Date: 20090827
Docket: T-1309-09
Citation: 2009
FC 848
Ottawa, Ontario, August 27, 2009
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
LIVING OCEANS SOCIETY and
THE CANADIAN PARKS
AND WILDERNESS SOCIETY
Applicants
and
MINISTER OF FISHERIES AND
OCEANS,
MINISTER OF FOREIGN AFFAIRS and
COLUMBIA UNIVERSITY
IN THE CITY OF NEW YORK
Respondents
REASONS FOR ORDER AND ORDER
[1]
This is an
urgent motion by the applicants for an interim order under section 18.2 of the Federal
Courts Act, R.S.C.1990, c. 8, s. 5 as am. by S.C. 2002, c. 8, s. 28, and
under rule 373 of the Federal Rules of Court, staying the Foreign Vessel
Clearance dated August 21, 2009 issued by the Respondent Minister of Foreign
Affairs to the United States Department of State with respect to the U.S.
Marine Scientific Research Vessel R V Marcus G. Langseth to conduct a seismic
survey in an area approximately 250 kilometres southwest of Vancouver Island between August 17 and
September 22, 2009. This seismic survey will be conducted by the Respondent Columbia University with funds provided by the
U.S. Government. The purpose of the study is to obtain data which will be
useful in the understanding and prediction of earthquakes which emanate from
the area where the seismic study is being conducted, and to do other scientific
research with respect to the species living in the “Endeavour Hydrothermal
Vents Marine Protected Area”.
[2]
The
applicant’s motion was originally filed on August 19th for an
injunction against the two respondent Ministers to prevent the issuance of a
Foreign Vessel Clearance under s. 3(2)(c) of the Coasting Trade Act,
S.C. 1992, c. 31. The evidence now before the Court shows that following the
filing of this motion by the applicants for an injunction, the Department of
Fisheries and Oceans required the Respondent
Columbia University to substantially increase the
mitigation measures to protect marine mammals in the Endeavour Marine Protected
Area. The increased mitigation measures included a reduction in the 180-decible
level of the airguns to 160-decibles, an increase in the marine mammal
observers, including DFO appointed and approved observers on the ship,
dedicated to maintaining constant observations for marine mammals, a
substantially increased “exclusion zone” to over 7 kilometres whereby no
testing will take place if a whale is in that exclusion zone, an increase in
the pre-operations monitoring to be sure there are no marine mammals sighted
within the zone where the testing will be taking place, and other mitigation
measures.
[3]
On August
24, 2009 the Respondent Ministers filed an Affidavit from Rebecca Reid, the
Regional Director of the Oceans, Habitat and Enhancement Branch for the Pacific
Region of the Department of Fisheries and Oceans (DFO). Ms. Reid deposed that
these new mitigation measures required by DFO led her to determine that the
proposed research would not be expected to result in a contravention of the
marine statutes and regulations. Her affidavit deposed at paragraphs 17 to 22
as follows:
17. On August 14, 2009, DFO’s
Pacific Region received from Lamont an “Application for a Species at Risk
Permit”. After DFO requested several clarifications from Lamont, they provided
an amended Application for a Species at Risk Permit on August 20, 2009 (the
“SARA Permit Application”). Attached as Exhibit “B” and “C” to this Affidavit
is a copy of the August 14 and August 20m 2009, SARA Permit Applications.
18. The August 20, 2009 SARA
Application was forwarded to DFO’s Marine Mammal Unit for review. The Marine
Mammal Unit determined that based on the mitigation measures proposed by
Lamont, their Research would not violate the Marine Mammal Regulations.
19. The SARA Application was
forwarded to Dr. John Ford, head of the Cetacean Research Program at DFO’s
Pacific Biological Station in Nanaimo.
20. In order to inform myself, on
August 23, 2009 I spoke with Dr. Ford and he advised me of the following with
regard to his role at DFO, his expertise in marine mammals and how he reviewed
the SARA application:
a. The
Cetacean Research Program undertakes research in support of recovery of whales,
dolphins and porpoises considered Endangered or Threatened under Canada’s SARA.
b. Dr.
Ford is an expert in whale behaviour and acoustics, having undertaken filed
studies in this discipline for over 30 years. Attached as Exhibit “D” to this
Affidavit is a copy of Dr. Ford’s curriculum vitae outlining his expertise and
experience with respect to marine mammals.
c. Dr.
Ford reviewed the SARA Permit Application as well as the information provided
in the “Environmental Assessment of a Marine Geophysical Survey by the R/V
Marcus G. Langseth in the Northeast Pacific Ocean, August-September 2009” and
in the August 14, 2009 SARA Application.
21. Dr. Ford advised me that he
considered the sound pressure levels estimated to be emitted from the 6600 in³
seismic airgun array and whether this may cause acoustical disturbance to
marine mammals. It was his opinion that the project as proposed in the August
20, 2009 SARA Permit Application was unlikely to cause either injury or
behavioural disturbance of any significance to cetaceans or other marine
mammals provided the mitigation actions described by Lamont in the SARA Permit
Application were employed.
22. In particular, Dr. Ford further
advised the mitigation actions included in Lamont’s SARA Application are
similar to, and in some respects, more precautionary than mitigation protocols
employed in most worldwide jurisdictions.
[4]
On August
21st, 2009 Ms. Reid, as the Regional Director of DFO wrote to the Respondent Columbia University and stated:
… DFO has determined that the mitigation
measures outlined in the application are sufficient to prevent harm and
disturbance of marine mammals. As such, a SARA permit is not required for the
conduct of your proposed works…
[5]
Also
on August 21st, 2009, after this determination, the Respondent
Minister of Foreign Affairs issued the Foreign Vessel Clearance. As a result,
the ship set sail the next morning to begin the seismic survey.
[6]
The
Court finds that both of these events happened after the motion for the
injunction was filed, but before the motion could be heard. As a result, the
parties appearing before the Court scrambled to adjust to the new fact
situation, and the applicants filed an amended motion for an order staying the
Foreign Vessel Clearance, as opposed to enjoining its issuance.
[7]
The
Court is satisfied that the DFO expert, Dr. John Ford, Ph.D has provided his
opinion to DFO that the new mitigation measures proposed by the Respondent
Columbia University means that this proposed seismic survey is “unlikely to
cause either injury or behavioural disturbance of any significance to cetaceans
or other marine mammals provided the mitigation actions agreed to by Columbia University
are followed”. The Court has reviewed the 12-page curriculum vitae of Dr. Ford
which is attached as Exhibit “D” to the Affidavit of Ms. Reid. Dr. Ford has
been the research scientist and head of the Cetacean Research Program for the
Pacific region with DFO since 2001. He has extensive prior experience with
marine mammals dating back to 1973. The Court expressed regret that Dr. Ford
had not sworn an affidavit himself with respect to this motion. Counsel
explained that the short timeline between the filing of the motion and the
hearing of this motion made this impracticable. The Court accepts counsel’s
explanation and declines to draw an adverse inference from the failure to
provide evidence of persons having personal knowledge of material facts (see: Federal
Court Rules, r. 81(2)). This Court does accept affidavit evidence on
information and belief on interlocutory matters and will accept Ms. Reid’s
Affidavit with respect to the opinion provided by Dr. Ford. Ms. Reid is the
Regional Director of DFO responsible for this issue (see: Federal Court
Rules, r. 81(1)).
[8]
The
applicants submitted that the U.S. evidence about the impact of the proposed
seismic testing supports their claim that there will possibly be incidental
harassment to marine mammals incidental to the marine seismic survey. The Court
cannot find this evidence as sufficient evidence of probable irreparable harm
to the mammals for two reasons. First, this conclusion was based on different
acoustic levels and other conditions which have been mitigated by Columbia University
at the request of the Department of Fisheries and Oceans. Second, the evidence
of Dr. Ford, which is up-to-date and from a Canadian expert dealing
specifically with the issue, is unequivocal that the project as now proposed, is
unlikely to cause either injury or behavioural disturbance to whales and other
marine mammals because of the new mitigation action agreed to by Columbia University.
[9]
The
granting of an interim stay is an exceptional remedy. An applicant must
demonstrate urgency, in addition to a serious issue, irreparable harm and that
the balance of convenience lies with the applicant (See: RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311). In this
case, based on the evidence, the Court has concluded that the applicants have
not established a probability of irreparable harm to the marine mammals for the
reasons outlined above.
[10]
In
view of the Court’s finding with respect to irreparable harm, it is not
necessary, and it is not in the interest of expeditiously deciding this urgent
motion, for the Court to deal with the rest of the tri-partite test for an
interim stay. It is also unnecessary for the court to decide several other
issues raised by the parties including whether to allow the applicants to amend
their notice of motion to seek an interim stay instead of an injunction;
whether the motion should be allowed to proceed because a number of alleged
interested parties have not been named as respondents; whether the applicants
ought to be required to file an undertaking with respect to damages; whether
the Species at Risk Act, S.C. 2002, c. 39 and the Marine Mammal
Regulations, S.O.R./93-56 will be contravened by the proposed seismic
testing; what is the standard of review applicable in this case; and whether
the applicants have standing to bring an action to prevent another private
party from breaching a statute.
[11]
For
these reasons, this motion for a stay will be dismissed.
[12]
With
respect to costs, the Court recognizes that after this motion was filed the DFO
required the Respondent Columbia University to
substantially increase its mitigation measures to protect the marine mammals
and it was only after that, that the Foreign Vessel Clearance was issued. When
the applicants appeared before the Court on the return of the motion, these
facts had changed without their knowledge. Moreover, the application by the
U.S. Department of State for a Foreign Vessel Clearance was filed with the
Department of Foreign Affairs on February 26, 2009. The evidence showed that the
application had been misplaced by the Department of Foreign Affairs until July
14, 2009. This error prejudiced the parties by substantially reducing the lead
time which the parties would have to address the issues raised in this
litigation. In these circumstances, the Court is of the preliminary view that
there ought not to be any cost awards against the applicants because the
applicants could not have known about the changed measures to mitigate possible
interference with the marine mammals by the seismic testing, and in fact, their
imminent legal action may have precipitated the requirement for increased
mitigation measures.
ORDER
THIS COURT ORDERS that:
This motion against the Respondent Ministers for
an interim order staying the Foreign Vessel Clearance dated August 21, 2009 is
dismissed.
“Michael
A. Kelen”
Email this Content