
Moreover, the Terms of Reference also
incorporate the EIS Guidelines into the formal scope of assessment, stating at
section 2.8:
2.8 The scope of factors to be considered in
the environmental assessment are those outlined in the EIS Guidelines as
finalized by the federal Minister of the Environment and the Executive Director
of the EAO. The scope of the factors, once finalized as part of the EIS
Guidelines, will be appended to this Terms of Reference.
[37]
The EIS Guidelines state, inter alia:
a)
“The “need for”
establishes the fundamental justification or rationale for the Project” (EIS Guidelines, s. 4.1.1)
b)
“The EIS will provide
the fundamental rationale for proceeding with the development at this time…” (EIS Guidelines, s. 4.1.1)
c)
“The EIS will include a
section describing the predicted environmental, economic and social benefits of
the project. This information will be considered in assessing the
justifiability of the significant adverse environmental effects, if necessary.” (EIS Guidelines, s. 5)
[38]
Under the “Project Benefits”, section 5, the EIS
Guidelines further required assessment of the:
a)
value of the electricity;
b)
capital construction cost and operating cost
estimates
c)
impacts on government revenue (EIS Guidelines s.
5).
[39]
The EIS Guidelines also set the requirements for
an “analysis of technically and economically feasible
alternatives to the Project” (EIS Guidelines, s. 4.2).
[40]
The Applicant argues that the framework established
for conducting the environmental assessment made it clear that a justification
of the significant adverse environmental effects the JRP and the Minister
concluded would likely ensue, if the Project were approved, would need to
involve consideration of whether or not an unambiguous need for power and
sufficient financial benefits had been established. This analysis should have also
considered the substantial environmental, social, heritage, health, and other
costs associated with the Project. Further, consideration of the cumulative
effects of projects on the Peace River should have factored into that analysis.
[41]
The Applicant concedes that the GIC’s decision
does give reasons for its decision, and while minimal, they signal where the
GIC’s attention was focused. However, it is the Applicant’s position that the
GIC turned its gaze to adequacy of consultation with affected Aboriginal groups
only, and that the reasons do not evidence any attention to the requirement of
economic value of the Project, or to society’s need for the Project’s
hydroelectric capacity.
[42]
Cabinet has claimed privilege over the record
before them in reaching their conclusion, which complicates a meaningful review
of the basis for the reasons for the decision. However, the Applicant argues
that privilege does not shield Cabinet from judicial review. Cabinet could have
chosen to submit redacted versions of the record before them, but decided not
to. The Court is asked to therefore draw an adverse inference from this
omission.
[43]
As stated above, the Applicant takes the
position that the reasons provided in the Order in Council suggest that
Aboriginal concerns were the only topic considered by Cabinet, which renders
the decision unreasonable, for having ignored significant economic and social
considerations.
[44]
The Applicant emphasizes that the Panel stated
an unambiguous need and economic benefit from the Project must be established
in order to justify its approval. Throughout the JRP Report, it is repeatedly
stated that such justification has not been established. To even reach the
point of assessing the costs of the Project, it must be determined that the
energy it would produce is needed. If it cannot be established clearly that the
energy is needed, the Applicant argues the Project cannot reasonably be justified.
As submitted in oral argument, it does not matter if a project is cheap if it
is not needed.
[45]
The Applicant asserts that the need for the Project
actually establishes its fundamental justification or rationale and the GIC’s
decision did not indicate that this was considered.
[46]
With respect to the timing of need for the
Project, the Report clearly reaches a different conclusion than BC Hydro in
estimating when electricity produced by the Project will be needed in British Columbia. The Report estimates that it will be needed in 2028, while BC Hydro
estimated it will be needed in 2024. The Applicant stresses that the need
estimates of 2024 and 2028 only point to when even a portion of the energy
produced may be needed.
[47]
While a difference of only four years might not
seem significant, the Applicant highlights that so long as the Project is
producing excess energy, it will be selling that energy at an operating loss
(approximately 35% of its cost of production), the costs of which will be
passed on to the people of British Columbia. Therefore it would appear that the
Project will be operating at a significant cost to the public for a long time
past when that need comes into effect.
[48]
The Applicant further argues that the four years
difference could give BC Hydro time to explore other opportunities that might
become available. While the Project might appear to be the cheapest option for
hydro on a standard analysis now, that might not be the case in four years,
after developments could have been made in alternative methods.
[49]
The Applicant also states that it was not open
to Cabinet, based on the CEAA 2012 or the Terms of Reference, which
incorporated the EIS Guidelines, not to address the unambiguous need for power.
Their decision, which failed to address this integral factor, is contrary to
the purpose of the CEAA 2012 and is therefore unreasonable.
[50]
Again, the Applicant further argues that the GIC
must exercise its discretion in a manner that is in accordance with the purpose
of the CEAA 2012. The stated purposes of the CEAA 2012 emphasize sustainable
development and the protection of the environment.
[51]
The Project has been determined by the Panel, as
well as the Minister, to cause significant adverse environmental effects, some
of which could not be mitigated. The decision under review attests to the
Minister’s familiarity with the JRP Report and its findings, but does not make
it clear that the GIC was familiar with the Report and its findings.
Considering the potential for significant immitigable effects, it is important
for the GIC to have turned their mind to the JRP findings.
[52]
Throughout its Report, the JRP highlighted that
the need for the Project could not be solidly established and there was
insufficient information available to determine if alternatives to the Project
were viable. The Applicant’s position is that BC Hydro has failed to pursue
adequate research into geothermal energy over the last thirty years. This has
left them without information to make an informed determination as to whether
it would be a viable alternative to a project like the one in question.
Estimates based on the small amount of available information have shown that
geothermal has the potential to produce almost as much energy as the project
would if properly extracted and with significantly lower environmental costs.
[53]
The Applicant also emphasizes that other
alternatives were not adequately explored to make a truly informed decision as
to the justification of the Project.
[54]
The Applicant finally suggests that concerns
over low supply of electricity carries a higher degree of analytic effort in BC
Hydro’s submissions than demand management does. This could skew one to be more
concerned over the possibility of brown outs or other effects of a hydro
shortage, than focusing on managing demand.
[55]
In conclusion, given a purposive construction of
the reasons provided for the justification decision of the GIC, the Applicant
states that decision cannot be seen to be reasonable or transparent.
B.
Problems with the Applicant’s Position
[56]
The Respondents highlighted portions of the JRP
Report which address costs, the need for and benefits of the Project, long-term
benefits for future generations, and alternatives considered. While it is clear
in the Report that the JRP noted several issues with questionable estimates
surrounding the Project, many of those issues are inherent in forecasting a
large infrastructure project. Further, the Report also recognizes numerous
positives on the “balance sheet” it was tasked to create.
[57]
The JRP acknowledged that there is inevitably
going to be an increased demand for power in the future that cannot be met by
current generating methods. It further acknowledged that in the long-run, the
Project presents the most cost-effective and inexpensive option to produce
power for the province. The Report also highlighted that alternatives to the
Project had indeed been considered and were not preferable.
[58]
Accordingly, while the Report does identify
issues with the Project, it also highlights benefits. The task of the JRP was
to create a balance sheet, so that an informed decision could be made on
whether or not to proceed. The JRP was appointed to conduct the environmental
assessment of the Project, to gather information, make recommendations and
report to the Minister.
[59]
In Pembina Institute for Appropriate
Development v Canada (Attorney General), 2008 FC 302 [Pembina Institute],
the Federal Court observed the Panel’s inquiry is “science
and fact-based” and distinguishable from the “political
determination made by the final decision-maker” who 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.” The Court stated:
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.
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.
[60]
While the Respondents acknowledge that the
Applicant is correct in stating that need is an integral consideration in
whether or not to proceed with the Project, it is clear that need was
considered and established on the Record. There are some discrepancies between
BC Hydro and the JRP’s forecasts as to when that need begins, but the
difference of four years is not significant in the life of the Project.
Further, forecasting need is inherently uncertain and the methods employed by
BC Hydro were confirmed to be sound in such an uncertain task. The JRP was not
expected to find certainty in an outcome; it was to predict the likeliest one (Pembina
Institute, at para 61; Greenpeace Canada et al v Canada (Attorney General) et al, 2014 FC 463 at paras 234-236).
[61]
Although lacking in detail, the GIC’s decision
demonstrates that economic considerations were taken into account in concluding
that the significant adverse environmental effects likely to be caused by the
Project were justified in the circumstances. As stated above, the penultimate
paragraph of the GIC’s impugned decision states:
And whereas the concerns and interests of
Aboriginal groups have been reasonably balanced with other societal interests
including social, economic, policy and the broader public interest; …
[Emphasis added]
[62]
A balancing of interests necessarily involves
weighing competing interests of the parties. While the Applicant insists the
GIC focused solely on the adequacy of Aboriginal consultation, the penultimate
paragraph of the impugned decision produced above states otherwise. The “social, economic, policy and broader public interest”
were considered in deciding that the significant adverse environmental effects
are justified.
[63]
There is a presumption that the Minister
considered the JRP and all relevant information in making his recommendations
to the GIC. It is only reasonable that the JRP Report before the Minister and
all other relevant information considered by the Minister can be imputed to
have been considered by the GIC (Woolaston v Canada (Manpower and Immigration),
[1973] S.C.R. 102; Leo Pharma Inc v Canada (Attorney General), 2007
FC 306 at para 41; most recently articulated in Thamotharampillai v Canada
(Citizenship & Immigration), 2011 FC 438 at para 14).
[64]
Moreover, I do not consider the Order in Council
to be exhaustive in indicating what was considered by the GIC. The entire
Record should be reviewed to determine if the decision was unreasonable, and
should be read together in the context of the evidence and the process to serve
the purpose of showing whether the result falls within a range of reasonable,
possible outcomes (Newfoundland and Labrador Nurses' Union v Newfoundland
and Labrador (Treasury Board), 2011 SCC 62 at paras 14, 15, 18). In
addition, the press release issued by the Minister, after the Order in Council
was released, on the same day, October 14, 2014, can be accepted and
acknowledged as an indication of the considerations of the GIC. Despite having
been released after the decision was made, this contemporaneous release at the
very least is informative and indicative of the consideration of economic
issues and concerns, as excerpts below show:
OTTAWA, ON – October 14, 2014 – The
Honourable Leona Aglukkaq, Minister of the Environment, Minister of the
Canadian Northern Economic Development Agency and Minister for the Arctic
Council, today issued the following statement outlining the Governor in
Council’s determination that the environmental effects of the proposed Site C
Clean Energy Project are justified in the circumstances.
“The Site C project, which has been proposed
by BC Hydro and Power Authority, underwent a thorough independent
federal-provincial review by an independent panel. This process included
extensive, meaningful and respectful consultations with the public and
Aboriginal groups. The environmental assessment process provided the scientific
and technical expertise and the effective engagement of the public and
Aboriginal groups to enable an informed decision by both governments.”
“The proposed Site C project is an important
one for British Columbia and for Canada as it will support jobs and economic
growth while providing clean, renewable energy over the next 100 years. The
Site C Clean Energy Project will translate into about 10,000 direct
person-years of employment from now until 2024 and when indirect and induced
jobs are added in, that figure climbs to 29,000 person-years of employment.”
“This decision will benefit future
generations. Over the life of the project, Site C is expected to help mitigate
the growth in greenhouse gas emissions in Canada by preventing the discharge of
between 34 to 76 megatonnes of CO2 equivalent.”
“In the Decision Statement that I released
today, there are over 80 legally binding conditions that must be fulfilled by
the proponent, BC Hydro, throughout the life of the project in compliance with
the Canadian Environmental Assessment Act, 2012. Failure to meet
these conditions is a violation of federal law.”
“Our Government is committed to making
environmental assessment decisions based on the best available scientific
evidence, and balancing economic and environmental considerations.”
[65]
As also stated by Justice Sewell in the related
case of Peace Valley Landowner Association v Minister of
Environment et al, 2015 BCSC 1129 at paras 118-120:
[118] Finally, PVLA submits that the
Ministers’ decision to issue the Certificate was unreasonable in light of the
“nature and significance” of the Panel’s overall findings and recommendations
with respect to the economic effects of the Project.
[119] In each of the Economic
Recommendations the Panel communicated its concern that the information about
future needs, costs and alternatives to the Project was insufficient. However
the question of whether the economic uncertainties addressed in sections 14 and
15 of the Report were sufficiently serious to preclude issuance of the
Certificate was a policy consideration for the Ministers to assess.
[120] Given all of the above circumstances I
cannot conclude that the Ministers’ decision was unreasonable. As I have
already stated, the Economic Recommendations related to the political decision
to proceed with the Project in preference to other available options rather
than any adverse environmental consequences of the Project. This decision is
one to which the Court should give very considerable deference.
[66]
While the reasons provided by the GIC could have
been better articulated and more transparent, they are within the reasonable
boundaries and requirements for GIC reasons. In Innu, above, more
substantial reasons were provided, giving insight into the mindset of the GIC
in making its decision, but this was a voluntary disclosure on their part. Simply
given that more substantial reasons may have been provided in making a similar
decision in the past does not translate into a requirement for those reasons in
all cases. In the words of Justice David Stratas of the Federal Court of Appeal
“a handful of well-chosen words can suffice” (Vancouver
International Airport Authority and YVR Project Management Ltd v Public Service
Alliance of Canada, 2010 FCA 158 at para 17(b)).
[67]
The task of the GIC is a heavy one. It is
charged with making a highly polycentric decision and deserves deference in
this regard. As Justice James Russell states:
237 In short,
Parliament has designed a decision-making process under the CEAA that is, when
it functions properly, both evidence-based and democratically accountable.
242 The key
substantive point with respect to the decision-making structure of the CEAA is,
in my view, that it is the role of s. 37 decision-makers to decide what is an
acceptable level of environmental impact or risk. This decision-making
component of the Act is not its only important feature, but the language of s.
37, the structure of the Act, and more than two decades' experience with its
implementation make it undeniable that it is an important feature (see Pembina
Institute, above, at para 15 applying Oldman River, above, at para
103). We cannot simply read it out of the Act, and the courts and those charged
with its implementation must seek to maintain the integrity of the
decision-making structure that Parliament has put in place.
Greenpeace
Canada et al v Canada (Attorney General) et al,
2014 FC 463 at paras 237, 242
[68]
The GIC must consider a wide range of
considerations and information put before it. As a body comprised of elected
officials, it is accountable to the electorate: the public itself. The GIC’s decisions
should be given a high degree of deference. There is no basis to find that the
GIC’s justification decision was either taken without regard for the purpose of
the CEAA 2012, or that economic considerations were not taken into account, or
that the decision was not reasonable on the facts.
[69]
The GIC’s decision here was within the bounds of
possible acceptable outcomes and no basis has been provided to the Court to interfere
with the decision.
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