Friends of the Oldman River Society v.
Canada (Minister of Transport), [1992] 1 S.C.R. 3
Her Majesty the Queen in right of
Alberta,
as represented by the Minister of
Public Works, Supply and Services Appellant
and
The Minister of Transport and
the Minister of Fisheries and Oceans Appellants
v.
Friends of the Oldman River Society Respondent
and
The Attorney General of Quebec,
the Attorney General for New
Brunswick,
the Attorney General of Manitoba,
the Attorney General of British
Columbia,
the Attorney General for Saskatchewan,
the Attorney General of Newfoundland,
the Minister of Justice of the
Northwest Territories,
the National Indian
Brotherhood/Assembly of First Nations,
the Dene Nation and the Metis
Association of the Northwest Territories,
the Native Council of Canada
(Alberta),
the Sierra Legal Defence Fund,
the Canadian Environmental Law
Association,
the Sierra Club of Western Canada,
the Cultural Survival (Canada),
the Friends of the Earth and
the Alberta Wilderness Association Interveners
Indexed as: Friends of the Oldman
River Society v. Canada (Minister of Transport)
File No.: 21890.
1991: February 19, 20; 1992: January
23.
Present: Lamer C.J. and La Forest,
L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Stevenson and
Iacobucci JJ.
on appeal from the federal court of
appeal
Constitutional law ‑‑
Distribution of legislative powers ‑‑ Environment ‑‑
Environmental assessment ‑‑ Whether federal environmental
guidelines order intra vires Parliament ‑‑ Constitution Act, 1867,
ss. 91 , 92 ‑‑ Environmental Assessment and Review Process
Guidelines Order, SOR/84‑467.
Environmental law ‑‑
Environmental assessment ‑‑ Statutory validity of federal
environmental guidelines order ‑‑ Whether guidelines order
authorized by s. 6 of Department of the Environment Act ‑‑
Whether guidelines order inconsistent with Navigable Waters Protection Act ‑‑
Department of the Environment Act, R.S.C., 1985, c. E‑10, s. 6 ‑‑
Navigable Waters Protection Act, R.S.C., 1985, c. N‑22, ss. 5 ,
6 ‑‑ Environmental Assessment and Review Process Guidelines Order,
SOR/84‑467.
Environmental law ‑‑
Environmental assessment ‑‑ Applicability of federal environmental
guidelines order ‑‑ Alberta building dam on Oldman River
‑‑ Dam affecting areas of
federal responsibility such as navigable waters and fisheries ‑‑
Whether guidelines order applicable only to new federal projects ‑‑
Whether Minister of Transport and Minister of Fisheries and Oceans must comply
with guidelines order ‑‑ Department of the Environment Act, R.S.C.,
1985, c. E‑10, ss. 4(1) (a), 5 (a)(ii), 6 ‑‑
Environmental Assessment and Review Process Guidelines Order, SOR/84‑467,
ss. 2 "proposal", "initiating department", 6 ‑‑
Navigable Waters Protection Act, R.S.C., 1985, c. N‑22, s. 5 ‑‑
Fisheries Act, R.S.C., 1985, c. F‑14, ss. 35 , 37 .
Crown ‑‑
Immunity ‑‑ Provinces ‑‑ Whether Crown in right of
province bound by provisions of Navigable Waters Protection Act, R.S.C., 1985,
c. N‑22 ‑‑ Interpretation Act, R.S.C., 1985, c. I‑21,
s. 17 .
Administrative law ‑‑
Judicial review ‑‑ Remedies ‑‑ Discretion ‑‑
Alberta building dam on Oldman River ‑‑ Dam affecting areas of
federal responsibility such as navigable waters and fisheries ‑‑
Environmental group applying for certiorari and mandamus in Federal Court to
compel Minister of Transport and Minister of Fisheries and Oceans to comply
with federal environmental guidelines order ‑‑ Applications
dismissed on grounds of unreasonable delay and futility ‑‑ Whether
Court of Appeal erred in interfering with motions judge's discretion not to
grant remedy sought.
The respondent
Society, an Alberta environmental group, brought applications for certiorari
and mandamus in the Federal Court seeking to compel the federal departments of
Transport and Fisheries and Oceans to conduct an environmental assessment,
pursuant to the federal Environmental Assessment and Review Process
Guidelines Order, in respect of a dam constructed on the Oldman River by
the province of Alberta ‑‑ a project which affects several federal
interests, in particular navigable waters, fisheries, Indians and Indian lands.
The Guidelines Order was established under s. 6 of the federal Department
of the Environment Act and requires all federal departments and agencies
that have a decision‑making authority for any proposal (i.e., any
initiative, undertaking or activity) that may have an environmental effect on
an area of federal responsibility to initially screen such proposal to
determine whether it may give rise to any potentially adverse environmental
effects. The province had itself conducted extensive environmental studies over
the years which took into account public views, including the views of Indian
bands and environmental groups, and, in September 1987, had obtained from the
Minister of Transport an approval for the work under s. 5 of the Navigable
Waters Protection Act . This section provides that no work is to be built in
navigable waters without the prior approval of the Minister. In assessing
Alberta's application, the Minister considered only the project's effect on
navigation and no assessment under the Guidelines Order was made. Respondent's
attempts to stop the project in the Alberta courts failed and both the federal
Ministers of the Environment and of Fisheries and Oceans declined requests to
subject the project to the Guidelines Order. The contract for the construction
of the dam was awarded in 1988 and the project was 40 per cent complete when
the respondent commenced its action in the Federal Court in April 1989. The
Trial Division dismissed the applications. On appeal, the Court of Appeal
reversed the judgment, quashed the approval under s. 5 of the Navigable
Waters Protection Act , and ordered the Ministers of Transport and of
Fisheries and Oceans to comply with the Guidelines Order. This appeal raises
the constitutional and statutory validity of the Guidelines Order as well as
its nature and applicability. It also raises the question whether the motions judge
properly exercised his discretion in deciding not to grant the remedy sought on
grounds of unreasonable delay and futility.
Held (Stevenson J. dissenting): The
appeal should be dismissed, with the exception that there should be no order in
the nature of mandamus directing the Minister of Fisheries and Oceans to comply
with the Guidelines Order.
Statutory Validity of the Guidelines
Order
The Guidelines
Order was validly enacted pursuant to s. 6 of the Department of the
Environment Act , and is mandatory in nature. When one reads s. 6 as a
whole, rather than focusing on the word "guidelines" in isolation, it
is clear that Parliament has elected to adopt a regulatory scheme that is
"law", and amenable to enforcement through prerogative relief. The
"guidelines" are not merely authorized by statute but must be
formally enacted by "order" with the approval of the Governor in
Council. That is in striking contrast with the usual internal ministerial
policy guidelines intended for the control of public servants under the
minister's authority.
The Guidelines
Order, which requires the decision maker to take socio‑economic
considerations into account in the environmental impact assessment, does not go
beyond what is authorized by the Department of the Environment Act . The
concept of "environmental quality" in s. 6 of the Act is not
confined to the biophysical environment alone. The environment is a diffuse
subject matter and, subject to the constitutional imperatives, the potential
consequences for a community's livelihood, health and other social matters from
environmental change, are integral to decision making on matters affecting
environmental quality.
The Guidelines
Order is consistent with the Navigable Waters Protection Act . There is
nothing in the Act which explicitly or implicitly precludes the Minister of
Transport from taking into consideration any matters other than marine
navigation in exercising his power of approval under s. 5 of the Act. The
Minister's duty under the Order is supplemental to his responsibility under the
Navigable Waters Protection Act , and he cannot resort to an excessively
narrow interpretation of his existing statutory powers to avoid compliance with
the Order. There is also no conflict between the requirement for an initial assessment
"as early in the planning process as possible and before irrevocable
decisions are taken" in s. 3 of the Guidelines Order, and the
remedial power under s. 6(4) of the Act to grant approval after the
commencement of construction. That power is an exception to the general rule
in s. 5 of the Act requiring approval prior to construction, and in
exercising his discretion to grant approval after commencement, the Minister is
not precluded from applying the Order.
Applicability of the Guidelines Order
The scope of the
Guidelines Order is not restricted to "new federal projects, programs and
activities"; the Order is not engaged every time a project may have an
environmental effect on an area of federal jurisdiction. However, there must
first be a "proposal" which requires an "initiative, undertaking
or activity for which the Government of Canada has a decision making
responsibility". The proper construction to be placed on the term
"responsibility" is that the federal government, having entered the
field in a subject matter assigned to it under s. 91 of the Constitution
Act, 1867 , must have an affirmative regulatory duty pursuant to an Act of
Parliament which relates to the proposed initiative, undertaking or activity.
"Responsibility" within the definition of "proposal" means
a legal duty or obligation and should not be read as connoting matters falling
generally within federal jurisdiction. Once such a duty exists, it is a matter
of identifying the "initiating department" assigned responsibility
for its performance, for it then becomes the "decision making authority"
for the proposal and thus responsible for initiating the process under the
Guidelines Order.
The Oldman River
Dam project falls within the ambit of the Guidelines Order. The project
qualifies as a proposal for which the Minister of Transport alone is the
"initiating department" under s. 2 of the Order. The Navigable
Waters Protection Act , in particular s. 5 , places an affirmative
regulatory duty on the Minister of Transport. Under that Act there is a
legislatively entrenched regulatory scheme in place in which the approval of
the Minister is required before any work that substantially interferes with
navigation may be placed in, upon, over or under, through or across any
navigable water.
The Guidelines
Order does not apply to the Minister of Fisheries and Oceans, however, because
there is no equivalent regulatory scheme under the Fisheries Act which
is applicable to this project. The discretionary power to request or not to
request information to assist a Minister in the exercise of a legislative
function does not constitute a "decision making responsibility"
within the meaning of the Order. The Minister of Fisheries and Oceans under
s. 37 of the Fisheries Act has only been given a limited ad hoc
legislative power which does not constitute an affirmative regulatory duty.
The scope of
assessment under the Guidelines Order is not confined to the particular head of
power under which the Government of Canada has a decision‑making
responsibility within the meaning of the term "proposal". Under the
Order, the initiating department which has been given authority to embark on an
assessment must consider the environmental effect on all areas of federal
jurisdiction. The Minister of Transport, in his capacity of decision maker
under the Navigable Waters Protection Act , must thus consider the
environmental impact of the dam on such areas of federal jurisdiction as
navigable waters, fisheries, Indians and Indian lands.
Crown Immunity
Per Lamer C.J. and La Forest,
L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.: The Crown
in right of Alberta is bound by the Navigable Waters Protection Act by
necessary implication. The proprietary right the province may have in the bed
of the Oldman River is subject to the public right of navigation, legislative
jurisdiction over which has been exclusively vested in Parliament. Alberta
requires statutory authorization from Parliament to erect any obstruction that
substantially interferes with navigation in the Oldman River, and the Navigable
Waters Protection Act is the means by which it must be obtained. The Crown
in right of Alberta is bound by the Act, for it is the only practicable
procedure available for getting approval. The purpose of the Act would be
wholly frustrated if the province was not bound by the Act. The provinces are
among the bodies that are likely to engage in projects that may interfere with
navigation. Were the Crown in right of a province permitted to undermine the
integrity of the essential navigational networks in Canadian waters, the
legislative purpose of the Navigable Waters Protection Act would
effectively be emasculated.
Per Stevenson J. (dissenting): The
province of Alberta is not bound by the Navigable Waters Protection Act .
The Crown is not bound by legislation unless it is mentioned or referred to in
the legislation. Here, there are no words in the Act "expressly
binding" the Crown and no clear intention to bind "is manifest from
the very terms of the statute". As well, the failure to include the Crown
would not wholly frustrate the purpose of the Act or produce an absurdity.
There are many non-governmental agencies whose activities are subject to the
Act and there is thus no emasculation of the Act. If the Crown interferes with
a public right of navigation, that wrong is remediable by action. There is no
significant benefit in approval under the Act. Tort actions may still lie.
Constitutional Validity of the
Guidelines Order
The
"environment" is not an independent matter of legislation under the Constitution
Act, 1867 . Understood in its generic sense, it encompasses the physical,
economic and social environment and touches upon several of the heads of power
assigned to the respective levels of government. While both levels may act in
relation to the environment, the exercise of legislative power affecting
environmental concerns must be linked to an appropriate head of power. Local
projects will generally fall within provincial responsibility, but federal
participation will be required if, as in this case, the project impinges on an
area of federal jurisdiction.
The Guidelines
Order is intra vires Parliament. The Order does not attempt to regulate
the environmental effects of matters within the control of the province but
merely makes environmental impact assessment an essential component of federal
decision making. The Order is in pith and substance nothing more than an
instrument that regulates the manner in which federal institutions must
administer their multifarious duties and functions. In essence, the Order has
two fundamental aspects. First, there is the substance of the Order dealing
with environmental impact assessment to facilitate decision making under the
federal head of power through which a proposal is regulated. This aspect of the
Order can be sustained on the basis that it is legislation in relation to the
relevant subject matters enumerated in s. 91 of the Constitution Act,
1867 . The second aspect of the Order is its procedural or organizational
element that coordinates the process of assessment, which can in any given case
touch upon several areas of federal responsibility, under the auspices of a
designated decision maker (the "initiating department"). This facet
of the Order has as its object the regulation of the institutions and agencies
of the Government of Canada as to the manner in which they perform their
administrative functions and duties. This is unquestionably intra vires
Parliament. It may be viewed either as an adjunct of the particular legislative
powers involved, or, in any event, be justifiable under the residuary power in
s. 91 .
The Guidelines
Order cannot be used as a colourable device to invade areas of provincial
jurisdiction which are unconnected to the relevant heads of federal power. The
"initiating department" is only given a mandate to examine matters
directly related to the areas of federal responsibility potentially affected.
Any intrusion under the Order into provincial matters is merely incidental to
the pith and substance of the legislation.
Discretion
Per Lamer C.J. and La Forest,
L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.: The
Federal Court of Appeal did not err in interfering with the motions judge's
discretion not to grant the remedies sought on the grounds of unreasonable
delay and futility. Respondent made a sustained effort, through legal
proceedings in the Alberta courts and through correspondence with federal
departments, to challenge the legality of the process followed by the province to
build the dam and the acquiescence of the appellant Ministers, and there is no
evidence that Alberta has suffered any prejudice from any delay in taking the
present action. Despite ongoing legal proceedings, the construction of the dam
continued. The province was not prepared to accede to an environmental impact
assessment under the Order until it had exhausted all legal avenues. The
motions judge did not weigh these considerations adequately, giving the Court
of Appeal no choice but to intervene. Futility was also not a proper ground to
refuse a remedy in the present circumstances. Prerogative relief should only
be refused on that ground in those few instances where the issuance of a
prerogative writ would be effectively nugatory. It is not obvious in this case
that the implementation of the Order even at this late stage will not have some
influence over the mitigative measures that may be taken to ameliorate any
deleterious environmental impact from the dam on an area of federal
jurisdiction.
Per Stevenson J. (dissenting): The
Federal Court of Appeal erred in interfering with the motions judge's
discretion to refuse the prerogative remedy. The court was clearly wrong in
overruling his conclusion on the question of delay. The common law has always imposed
a duty on an applicant to act promptly in seeking prerogative relief. Given the
enormity of the project and the interests at stake, it was unreasonable for the
respondent Society to wait 14 months before challenging the Minister of
Transport's approval. It is impossible to conclude that Alberta was not
prejudiced by the delay. The legal proceedings in the Alberta courts brought by
the respondent and others need not have been taken into account by the motions
judge. These proceedings were separate and distinct from the relief sought in
this case and were irrelevant to the issues at hand. The present action centres
on the constitutionality and applicability of the Guidelines Order. It raises
new and different issues. In determining whether he should exercise his
discretion against the respondent, the motions judge was obliged to look only
at those factors which he considered were directly connected to the application
before him. Interference with his exercise of discretion is not warranted
unless it can be said with certainty that he was wrong in doing what he did.
The test has not been met in this case.
Costs
Per Lamer C.J. and La Forest,
L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.: It is a
proper case for awarding costs on a solicitor-client basis to the respondent,
given the Society's circumstances and the fact that the federal Ministers were
joined as appellants even though they did earlier not seek leave to appeal to
this Court.
Per Stevenson J. (dissenting): The
appellants should not be called upon to pay costs on a solicitor and client
basis. There is no justification in departing from our own general rule that a
successful party should recover costs on the usual party and party basis.
Public interest groups must be prepared to abide by the same principles as
apply to other litigants and be prepared to accept some responsibility for the
costs.
Cases Cited
By La Forest J.
Referred to: Canadian Wildlife Federation
Inc. v. Canada (Minister of the Environment), [1989] 3 F.C. 309 (T.D.),
aff'd (1989), 99 N.R. 72; Alberta Government Telephones v. Canada (Canadian
Radio‑television and Telecommunications Commission), [1989] 2 S.C.R.
225; Reference re Anti‑Inflation Act, [1976] 2 S.C.R. 373; Martineau
v. Matsqui Institution Inmate Disciplinary Board, [1978] 1 S.C.R. 118; Maple
Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2; R. v. Crown
Zellerbach Canada Ltd., [1988] 1 S.C.R. 401; Belanger v. The King
(1916), 54 S.C.R. 265; R. & W. Paul, Ltd. v. Wheat Commission, [1937]
A.C. 139; Re George Edwin Gray (1918), 57 S.C.R. 150; Daniels v.
White, [1968] S.C.R. 517; Smith v. The Queen, [1960] S.C.R. 776; Environmental
Defense Fund, Inc. v. Mathews, 410 F.Supp. 336 (1976); Angus v. Canada,
[1990] 3 F.C. 410; Province of Bombay v. Municipal Corporation of Bombay,
[1947] A.C. 58; Sparling v. Quebec (Caisse de dépôt et placement du Québec),
[1988] 2 S.C.R. 1015; R. v. Eldorado Nuclear Ltd., [1983] 2 S.C.R. 551; Her
Majesty in right of Alberta v. Canadian Transport Commission, [1978] 1
S.C.R. 61; R. v. Ouellette, [1980] 1 S.C.R. 568; In Re Provincial
Fisheries (1896), 26 S.C.R. 444; Flewelling v. Johnston (1921), 59
D.L.R. 419; Orr Ewing v. Colquhoun (1877), 2 App. Cas. 839; Attorney‑General
v. Johnson (1819), 2 Wils. Ch. 87, 37 E.R. 240; Wood v. Esson
(1884), 9 S.C.R. 239; Reference re Waters and Water‑Powers, [1929]
S.C.R. 200; The Queen v. Fisher (1891), 2 Ex. C.R. 365; Queddy River
Driving Boom Co. v. Davidson (1883), 10 S.C.R. 222; Whitbread v. Walley,
[1990] 3 S.C.R. 1273; Fowler v. The Queen, [1980] 2 S.C.R. 213; Northwest
Falling Contractors Ltd. v. The Queen, [1980] 2 S.C.R. 292; Murphyores
Incorporated Pty. Ltd. v. Commonwealth of Australia (1976), 136 C.L.R. 1; Devine
v. Quebec (Attorney General), [1988] 2 S.C.R. 790; Jones v. Attorney
General of New Brunswick, [1975] 2 S.C.R. 182; Knox Contracting Ltd. v.
Canada, [1990] 2 S.C.R. 338; Canadian National Railway Co. v. Courtois,
[1988] 1 S.C.R. 868; Polylok Corp. v. Montreal Fast Print (1975) Ltd., [1984]
1 F.C. 713; Charles Osenton & Co. v. Johnston, [1942] A.C. 130; Harelkin
v. University of Regina, [1979] 2 S.C.R. 561; Friends of the Oldman
River Society v. Alberta (Minister of the Environment) (1987), 85 A.R. 321;
Friends of Oldman River Society v. Alberta (Minister of the Environment)
(1988), 89 A.R. 339; Friends of the Old Man River Society v. Energy
Resources Conservation Board (Alta.) (1988), 89 A.R. 280; Champion v.
City of Vancouver, [1918] 1 W.W.R. 216; Isherwood v. Ontario and
Minnesota Power Co. (1911), 18 O.W.R. 459.
By Stevenson J. (dissenting)
Alberta Government
Telephones v. Canada (Canadian Radio-television and Telecommunications
Commission), [1989] 2
S.C.R. 225; Province of Bombay v. Municipal Corporation of Bombay,
[1947] A.C. 58; Champion v. City of Vancouver, [1918] 1 W.W.R. 216; Harelkin
v. University of Regina, [1979] 2 S.C.R. 561; Polylok Corp. v. Montreal
Fast Print (1975) Ltd., [1984] 1 F.C. 713; P.P.G. Industries Canada Ltd.
v. Attorney General of Canada, [1976] 2 S.C.R. 739; Syndicat des
employés du commerce de Rivière-du-Loup (section Émilio Boucher, C.S.N.) v.
Turcotte, [1984] C.A. 316.
Statutes and Regulations Cited
Act
for the better protection of Navigable Streams and Rivers, S.C. 1873, c. 65.
Act
for the removal of obstructions, by wreck and like causes, in Navigable Waters
of Canada, and other purposes relative to wrecks, S.C. 1874, c. 29.
Act
respecting booms and other works constructed in navigable waters whether under
the authority of Provincial Acts or otherwise, S.C. 1883, c. 43, s. 1.
Act
respecting Bridges over navigable waters, constructed under the authority of
Provincial Acts, S.C.
1882, c. 37.
Act
respecting certain works constructed in or over Navigable Waters, R.S.C. 1886, c. 92.
Act
respecting certain works constructed in or over Navigable Waters, S.C. 1886, c. 35, ss. 1,
7.
Act
respecting the Protection of Navigable Waters, R.S.C. 1886, c. 91.
Act
respecting the protection of Navigable Waters, S.C. 1886, c. 36.
Act
to authorize the Corporation of the Town of Emerson to construct a Free
Passenger and Traffic Bridge over the Red River in the Province of Manitoba, S.C. 1880, c. 44.
Alberta Rules of Court, Alta. Reg. 390/68, r. 753.11(1) [en.
Alta. Reg. 457/87, s. 3].
Code of Civil Procedure, R.S.Q., c. C-25, art. 835.1.
Constitution
Act, 1867,
ss. 91 "preamble", 91(10), (29), 92(10)(a), 92A.
Department
of the Environment Act,
R.S.C., 1985, c. E‑10, ss. 4 , 5 , 6 .
Department
of Fisheries and Oceans Act, R.S.C. 1985, c. F‑15 .
Environmental
Assessment and Review Process Guidelines Order, SOR/84‑467, ss. 2 "initiating
department", "proponent", "proposal", 3, 4, 6, 8, 10,
12, 14, 25.
Federal Court Act, R.S.C., 1985, c. F-7, s. 28(2) .
Fisheries
Act, R.S.C., 1985,
c. F‑14, ss. 35 , 37 , 40 .
International
River Improvements Act,
R.S.C., 1985, c. I‑20 .
Interpretation
Act, R.S.C., 1985,
c. I‑21, ss. 2(1) , 17 .
Judicial Review Procedure Act, R.S.B.C. 1979, c. 209, s. 11.
Judicial Review Procedure Act, R.S.O. 1990, c. J.1, s. 5.
National
Transportation Act, 1987,
R.S.C., 1985 (3rd Supp.), c. 28, s. 3.
Navigable
Waters' Protection Act,
R.S.C. 1906, c. 115.
Navigable
Waters Protection Act,
R.S.C., 1985, c. N‑22, ss. 4 , 5 , 6 , 21 , 22 .
Railway
Act, R.S.C., 1985,
c. R‑3.
Authors Cited
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René and Louis Borgeat. Administrative Law: A Treatise, 2nd ed.,
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D. P. Environmental Assessment Law in Canada. Toronto: Emond‑Montgomery
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APPEAL from a
judgment of the Federal Court of Appeal, [1990] 2 F.C. 18, 68 D.L.R. (4th) 375,
[1991] 1 W.W.R. 352, 108 N.R. 241, 76 Alta. L.R. (2d) 289, 5 C.E.L.R. (N.S.) 1,
reversing a judgment of the Trial Division, [1990] 1 F.C. 248, [1990] 2 W.W.R.
150, 30 F.T.R. 108, 70 Alta. L.R. (2d) 289, 4 C.E.L.R. (N.S.) 137. Appeal
dismissed, with the exception that there should be no order in the nature of
mandamus directing the Minister of Fisheries and Oceans to comply with the
Guidelines Order. Stevenson J. is dissenting.
D. R. Thomas, Q.C., T. W. Wakeling
and G. D. Chipeur, for the appellant Her Majesty the Queen in right of
Alberta.
E. R. Sojonky, Q.C., B. J. Saunders
and J. de Pencier, for the appellants the Minister of Transport and the
Minister of Fisheries and Oceans.
B. A. Crane, Q.C., for the respondent.
J.‑K. Samson and A. Gingras, for the
intervener the Attorney General of Quebec.
P. H. Blanchet, for the intervener the Attorney
General for New Brunswick.
G. E. Hannon, for the intervener the Attorney
General of Manitoba.
G. H. Copley, for the intervener the Attorney
General of British Columbia.
R. G. Richards, for the intervener the Attorney General
for Saskatchewan.
B. G. Welsh, for the intervener the Attorney
General of Newfoundland.
R. A. Kasting and J. Donihee, for the
intervener the Minister of Justice of the Northwest Territories.
P. W. Hutchins, D. H. Soroka and F. S.
Gertler, for the intervener the National Indian Brotherhood/Assembly of
First Nations.
J. J. Gill, for the interveners the Dene Nation
and the Metis Association of the Northwest Territories, and the Native Council
of Canada (Alberta).
G. J. McDade and J. B. Hanebury, for the
interveners the Sierra Legal Defence Fund, the Canadian Environmental Law
Association, the Sierra Club of Western Canada, the Cultural Survival (Canada)
and the Friends of the Earth.
M. W. Mason, for the intervener the Alberta
Wilderness Association.
//La Forest//
The judgment of
Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin
and Iacobucci JJ. was delivered by
La Forest
J. -- The protection of the environment has become one of the major challenges
of our time. To respond to this challenge, governments and international
organizations have been engaged in the creation of a wide variety of
legislative schemes and administrative structures. In Canada, both the federal
and provincial governments have established Departments of the Environment,
which have been in place for about twenty years. More recently, however, it
was realized that a department of the environment was one among many other
departments, many of which pursued policies that came into conflict with its
goals. Accordingly at the federal level steps were taken to give a central
role to that department, and to expand the role of other government departments
and agencies so as to ensure that they took account of environmental concerns
in taking decisions that could have an environmental impact.
To that end, s. 6
of the Department of the Environment Act, R.S.C., 1985, c. E-10 ,
empowered the Minister for the purposes of carrying out his duties relating to
environmental quality, by order, with the approval of the Governor in Council,
to establish guidelines for use by federal departments, agencies and regulatory
bodies in carrying out their duties, functions and powers. Pursuant to this
provision the Environmental Assessment and Review Process Guidelines Order
("Guidelines Order") was established and approved in June
1984, SOR/84-467. In general terms, these guidelines require all federal
departments and agencies that have a decision-making authority for any
proposal, i.e., any initiative, undertaking or activity that may have an
environmental effect on an area of federal responsibility, to initially screen
such proposal to determine whether it may give rise to any potentially adverse
environmental effects. If a proposal could have a significant adverse effect
on the environment, provision is made for public review by an environmental
assessment panel whose members must be unbiased, free of political influence
and possessed of special knowledge and experience relevant to the technical,
environmental and social effects of the proposal.
The present case
raises the constitutional and statutory validity of the Guidelines Order
as well as its nature and applicability. These issues arise in a context where
the respondent Society, an environmental group from Alberta, by applications
for certiorari and mandamus, seeks to compel two federal departments,
the Department of Transport and the Department of Fisheries and Oceans, to
conduct a public environmental assessment pursuant to the Guidelines Order
in respect of a dam constructed on the Oldman River by the Government of
Alberta. That government had itself conducted extensive environmental studies
which took into account public views. However, since the project affects
navigable waters, fisheries, Indians and Indian lands, federal interests are
involved. Specifically, the Society argues that the Minister of Transport must
approve the project under the Navigable Waters Protection Act, R.S.C.,
1985, c. N-22 , and in doing so is required to provide for public assessment of
the project pursuant to the Guidelines Order. It also argues that the
Minister of Fisheries and Oceans has a similar duty in the performance of his
functions under the Fisheries Act, R.S.C., 1985, c. F-14 .
The case also
raises the question whether the motions judge properly exercised his discretion
in deciding whether or not to grant certiorari or mandamus. Accordingly
the material background must be set forth in some detail.
Background
The history of the
project begins in May 1958 when Alberta asked the Prairie Farm Rehabilitation
Administration ("P.F.R.A.") of the federal Department of Agriculture
to determine the feasibility of constructing a storage reservoir on the Oldman
River, at a site called Livingstone Gap. In December 1966 the P.F.R.A.
submitted its report and proposed another location, the Three Rivers site on
the Oldman River, for further study. There followed a federal-provincial water
supply study which lasted from 1966 to 1974. After this, in July 1974, the
Alberta Department of the Environment initiated an examination of water demand
and potential storage sites on the Oldman River and its tributaries, to be
conducted in two phases.
The first phase
consisted of an initial evaluation of sites in the Oldman basin for water
storage carried out by a Technical Advisory Committee comprised of
representatives from several provincial government departments including
Environment, Culture and Multiculturalism, Energy Resources Conservation Board,
Fish and Wildlife Division, Agriculture, as well as representatives from local
municipal districts and industry. The Committee's report was released on July
14, 1976 and was followed by a series of public consultations with local
authorities and other groups and individuals. The responses received were
evaluated and issues arising from them were identified for further study in the
second phase.
The second phase
began on February 4, 1977 when the Minister of the Environment announced the
creation of the Oldman River Study Management Committee consisting of six
representatives of the public and three representatives of the provincial
government. Its task was to address the issues raised by the public during the
first study, and to make recommendations concerning overall water management in
the river basin, including the incorporation of the concerns of area
residents. This it was required to do in a more comprehensive way than the
first phase by, inter alia, studying issues affecting the whole of the
river basin such as salinization, sedimentation, recreation, fish habitat and
other environmental issues. Public participation was encouraged, a series of
public meetings and public workshops was held, and oral and written submissions
were made by a variety of interest groups including Indian bands and
environmental groups. The Management Committee released its final report in
1978.
That same year, a
panel of the Environment Council of Alberta was constituted to hold public
hearings on the management of water resources within the Oldman basin. Again,
several public hearings were held throughout southern Alberta and the Council
received briefs from a wide cross-section of Albertans representing the
interests of business, agriculture, local governments, Indian bands and
others. The Council submitted its report to the Minister of the Environment in
August 1979 and recommended yet another location, the Brocket site on the
Peigan Indian Reserve, should a dam be needed.
The provincial
government then reviewed this report and the 1978 report and on August 29, 1980
announced its decision to build a dam on the Oldman River. It also stated that
the Three Rivers site was the preferred location, but added that the final
decision would be deferred until the Peigan Indian Band had an opportunity to
submit a proposal for construction at the Brocket site. In November 1983 the
Peigan Band presented a position to the Minister of the Environment describing
its expected economic compensation if the dam were to be built at the Brocket
site.
On August 8, 1984
the Premier of Alberta announced the government's decision to proceed with
construction of the dam at the Three Rivers site. Before that announcement was
made, however, the dam proposal was reviewed by the Regional Screening and
Co-ordinating Committee ("R.S.C.C."), a committee of the federal
Department of the Environment. The purpose of the R.S.C.C. was to ensure that
proposals that may affect federal areas of concern are subjected to
environmental review, and it actively followed the progress of the dam proposal
until it was decided that the dam would not be built on Indian land.
Following the Three
Rivers site announcement, Alberta commenced the design of the dam and launched
an "Environmental Mitigation/Opportunities Action Plan" which spawned
further environmental studies and public meetings. The provincial Department
of the Environment opened a project information office close to the Three
Rivers site to answer public enquiries. Several subcommittees were established
by the Municipal District of Pincher Creek to provide input to the Alberta
Department of the Environment on areas of local concern, including land use,
fish and wildlife, recreation, and agriculture. In addition, the provincial
Minister of the Environment ordered the appointment of a Local Advisory
Committee to advise the Minister on such matters as road relocation, fish and
wildlife concerns, and recreational opportunities. After gathering information
from public meetings, the Committee submitted a report to the Minister with
recommendations concerning fisheries, wildlife, historical resources,
agriculture, recreation and transportation systems.
In 1987 the federal
R.S.C.C. once again became involved in the project at the request of the
Department of Indian and Northern Affairs to study its impact on federal
interests, particularly on the Peigan Indian Reserve located approximately 12 kilometres
downstream from the dam site. Alberta had already provided the Peigans with
funding to conduct an independent study of the project's effect on the Reserve
and its inhabitants. The Peigan report was submitted to the provincial
Minister of the Environment in February 1987. It addressed such subjects as
irrigation, surface and ground water considerations, dam safety, fisheries
assessment, and spiritual and cultural assessment. The report prepared at the
behest of the R.S.C.C. in July 1987 concluded that the project's effects on the
Reserve would be either favourable or mitigable, but did note the possibility
of negative environmental impacts affecting the Reserve ‑‑ i.e.,
increased dust storms, increased mercury levels in fish and the extinction of
flood plain cottonwood forests.
I come now to a
step of prime importance in this action. On March 10, 1986 the Alberta
Department of the Environment applied to the federal Minister of Transport for
approval of the work under s. 5 of the Navigable Waters Protection Act .
That provision provides that no work is to be built in navigable waters without
the prior approval of the Minister. In assessing the application, the Minister
considered the project's effect on marine navigation and approved the application
on September 18, 1987 subject to certain conditions relating to marine
navigation. I underline, however, that he did not subject the application to
an assessment under the Guidelines Order. As we shall see, whether he
should have done so raises several of the major issues in this appeal.
It is not until
after this transpired that the respondent Society came into the picture. The
Society was incorporated on September 8, 1987 to oppose the project and became
aware of the approval granted by the Minister of Transport on February 16,
1988. However, earlier efforts to check the progress of the development had
been made by certain individuals who later became members of the Society on its
formation. Thus in the summer of 1987 the Southern Alberta Environmental Group
had written a letter to the Minister of Fisheries and Oceans asking that an
initial assessment be conducted under the Guidelines Order. The request
was refused for the reason that the potential problems were being addressed and
because of the "long-standing administrative arrangements that are in
place for the management of fisheries in Alberta". This, like the
Minister of Transport's action described earlier, plays an important part in
the legal arguments that were subsequently made. Another early effort came on
December 3, 1987 when the respondent Society wrote to the Minister of the
Environment asking that the matter be subjected to the Guidelines Order
but again the request was declined, this time principally on the grounds that
the dam project fell primarily within provincial jurisdiction and that
Environment Canada was satisfied that Alberta's proposed mitigation plan would
remedy any detrimental effects on the fisheries. The Society tried once again
to have the Minister of the Environment invoke the Guidelines Order on
February 22, 1988, but was turned down in June 1988 for the same jurisdictional
reason.
The Society was
also busy on the provincial front to have the project stopped. On October 26,
1987 it brought an application in the Court of Queen's Bench of Alberta to quash
an interim licence granted under the Water Resources Act, R.S.A. 1980,
c. W-5. The licence was, in fact, quashed by order on December 8, 1987. A
second interim licence was granted on February 5, 1988 and the Society applied
in the Court of Queen's Bench to have that one quashed as well. However, that
application was dismissed on April 21, 1988. The Society also asked the
Alberta Energy Resources Conservation Board to conduct a public hearing under
the Hydro and Electric Energy Act, R.S.A. 1980, c. H-13, but its request
was refused. That decision was affirmed by the Alberta Court of Appeal. In
August 1988 the vice-president of the Society swore an information before a
justice of the peace alleging that an offence had been committed against the federal
Fisheries Act but the Attorney General for Alberta stayed the
proceedings.
The contract for
construction of the dam was awarded in February 1988, and as of March 31, 1989
the dam was 40 percent complete. The present action was commenced on April 21,
1989 in the Trial Division of the Federal Court, [1990] 1 F.C. 248. In the
action, the Society sought an order in the nature of certiorari to quash
the approval granted by the Minister of Transport as well as an order in the
nature of mandamus requiring the Minister of Transport and the Minister of
Fisheries and Oceans to comply with the Guidelines Order. Jerome A.C.J.
dismissed the application but the Society's appeal to the Federal Court of
Appeal was successful, [1990] 2 F.C. 18. This Court granted leave to appeal on
September 13, 1990, [1990] 2 S.C.R. x.
Legislation
Before going
further, it will be useful to set forth the major parts of the relevant
legislation. The Department of the Environment Act reads in relevant part:
4. (1) The powers, duties and
functions of the Minister extend to and include all matters over which
Parliament has jurisdiction, not by law assigned to any other department, board
or agency of the Government of Canada, relating to
(a)
the preservation and enhancement of the quality of the natural environment,
including water, air and soil quality;
.
. .
5. The Minister, in exercising his
powers and carrying out his duties and functions under section 4, shall
(a)
initiate, recommend and undertake programs, and coordinate programs of the
Government of Canada that are designed
(i)
to promote the establishment or adoption of objectives or standards relating to
environmental quality, or to control pollution,
(ii)
to ensure that new federal projects, programs and activities are assessed early
in the planning process for potential adverse effects on the quality of the
natural environment and that a further review is carried out of those projects,
programs, and activities that are found to have probable significant adverse
effects, and the results thereof taken into account, and
(iii)
to provide to Canadians environmental information in the public interest;
(b)
promote and encourage the institution of practices and conduct leading to the
better preservation and enhancement of environmental quality, and cooperate
with provincial governments or agencies thereof, or any bodies, organization or
persons, in any programs having similar objects; and
(c)
advise the heads of departments, boards and agencies of the Government of
Canada on all matters pertaining to the preservation and enhancement of the
quality of the natural environment.
6. For the purposes of carrying out his
duties and functions related to environmental quality, the Minister may, by
order, with the approval of the Governor in Council, establish guidelines for
use by departments, boards and agencies of the Government of Canada and, where
appropriate, by corporations named in Schedule III to the Financial
Administration Act and regulatory bodies in the exercise of their powers
and the carrying out of their duties and functions.
Pursuant to s. 6 , the Minister, by
order, with the approval of the Governor in Council, established the Guidelines
Order. It reads in relevant part as follows:
2. In
these Guidelines,
.
. .
"initiating
department" means any department that is, on behalf of the Government of
Canada, the decision making authority for a proposal;
.
. .
"proponent"
means the organization or the initiating department intending to undertake a
proposal;
"proposal"
includes any initiative, undertaking or activity for which the Government of
Canada has a decision making responsibility.
3. The
Process shall be a self assessment process under which the initiating
department shall, as early in the planning process as possible and before
irrevocable decisions are taken, ensure that the environmental implications of
all proposals for which it is the decision making authority are fully
considered and where the implications are significant, refer the proposal to
the Minister for public review by a Panel.
.
. .
6.
These Guidelines shall apply to any proposal
(a)
that is to be undertaken directly by an initiating department;
(b)
that may have an environmental effect on an area of federal responsibility;
(c)
for which the Government of Canada makes a financial commitment; or
(d)
that is located on lands, including the offshore, that are administered by the
Government of Canada.
Reference must also
be made to s. 5 of the Navigable Waters Protection Act which reads as follows:
5. (1) No work shall be built or placed
in, on, over, under, through or across any navigable water unless
(a)
the work and the site and plans thereof have been approved by the Minister, on
such terms and conditions as the Minister deems fit, prior to commencement of
construction;
(b)
the construction of the work is commenced within six months and completed
within three years after the approval referred to in paragraph (a) or
within such further period as the Minister may fix; and
(c)
the work is built, placed and maintained in accordance with the plans, the
regulations and the terms and conditions set out in the approval referred to in
paragraph (a).
Judicial History
Trial Division
Jerome A.C.J.
identified the four main issues in the action as follows: (1) the standing of
the applicant to bring the application; (2) whether the federal Ministers named
were bound to invoke the Guidelines Order; (3) the applicability of Canadian
Wildlife Federation Inc. v. Canada (Minister of the Environment), [1989] 3
F.C. 309 (T.D.), aff'd (1989), 99 N.R. 72 (F.C.A.), to the facts of this case;
and (4) whether he should exercise his discretion to grant the remedies
sought. He dealt with the first issue by simply assuming, without deciding,
that the Society had the requisite standing to bring the application.
With respect to the
Guidelines Order, Jerome A.C.J. first held that the Minister of
Transport was not bound to apply it in assessing the application under the Navigable
Waters Protection Act , and indeed he found that the Minister would have
exceeded his jurisdiction had he invoked the Guidelines Order. The
reasoning was that the Act sets out no requirement for environmental review but
instead confines the Minister to consider only factors affecting marine
navigation. Similarly, the Minister of Fisheries and Oceans was without
jurisdiction to apply the Guidelines Order because his department had
not undertaken a project. In the alternative, if the Guidelines Order
could be said to apply to provincially initiated projects, it would only apply
where a federal department received a "proposal" requiring its
approval. As the Fisheries Act did not contemplate an approval
procedure for a permit or licence, the Guidelines Order did not apply.
Nor were environmental factors raised under either the Fisheries Act or
the Department of Fisheries and Oceans Act, R.S.C., 1985, c. F-15 .
Jerome A.C.J. then
turned to the Canadian Wildlife case. In that case, which I shall
discuss with more particularity later, the Federal Court of Appeal had held
that before the project in question there, the Rafferty-Alameda Dam, could be
undertaken, it was necessary to obtain the approval of the Minister of the
Environment. Jerome A.C.J. distinguished that case on two grounds. First, the
case involved authorization under the International River Improvements Act,
R.S.C., 1985, c. I-20 , which required prior approval from the Minister
of the Environment, as opposed to the instant case where approval may be
granted under the Navigable Waters Protection Act after the
project is commenced. Second, the Rafferty-Alameda project involved the
Minister of the Environment whose statutory duties under the Department of
the Environment Act included consideration of environmental factors.
Lastly, on the
issue of the discretionary nature of the relief sought, Jerome A.C.J. found
against the Society because of delay and the unnecessary duplication that would
result. Between the grant of approval on September 18, 1987 and the
commencement of this action on April 21, 1989, he noted, no steps had been
taken to quash the approval and compel the application of the Guidelines
Order. By the time the action was started the project was 40 percent complete.
Furthermore, Alberta had already conducted an extensive environmental review of
the project and had "identified every possible area of environmental
social concern and ha[d] given every citizen, including the members of the
applicant organization, ample opportunity to voice their views and to mobilize
their opposition" (pp. 273-74). That being so, applying the Guidelines
Order would be needlessly repetitive. Accordingly, he dismissed the
application.
The Society then
launched an appeal to the Federal Court of Appeal.
Court of Appeal
Stone J.A., writing
for the court, began by noting that the Oldman River Dam may have an
environmental effect on at least three areas of federal responsibility, namely
fisheries, Indians and Indian lands. He disagreed with the view that the
Minister of Transport was restricted to considering matters affecting marine
navigation only. He found that the dam project fell within the ambit of the Guidelines
Order and that the Department of Transport was an "initiating
department" for the purposes of the Guidelines Order thereby
engaging the application of the Guidelines Order. Stone J.A. referred
to the Canadian Wildlife case for authority that the Guidelines Order
was a law of general application, and as such imposed on the Minister a
"superadded" duty over and above his other statutory powers. Nor was
there any conflict between the requirement for an initial assessment "as
early in the planning process as possible and before irrevocable decisions are
taken" in the Guidelines Order, and the remedial power under s. 6
of the Navigable Waters Protection Act to grant approval after the
commencement of construction. That power, he held, is an exception to the
general rule in s. 5 of the Act requiring approval prior to construction, and
in exercising his discretion to grant approval after commencement, the Minister
is not precluded from applying the Guidelines Order.
Stone J.A. next
turned to the question whether the Minister of Fisheries and Oceans was
compelled to apply the Guidelines Order. He first considered whether
the Minister had been seized with a "proposal" as defined in the Act
so as to make him subject to the Guidelines Order. He concluded in the
affirmative. "Proposal", in Stone J.A.'s view, is there used in a
far broader sense than its ordinary meaning. In particular it is not limited
to something in the nature of an application. An application is but one way in
which an "initiative, undertaking or activity" can come to the
attention of the Minister but it is not the only way. Another way is for an
individual to request that the Minister take action under the appropriate
statute, as was done here, and since the Minister was aware of an initiative
within a federal area of responsibility, there was a "proposal" as
defined in the Guidelines Order. Moreover, the Minister's decision not
to intervene constituted him as a "decision making authority" and
thus triggered his obligations under the Guidelines Order.
Stone J.A. then
dealt with the issue of discretion and reviewed the relevant principles which
apply to an appellate court interfering with a trial judge's exercise of
discretion. Shortly put, such interference is not warranted absent a finding
that the trial judge proceeded on an erroneous principle or a misapprehension
of the facts, or where the order is not just and reasonable. Parenthetically,
and by way of footnote, Stone J.A. was of the view that refusing to grant
prerogative relief on the ground of delay was not "well-founded in
principle", because the delay was explained by the facts, especially that
the respondent did not become aware of the approval granted by the Minister of
Transport until only two months before the action was commenced. Further, the
respondent was otherwise engaged in challenging the provincial licence issued,
and it was not until the eve of this action that the Trial Division of the
Federal Court handed down its decision in the Canadian Wildlife case
holding that the Guidelines Order was binding on the Minister of the
Environment.
As to the
unnecessary duplication that could result from granting the relief sought,
Stone J.A. found that the provincial environmental review process was deficient
in two respects when contrasted with the environmental impact assessment
required by the Guidelines Order. First, the provincial legislation did
not place the same emphasis on public participation in the process as the Guidelines
Order. Secondly, there was nothing in the provincial legislation requiring
the same degree of independence of the review panel.
The last issue
addressed by Stone J.A. that has been raised in this appeal is whether the Navigable
Waters Protection Act binds the Crown in right of Alberta. Referring to
this Court's decision in Alberta Government Telephones v. Canada (Canadian
Radio-television and Telecommunications Commission), [1989] 2 S.C.R. 225,
he held that the Act, especially s. 4 when read in context, evidenced an
intention to bind the Crown. Furthermore, the purpose of the Act would be
wholly frustrated if the Crown were not bound, it being well known that many
obstructions placed in navigable waters are sponsored by government.
As a result the
appeal was allowed, the approval was quashed and the Ministers of Transport and
Fisheries and Oceans ordered to comply with the Guidelines Order.
The Appeal to this Court
As earlier noted,
leave to appeal to this Court was sought and granted, and the Chief Justice
stated the following constitutional question on October 29, 1990:
Is
the Environmental Assessment and Review Process Guidelines Order,
SOR/84-467, so broad as to offend ss. 92 and 92A of the Constitution Act,
1867 and therefore constitutionally inapplicable to the Oldman River Dam
owned by the appellant, Her Majesty the Queen in right of Alberta?
Interventions were then filed by the
Attorneys General of Quebec, New Brunswick, Manitoba, British Columbia,
Saskatchewan and Newfoundland and the Minister of Justice of the Northwest
Territories, and a number of environmental groups, namely the Sierra Legal
Defence Fund, the Canadian Environmental Law Association, the Sierra Club of
Western Canada, the Cultural Survival (Canada), Friends of the Earth and the
Alberta Wilderness Association, as well as several Indian organizations,
namely, the National Indian Brotherhood and the Assembly of First Nations, the
Dene Nation and the Metis Association of the Northwest Territories, and the
Native Council of Canada (Alberta).
Issues
The many issues
arising in this appeal have been variously ordered by the parties in their
written submissions, but I prefer to deal with them as follows:
1. Statutory Validity of the Guidelines
Order
a.Is
the Guidelines Order authorized by s. 6 of the Department of the
Environment Act ?
b.Is
the Guidelines Order inconsistent with the Navigable Waters
Protection Act and the Fisheries Act ?
2. Obligation of the Ministers to
Comply with the Guidelines Order
a.Does
s. 4(1) of the Department of the Environment Act preclude the
application of the Guidelines Order to the Ministers?
b.Does
the Guidelines Order apply to projects other than new federal projects?
c.Are
the Ministers "initiating departments"?
d.Is
the Navigable Waters Protection Act binding on the Crown in right of
Alberta?
3. Constitutional Question
Is
the Guidelines Order so broad as to offend ss. 92 and 92A of the Constitution
Act, 1867 and therefore constitutionally inapplicable to the Oldman River
Dam owned by Alberta?
4. Discretion
Did
the Federal Court of Appeal err in interfering with the discretion of Jerome
A.C.J. whereby he declined to grant the remedies sought?
Statutory Validity of the Guidelines
Order
Is
the Guidelines Order Authorized by s. 6 of the Department of the
Environment Act ?
The appellant
Alberta argued that the Guidelines Order is ultra vires because
it does not fall within the scope of the powers conferred under its enabling
legislation, s. 6 of the Department of the Environment Act . For
convenience, I shall repeat this provision:
6. For the purposes of carrying out
his duties and functions related to environmental quality, the Minister may, by
order, with the approval of the Governor in Council, establish guidelines for
use by departments, boards and agencies of the Government of Canada and, where
appropriate, by corporations named in Schedule III to the Financial
Administration Act and regulatory bodies in the exercise of their powers
and the carrying out of their duties and functions.
The principal
ground on which it is contended that the Guidelines Order is invalid is
that by using the term "guidelines" s. 6 does not empower the
enactment of mandatory subordinate legislation, but instead only contemplates a
purely administrative directive not intended to be legally binding on those to
whom it is addressed. There is of course no doubt that the power to make
subordinate legislation must be found within the four corners of its enabling
statute, and it is there that one must turn to determine if the Act can support
delegated legislation of a mandatory nature, the non-compliance with which can
found prerogative relief.
This issue was
addressed in Canadian Wildlife, supra. In that case the
applicant challenged the issuance of a licence by the Minister of the
Environment under the International River Improvements Act and sought an
order in the nature of certiorari quashing the licence, and mandamus
requiring the Minister to comply with the Guidelines Order. In the
Trial Division, Cullen J. found that the Guidelines Order is an
enactment or regulation as defined in s. 2(1) of the Interpretation Act,
R.S.C., 1985, c. I-21 , which provides:
2. (1) In this Act,
.
. .
"enactment"
means an Act or regulation or any portion of an Act or regulation;
.
. .
"regulation"
includes an order, regulation, rule, rule of court, form, tariff of costs or
fees, letters patent, commission, warrant, proclamation, by-law, resolution or
other instrument issued, made or established
(a)
in the execution of a power conferred by or under the authority of an Act, or
(b)
by or under the authority of the Governor in Council;
Cullen J. then concluded, at p. 322:
Therefore,
EARP Guidelines Order is not a mere description of a policy or programme; it
may create rights which may be enforceable by way of mandamus (see Young
v. Minister of Employment and Immigration (1987), 8 F.T.R. 218 (F.C.T.D.)
at page 221).
In the Court of
Appeal, Hugessen J.A. relied on both the English and French versions of s. 6 of
the Department of the Environment Act to find that it was capable of
supporting a power to enact binding subordinate legislation. "The word
`guidelines'", he stated, "in itself is neutral in this
regard." Turning then, to the question whether the Guidelines were so
written as to make them mandatory, he observed, at pp. 73-74:
Finally,
there is nothing in the text of the Guidelines themselves which indicates that
they are not mandatory; on the contrary, the repeated use of the word
"shall" . . . throughout, and particularly in ss. 6 , 13 and 20 ,
indicates a clear intention that the Guidelines shall bind all those to whom
they are addressed, including the Minister of the Environment himself.
I would agree with him on both
points. The first question depends on legislative intent. The guidelines
under the Act reviewed by this Court in the Reference re Anti-Inflation Act,
[1976] 2 S.C.R. 373, for example, were clearly mandatory in nature. I am
satisfied that s. 6 of the Act can sustain the enactment of mandatory
guidelines, and that the Guidelines as framed are mandatory in nature.
There is nothing
here to indicate that the Guidelines Order is merely another form of
administrative directive which cannot confer enforceable rights, as was the
case in Martineau v. Matsqui Institution Inmate Disciplinary Board, [1978]
1 S.C.R. 118. In Martineau the issue was whether a directive concerning
the discipline of inmates, authorized by s. 29(3) of the Penitentiary Act,
R.S.C. 1970, c. P-6, was "law" within the wording of s. 28 of the Federal
Court Act , S.C. 1970-71-72, c. 1, and thus gave the Federal Court
jurisdiction to review a disciplinary order made by the Board. This Court, by
majority, held that the directive was not "law" within s. 28 , Pigeon
J. noting, at p. 129:
It
is significant that there is no provision for penalty and, while they are
authorized by statute, they are clearly of an administrative, not a
legislative, nature. It is not in any legislative capacity that the
Commissioner is authorized to issue directives but in his administrative
capacity. I have no doubt that he would have the power of doing it by
virtue of his authority without express legislative enactment. [Emphasis
added.]
There is little doubt that ordinarily
a Minister has an implicit power to issue directives to implement the
administration of a statute for which he is responsible; see for example Maple
Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2. It is also
clear that a violation of such directives will only give rise to administrative
rather than judicial sanction because they do not have the full force of law.
Here though we are
dealing with a directive that is not merely authorized by statute, but one that
is required to be formally enacted by "order", and promulgated under
s. 6 of the Department of the Environment Act , with the approval of the
Governor in Council. That is in striking contrast with the usual internal
ministerial policy guidelines intended for the control of public servants under
the minister's authority. To my mind this is a vital distinction. Its effect
is thus described by R. Dussault and L. Borgeat in Administrative Law
(2nd ed. 1985), vol. 1, at pp. 338-39:
When
a government considers it necessary to regulate a situation through norms of
behaviour, it may have a law passed or make a regulation itself, or act
administratively by means of directives. In the first case, it is bound by the
formalities surrounding the legislative or regulatory process; conversely, it
knows that once these formalities have been observed, the new norms will come
within a framework of "law" and that by virtue of the Rule of Law
they will be applied by the courts. In the second case, that is, when it
chooses to proceed by way of directives, whether or not they are authorized by
legislation, it opts instead for a less formalized means based upon
hierarchical authority, to which the courts do not have to ensure obedience.
To confer upon a directive the force of a regulation is to exceed legislative
intent. It is said that the Legislature does not speak without a purpose; its
implicit wish to leave a situation outside the strict framework of
"law" must be respected.
The word "guidelines" cannot
be construed in isolation; s. 6 must be read as a whole. When so read it
becomes clear that Parliament has elected to adopt a regulatory scheme that is
"law", and thus amenable to enforcement through prerogative relief.
Alberta also argues
that the Guidelines Order is ultra vires on the ground that the
scope of the subject matter covered in the delegated legislation goes far
beyond that authorized by the Department of the Environment Act . More
specifically, it contends that the authority to establish guidelines for the
purposes of carrying out the Minister's duties related to "environmental
quality" does not comprehend a process of environmental impact assessment,
such as found in the Guidelines Order, in which the decision maker is
required to take into account socio-economic considerations. Rather, it is
argued, the Act only permits the enactment of delegated legislation that is
strictly concerned with matters relating to environmental quality as understood
in a physical sense.
I cannot accept
that the concept of environmental quality is confined to the biophysical
environment alone; such an interpretation is unduly myopic and contrary to the
generally held view that the "environment" is a diffuse subject
matter; see R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401.
The point was made by the Canadian Council of Resource and Environment
Ministers, following the "Brundtland Report" of the World Commission
on Environment and Development, in the Report of the National Task Force on
Environment and Economy, September 24, 1987, at p. 2:
Our
recommendations reflect the principles that we hold in common with the World
Commission on Environment and Development (WCED). These include the
fundamental belief that environmental and economic planning cannot proceed in
separate spheres. Long-term economic growth depends on a healthy environment.
It also affects the environment in many ways. Ensuring environmentally sound
and sustainable economic development requires the technology and wealth that is
generated by continued economic growth. Economic and environmental planning
and management must therefore be integrated.
Surely the potential consequences for
a community's livelihood, health and other social matters from environmental
change are integral to decision-making on matters affecting environmental
quality, subject, of course, to the constitutional imperatives, an issue I will
address later.
I have therefore
concluded that the Guidelines Order has been validly enacted pursuant to
the Department of the Environment Act , and is mandatory in nature.
Inconsistency
With the Navigable Waters Protection Act and Fisheries Act
The appellants
Alberta and the federal Ministers argue that the Guidelines Order is
inconsistent with and therefore must yield to the requirements of the Navigable
Waters Protection Act for obtaining an approval under s. 5 of that Act.
Specifically, they say, the Minister of Transport is confined by the Act to a
consideration of matters pertaining to marine navigation alone, and that the Guidelines
Order cannot displace or add to the criteria mentioned in the Act. Alberta
also submits that the Guidelines Order is similarly inconsistent with
the Fisheries Act , but for the reasons set out later I do not find it
necessary to address that issue.
The basic principles
of law are not in doubt. Just as subordinate legislation cannot conflict with
its parent legislation (Belanger v. The King (1916), 54 S.C.R. 265), so
too it cannot conflict with other Acts of Parliament (R. & W. Paul, Ltd.
v. Wheat Commission, [1937] A.C. 139 (H.L.)), unless a statute so
authorizes (Re George Edwin Gray (1918), 57 S.C.R. 150). Ordinarily,
then, an Act of Parliament must prevail over inconsistent or conflicting
subordinate legislation. However, as a matter of construction a court will,
where possible, prefer an interpretation that permits reconciliation of the
two. "Inconsistency" in this context refers to a situation where two
legislative enactments cannot stand together; see Daniels v. White,
[1968] S.C.R. 517. The rule in that case was stated in respect of two
inconsistent statutes where one was deemed to repeal the other by virtue of the
inconsistency. However, the underlying rationale is the same as where
subordinate legislation is said to be inconsistent with another Act of
Parliament ‑‑ there is a presumption that the legislature did not
intend to make or empower the making of contradictory enactments. There is
also some doctrinal similarity to the principle of paramountcy in
constitutional division of powers cases where inconsistency has also been
defined in terms of contradiction ‑‑ i.e., "compliance with
one law involves breach of the other"; see Smith v. The Queen,
[1960] S.C.R. 776, at p. 800.
The inconsistency
contended for is that the Navigable Waters Protection Act implicitly
precludes the Minister of Transport from taking into consideration any matters
other than marine navigation in exercising his power of approval under s. 5 of
the Act, whereas the Guidelines Order requires, at a minimum, an initial
environmental impact assessment. The appellant Ministers concede that there is
no explicit prohibition against his taking into account environmental factors,
but argue that the focus and scheme of the Act limit him to considering nothing
other than the potential effects on marine navigation. If the appellants are
correct, it seems to me that the Minister would approve of very few works
because several of the "works" falling within the ambit of s. 5 do
not assist navigation at all, but by their very nature interfere with, or
impede navigation, for example bridges, booms, dams and the like. If the
significance of the impact on marine navigation were the sole criterion, it is
difficult to conceive of a dam of this sort ever being approved. It is clear,
then, that the Minister must factor several elements into any cost-benefit
analysis to determine if a substantial interference with navigation is
warranted in the circumstances.
It is likely that
the Minister of Transport in exercising his functions under s. 5 always did
take into account the environmental impact of a work, at least as regards other
federal areas of jurisdiction, such as Indians or Indian land. However that
may be, the Guidelines Order now formally mandates him to do so, and I
see nothing in this that is inconsistent with his duties under s. 5 . As Stone
J.A. put it in the Court of Appeal, it created a duty which is
"superadded" to any other statutory power residing in him which can
stand with that power. In my view the Minister's duty under the Guidelines
Order is indeed supplemental to his responsibility under the Navigable
Waters Protection Act , and he cannot resort to an excessively narrow
interpretation of his existing statutory powers to avoid compliance with the Guidelines
Order.
Section 8 of the Guidelines
Order already recognizes that the environmental impact assessment
thereunder will not apply where it would conflict with other statutory
provisions. It reads:
8. Where a board or an agency of the
Government of Canada or a regulatory body has a regulatory function in respect
of a proposal, these Guidelines shall apply to that board, agency or body only
if there is no legal impediment to or duplication resulting from the
application of these Guidelines.
A broad interpretation of the application
of the Guidelines Order is consistent with the objectives stated in both
the Order itself and its parent legislation ‑‑ to make
environmental impact assessment an essential component of federal
decision-making. A similar approach has been followed in the United States
with respect to their National Environmental Policy Act. As Pratt J.
put it in Environmental Defense Fund, Inc. v. Mathews, 410 F.Supp. 336
(D.D.C. 1976), at p. 337:
NEPA
does not supersede other statutory duties, but, to the extent that it is
reconcilable with those duties, it supplements them. Full compliance with its
requirements cannot be avoided unless such compliance directly conflicts with
other existing statutory duties.
To hold otherwise would, in my view,
set at naught the legislative scheme for the protection of the environment
envisaged by Parliament in enacting the Department of the Environment Act ,
and in particular s. 6 .
Nor do I think s. 3
of the Guidelines Order, which requires that the assessment process be
initiated "as early in the planning process as possible and before
irrevocable decisions are taken", is in any way inconsistent with s. 6 of
the Navigable Waters Protection Act . Section 6 is largely concerned
with empowering the Minister to remove or take other remedial action in
relation to works constructed without complying with s. 5 , but the appellants
draw attention to s. 6(4) which permits the Minister to approve of a work that
has already been built. On this point, I am in complete agreement with Stone J.A.
where, at p. 41, he stated:
As
I see it, the provisions of section 6 of that Act pertain to the remedial
powers of the Minister in deciding what action he might take in the event of a
failure to secure a section 5 approval prior to the commencement of
construction. Subsection (4) thereof is an exception to the general rule, is
entirely discretionary and clearly subservient to the fundamental requirement
set out in paragraph 5(1)(a) that an approval be obtained prior to the
commencement of construction. Nor can I see anything in the Guidelines Order
that would prevent the Minister from complying with its terms to the fullest
extent possible in exercising his discretion under subsection 6(4) of the Navigable
Waters Protection Act . That being so, I can find no inconsistency or
conflict between these two pieces of federal legislation.
It is thus clear to
me that the Guidelines Order not only falls within the powers given by
the Department of the Environment Act , but is completely consistent with
the Navigable Waters Protection Act . It therefore falls to be decided
whether the order applies in the instant case.
Obligation of the Ministers to Comply
with the Guidelines Order
Section
4(1) of the Department of the Environment Act
Section 4(1) (a)
of the Department of the Environment Act reads as follows:
4. (1) The powers, duties and functions
of the Minister extend to and include all matters over which Parliament has
jurisdiction, not by law assigned to any other department, board or agency of
the Government of Canada, relating to
(a)
the preservation and enhancement of the quality of the natural environment,
including water, air and soil quality;
Alberta contends that by restricting
the Minister of the Environment's jurisdiction to "matters over which
Parliament has jurisdiction, not by law assigned to any other department, board
or agency of the Government of Canada" (emphasis added), s. 4 has rendered
the Guidelines Order inoperative in the present case. Because the Fisheries
Act regulates the management of Canada's fisheries resource, it is argued,
the Minister of the Environment's jurisdiction has been ousted in respect of
all matters affecting fish habitat. This argument can be dealt with shortly.
Its premise entirely misapprehends the "matters" covered by the
respective pieces of legislation. The Guidelines Order establishes an
environmental assessment process for use by all federal departments in the
exercise of their powers and the performance of their duties and functions,
whereas the Fisheries Act embraces the substantive matter of protecting
fish and fish habitat. There is, of course, a connection between the two, but
the crucial difference is that one is fundamentally procedural while the other
is substantive in nature. Again, the approach suggested by the appellants
would make the power given by s. 6 of the Department of the Environment Act
virtually meaningless.
New
Federal Projects
Alberta next takes
issue with the purported application of the Guidelines Order to
proposals other than "new federal projects, programs and activities"
mentioned in s. 5 (a)(ii) of the Department of the Environment Act .
That provision reads:
5. The Minister, in exercising his
powers and carrying out his duties and functions under section 4, shall
(a)
initiate, recommend and undertake programs, and coordinate programs of the
Government of Canada that are designed
.
. .
(ii)
to ensure that new federal projects, programs and activities are assessed early
in the planning process for potential adverse effects on the quality of the
natural environment and that a further review is carried out of those projects,
programs, and activities that are found to have probable significant adverse
effects, and the results thereof taken into account . . . . [Emphasis added.]
The wording of that subparagraph, it
is argued, is determinative of Parliament's intention to restrict the scope of
the Guidelines Order to new federal projects, and consequently cannot
apply to any project that is provincially sponsored. Here again, as I see it,
Alberta seeks to place an unduly narrow construction on the extent of the
Minister of the Environment's duties and functions under s. 6 of the Act. The Guidelines
Order was enacted under s. 6 , not s. 5 , and the powers, duties and
functions of the Minister there referred to encompass matters found in s. 4 as
well as s. 5 , including, inter alia, "the preservation and
enhancement of the quality of the natural environment" (s. 4(1) (a)).
Section 6 is thus not confined to new projects, programs and activities.
Section 5 merely defines the Minister's minimum duties under s. 4. Section 4
is much broader. It is there that one finds the true range of the Minister's
duties and functions related to environmental quality for which guidelines may
be established.
Initiating
Departments
Central to the
arguments of the appellant Ministers is whether the Guidelines Order by
its own terms has any application to the Oldman River Dam project. That
question was not addressed by Alberta, and the Ministers concede that the
Minister of Transport is an "initiating" department but argue that
the Guidelines Order is inconsistent with and thus cannot stand with the
Navigable Waters Protection Act . I have found the two enactments
compatible for reasons already given, so there remains no issue between the
parties that the provisions of the Guidelines Order govern the Minister
of Transport. For the Minister of Fisheries and Oceans, it is argued that he
is not bound to invoke the Guidelines Order in the instant case because
he does not have "decision making authority" pursuant to the relevant
provisions of the Fisheries Act . Because the matter of the Guidelines
Order's application was the subject of profound disagreement in the courts
below, I feel that it is necessary to first consider the terms of the Guidelines
Order to construe its general application provisions.
The starting point,
in my view, must be s. 6 of the Guidelines Order which sets out its
governing principle of application. It bears repeating here:
6.
These Guidelines shall apply to any proposal
(a)
that is to be undertaken directly by an initiating department;
(b)
that may have an environmental effect on an area of federal responsibility;
(c)
for which the Government of Canada makes a financial commitment; or
(d)
that is located on lands, including the offshore, that are administered by the
Government of Canada. [Emphasis added.]
There can be no serious doubt that the
Oldman River Dam project may have an environmental effect on an area of federal
responsibility, including the matters falling within s. 91 of the Constitution
Act, 1867 already identified ‑‑ i.e., navigation, Indians,
lands reserved for the Indians and inland fisheries. Thus, the Guidelines
Order applies if the project here is a "proposal" within the
meaning of s. 2 , which defines that term as follows:
2. In
these Guidelines,
.
. .
"proposal"
includes any initiative, undertaking or activity for which the Government of
Canada has a decision making responsibility. [Emphasis added.]
If there is such a
proposal, the Guidelines Order under ss. 3 and 10 allocates
responsibility for the application of the process to the "initiating
department" to ensure that it fully considers the environmental
implications of a proposal properly before it and subjects such proposal to an
initial assessment to determine whether there may be any potentially adverse
environmental effects from it. The entity designated as an "initiating
department" is also defined by s. 2. It provides that an:
2.
In these Guidelines,
.
. .
"initiating
department" means any department that is, on behalf of the Government of
Canada, the decision making authority for a proposal; [Emphasis added.]
It has been argued
that the definite article "the" in the definition of "initiating
department", as contrasted with the indefinite article "a" used
in the definition of "proposal", may evince an intention to narrow
the scope of the application of the Guidelines Order to projects where
the federal government is the predominant or sole decision-making authority;
see for example C. J. Gillespie, "Enforceable Rights from Administrative
Guidelines?" (1989-1990), 3 C.J.A.L.P. 204. I do not agree. As I
see it, the only consequence of shifting from the indefinite in
"proposal" to the definite in "initiating department" is to
designate the particular emanation of the Government of Canada that is charged
with the implementation of the Guidelines Order once it has been
determined that the federal government has a decision-making responsibility.
In Angus v.
Canada, [1990] 3 F.C. 410 (C.A.), Décary J.A. adopted a similar approach to
construing the Guidelines Order but in a different context. There the
issue was whether the Guidelines Order applied to an order in council
issued by the Governor in Council under s. 64 of the National Transportation
Act, 1987, R.S.C., 1985, c. 28 (3rd Supp.), which required VIA Rail to
eliminate or reduce certain passenger services. Although the case turned on
the narrow issue of whether the Guidelines Order was binding on the
Governor in Council, which does not arise here, and Décary J.A. was dissenting
on this point, his overall analysis of the application of the Guidelines
Order is helpful where he stated, at p. 434:
The
emphasis has been put by the learned Trial Judge and by the respondents on the
words "initiating department" which relate to the administration of
the Guidelines. I would rather put the emphasis on the words
"proposal" and "Government of Canada", which relate to the
"application" of the Guidelines. There is no requirement, in the
definition of "proposal", that it be made by an initiating department
within the meaning of the Guidelines. The intention of the drafter seems to be
that whenever there is an activity that may have an environmental effect on an
area of federal responsibility and whoever the decision-maker may be on behalf
of the Government of Canada, be it a department, a Minister, the Governor in
Council, the Guidelines apply and it then becomes a matter of practical
consideration, when the final decision-maker is not a department, to find which
department or Minister is the effective original decision-maker or the
effective decision-undertaker, for there is always a department or a Minister
involved "in the planning process" and "before irrevocable
decisions are taken" or in the "direct undertaking" of a
proposal.
Since the issue does not arise, I do
not wish to comment on the application of the Guidelines Order to the
Governor in Council, but the foregoing passage does capture the essence of its
framework.
That is not to say
that the Guidelines Order is engaged every time a project may have an
environmental effect on an area of federal jurisdiction. There must first be a
"proposal" which requires an "initiative, undertaking or
activity for which the Government of Canada has a decision making responsibility".
(Emphasis added.) In my view the proper construction to be placed on the term
"responsibility" is that the federal government, having entered the
field in a subject matter assigned to it under s. 91 of the Constitution
Act, 1867 , must have an affirmative regulatory duty pursuant to an Act of
Parliament which relates to the proposed initiative, undertaking or activity.
It cannot have been intended that the Guidelines Order would be invoked
every time there is some potential environmental effect on a matter of federal
jurisdiction. Therefore, "responsibility" within the definition of
"proposal" should not be read as connoting matters falling generally
within federal jurisdiction. Rather, it is meant to signify a legal duty or
obligation. Once such duty exists, it is a matter of identifying the
"initiating department" assigned responsibility for its performance,
for it then becomes the decision-making authority for the proposal and thus
responsible for initiating the process under the Guidelines Order.
That there must be
an affirmative regulatory duty for a "decision making responsibility"
to exist is evident from other provisions found in the Guidelines Order
which suggest that the initiating department must have some degree of
regulatory power over the project. For example s. 12 provides:
12.
Every initiating department shall screen or assess each proposal for which it
is the decision making authority to determine if
.
. .
(f)
the potentially adverse environmental effects that may be caused by the
proposal are unacceptable, in which case the proposal shall either be modified
and subsequently rescreened or reassessed or be abandoned.
Again, s. 14 reads:
14.
Where, in any case, the initiating department determines that mitigation or
compensation measures could prevent any of the potentially adverse
environmental effects of a proposal from becoming significant, the initiating
department shall ensure that such measures are implemented.
Those provisions amplify the
regulatory authority with which the Government of Canada must have clothed
itself under an Act of Parliament before it will have the requisite
decision-making responsibility.
Applying that
interpretation to the present case, it will be seen that the Oldman River Dam
project qualifies as a proposal for which the Minister of Transport alone is
the initiating department. In my view the Navigable Waters Protection Act
does place an affirmative regulatory duty on the Minister of Transport. Under
that Act there is a legislatively entrenched regulatory scheme in place in
which the approval of the Minister is required before any work that
substantially interferes with navigation may be placed in, upon, over or under,
through or across any navigable water. Section 5 gives the Minister the power
to impose such terms and conditions as he deems fit on any approval granted,
and if those terms are not complied with the Minister may order the owner to
remove or alter the work. For these reasons I would hold that this is a
"proposal" for which the Minister of Transport is an "initiating
department".
There is, however,
no equivalent regulatory scheme under the Fisheries Act which is
applicable to this project. Section 35 prohibits the carrying on of any work
or undertaking that results in the harmful alteration, disruption or
destruction of fish habitat, and s. 40 lends its weight to that prohibition by
penal sanction. The Minister of Fisheries and Oceans is given a discretion
under s. 37(1) to request information from any person who carries on or
proposes to carry on any work or undertaking that will or may result in the
alteration, disruption or destruction of fish habitat. However, the purpose of
making such a request is not to further a regulatory procedure, but is merely
to assist the Minister in exercising an ad hoc delegated legislative
power granted under s. 37(2) to allow an exemption from the general
prohibition. That provision reads:
37. . . .
(2)
If, after reviewing any material or information provided under subsection (1)
and affording the persons who provided it a reasonable opportunity to make
representations, the Minister or a person designated by the Minister is of the
opinion that an offence under subsection 40(1) or (2) is being or is likely to
be committed, the Minister or a person designated by the Minister may, by
order, subject to regulations made pursuant to paragraph (3)(b), or, if
there are no such regulations in force, with the approval of the Governor in
Council,
(a)
require such modifications or additions to the work or undertaking or such
modifications to any plans, specifications, procedures or schedules relating
thereto as the Minister or a person designated by the Minister considers
necessary in the circumstances, or
(b)
restrict the operation of the work or undertaking,
and,
with the approval of the Governor in Council in any case, direct the closing of
the work or undertaking for such period as the Minister or a person designated
by the Minister considers necessary in the circumstances. [Emphasis added.]
In my view a
discretionary power to request or not to request information to assist a
Minister in the exercise of a legislative function does not constitute a
decision-making responsibility within the meaning of the Guidelines Order.
Whereas the Minister of Transport is responsible under the terms of the Navigable
Waters Protection Act in his capacity as regulator, the Minister of
Fisheries and Oceans under s. 37 of the Fisheries Act has been given a
limited ad hoc legislative power which does not constitute an
affirmative regulatory duty. For that reason, I do not think the application
for mandamus to compel the Minister to act is well founded.
Crown
Immunity
Alberta takes the
position that even if the Guidelines Order could be said to apply to the
project in its own terms, the Crown in right of Alberta is not bound by the Navigable
Waters Protection Act and hence there can be no "decision making
responsibility" on the part of the Government of Canada within the meaning
of the Guidelines Order which could affect the province. The appellant
Ministers agree that the Act is not binding on the Crown in right of a
province, but argue that Alberta has waived its immunity by making application
for approval under the Act.
The starting point
on this issue is s. 17 of the Interpretation Act which codifies the
presumption that the Crown is not bound by statute:
17. No enactment is binding on Her
Majesty or affects Her Majesty or Her Majesty's rights or prerogatives in any
manner, except as mentioned or referred to in the enactment.
It is agreed by all concerned that
there are no express words in the Navigable Waters Protection Act
binding the Crown, and it therefore remains to be decided whether the Crown is
bound by necessary implication.
It is helpful to turn
first to the common law. The leading case is the Privy Council decision in Province
of Bombay v. Municipal Corporation of Bombay, [1947] A.C. 58. The issue
there was whether the province of Bombay was exempt from the City of Bombay
Municipal Act, 1888, which conferred power on the city to lay water-mains
"into, through or under any land whatsoever within the city". The
province owned land under which it was proposed to lay a water-main and it
objected to the city's plans, unless the city complied with certain conditions
which the city found unacceptable. Although there were no express words in the
statute binding the Crown, the High Court of Bombay held that the Crown was
bound by necessary implication because the statute "cannot operate with reasonable
efficiency unless the Crown is bound".
The Privy Council
agreed that the rule of Crown immunity admitted of at least one exception,
necessary implication. Lord du Parcq explained the exception as follows, at p.
61:
If,
that is to say, it is manifest from the very terms of the statute, that it was
the intention of the legislature that the Crown should be bound, then the
result is the same as if the Crown had been expressly named. It must then be
inferred that the Crown, by assenting to the law, agreed to be bound by its
provisions.
Their Lordships then went on to
consider the argument, supported by some early authority, that a statute
enacted for the public good must be held to bind the Crown, because the Act was
manifestly intended to secure the public welfare. That contention was rejected
on the simple ground that all statutes are presumptively for the public good.
That, however, did not necessarily mean that the purpose of an enactment is
altogether irrelevant. At page 63, it is stated:
Their
Lordships prefer to say that the apparent purpose of the statute is one
element, and may be an important element, to be considered when an intention to
bind the Crown is alleged. If it can be affirmed that, at the time when the
statute was passed and received the royal sanction, it was apparent from its
terms that its beneficent purpose must be wholly frustrated unless the Crown
were bound, then it may be inferred that the Crown has agreed to be bound.
As I mentioned in Sparling
v. Quebec (Caisse de dépôt et placement du Québec), [1988] 2 S.C.R. 1015,
at p. 1022, some doubt was expressed in R. v. Eldorado Nuclear Ltd.,
[1983] 2 S.C.R. 551, and Her Majesty in right of Alberta v. Canadian
Transport Commission, [1978] 1 S.C.R. 61 (cf. R. v. Ouellette, [1980]
1 S.C.R. 568), as to whether the necessary implication exception survived the
1967 revision of what is now s. 17 of the Interpretation Act . There may
also have been room for doubt as to whether the "wholly frustrated"
test articulated in Bombay was determinative in finding the Crown bound
by necessary implication. Professor Hogg in his text Liability of the Crown
(2nd ed. 1989), argues that the necessary implication exception set out at the
beginning of Bombay refers to a contextual analysis of the statute
whereby one may discern an intention to bind the Crown by logical implication,
and is thus a different species of necessary implication from that which arises
when the purpose of the statute is wholly frustrated. He states, at p. 210:
What
is contemplated in this passage is that a statute, while lacking an express
statement that the Crown is bound, may contain references to the Crown or to
governmental activity which make no sense unless the Crown is bound. If these
textual indications are sufficiently clear, the courts will hold that the
presumption is rebutted and the Crown is bound.
However, any
uncertainty in the law on these points was put to rest by this Court's recent
decision in Alberta Government Telephones, supra. After
reviewing the authorities, Dickson C.J. concluded, at p. 281:
In
my view, in light of PWA and Eldorado, the scope of the words
"mentioned or referred to" must be given an interpretation
independent of the supplanted common law. However, the qualifications in Bombay,
supra, are based on sound principles of interpretation which have not
entirely disappeared over time. It seems to me that the words "mentioned
or referred to" in s. 16 [now s. 17 of the Interpretation Act ] are
capable of encompassing: (1) expressly binding words ("Her Majesty is
bound"); (2) a clear intention to bind which, in Bombay
terminology, "is manifest from the very terms of the statute", in
other words, an intention revealed when provisions are read in the context of
other textual provisions, as in Ouellette, supra; and, (3) an
intention to bind where the purpose of the statute would be "wholly
frustrated" if the government were not bound, or, in other words, if an
absurdity (as opposed to simply an undesirable result) were produced. These
three points should provide a guideline for when a statute has clearly conveyed
an intention to bind the Crown.
In my view, this passage makes it
abundantly clear that a contextual analysis of a statute may reveal an
intention to bind the Crown if one is irresistibly drawn to that conclusion
through logical inference.
That analysis
however cannot be made in a vacuum. Accordingly, the relevant
"context" should not be too narrowly construed. Rather the context
must include the circumstances which led to the enactment of the statute and
the mischief to which it was directed. This view is consistent with the
reasoning in Bombay as is evident from the passages quoted above where
the test for necessary implication is expressed in terms of the time of
enactment. In fact the approach taken by the High Court of Bombay in that case
was criticized by the Privy Council for that very reason, at p. 62:
Even
if the High Court were correct in its interpretation of the principle, its
method of applying it would be open to the objection that regard should have
been had, not to the conditions which it found to be in existence many years
after the passing of the Act, but to the state of things which existed, or
could be shown to have been within the contemplation of the legislature, in the
year 1888.
I begin then by examining the
circumstances that existed when the legislation was first enacted, bearing in
mind that the general subject matter of the statute concerns navigation.
In so doing, it is
useful to return to some of the fundamental principles of water law in this
area, particularly those pertaining to navigable waters. It is important to
recall that the law of navigation in Canada has two fundamental dimensions ‑‑
the ancient common law public right of navigation and the constitutional
authority over the subject matter of navigation ‑‑ both of which
are necessarily interrelated by virtue of s. 91(10) of the Constitution Act,
1867 which assigns exclusive legislative authority over navigation to
Parliament.
The common law of
England has long been that the public has a right to navigate in tidal waters,
but though non-tidal waters may be navigable in fact the public has no right to
navigate in them, subject to certain exceptions not material here. Except in
the Atlantic provinces, where different considerations may well apply, in
Canada the distinction between tidal and non-tidal waters was abandoned long
ago; see In Re Provincial Fisheries (1896), 26 S.C.R. 444; for a summary
of the cases, see my book on Water Law in Canada (1973), at pp. 178-80.
Instead the rule is that if waters are navigable in fact, whether or not the
waters are tidal or non-tidal, the public right of navigation exists. That is
the case in Alberta where the Appellate Division of the Supreme Court, applying
the North-West Territories Act, R.S.C. 1886, c. 50, rightly held in Flewelling
v. Johnston (1921), 59 D.L.R. 419, that the English rule was not suitable
to the conditions of the province. There is no issue between the parties that
the Oldman River is in fact navigable.
The nature of the
public right of navigation has been the subject of considerable judicial
comment over time, but certain principles have held fast. First, the right of
navigation is not a property right, but simply a public right of way; see Orr
Ewing v. Colquhoun (1877), 2 App. Cas. 839 (H.L.), at p. 846. It is not an
absolute right, but must be exercised reasonably so as not to interfere with
the equal rights of others. Of particular significance for this case is that
the right of navigation is paramount to the rights of the owner of the bed,
even when the owner is the Crown. For example, in Attorney-General v.
Johnson (1819), 2 Wils. Ch. 87, 37 E.R. 240, a relator action to enjoin a
public nuisance causing an obstruction in the River Thames and an adjoining
thoroughfare along its bank, the Lord Chancellor said, at p. 246:
I
consider it to be quite immaterial whether the title to the soil between high
and low water-mark be in the Crown, or in the City of London, or whether
the City of London has the right of conservancy, operating as a check on
an improper use of the soil, the title being in the Crown, or whether either
Lord Grosvenor or Mr. Johnson have any derivative title by grant
from any one having the power to grant. . . . It is my present opinion, that
the Crown has not the right either itself to use its title to the soil between
high and low water-mark as a nuisance, or to place upon that soil what will be
a nuisance to the Crown's subjects. If the Crown has not such a right, it
could not give it to the City of London, nor could the City transfer it
to any other person.
This Court later
came to the same conclusion in Wood v. Esson (1884), 9 S.C.R. 239.
There, the plaintiffs had extended their wharf so as to interfere with access
to the defendant's wharf. The defendant pulled up the piles and removed the
obstruction to allow passage to his wharf, and the plaintiffs then brought an
action in trespass on the ground that they enjoyed title under a grant from the
province of Nova Scotia to the soil of the harbour on which the wharf was
constructed. The Court held that the defendant was entitled to abate the
nuisance created by the obstruction to navigation in the harbour. Strong J.
remarked, at p. 243:
The
title to the soil did not authorize the plaintiffs to, extend their wharf so as
to be a public nuisance, which upon the evidence, such an obstruction of the
harbour amounted to, for the Crown cannot grant the right so to obstruct
navigable waters; nothing short of legislative sanction can take from anything
which hinders navigation the character of a nuisance. [Emphasis added.]
This passage also underscores another
aspect of the paramountcy of the public right of navigation ‑‑ that
it can only be modified or extinguished by an authorizing statute, and as such
a Crown grant of land of itself does not and cannot confer a right to interfere
with navigation; see also The Queen v. Fisher (1891), 2 Ex. C.R. 365; In
Re Provincial Fisheries, supra, at p. 549, per Girouard J.;
and Reference re Waters and Water-Powers, [1929] S.C.R. 200.
What is more, the
provinces are constitutionally incapable of enacting legislation authorizing an
interference with navigation, since s. 91(10) of the Constitution Act, 1867
gives Parliament exclusive jurisdiction to legislate respecting navigation.
That was made clear by this Court in Queddy River Driving Boom Co. v.
Davidson (1883), 10 S.C.R. 222, where an injunction was sought to restrain
the defendant company from erecting piers and booms in the Queddy River in New
Brunswick. The defendant relied on its constituent legislation, passed by the
provincial legislature, which permitted a certain degree of interference with
navigation. The only issue before the Court was the authority of the
legislature to pass the Act incorporating the defendant. Ritchie C.J.
concluded, at p. 232:
. .
. the legal question in this case, which is, to which legislative power, that
of the Dominion Parliament or the Assembly of New Brunswick, belongs the
right to authorize the obstruction by piers or booms of a public tidal and
navigable river, and thereby injuriously interfere with and abridge the public
right of navigation in such tidal navigable waters. It is not disputed that
this legislation interfered with the navigation of the river . . .
I
think there can be no doubt that the legislative control of navigable waters,
such as are in question in this case, belongs exclusively to the Dominion
Parliament. Everything connected with navigation and shipping seems to have
been carefully confided to the Dominion Parliament, by the B.N.A. Act.
These cases served
as an impetus for the enactment of what ultimately became the Navigable
Waters Protection Act . Of relevance here is the enactment of one of the
antecedent pieces of legislation ‑‑ An Act respecting booms and
other works constructed in navigable waters whether under the authority of
Provincial Acts or otherwise, S.C. 1883, c. 43 ‑‑ preceding the
consolidated Act which was to govern all aspects of the protection of navigable
waters. Section 1 provided:
1. No boom, dam or aboiteau shall be
constructed whether under the authority of an Act of a Legislature of a
Province of Canada, or under the authority of an Ordinance of the North-West
Territories or of the District of Keewatin or otherwise, so as to interfere
with navigation, unless the site thereof has been approved, and unless the
boom, dam or aboiteau has been built and is maintained in accordance with plans
approved by the Governor General in Council.
The Act also provided a means whereby
existing structures which interfered with navigation, and thus created a public
nuisance, could be legalized by seeking approval from the Governor General in
Council.
That statute was
but one enactment in which Parliament exercised its jurisdiction to prevent the
erection or continuation of impediments to navigation. It had already
legislated, inter alia, in respect of bridges (An Act respecting
Bridges over navigable waters, constructed under the authority of Provincial
Acts, S.C. 1882, c. 37); the removal of obstructions and wrecks from
navigable waters (An Act for the removal of obstructions, by wreck and like
causes, in Navigable Waters of Canada, and other purposes relative to wrecks,
S.C. 1874, c. 29); and effluent from sawmills into navigable waters (An Act
for the better protection of Navigable Streams and Rivers, S.C. 1873, c.
65).
The consolidation
process began with the passage of An Act respecting certain works
constructed in or over Navigable Waters, S.C. 1886, c. 35, dealing with
construction of any "work" in navigable waters, and its companion
legislation An Act respecting the protection of Navigable Waters, S.C.
1886, c. 36, concerning obstruction of navigable waters by wrecks. Section 1
of the former compendiously defined the term "work" to mean:
1. In this Act, unless the context
otherwise requires, the expression "work" means and includes any
bridge, boom, dam, aboiteau, wharf, dock, pier or other structure, and the
approaches or other works necessary or appurtenant thereto; . . .
The definition was far more
comprehensive in scope than its predecessors, and this aspect of the law,
coupled with the requirement for approval from the Governor in Council of all
such works, caused considerable consternation at the time as to the breadth of
its potential retrospective effect for existing structures erected in navigable
waters.
However, the
statute was merely declaratory of the common law. To the extent that a
structure interfered with the public right of navigation, it was a public
nuisance, and the provinces were constitutionally powerless to authorize an
interference of that nature. The retrospective effect of the law with respect
to works built under the statutory authority of a provincial legislature,
however, only went back as far as the time the province joined Confederation.
Section 7 provided:
7. Nothing hereinbefore contained,
except the provisions of the first and fifth sections hereof, shall apply to
any work constructed under the authority of any Act of the Parliament of
Canada, or of the legislature of the late Province of Canada, or of the legislature
of any Province now forming part of Canada, passed before such Province became
a part thereof.
Thus, no permission would be required
for a work authorized by the legislature of a province before it joined
Canada. That is because the province would then have had the constitutional
jurisdiction to authorize the work. Similarly, the Act did not apply to works
constructed under any other Act of Parliament so that it was clear which Act
governed. Parliament had already passed legislation authorizing certain works
of that nature; see for example An Act to authorize the Corporation of the
Town of Emerson to construct a Free Passenger and Traffic Bridge over the Red
River in the Province of Manitoba, S.C. 1880, c. 44.
The 1886 Acts were
re-enacted in R.S.C. 1886, cc. 91 and 92, and consolidated in R.S.C. 1906, c.
115, when they were given the short title Navigable Waters' Protection Act .
The Act has remained substantially the same since. In particular, s. 7 of c.
35 of the 1886 statute has remained materially unaltered, and is now found in
s. 4 of the present Act. It was this provision that the Court of Appeal relied
upon to find that the Crown in right of Alberta was bound by necessary
implication. I agree with this position. By expressly excepting from the
operation of the Act works authorized by Parliament since Confederation and by
pre-Confederation provincial legislatures, at a time these bodies had power to
interfere with navigation, the statute by necessary implication must be taken
to provide that post-Confederation works undertaken by the provinces are
subject to the Act. There are, however, even more fundamental considerations
that lead to the view that the conclusion arrived at by the Court of Appeal was
correct. To these I now turn.
In my view, the
circumstances surrounding the passage of the legislation, informing as they
must the context of the statute, do lead to the logical inference that the
Crown in right of a province is bound by the Act by necessary implication.
Neither the Crown nor a grantee of the Crown may interfere with the public
right of navigation without legislative authorization. The proprietary right
the Crown in right of Alberta may have in the bed of the Oldman River is
subject to that right of navigation, legislative jurisdiction over which has
been exclusively vested in Parliament. Parliament has entered the field
principally through the passage of the Navigable Waters Protection Act
which delegated to the Governor General in Council, and now the Minister of Transport,
authority to permit construction of what would otherwise be a public nuisance
in navigable waters. The Crown in right of Alberta requires statutory
authorization from Parliament to erect any obstruction that substantially
interferes with navigation in the Oldman River, and the Navigable Waters
Protection Act is the means by which it must be obtained. It follows that
the Crown in right of Alberta is bound by the Act, for it is the only
practicable procedure available for getting approval.
My colleague,
Stevenson J., has however referred to the statement of Fitzpatrick C.J. in Champion
v. City of Vancouver, [1918] 1 W.W.R. 216 (S.C.C.), to the effect that the
Act was merely permissive and did not prevent a third party from bringing
action for an interference with the public right of navigation despite the
Minister's approval of the work. This statement, however, was mere dicta. The
issue there was whether the structure concerned interfered with the plaintiffs'
private right of access. The other two majority judges confined their remarks
to this matter, and the two minority judges a fortiori did not agree
with the statement. For my part, I prefer the view expressed in Isherwood
v. Ontario and Minnesota Power Co. (1911), 18 O.W.R. 459 (Div. Ct.), that
the Act does permit interference with the public right of navigation but does
not interfere with the private rights of individuals. That is the proposition
for which Champion is authority.
For these reasons I
have concluded that the Crown in right of Alberta is, as a matter of necessary
or logical implication, bound by the Navigable Waters Protection Act . I
am also of the view that the purpose of the Act would be wholly frustrated if
this were not the case. I am affected by the considerations referred to by
Stone J.A. that the provinces are among the bodies that are likely to engage in
projects ‑‑ bridges, for example ‑‑ that may interfere
with navigation, and that this was the case in this country well before the
passage of the Act, but here again I am affected as well by even more
fundamental considerations, namely the nature of navigation in this country and
of Parliament's legislative power over this activity.
Certain navigable
systems form a critical part of the interprovincial transportation networks
which are essential for international trade and commercial activity in Canada.
With respect to the contrary view, it makes little sense to suggest that any
semblance of Parliament's legislative objective in exercising its jurisdiction
for the conservancy of navigable waters would be achieved were the Crown to be
excluded from the operation of the Act. The regulation of navigable waters
must be viewed functionally as an integrated whole, and when so viewed it would
result in an absurdity if the Crown in right of a province was left to obstruct
navigation with impunity at one point along a navigational system, while
Parliament assiduously worked to preserve its navigability at another point.
The practical
necessity for a uniform regulatory regime for navigable waters has already been
recognized by this Court in Whitbread v. Walley, [1990] 3 S.C.R. 1273,
and the reasoning given there in support of a single body of maritime law
within federal jurisdiction is equally applicable to this case. At pages
1294-95, it is stated:
Quite
apart from judicial authority, the very nature of the activities of navigation
and shipping, at least as they are practised in this country, makes a uniform
maritime law which encompasses navigable inland waterways a practical
necessity. Much of the navigational and shipping activity that takes place on
Canada's inland waterways is closely connected with that which takes place
within the traditional geographic sphere of maritime law. This is most
obviously the case when one looks to the Great Lakes and the St. Lawrence
Seaway, which are to a very large degree an extension, or alternatively the
beginning, of the shipping lanes by which this country does business with the
world. But it is also apparent when one looks to the many smaller rivers and
waterways that serve as ports of call for ocean going vessels and as the points
of departure for some of Canada's most important exports. This is undoubtedly
one of the considerations that led the courts of British North America to rule
that the public right of navigation, in contradistinction to the English
position, extended to all navigable rivers regardless of whether or not they
were within the ebb and flow of the tide . . . . It probably also explains why
the Fathers of Confederation thought it necessary to assign the broad and
general power over navigation and shipping to the central rather than the
provincial governments . . . .
Were the Crown in right of a province
permitted to undermine the integrity of the essential navigational networks in
Canadian waters, the legislative purpose of the Navigable Waters Protection
Act would, in my view, effectively be emasculated. In light of these findings,
it is unnecessary to comment on the issue of waiver that was raised by the
appellant Ministers.
Constitutional Question
The constitutional
question asks whether the Guidelines Order is so broad as to offend ss.
92 and 92A of the Constitution Act, 1867 . However, no argument was made
with respect to s. 92A for the apparent reason that the Oldman River Dam
project does not, in the appellants' view, fall within the ambit of that
provision. At all events, the matter is of no moment. The process of judicial
review of legislation which is impugned as ultra vires Parliament was
recently elaborated on in Whitbread v. Walley, supra, and does
not bear repetition here, save to remark that if the Guidelines Order is
found to be legislation that is in pith and substance in relation to matters
within Parliament's exclusive jurisdiction, that is the end of the matter. It
would be immaterial that it also affects matters of property and civil rights (Whitbread,
at p. 1286). The analysis proceeds first by identifying whether in pith and
substance the legislation falls within a matter assigned to one or more of the
heads of legislative power.
While various
expressions have been used to describe what is meant by the "pith and
substance" of a legislative provision, in Whitbread v. Walley I
expressed a preference for the description "the dominant or most important
characteristic of the challenged law". Naturally, the parties have
advanced quite different features of the Guidelines Order as
representing its most important characteristic. For Alberta, it is the manner
in which it is said to encroach on provincial rights, although no specific
matter has been identified other than general references to the environment.
Alberta argues that Parliament has no plenary jurisdiction over the
environment, it being a matter of legislative jurisdiction shared by both
levels of government, and that the Guidelines Order has crossed the line
which circumscribes Parliament's authority over the environment. The appellant
Ministers argue that in pith and substance the Guidelines Order is
merely a process to facilitate federal decision-making on matters that fall
within Parliament's jurisdiction ‑‑ a proposition with which the
respondent substantially agrees.
The substance of
Alberta's argument is that the Guidelines Order purports to give the
Government of Canada general authority over the environment in such a way as to
trench on the province's exclusive legislative domain. Alberta argues that the
Guidelines Order attempts to regulate the environmental effects of
matters largely within the control of the province and, consequently, cannot
constitutionally be a concern of Parliament. In particular, it is said that
Parliament is incompetent to deal with the environmental effects of provincial
works such as the Oldman River Dam.
I agree that the Constitution
Act, 1867 has not assigned the matter of "environment" sui
generis to either the provinces or Parliament. The environment, as
understood in its generic sense, encompasses the physical, economic and social
environment touching several of the heads of power assigned to the respective
levels of government. Professor Gibson put it succinctly several years ago in
his article "Constitutional Jurisdiction over Environmental Management in
Canada" (1973), 23 U.T.L.J. 54, at p. 85:
. .
. "environmental management" does not, under the existing situation,
constitute a homogeneous constitutional unit. Instead, it cuts across many
different areas of constitutional responsibility, some federal and some
provincial. And it is no less obvious that "environmental
management" could never be treated as a constitutional unit under one
order of government in any constitution that claimed to be federal, because no
system in which one government was so powerful would be federal.
I earlier referred to the environment
as a diffuse subject, echoing what I said in R. v. Crown Zellerbach Canada
Ltd., supra, to the effect that environmental control, as a subject
matter, does not have the requisite distinctiveness to meet the test under the
"national concern" doctrine as articulated by Beetz J. in Reference
re Anti-Inflation Act, supra. Although I was writing for the
minority in Crown Zellerbach, this opinion was not contested by the
majority. The majority simply decided that marine pollution was a matter of
national concern because it was predominately extra-provincial and
international in character and implications, and possessed sufficiently
distinct and separate characteristics as to make it subject to Parliament's
residual power.
It must be
recognized that the environment is not an independent matter of legislation
under the Constitution Act, 1867 and that it is a constitutionally
abstruse matter which does not comfortably fit within the existing division of
powers without considerable overlap and uncertainty. A variety of analytical
constructs have been developed to grapple with the problem, although no single
method will be suitable in every instance. Some have taken a functional
approach by describing specific environmental concerns and then allocating
responsibility by reference to the different heads of power; see, for example,
Gibson, supra. Others have looked at the problem from the perspective
of testing the ambit of federal powers according to their general description
as "conceptual" or "global" (e.g., criminal law, taxation,
trade and commerce, spending and the general residuary power) as opposed to
"functional" (e.g., navigation and fisheries); see P. Emond,
"The Case for a Greater Federal Role in the Environmental Protection
Field: An Examination of the Pollution Problem and the Constitution"
(1972), 10 Osgoode Hall L.J. 647, and M. E. Hatherly, Constitutional
Jurisdiction in Relation to Environmental Law, background paper prepared
for the Protection of Life Project, Law Reform Commission of Canada (1984).
In my view the
solution to this case can more readily be found by looking first at the
catalogue of powers in the Constitution Act, 1867 and considering how
they may be employed to meet or avoid environmental concerns. When viewed in
this manner it will be seen that in exercising their respective legislative
powers, both levels of government may affect the environment, either by acting
or not acting. This can best be understood by looking at specific powers. A
revealing example is the federal Parliament's exclusive legislative power over
interprovincial railways under ss. 92(10) (a) and 91(29) of the Constitution
Act, 1867 . The regulation of federal railways has been entrusted to the
National Transportation Agency pursuant to the National Transportation Act,
1987, which enjoys a broad mandate as summarized in the declaration found in
s. 3, which reads in part:
3. (1) It is hereby declared that a
safe, economic, efficient and adequate network of viable and effective
transportation services making the best use of all available modes of
transportation at the lowest total cost is essential to serve the
transportation needs of shippers and travellers and to maintain the economic
well-being and growth of Canada and its regions and that those objectives are
most likely to be achieved when all carriers are able to compete, both within and
among the various modes of transportation, under conditions ensuring that,
having due regard to national policy and to legal and constitutional
requirements,
.
. .
(d)
transportation is recognized as a key to regional economic development and
commercial viability of transportation links is balanced with regional economic
development objectives in order that the potential economic strengths of each
region may be realized, . . .
This gives some insight into the scope
of Parliament's legislative jurisdiction over railways and the manner in which
it is charged with the responsibility of weighing both the national and local
socio-economic ramifications of its decisions. Moreover, it cannot be
seriously questioned that Parliament may deal with biophysical environmental
concerns touching upon the operation of railways so long as it is legislation
relating to railways. This could involve issues such as emission standards or
noise abatement provisions.
To continue with
the example, one might postulate the location and construction of a new line
which would require approval under the relevant provisions of the Railway
Act, R.S.C., 1985, c. R-3. That line may cut through ecologically
sensitive habitats such as wetlands and forests. The possibility of derailment
may pose a serious hazard to the health and safety of nearby communities if
dangerous commodities are to be carried on the line. On the other hand, it may
bring considerable economic benefit to those communities through job creation
and the multiplier effect that will have in the local economy. The regulatory
authority might require that the line circumvent residential districts in the
interests of noise abatement and safety. In my view, all of these
considerations may validly be taken into account in arriving at a final
decision on whether or not to grant the necessary approval. To suggest
otherwise would lead to the most astonishing results, and it defies reason to assert
that Parliament is constitutionally barred from weighing the broad
environmental repercussions, including socio-economic concerns, when
legislating with respect to decisions of this nature.
The same can be
said for several other subject matters of legislation, including one of those
before the Court, namely navigation and shipping. Some provisions of the Navigable
Waters Protection Act are aimed directly at biophysical environmental
concerns that affect navigation. Sections 21 and 22 read:
21. No person shall throw or deposit or
cause, suffer or permit to be thrown or deposited any sawdust, edgings, slabs,
bark or like rubbish of any description whatever that is liable to interfere
with navigation in any water, any part of which is navigable or that flows into
any navigable water.
22. No person shall throw or deposit or
cause, suffer or permit to be thrown or deposited any stone, gravel, earth,
cinders, ashes or other material or rubbish that is liable to sink to the
bottom in any water, any part of which is navigable or that flows into any
navigable water, where there are not at least twenty fathoms of water at all
times, but nothing in this section shall be construed so as to permit the throwing
or depositing of any substance in any part of a navigable water where that
throwing or depositing is prohibited by or under any other Act.
As I mentioned earlier in these
reasons, the Act has a more expansive environmental dimension, given the common
law context in which it was enacted. The common law proscribed obstructions
that interfered with the paramount right of public navigation. Several of the
"works" referred to in the Act do not in any way improve navigation.
Bridges do not assist navigation, nor do many dams. Thus, in deciding whether
a work of that nature is to be permitted, the Minister would almost surely have
to weigh the advantages and disadvantages resulting from the interference with
navigation. This could involve environmental concerns such as the destruction
to fisheries, and all the Guidelines Order does then is to extend the
ambit of his concerns.
It must be noted
that the exercise of legislative power, as it affects concerns relating to the
environment, must, as with other concerns, be linked to the appropriate head of
power, and since the nature of the various heads of power under the Constitution
Act, 1867 differ, the extent to which environmental concerns may be taken
into account in the exercise of a power may vary from one power to another.
For example, a somewhat different environmental role can be played by
Parliament in the exercise of its jurisdiction over fisheries than under its
powers concerning railways or navigation since the former involves the
management of a resource, the others activities. The foregoing observations
may be demonstrated by reference to two cases involving fisheries. In Fowler
v. The Queen, [1980] 2 S.C.R. 213, the Court found that s. 33(3) of the Fisheries
Act was ultra vires Parliament because its broad prohibition
enjoining the deposit of "slash, stumps or other debris" into water
frequented by fish was not sufficiently linked to any actual or potential harm
to fisheries. However, s. 33(2), prohibiting the deposit of deleterious substances
in any place where they might enter waters frequented by fish, was found
intra vires Parliament under s. 91(12) in Northwest Falling
Contractors Ltd. v. The Queen, [1980] 2 S.C.R. 292.
The provinces may
similarly act in relation to the environment under any legislative power in s.
92 . Legislation in relation to local works or undertakings, for example, will
often take into account environmental concerns. What is not particularly
helpful in sorting out the respective levels of constitutional authority over a
work such as the Oldman River dam, however, is the characterization of it as a
"provincial project" or an undertaking "primarily subject to
provincial regulation" as the appellant Alberta sought to do. That begs
the question and posits an erroneous principle that seems to hold that there
exists a general doctrine of interjurisdictional immunity to shield provincial
works or undertakings from otherwise valid federal legislation. As Dickson
C.J. remarked in Alberta Government Telephones, supra, at p. 275:
It
should be remembered that one aspect of the pith and substance doctrine is that
a law in relation to a matter within the competence of one level of government
may validly affect a matter within the competence of the other. Canadian
federalism has evolved in a way which tolerates overlapping federal and
provincial legislation in many respects, and in my view a constitutional
immunity doctrine is neither desirable nor necessary to accommodate valid
provincial objectives.
What is important is to determine
whether either level of government may legislate. One may legislate in regard
to provincial aspects, the other federal aspects. Although local projects will
generally fall within provincial responsibility, federal participation will be
required if the project impinges on an area of federal jurisdiction as is the
case here.
There is, however,
an even more fundamental fallacy in Alberta's argument, and that concerns the
manner in which constitutional powers may be exercised. In legislating regarding
a subject, it is sufficient that the legislative body legislate on that
subject. The practical purpose that inspires the legislation and the
implications that body must consider in making its decision are another thing.
Absent a colourable purpose or a lack of bona fides, these
considerations will not detract from the fundamental nature of the
legislation. A railway line may be required to locate so as to avoid a
nuisance resulting from smoke or noise in a municipality, but it is nonetheless
railway regulation.
An Australian case,
Murphyores Incorporated Pty. Ltd. v. Commonwealth of Australia (1976),
136 C.L.R. 1 (H.C.), illustrates the point well in a context similar to the
present. There the plaintiffs carried on the business of mining for mineral
sands from which they produced zircon and rutile concentrates. The export of
those substances was regulated by the Customs (Prohibited Exports)
Regulations (passed pursuant to the Commonwealth's trade and commerce
power) and approval from the Minister of Minerals and Energy was required for
their export. The issue in the case arose when an inquiry was directed to be
made under the Environment Protection (Impact of Proposals) Act
1974-1975 (Cth), into the environmental impact of mineral extraction from the
area in which the plaintiffs had their mining leases. The Minister responsible
informed the plaintiffs that the report of that inquiry would have to be
considered before allowing any further export of concentrates.
The plaintiffs
contended that the Minister could only consider matters relevant to
"trading policy" within the scope of the Commonwealth's trade and
commerce power, rather than the environmental concerns arising from the
anterior mining activity which was predominantly a state interest. That
argument was unanimously rejected, Stephen J. putting it as follows, at p. 12:
The
administrative decision whether or not to relax a prohibition against the
export of goods will necessarily be made in the light of considerations
affecting the mind of the administrator; but whatever their nature the
consequence will necessarily be expressed in terms of trade and commerce,
consisting of the approval or rejection of an application to relax the
prohibition on exports. It will therefore fall within constitutional power.
The considerations in the light of which the decision is made may not
themselves relate to matters of trade and commerce but that will not deprive
the decision which they induce of its inherent constitutionality for the
decision will be directly on the subject matter of exportation and the
considerations actuating that decision will not detract from the character
which its subject matter confers upon it.
I hasten to add that I do not mean to
draw any parallels between the Commonwealth's trade and commerce power as
framed in the Australian Constitution and that found in the Canadian
Constitution. Obviously there are important differences in the two documents,
but the general point made in Murphyores is nonetheless valid in the
present case. The case points out the danger of falling into the conceptual
trap of thinking of the environment as an extraneous matter in making
legislative choices or administrative decisions. Clearly, this cannot be the
case. Quite simply, the environment is comprised of all that is around us and
as such must be a part of what actuates many decisions of any moment.
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 Guidelines
Order has merely added to the matters that federal decision makers should
consider. If the Minister of Transport was specifically assigned the task of
weighing concerns regarding fisheries in weighing applications to construct
works in navigable waters, could there be any complaint that this was ultra
vires? All that it would mean is that a decision maker charged with making
one decision must also consider other matters that fall within federal power.
I am not unmindful of what was said by counsel for the Attorney General for
Saskatchewan who sought to characterize the Guidelines Order as a
constitutional Trojan horse enabling the federal government, on the pretext of
some narrow ground of federal jurisdiction, to conduct a far ranging inquiry
into matters that are exclusively within provincial jurisdiction. However, on
my reading of the Guidelines Order the "initiating department"
assigned responsibility for conducting an initial assessment, and if required,
the environmental review panel, are only given a mandate to examine matters
directly related to the areas of federal responsibility affected. Thus, an
initiating department or panel cannot use the Guidelines Order as a
colourable device to invade areas of provincial jurisdiction which are
unconnected to the relevant heads of federal power.
Because of its
auxiliary nature, environmental impact assessment can only affect matters that
are "truly in relation to an institution or activity that is otherwise
within [federal] legislative jurisdiction"; see Devine v. Quebec
(Attorney General), [1988] 2 S.C.R. 790, at p. 808. Given the necessary
element of proximity that must exist between the impact assessment process and
the subject matter of federal jurisdiction involved, this legislation can, in
my view, be supported by the particular head of federal power invoked in each
instance. In particular, the Guidelines Order prescribes a close nexus
between the social effects that may be examined and the environmental effects
generally. Section 4 requires that the social effects examined at the initial
assessment stage be "directly related" to the potential environmental
effects of a proposal, as does s. 25 in respect of the terms of reference under
which an environmental assessment panel may operate. Moreover, where the Guidelines
Order has application to a proposal because it affects an area of federal
jurisdiction, as opposed to the other three bases for application enumerated in
s. 6 , the environmental effects to be studied can only be those which may have
an impact on the areas of federal responsibility affected.
I should make it
clear, however, that the scope of assessment is not confined to the particular
head of power under which the Government of Canada has a decision-making
responsibility within the meaning of the term "proposal". Such a
responsibility, as I stated earlier, is a necessary condition to engage the
process, but once the initiating department has thus been given authority to
embark on an assessment, that review must consider the environmental effect on
all areas of federal jurisdiction. There is no constitutional obstacle
preventing Parliament from enacting legislation under several heads of power at
the same time; see Jones v. Attorney General of New Brunswick, [1975] 2
S.C.R. 182, and Knox Contracting Ltd. v. Canada, [1990] 2 S.C.R. 338, at
p. 350. In the case of the Guidelines Order, Parliament has conferred
upon one institution (the "initiating department") the
responsibility, in the exercise of its decision-making authority, for assessing
the environmental implications on all areas of federal jurisdiction potentially
affected. Here, the Minister of Transport, in his capacity of decision maker
under the Navigable Waters Protection Act , is directed to consider the
environmental impact of the dam on such areas of federal responsibility as
navigable waters, fisheries, Indians and Indian lands, to name those most
obviously relevant in the circumstances here.
In essence, then,
the Guidelines Order has two fundamental aspects. First, there is the
substance of the Guidelines Order dealing with environmental impact
assessment to facilitate decision-making under the federal head of power
through which a proposal is regulated. As I mentioned earlier, this aspect of
the Guidelines Order can be sustained on the basis that it is
legislation in relation to the relevant subject matters enumerated in s. 91 of
the Constitution Act, 1867 . The second aspect of the legislation is its
procedural or organizational element that coordinates the process of
assessment, which can in any given case touch upon several areas of federal
responsibility, under the auspices of a designated decision maker, or in the
vernacular of the Guidelines Order, the "initiating
department". This facet of the legislation has as its object the
regulation of the institutions and agencies of the Government of Canada as to
the manner in which they perform their administrative functions and duties.
This, in my view, is unquestionably intra vires Parliament. It may be
viewed either as an adjunct of the particular legislative powers involved, or,
in any event, be justifiable under the residuary power in s. 91 .
The Court adopted a
similar approach in the related situation that arose in Jones v. Attorney
General of New Brunswick, supra. There this Court dealt with the
constitutional validity, on a division of powers basis, of certain provisions
of the Official Languages Act, R.S.C. 1970, c. O-2, the Evidence Act
of New Brunswick, R.S.N.B. 1952, c. 74, and the Official Languages of New
Brunswick Act, S.N.B. 1969, c. 14. The federal legislation made English
and French the official languages of Canada, and the impugned provisions
recognized both languages in the federal courts and in criminal proceedings.
Laskin C.J. held, at p. 189:
. .
. I am in no doubt that it was open to the Parliament of Canada to enact the Official
Languages Act (limited as it is to the purposes of the Parliament and
Government of Canada and to the institutions of that Parliament and Government)
as being a law "for the peace, order and good government of Canada in
relation to [a matter] not coming within the classes of subjects . . . assigned
exclusively to the Legislatures of the Provinces". The quoted words are
in the opening paragraph of s. 91 of the British North America Act; and,
in relying on them as constitutional support for the Official Languages Act,
I do so on the basis of the purely residuary character of the legislative power
thereby conferred. No authority need be cited for the exclusive power of
the Parliament of Canada to legislate in relation to the operation and
administration of the institutions and agencies of the Parliament and
Government of Canada. Those institutions and agencies are clearly beyond
provincial reach. [Emphasis added.]
The Court went on to uphold the
federal legislation on the additional grounds that it was valid under
Parliament's criminal jurisdiction (s. 91(27)) and federal power over federal
courts (s. 101). Laskin C.J. also remarked that there was no constitutional
impediment preventing Parliament from adding to the range of privileged or
obligatory use of English and French in institutions or activities that are
subject to federal control. For similar reasons, the provincial legislation
providing for the use of both official languages in the courts of New Brunswick
was upheld on the basis of its power over the administration of justice in the
province (s. 92(14)).
In the end, I am
satisfied that the Guidelines Order is in pith and substance nothing
more than an instrument that regulates the manner in which federal institutions
must administer their multifarious duties and functions. Consequently, it is
nothing more than an adjunct of the federal legislative powers affected. In
any event, it falls within the purely residuary aspect of the "Peace,
Order, and good Government" power under s. 91 of the Constitution Act,
1867 . Any intrusion into provincial matters is merely incidental to the
pith and substance of the legislation. It must also be remembered that what is
involved is essentially an information gathering process in furtherance of a
decision-making function within federal jurisdiction, and the recommendations
made at the conclusion of the information gathering stage are not binding on
the decision maker. Neither the initiating department nor the panel are given
power to subpoena witnesses, as was the case in Canadian National Railway
Co. v. Courtois, [1988] 1 S.C.R. 868, where the Court held that certain
provisions of the Act respecting occupational health and safety, S.Q.
1979, c. 63, which, inter alia, allowed the province to investigate
accidents and issue remedial orders, were inapplicable to an interprovincial
railway undertaking. I should add that Alberta's extensive reliance on that
decision is misplaced. It is wholly distinguishable from the present case on
several grounds, most importantly that the impugned provincial legislation
there was made compulsory against a federal undertaking and was interpreted by
the Court as regulating the undertaking.
For the foregoing
reasons I find that the Guidelines Order is intra vires
Parliament and would thus answer the constitutional question in the negative.
Discretion
The last
substantive issue raised in this appeal is whether the Federal Court of Appeal
erred in interfering with the motions judge's discretion not to grant the
remedies sought, namely orders in the nature of certiorari and mandamus,
on the grounds of unreasonable delay and futility. Stone J.A. found that the
motions judge had erred in a way that warranted interference with the exercise
of his discretion on both grounds.
The principles
governing appellate review of a lower court's exercise of discretion were not
extensively considered, only their application to this case. Stone J.A. cited Polylok
Corp. v. Montreal Fast Print (1975) Ltd., [1984] 1 F.C. 713 (C.A.), which
in turn approved of the following statement of Viscount Simon L.C. in Charles
Osenton & Co. v. Johnston, [1942] A.C. 130, at p. 138:
The
law as to the reversal by a court of appeal of an order made by the judge below
in the exercise of his discretion is well-established, and any difficulty that
arises is due only to the application of well-settled principles in an
individual case. The appellate tribunal is not at liberty merely to substitute
its own exercise of discretion for the discretion already exercised by the
judge. In other words, appellate authorities ought not to reverse the order
merely because they would themselves have exercised the original discretion,
had it attached to them, in a different way. But if the appellate tribunal
reaches the clear conclusion that there has been a wrongful exercise of
discretion in that no weight, or no sufficient weight, has been given to
relevant considerations such as those urged before us by the appellant, then
the reversal of the order on appeal may be justified.
That was essentially the standard
adopted by this Court in Harelkin v. University of Regina, [1979] 2
S.C.R. 561, where Beetz J. said, at p. 588:
Second,
in declining to evaluate, difficult as it may have been, whether or not the
failure to render natural justice could be cured in the appeal, the learned
trial judge refused to take into consideration a major element for the
determination of the case, thereby failing to exercise his discretion on
relevant grounds and giving no choice to the Court of Appeal but to intervene.
[Emphasis added.]
What, then, are the
relevant considerations that should have been weighed by the motions judge in
exercising his discretion? The first ground on which the motions judge
exercised his discretion to refuse prerogative relief was delay. There is no
question that unreasonable delay may bar an applicant from obtaining a
discretionary remedy, particularly where that delay would result in prejudice
to other parties who have relied on the challenged decision to their detriment,
and the question of unreasonableness will turn on the facts of each case; see
S. A. de Smith, Judicial Review of Administrative Action (4th ed. 1980),
at p. 423, and D. P. Jones and A. S. de Villars, Principles of
Administrative Law (1985), at pp. 373-74. The motions judge took
cognizance of the period of time that elapsed between approval being granted by
the Minister of Transport on September 18, 1987 and the filing of the notice of
motion in this action on April 21, 1989, and the fact that the project was
approximately 40 percent complete by that time. With respect, however, he
ignored a considerable amount of activity undertaken by the respondent Society
before taking this action, some of which was referred to by Stone J.A. I
should note at this point that Stone J.A. was mistaken when he stated that this
action was taken only two months after the Society became aware that approval
had been granted. During cross-examination on her affidavit in support of the
application, Ms. Kostuch, the vice-president of the Society, admitted that the
Society became aware of the approval on February 16, 1988, some fourteen months
before the present action was launched.
This was not the
only action taken by the Society in opposition to the dam, however. The
Society first brought an action in October 1987 seeking certiorari with
prohibition in aid to quash an interim licence issued by the Minister of the
Environment of Alberta pursuant to the Water Resources Act. On December
8, 1987 Moore C.J.Q.B. quashed all licences and permits issued by the Minister
on the grounds that the department had not filed the requisite approvals with
its application, that it had not referred the matter to the Energy Resources
Conservation Board as required by s. 17 of the Act, and that the Minister's
delegate had wrongfully exercised his discretion in waiving the public notice
requirements set out in the Act: Friends of the Oldman River Society v.
Alberta (Minister of the Environment) (1987), 85 A.R. 321. Another interim
licence was issued on February 5, 1988 and again the respondent brought an
application to quash that licence, principally on the ground that the
requirement for giving public notice had been improperly waived. The
application was dismissed by Picard J. who held that the appropriate material
had been filed with the application for the licence and that the Minister's
delegate had acted within his jurisdiction in waiving public notice: Friends
of Oldman River Society v. Alberta (Minister of the Environment) (1988), 89
A.R. 339 (Q.B).
In the meantime,
the respondent Society had been petitioning the Alberta Energy Resources
Conservation Board to conduct a public hearing into the hydro-electric aspects
of the dam pursuant to the Hydro and Electric Energy Act. The Board
replied on December 18, 1987 refusing the Society's request for the reason that
the dam did not constitute a "hydro development" within the meaning
of the Act. An application was taken for leave to appeal that decision to the
Alberta Court of Appeal which refused leave, agreeing with the Board that the
project was not a hydro development, even though it was designed to allow for
the future installation of a power generating facility: Friends of the Old
Man River Society v. Energy Resources Conservation Board (Alta.) (1988), 89
A.R. 280. Finally, Ms. Kostuch swore an information before a justice of the
peace alleging that an offence had been committed under s. 35 of the Fisheries
Act . After summonses were issued, the Attorney General for Alberta
intervened and stayed the proceedings on August 19, 1988. I have already
documented the correspondence directed to the federal Minister of the
Environment and Minister of Fisheries and Oceans through 1987 and 1988 in which
members of the Society sought to have the Guidelines Order invoked, all
to no avail. This action was taken shortly after the Trial Division of the
Federal Court in Canadian Wildlife held that the Guidelines Order
was binding on the Minister of the Environment.
In my view, this
chronology of events represents a concerted and sustained effort on the part of
the Society to challenge the legality of the process followed by Alberta to
build this dam and the acquiescence of the appellant Ministers. While these
events were taking place, construction of the dam continued, despite ongoing
legal proceedings, and as at the date of the hearing before this Court, counsel
for Alberta advised that the dam had been substantially completed. I can find
no evidence that Alberta has suffered any prejudice from any delay in taking this
action; there is no indication whatever that the province was prepared to
accede to an environmental impact assessment under the Guidelines Order
until it had exhausted all legal avenues, including an appeal to this Court.
The motions judge did not weigh these considerations adequately or at all.
Accordingly, the Court of Appeal was justified in interfering with the exercise
of his discretion on this point.
The remaining
ground for refusing to grant prerogative relief was on the basis of futility, namely
that environmental impact assessment under the Guidelines Order would be
needlessly repetitive in view of the studies that were conducted in the past.
In my view this was not a proper ground to refuse a remedy in these
circumstances. Prerogative relief should only be refused on the ground of
futility in those few instances where the issuance of a prerogative writ would
be effectively nugatory. For example, a case where the order could not
possibly be implemented, such as an order of prohibition to a tribunal if
nothing is left for it to do that can be prohibited; see de Smith, supra,
at pp. 427-28. It is a different matter, though, where it cannot be determined
a priori that an order in the nature of prerogative relief will have no
practical effect. In the present case, aside from what Stone J.A. has already
said concerning the qualitative differences between the process mandated by the
Guidelines Order and what has gone before, it is not at all obvious that
the implementation of the Guidelines Order even at this late stage will
not have some influence over the mitigative measures that may be taken to
ameliorate any deleterious environmental impact from the dam on an area of
federal jurisdiction. I have therefore concluded that the Court of Appeal did
not err in interfering with the motions judge's exercise of discretion to deny
the relief sought.
On the matter of
costs, it is my view that this is a proper case for awarding costs on a
solicitor-client basis to the respondent Society, given the Society's
circumstances and the fact that the federal Ministers were joined as appellants
even though they did not earlier seek leave to appeal to this Court.
Disposition
For these reasons,
I would dismiss the appeal, with the exception that there shall be no order in
the nature of mandamus directing the Minister of Fisheries and Oceans to comply
with the Guidelines Order, with solicitor and client costs to the
respondent throughout. I would answer the constitutional question in the
negative.
//Stevenson//
The following are
the reasons delivered by
Stevenson J. (dissenting) -- I have had
the benefit of reading the judgment of my colleague La Forest J. and
respectfully disagree with him on three points. In my view,
1. The Crown is not
bound by the Navigable Waters Protection Act ,
R.S.C., 1985, c. N-22 ("N.W.P.A. ").
2. The Federal
Court of Appeal, [1990] 2 F.C. 18, wrongly interfered with the discretion
exercised by the motions judge in refusing the prerogative remedy.
3. The appellants
should not be called upon to pay costs on a solicitor and client basis.
I agree with his
analysis of the constitutional questions and with his interpretation of the
provisions implementing the Environmental Assessment and Review Process
Guidelines Order, SOR/84-467.
1. Crown Immunity
The question here
is a simple one: is the Crown bound by the N.W.P.A. ? For the purposes
of this discussion, no distinction is to be drawn between the federal and
provincial Crowns. The Crown is indivisible for this purpose: Alberta
Government Telephones v. Canada (Canadian Radio-television and
Telecommunications Commission), [1989] 2 S.C.R. 225, at pp. 272-73.
Pursuant to the Interpretation
Act, R.S.C., 1985, c. I-21 (formerly R.S.C. 1970, c. I-23), the Crown is
not bound by legislation unless it is mentioned or referred to in the
legislation. This has been interpreted in Alberta Government Telephones,
at p. 281, as follows:
It
seems to me that the words "mentioned or referred to" in s. 16 [now
s. 17 ] are capable of encompassing: (1) expressly binding words ("Her
Majesty is bound"); (2) a clear intention to bind which, in Bombay
terminology, "is manifest from the very terms of the statute", in
other words, an intention revealed when provisions are read in the context of other
textual provisions, as in Ouellette, supra; and, (3) an intention
to bind where the purpose of the statute would be "wholly frustrated"
if the government were not bound, or, in other words, if an absurdity (as
opposed to simply an undesirable result) were produced. These three points
should provide a guideline for when a statute has clearly conveyed an intention
to bind the Crown.
All parties agree
that there are no words in the N.W.P.A. "expressly binding"
the Crown. In my view, it also cannot be said that a clear intention to bind
the Crown "is manifest from the very terms of the statute". In
making that determination, one is confined to the four corners of the statute.
We must not forget that Province of Bombay v. Municipal Corporation of Bombay,
[1947] A.C. 58 (P.C.), is no longer applicable in light of the express
provisions of the Interpretation Act , except to the extent that it is
adopted as it was in Alberta Government Telephones, which I take to be
governing.
The respondent
Society must therefore show that excluding the Crown would wholly frustrate
the purpose of the N.W.P.A. or produce an absurdity. I am reminded by
the Privy Council in Bombay that if the intention is to bind the Crown,
"nothing is easier than to say so in plain words" (p. 63).
Does the failure to
include the Crown work an absurdity? It is not enough that there be a gap: Alberta
Government Telephones, at p. 283. The N.W.P.A. applies to private
and municipal undertakings and a moment's reflection reveals that there are
many non-governmental agencies whose activities are thus subject to the N.W.P.A.
There is thus no emasculation of the N.W.P.A.
Nor are the courts
to assume bad faith on the part of the Crown in carrying out activities which
might otherwise be regulated.
If the Crown
interferes with public rights of navigation, that wrong is remediable by
action. In short, there is no ground for saying that the N.W.P.A. will
be frustrated by actions of government. There is ample scope in the regulation
of non-governmental activities, and it cannot be said the object of the N.W.P.A.
is frustrated.
I must mention
briefly an argument that in invoking the N.W.P.A. , the appellant Alberta
accepted the burden of the environmental regulation regime. There is no
significant benefit in approval under the N.W.P.A. Tort actions may
still lie. The N.W.P.A. does not expressly confer benefits of any
type. Moreover, it is not clear that approval under s. 5 of the N.W.P.A.
would necessarily provide any protection from possible actions in tort. In Champion
v. City of Vancouver, [1918] 1 W.W.R. 216 (S.C.C.), Fitzpatrick C.J. of
this Court held at pp. 218-19 that:
In
considering the interpretation to be put upon this Act [the N.W.P.A. ,
R.S.C. 1906, c. 115], it must be borne in mind that every work constructed in
navigable waters is not necessarily such an interference with navigation as to
constitute an illegal obstruction. It may, however, be so and, as such, liable
to be removed by the proper authority. It is therefore of great advantage to
persons proposing to construct works for which there is no sanction to be able
to obtain beforehand the approval of the Governor-in-Council under sec. 7; the
provision is, however, purely permissive and the section does not provide for
any consequences following upon the approval, certainly not that it shall
render legal anything which would be illegal. Any interference with a
public right of navigation is a nuisance which the Courts can order abated
notwithstanding any approval by the Governor-in-Council under sec. 7. [Emphasis
added.]
2. Discretion
The remedies sought
by the respondent Society are discretionary: Harelkin v. University of
Regina, [1979] 2 S.C.R. 561, at p. 574: "The principle that certiorari
and mandamus are discretionary remedies by nature cannot be
disputed", and D. P. Jones and A. S. de Villars, Principles of
Administrative Law (1985), at pp. 372-73.
Interference by an
appellate court is only warranted when a lower court has "gone wrong in
principle" or "has given no weight (or no sufficient weight) to those
considerations which ought to have weighed with [it]": Polylok Corp. v.
Montreal Fast Print (1975) Ltd., [1984] 1 F.C. 713 (C.A.), at p. 724.
The Federal Court
of Appeal was clearly wrong in dismissing the motions judge's conclusion on the
question of delay, which it was "not persuaded" was well-founded in
principle. The Court of Appeal says the respondent Society did not become
aware of the grant of the approval under the N.W.P.A. until some two
months before the proceedings were actually launched. In fact, it knew of the
approval some 14 months beforehand and the principal promoters of the Society
knew even before then.
The common law has
always imposed a duty on an applicant to act promptly in seeking extraordinary
remedies:
Owing
to their discretionary nature, extraordinary and ordinary review remedies must
be exercised promptly. Donaldson J. of the Court of Appeal of England aptly
explained the principle in R. v. Aston University Senate [[1969] 2 Q.B.
538, at p. 555]: "The prerogative remedies are exceptional in their nature
and should not be made available to those who sleep upon their rights".
(R.
Dussault and L. Borgeat, Administrative Law (2nd ed. 1990), vol. 4, at
pp. 468-69.)
That duty was
recognized by Laskin C.J. on behalf of this Court in P.P.G. Industries
Canada Ltd. v. Attorney General of Canada, [1976] 2 S.C.R. 739, at p. 749:
In
my opinion, discretionary bars are as applicable to the Attorney General on
motions to quash as they admittedly are on motions by him for prohibition or in
actions for declaratory orders. The present case is an eminently proper one
for the exercise of discretion to refuse the relief sought by the Attorney
General. Foremost among the factors which persuade me to this view is the
unexplained two year delay in moving against the Anti-dumpting Tribunal's
decision. [Emphasis added.]
The importance of
acting promptly when seeking prerogative relief has also been recognized in
much of the legislation now governing judicial review. For example, Ontario's Judicial
Review Procedure Act, R.S.O. 1990, c. J.1, empowers a court to extend the prescribed
time for initiating an application for judicial review, but only where it is
satisfied that there are prima facie grounds for relief and no
substantial prejudice or hardship will result to those who would be affected by
the delay (s. 5 ). Under British Columbia's Judicial Review Procedure Act,
R.S.B.C. 1979, c. 209, an application for judicial review may be barred by the
affluxion of time if a court considers that substantial prejudice or hardship
will result by reason of the delay (s. 11). The Federal Court Act,
R.S.C., 1985, c. F-7, s. 28(2) stipulates than an application for judicial
review before the Federal Court of Appeal must be made within ten days from the
time the impugned decision or order is first communicated. That time limit can
only be extended with leave of the court. In Alberta, Rule 753.11(1) of the Alberta
Rules of Court (Alta. Reg. 390/68) stipulates that where the relief sought
is the setting aside of a decision or act, the application for judicial review
must be filed and served within six months after that decision or act.
Finally, in art. 835.1 of Quebec's Code of Civil Procedure, R.S.Q., c.
C-25, which applies to all extraordinary remedies, it is stipulated that
motions must be served "within a reasonable time". The Court of
Appeal of Quebec held in Syndicat des employés du commerce de
Rivière-du-Loup (section Émilio Boucher, C.S.N.) v. Turcotte, [1984] C.A.
316, at p. 318, that: [translation]
"This article [835.1] merely codified the common law rule that the remedy
must be exercised within a reasonable time".
By the time this
application was brought, the dam was 40 per cent complete. A significant
amount of public money had already been spent. It is a matter of public record
that individual members of the respondent Society were aware of the approval
issued under the N.W.P.A. prior to February, 1988. Even if such were
not the case, the respondent Society still could have launched its action in
early 1988. At that time, major construction had not yet taken place. Had the
respondent Society initiated proceedings then as compared to April of 1989, the
appellant Alberta would have been in a much better position objectively to
assess any potential legal risk associated with continuing. Faced with the
possibility of invalid federal approval, it may well have chosen at that point
not to put out the public funds that it did.
After years of
extensive planning, innumerable public hearings, environmental studies and
reports, and after the establishment of various councils and committees for the
purpose of reviewing proposals that were put forward, the appellant Alberta
embarked upon an enormous undertaking to meet the needs of its constituents.
It did so at the expense of the public. And it did so after having been advised
by the federal government that it could legitimately proceed. The Oldman River
dam no doubt necessitates comprehensive administration. Its construction also
involves a significant number of contracts with third parties. Given the
enormity of the project and the interests at stake, it was unreasonable for the
respondent Society to wait 14 months before challenging the decision of the
Minister of Transport. In the context of this case, it was imperative that the
respondent Society respect the common law duty to act promptly.
Had the respondent
Society acted more promptly, the appellant Alberta would have been able to
assess its position without regard to the economic and administrative
commitment that was a reality by the time these proceedings were launched. It
is impossible to conclude that the appellant Alberta was not prejudiced by the
delay. Moreover, the motions judge made a finding on prejudice, and found that
there was no justification for waiting to launch the attack until the dam was
nearly 40 per cent completed.
The rationale for
requiring applicants for prerogative relief to act promptly is to enable their
erstwhile respondents to act upon the authority given to them. The applicant
cannot invoke the fact that the respondent did what he or she was legally
entitled to do as an answer to its own delay. Such a view would put a premium
on delay and deliver the wrong message to those who plan prerogative
challenges.
My colleague, La
Forest J., would also give some weight to the fact that the appellant Alberta
was aware of the opposition of the respondent Society and others because of the
other unsuccessful challenges by the Society and others. In my view, those
challenges are completely irrelevant to this question. Those attacks were all
ill-founded, and the appellant Alberta was not bound to expect that these
peripheral and collateral proceedings presaged a fundamental attack on the
original permit. The fact that detractors are harassing a travelling train
does not put one on guard against the proposition that they are going to attack
the authority to depart in the first instance. In my opinion, those activities
need not have been taken into consideration by the motions judge. None of the
activities undertaken by the Society or its members precluded the respondent
Society from undertaking this challenge.
The activities
referred to by my colleague were qualitatively different from that which is
sought in this action, and irrelevant to the issue at hand. The applications
for certiorari brought by the respondent Society in October 1987 and
early 1988 respectively, were directed at interim licences issued by Alberta's
Minister of Environment pursuant to that province's Water Resources Act,
R.S.A. 1980, c. W-5. The petitioning of the Alberta Energy Resources
Conservation Board focused on the hydro-electric aspects of the dam. The
information sworn before a justice of the peace alleged an offence pursuant to
the federal Fisheries Act, R.S.C., 1985, c. F-14 .
This action centres
on the constitutionality and applicability of the Environmental Assessment
and Review Process Guidelines Order. It raises new and different issues.
The previous efforts of the respondent Society were not necessary
preliminaries; they were separate and distinct from the relief sought here. It
is my view that in determining whether he should exercise his discretion
against the respondent Society, Jerome A.C.J. was obliged to look only at those
factors which he considered were directly connected to the application before him.
He was clearly in the best position to assess the relevancy of that put forward
by the parties. Interference with his exercise of discretion is not warranted
unless it can be said with certainty that he was wrong in doing what he did.
For the reasons stated above, I am of the opinion that the test has not been
met in this case.
3. Costs
I see no
justification for awarding the respondent Society costs on a solicitor and
client basis. The general rule in this Court is that a successful party
recovers costs on the usual party and party basis. That was the rule applied by
the courts below. My colleague proposes an award of solicitor and client costs
extending to the courts below. I see no ground for suggesting they were in
error, and I see no ground for our departing from our own general rule. Public
interest groups must be prepared to abide by the same principles as apply to
other litigants. Were we to produce special rules for such litigants, we would
jeopardize an important principle: those undertaking litigation must be
prepared to accept some responsibility for the costs. I see nothing here to
justify calling upon the taxpayers to meet the solicitor and client costs of
this party.
4. Conclusion
I would allow the
appeal with costs.
Appeal dismissed,
with the exception that there should be no order in the nature of mandamus
directing the Minister of Fisheries and Oceans to comply with the Guidelines
Order. Stevenson J. is dissenting.
Solicitors for the
appellant Her Majesty the Queen in right of Alberta: Milner & Steer,
Edmonton.
Solicitor for the
appellants the Minister of Transport and the Minister of Fisheries and Oceans:
John C. Tait, Ottawa.
Solicitors for the
respondent: Gowling, Strathy & Henderson, Ottawa.
Solicitors for the
intervener the Attorney General of Quebec: Jean‑K. Samson, Alain Gingras
and Denis Lemieux, Ste‑Foy.
Solicitor for the
intervener the Attorney General for New Brunswick: The Attorney General for
New Brunswick, Fredericton.
Solicitor for the intervener
the Attorney General of Manitoba: The Attorney General of Manitoba, Winnipeg.
Solicitor for the
intervener the Attorney General of British Columbia: The Attorney General of
British Columbia, Victoria.
Solicitor for the
intervener the Attorney General for Saskatchewan: Brian Barrington‑Foote,
Regina.
Solicitor for the
intervener the Attorney General of Newfoundland: Paul D. Dicks, St. John's.
Solicitor for the
intervener the Minister of Justice of the Northwest Territories: The Department
of Justice, Yellowknife.
Solicitors for the
intervener National Brotherhood/Assembly of First Nations: Hutchins, Soroka
& Dionne, Montréal.
Solicitors for the
intervener the Dene Nation and the Metis Association of the Northwest
Territories: McCuaig Desrochers, Edmonton.
Solicitors for the
intervener the Native Council of Canada (Alberta): McCuaig Desrochers,
Edmonton.
Solicitors for the
interveners the Sierra Legal Defence Fund, the Canadian Environmental Law
Association, the Sierra Club of Western Canada, the Cultural Survival (Canada)
and the Friends of the Earth: Gregory J. McDade, Vancouver; Judith B.
Hanebury, Calgary.
Solicitor for the
intervener the Alberta Wilderness Association: Martin W. Mason, Ottawa.