Date: 19980319
Docket: T-223-96
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
Applicant
- and -
MINISTER OF FINANCE and
VANCOUVER PORT CORPORATION
Respondents
Docket: T-224-96
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
Applicant
- and -
MINISTER OF ENVIRONMENT and
VANCOUVER PORT CORPORATION
Respondents
REASONS FOR ORDER
RICHARD J.:
NATURE OF THE PROCEEDINGS
[1] On January 26, 1996, the applicant, Tsawwassen First Nation, brought an application for judicial review for the purpose of obtaining the following orders:
| In Court File No. T-223-96 |
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| 1. That the decision of the Minister of Finance, pursuant to s. 127(3) of the Financial Administration Act, approving loans from the Export Development Corporation to the Vancouver Port Corporation for the purpose of funding construction of the Deltaport Container Terminal Project, made February 23, 1995, and communicated to the applicant, January 3, 1996, be declared invalid and of no force or effect; |
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| 2. That the Minister of Finance be required to subject the Deltaport Container Terminal Project to a proper environmental assessment, considering the full environmental consequences of the Project, as required by the Canadian Environmental Assessment Act, before deciding whether to approve loans for the purpose of funding construction of the Project; |
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| 3. In the alternative, that the Vancouver Port Corporation be required to subject the Deltaport Container Terminal Project to a proper environmental assessment, considering the full environmental consequences of the Project, as required by the Canadian Environmental Assessment Act, before proceeding with construction of the Project. |
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In Court File No. T-224-96
| 1. That the decision of the Minister of Environment, made December 19, 1995, denying the Petition of the Tsawwassen First Nation submitted August 18, 1995, requesting the Minister to exercise her discretion under s. 48 of the Canadian Environmental Assessment Act (the Petition), be quashed or set aside. |
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| 2. That the Minister of Environment provide the Tsawwassen First Nation an opportunity to be heard in respect of the Petition, and further, that the Minister provide to the Tsawwassen First Nation copies of all submissions and other information considered by the Minister, or to be considered by the Minister, in exercising her discretion in respect of the Petition. |
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[2] The decision of the Minister of Finance dated February 23, 1995, which is challenged in T-223-96, reads as follows:
Mr. Norman Stark
President and Chief Executive Officer
Vancouver Port Corporation
1900 Granville Square
200 Granville Street
Vancouver, British Columbia
V6C 2P9
Dear Mr. Stark:
| I am pleased to approve, pursuant to subsection 127(3) of the Financial Administration Act, fixed and floating rate loans, not to exceed $139 million Canadian, from the Export Development Corporation on the basis of the terms and conditions set out in Annex A. |
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| These loans are for the purpose of funding construction of the Deltaport Container Terminal Project. |
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Sincerely,
The Honourable Paul Martin, P.C., M.P.
c.c.: The Honourable Douglas Young
Minister of Transport
Mr. Jean Michel Tessier, President and Chief
Executive Officer
Canada Ports Corporation
[3] A copy of this letter was sent by an official of the Canadian Environmental Assessment Agency to Chief Sharon Bowcott by letter dated December 22, 1995, which reads as follows:
Canadian Environmental
Assessment Agency
13th Floor, Fontaine Building
Hull, Quebec
K1A 0H3
Dec. 22, 1995
Chief Sharon Bowcott
Tsawwassen First Nation
Building 131 North
Tsawwassen Drive
Delta, British Columbia
V4M 4G2
Dear Chief Bowcott:
| Further to the Honourable Sheila Copps' letter to you of December 19, I am attaching for your information a letter from the Minister of Finance to the Vancouver Port Corporation. This letter indicated that the Corporation received approval under the Financial Administration Act for the Deltaport project. |
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| As the Minister indicated in her letter to you, such approval precludes the application of section 48 of the Canadian Environmental Assessment Act. |
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Sincerely,
Paul Bernier
Vice President, Operations
Attachment
[4] The decision of the Minister of Environment dated December 19, 1995, which is challenged in T-224-96, reads as follows:
Dec. 19, 1995
Chief Sharon Bowcott
Tsawwassen First Nation
Building 131 North
Tsawwassen Drive
Delta, British Columbia
V4M 4G2
Dear Chief Bowcott:
| Thank your for your letter of August 18, in which you petitioned me to exercise my authority under section 48 of the Canadian Environmental Assessment Act and refer the Deltaport container terminal project at the Roberts Bank Port to a mediator in accordance with section 29 of the Act. I apologize for the delay in responding to your letter. |
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| As you know, officials of the Canadian Environmental Assessment Agency have considered your request and examined all available information. In this regard, I must inform you that the conditions outlined in section 48 of the Act, necessary for me to intervene and refer the project to a mediator or review panel, have not been met. In particular, the Vancouver Port Corporation has received federal approvals and permits that represent an exercise of powers, duties or functions conferred by federal Acts of Parliament. Given this fact, application of section 48 of the Act is legally precluded. |
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| With respect to your Concise Statement and accompanying report, I understand the concerns that you expressed and recognize that action is needed to resolve these issues. I am advised that the Vancouver Port Corporation is willing to meet with you and your Band in order to explore your concerns, and I encourage such discussions. If you and the Port Corporation agree, Mr. Paul Scott, Director of the Vancouver office of the Canadian Environmental Assessment Agency, would be pleased to facilitate these discussions. You may contact Mr. Scott at (604) 666-2431. |
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| For your information, I have enclosed a copy of my letter to Mr. Ron Longstaffe, Chairman of the Vancouver Port Corporation. I appreciate the time and effort that you have put into your presentation, and trust that my comments are helpful. |
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Yours sincerely,
Sheila Copps
Enclosure
[5] By order of the Associate Chief Justice, dated April 1, 1996, the two proceedings were joined and ordered to be heard at the same time.
[6] The applicant did not seek interim relief and none of the deponents were cross-examined.
[7] Another judicial review application dated May 3, 1996, brought by the same applicant naming the Minister of Environment and Vancouver Port Corporation as respondents and seeking an order setting aside the decision of the Minister, in a letter dated March 28, 1996, declining to establish a Board of Review to examine Ocean Disposal Permit No. 4543-2-03137, issued to the Vancouver Port Corporation in relation to the Deltaport Container Terminal Project in Court File No. T-1033-96, was also ordered to be heard at the same time as the proceedings in T-223-96 and T-224-96. I have issued a separate order and reasons in T-1033-96.
BACKGROUND
The Project
[8] These proceedings arise out of the construction of the Deltaport Container Terminal at the Roberts Bank Port located in the Municipality of Delta, British Columbia and opened in 1970. It consists of a rectangular area of approximately 260 acres (106 hectares) of created land sited in deep water off-shore and joined to the mainland by a 4 km causeway.
[9] The Roberts Bank Port is in the estuary of the Fraser River which is one of the most ecologically important estuaries in North America.
[10] The Roberts Bank port facilities are administered and managed by the Vancouver Port Corporation (VPC), which is a local port corporation established under the provisions of the Canada Ports Corporation Act and is a Crown corporation within the meaning of the Financial Administration Act.
[11] The first port facilities at Roberts Bank were completed by the National Harbours Board (NHB) in 1970 and consisted of a 4 km causeway leading to a 49 acres (20 hectares) coal port terminal. The coal port terminal has been in operation from 1970 to the present.
[12] Between 1981 and 1984, it was expanded to its current size of approximately 260 acres. The NHB also conducted the expansion work between 1981 and 1984. Following the expansion between 1981 and 1984, the extent of the area of the Roberts Bank port facilities was, and still is at present, approximately 260 acres (106 hectares).
[13] The superport is divided into four portions, known as "pods", two of which are occupied by a bulk coal terminal operated by Westshore Terminals Limited. Up until 1993, the other two pods had remained undeveloped.
[14] It was proposed in the early 1990s to locate the Deltaport Container Terminal on one of the unoccupied pods of the Roberts Bank superport.
[15] The Board of Directors of the VPC gave final approval to the Deltaport Container Terminal on November 17, 1992. Construction of the Terminal commenced in September 1993, and was scheduled for completion by the end of December 1996. As of January 1995, when the Canadian Environmental Assessment Act (CEAA) came into force1, the Project had been under construction for 16 months and a substantial portion of the works and expenditures for the Terminal had been completed and committed respectively.
[16] The total estimated cost of the Project was $180 million of which approximately $80 million had been expanded or committed in January 1995.
[17] The Project was completed and the Terminal was fully operational by June 1997.
[18] In an affidavit dated September 11, 1997, Timothy R. Glasheen, Director, Engineering & Maintenance, the VPC, confirmed that the Deltaport Container Terminal has been constructed at cost to the VPC of approximately $180 million and has been in operation as a fully functioning container terminal since the first arrival of a container ship on June 8, 1997.
[19] In a supplementary affidavit dated September 10, 1997, Dr. A. John Jordan, Environmental Professional, stated that there was no evidence of adverse environmental impacts resulting from the construction of the terminal or the dredging works and no concerns have been raised by the Department of Fisheries and Oceans (DFO) or any other environmental regulatory authorities.
THE APPLICANT
[20] Sharon Bowcott is the elected Chief of the Tsawwassen First Nation. The Tsawwassen First Nation is a Band, within the meaning of the Indian Act2.
[21] On January 17, 1996, the Band Council of the Tsawwassen First Nation passed a revolution that an application for judicial review be made to the Federal Court and authorized Chief Sharon Bowcott to represent the Tsawwassen First Nation in such proceedings.
[22] Tsawwassen IR O is a reserve of the Tsawwassen First Nation within the meaning of the Indian Act. Tsawwassen IR O has an area of approximately 640 acres (280 hectares) and is bounded on its west side by the Strait of Georgia, and in particular that area of the Strait of Georgia known as Roberts Bank.
[23] The Roberts Bank port facility and the causeway which links it to the mainland are not located on the Tsawwassen Indian Reserve.
[24] The Tsawwassen First Nation claims that it has used and depended on marine resources, gathered from the Strait of Georgia, including the foreshore at Tsawwassen IR O, since long before the establishment of the colony of B.C. It claims that these marine resources have been depleted, and access to these resources has been greatly curtailed by development on the foreshore adjacent to the reserve during the past three decades.
[25] The following developments have taken place in areas adjacent to the reserve since 1960:
| (a) in 1962, a ferry terminal was constructed on the foreshore, accessed by a causeway and highway through Tsawwassen IR O; |
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| (b) between 1968 and 1970, a coal port was constructed on Roberts Bank to the Northwest of the ferry terminal, and access to the port was created by construction of a causeway to accommodate both rail and road access; |
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| (c) in 1971, the coal port was expanded; |
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| (d) in 1976, the ferry terminal was expanded from two to five berths; |
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| (e) between 1981 and 1984, the offshore island on which the port is located was expanded from 20 acres to 113 acres; and, |
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| (f) in 1991, the ferry terminal was expanded in size. |
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[26] The Tsawwassen First Nation has been concerned about the adequacy of environmental assessments which have been conducted in respect of developments at Roberts Bank. Environmental assessments have been conducted in respect of these developments, however, the interests of the Tsawwassen First Nation have never been adequately considered in any project review or assessment concerning developments at Roberts Bank.
[27] The applicant claims that port developments have resulted in negative environmental effects at Tsawwassen IR O.
[28] The applicant claims that the additional development of the port will result in further adverse effect on the reserve and that the environmental, social and economic effects of the Project of the Tsawwassen First Nation have not been properly assessed.
[29] At the opening of the hearing of these consolidated applications for judicial review, counsel for the applicant stated:
| MR. SLADE: The object of these applications, or what the Tsawwassen First Nation seeks is the environmental assessment of the project pursuant to the provisions of the Canadian Environmental Assessment Act. And the Tsawwassen First Nation would like to have the project properly assessed, taking into account, not just the incremental impact on their Reserve and the aboriginal interests of their community, not just the incremental impact of the container port development, but the cumulative impact of the development of the port from the 1970s to the present, having regard also for other works that have affected their way of life, activities integral to their distinctive culture. |
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| And such an assessment, My Lord, is contemplated by the Canadian Environmental Assessment Act in section 16(1)(a), an assessment of environmental effects with particular regard for the impact on aboriginal interests. It isn't the mission of the Tsawwassen First Nation -- and by the way, Sharon Bowcott is the chief -- it's not their mission to try to close this project down. It's there. It's operating. At least some aspects of it are. But they do wish to have it properly assessed so that the cumulative impacts can be determined and so that appropriate mitigation measures can be implemented should a review panel determine that mitigation is necessary. |
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| There are certain impacts that if unmitigable might be the subject of compensation and this also is something that the Tsawwassen First Nation aspires to in connection with the assessment they seek. |
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| THE COURT: But not in this proceeding? |
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IMPACT STUDIES
[30] The record discloses that there have been a number of studies or reports concerning the port facilities at Roberts Bank since the coal port terminal began operations in 1970. They can be summarized as follows:
1) March 1979 - Federal Environmental Assessment Review Office (FEARO) Report
| In 1975, the NHB proposed an expansion of the port at Roberts Bank to accommodate more storage area and terminal facilities. In 1977, the NHB prepared an Environmental Impact Statement for the proposed expansion. Commencing in November of 1977, an Environmental Assessment Panel of the Federal Environmental Assessment Review Office conducted a review of the Environmental Impact Statement and held public hearings in October and November of 1978. In March of 1979, the Environmental Assessment Panel issued its Report. |
| The Environmental Panel recommended that approval for the full expansion of four new terminal areas plus an administrative area not be granted but concluded that "the ecological damage would be minimal and other adverse impacts could be reasonably mitigated if port expansion were limited". The Panel made some recommendations to be considered in the event that the NHB determined to proceed with a reduced expansion. |
| The NHB subsequently developed a modified proposal for a reduced expansion of Roberts Bank Port. The proposal differed in some respects from that recommended by the Panel. The proposed layout of two new terminals to the west of the causeway was based upon recommendations by the Department of Fisheries and Oceans that certain valuable fish habitats in the inter-causeway area be avoided. These recommendations were drawn from other studies conducted by the DFO and NHB consultants after the Panel's report was released. The new proposal was put forth for public comment in December 1980 at Information Hearings held in Delta. |
| The NHB received approval for this modified expansion proposal and work began with the commencement of dredging operations on September 1, 1981. The expansion work was completed in 1984. The expanded coal port terminal, however, occupied only two of the four "pods" comprising the expanded terminal area. The remaining two "pods" remained undeveloped until construction of the Deltaport Container Terminal Project commenced in 1993. |
| Under the heading "Social/Community/Economic Impacts", at p. 33, paragraph 8(d), the Report states: |
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| As the community in closest proximity to the proposed development, the Tsawwassen Indian Band is most likely to receive the greatest impact from it. Communication between the Band and the proponent during preparation of the EIS was negligible. Consequently, an adequate understanding of the Band's interests and problems was never obtained. It is stated in the EIS that the Band members feel an adverse effect from the present development and that this would be increased by an expansion. It appears to the Panel that neither the Band nor the proponent understands the potential impact on this community from the proposed expansion. |
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| When assessing the social impacts of a proposed development upon a community, there may be a tendency to overlook the accumulated history of previous impacts to which the community already may have been subjected. If one wishes to measure the community's ability to withstand and accept impacts, or to understand its willingness to accept a particular project, a systematic examination of its past experience and responses should be the analyst's initial task. An historical perspective is essential. The Panel wishes to draw attention to an example of this done on the Tsawwassen Band. This is contained in the paper entitled "Social Impact Analysis in Perspective: The Tsawwassen People as an Example." |
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| There is little doubt that the Band is offended by the project proposal and appears to consider it with feelings of cynical resignation. Possible mitigation and compensation measures which would result in the Band experiencing some gains or positive impacts from the project have not been seriously explored. |
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| In addition to the quantifiable impacts such as the effects of noise and blowing coal dust, the intangibles such as reduction in quality of life and difficulty in preserving traditions are important considerations which have to be made before the project could be considered socially acceptable. |
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| 2) December 1983 and December 1985 - Roberts Bank Environmental Review Committee (RBERC) Progress Reports |
| In 1980, the RBERC was formed jointly by the federal and provincial governments, in response to a recommendation of the 1979 Panel Report, and to ensure that the recommendations contained in the Report were reasonably addressed with respect to the modified expansion. The Committee oversaw the environmental aspects of the construction of the core expansion between 1981 and 1983 and continued thereafter to work towards fulfilling its mandate by monitoring the implementation of environmental recommendations of the Panel Report. The Progress Reports of the RBERC confirm the actions taken in response to each of the recommendations of the Environmental Assessment Panel. The RBERC included representatives of Environment Canada, BC Environment, the DFO, the Canadian Wildlife Service, B.C. Lands, the Corporation of Delta and the Vancouver Port Corporation. |
| 3) September 1992 - Gartner Lee Report |
| In 1992, the VPC brought forward a proposal to establish a container terminal (now known as the Deltaport Container Terminal) on unused land (Pod 4) at the Roberts Bank Port. |
| In a letter to provincial ministries dated May 19, 1992, the Federal Environmental Assessment Review Office confirmed that the EARP Guidelines were not applicable to the project. |
| The VPC applied its Environmental Policy and Environmental Appraisal Procedures to the container terminal proposal. The VPC undertook an extensive process of consultation commencing in February of 1992 including meetings with representatives of federal and provincial governments, the municipality of Delta, the Tsawwassen First Nation and numerous environmental, community and business groups. |
| The consulting firm of Gartner Lee Limited was contracted to co-ordinate a team of consulting specialists in the preparation of an environmental appraisal. The Environmental Appraisal investigated all aspects of the project and identified potential environmental as well as social impacts and recommended appropriate mitigation measures. |
| 4) November 1992 - Independent Project Review Panel (IPRP) Report |
| In September of 1992, a three-member Panel was appointed by VPC to conduct an independent public review of the proposed container terminal. The Report describes the Panel's review process, its findings on environmental, economic and social issues and contains a summary of recommendations. The Panel concluded that the development of a container terminal at Roberts Bank is acceptable and made five recommendations concerning the project. |
| 5) November 1992 - VPC Action Plan |
| In response to the recommendations of the Independent Project Review Panel, VPC prepared an Action Plan, dated November 25, 1992. |
6) February 24, 1993 - DFO Review
| VPC had extensive discussions with the DFO concerning the proposal. By letter dated February 24, 1993, to Fraser River Estuary Management Program (FREMP), the DFO confirmed: |
| [...] having reviewed the information provided to the office, this Department does not anticipate any significant adverse impacts to fish and/or fish habitat as a result of construction of the proposed project. |
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| The DFO letter outlined terms and conditions including measures included in a Memorandum of Understanding agreed to between VPC and the DFO, on February 23, 1993, and attached to the letter. |
7) February 25, 1993 - Fraser River Estuary Management Program (FREMP) Review
| The FREMP is a non-statutory joint program of the federal, provincial and local governments to co-ordinate planning and decision making in the estuary. FREMP operates through a co-operative agreement managed by representatives from Environment Canada, or the Department of Environment (DOE); Department of Fisheries and Oceans (DFO); BC Environment, or the Ministry of Environment, Lands and Parks (MOELP); North Fraser Harbour Commission (NFHC); Fraser River Harbour Commission (FRHC); and the Greater Vancouver Regional District (GVRD). The FREMP Environmental Review Committee (ERC) reviews projects. Neither FREMP nor the ERC are government agencies and they have no legal authority of their own. |
| In August of 1992, VPC made an application to FREMP for review of the proposed container terminal. |
| By letter to VPC dated February 25, 1993, FREMP approved the application for the container terminal proposal. FREMP has also given separate approvals for dredging and temporary underwater stock piling, both of which have been completed. |
[31] Attached to the affidavit of Sharon Bowcott as Exhibit A is a Background Document for a Concise Statement prepared for the Tsawwassen First Nation by Quadra Planning Consultants Ltd. dated August 15, 1995. The applicant, in its supplementary record, admitted that this report does not constitute proof of impacts.
[32] In argument, counsel for the applicant stated:
| The Tsawwassen First Nation isn't before you to prove impacts. It's here to show that there was no assessment and that one was required, required by CEAA. If the relief that Tsawwassen seeks is granted, then the assessment will determine whether there are impacts, the nature and the scope, the extent to which they're accumulative, and any requirements for mitigation. |
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[33] The applicant also relied on the FEARO Report issued in March 1979, which is referred to earlier in my reasons. However, this report related to the construction of an expansion of Roberts Bank which was completed in 1984. The references in the FEARO Report to the Tsawwassen First Nation relate to that project and not to the Deltaport Container Terminal Project which was not proposed until 1992.
[34] In June 1992, the Minister of Transport issued a Declaration of Exemption declaring that, pursuant to the provisions of the Navigable Waters Protection Act3, he is of the opinion that the works will not interfere substantially with navigation and therefore is not subject to the provisions of subsection 5(1) of the Act.
[35] The affidavit of Raymond M. Robinson, a consultant to the Tsawwassen First Nation, sworn on January 24, 1996, that, pursuant to section 55 of the CEAA, a public registry is maintained for the purpose of facilitating public assess to records relating to environmental assessments. In addition to the registry required by the Act, the Vancouver regional office of the Canadian Environmental Assessment Agency maintains an index for administrative purposes.
[36] There has been no environmental assessment of the Project pursuant to either the CEAA or the Environmental Assessment and Review Process Guidelines Order (EARP Guidelines Order). The Vancouver Port Corporation chose not to apply EARP Guidelines Order and instead proceeded on the basis of its own environmental appraisal procedures.
[37] The affidavit of Patrick D. McLaughlin, the Project Manager, sworn March 4, 1996, states that the VPC has initiated and undertaken extensive consultations with the Tsawwassen First Nation since the inception of the Project. The first meeting took place at the applicant's office on May 29, 1992. Between May of 1992 and May of 1995, the VPC met with the applicant 13 times to discuss the Project. The applicant received copies of the Environmental Appraisal Report of Gartner Lee, the Project Update and the Independent Project Review Panel Report.
[38] The Tsawwassen First Nation implemented its own action plan in relation to the impacts of the Container Port Project. It proposed to the Vancouver Port Corporation that negotiations be undertaken, in accordance with the provisions of a draft Memorandum of Understanding. The issues identified in section 2 of the Memorandum included compensation, mitigation, economic benefits, and a role for the Tsawwassen First Nation in decision making on future port development.
[39] The applicant asserts that since the VPC was unprepared to negotiate issues of mitigation and compensation, the Tsawwassen First Nation approached officials of the Federal Government to seek an environmental assessment to address its concerns. In July 1995, Chief Bowcott travelled to Ottawa for this purpose.
[40] In August 1995, the Tsawwassen First Nation wrote to the Minister of Environment to petition the Minister to exercise her authority, under section 48 of the CEAA, to refer the Project to a mediator.
[41] On January 3, 1996, Chief Bowcott received a letter from the Minister of Environment dated December 19, 1995, refusing the Tsawwassen First Nation request that she appoint a mediator under section 48 of the CEAA.
[42] In the applicant's Memorandum of Reply, it is stated that "the applicant is not requesting the Court to pronounce on the adequacy of previous environmental assessments, but rather to determine whether an assessment is required by law".
LEGISLATIVE PROVISIONS
[43] The CEAA was proclaimed in force January 19, 1995.
[44] It contains the following preamble:
| WHEREAS the Government of Canada seeks to achieve sustainable development by conserving and enhancing environmental quality and by encouraging and promoting economic development that conserves and enhances environmental quality; |
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| WHEREAS environmental assessment provides an effective means of integrating environmental factors into planning and decision-making processes in a manner that promotes sustainable development; |
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| WHEREAS the Government of Canada is committed to exercising leadership within Canada and internationally in anticipating and preventing the degradation of environmental quality and at the same time ensuring that economic development is compatible with the high value Canadians place on environmental quality; |
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| AND WHEREAS the Government of Canada is committed to facilitating public participation in the environmental assessment of projects to be carried out by or with the approval or assistance of the Government of Canada and providing access to the information on which those environmental assessments are based; |
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[45] The purposes of the Act, as set out in section 4, are:
| (a) to ensure that the environmental effects of projects receive careful consideration before responsible authorities take actions in connection with them; |
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| (b) to encourage responsible authorities to take actions that promote sustainable development and thereby achieve or maintain a healthy environment and a healthy economy; |
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| (c) to ensure that projects that are to be carried out in Canada or on federal lands do not cause significant adverse environmental effects outside the jurisdictions in which the projects are carried out; and |
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| (d) to ensure that there be an opportunity for public participation in the environmental assessment process. |
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[. . .]
[46] Subsection 2(1) contains the following definitions:
| "environmental assessment" means, in respect of a project, an assessment of the environmental effects of the project that is conducted in accordance with this Act and the regulations; |
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[. . .]
| "federal authority" means |
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| (a) a Minister of the Crown in right of Canada, |
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| (b) an agency of the Government of Canada or other body established by or pursuant to an Act of Parliament that is ultimately accountable through a Minister of the Crown in right of Canada to Parliament for the conduct of its affairs, |
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| (c) any department or departmental corporation set out in Schedule I or II to the Financial Administration Act, and |
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| (d) any other body that is prescribed pursuant to regulations made under paragraph 59(e), |
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| but does not include the Commissioner in Council or an agency or body of the Yukon Territory or the Northwest Territories, a council of the band within the meaning of the Indian Act, The Hamilton Harbour Commissioners constituted pursuant to The Hamilton Harbour Commissioners' Act, The Toronto Harbour Commissioners constituted pursuant to The Toronto Harbour Commissioners' Act, 1911, a harbour Commission established pursuant to the Harbour Commissions Act or a Crown corporation within the meaning of the Financial Administration Act; |
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[. . .]
| "interested party" means, in respect of an environmental assessment, any person or body having an interest in the outcome of the environmental assessment for a purpose that is neither frivolous nor vexatious; |
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[. . .]
| (a) in relation to a physical work, any proposed construction, operation, modification, decommissioning, abandonment or other undertaking in relation to that physical work, or |
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| (b) any proposed physical activity not relating to a physical work that is prescribed or is within a class of physical activities that is prescribed pursuant to regulations made under paragraph 59(b); |
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| "proponent", in respect of a project, means the person, body, federal authority or government that proposes the project; |
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[. . .]
| "responsible authority", in relation to a project, means a federal authority that is required pursuant to subsection 11(1) to ensure that an environmental assessment of the project is conducted; |
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[. . .]
[47] Section 5 deals with projects requiring environmental assessment.
| 5.(1) An environmental assessment of a project is required before a federal authority exercises one of the following powers or performs one of the following duties or functions in respect of a project, namely, where a federal authority |
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| (a) is the proponent of the project and does any act or thing that commits the federal authority to carrying out the project in whole or in part; |
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| (b) makes or authorizes payments or provides a guarantee for a loan or any other form of financial assistance to the proponent for the purpose of enabling the project to be carried out in whole or in part, |
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[. . .]
[48] Assessments by Crown Corporations are dealt with in section 8.
| 8.(1) Before a Crown corporation within the meaning of the Financial Administration Act or any corporation controlled by such a corporation exercises a power or performs a duty or function referred to in paragraph 5(1)(a), (b) or (c) in relation to a project, the Crown corporation shall ensure or require the corporation controlled by it to ensure, as the case may be, that an assessment of the environmental effects of the project is conducted in accordance with any regulations made for that purpose under paragraph 59(j) as early as is practicable in the planning stages of the project and before irrevocable decisions are made. |
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| (2) Notwithstanding section 5, an environmental assessment of a project is not required by reason only of the authorization or approval by a minister of the Crown in right of Canada granted under any other Act of Parliament or any regulations made thereunder in respect of the exercise of a power or the performance of a duty or function referred to in paragraph 5(1)(a), (b) or (c) in relation to the project by a Crown corporation within the meaning of the Financial Administration Act. |
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[49] The timing of an assessment is set out in section 11.
| 11.(1) Where an environmental assessment of a project is required, the federal authority referred to in section 5 in relation to the project shall ensure that the environmental assessment is conducted as early as is practicable in the planning stages of the project and before irrevocable decisions are made, and shall be referred to in this Act as the responsible authority in relation to the project. |
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[. . .]
[50] Section 48 deals with the referral of a project to a mediator or a review panel.
| 48.(1) Where no power, duty or function referred to in section 5 or conferred by or under any other Act or Parliament or regulation is to be exercised or performed by a federal authority in relation to a project that is to be carried out in Canada and the Minister is of the opinion that the project may cause significant adverse environmental effects on |
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| (a) lands in a reserve that is set apart for the use and benefit of a band and that is subject to the Indian Act, |
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| (b) federal lands other than those mentioned in paragraph (a), |
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| (c) lands that are described in a land claims agreement referred to in section 35 of the Constitution Act, 1982 and that are prescribed, |
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| (d) lands that have been set aside for the use and benefit of Indians pursuant to legislation that relates to the self-government of Indians and that are prescribed, or |
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| (e) lands in respect of which Indians have interests, |
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| the Minister may refer the project to a mediator or a review panel in accordance with section 29 for an assessment of the environmental effects of the project on those lands. |
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[. . .]
| (4) The Minister shall consider whether to make a reference pursuant to subsection (1) or (2) |
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[. . .]
| (b) on receipt of a petition that is |
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| (i) signed by one or more persons each of whom has an interest in lands on which the project may cause significant adverse environmental effects, and |
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| (ii) accompanied by a concise statement of the evidence supporting the contention of the petitioner that the project may cause significant adverse environmental effects in respect of which a reference may be made pursuant to subsection (1) or (2). |
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[. . .]
[51] Section 16 lists the factors to be considered in the course of a screening or study of a project and in the mediation or assessment by a review panel. They include:
| (a) the environmental effects of the project, including the environmental effects of malfunctions or accidents that may occur in connection with the project and any cumulative environmental effects that are likely to result from the project in combination with other projects or activities that have been or will be carried out; |
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| (b) the significance of the effects referred to in paragraph (a); |
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| (c) comments from the public that are received in accordance with this Act and the regulations; |
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| (d) measures that are technically and economically feasible and that would mitigate any significant adverse environmental effects of the project; |
|
[. . .]
GENERAL PRINCIPLES
[52] In respect of environmental assessment legislation, generally, Mr. Justice La Forest stated, in Friends of the Oldman River Society v. Canada (Minister of Transport)4:
| 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. |
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| 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. |
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[53] The CEAA succeeded the Guidelines Order.
[54] In Québec (Communauté urbaine) v. Corp. Notre-Dame de Bon-Secours5, Mr. Justice Gonthier, in dealing with rules of construction, stated:
| At page 87 of his text Construction of Statutes (2nd ed. 1983), Driedger fittingly summarizes the basic principles: ". . . the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament". |
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[55] The issues raised by the applicant call for statutory interpretation.
ISSUES
Obligations of the Vancouver Port Corporation
[56] The applicant submits that the following issues arise in respect of the obligations of the VPC as proponent of the Project:
| (a) Was the VPC required, pursuant to the CEAA, to assess the environmental effects of the Project upon proclamation of the CEAA? |
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| (b) Has the VPC assessed the environmental effects, as defined in the CEAA, of the Project? |
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| (c) Is the VPC now required to undertake an assessment of the environmental effects, as defined in the CEAA, of the Project. |
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[57] At the hearing, counsel for the applicant sought this additional relief:
| an Order that the VPC be required to conduct an assessment of the environmental effect of the Project on the Tsawwassen First Nation, taking into account the factors set out in s. 16(1) of CEAA. |
|
[58] Since the applicant claims that an environmental assessment must be carried out pursuant to the CEAA, I must first determine whether, in the circumstances of this case, the CEAA applies to this Project.
[59] The VPC made irrevocable commitments which committed it to carry out the Deltaport Container Terminal as a whole in 1992 and construction commenced in September of 1993.
[60] The definition of "project" under the CEAA refers to physical works or activities which are "proposed" at or after the time the CEAA came into effect. This does not apply to the Deltaport Container Terminal.
[61] The CEAA specifies that environmental assessments, where required, must be completed "before irrevocable decisions are made" and "as early as possible in the planning stages" of a "project"6. These provisions make it clear that 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.
[62] Accordingly, the Deltaport Container Terminal is not a "project" within the proper meaning of that term under the CEAA, and the provisions of the CEAA are not applicable.
[63] In the Oldman River case, the retroactive applications of the EARP Guidelines Order was not in issue. The EARP Guidelines Order was issued in 1984. In the Oldman River case, construction of the Project did not commence until 1988.
[64] In any event, an environmental assessment under the CEAA is only required when one of the triggering events listed in the CEAA has occurred.
[65] There are only two ways in which the CEAA could potentially apply to the VPC.
[66] First, if a "federal authority" exercises one of four specified powers, duties or functions with respect to a project.
[67] The federal authority that exercises a section 5 power, duty or function is known as the "responsible authority" and is responsible for ensuring that the environmental assessment is conducted. Under the CEAA, the obligation to ensure that an environmental assessment is conducted lies with the responsible authority, and no one else.
[68] The general provision in the CEAA which imposes an obligation on a federal authority to conduct an environmental assessment is subsection 5(1). Crown corporations are expressly excluded from the definition of "federal authority" contained in section 2 of the Act. Accordingly, the VPC is not required to conduct an environmental assessment under subsection 5(1) of the CEAA.
[69] The only section of the Act which alludes to the possibility of an environmental assessment being triggered by a Crown corporation, as a proponent of a project, is subsection 8(1). Unless an environmental assessment is triggered under subsection 8(1), the CEAA does not apply, and the VPC is not required to conduct an environmental assessment.
[70] Subsection 8(1) provides that:
| 8.(1) Before a Crown corporation within the meaning of the Financial Administration Act or any corporation controlled by such a corporation exercises a power or performs a duty or function referred to in paragraph 5(1)(a), (b) or (c) in relation to a project, the Crown corporation shall ensure or require the corporation controlled by it to ensure, as the case may be, that an assessment of the environmental effects of the project is conducted in accordance with any regulations made for that purpose under paragraph 59(j) as early as is practicable in the planning stages of the project and before irrevocable decisions are made. [Emphasis added.] |
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[71] No regulations have been adopted under paragraph 59(j) for the purpose of requiring Crown corporations to conduct environmental assessments in relation to a project.
[72] Sections 7 to 10 of the CEAA are listed under the subject heading "excluded projects", and contain provisions excluding various types of projects, authorizations and approvals from the general environmental assessment requirements found in section 5 of the Act7.
[73] In this context, subsection 8(1) provides that a Crown corporation will only be required to conduct an assessment under the CEAA in accordance with any regulations that may be passed pursuant to paragraph 59(j) of the Act. To date, no such regulations have been passed. Accordingly, Crown corporations are not required to conduct environmental assessments pursuant to subsection 8(1).
[74] These provisions are consistent with the Act as a whole, which establishes a separate assessment regime for Crown corporations by excluding them from the definition of "federal authority" under section 2 of the Act, and by the inclusion of section 8 under the subject heading "excluded projects". Crown corporations will only be required to conduct environmental assessments under the CEAA if the Governor in Council adopts regulations imposing that requirement.
[75] Where a statute provides that something is to be done in accordance with regulations, and there are no regulations in place, it is not the function of the Court to create regulations. Until such time as appropriate regulations have been passed pursuant to paragraph 59(j) of the Act, Crown corporations are exempt from the general assessment requirements of the CEAA.
[76] The applicant argues that, in the absence of regulations under paragraph 59(j), the obligations of a Crown corporation are to be determined by reference to the Act as a whole, and specifically to the Preamble and the Purpose found in section 4. In my view, in the present case, the language and legislative intent of the Act clearly direct that Crown corporations are to be treated differently.
[77] This does not mean that Parliament intended to exempt Crown Corporations from applying any environmental assessment process. The purpose of subsection 8(1) of the CEAA is to ensure that Crown corporations are required to conduct an assessment of the environmental effects of the Project in accordance with any regulations made for that purpose under paragraph 59(j).
[78] The approach taken to Crown corporations under the CEAA is also consistent with the approach towards Crown corporations that prevailed under the EARP Guidelines Order wherein Crown corporations were given the option to voluntarily adopt EARP Guidelines Order's environmental assessment guidelines or to develop their own procedures.
[79] Second, section 8 of the CEAA does not require the VPC as a Crown Corporation to conduct an environmental assessment. Subsection 8(1) of the CEAA only requires Crown corporations to undertake an "assessment of environmental effects" of a project. This is different from the obligation placed on federal authorities under section 11 of the CEAA which requires that federal authorities ensure that "an environmental assessment is conducted".
[80] "Environmental assessment" is a term of art and is defined in section 2 of the CEAA as follows,
| "environmental assessment" means, in respect of a project, an assessment of the environmental effects of the project that is conducted in accordance with this Act and the regulations; |
|
[81] Crown corporations are specifically not required to conduct and "environmental assessment", a defined term which entails conducting same in accordance with the Act, but rather, are required to ensure that,
| an assessment of the environmental effects of the project is conducted in accordance with any regulations made for that purpose under paragraph 59(j)... |
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[82] If Parliament had wanted Crown corporations to conduct an "environmental assessment" in accordance with the Act, then Parliament could very easily have stated as much in subsection 8(1) of the CEAA. Rather, up and until regulations under paragraph 59(j) are in place, Crown corporations are only required to ensure that an assessment of environmental effects of a project is undertaken.
[83] "Environmental effects" in respect of a project are defined in section 2 of the CEAA as follows:
| (a) any change that the project may cause in the environment, including any effect of any such change on health and socio-economic conditions, on physical and cultural heritage, on the current use of lands and resources for traditional purposes by aboriginal persons, or on any structure, site or thing that is of historical, archaeological, paleontological or architectural significance, and, |
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| (b) any change to the project that may be caused by the environment, |
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| whether any such change occurs within or outside Canada; |
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[84] The VPC assessed the environmental effects of the Deltaport Project, as defined in section 2 of the CEAA. In so doing, the VPC has complied with its obligations under subsection 8(1) of the CEAA.
[85] At the time that the Deltaport Project was developed, the EARP Guidelines Order was still in force.
[86] Pursuant to EARP Guidelines Order, the VPC decided to develop its own environmental assessment process, adopting its own "Environmental Policy and Guidelines" and its own "Environmental Appraisal Procedures".
[87] The VPC applied its own procedures with respect to the Deltaport Project, conducting a lengthy environmental assessment with public consultation.
[88] The VPC did conduct an environmental assessment for this Project and that assessment was done according to the law in force at the time the assessment was required to be done.
[89] There have also been a number of assessments which, from the viewpoint of the applicant, were not adequate or were deficient. However, what the applicant seeks is a determination whether an environmental assessment under the CEAA is required. The answer is that such an assessment is not required in these circumstances.
Obligations of the Minister of Finance
[90] The applicant submits that the following issues arise with respect to the application of the CEAA to the approval by the Minister of Finance, dated February 23, 1995:
| (a) Was the Minister of Finance required, pursuant to the CEAA, to conduct an environmental assessment prior to approving loans from the Export Development Corporation to the Vancouver Port Corporation for the purpose of constructing the Project? |
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| (b) Is the decision of the Minister of Finance, approving loans from the Export Development Corporation to the Vancouver Port Corporation for the purpose of funding the Project, made February 23rd, 1995, of no force and effect as a consequence of his failure to conduct an environmental assessment? |
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| (c) Is the Minister of Finance now required to subject the Project to an environmental assessment pursuant to the CEAA? |
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[91] This approval was given after the coming into force of the CEAA.
[92] The applicant contends that the Minister of Finance is required by paragraph 5(1)(b) of the CEAA to conduct an environmental assessment of the Deltaport Project, due to the approval that it issued under section 127(3) of the Financial Administration Act.
[93] Paragraph 5(1)(b) of the CEAA requires a federal authority to conduct an environmental assessment where it,
| makes or authorizes payments or provides a guarantee for a loan or any other form of financial assistance to the proponent for the purpose of enabling the project to be carried out in whole or in part [. . .] |
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[94] Subsection 127(3) of the Financial Administration Act reads,
| No Crown corporation shall enter into any particular transaction to borrow money without the approval of the Minister of Finance with respect to the time and the terms and conditions of the transaction. |
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[95] The Minister of Finance, by letter dated February 23, 1995, granted an approval to the VPC to seek a loan from the Export Development Corporation for the construction of Deltaport.
[96] The Minister of Finance did not grant any financial assistance to the VPC regarding Deltaport Project, rather it was the Export Development Corporation that provided the financial assistance. The VPC is required by law to obtain approval from the Minister of Finance before borrowing money. The VPC obtained this approval and then sought its financial assistance for the Project from the Export Development Corporation.
[97] The ministerial approval required by subsection 127(3) of the Financial Administration Act merely enables the VPC to seek financial assistance from a third party. Such approval does not in any way constitute a guarantee that that financial assistance will be obtained.
[98] Because the Minister of Finance has not provided financial assistance to the VPC in respect of the Deltaport Project, it is not a responsible authority under the Act.
[99] The Minister of Finance is not required to conduct an environmental assessment pursuant to the CEAA prior to approving loans from the Export Development Corporation to the VPC.
Obligations of the Minister of Environment
[100] The applicant submits that the following issues arise with respect to the consideration by the Minister of Environment of the Petition of the Tsawwassen First Nation pursuant to section 48 of the CEAA:
| (a) Did the Minister of Environment fail to act fairly, or deny natural justice to the Tsawwassen First Nation, when she failed to provide notice of, and an opportunity to respond to, briefs and information considered in making her decision to deny the Petition of the Tsawwassen First Nation? |
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| (b) Is the decision of the Minister of Environment to deny the Petition of the Tsawwassen First Nation of no force or effect in consequence of the Minister's failure to act fairly or denial of natural justice? |
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[101] If the respondents' submission is correct that section 48 of the CEAA does not apply on the ground that the authority of the Minister of Environment to entertain the petition has been ousted, it follows that the procedural fairness issue raised by the applicant has no application to the case at bar.
[102] In order to respond to the applicant's subsection 48(1) petition, the Minister was required to make the purely factual finding of whether any power, duty or function "under any other Act of Parliament or regulation" had been exercised with respect to the Deltaport Project. The most efficient way in which to make this determination was to ask the proponent itself, the VPC.
[103] Acting on behalf of the Minister of Environment, by way of a letter dated October 19, 1995, Paul Bernier, Vice President of the Agency, requested information from the VPC regarding the existence of any,
| particular approvals that were granted in connection with the Deltaport project, who issued these approvals and under what authority they were issued, i.e. what sections of what statutes. |
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[104] Mr. Bernier sent a copy of this letter to Chief Sharon Bowcott and stated his intention to do so in the letter of October 19, 1995,
| In order to ensure that all interested parties are aware of the steps we are taking, I am copying this letter to Chief Sharon Bowcott of the Tsawwassen First Nation. |
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[105] In the response to this letter, the Agency learned that the Minister of Finance had exercised a "power, duty or function [. . .] under any other Act of Parliament", to wit, an approval for the VPC to borrow money under subsection 127(3) of the Financial Administration Act. This approval is found in a letter from the Minister of Finance to the VPC, dated February 23, 1995.
[106] I find that the jurisdiction of the Minister of Environment under subsection 48(1) was ousted. One of the factual conditions precedent to the application of subsection 48(1) had not been met.
[107] The Minister of Environment advised the applicant, by letter dated December 19, 1995, that she was legally prevented from applying subsection 48(1) of the CEAA to the Deltaport Project due to the power exercised by the Minister of Finance.
[108] The Minister of Environment neither exercised any discretion nor formed any opinion in order to respond to the applicant's petition. The Minister kept the applicant apprised of the information that she was seeking from the VPC. Once the fact of the approval from the Minister of Finance was revealed, the Minister of Environment could do no more than to inform the applicant that the factual requirements of subsection 48(1) had not been met.
[109] There was nothing that either the Minister of Environment or the applicant could have done differently that would have changed the decision with respect to the subsection 48(1) petition. No further information from either party was requested or relied upon by the Minister.
[110] According to the applicant, the purpose of section 48 is to capture what otherwise would not be directly caught by the CEAA.
[111] That is not how section 48 reads. Absent any triggering authority, the discretionary power of section 48 does not pick everything else up. The section does not apply in the absence of any triggering authority or duty.
[112] Chief Bowcott wrote to the Minister of Environment in 1995 under the heading of "Wording of Section 48" as follows:
| In a broader context I would like to express the concern of my people over the wording of Section 48. When the Agency's predecessor, FEARO, consulted with the Assembly of First Nations (AFN) in 1989 on the elements affecting First Nations in the proposed new environmental assessment legislation, the transboundary provisions aimed at protecting Indian Reserves were described as applying in the absence of any other triggering authority or duty under the proposed Act. The AFN, while expressing concern over the inadequate treatment in the legislation of traditional lands outside reserves, nonetheless welcomed the provisions as a modest step forward in the context of the federal government's fiduciary responsibility towards aboriginal peoples. It is a source of pain to see that by including as exemptions in Section 48 a "power, duty or function" that did not necessarily trigger the Act, the protective value of Section 48 for my people has been greatly reduced. |
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| My fourth request, therefore, is that you seek to have Section 48 amended to conform with the original concept outlined in consultations with the Assembly of First Nations. |
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[113] There is no question that the protective value of section 48, to use the words of Chief Bowcott, is diminished by the exclusions it contains.
Fiduciary Duty
[114] At the opening of the hearing, counsel for the applicant filed a Supplementary Memorandum entitled "Speaking Notes" which raised as an issue the fiduciary duty of the Crown to the Tsawwassen First Nation. The question posed by counsel was framed as follows:
| Was there a federal duty to ensure not only that an assessment of Tsawwassen First Nation impacts was carried out, but that it be carried out in a manner that gave effect to the special relationship between the Crown and the Tsawwassen First Nation? |
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[115] As stated by Iacobucci J. in Quebec (Attorney General) v. Canada (National Energy Board)8:
| It is now well-settled that there is a fiduciary relationship between the federal Crown and the aboriginal peoples of Canada: [1984] 2 S.C.R. 335">Guerin v. Canada, [1984] 2 S.C.R. 335. |
|
[116] The only mention of such a duty prior to the hearing occurred in the applicant's reply memorandum in the context of the submission that the Minister of the Environment should have granted the applicant a hearing for what is alleged to be the Minister's decision under section 48 of the CEAA.
[117] Each of the three originating notices of motion filed by the applicant seeks declarations respecting compliance with the requirements of the CEAA or the CEPA. None of the three originating notices of motion seeks any declaration relating to aboriginal rights, fiduciary duties or consultation.
[118] Each of the three originating notices of motion filed by the applicant specifies grounds based on the statutory requirements of the CEAA or the CEPA. None of the three originating notices of motion specifies any grounds relating to aboriginal rights, fiduciary duties or consultation.
[119] None of the three originating notices of motion states as a ground any alleged interference with aboriginal rights. The fiduciary duty to consult arises only where there has been a prima facie infringement of aboriginal rights. There is no allegation of any such infringement in the three originating notices of motion nor has the applicant presented evidence in these proceedings showing that the Deltaport Project, which was commenced in September of 1993 and completed in June of 1997, and has been in operation since then, has infringed any aboriginal right.
[120] The onus of establishing a prima facie infringement of an aboriginal right rests on the claimant of that right.
[121] The applicant relied on the following decisions:
| - [1984] 2 S.C.R. 335">Guerin v. The Queen9 |
|
| - Friends of the Oldman River Society v. Canada (Minister of Transport)11 |
|
| - Union of Nova Scotia Indians v. Canada (Attorney General)13 |
|
[122] In the [1984] 2 S.C.R. 335">Guerin case14, the fiduciary duty on the Crown arose out of the existence of aboriginal title to the land.
[123] In the Sparrow case15, the aboriginal right to fish had been established.
[124] In R. v. Jack16, the prosecution agreed at trial that the accused had an aboriginal right to fish.
[125] In the Union of Nova Scotia Indians case17, the Nova Scotia Indians had obtained from the Nova Scotia Court of Appeal a prior declaration of their right to fish in the area in which it was proposed to dredge.
[126] These are cases involving the infringement, real or threatened, of an existing aboriginal right.
[127] The present proceedings are clearly not within the framework of an Aboriginal right infringement case.
[128] The issues in these related proceedings relate strictly to the question of whether decisions were made by federal authorities in compliance with the statutory requirements of the CEAA and, with respect to the Ocean Disposal Permit referred to in Action No. T-1033-96, with the CEPA.
[129] Counsel for the applicant recognized that these proceedings were not the forum to prove the existence of an aboriginal right by the Tsawwassen First Nation.
[130] Counsel for the applicant acknowledged that this is not a proceeding in which relief is sought based on a claim of infringement of aboriginal rights.
[131] In argument, counsel for the applicant submitted that the fiduciary duty goes to establish the standard of care owed to the applicant. The question is not so much whether the assessments are adequate, but by failing to take into account aboriginal interests, are they assessments as contemplated by the CEAA at all?
[132] In the Union of Nova Scotia Indians case18, Mr. Justice MacKay held that it was unnecessary to allow an amendment to the grounds of an application in order to raise the failure to fulfil fiduciary obligations, because such failure is an aspect of unfairness in the process. In that case, the project was clearly subject to the CEAA.
[133] However, I have found, in these proceedings, that there was no requirement, in the circumstances, for an environmental assessment to be conducted by a "federal authority" as defined in subsection 2(1) of the CEAA.
[134] What the applicant is seeking is an "environmental assessment", as defined in subsection 2(1) of the CEAA and I have found, in the circumstances, that none is required. Accordingly, no issue arises as to the standard of care of the Crown or its obligation to consult in the conduct of an environmental assessment under the CEAA when such Act does not require the Crown to conduct such an assessment.
[135] I have found that the VPC was not required, in the circumstances, to conduct an "environmental assessment" as defined in the CEAA. The VPC is not a "federal authority" within the meaning of the CEAA.
[136] An assessment of the environmental effects of the Project was carried out by the VPC. There is evidence on the record of consultation and of offers of consultation by the VPC to the Tsawwassen First Nation. According to the applicant, this process broke down when the VPC declined to enter into the Memorandum of Understanding proposed by Tsawwassen First Nation.
[137] The Minister of Environment has no authority under the CEAA, in the circumstances, to impose an obligation on the VPC to conduct a "follow-up program", as defined in subsection 2(1) of the CEAA and set out in section 38 of the CEAA.
[138] Also, the Project was completed prior to the hearing of these applications for judicial review.
[139] My conclusions are based on the statutory interpretation of the CEAA, as currently in force. I note that subsection 72(1) of the Act provides that a comprehensive review of the provisions and operation of the Act shall be undertaken by the Minister five years after the coming into force of the Act. Subsection 72(2) requires the Minister to submit a report on the review to Parliament within one year after a review is undertaken.
[140] This will offer an opportunity to interested parties to make their views known concerning any changes which should be made to the current legislation.
CONCLUSION
[141] The applications for judicial review are dismissed.
__________________________
Judge
Ottawa, Ontario
March 19, 1998
__________________
1 S.C. 1992, c. 37 (in force January 19, 1995).
2 R.S.C. 1985, c. I-5 as amended.
3 R.S.C. 1985, c. N-22.
4 [1992] 1 S.C.R. 3 at 40.
5 [1994], 3 S.C.R. 3 at 17.
6 See Sections 8(1), 9, 10(1), 11(1), 54(1) and 54(2).
7 Band Councils are dealt with in section 10.
8 [1994] 1 S.C.R. 159 at 183.
9 [1984] 2 S.C.R. 335">[1984] 2 S.C.R. 335.
10 [1990] 1 S.C.R. 1075.
11 Supra, note 4.
12 (1995), 16 B.C.L.R. (3d) 201 (B.C.C.A.); [1996] 5 W.W.R. 45; (1995) 131 D.L.R. (4th) 165.
13 [1997] 1 F.C. 325 (F.C.T.D.).
14 Supra, note 8.
15 Supra, note 9.
16 Supra, note 11.
17 Supra, note 12.
18 Supra, note 13.
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