Date: 20080514
Docket: T-460-08
Citation: 2008
FC 598
Ottawa, Ontario, May 14, 2008
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
IMPERIAL
OIL RESOURCES VENTURES LIMITED
Applicant
and
MINISTER
OF FISHERIES AND OCEANS,
Attorney General of Canada,
PEMBINA
INSTITUTE FOR APPROPRIATE DEVELOPMENT,
SIERRA
CLUB OF CANADA,
TOXICS WATCH SOCIETY
OF
ALBERTA, and PRAIRIE
ACID RAIN COALITION
Respondents
REASONS FOR ORDER AND ORDER
[1]
On February 27, 2007,
the Joint Review Panel with respect to Imperial Oil’s Kearl Oil Sands Project
in north-west Alberta, acting under the authority of the Canadian
Environmental Report Act, S.C. 1992, c. 37 (CEAA), recommended in a
Report to the Minister of Fisheries and Oceans, Canada, that the Project
proceed. On August 14, 2007, the Governor in Council, pursuant to s. 37(1.1)(a)
of CEAA, approved the Report. Based on the approval, on February 12,
2008, the Minister of Fisheries and Oceans granted an Authorization pursuant to
s. 35(2) of the Fisheries Act, R.S.C., 1985, c. F-14, which effectively
allowed Imperial Oil to commence the Project.
[2]
However, unfortunately,
the Authorization was granted, and relied upon by Imperial Oil, while a
judicial review challenge to the Report in this Court was under reserve for
decision by Justice Tremblay-Lamer in court file T-535-07. On March 5, 2008,
Justice Tremblay-Lamer decided that the Joint Review Panel did not provide a
rationale for its conclusion on green house gas emissions as it was required so
to do, and, as a result, Justice Tremblay-Lamer ordered that “the matter is
remitted back to the same Panel with the direction to provide a rationale for
its conclusion”.
[3]
Justice
Tremblay-Lamer’s order precipitated a delegate of the Minister of Fisheries and
Oceans, in a faxed letter to Imperial Oil dated March 20, 2008, to state the
opinion that the Authorization already granted is now a nullity, and based on
this opinion, to further state that Imperial Oil is not authorized to proceed
to develop the Project (see: Appendix A to these reasons). In the present
Application, commenced on March 20, 2008, Imperial Oil challenges the Minister
of Fisheries and Oceans’ opinion in order to allow it to proceed to develop the
Project on the basis of the Authorization already granted. For the reasons which
follow, I find that Imperial Oil has failed in this effort.
[4]
As the first step in
Imperial Oil’s challenge in the present Application, it moved to obtain an
injunction against the implementation of the opinion of the Minister of
Fisheries and Oceans. At the time this step was taken, Pembina Institute for
Appropriate Development and Sierra Club of Canada had already commenced
T-418-08 against the Minister of Fisheries and Oceans and Imperial Oil, being a
separate application to quash the Authorization. At the time of the hearing of
the injunction motion, both matters were before Justice de Montigny who sought and obtained an agreement by all parties to deal with the key
issues in both applications by the present consolidated judicial review. The
parties agreed that the following issues would be argued:
What is the effect of the Federal
Court's judgment in T-535-07 on the validity of the authorization issued
pursuant to section 35(2) of the Fisheries Act by Fisheries and Oceans
Canada (DFO) to Imperial Oil Resources Ventures Limited on February 8, 2008?
More specifically, is the Authorization rendered a nullity as a result of the
operation of law?
If the Authorization is not
rendered a nullity by the Judgment in T-535-07 and the operation of the law,
should this Court determine to grant the relief claimed in Item 2(b) of the
Relief claimed in the Notice of Application in T-418-08 and therefore quash the
Authorization?
If the Authorization remains
legally valid, does the DFO, or its Minister, have the legal authority to
revoke or rescind the Authorization?
[5]
The operation of CEAA
is not in dispute and is detailed in the following paragraphs of the
un-appealed decision of Justice Tremblay-Lamer:
14 The CEAA
establishes a two-step decision-making process. The first step is an
environmental assessment where potentially adverse environmental effects of a
project are analysed (s. 5). The second step involves decision-making and
follow-up where a federal authority decides, taking into consideration that
assessment, if a particular project should be authorized and what follow-up
measures, if any, are required to verify the accuracy of the assessment and the
effectiveness of mitigation measures (ss. 37 and 38).
[…]
20 Specifically, the
general duties that a review panel is mandated to fulfill are four-fold (s.
34). First, it must ensure that the information required for an assessment is
obtained and made available to the public (s. 34(a)). Second, the panel is
required to hold hearings in a manner that offers the public an opportunity to
participate in the assessment (s. 34(b)). Third, the panel is charged with
fulfilling a reporting function whereby it must prepare a report setting out
"the rationale, conclusions and recommendations of the panel
relating to the environmental assessment of the project, including any
mitigation measures and follow-up program" as well as a summary of public
comments received (s. 34(c)). Finally, it must submit that report to the
Minister and the responsible authority (s. 34(d)).
[…]
78 The evidence shows
that intensity-based targets place limits on the amount of greenhouse gas
emissions per barrel of bitumen produced. The absolute amount of greenhouse gas
pollution from oil sands development will continue to rise under intensity-based
targets because of the planned increase in total production of bitumen. The
Panel dismissed as insignificant the greenhouse gas emissions without any
rationale as to why the intensity-based mitigation would be effective to reduce
the greenhouse gas emissions, equivalent to 800,000 passenger vehicles, to a
level of insignificance. Without this vital link, the clear and cogent
articulation of the reasons behind the Panel's conclusion, the deference accorded
to its expertise is not triggered.
79 While I agree that
the Panel is not required to comment specifically on each and every detail of
the Project, given the amount of greenhouse gases that will be emitted to the
atmosphere and given the evidence presented that the intensity based targets will
not address the problem of greenhouse gas emissions, it was incumbent upon the
Panel to provide a justification for its recommendation on this particular
issue. By its silence, the Panel short circuits the two step decision making
process envisioned by the CEAA which calls for an informed decision by a
responsible authority. For the decision to be informed it must be nourished by
a robust understanding of Project effects. Accordingly, given the absence of
an explanation or rationale, I am of the view that the Panel erred in law by
failing to provide reasoned basis for its conclusion as mandated by s. 34(c)(i)
of the CEAA.
[Emphasis added]
[6]
Given the operation of CEAA,
and with respect to the first
issue set by Justice de Montigny, I find
that the primary effect of
Justice Tremblay-Lamer’s order is that, since the Report is incomplete it must
be completed, and once completed it must be, yet again, placed before the
Governor in Council for approval, and if approval is given, a new authorization
must be provided by the Minister of Fisheries and Oceans to allow Imperial Oil
to proceed with the Project. For this reason, the secondary effect of the
decision is that the Authorization dated February 12, 2008, being issued by the
Minister of Fisheries and Oceans on a fundamentally flawed Report which,
thereby, could not lawfully receive the approval of the Governor in Council,
was issued without jurisdiction (Alberta Wilderness Assn. v. Canada
(Minister of Fisheries and Oceans), [1999] 1 F.C. 483, [1998] F.C.J. No.
1746 (QL) (F.C.A.) at paras. 17-21). Therefore, I find that the Authorization
is a nullity.
[7]
In the present Application,
Imperial Oil argues that, nevertheless, on judicial review I can exercise
discretion not to act on the finding that the Authorization is made in error of
law, which would have the effect of allowing work to proceed without seeking a
further authorization. Given my finding that the Authorization was made without
jurisdiction, and is, therefore, a nullity, in my opinion nothing exists upon
which to exercise my discretion. As a result, I dismiss Imperial Oil’s
argument.
[8]
Given my response to the first
issue, the second issue becomes irrelevant. With respect to the third issue
which questions whether the Minister of Fisheries and Oceans can revoke an
authorization already granted, I do not find that the opinion of March 20,
2008, constitutes a revocation; it is an expression of opinion based on
operation of law. As a result, I find that the third issue is also irrelevant.
[9]
During the course of the hearing
of the present Application, Counsel for Imperial Oil moved to have evidence
added to the record to prove actions taken by the Joint Review Panel since the
date of Justice Tremblay-Lamer’s
order. I dismiss this motion since I find
that the evidence is irrelevant to the issues determined.
[10]
During the course of the oral
hearing of the present Application, Counsel for the Applicants in T-418-08
agreed that, if the present Application is dismissed, T-418-08 should be
dismissed. Since a dismissal is the outcome in the present Application, the
dismissal of T-418-08 will be accomplished by an order in that application.
[11]
By Justice de Montigny’s order of March 27, 2008, each party is to bear its own costs.
ORDER
THIS COURT ORDERS that
For the reasons provided, the present Application is
dismissed.
“Douglas
R. Campbell”
APPENDIX A:
Letter dated March
20, 2008, faxed to Imperial Oil:
Applicant’s
Application Record, p.356
Fisheries and Oceans Pêches et
Océans
Canada Canada
Imperial Oil Limited
237 Fourth Avenue S.W.
Calgary, Alberta
Canada T2P 0H6
Attn: Stuart Nadeau
Dear Mr Nadeau,
We are writing further to the decision of the Honourable
Madam Justice Tremblay-Lamer dated March 5, 2008 in the matter of Pembina
Institute for Appropriate Development, Prairie Acid Rain Coalition, Sierra Club
of Canada, and Toxics Watch Society of Alberta v. Attorney General of Canada, Minister
of Fisheries and Oceans and Oceans, Minister of the Environment, and Imperial
Oil Resources Ventures Limited, Federal Court Docket T-535-07, as well as
Imperial Oil’s correspondence to Minister Hearn, dated
March 11, 2008.
Please be advised that the Department of Fisheries and
Oceans is of the view that, as a result of the Honourable Madam Justice
Tremblay-Lamer’s decision, the Authorization for Works or Undertakings
Affecting Fish Habitat and the Authorization to Destroy Fish by any means other
than Fishing (ED-03-2806) which was issued by the Minister of Fisheries and
Oceans and Oceans pursuant to subsection 35(2) of the Fisheries Act to
Imperial Oil Resources Ventures Limited on February 12, 2008, is a nullity.
As a result, Imperial Oil is not authorized to proceed with
any works or undertakings that will cause a harmful alteration, disruption or
destruction of fish habitat or that destroys fish by any means other than
fishing. A representative from DFO will be in touch with you to discuss next
steps.
Sincerely,
Bob Lambe
Regional Director General
cc. Mr. T.J. Hearn, Chairman and CEO
David McBain, Director General, Habitat
Management
Ginny Flood, National Director, Environmental Reports
and Major Projects
Brian Makowecki, Regional Manager, Oil Sands
Projects
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