Pembina Institute for Appropriate Development v. Canada (Attorney General)

Pembina Institute for Appropriate Development v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2008-03-05
Neutral citation
2008 FC 302
File numbers
T-535-07
Notes
Digest
Decision Content
Date: 20080305
Docket: T-535-07
Citation: 2008 FC 302
Ottawa, Ontario, March 5, 2008
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
PEMBINA INSTITUTE FOR APPROPRIATE DEVELOPMENT,
PRAIRIE ACID RAIN COALITION,
SIERRA CLUB OF CANADA, and
TOXICS WATCH SOCIETY OF ALBERTA
Applicants
and
ATTORNEY GENERAL OF CANADA,
MINISTER OF FISHERIES AND OCEANS,
MINISTER OF ENVIRONMENT, and
IMPERIAL OIL RESOURCES VENTURES LIMITED
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review brought by the applicants pursuant to ss. 18 and 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended, respecting a report dated February 27, 2007 by the Joint Review Panel Established by the Alberta Energy and Utilities Board and the Government of Canada (the “Panel”) concerning an environmental impact assessment of the Kearl Oil Sands Project (the “Kearl Project” or the “Project”), wherein the Panel recommended to the responsible federal authority, the Department of Fisheries and Oceans (“DFO”), that the Project receive authorization.
[2] The applicants, various non-profit organizations concerned about the environmental effects of the Kearl Project, submit that the environmental assessment conducted by the Panel did not comply with the mandatory steps in the Canadian Environmental Assessment Act, S.C. 1992, c.37 (“CEAA”) and in the Panel’s Terms of Reference.
BACKGROUND
[3] Imperial Oil wishes to construct and operate the Kearl Project, an oil sands mine, in northern Alberta. This project includes the design, construction, operation and reclamation of four open pit truck and shovel mines and three trains of ore preparation and bitumen extraction facilities, as well as tailings management facilities and other supporting infrastructure. It will be capable of producing over 48,000 cubic metres of bitumen per day at full production in 2018, and will terminate mining operations in 2060.
[4] The Kearl Project will be located approximately 70 kilometres north of Fort McMurray. Further, it is situated in the upper Muskeg River Watershed, a tributary of the Athabasca River, which flows through Wood Buffalo National Park to the Mackenzie River drainage basin in the Northwest Territories.
[5] The Kearl Project requires an authorization from the federal Minister of Fisheries and Oceans under section 35(2) of the Fisheries Act, R.S.C., 1985, c. F-14. Before any federal approval can be given, an environmental assessment under the CEAA is required.
[6] Pursuant to the Canada-Alberta Agreement for Environmental Assessment Cooperation, the Canadian Environmental Assessment Agency notified Alberta that it wished to participate with Alberta in a cooperative environmental assessment of the Kearl Project. Federally, the Canadian Environmental Assessment Agency confirmed it would carry out the role of Federal Environmental Assessment coordinator, and DFO would be the responsible authority, with Environment Canada (EC), Health Canada (HC) and Natural Resources Canada (NRCan) providing DFO with specialist advice.
[7] Imperial Oil filed its Environmental Impact Assessment (EIA) relating to the Kearl Project in July 2005. Representatives of DFO, EC, HC and NRCan assessed the information provided by Imperial Oil as part of the joint environmental assessment with Alberta.
[8] On January 18, 2006, DFO recommended to the Minister of the Environment that the Kearl Project be referred to a review panel due to the potential for the proposed project to cause significant adverse environmental effects, including cumulative effects, over large areas and on a number of valued ecosystem components. Canada entered into an agreement with the government of Alberta to conduct a joint review panel. The Joint Panel would render a project approval decision on behalf of Alberta authorities and make an approval recommendation to the responsible federal authority.
[9] The Panel held 16 days of public hearings in November 2006. In addition to the EIA report filed by Imperial Oil, 20 parties filed submissions with the Panel, a number of which also gave oral evidence and were cross-examined at the hearing.
The Panel Report
[10] On February 27, 2007, the Panel issued its report, setting out its decision for the Alberta authorities and making recommendations to DFO regarding project authorization.
[11] The Panel reviewed the project as well as its purpose, need, project alternatives, and alternative means of implementation. The Panel reviewed the views of various stakeholder groups and summarized issues relating to social and economic effects, mine plan and resource conservation, tailings management, reclamation, air emissions, surface water, aquatic resources, Cumulative Environmental Management Association (CEMA) (a voluntary partnership of stakeholders charged with identifying environmental thresholds before irreversible damage occurs from oil sands development), traditional land use and traditional ecological knowledge, the need for follow-up, and human health.
[12] The Panel recommended that DFO approve the Project given its view that provided proposed mitigation measures and recommendations were implemented, the Project was not likely to cause significant adverse environmental effects.
LEGISLATIVE CONTEXT
[13] The law governing Environmental Impact Assessments is set out by the provisions of the CEAA as interpreted in the jurisprudence of the Federal Court, Federal Court of Appeal, and the Supreme Court of Canada.
[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).
[15] The purpose of environmental assessment was described by the Supreme Court of Canada in Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, [1992] S.C.J. No. 1 (QL), at para. 95. While the case involved assessment under the Environmental Assessment and Review Process Guidelines Order, S.O.R./84-467 (the “EARPGO”, predecessor to the current CEAA), I find the general principles espoused to be particularly instructive:
Environmental impact assessment is, in its simplest form, a planning tool that is now generally regarded as an integral component of sound decision-making. Its fundamental purpose is summarized by R. Cotton and D. P. Emond in "Environmental Impact Assessment", in J. Swaigen, ed., Environmental Rights in Canada (1981), 245, at p. 247:
The basic concepts behind environmental assessment are simply stated: (1) early identification and evaluation of all potential environmental consequences of a proposed undertaking; (2) decision making that both guarantees the adequacy of this process and reconciles, to the greatest extent possible, the proponent's development desires with environmental protection and preservation.
As a planning tool it has both an information-gathering and a decision-making component which provide the decision maker with an objective basis for granting or denying approval for a proposed development; see M. I. Jeffery, Environmental Approvals in Canada (1989), at p. 1.2, (SS) 1.4; D. P. Emond, Environmental Assessment Law in Canada (1978), at p. 5. In short, environmental impact assessment is simply descriptive of a process of decision-making. […]
The First Step: Environmental Assessment
[16] With respect to the first step, the CEAA contemplates three “levels” of assessment: screening (ss. 18-20), comprehensive study (ss. 21-24), and mediation and panel reviews (ss. 29-36).
[17] Mediation and panel reviews are the most stringent level of assessment and are to be carried out upon a referral to the Minister by the responsible authority after consideration of a screening report and any comments filed where: 1) the responsible authority is uncertain whether the project, taking into account the implementation of any mitigation measures that the responsible authority considers appropriate, is likely to cause significant adverse environmental effects; 2) the responsible authority is of the opinion that, taking into account the implementation of any mitigation measures that the responsible authority considers appropriate, the project is likely to cause significant adverse environmental effects; or 3) public concerns warrant a reference to this type of procedure (s. 20).
[18] Further, s. 25 of the CEAA indicates that the responsible authority may also refer the project to the Minister for a panel review at any time where it is of the opinion that the project, taking into account the implementation of any mitigation measures that the responsible authority considers appropriate, may cause significant adverse environmental effects, or where public concerns warrant a reference to this type of procedure.
[19] Pursuant to s. 40 of the CEAA, joint review panels involving federal and provincial authorities may be constituted by agreement or arrangement. This agreement or arrangement shall provide that the “environmental assessment of the project shall include a consideration of the factors required to be considered under subsections 16(1) and (2) and be conducted in accordance with any additional requirements and procedures set out in the agreement” (s. 41). Further, s. 41(c) indicates that “the Minister shall fix or approve the terms of reference for the panel.” The “terms of reference” shall determine the scope of certain factors to be taken into consideration by a review panel in its assessment (s. 16(3)(b)). These terms of reference may significantly increase the obligations incumbent upon the Panel (see Alberta Wilderness Assn. v. Cardinal River Coals (T.D.) [1999] 3 F.C. 425, [1999] F.C.J. No. 441 (QL)).
[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)).
[21] Within the ambit of these general duties, a review panel shall include a consideration of the various specific factors enumerated in ss. 16(1) and (2). These factors include the environmental effects of a project including effects of accidents and malfunctions, cumulative environmental effects, the significance of environmental and cumulative effects, public comments, technically and economically feasible mitigation measures, and any other matter relevant to a review panel assessment that the Minister, after consulting with the responsible authority, may require to be considered (s. 16(1)). Furthermore, the purpose of the project, alternative means of carrying it out, the need for and requirement of any follow-up programs, and the capacity of renewable resources that are likely to be significantly affected by the project to meet the needs of the present and those of the future are also to be considered (s. 16(2)).
[22] With respect to assessing the significance of environmental effects, the jurisprudence reveals that this assessment is not a wholly objective exercise but rather contains “a large measure of opinion and judgement.” The Federal Court of Appeal has asserted that “[r]easonable people can and do disagree about the adequacy and completeness of evidence which forecasts future results and about the significance of such results […]” (Alberta Wilderness Assn. v. Express Pipelines Ltd., [1996] F.C.J. No. 1016 (QL), at para. 10).
[23] The adequacy and completeness of the evidence must be evaluated in light of the preliminary nature of a review panel’s assessment. In Express Pipelines, supra, at para. 14, Hugessen J.A. discussed the predictive and preliminary nature of the panel’s role:
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. Indeed, given the nature of the task we suspect that finality and certainty in environmental assessment can never be achieved.
This view was echoed in Inverhuron & District Ratepayers’ Association v. Canada (Minister of the Environment), 2001 FCA 203, [2001] F.C.J. No. 1008 (QL), at para. 55, by Sexton J.A. Therefore, given the predictive function of an environmental assessment and the existence of follow-up mechanisms envisioned by the CEAA, the Panel’s assessment of significance does not extend to the elimination of uncertainty surrounding project effects.
[24] Similarly, it is evident that the assessment of environmental effects, including mitigation measures, is not to be conceptualized as a single, discrete event. Instructively, in Union of Nova Scotia Indians v. Canada (Attorney General), [1997] 1 F.C. 325, [1996] F.C.J. No. 1373 (QL), Mackay J. indicated, at para. 32 that he was not persuaded that the CEAA requires that all the details of mitigating measures be resolved before the acceptance of a screening report. He further asserted that the nature of the process of assessment was “ongoing and dynamic” with continuing dialogue between the proponent, the responsible authorities and interested community groups.
[25] Moreover, jurisprudence relating to the EARPGO is also instructive as to the content of the legal duty to consider mitigation measures. In Tetzlaff v. Canada (Minister of the Environment (F.C.A.), [1991] 1 F.C. 641, at p. 657, Iacobucci C.J.A. described the assessment of mitigation measures in s. 12(c) of the EARPGO in the following terms: “If the initial assessment procedure reveals that the potentially adverse environmental effects that may be caused by the proposal “are insignificant or mitigable with known technologies” the proposal […] may proceed or proceed with mitigation, as the case may be.” In the case of Canadian Wildlife Federation Inc. v. Canada (Minister of the Environment) (1990), 31 F.T.R. 1, at p. 12, the decision which was upheld by the Court in Tetzlaff, Muldoon J. analysed s. 12(c) of the EARPGO and asserted that “since the Minister did not identify any known technologies but only vague hopes for future technology, it is not possible to consider that the recited adverse water quality effects are mitigable”. Thus, in the context of a panel assessment, the possibilities of future research and development do not constitute mitigation measures.
[26] I note also that s. 16(1)(d) of the CEAA (the equivalent of s. 12(c) of the EARPGO), the provision mandating consideration of mitigation measures, adds the proviso that mitigation measures must be technically and economically feasible as opposed to solely technically feasible (“known technologies” in the wording of the EARPGO). This second condition, in effect, imposes an additional requirement for measures to be classified as mitigating under the CEAA: under the current Act mitigation measures must also be economically feasible in order to qualify as such.
The Second Step: Decision and Follow-up
[27] Once the panel report is completed, the federal authority responsible for the decision must take the report into consideration, and shall take a course of action that is in conformity with the approval of the Governor in Council (s. 37(1.1)). 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, either where the project is not likely to cause significant adverse environmental effects, or where it is likely to cause significant adverse environmental effects that can be justified in the circumstances (s. 37(1)).
[28] Where a federal authority decides to authorize a project following a panel review, it is mandated to design a follow-up program for the project and ensure its implementation (s. 38(2)). The results of the follow-up program may be used to implement adaptive management measures or to improve the quality of future environmental assessments (s. 38(5)).
Guiding Tenets
[29] The powers associated with the administration of the CEAA are to be exercised “in a manner that protects the environment and human health and applies the precautionary principle” (s. 4(2)).
[30] In recent amendments to the CEAA, acting in a manner consistent with the precautionary principle was specifically introduced in s. 4 as a duty bearing upon “the Government of Canada, the Minister, the Agency and all bodies subject to the provisions of this Act, including federal authorities and responsible authorities” in the administration of the CEAA.
[31] In the case of 114957 Canada Lteé (Spraytech, Société d’arrosage) v. Hudson (Town), [2001] 2 S.C.R. 241, [2001] S.C.J. No. 42 (QL), at para. 31, the Supreme Court of Canada cited the definition of the precautionary principle from the Bergen Ministerial Declaration on Sustainable Development (1990):
In order to achieve sustainable development, policies must be based on the precautionary principle. Environmental measures must anticipate, prevent and attack the causes of environmental degradation. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
[32] An approach that has developed in conjunction with the precautionary principle is that of “adaptive management”. In Canadian Parks and Wilderness Society v. Canada (Minister of Canadian Heritage), 2003 FCA 197, [2003] F.C.J. No. 703, at para. 24, Evans J.A. stated that “[t]he concept of “adaptive management” responds to the difficulty, or impossibility, of predicting all the environmental consequences of a project on the basis of existing knowledge” and indicated that adaptive management counters the potentially paralyzing effects of the precautionary principle. Thus, in my opinion, adaptive management permits projects with uncertain, yet potentially adverse environmental impacts to proceed based on flexible management strategies capable of adjusting to new information regarding adverse environmental impacts where sufficient information regarding those impacts and potential mitigation measures already exists.
[33] Accordingly, the scope of the duties incumbent upon a panel must be viewed through the prism of these guiding tenets: the precautionary principle and adaptive management. As an early planning tool, environmental assessment is tasked with the management of future risk, thus a review panel has a duty to gather the information required to fulfill this charge.
[34] In sum, the CEAA represents a sophisticated legislative system for addressing the uncertainty surrounding environmental effects. To this end, it mandates early assessment of adverse environmental consequences as well as mitigation measures, coupled with the flexibility of follow-up processes capable of adapting to new information and changed circumstances. The dynamic and fluid nature of the process means that perfect certainty regarding environmental effects is not required.
ISSUES
[35] This application involves the determination of whether the Panel committed reviewable errors by failing to consider the factors enumerated in ss. 16(1) and 16(2) of the CEAA, more particularly by relying on mitigation measures that were not technically and economically feasible and by failing to comply with the requirement to provide a rationale for its recommendations pursuant to s. 34(c)(i) of the CEAA.
[36] The applicants focus on these reviewable errors in relation to the following three issues:
A) Cumulative Effects Management Association (CEMA), Watershed Management and Landscape Reclamation;
B) Endangered Species; and
C) Greenhouse Gas Emissions
STANDARD OF REVIEW
[37] All parties agree that to the extent that the issues posed involve the interpretation of the CEAA, as questions of law, they are reviewable on a standard of correctness (Friends of West Country Assn. v. Canada (Minister of Fisheries and Oceans), [2000] F.C. 263, [1999] F.C.J. No. 1515 (QL), at para. 10; Bow Valley Naturalists Society v. Canada (Minister of Canadian Heritage), [2001] 2 F.C. 461, [2001] F.C.J. No. 18 (QL), at para. 55). However, issues relating to weighing the significance of the evidence and conclusions drawn from that evidence including the significance of an environmental effect are reviewed on the standard of reasonableness simpliciter (Bow Valley, supra, at para. 55; Inverhuron, supra, at paras. 39-40).
[38] The crux of the standard of review determination in the present case involves the characterization of the alleged errors. According to the applicants, the Panel report contains numerous legal errors relating to the interpretation of the CEAA that are reviewable on the standard of correctness. However, the respondents indicate that these alleged errors are in fact errors relating to the conclusions drawn from the evidence before the Panel and therefore are reviewable on the standard of reasonableness.
[39] As noted by Campbell J. in Cardinal River Coals Ltd., supra, at para. 24, “it is important to appropriately characterize a perceived failure to comply [with the requirements of the CEAA] as a question of law or merely an attack on the “quality” of the evidence and, therefore the “correctness” of the conclusions drawn on that evidence” (see also Express Pipelines Ltd., supra, at para. 10).
[40] With respect to the arguments relating to the Panel’s reliance on mitigation measures that were not technically and economically feasible, there is no indication in the Report that the Panel misunderstood the legal interpretation of technically and economically feasible mitigation measures. In essence, what the applicants are challenging is the underlying completeness or quality of the evidence which in their view was not sufficient to allow the Panel to conclude as it did given the uncertainties that still remained regarding the Project. Thus, this question is reviewable on the standard of reasonableness simpliciter.
[41] With respect to the question of providing a “rationale” for the conclusions and recommendations of the Panel, this question relates to the interpretation of the requirements of s. 34(c)(i) of CEAA. The applicants do not attack the rationale provided but rather question whether any rationale at all was put forth by the Panel. Whether or not the Panel has provided a rationale for its conclusions and recommendations is question of law, reviewable on a standard of correctness.
ANALYSIS
A) CEMA, Watershed Management and Landscape Reclamation
i. CEMA
[42] The applicants submit that while the Panel recognized that CEMA was vital in addressing the cumulative impacts of oil sands development and had the responsibility to address most of the critical cumulative effects challenges in the Athabasca oil sands region, it also expressed deep concern at the inability of CEMA “to establish and maintain priority for critical items such as the Water Management Framework for the Athabasca River, the Muskeg River Watershed Integrated Management Plan, and the Regional Terrestrial and Wildlife Management Framework” and cited specific examples of CEMA failing to meet timelines and complete its work.
[43] The respondent, Imperial Oil, argues that the applicants’ assertion is based on a narrow reading of the Report restricted to that portion dealing solely with integrated watershed planning which is only one of the many issues addressed by the Panel. I agree.
[44] The Panel’s discussion of CEMA was tied closely to regional watershed management planning. As a regional association comprised of industry and government representatives as well as community and civil society stakeholders, CEMA is expected to address the objectives of watershed management planning. Given this important role in regional effects management, it was therefore appropriate for the Panel to raise concerns regarding CEMA’s functioning. Based on the Report, I could not conclude that the Panel considered CEMA as a mitigation measure, but rather as the proper vehicle for the development of environmental management frameworks.
[45] While the Panel discussed CEMA extensively and highlighted the numerous problems associated with its functioning, it also made detailed recommendations regarding its operation in order to ensure that CEMA would function properly in years to come, and to provide the ultimate decision-maker with a concrete evaluation of this key stakeholder association. I note also the Panel’s comments with respect to regulatory backstopping by Alberta Environment (“AENV”) in the event that CEMA is unable to meet its timelines for management frameworks. I find this to be consistent with the precautionary principle in that if CEMA is unable to complete a management plan by March 2008, the regulator should be engaged to prevent potentially adverse environmental consequences.
ii. Watershed Management
[46] With respect to Watershed Management, I am satisfied that the Panel took into consideration mitigation measures that were both technically and economically feasible. A fair reading of the Report shows that the Panel addressed the issue of surface water extensively. In fact, the Panel considered the issue under three distinct subheadings: in-stream flow needs, integrated watershed planning, and water quality, and additionally under fish and fish habitat.
[47] Contrary to the applicants’ assertion that there was no evidence or the scantest evidence upon which to evaluate the existence, nature and effectiveness of the mitigation measures, the Panel’s recommendations on the issue of water quality refer to mitigation measures contained in Imperial Oil’s EIA as well as the Environmental Protection and Enhancement Act, R.S.A. 2000, c. E-12 (the “EPEA”) approval conditions. The Panel concludes:
[…] the Joint Panel believes that by implementing a comprehensive monitoring plan, the suggested EPEA approval conditions, the Joint Panel’s recommendation, and the mitigations identified by Imperial Oil in its EIA, the KOS [Kearl Oil Sands] Project is unlikely to result in significant adverse environmental effects on water quality. [Emphasis added] (p. 83 of the Report)
Further, as pertains to aquatic resources, the Panel concluded:
[…] The Joint Panel concludes that with the implementation of Imperial Oil’s mitigation measures, the completion of an NNLP [No Net Loss Plan] satisfactory to DFO, and the Joint Panel’s recommendations, the KOS Project is unlikely to result in significant adverse environmental effects on aquatic resources. [Emphasis added] (p. 86 of the Report)
[48] Specifically, the mitigation measures identified by Imperial Oil in its EIA for managing groundwater include the following:
(a) Recycling of process-affected waters and runoff within the Kearl Project footprint in a closed-circuit system during operations;
(b) Directing Muskeg drainage and overburden waters to polishing ponds equipped with oil separation capability, if required;
(c) Diverting natural headwater flow around construction and mining areas and discharging it into receiving streams without contact with oil sands or process-affected waters;
(d) Using a perimeter ditch and pumping system to capture seepage and runoff from the external tailings area and pumping back into the process during operations;
(e) Using a drainage system to capture and direct seepage and runoff from the external tailings area to wetlands and terminal lakes with sufficient residence time after reclaiming the external tailings area;
(f) Using wetlands and pit lakes during and after closure to provide biological remediation and settling of particulate materials in reclamation waters prior to discharge;
(g) Designing pit lakes with sufficient residence time to enhance settling and biological remediation of reclamation waters;
(h) Using reclamation waters that collect in the pit as process water until the start of the closure management system;
(i) Placing of tailings only in the central pit lake which has a large volume and long residence time;
(j) Maintaining naturally occurring, low permeability material between Kearl Lake and its surrounding mine pits to minimize seepage into the lake.
· EIA, Volume 6, at p. 5-38 and 5-39 [Imperial’s Record, Vol 2, Tab 4(b) at pp. 312 and 313]
[49] Further, with respect to aquatic resources, Imperial Oil identified mitigation measures in its EIA which included the following:
a) Compensation habitat will be provided by the development of new habitat area in accordance with requirements and guidance through the appropriate regulators, such as DFO;
b) Potential changes in flow sections of the Muskeg River downstream of the Project development area will be minimized during the operational phases of the Project by flow augmentation;
c) Permanent diversion channels and drainage systems will be designed to facilitate development of sustainable aquatic ecosystems in order to mitigate losses of natural water courses habitats;
d) Drainage patterns in Wapasu Creek will be designed to mitigate flows that could change channel regime or increase downstream sedimentation or total suspended solids; and
e) The Kearl Project will include a system of environmental management protocols and construction practices designed to minimize possible effects to the aquatic environment.
· EIA, Volume 6, at p. 6-36 to 6-38 [Imperial’s Record, Vol. 2, Tab 4(c) at pp. 314 to 316]
[50] Thus, contrary to the applicants’ submissions, I am satisfied that there was evidence upon which the Panel could reasonably assess technically and economically feasible measures that would mitigate any significant adverse environmental effects arising from the Project on the Muskeg watershed and fish and fish habitat.
[51] When pressed at the hearing to provide specific cases of mitigation measures considered by the Panel that were not technically and economically feasible, the applicants pointed to the consolidated tailings technology and end pit lakes as two such examples.
[52] First, with respect to consolidated tailings, the applicants contend that the Panel found this measure to be technically viable but not economically feasible; nevertheless, it proceeded to rely on this technology in its assessment, in contravention of the CEAA.
[53] However, as explained by Imperial Oil’s counsel, Mr. Ignasiak, and as indicated by a fair reading of the hearing transcript, it is clear that the Panel was concerned not by the tailings technology, but by one of the enhancements, a tailings thickener, proposed by Imperial Oil in order to improve on the existing technology that is used at other facilities. It is this tailings thickener, not the underlying consolidated tailings technology that has not been commercially demonstrated. The Panel then concluded that by implementing the tailings technology, of which a thickener was but a proposed enhancement, significant adverse environmental effects were unlikely to occur.
[54] Thus, I disagree with the applicants that the Panel was relying on a technology that was yet to be developed. As the respondent, Imperial Oil, aptly pointed out, if the applicants’ arguments are to be accepted, it would mean that under the CEAA process, proponents must provide the Panel with only those technologies that have been used in the past. In my view this would stifle innovation in the field, which could potentially result in future benefits to the environment.
[55] Second, with respect to end pit lakes, the applicants submit that by recommending further testing of modelling predictions, the Panel erred in determining that this mitigation measure was technically and economically feasible. I cannot accept this argument. In my view, the Panel took a precautionary approach by demanding that an operator validate modelling predictions by testing end pit lake technology.
[56] Indeed, this approach is broadly consistent with the principles of adaptive management. As Evans J.A asserted in Canadian Parks and Wilderness Society, supra, at para. 24, “[t]he concept of "adaptive management" responds to the difficulty, or impossibility, of predicting all the environmental consequences of a project on the basis of existing knowledge.” The same holds true for the assessment of mitigation measures. While there does exist some uncertainty with respect to end pit lake technology, the existing level of uncertainty is not such that it should paralyze the entire project.
[57] Thus, based on the information that was before it, including the modelling predictions, the Panel accepted the measure as technically and economically feasible. The fact that uncertainty remained regarding end pit lakes in the oil sands region is understandable given that they will only become operational upon mine site closures. Thus, the Panel recommended the validation of modelling results, including a physical test case and continued research, well in advance of the slated closure date in 60 years.
[58] In my opinion, the Panel is permitted and indeed mandated to make these kinds of recommendations regarding the proposed Project, which should include recommendations for continued study of potential impacts on valued environmental components and the development of further mitigation strategies. This is consistent with the ongoing and dynamic nature of environmental assessment referred to above and ensures that new information is obtained which facilitates the adaptation of project implementation as required.
iii. Reclamation
[59] The applicants further submit that the mitigation of certain aspects of oil sands mining, e.g., reclamation of peatlands, is not even known in general terms. Follow-up programs are not intended to replace mitigation measures under the CEAA or to be treated as vehicles for designing future mitigation measures. The applicants find support in the case of Union of Nova Scotia Indians, supra. In that particular case, mitigation measures were generally known, but the details of the specific measures had yet to be determined. For the applicants, relying on adaptive management to address uncertainty and future risk requires at least some general understanding initially of the mitigation system in play.
[60] The respondents submit that the dynamic nature of follow-up measures and adaptive management will resolve initial uncertainties. Further, sufficient information was available to the Panel which enabled it to reasonably conclude as it did. I agree. The recommendations are not necessarily flawed because the evidence was insufficient to eliminate all uncertainty. The Panel had before it information indicating that while the reclamation of peat-accumulating wetlands remained uncertain, there is considerable experience with respect to wetland and marsh reconstruction and that Imperial Oil’s closure plan called for the reconstruction of approximately 900 hectares of marsh. This type of replacement is consistent with s. 2(1) of the CEAA which defines mitigation as including “restitution for any damage to the environment caused by such effects through replacement, restoration, compensation or any other means”.
[61] Again, I note that the Federal Court of Appeal explained in Express Pipelines Ltd., supra, that as the nature of the Panel’s task is predictive, finality and certainty in environmental assessment can never be achieved. Hugessen J. stated at para. 10:
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.
And further at para. 14, he states:
Finally, we were asked to find that 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. 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. Indeed, given the nature of the task we suspect that finality and certainty in environmental assessment can never be achieved.
It would be impossible for a review panel to conduct the environmental assessment early in the planning stages of a project if the Panel was required to eliminate all uncertainty and precluded from commenting on follow-up activities.
[62] Thus, while uncertainties with respect to reclamation of peat-accumulating wetlands remained, they could be addressed through adaptive management given the existence of generally known replacement measures contained in Imperial Oil’s mine closure plan. Indeed, it is worth noting that the Panel cited with approval the reclamation milestones from Imperial Oil’s Project Application in its Report.
B) Endangered Species
[63] The applicants argue that the Panel failed to consider the significance of adverse environmental effects on endangered species, particularly the Yellow Rail (listed in the Species at Risk Act, S.C. 2002, c.29 (“SARA”)), failed to provide the responsible authority with the requisite information in this regard, failed to consider mitigation measures that were technically and economically feasible, and failed to provide a rationale for its conclusion.
[64] The applicants reference the Federal Government’s written submission to the Kearl Panel wherein it indicated that:
There are 1093 [hectares] of graminoid fen within the Kearl Project area that could provide suitable habitat for Yellow Rails. It is not known how large or widely distributed the local population is, and therefore it is difficult to draw conclusions on potential impacts to the species, or to make recommendations for mitigation actions.
Based on the information before it, the Panel recommended that Alberta conduct a regional review of cumulative impacts on