West Vancouver v. British Columbia, 2005 FC 593

Date: 200500504

Docket: T-1310-04

Citation: 2005 FC 593

BETWEEN:

                      CORPORATION OF THE DISTRICT OF WEST VANCOUVER

                                                                                                                                          Applicant

                                                                        - and -

HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA, as represented by the MINISTRY OF TRANSPORTATION, and ATTORNEY GENERAL OF CANADA

                                                                                                                                  Respondents

                                                        REASONS FOR ORDER

LEMIEUX J.:

INTRODUCTION

[1]                The Corporation of the District of West Vancouver ("West Vancouver" or the "applicant"), a municipality of approximately 45,000 residents located below the North Shore mountains north of the City of Vancouver, raises one substantive and two procedural issues in its challenge to the June 11, 2004 screening decision by federal responsible authorities ("RAs") made pursuant to the Canadian Environmental Assessment Act ("CEAA"), after conducting a screening level environmental assessment of the Sea to Sky Highway Improvement Project (the "Project") proposed by the Ministry of Transport of British Columbia ("MOT"), improvements driven in part by the 2010 Olympic Winter Games which will be held in Vancouver and Whistler. The screening decision determined the Project is not likely to cause significant adverse environmental effects. The Project extends from a point immediately east of Nelson Creek Canyon in the District of West Vancouver to Function Junction in Whistler, a distance of approximately 95 kilometres.

[2]                West Vancouver does not challenge the screening decision for the entire Project. It seeks a declaration and certiorari quashing the screening decision only as it clears the way for the issuance of federal authorizations or permits in the southern 2.3 km portion of the Project from Horseshoe Bay to Sunset Beach.

[3]                At the hearing, the Court was informed no federal permits had yet been issued in respect of the southern 2.5 km portion and construction was not expected to start there before September 2005, the final design stage not having yet been embarked upon.

[4]                West Vancouver contends the federal screening assessment and decision does not comply with the CEAA for three reasons:

(1)        The RAs in their environmental assessment failed to conduct a risk analysis of a material environmental effect, namely, the impact of blowdown or windthrow of trees likely to be caused by the construction of a new four-lane highway over the area adjacent to Eagleridge Bluffs and the Larsen Creek Wetlands. Alternatively, West Vancouver says if the RAs made a finding that windthrow of trees was not a significant adverse environmental effect, the decision could not be rationally sustained having regard to the level of the assessment actually conducted. Counsel for West Vancouver framed the question on this issue as "[I]s it an error of law to identify an environmental issue, defer the assessment to a later date but conclude before the assessment that the Project is not likely to cause any significant environmental effect ?"

(2)        West Vancouver was denied an opportunity to comment on the screening report contrary to subsection 18(3) of the CEAA.

(3)        The screening decision was unlawfully collapsed into or made part of the screening report again curtailing its right to comment on the screening report.

[5]                Canada conceded if the factual assumption underlying the question framed by counsel for West Vancouver were true, the RAs' decision would contain an error of law. However, he argued, no error was committed because factually the assessment was made based on available and cogent information. The assessment was not deferred. On this issue, counsel for B.C. denied the scenario would constitute an error of law because mitigation was a function of the final design.

[6]                On the fairness issues, both Canada and B.C. argued there was no breach of subsection 18(3) of the Act in the circumstances.

BACKGROUND

[7]                The environmental assessment for the Project was a joint endeavour involving RAs and the Canadian Environmental Assessment Agency (the "Agency"), with British Columbia's Environmental Assessment Office ("EAO") in accordance with the Canada/BC Agreement for Environmental Assessment Cooperation.

[8]                Federal involvement is triggered because RAs (Fisheries and Oceans Canada ("DFO"), Environment Canada ("EC"), Transport Canada and Indian and Northern Affairs Canada ("INAC")) decided the Project required the issuance of federal authorizations and permits under the Fisheries Act, the Canadian Environment Protection Act, the Navigable Waters Protection Act and the Indian Act.

[9]                The Project was also subject to a provincial environmental review since it was designated as a reviewable project under B.C.'s Environment Protection Act.

[10]            B.C.'s EAO took the lead role in the joint assessment and the record indicates that the RAs and interested stakeholders, including West Vancouver, were actively involved in the joint environmental assessment process.

[11]            The focus of West Vancouver's concern consists of approximately 88 hectares of undeveloped timber lands owned either by West Vancouver or by a private corporate landowner situated on elevated lands featuring Eagleridge Bluffs in the south and Larsen Creek and its wetlands in the north.

[12]            In this area, the Project as originally conceived by British Columbia's MOT as the sponsoring ("proponent") ministry and for which it had applied for environmental clearance on August 13, 2003, had two main options:

(1)        Option 1 which involved the construction of a new two-lane highway cutting through the area dedicated to handling only traffic flowing north; this new highway would be married or coupled in the area to existing Highway 99, whose two lanes would be converted to handle southbound traffic only.

(2)        Option 2 was the construction of new two northbound lanes in a tunnel underneath the affected area of approximately 1 km in length with opening at Nelson Creek and the other at a point north of the Horseshoe Bay Ferry Terminal. Southbound traffic would be handled by the converted Highway 99.

[13]            In December 2003/early 2004, a new option was up for consideration and is the source of the dispute. That option was the construction over the affected lands of a new four-lane highway handling both northbound and southbound traffic. The tunnel option was still on the table essentially in the same form as originally proposed.

[14]            The lead affidavit on behalf of West Vancouver was deposed to by Stephen Jenkins, a certified arborist who is the municipality's Environmental Coordinator. David Stuart, West Vancouver's Municipal Manager, also filed an affidavit in support.

[15]            Two main affidavits were filed by Her Majesty the Queen in Right of the Province of British Columbia as represented by MOT (British Columbia): the affidavit of Peter Milburn, Executive Project Director with the Sea to Sky Project Office at MOT, and the affidavit of Paul Finkel, Project Assessment Manager, EAO.

[16]            None of the affiants were cross-examined.

[17]            The respondent Attorney General for Canada ("Canada") relied on the certified tribunal record for its evidence.

[18]            West Vancouver also filed the affidavit of N. Hansen, who conducted a windthrow assessment in August of 2004. That affidavit was not considered by the Court since it was not material before the decision-makers at the time the screening decision was made. Counsel for West Vancouver recognized the merits of excluding Mr. Hansen's affidavit. The same result befell other affiants from West Vancouver whose material was not before the decision-makers.

THE SCREENING DECISION

[19]            I reproduce in its entirety the screening decision approved by the federal responsible authorities:

Fisheries and Oceans Canada (DFO), Environment Canada (EC), Transport Canada (TC) and Indian and Northern Affairs Canada (INAC), responsible authorities as defined in the CEAA, have completed their review of the Sea to Sky Highway Improvement Project. DFO, EC, TC and INAC have completed a harmonized environmental assessment of the project working in cooperation with the British Columbia Environmental Assessment Office. All relevant factors required by Section 16 of CEAA were considered including the environmental effects of the Project and their significance. Based on the information in the Project Assessment Report dated May 2004, conditions in the Commitments Table, and Considerations (see above) DFO, EC, TC and INAC have concluded that the project is not likely to cause significant adverse environmental effects. In accordance with Section 20(1)(a) of CEAA, such a determination enables the Habitat and Enhancement Branch of DFO, EC, TC and INAC to proceed, if appropriate, with the issuance of an Authorization under subsection 35(2) of the Fisheries Act, a Permit under the Canadian Environmental Protection Act, a Permit under subsection 5(1) of the Navigational Waters Protection Act and a Permit under subsection 28 and/or subsection 35 of the Indian Act. [emphasis mine]

[20]            This screening decision is contained in a document entitled "Screening Recommendation and Decision Summary" dated June 10, 2004.

[21]            That document identified potential impacts including community noise impacts, geochemical issues such as acid rock damage and disposal of potential acid generating materials, geotechnical issues including landslides and rock cuts excavations, water and air quality factors including concentration of emissions at tunnel portals, if the tunnel option was chosen, fisheries and aquatics concerns namely stream channel modifications at crossings, hydrology and stream flows and loss of riparian vegetation, wildlife, and in particular loss of/or disturbance of wildlife including species at risk and associated habitats and finally habitat fragmentation of vegetation, namely loss of common vegetation (including trees), Arbutus trees and red and blue listed plant communities.

[22]            It is useful to set out the text of the Federal Considerations in the June 10, 2004 federal screening recommendation document insofar as it relates to West Vancouver:

At a meeting on June 7, 2004, the District of West Vancouver, DFO, EC and the Canadian Environmental Assessment Agency discussed the environmental assessment process under CEAA and the proposal for an overland route through the District's lands. The District of West Vancouver raised their concerns about impacts on red-listed plant communities, the potential for trees to blow-down and the impact of noise on residents. They were advised that these issues had been considered during the review of the project and, taking into account the mitigation measures proposed, no significant environmental effects had been identified. They were also advised that the CEAA process does not allow for federal agencies to require the option with the least environmental effects; the decision is whether significant adverse environmental effects would be likely to result from the project as proposed. Neither of the route options through the District of WV was found to be likely to cause significant adverse environmental effects.

Environmental issues raised by West Vancouver residents with respect to the overland and tunnel route options were considered by the Responsible Authorities and addressed during the joint review of the project. [emphasis mine]

[23]            Prior to the discussion about West Vancouver's concerns, those Considerations stated:

Based on the joint environmental assessment, the Responsible Authorities considered all potential environmental impacts of the Project and the mitigation measures proposed by the Proponent. Documentation included the Application; Clarification Reports; government, First Nation and public comments on the potential effects of the Project; responses from the Proponent; and the discussions of the Biophysical/Technical and Socio-Economic Working Groups. [emphasis mine]

[24]            The Federal Considerations also mentioned that expert federal advice was sought from Health Canada and Natural Resources Canada ("NRCAN") on matters within their areas of expertise and satisfactory discussions took place with B.C.'s MOT, the Project's proponent.

[25]            They also state reliance by the RAs on the expertise of B.C.'s Ministry of Water, Land and Air Protection ("WLAP") regarding certain impacts on species at risk and the effects of the Project on provincially listed plant communities.

[26]            Although Federal Considerations are brief, it should be appreciated that the Project was jointly assessed and that B.C.'s Assessment Report of May 20, 2004, a very extensive document, forms part of the federal screening report.

THE FACTUAL CHRONOLOGY

[27]            The primary facts underpinning West Vancouver's application before the Court are not substantially in dispute. Inferences from primary facts differ, however.

[28]            Counsel for British Columbia classified the Project and its environmental assessment into six phases which were generally accepted by the parties.

[29]            Phase 1 - early planning from January 2002 to June 2002 when MOT notified the EAO and the Agency of the Project. In May of 2002, MOT asked EAO to schedule a pre start-up meeting of federal and provincial environmental authorities which was held on June 11, 2002. Some preliminary design work was undertaken in June and August 2002.

[30]            Phase 2 - the Pre-Environmental Assessment Application Phase from June 11, 2002 to August 13, 2003, which is the date MOT filed its application with EAO for an environmental assessment certificate. The material events in this phase are:

(i)         On September 17, 2002, EAO advised West Vancouver of the Project and invited it to participate in two technical committees: the Biophysical Technical Working Group ("BTWG") and the Socio-Economic Working Group ("SEWG"); West Vancouver accepted. Representatives from the RAs and B.C.'s MOT also sat on these committees. West Vancouver also had a representative on a coordinating committee known as the Project Working Group on which the RAs were also members.

(ii)        On October 21, 2002, MOT made a presentation to a West Vancouver public Council meeting where options 1 and 2 were explained.

(iii)       A value analysis report for the conceptual design stage was completed on January 9, 2003. It considered the option 1 and option 2 alignments previously identified, i.e. the new two-lane northbound highway (the one way couplet) (option 1) and the tunnel option (option 2). The study concluded "the tunnel option was adjudged by the team to offer better value for money than the surface alignment" writing "on balance, the team concurs that the McElhanny split alignment couplet utilizing a short tunnel offers slightly better value for money, fits better in the context of the existing four-lane highway to the south of this section and the proposed four-lane highway to the north".

(iv)        On May 12, 2003, Peter Milburn, MOT Project Director, explained to the West Vancouver Council the two alignment options.

(v)         As mentioned, it was on August 13, 2003, that MOT filed its five volume application with EO. The two previously described options were the only ones specified for certificate approval.

[31]            Phase 3, from August 13, 2003 to January 16, 2004, described as Public Consultation and Review of Results of Consultations. This phase began when EAO provided two months of public review and comment on MOT's application. The main elements of this phase were:

(i)          MOT organized open houses in all communities along the highway corridor including evening public meetings. Members of the BTWG and SEWG on which, as previously noted, the applicant had representatives, provided comments. B.C.'s Sea to Sky Project staff met with West Vancouver officials of its Engineering and Transportation Department to review technical work and to discuss both the tunnel and surface options and subsets of those options.

(ii)         On November 21, 2003, Peter Milburn wrote to West Vancouver's Municipal Manager, David Stuart, to indicate to him MOT did not have a preferred option "at this time" between the tunnel and surface options and that MOT's Project Team would bring "several options to you in the New Year so that we can gather your input, refine the most appropriate option to address local needs and then proceed with a final decision".

(iii)        It was on December 16, 2003, at a meeting between West Vancouver traffic engineers and MOT's Project Team Engineers that the four-lane overland upslope option was first identified.

[32]            Phase 4 from January 16, 2004 to August 8, 2004, described as a Reconsideration of options in light of a consultation assessment period extended for further public consultation. Its features were:

(i)         Peter Milburn tells us in his affidavit at paragraph 61 that at the end of the January 21, 2004 meeting with West Vancouver's traffic officials, four options were jointly selected to be further developed for the February 2004 community consultation program (the "final four options") as follows:

Two of the options (Options A and C) were modifications of the Couplet Options. Two new options (Options B and D) that generally followed the alignment of the Couplet Options were also developed. The Final Four Options were:

Option A:                Two Northbound Lanes Upslope - Two northbound lanes use a new route constructed upslope from the existing Highway 99. Two southbound lanes use the existing Highway 99 route ($115 million).

Option B:                Four-lane overland - Four new lanes upslope from the existing Highway 99 corridor ($130 million)

Option C:               Northbound Tunnel - A two-lane northbound tunnel. Southbound traffic uses existing Highway 99 ($140 million)

Option D:              Two-way, two-lane, 1 km tunnel - One lane northbound and one lane southbound. The existing Highway 99 serves local traffic and a portion of through traffic to Squamish, Whistler and other points on the corridor ($170 million)

(ii)         Community consultation in West Vancouver proceeded to review the final four options for a period of one month. The Council of West Vancouver was briefed on March 1, 2004, on the results of the public consultations. Peter Milburn indicates in his affidavit that "overall, community consultation for Option B was higher than any other option ... being superior in terms of safety and would move traffic more efficiently, including better north and south access".

(iii)        Other meetings were held involving the Mayor of West Vancouver and B.C.'s Minister of Transportation.

(iv)        On March 11, 2004, officials walked the Option B alignment with Mr. Jenkins and others after which on March 17, 2004, Mr. Jenkins wrote two letters expressing his concerns. He expressed concern to Peter Milburn (and similarly to federal officials) about the Larsen Creek Wetlands and introduced the subject matter of Forest Edge Management in these terms:

Forest Edge Management - I note that "tight clearing lines" will be implemented to reduce clearing widths. As I have considerable experience in this area, especially on the North Shore and this type of climate, topography and geomorphology, I am concerned that the wetter areas such as the Larson Creek wetland will suffer a similar fate as the Coquihalla Highway project. That project required excessive clearing as a product of blow-down and WCB liability issues in their wetland areas. For the Sea-to-Sky project, this would mean a large number of trees would have to be removed from the wetland area resulting in far greater impacts than stated in prior reports. As WCB requires all trees within one tree length to be assessed, the result could be an additional 35 meters (average tree height) on either side of the highway being cleared. That adds a potential of 70 meters of excess clearing through portions of the project such as Larson Creek Wetland. Again this could be avoided or at least minimized by using the tunnel option. [emphasis mine]

(v)         On April 1, 2004, a field trip to the Baden Powell Trail Area took place.

(vi)        Also on April 1, 2004, Peter Milburn responded to Mr. Jenkins' March 17, 2004 concerns. He wrote:

FOREST EDGE MANAGEMENT

Your comments about potential clearing in the Larson Creek wetland are speculative regarding the required area of clearing, worker safety and WCB Health & Safety Regulations. The Ministry of Transportation is committed to worker safety and to minimizing environmental impacts.

Environmental factors are often incorporated into the clearing and grubbing treatments. Under today's highway construction practices, an arborist would be retained prior to clearing to assess potentially hazardous or danger trees that may have to be felled. This serves both WCB requirements, where a danger tree could impact worker safety, and safety to the travelling public. However, this assessment is done of individual trees and clearing of environmentally sensitive areas is not conducted without consideration of the value of the area. For example, on the Vancouver Island Highway Project (VIHP), there are sensitive habitats (Bevan and Morrison wetland areas, wildlife trees, riparian areas, etc.,) that were designated as "Vegetation to Remain Areas" where trees remain close to the road. Areas on VIHP were "close-cut" to allow tree stumps to remain in the ground, which reduces ground disturbance and the amount of exposed soils, fosters terrestrial woody debris habitat values for small wildlife, and contributes to more stable ground conditions, by maintaining the vegetative root mass. [emphasis mine]

[33]            Phase 5 is described by counsel for B.C. as the Refinement of Options - Clarification Report - April 8, 2004 to May 10, 2004. The main events were:

(i)          On April 8, 2004, MOT submitted to the EAO a Clarification Report for the West Vancouver segment of the Project which summarized matters and presented Options "B" and "D" for certification by provincial authorities in lieu of the previously selected options. Also on that date, the Agency wrote to the applicant indicating MOT had provided it with further information and mentioned to Mr. Jenkins the Clarification Report had indicated opportunities to pull the highway away from the swamp edge would be investigated during the preliminary and detailed design stage should that option be selected.

(ii)         On April 20, 2004, the BTWG met to provide preliminary response to the Clarification Report. Mr. Jenkins, who represented West Vancouver, commented that the Clarification Report underestimated the impact in terms of blowdown. The following was recorded in the Committee minutes:

Stephen Jenkins advised that impact has been underestimated in terms of tree blow-down. Western Hemlock has shallow roots and is particularly susceptible to wind. Squamish winds present challenges to retaining trees, particularly with any north-south alignment. This would particularly increase requirements for clearing in areas of second growth Hemlock.

Action Item: MOT to retain an arborist to assist with a final design. [emphasis mine]

(iii)        On April 30, 2004, West Vancouver submitted its comments to (B.C.) MOT on the Clarification Report to EAO. Mr. Jenkins wrote :

Forest edge management

Although the meeting minutes of April 20^th 2004 reflect this item as one that will be further investigated at the design stage, West Vancouver contends that this is too late. This issue clearly has "the potential for significant adverse effects" both from a direct impact perspective and also a cumulative impact perspective, as the more trees that are lost from the wetland, the greater the overall impact to the hydrology, wildlife and productivity of the area.

If option B is chosen, the road will have a North-South alignment through the wetland and will go through a second growth stand of predominantly Hemlock, Douglas-Fir and Western Red Cedar. Additionally the famous "Squamish" winds have a major influence in this area. Signs of natural blowdown are evident in the area at present and clearing of the area will only accelerate this process. [emphasis mine]

Mr. Jenkins then pointed out the trees in the wetland had limited root depth due to either poor genetic rooting structure or the high water table.

(iv)        On May 3, 2004, B.C. WLAP advises B.C.'s MOT that "a windthrow risk assessment should be undertaken such that any windthrow damage can be predicted and managed".

(v)         On May 4, 2004, DFO provided its comments on the Clarification Report and stated DFO would like the proponent (MOT) to confirm "whether additional clearing will be required in riparian areas to avoid blowdown". Other RAs also commented.

(vi)        On May 5, 2004, MOT provided its response to the comments it had received on the Clarification Report. It wrote the following:

(1) What measures are available to address impacts to the wetland? Is compensation being considered? (DFO, Environment Canada, WLAP)

MoT Response: Impacts to the wetted area of the swamp habitat and bordering vegetation will be either avoided through horizontal adjustments to the alignment or mitigated through design features, such as retaining walls. Compensation is not being considered because MoT's intention is to apply DFO's hierarchy of preferences and first relocate, redesign or mitigate the potential impact at preliminary design.

(2) Will additional clearing be required in riparian areas, including the wetland, to avoid blowdown? Will the trees in the swamp be more susceptible to windthrow? (DFO, West Vancouver, WLAP)

MoT Response: Reference is made to the attached response prepared by: Dr. Julian A. Dunster, R.P. Bio., R.P.F., M.C.I.P., ISA Certified Arborist, ASCA Registered Consulting Arborist # 378, that addresses forest edge management issues in the upper Larson Creek drainage basin.

Reference is made to the attached memorandum dated April 19, 2004 prepared by Mr. Bob Wallrock, P. Eng., Hay and Company Consultant Inc. describing the Larson Creek hydrology; and the Larson Creek Drainage Plan, dated April 16, 2004. [emphasis mine]

(vii)       The pertinent part of Dr. Dunster's report as it concerns windthrow reads:

The area of concern appears to be primarily a small 'arm' extending westwards at the northern end. In reviewing the forest edge issues, the main factors to consider would be soil moisture regimes, wind patterns, and site aspect (orientation towards the sun).

                                                                      . . .    

The potential for windthrow of trees in this area is acknowledged as an issue. Whenever a forest is opened up a new edge is created. Normally, the adjacent trees grow codominantly - that is their crowns overlap each other, and some degree of stability is attained for individual trees as the neighbouring trees provide shelter and resistance to excessive movement in strong winds. Removal of adjacent trees can introduce a new set of dynamic forces. The remaining trees are able to sway much more when neighbouring support is lost, and in some cases complete uprooting ensues.

My experience in the Lower Mainland is that windthrow can occur from any compass direction on a wide range of site and soil types, slopes, and aspects. It is not always easily predicted. I noted on my field trip that there was one Douglas-fir windthrown from west to east just south of the wetland area, and closer to Larson Creek, a hemlock windthrown from south to north. I have not yet had time to investigate where other windthrow has occurred in this area, but I would expect to see several incidences reflecting a variety of wind directions. Typically, forests reach a stage in their development when some of the population is removed by poor health, windthrow, structural weakness, or chance. In some cases the space created by a dead tree is sufficient in size to allow passing winds greater access into the remaining trees, and progressive windthrow can result. In other cases, there may be no further disturbance and the surrounding trees grow laterally into the space.

The forest cover along the ridgeline west of the wetland appears to be very variable in age class, and stand density, and the land form varies from relatively flat land to hummocky with rocky bluffs. The forest cover to the east is continuous and would remain so after the road was built. Creation of a road in this area may alter wind influences at the local scale and it is conceivable that some trees may be lost as a result. However, at this stage I am not able to determine whether or not the presence of the road would create windthrow, nor how extensive it might be.

It would require more time to undertake detailed site assessments to delineate forest types, topography, species, age and tree heights. It would also require a review of past weather patterns, especially wind speeds, wind direction, and rainfall. Even then, windthrow prediction is not a simple matter beyond identification of the most obvious trees that might be clearly considered to be already unstable. In the 'right' circumstances no tree is windfirm and there are no guarantees of continuing stability. Once more detailed information about this site is available, it may be possible to recommend more specific windthrow mitigation options, such as practices like spiral thinning, and feathering of the forest edges. These are very site specific aspects and cannot be determined at the preliminary design stage. [emphasis mine]

(viii)       As a result of a site inspection performed on April 26, 2004, Bob Wallrock of Hay & Co. ("Hayco") Consultants provided a report on the hydrology issues pertaining to Larsen Creek and its wetlands as described in the Clarification Report.

The Hayco Report identified the alignment for Option B would cross the Larsen Creek drainage basin leading to "a slight increase in the impervious area within the catchment" but that "the critical area of concern, namely the swamp area" was best represented as a sub-catchment area where the loss of "[I]mpervious road runoff would therefore represent a rather insignificant portion of the total drainage to the lowland areas".

The Hayco Report also mentioned several mitigative measures "which can be utilized to reduce impacts to the hydrology of the basin". He referred to permeable embankment fills, to bio-filtration swales, to retention ponds and to porous asphalt.

(ix)        On May 7, 2004, a meeting of the Project Working Group was held at which were present MOT consultants, federal and provincial officials and some shareholders. West Vancouver could not be present. The following was recorded in connection with "Tree Blowdown" and next steps:

3.2 Corridors - Tree Blowdown

The MoT has retained an arborist to address the District of West Vancouver's stated concerns with regard to accurately assessing the extent of tree blowdown related to each of the alternatives. The arborist concluded that more detailed studies would need to be undertaken to formulate specific windthrow mitigation options.

Angela Buckingham acknowledged this could be an issue but there are mitigating measures such as feathering and tree trimming.

Action Item: Add to commitment table - MoT to pursue the detailed windthrow studies and development of mitigation measures recommended by the arborist.

4.     NEXT STEPS

Paul Finkel noted that the working group had resolved issues along the rest of the highway alignment to Whistler and recent focus has been on specific issues related to the West Vancouver section. He asked the working group if either Option B or Option D had the potential for significant adverse effects. The opinion of the reviewers at the meeting was that, with mitigation applied, neither option had the potential for significant adverse effects. [emphasis mine]

This is the last meeting of the working group, and Finkel thanked the agencies and First Nations for their participation in the review of the Sea to Sky Project. Any follow-up will now be on an individual basis. [emphasis mine]

(x)         On May 10, 2004, a teleconference was held by the Project Working Group. The following is recorded:

Paul Finkel said that the purpose of the meeting was to discuss the District of West Vancouver and Squamish and Lil'wat First Nation comments on the Sea-to-Sky Highway Improvement Project Clarification Report: Horseshoe Bay to Sunset Beach (West Vancouver Segment), April 2004 (West Vancouver Clarification Report) and the responses from the MoT. He briefed the District of West Vancouver and the Squamish First Nation's technical consultant on the discussion of the working group meeting of May 7, 2004. The provincial and federal agency representatives concluded that neither Option B nor Option D described in the West Vancouver Clarification Report would result in significant adverse residual effects. He said that Dave Carter of DFO informed the working group meeting on May 7^th that DFO made a field visit to the wetland area impinged by Option B and is of the opinion the wetland in the area of Option B contributes less to the hydrology of Larson Creek than previously considered. There is some potential for an incremental effect from Option B, but DFO does not consider this would be substantial.

The District of West Vancouver (DWV) made the following comments:

·               The DWV concerns as expressed in its letter to the EAO of April 30, 2004 remain.

·               The DWV reserves judgement, has no further comments on the response document at this time and will review other options available to it for addressing these concerns.

Paul Finkel asked the MoT what follow-up consultation the MoT planned with the District of West Vancouver? Peter Milburn responded that the MoT would consult with the District as the MoT fine-tuned the alignment and would also seek technical input and input on property values. Paul Finkel said he wanted to be clear about the measures proposed by the MoT as follow-up is also referenced in the West Vancouver Clarification Report.

David Stuart said the DWV believes that if both options are certified, the MoT will then select the overland route and inform the DWV of their decision. He said that the DWV believes that the MoT has identified substantive environmental impacts and the impacts are avoidable. He stated that the MoT's main argument against avoiding these impacts is one of costs and the fixed budget for the Project. The DWV is perplexed that the MoT refers to costs in this context and then refers to the P3 partnerships and the cost savings that will result. The cost of avoiding impacts is not an EAO decision but should be reflected in the text of the document to Ministers. He said there are not only environmental effects associated with the options but also socio-economic effects and in this context the cost issue should be examined.

The DWV asked whether the avenue of writing to federal agencies was still open given that the agencies had concluded that the Project would not have significant adverse effects? Paul Finkel said that the DWV was free to write to the federal departments at any time to comment on the environmental assessment under the Canadian Environmental Assessment Act.

There being no further questions or discussion, Paul Finkel outlined the next steps in the EA review:

·                The third and final draft of the assessment report would be issued this week.

·                Reviewers will have a maximum of 5 working days for review and comment.

·               The EAO will then finalize the report and refer the Project to provincial ministers for a decision. [emphasis mine]

[34]            Phase 6 is described as "Submission of application for certification to Provincial Ministers and Federal Responsible Authorities" and covers the period from May 10, 2004 to June 10, 2004.

(i)          On May 10, 2004, an addendum to the Cumulative Effects Assessment Report was filed. On loss of common vegetation it said this:

Loss of common vegetation.

The Application noted that 113 ha of natural habitat would be lost cleared for the Project, including 106 ha of common natural vegetation. MoT had committed to protecting approximately 4 ha of red-listed plant community, 2 ha of blue-listed and 1.3 ha of dry arbutus habitat, as compensation. These areas were subtracted from the total 113 ha of natural habitat affected to arrive at the 106 ha. This approach was explained in the CEA work plan and reviewed and accepted by the responsible authorities.

The CEA considered the loss or alteration of 32,568 ha, or 3% of common vegetation in the 1,068,800 ha Squamish Forest District (SFD), as a result of timber harvesting and other developments, including the STS Project. The CEA noted that the tunnel option contributed 106 ha to the 32,568 ha total (3.05% of the SFD, rounded to 3%).

If Option B, the 4-lane overland route, is constructed, the project will affect 111.3 ha of common vegetation. If Option D, the two-way 2-lane tunnel, is constructed the Project will affect 107.9 ha of common vegetation. As the following table shows, timber harvesting and other developments, including the STS Project, will result in a cumulative loss of 3.05% of common vegetation in the 1,068,800 ha SFD. This is true regardless of which option (B or D) is selected between Horseshoe Bay and Sunset Beach. The CEA conclusion remains unchanged: "it is unlikely that there will be a significant adverse cumulative effect on common vegetation".

(ii)         On or about May 20, 2004, the EAO issued the provincial Assessment Report to the provincial ministers. This is what was said about the blowdown issue:

The District of West Vancouver is concerned that if Option B is chosen, the road will have a North-South alignment through the wetland and will go through a second growth stand of predominantly Hemlock, Douglas-fir and Western Red Cedar. Additionally the famous "Squamish" winds have a major influence in this area with signs of natural blowdown evidence in the area at present and clearing of the area will only accelerate this process.

An attachment to the West Vancouver Clarification Report, prepared by a certified arborist retained by the MoT (Dr. Julian Dunster), reports that windthrow prediction is not a simple matter beyond identification of the most obvious trees that might be clearly considered to be already unstable and acknowledges that the potential for windthrow of trees in this area is an issue. The arborist's response advises that more detailed information about this site is required before it is possible to investigate more specific windthrow mitigation options.

At its meeting of May 7, 2004, the BTWG reviewed the issue of forest edge impacts and the information provided by the MoT in response to working group comments on the West Vancouver Clarification Report. If Option B is selected, the MoT will be expected to undertake more detailed site assessments to delineate features such as forest types, topography, species, age, and tree heights and investigate more specific windthrow mitigation options where feasible. [emphasis mine]

(ii)         On June 14, 2004, an Environmental Assessment Certificate was issued by the Provincial Government to MOT in respect of the Project. That certificate was issued subject to the following conditions:

1.             The MoT must cause the Project to be designed, located, constructed, and operated in accordance with the Conditions of this Certificate and the documents and correspondence listed in Schedule A, and the MoT must comply with all of the Conditions of this Certificate to the reasonable satisfaction of the Minister.

                                                                      . . .

5.             The MoT must submit, to the satisfaction of the Executive Director, quarterly reports on the status of compliance with the Conditions of this Certificate, and the documents and correspondence listed in Schedule A, from the date of issuance of this Certificate until completion of Project construction on all work packages. The Executive Director may adjust or extend this reporting requirement by providing written notice to the MoT.

Suspension, Cancellation and Amendment of Certificate

11.           This Certificate may be subject to cancellation, suspension in whole or in part, amendments, or the attachment of new Conditions, for any of the following reasons:

a)             the Minister has reasonable and probable grounds to believe that the MoT is in default of:

i.              an order of the Courts under section 35(2), 45 or 47 of the Act;

ii.             an order of the Minister made under section 34 or 36 of the Act; or

iii.            one or more requirements or Conditions of this Certificate.

(iv)        Amongst the documents in Schedule A are the May 18, 2004 Owner's Commitments and Responsibilities (that of MOT), as a pre-construction activity, one of which reads:

4.28          If the overland option is selected at Horseshoe Bay, undertaking a windthrow prediction assessment within the Larson headwater swamp, and, if required, developing and implementing mitigation measures such as spiral thinning and feathering of forest edges. [emphasis mine]

LEGISLATION

[35]            The following provisions of the CEAA are relevant to this judicial review application:

[36]            The legislative text cited is a consolidated version which reflects the 2003 amendments to the Act. An issue arose at the hearing whether the 2003 amendments were in force for the assessment of the Project. I need not resolve this question because, apart from the purpose clause, all relevant sections stand unamended and the changes to subsection 18(3) are not material.

[37]            I should add that reference was made to the Reference Guide published by the Agency on the application of the Act and, in particular, to the meaning of "significant" in the context of an adverse environmental effect.

ANALYSIS

(a)        The Standard of Review

[38]            As mentioned, West Vancouver alleges the RAs erred in law because they failed to conduct a risk analysis of a material environmental effect as required by the CEAA. In addition, West Vancouver states it was denied procedural fairness in two ways.

[39]            The standard of review with respect to the questions raised is correctness since the proper interpretation of the CEAA is a question of law (see, Friends of the West Country Association v. Canada (Minister of Fisheries and Oceans), [2000] 2 F.C. 263 (C.A.) at paragraph 10). The same standard of review applies to the interpretation of subsection 18(3) of the CEAA.

[40]            On the other hand, the appropriate standard of review for discretionary decisions of substance are to be measured on the standard of reasonableness (see, Bow Valley Naturalists Society v. Canada (Minister of Canadian Heritage), [2001] 2 F.C. 461 (C.A.)).

(b)        The approach

[41]            It is useful to refer to certain principles which flow from the decided cases on the CEAA.

[42]            The new legislation replacing the old Guidelines Order was first interpreted by the Federal Court of Appeal in Re Alberta Wilderness Association and Express Pipelines Ltd. (1996), 137 D.L.R. (4^th) 177. Justice Hugessen, then a member of that Court, wrote the Court's reasons.

[43]            As to the great majority of the applicant's submissions he wrote this:

In the first place, and in a general way, the great majority of the applicants' submissions failed to raise any questions of law or jurisdiction but were simply an attack on the quality of the evidence before the panel and the correctness of the conclusions that the majority drew from that evidence. No information about the probable future effects of a project can ever be complete or exclude all possible future outcomes. The appreciation of the adequacy of such evidence is a matter properly left to the judgment of the panel which may be expected to have, as this one in fact did, a high degree of expertise in environmental matters. In addition, the principal criterion set by the statute is the "significance" of the environmental effects of the project: that is not a fixed or wholly objective standard and contains a large measure of opinion and judgment. Reasonable people can and do disagree about the adequacy and completeness of evidence which forecasts future results and about the significance of such results without thereby raising questions of law. [emphasis mine]

[44]            As to the sequencing of the factors referred to in subsection 16(1), Justice Hugessen stated :

It was argued, and in this the applicants echoed the views of the dissenting panel member, that subsection 16(1) requires a sequential examination of the factors enumerated therein. In particular, it was said that the panel erred in not considering the possible environmental effects of the project before looking at any possible mitigating measures. Nothing in the statute supports such a view. Section 16 certainly does not say or imply that the listed factors must be considered sequentially while section 37 (as well as sections 20 and 23 which do not apply in this case) strongly suggests that mitigation measures and environmental effects must be considered together. In our view, logic and common sense point the same way: there can be no purpose whatever in considering purely hypothetical environmental effects when it is known and proposed that such effects can and will be mitigated by appropriate measures. [emphasis mine]

[45]            On a third point, as to the argument the panel had improperly delegated some of its functions when it recommended that certain further studies and ongoing reports to the National Energy Board should be made before, during and after construction, he answered:

This argument misconceives the panel's function which is simply one of information gathering and recommending. The panel's view that the evidence before it was adequate to allow it to complete that function "as early as is practicable in the planning stages ... and before irrevocable decisions are made" (see section 11(1)) is one with which we will not lightly interfere. By its nature the panel's exercise is predictive and it is not surprising that the statute specifically envisages the possibility of "follow up" programmes. [emphasis mine]

[46]            In Bow Valley Naturalists Society, supra, Justice Linden comprehensively reviewed the statutory scheme of the CEAA.

[47]            First, he described the purpose of an environmental assessment:

¶ 17       Environmental assessment is a tool used to help achieve the goal of sustainable development by providing "an effective means of integrating environmental factors into planning and decision-making processes". [See Note 6 below] According to Parks Canada, environmental assessment is "a comprehensive and systematic process designed to identify, analyse and evaluate the environmental effects of proposed projects". [See Note 7 below] The Supreme Court of Canada commented that an environmental assessment had become "a planning tool that is now generally regarded as an integral component of sound decision-making".

[48]            Second, he then pointed to the three types of environmental assessments provided for under the Act:

¶ 18       There are three types of environmental assessments: screening, ... comprehensive study, and panel review. Screening and comprehensive study account for the vast majority projects assessed under the Act.

[49]            Third, he described the basic framework for an environmental assessment in four steps as follows:

¶ 19       The basic framework for an environmental assessment is as follows. First, the responsible authority [See Note 10 below] must decide whether the Act applies to the project and if it does, which type of environmental assessment applies. The next step is the conduct of the assessment itself. Following the assessment, the responsible authority makes a decision as to whether or not to allow the project to proceed. The final step is the post-decision activity which includes ensuring that mitigation measures are being implemented and giving public notice concerning the responsible authority's course of action.

[50]            No issue of scoping arises in this proceeding and thus there is no need to reproduce Justice Linden's comments on this issue.

[51]            Fourth, under the heading "Scope of the Assessment", Justice Linden wrote that "[O]nce the responsible authority has determined the scope of the project, it must determine the scope of the assessment itself". He observes subsection 16(1) "sets out the factors to be considered in an environmental assessment" and that "[A]dditional factors may be considered under subsection 16(2)" which are discretionary factors unlike those set out in subsection 16(1) which are mandatory. The use of the word "shall" in paragraph 16(1)(a) indicates "that some consideration must be given to each factor" referring to Express Pipelines Ltd., supra, he added that some flexibility is permitted in the exercise.

[52]            Under the heading "Determining the Significance of the Effects", he wrote the following at paragraphs 48 and 49 of his reasons:

¶ 48       In accordance with section 20 of the Act, following a screening, the responsible authority must decide whether or not the project is likely to cause significant adverse environmental effects. This determination must take into account the implementation of mitigation measures. If the responsible authority decides that the project is not likely to cause significant adverse environmental effects, it may allow the [page485] project to proceed, while ensuring that any appropriate mitigation measures are implemented. [emphasis mine]

¶ 49       The Guide suggests that the evaluation consists of three determinations. First, the responsible authority must determine whether or not the environmental effects are adverse. Second, it must decide whether or not they are significant. In deciding whether or not the effects are significant, the Agency's "Reference Guide: Determining Whether A Project is Likely to Cause Significant Adverse Environmental Effects" [appendix to The Canadian Environmental Assessment Act: Responsible Authority's Guide] suggests that the following factors be taken into consideration: magnitude of the adverse environmental effects; geographic extent of the adverse environmental effects; duration and frequency of the effects; degree to which the adverse environmental effects are reversible or irreversible; and ecological context. The Reference Guide also suggests that the adverse environmental effects may be significant if they occur in areas or regions which have already been adversely affected by human activities; and/or are ecologically fragile and have little resilience to imposed stresses. Third, it must be decided whether these significant effects are likely to occur. [emphasis mine]

[53]            He concluded his reasons writing the following:

¶ 77       The Canadian Environmental Assessment Act was not intended to eliminate any and all development in the national parks. One of its stated purposes is to ensure sustainable development. Neither was the Act intended to provide a rigid structure for conducting environmental assessments, as each set of circumstances requires a different type of assessment, different scoping and different factors to be taken into consideration. While the dictates of the law must be followed, the process is a flexible and sometimes confusing one.

[78] . . .The Court must ensure that the steps in the Act are followed, but it must defer to the responsible authorities in their substantive determinations as to scope of the project, the extent of the screening and the assessment of the cumulative effects in the light of the mitigating factors proposed. It is not for the judges to decide what . . . projects are to be authorized, but, as long as they follow the statutory process, it is for the responsible authorities. [emphasis mine]

[54]            I note in the case of Friends of the West Country Assn., supra, where Justice Rothstein, at paragraph 25, indicated that the scope of the factors to be taken into consideration pursuant to paragraph 16(1)(a) of the CEAA is to be determined by the RA under subsection 16(3) and that this scoping is a discretionary decision involving two aspects: first the mandatory giving of some consideration to each of the factors and second, the discretionary scope to be given to each factor.

[55]            Another principle related to the notion of deference is referred to by Justice Sexton in the Federal Court of Appeal's judgment in Inverhuron & District Ratepayers' Association v. Canada (Minister of the Environment), 2001 FCA 203. He wrote the following at paragraphs 47 and 48:                                                           

¶ 48       In my opinion, it is not for this Court to delve into the scientific complexities associated with determining the validity of the appellant's factual assertions. To do so would be contrary to the long-accepted principle discussed by my colleague Strayer J. in Vancouver Island Peace Society:

It is not the role of the Court in these proceedings to become an academy of science to arbitrate conflicting scientific predictions ... Whether society would be well served by the Court performing either of these roles, which I gravely doubt, they are not the roles conferred upon it in the exercise of judicial review under section 18 of the Federal Court Act.

For the sole purpose of the following analysis, however, I will proceed on the assumption that the alleged facts have been established. As will be seen, the validity of the alleged facts has no impact upon my conclusions. [emphasis mine]

[56]            He cautioned, however, the following at paragraph 38:

¶ 38       This does not mean, however, that the Court's approach to reviewing the Minister's decision ought to be so deferential as to exclude all inquiry into the substantive adequacy of the environmental assessment. To adopt this approach would risk turning the right to judicial review of her decision into a hollow one. [emphasis mine]

[57]            Justice Sexton characterized the essence of the environmental assessment process at paragraph 55 and concluded the following at paragraph 56:

¶ 55       The essence of the environmental assessment process is to predict the environmental effects of a proposed project and then assess their significance. This process must be conducted as early as practicable in the planning stages of a project. By its very nature, then, the process is subject to some uncertainty. As this Court recognized in Alberta Wilderness Association v. Express Pipelines Ltd, "No information about probable future effects of a project can ever be complete or exclude all possible future outcomes." [See Note 17 below] It went on to opine that "... given the nature of the task, we suspect that finality and certainty in environmental assessment can never be achieved."

¶ 56       Given the nature of the process and the differences between the various types of projects subject to environmental assessment, there can be no one prescriptive method for conducting an environmental assessment. Indeed, the appellant was unable to direct the Court to any authority for a rule of law that would require Ontario Hydro to conduct the sort of detailed analysis of radiological effects that it seeks. The appellant did point to the case of Friends of the Island v. Canada (Minister of Public Works) [See Note 19 below] as standing for the proposition that a generic environmental assessment was not sufficient. However, that case dealt with an assessment conducted under the very different scheme of an order in council that preceded the current Canadian Environmental Assessment Act. Moreover, in that case, Reed J. refused to consider whether the order even required that a proposed project be assessed "at the concept stage or at a more specific design stage." She simply held that the assessment must take place when the environmental implications of a project can be fully considered. [See Note 20 below] In my opinion, the assessment at issue in the present case was conducted at such a time. [emphasis mine]

[58]            The Federal Court of Appeal's decision in Athabasca Chipewyan First Nation v. British Columbia Hydro and Power Authority, [2001] 3 F.C. 412, should also be mentioned. This was a case where a federal environmental assessment was set aside because the National Energy Board ("NEB") had not addressed the issue of operational changes how B.C. Hydro operated its existing dams and, in particular, whether there would be an increase in the release of water from the dams with adverse downstream effects. Justice Rothstein concluded the export permits which the NEB had authorized be quashed for the following reason:

¶ 27       B.C. Hydro's submission to the Board does not assist in explaining in any coherent manner why the Board would have concluded that there would be no significant adverse environmental effects from the granting of the permits. I accept that the Court should defer to the Board on questions within its area of expertise. However, with nothing in its reasons to indicate that the Board recognized that potential changes to operations of facilities was an issue and with nothing to go on from the submissions of B.C. [page424] Hydro, I am unable to conclude that the Board reached an informed and rational conclusion. Where a reviewing Court has no basis at all to piece together, from the reasons of the Board and the information submitted to the Board, why it would have reached the conclusion it did, the Board's decision cannot stand.

[59]            Next, I refer to one point dealt with by Justice MacKay in Union of Nova Scotia Indians v. Canada (Attorney General), [1997] 1 F.C. 325 (T.D.). In that case, an argument was put to Justice MacKay by the applicants that, in the decision to approve the screening report, the Ministers failed to comply with the requirements under the CEAA to assess measures to be undertaken in mitigation of adverse effects as part of the screening process. Applicants had argued that at the time the screening report was accepted not all mitigation measures had been determined or assessed. Rather, the report as accepted specifically provided the proponent was to develop, for approval of DFO and Environment Canada, prior to the commencement of the dredging, an environmental protection plan, a contingency plan and a dredged material disposal management plan. The implementation of operations was to be monitored, and the implementation of the plans yet to be developed by the proponent would ensure adverse effects were prevented and assessment predictions were evaluated.

[60]            Justice MacKay said the argument was based upon the Act which provides that every screening study of the project shall include consideration of, inter alia, "measures that are technically and economically feasible and that would mitigate any significant adverse environmental effects" and requirement of paragraph 20(1)(a) which provides that the RAs' decision is to be made "after taking into consideration the screening report", including "taking into account the implementation of any mitigation measures that the responsible authority considers appropriate". He pointed to the definition of mitigation in subsection 2(1) of the Act and wrote as follows at paragraphs 30, 31 and 32 of his reasons:

¶ 30       Mitigation is defined in subsection 2(1) of the CEAA as meaning "in respect of a project, the elimination, reduction or control of the adverse environmental effects of the project, and includes restitution for any damage to the environment caused by such effects through replacement, restoration, compensation or any other means".

¶ 31       Some mitigation measures were referred to, albeit briefly, in the screening report. For example, the creation of lobster habitat and compensation measures are foreseen as mitigating loss of lobster and invertebrate habitat at the dredging site, and the establishment of a monitoring program while work is in progress, to facilitate corrective action if significant schools of fish are perceived as delayed in migrating in the Great Bras d'Or Channel, is foreseen as mitigating noise and disturbance from dredging. The evidence also is, from affiants of EC and of LNG, that in the ongoing process of completing the screening study by LNG, there was considerable discussion of mitigating measures to deal with adverse consequences. Indeed, those were spoken of by government representatives at the July 5 meeting with the UNSI, perhaps with too much emphasis on mitigating measures, from the perspective of the UNSI representatives. It seems clear that possible mitigating measures were under consideration before the screening report was accepted on July 15.

¶ 32       Thus the applicants' argument, on the facts before me, would require that all the detail of mitigating measures be resolved and considered before acceptance of the screening report. I am not persuaded the CEAA requires that. The Act establishes a process for assessment of environmental effects. The process is ongoing and dynamic, with continuing dialogue between the proponent, the responsible authorities and often, as in this case, interested community groups. Dredging and ocean dumping of dredged material are well-known activities in Canadian waters, even if they had not previously been undertaken at the site of the project in this case. Much was known of measures to mitigate adverse consequences of these activities generally, and the project was not approved by grant of the necessary permits until details of mitigation measures were worked out to the satisfaction of the responsible authorities. [emphasis mine]

[61]            The case of Lavoie v. Canada (Minister of Environment), [2000] F.C.J. No. 1238, dealt with the interpretation of subsection 18(3) of the CEAA dealing with fairness and public participation. On that point, this Court wrote as follows:

¶ 99       Under the CEAA, there is a role for the common law doctrine of fairness in a number of ways but, however, I cannot accept counsel for the applicant's submission as to its independent and stand alone application in the area of public participation, the right to access relevant documents and the right to comment prior to an authorization being given. The reason is simple. Parliament has, in 1992, legislated on the content of fairness and has displaced the common law.

¶ 100       This is not to say a responsible authority can arbitrarily freeze out public participation in an environmental assessment. Such a proposition runs contrary to the fourth paragraph of the preamble to the CEAA and the stated purpose of paragraph 4(d) which is "to ensure that there is an opportunity for public participation in the environmental process".

¶ 101       Nevertheless, Parliament, in subsection 18(3), has conferred a power on the responsible authority to decide, in the particular circumstances, whether public participation in the screening of a project is appropriate in the circumstances.

¶ 102       The exercise of this discretion is governed by well-known legal principles reflected in the Supreme Court of Canada's judgments in Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2">[1982] 2 S.C.R. 2 and, most recently, in Baker v. Canada, [1999] 2 S.C.R. 817.

¶ 103       As I see it, the decision taken by the responsible authorities not to further open up public participation in the project was exercised on sound legal principles. A dominant feature of this case is federal-provincial coordination of the environmental aspects of the project and extensive public participation through the PAC. The facts recited in these reasons amply demonstrate this public participation was significant and meaningful in terms of inputs into the environmental assessment of the federal aspects of the project in all of its phases, including the November 1997 changes. That public participation and DFO's role interfacing with OMNR led to significant changes to the project which were beneficial.

¶ 104       I also note Mr. Lavoie's letter to DFO of February 24, 1998, raising several issues and DFO's lengthy reply of April 20, 1998; OMNR did the same in its February 27, 1998 response to Mr. Fairservice, PAC's Chairman, commenting on all outstanding issues.

CONCLUSIONS

[62]            In these conclusions, I deal first with the procedural issues raised by West Vancouver and then with the principal issue which is whether the RAs deferred the assessment of the impact of windthrow.

(i)         The procedural issues

[63]            There are two grounds to West Vancouver's fairness arguments which are somewhat interrelated.

[64]            The first is what has been described at the hearing as the collapsing error. This argument is premised on the statutory scheme of the CEAA said to envisage in section 18 a screening report (paragraph 18(1)(b)) followed by the possibility of public participation in the form of an opportunity to comment on the screening report (paragraph 18(3)(a)) before taking a course of action under section 20 which is a decision whether the Project is likely or not to cause significant adverse environmental effect or whether such a decision cannot be made because of uncertainty.

[65]            This argument is also premised on the fact the provincial Assessment Report issued on May 20, 2004, is also part of the federal screening report and, in that document, there is a statement the RAs have concluded the Project is not likely to cause significant adverse environmental effects (a decision in fact reached on May 7, 2004) thus making public comment on the screening report under subsection 18(3) meaningless because the federal authorities had already bound themselves to that section 20 conclusion.

[66]            Lack of a meaningful opportunity for it to convince federal decision-makers the provincial authorities had not really taken seriously their views into account is the second ground of unfairness invoked by West Vancouver. Specifically, West Vancouver says the June 7^th meeting with the RAs was a perfunctory meeting because the RAs had already made up their minds.

[67]            All parties agree that subsection 18(3) of the CEAA confers on the RAs a discretionary authority to provide for public participation after the release of a screening report and that the scope of such participation is variable depending upon the circumstances.

[68]            All parties also agree that West Vancouver had been a very active participant as a stakeholder in the numerous committees reviewing all aspects of the Project as it impacted on West Vancouver's interests and those of its community. All parties also agreed that the public at large had been consulted by the proponent in the material evolution of the project.

[69]            I cannot agree with counsel for West Vancouver that its federal participatory rights were breached in the circumstances of this case.

[70]            West Vancouver says subsection 18(3) was triggered by the meeting the RAs held with it on June 7, 2004. I cannot accept this argument.

[71]            Subsection 18(3) only becomes engaged, in my view, when the RAs form an opinion public participation in the screening of a project is appropriate in the circumstances. There is no evidence the RAs made that determination in this case and all the evidence points to the contrary given the extensive consultation which had already taken place over a two-year period. Moreover, there is no evidence in the record a Registry was established as required by subsection 18(3).

[72]            In my view, the structure of subsection 18(3) contemplates participation by the public at large and on this basis, West Vancouver's meeting with the RAs on June 7, 2004, cannot be considered public participation for the purposes of this subsection. Rather, it was a further opportunity provided to West Vancouver by the RAs to make its concerns known as an important stakeholder in the process.

[73]            In addition, from an environmental perspective, the Project was the subject of a joint federal-provincial review and it is clear West Vancouver had continuous access to the RAs throughout the screening process. It made its views known on several environmental concerns it raised; those views were considered and responded to.

[74]            Federal and provincial authorities reached a preliminary conclusion on May 7, 2004, the Project would not generate significant adverse environmental effects; but unfortunately, West Vancouver could not be at this meeting although it had previously, on several occasions, made its views known on the windthrow issue.

[75]            West Vancouver had a further opportunity to make its views known on this preliminary determination at the May 10, 2004 teleconference (I note the RAs were not present) whose purpose, inter alia, was to discuss West Vancouver's concerns on the Clarification Report. All provincial environmental consultants including Julian Dunster were present on the call. I cannot accept the view advanced by counsel for West Vancouver that discussion at that meeting was foreclosed. The minutes indicate West Vancouver had no further comments at that time and would consider its options later. Moreover, later on in the process, West Vancouver had an opportunity to and did comment on the draft provincial environmental report.

[76]            As to the collapsing issue, I agree with counsel for Canada and counsel for B.C. that section 16 of the CEAA requires that every screening of the project shall include a consideration of the factors of the significance of an environmental effect which compels the expression of an opinion of likelihood upon which the RAs may reach a section 20 conclusion.

[77]            In any event, in the circumstances of this case, West Vancouver's argument is one more of form than substance since subsection 18(3) was not engaged and West Vancouver had participated extensively in the process.

(ii)        Was the impact of windthrow assessed and, if so, was there a rational conclusion to support a determination of no significant impact

[78]            Before dealing with the main issue, I am required to comment on two legal issues raised by B.C.'s counsel at the hearing. Those issues focussed on prematurity and significance.

[79]            The effect of the prematurity argument is that there is nothing this Court can quash and focusses on paragraph 20(1)(a) of the CEAA which provides that where there is a finding a project is not likely to cause significant environmental effects taking into account the implementation of any mitigation measures that the RAs consider appropriate "the responsible authority may exercise any power or perform any duty or function that would permit the project to be carried out in whole or in part". The prematurity argument also focusses on the wording of the federal screening decision itself which states:

In accordance with section 20(1)(a) of CEAA, such a determination enables the habitat and enhancement branch of DFO, EC, TC and INAC to proceed, if appropriate, with the issuance of an authorization under subsection 35(2) of the Fisheries Act a permit under the Canadian Environmental Protection Act, a permit under subsection 5(1) of the Navigational Waters Protection Act and a permit under subsection 28(2) and/or subsection 35 of the Indian Act. [emphasis mine]

[80]            Counsel for Canada and B.C. informed me that no federal permits had yet been issued for the Project and none would issue before construction unless and until MOT's commitments had been satisfied. The RAs had a residual discretion to refuse to issue permits until the commitments were achieved, they argued.

[81]            At the end of the day, counsel for B.C. conceded this Court had something to quash, namely, the federal screening decision under section 18.1 of the Federal Courts Act (see transcript, February 17, 2005, at pages 681 through 683).

[82]            The second argument raised by counsel for B.C. focussed on the meaning of "significance" in the finding made by the RAs that the project would cause no significant adverse environmental effects.

[83]            Counsel for B.C. took me to the Reference Guide published by the Canadian Environmental Assessment Agency and the relevant factors for that determination: magnitude, geographic extent, duration and frequency, reversibility, ecological context, probability of occurrence and level of confidence. On this point, the submissions from British Columbia were at two levels.

[84]            At the first level, as I appreciated it, the submissions seemed to be an attempt to persuade me that the effects of blowdown could not possibly be significant because of the site visits including Dr. Dunster's, the fact that only .6 of a hectare at the very western hedge of the swamp habitat was affected by the new proposed highway, the localized effect and the reversibility of any trees which might be blown down because they could be replanted or could regrow naturally. At this level, based on the Reference Guide, it was argued no quantitative assessment was possible and therefore the assessment was based on a qualitative approach with the RAs using their best professional judgment.

[85]            At a second level, on the assumption the most possible trees were going to be blown down, counsel for B.C. argued in terms of the entire Project, such impact could not be significant because of the small area involved as compared to the whole Project.

[86]            I cannot subscribe to B.C.'s argument at the second level. At this level, I cannot accept that the CEAA does not protect, as argued by counsel for West Vancouver, discreet significant adverse environmental effects which may be concentrated in a small area. As I indicated at the hearing, it is inconceivable the CEAA would allow the devastation of the area in the District of Vancouver and justify that devastation because the trees in the Squamish Forest Reserve were going to be preserved and there were lots of them.

[87]            I am prepared to entertain B.C.'s argument at the first level because significance is the principal criterion under the Act which is not a fixed or wholly objective standard and contains a large measure of opinion and judgment (see, Express Pipelines, supra).

[88]            I now consider the main issue and, as a starting point, I agree with counsel for West Vancouver, that the environmental impact of the proposed new four-lane highway cutting through the undeveloped forest area surrounding Eagle Ridge Bluffs and, Larsen Creek with its wetlands surfaced late in the day requiring a postponement of the scheduled date for the tabling with the responsible B.C. ministers of the provincial environmental assessment, in part because of the required further public consultation.

[89]            Specifically, the chronology of the windthrow effect of option B was as follows:

(i)         windthrow of trees was first identified during a March 11, 2005 site visit;

(ii)        its impact was the subject matter of Mr. Jenkins' two March 17, 2005 letters which were responded to by Mr. Milburn on April 1, 2005;

(iii)       on April 1, 2004, a field trip to the Baden Powell Trail area took place;

(iv)       on April 8, 2004, MOT submitted to the EAO a Clarification Report;

(v)        on April 20, 2004, the BTWG met to provide its preliminary response to the Clarification Report;

(vi)        on April 30, 2004, West Vancouver submitted its comments on the Clarification Report with one of the issues addressed being forest edge management;

(vii)      on May 3, 2004, WLAP responded to the Clarification Report and recommended that a windthrow wind assessment should be undertaken;

(viii)       on May 4, 2004, DFO responded and asked for assurances on blowdown;

(ix)        on May 5, 2004, MOT provided its response to the comments it had received on the Clarification Report. It answered two questions. "Will additional clearing be required ?" To the question "Will the trees in the swamp be more susceptible to windthrow ?", MOT simply referenced Dr. Julian Dunster's report and the Hayco Report;

(x)        on May 7, 2004, the Project Working Group met; its purpose was to determine whether Options B or D have the potential for significant adverse effect ("show-stopper" issues). On this issue, the action item read "Add to commitment table - MOT to pursue the detailed windthrow studies and development of mitigation measures recommended by the arborist";

(xi)       on May 10, 2004, a teleconference was held by the Project Working Group to discuss comments by, inter alia, West Vancouver on the Clarification Report and on MOT's responses;

(xii)      also on May 10, 2004, an addendum to the Clarification Report was filed;

(xiii)      on May 20, 2004, the provincial Environmental Assessment Report was tabled with responsible B.C. ministers;

(xiv)      on June 10 and on June 11, 2004, the federal considerations and federal screening decisions were made.

[90]            In a nutshell, the main issue is, on the evidence before me, whether the RAs made an assessment of the environmental impact of the windthrow of trees. Counsel for West Vancouver concentrated his argument on the Dunster Report.

[91]            His report tells us that when a forest is opened up to clear a new highway's right of way, a new forest edge is created which can introduce a new set of dynamic forces such as increasing the sway of the remaining trees causing complete uprooting in some cases.

[92]            It will be recalled that Dr. Dunster was retained by MOT after Mr. Jenkins had raised the issue on behalf of Vancouver, an issue which the BTWG considered at its April 20, 2004 meeting. It will also be recalled that B.C.'s Ministry of Water, Land and Air Protection on May 3, 2004, advised a windthrow wind assessment should be undertaken such that any windthrow damage can be protected and managed and after DFO sought assurances on whether additional clearing would be required to avoid blowdown.

[93]            Counsel for West Vancouver makes a very forceful argument by pointing to what Dr. Dunster himself stated in his report where he said "[H]owever, at this stage, I am not able to determine whether or not the presence of the road would create windthrow, nor how extensive it might be" and where he further stated "[I]t would require more time to undertake detailed site assessments to delineate forest types, topography, species, age and tree heights. It would also require a review of past weather patterns, especially wind speeds, wind direction and rainfall". Dr. Dunster also stated in his report "[O]nce more detailed information about this site is available, it may be possible to recommend more specific windthrow mitigation options, such as practices like spiral thinning and feathering of the forest edges".

[94]            In my view, however, these statements must be appreciated within the context of Dr. Dunster's report itself and against the background of the other evidence available to the RAs.

[95]            Dr. Dunster identified the area of concern "[T]o be primarily a small arm extending westward at the northern end" and further stated that in reviewing the forest edge issues, the main factors to consider are soil moisture regime, wind patterns and site aspect (orientation towards the sun).

[96]            On soil moisture, Dr. Dunster concluded "[C]reation of the road would not, in my opinion, radically alter the amount of water flowing into the wetland area at the west side" stating "[O]n the basis of the hydrology information available to me, I conclude that the soil moisture regimes would not get wetter".

[97]            He was of the view, this being the case, the main issue was what effect the opening might have on tree stability and the wetlands. Dr. Dunster then stated opening up the area would introduce more sunlight along the western boundary of Polygon 704. He noted in the field that the tree cover in the west arm of the wetland was already quite open and the ground already exposed to the higher summer sun so that the main effect of the road would be to permit more of the setting sun into the area. He was of the view the effect of increased sunlight would primarily be limited to the west end of the arm and would not affect the balance of the area since the forest cover would not be disturbed.

[98]            When discussing windthrow he stated "[T]he forest cover along the ridge line west of the wetland appears to be very variable in age class, and stand density and the land form varies from relatively flat land to hummocky with rocky bluffs" adding "[T]he forest cover to the east is continuous and would remain so after the road was built". He concluded the creation of a road in the area may alter wind influences at the local scale and it is conceivable that some trees may be lost as a result.

[99]            On mitigation options such as spiral thinning and feathering of the forest edges, Dr. Dunster stated they were very site specific aspects and could not be determined at the preliminary design stage.

[100]        The RAs and the B.C. environmental authorities interpreted Dr. Dunster's report as advice "that more detailed information about this site is required before it is possible to investigate more specific windthrow mitigation options" (see, Provincial Assessment Report, page 30).

[101]        As mentioned, Dr. Dunster's report cannot be read in isolation. Without being exhaustive, I mention the following information available to the RAs:

(1)        Mr. Milburn's April 1, 2004 letter discussing forest edge management issues and his recent experience with the Vancouver Island Highway Project and today's construction practices.

(2)        The April Hayco Report on hydrology issues pertaining to Larsen Creek concluding that Option B would lead to a slight increase in the impervious area within the Larsen drainage basin. That report also identified mitigation measures.

(3)        The April 26, 2004 visit to the Larsen Creek headwaters by David Carter of DFT accompanied by a DFO hydrologist and his advice to the May 7^th Working Group meeting that, in his opinion, the Larsen Wetland in the area of Option B contributes less to the hydrology of Larsen Creek than previously considered and that the potential for an incremental effect from Option B would not be substantial.

(4)        The previous site visits to the area.

(5)        The cumulative effects assessment and its addendum.

(6)        The possibility of pulling the highway away from the western arm of the wetlands.

[102]        I agree with counsel for Canada and B.C. there was ample evidence before the RAs to enable them to assess the environmental impact of windthrow in the affected area and to consider its significance measured against known mitigation techniques which cannot be implemented at the preliminary design stage but rather must be implemented when the design of the highway has taken shape.

[103]        Specifically, based on the Dunster Report read in its entirety and the other accumulated evidence, federal and provincial reviewers, on May 7, 2004, being aware of the windthrow issue which was specifically discussed at this meeting, reached a tentative conclusion neither Option B nor Option D had the potential for significant adverse environmental effect if mitigation was applied, an opinion which was reasonably open to them to reach and to subsequently confirm after the May 10^th meeting with West Vancouver.

[104]        In the circumstances, it was reasonable for the RAs to rely upon B.C.'s (MOT) commitment to mitigate through follow up studies when the timing to do such studies is appropriate.

[105]        For all of these reasons, this judicial review application is dismissed with costs to each of the respondents.

[106]        I conclude by stating I am confident the commitments made by the Ministry of Transportation for British Columbia with respect to windthrow will be honoured and the federal RAs have the residual discretion not to issue the required permits unless the relevant commitments have been performed before construction starts.

"François Lemieux"

                                                                                            J U D G E             

OTTAWA, ONTARIO

MAY 4, 2005

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:       T-1310-04

STYLE OF CAUSE: Corporation of the District of West Vancouver v

Her Majesty the Queen, and others

PLACE OF HEARING:         Vancouver, British Columbia

DATE OF HEARING:           February 15^th, 16^th, 17^th, 18^th, 2005

REASONS FOR ORDER : Lemieux J.

DATED:                                  May 4, 2005

APPEARANCES:

John J.L. Hunter, Q.C.                                      FOR APPLICANT

K.Michael Stephens

Alan D. Louie                                                    FOR RESPONDENTS

Malcolm Palmer                                                            (Attorney General of Canada)

George Copley, Q.C.                                        FOR RESPONDENTS

Nancy E. Brown                                                            (Her Majesty the Queen-Province

Jonathan Penner                                                            of British Columbia)

SOLICITORS OF RECORD:

Hunter Voith                                                                  FOR APPLICANT

Vancouver BC

John H. Sims, Q.C.                                                       FOR RESPONDENTS

Deputy Attorney General of Canada

Geoff Plant                                                                    FOR RESPONDENTS

Ministry of Attorney General