Tsawwassen Indian Band v. Canada (Minister of Enviornment), 2001 FCA 57

Date: 20010312

Docket: A-259-98

Citation: 2001 FCA 57

CORAM:        STRAYER, J.A.,

LINDEN, J.A.,

SEXTON, J.A.

BETWEEN:

                                  SHARON BOWCOTT, on behalf of the Band Council

                              of the TSAWWASSEN INDIAN BAND and the Members

                              of the TSAWWASSEN INDIAN BAND also known as the

                                                  TSAWWASSEN FIRST NATION

                                                                                                                                            Appellant

                                                                         - and -

                                              MINISTER OF ENVIRONMENT and

                                            VANCOUVER PORT CORPORATION

                                                                                                                                      Respondents

                                     REASONS FOR JUDGMENT OF THE COURT

                                  (Delivered orally from the Bench at Vancouver, B.C.

                                                        Tuesday, March 13, 2001)

LINDEN, J.A.

[1]                This is an appeal from a decision of the Trial Division dated March 19, 1998 in which an application for judicial review of a decision of the Minister of the Environment dated March 28, 1996 not to establish an environmental board of review with respect to certain ocean disposal permits and amendments thereto obtained under the Canadian Environmental Protection Act and the Ocean Dumping Control Act for dredging and disposal of materials in connection with the Deltaport Container Terminal. Earlier various permits were granted and reviews were done under EARPGO.

[2]                It was conceded by counsel for the appellant that, if there were no "project", as defined in section 5 of the CEAA in this case, then this appeal, which was argued with A-257-98, must fail because what is sought by it is an environmental assessment under section 5.

[3]                We have concluded in A-257-98 that the word "project", as defined by the CEAA, applies only to projects where legal construction has not yet begun. In this case, the disposal work in question was completed in November 1995. The request by the appellant for the establishment of a board of review was made on December 13, 1995, two months after notice of the amendment was advertised in the Canada Gazette on October 14, 1995 and one month after completion of the authorized ocean disposal work.

[4]                Consequently, the Minister has no duty to appoint a review panel or to conduct an assessment of a work which has been completed. As we have decided in A-257-98, the provisions of CEAA are only applicable to proposed projects, not completed ones.

[5]                This decision is without prejudice to the appellant seeking other redress for any alleged violation of the Band's rights.

[6]                The appeal will be dismissed with one set of costs to the VPC in this case and in A-257-98 .

(Sgd.)"A.M. Linden"

Judge