Date: 20010313
Docket: A-257-98
Citation: 2001 FCA 58
CORAM: STRAYER, J.A.,
LINDEN, J.A.,
SEXTON, J.A.
BETWEEN:
SHARON BOWCOTT, on behalf of the Band Council
of the TSAWWASSEN INDIAN BAND and the Members
of the TSAWWASSEN INDIAN BAND also known as the
TSAWWASSEN FIRST NATION
Appellants
- and -
MINISTER OF FINANCE,
MINISTER OF ENVIRONMENT and
VANCOUVER PORT CORPORATION
Respondents
REASONS FOR JUDGMENT OF THE COURT
(Delivered orally from the Bench at
Vancouver, British Columbia on March 13, 2001)
LINDEN, J.A.
[1] This is an appeal from an order of the Trial Division dismissing two applications for judicial review in relation to the following two decisions:
1. a decision of the Minister of Finance dated February 23, 1995 approving the borrowing by the Vancouver Port Corporation ("VPC") from the Export Development Corporation, pursuant to s. 127 of the Financial Administration Act, R.S.C. 1985 c. F-11 to build the Deltaport Terminal Project ("Department"); and
2. a decision of the Minister of Environment dated December 19, 1995 to the effect that there was no authority under s. 48 of the Canadian Environment Assessment Act S.C. 1982, c. 37 ("CEAA") to refer Deltaport to a mediator pursuant to s. 29 of the Act.
Because of these two decisions, the appellant contends that an environmental assessment must be done under section 5 of the CEAA,
The Facts
[2] The appellant, Sharon Bowcott, was the elected Chief of the Tsawwassen First Nation ("TFN") a Band under the Indian Act. This Band of 300 or so individuals owns a reserve of about 640 acres on the Strait of Georgia in an area called Roberts Bank in the estuary of the Fraser River.
[3] The Vancouver Port Corporation (VPC) is a Crown Corporation under the Financial Administration Act, which operates inter alia, port facilities at Roberts Bank, which were originally built in 1970. At first, there was only a bulk coal port terminal of about 49 acres attached to the mainland by a 4 kilometre causeway. This facility has been expanded periodically. It was initially composed of four pods, two of them for bulk coal, and two were undeveloped. In the 1990's, it was proposed to develop a container terminal on one of the pods ("the Project").
[4] This new container terminal project was approved by VPC Board on November 17, 1992, construction began in September 1993 and it was completed in June of 1997, somewhat later than originally planned.
[5] When the Canadian Environmental Assessment Act came into force in January 1995, the project was still under construction and had been so for 16 months. Of the total estimated cost of the project – $180 million – about $80 million had been spent or committed by January 1995.
[6] There was no environmental assessment of the project done pursuant to the new CEAA, nor was there one done under the predecessor regime, the Environmental Assessment and Review Process Guidelines Order ("EARPGO"). The VPC chose to proceed on the basis of its own review, as it considered it was not required to comply with either of these regimes because it was a Crown Corporation. (See Section 8 of the Act)
[7] The TFN objects to this, claiming that its interests have never been considered adequately by any review, even though it is accepted that there were several meetings with the VPC to discuss their concerns over the years. Moreover, there was plenty of notice about these developments which were not done in secret.
Analysis
[8] It was agreed by counsel for the appellant that the threshold question on this appeal was whether the Container Terminal Project was a "project" that was subject to the CEAA. According to section 5 of the CEAA an environmental assessment is mandated in respect of certain listed "projects". It is common ground that if there was no "project" to which the CEAA applied, the other grounds of appeal are irrelevant. That threshold matter, therefore, will be dealt with at the outset.
[9] The Application Judge concluded that no environmental assessment was required under the CEAA because the "project" in question did not fall within the definition of "project", as it is defined in section 2(1) of the CEAA. That definition reads in part:
"project" means
a) in relation to physical work, any proposed construction, operation modification, decommissioning, abandonment or other undertaking in relation to physical work, or
b) any proposed physical activity not related to be physical work that is presented....
[10] The reasons of the Application Judge explain that, because the Act requires assessments to be completed "before irrevocable decisions are made" and "as early as possible in the planning stages" of a project, the CEAA is "intended only to apply to proposed projects which are still in the planning stages on or after January 19, 1995 and for which irrevocable decisions have not been made". As construction of the project in question began before the CEAA came into force in January 1995, he concluded that the project in issue was not a "project", as defined by the CEAA and, hence, no environmental assessment pursuant to CEAA was required.
[11] We can see no error in this reasoning. The CEAA attempts to obviate potential negative environmental effects of projects in which the federal government becomes involved in order to ensure that sustainable development is achieved. The responsible authorities are required to decide whether a project should proceed and, if so, with what mitigating measures. Once a project is approved and construction is legally begun, that approval cannot be reopened. This does not mean that responsible authorities are not allowed to supervise projects after construction begins and even after the work is completed. The do. They must ensure that any conditions of approval are met and that any mitigating measure are instituted. The definition of "project" in the Act, however, makes it clear that environmental assessments must be done only of proposed construction which is still in the planning stages.
[12] It should be noted that the Shorter Oxford English Dictionary defines the words "to propose" as follows:
- to put forward for consideration ...
- to put forward for acceptance
- to lay before another ... something which one offers to do or wishes to be done.
[13] For Parliament to have enacted otherwise would be unfair to those who are responsible for building projects, as these projects could be halted or changed at any time during the construction process and, possibly, even afterwards. Parliament ensured that there would be some finality to the assessment process by defining "project" as it did. Retroactivity was to be avoided. The Application Judge rightly recognized this in his decision.
[14] In our view, the transitional provision of CEAA (s. 74) does not assist the appellant. The section states that EARPGO shall continue to apply in respect of projects that, prior to the coming into force of CEAA, were referred by the Minister of the Environment to public review and for which an Environmental Assessment Panel had been established. The appellant contends that, because no such actions were taken by the Minister, CEAA applies to those project. Such a contention is unwarranted. The section was meant to avoid imposing a new procedural regime on matters already being reviewed under EARPGO. It was not meant to furnish a new system of review under CEAA to projects that were already under construction, as explained above.
[15] It was conceded by Counsel that, in the event that there was no "project" as defined by the Act, his submissions pursuant to section 48 (1) could not be countenanced . We, therefore, make no comment on the validity of his submission, on the substance of that section.
[16] As indicated above, the other issues raised by the appellant need not be dealt with, as they all are dependant upon the applicability of the CEAA, which, as we have decided, does not apply because there was no project as defined by the Act.
[17] This decision, of course, in no way prejudices the right of the appellant to employ other avenues of redress for what they perceive to be violations of their aboriginal or other rights.
[18] The appeal will be dismissed with one set of costs to the VPC for this appeal and A-259-98.
(Sgd)"A.M. Linden"
Judge
March 13, 2001
Vancouver, British Columbia
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