Pembina Institute for Appropriate Development v. Canada (Minister of Fisheries and Oceans)

Pembina Institute for Appropriate Development v. Canada (Minister of Fisheries and Oceans)
Court (s) Database
Federal Court Decisions
Date
2005-08-17
Neutral citation
2005 FC 1123
File numbers
T-1488-04
Notes
Digest
Decision Content
Date: 20050817
Docket: T-1488-04
Citation: 2005 FC 1123
Ottawa, Ontario, this 17th day of August, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
PEMBINA INSTITUTE FOR APPROPRIATE DEVELOPMENT,
CANADIAN NATURE FEDERATION, SIERRA CLUB OF CANADA,
ALBERTA WILDERNESS ASSOCIATION, and
JASPER ENVIRONMENTAL ASSOCIATION
Applicants
- and -
MINISTER OF FISHERIES AND OCEANS and
CARDINAL RIVER COALS LTD.
Respondents
Docket: T-1946-04
AND BETWEEN:
PEMBINA INSTITUTE FOR APPROPRIATE DEVELOPMENT,
NATURE CANADA (formerly CANADIAN NATURE FEDERATION),
SIERRA CLUB OF CANADA, ALBERTA WILDERNESS ASSOCIATION, and
JASPER ENVIRONMENTAL ASSOCIATION
Applicants
- and -
MINISTER OF FISHERIES AND OCEANS and
CARDINAL RIVER COALS LTD.
Respondents
REASONS FOR ORDER
SNIDER J.
[1] These two applications for judicial review, which have been consolidated, concern the environmental assessment and regulatory approval of the Cheviot coal mine project located in Western Alberta. The Applicants, various environmental organizations, challenge the legality of an authorization issued by the Department of Fisheries and Oceans ("DFO") pursuant to the Fisheries Act, R.S.C. 1985, c. F-14 (the "Fisheries Act") which permits the Respondent, Cardinal River Coals ("CRC"), to begin construction of the coal mine. The Applicants also challenge the decision of DFO not to conduct an environmental assessment under the Canadian Environmental Assessment Act, S.C. 1992, C-37 ("CEAA" or the "Act") of changes to the project.
[2] Specifically, the Applicants seek:
(a) an order to quash the authorization, dated September 13, 2004 and issued by DFO pursuant to subsection 35(2) of the Fisheries Act (the "Mine Pit Authorization");
(b) an order of mandamus to require the preparation of an environmental assessment of
the project changes, including a haulroad now proposed by CRC in association with
its revised project; and
(c) a declaration that the issuance of the Mine Pit Authorization was contrary to
subsection 35(1) of the Migratory Birds Regulations, C.R.C., c.1035 (the "Migratory
Bird Regulations").
BACKGROUND
[3] In 1996, CRC submitted a project application to the Alberta Energy and Utilities Board, the Alberta Department of Environment and DFO in which it proposed to develop a coal mine (the Cheviot project) located near the town of Hinton, Alberta. In particular, the project application called for:
(i) the development, operation and reclamation of an open-pit coal mine,
(ii) the construction, operation and decommissioning of a processing plant,
(iii) the construction of a shop and office complex,
(iv) the restoration of a rail line,
(v) the upgrading of an existing access road, and
(vi) the installation of a new transmission line and substation to supply electrical power to the Cheviot mine.
[4] The project, as put forward by CRC at that time, required three authorizations under subsection 35(2) of the Fisheries Act for "harmful alteration, disruption or destruction of fish habitat." The authorizations were required for works and undertakings relating to the construction of the processing plant and office complex (the "Industrial Complex"), the rail line, access road and transmission line (the "Access Corridor") and the mine pit.
[5] Pursuant to paragraph 5(1)(d) of CEAA, the authorizations could not be issued until an environmental assessment of the project had been completed. DFO, as the responsible authority under the CEAA, initiated an assessment of the project. Before its completion, DFO recommended to the Minister of Environment that a joint panel be established to conduct the environmental assessment. Accordingly, in late 1996, the Minister of Environment and the Alberta Energy and Utilities Board established a joint federal-provincial review panel (the "Joint Review Panel") to conduct the environmental assessment.
[6] In June 1997, the Joint Review Panel issued a report recommending that the Cheviot project receive regulatory approval from the Government of Canada subject to certain mitigation measures. DFO (with the approval of the Governor in Council) issued a response to the report in which it concurred with the panel's recommendation that the Cheviot project receive regulatory approval. This response is commonly referred to as the "federal response". The response also confirmed that mitigation measures would need to be implemented to reduce the adverse environmental effects of the project. Of significance to the applications before me are two aspects of the response:
_ The federal government committed to partnering with provincial authorities to develop a mitigation plan in relation to grizzly bears and to participating in two provincial decision-making committees.
_ Any conditions that Environment Canada considered necessary to address the protection of migratory birds would be included in the relevant authorizations issued under the Fisheries Act.
[3] On August 17, 1998, DFO issued to CRC an authorization pursuant to subsection 35(2) of the Fisheries Act for activities relating to the Access Corridor. Likewise, on September 28, 1998, DFO issued an authorization for activities relating to the Industrial Complex. No authorization was issued, at that time, for activities related to the mine pit.
[4] Four of the present Applicants sought judicial review of the first Joint Review Panel Report and the Access Corridor authorization. In his decision in Alberta Wilderness Assn. v. Cardinal River Coals Ltd., [1999] 3 F.C. 425, Justice Campbell found that the Joint Review Panel had not conducted the environmental assessment in compliance with the CEAA and its terms of reference because it had failed to address the cumulative effects of the Cheviot project. As a result, he quashed the Access Corridor authorization and recommended that the Minister of Environment reconvene the Joint Review Panel.
[5] The Joint Review Panel was reconvened and issued a second Joint Review Panel Report in September 2000. It again recommended that the Cheviot project receive regulatory approval. In April 2001, DFO (with approval of the Governor in Council) issued another federal response accepting the recommendations of the joint panel. However, the federal response noted that the project had been postponed temporarily by CRC and that any authorizations issued should be valid only for a limited period of time. DFO did not issue further authorizations following the release of the response and the Industrial Complex authorization expired on October 10, 2002.
[6] In August 2002, CRC announced that it would proceed with the Cheviot project in a modified form and on a much reduced scale. While the mine pit would remain the same, the Access Corridor and Industrial Complex were eliminated. Coal was to be transported to an existing plant by a new haulroad. The revised project is compared to the original project in the following chart.
Aspect
Original Proposal
Revised Proposal
Coal Processing
At Cheviot minesite with new plant site
At Luscar minesite with existing plant site
Railroad
20 kilometers of new rail line built from Inland
Cement involving several river crossings which
were in creek structures. Furthermore there was associated disturbance of Harlequin Duck Habitat.
No new rail line built
Access Corridor
High speed public access road and
138 kV powerline
Coal haulroad and public access road with
69 kV powerline
Mining
Start with Cheviot Creek and then move to Harris
and Mcleod Developments
Same plan
Major Infrastructure
Large office/shop complex
Freshwater Dam
Tailings Dam
Small portable office
No Freshwater or Tailings Dams
Other
Two coal products required for market place
issues which required mining in 3 to 4 areas at
once and delayed progressive reclamation.
One coal product required due to the new
company ownership. Only need to mine in
1 to 2 areas at once and can mine in a more sequential fashion promoting progressive reclamation.
Water crossings
Culvert crossing in the Prospect and Mcleod Rivers
involving in-stream work and disturbance.
Open Span Structures not involving
disturbance of the existing creek beds.
[7] DFO was provided with a copy of the haulroad proposal and concluded that no Fisheries Act authorizations were required in connection with that project. On December 5, 2003, the haulroad was approved by the Province of Alberta, Alberta Environment pursuant to Division 2, of Part 2 of the Environmental Protection and Enhancement Act, R.S.A. 2000, c.E-12. Accordingly, CRC proceeded with the construction of the haulroad. It has been in operation since October 2004.
[8] In December 2003, CRC requested an authorization from DFO for activities relating to the construction of the mine pit. The subsection 35(2) Mine Pit Authorization, which is the subject of this judicial review, was issued on September 13, 2004, without further environmental assessment. It permits the installation of a water control structure at the junction of a creek so as to backflood the creek and form a sediment pond. It also provides for the diversion of two creeks around the open-pit mine.
ISSUES
[9] This application raises the following issues:
1. Was DFO under a duty to prepare an environmental assessment of the modifications made to the Cheviot project pursuant to subsection 15(3) of CEAA?
2. Did DFO err by concluding that the haulroad did not trigger an environmental assessment under section 5 of CEAA?
3. Did DFO err in issuing the Mine Pit Authorization without ensuring the implementation of mitigation measures identified in the federal responses, such that, as required by subsection 37(1.1) of CEAA, the authorization was not in conformity with the federal responses?
4. Did DFO act contrary to law in issuing an authorization that permits activities prohibited by the Migratory Birds Convention Act and the Migratory Birds Regulations?
[10] On April 20, 2005, CRC filed a notice of constitutional question in respect of section 6 of the Migratory Birds Act and subsection 35(1) of the Migratory Birds Regulations. This question need only be addressed if the Applicants are successful in their arguments under issue #4. The parties have agreed that submissions on this issue will be heard, if necessary, after any decision on the remaining issues in this case.
[11] The CEAA was subject to a number of amendments in 2003 (An Act to Amend the Canadian Environmental Assessment Act, S.C. 2003, c. 9). The parties agree that as a result of a transitional provision in the amending legislation (section 33), the amendments are not applicable to the issues raised in these applications. Accordingly, I will make reference to the pre-amended version of the Act.
STANDARD OF REVIEW
[12] The issues raised by the Applicants concern the interpretation of the CEAA as well as the exercise of discretion by the Minister of Fisheries and Oceans under the Act. This Court has held on a number of occasions that, in the context of the CEAA, questions relating to the interpretation of statutory provisions are subject to the standard of correctness, while questions relating to the exercise of discretion by a responsible authority pursuant to sections 15 and 16 are subject to the standard of reasonableness simpliciter. See, for example, Environmental Resource Centre v. Canada (Minister of Environment) (2001), 45 C.E.L.R. (N.S.) 114 (F.C.T.D.); West Vancouver (District) v. British Columbia (Ministry of Transportation) 2005 F.C. 593.
[13] I have no doubt that the question of statutory interpretation is subject to a correctness standard. However, I note the Respondents' submissions that DFO's determination made pursuant to paragraph 37(1.1)(c) of CEAA is subject to the highest standard of review - that of patent unreasonableness. While their arguments have substantial merit, I will accept, without final determination, that the standard for DFO's decision under subsection 37(1.1) is that of reasonableness simpliciter.
ANALYSIS
Issue No.1: Was the Minister under a duty to prepare an environmental assessment of the modifications made to the Cheviot project pursuant to subsection 15(3) of the CEAA?
(a) Scheme of CEAA
[14] Before addressing this issue, it is useful to summarize briefly the scheme of the CEAA. Paragraph 5(1)(d) of the Act requires an environmental assessment of a "project" before a responsible authority such as DFO grants regulatory approval for the project. A "project" is defined in paragraph 2(1)(a) as:
In relation to a physical work, any proposed construction, operation, modification, decommissioning, abandonment or other undertaking in relation to that physical work...
Réalisation -- y compris l'exploitation, la modification, la désaffectation ou la fermeture -- d'un ouvrage¼
[15] Subsection 15(1) deals with the scope of a project for purposes of its assessment. The scope of the project is determined by the responsible authority or, where a project is referred to a mediator or review panel, by the Minister of Environment.
[16] All projects that trigger the application of the Act are to receive an appropriate degree of environmental assessment, depending on the scale and complexity of the likely effects of the project. (See Bow Valley Naturalists Society v. Canada (Minister of Canadian Heritage), [2001] 2 F.C. 461 (F.C.A.), at para. 18). In this regard, there are three types of environmental assessments that can be undertaken: screening (section 18), comprehensive study (section 21) and panel review (section 25). A comprehensive study, as opposed to a screening, must be conducted if the project falls within a class listed in the Comprehensive Study List Regulations, SOR/94-638. An assessment may be completed by a review panel in the place of a comprehensive study or following the completion of a comprehensive study. Pursuant to section 25 of the Act, the responsible authority can request that the Minister of Environment refer the project to a panel review if the project may cause significant adverse environmental effects or if public concerns warrant a reference. Following the environmental assessment, the responsible authority makes a decision as to whether or not the authorization should be issued and the project allowed to proceed.
[17] In the case of a review panel, the CEAA prescribes an additional step. Subsection 37(1.1) requires that, upon receipt of the review panel's report, the responsible authority must, with the approval of the Governor in Council, issue a federal response to the report. The responsible authority must then take a course of action that is "in conformity" with the approval of the Governor in Council.
(b) Submissions of Applicants
[18] The Applicants submit that, when the provisions of the CEAA are read together, it is clear that DFO was under an obligation to prepare an environmental assessment of the haulroad modifications before it exercised its power to issue the Fisheries Act authorization. Their starting point is subsection 15(3) of CEAA, which reads:
Where a project is in relation to a physical work, an environmental assessment shall be conducted in respect of every construction, operation, modification, decommissioning, abandonment or other undertaking in relation to that physical work that is proposed by the proponent . . .
Est effectuée, dans l'un ou l'autre des cas suivants, l'évaluation environnementale de toute opération -- construction, exploitation, modification, désaffectation, fermeture ou autre -- constituant un projet lié à un ouvrage:
a) l'opération est proposée par le promoteur; ¼.
[19] The Applicants' submission is that, on a plain language reading, subsection 15(3) requires, by using the mandatory imperative word "shall", that every environmental assessment under the CEAA include an assessment of modifications in relation to physical works that are proposed by the proponent. They contend that subsection 15(3) applies to all environmental assessments. In this case, their argument is that the Cheviot mine is the physical work and that the haulroad is a modification to that work. Accordingly, subsection 15(3) mandated DFO to prepare an environmental assessment of the road before it issued the Mine Pit Authorization.
[20] Accordingly, they assert, DFO should have carried out an assessment of the Cheviot project, as modified by CRC. To be helpful, the Applicants point out that section 24 of CEAA would provide an efficient means for updating the assessment. The relevant portions of section 24 read:
(1) Where a proponent proposes to carry out, in whole or in part, a project for which an environmental assessment was previously conducted and
...
(b) in the case of the project that is in relation to a physical work, the proponent proposes an undertaking in relation to that work different from that proposed when the assessment was conducted,
the responsible authority shall use that assessment and the report thereon to whatever extent is appropriate for the purposes of complying with section 18 (screening report) or 21 (comprehensive study).
¼
(2) Where a responsible authority uses an environmental assessment and the report thereon pursuant to subsection (1), the responsible authority shall ensure that any adjustments are made to the report that are necessary to take into account any significant changes in the environment and in the circumstances of the project and any significant new information relating to the environmental effects of the project.
(1) Si un promoteur se propose de mettre en oeuvre, en tout ou en partie, un projet ayant déjà fait l'objet d'une évaluation environnementale, l'autorité responsable doit utiliser l'évaluation et le rapport correspondant dans la mesure appropriée pour l'application des articles 18 ou 21 dans chacun des cas suivants :
...
b) le projet est lié à un ouvrage à l'égard duquel le promoteur propose une réalisation différente de celle qui était proposée au moment de l'évaluation;
¼
(2) Dans les cas visés au paragraphe (1), l'autorité responsable veille à ce que soient apportées au rapport les adaptations nécessaires à la prise en compte des changements importants de circonstances survenus depuis l'évaluation et de tous renseignements importants relatifs aux effets environnementaux du projet.
[21] As stated by the Applicants in their oral submissions:
So, at the end of the day, it's our submission that a plain language reading of CEAA would have led to the following outcome: Upon receipt of the haulroad application, [DFO] would have said, Hmm, this is a modification to the project; we have an extant, still-to-be-exercised regulatory power in relation to this project. 15(3) requires us to look at this modification and assess it. Section 24 permits us - or prescribes that we shall make any significant changes in the environment and the circumstances of the project. We will do all these things, paying particular attention to the road's impacts on matters within federal jurisdiction and concern.
[22] As confirmed in oral submissions, all of these arguments start with the premise that the haulroad is a "modification" to the Cheviot mine project within the meaning of the definition of "project" and subsection 15(3).
(c) Applicability of subsection 15(3)
[23] Section 15 of CEAA, in general, concerns the scope of the project for purposes of an environmental assessment. Scoping decisions of responsible authorities have been the subject of other judicial review applications (see, for example, Citizens' Mining Council of Newfoundland and Labrador Inc. v. Canada (Minister of the Environment), [1999] F.C.J. No. 273 (F.C.T.D.); Friends of the West Country Assn. v. Canada (Minister of Fisheries and Oceans), [1998] 4 F.C. 340 (T.D.), aff'd (1999), 248 N.R. 25 (F.C.A.), application for leave to appeal to S.C.C. refused [1999] S.C.C.A. No. 585 (referred to as "Sunpine")).
[24] In this case, the scope of the project was defined in the Joint Review Panel Reports as follows:
The Cheviot Coal Project is a proposal by CRC for the construction, operation, and decommissioning of a coal processing plant; for the development, operation, and reclamation of an open-pit coal mine; for the restoration of the Mountain Park subdivision rail line; for the upgrading of the existing access road (Gravel Flats Road) into the Cheviot mine area; and for the installation of a new transmission line and substation to supply electrical power to the Cheviot mine.
[25] What is the purpose of subsection 15(3)? The Federal Court of Appeal in Sunpine considered this provision of the CEAA. Justice Rothstein, at paragraph 16, stated that "[s]ubsection 15(3) is subsidiary to subsection 15(1)". At paragraphs 19-20, he went on to consider the words "in relation to" in subsection 15(3) and concluded that "the words refer to construction, operation, modification, decommissioning, abandonment or other undertakings that pertain to the life cycle of the physical work itself or that are subsidiary or ancillary to the physical work that is the focus of the project as scoped" [emphasis added].
[26] Neither Sunpine nor any other jurisprudence considering this part of CEAA compels the responsible authority to, in effect, re-open a completed environmental assessment. In my view, subsection 15(3) only has meaning when read together with subsection 15(1) and does not impose a free-standing obligation on a responsible authority to conduct an environmental assessment outside the scope of the project as determined under subsection 15(1). The use of the mandatory "shall" must be read in association with the scoping decision in subsection 15(1). In this case, the haulroad was not included in the scope of the project. Thus, no obligation to assess the haulroad arises from subsection 15(3).
[27] What does the word "modification" mean in the context of either the definition of "project" or subsection 15(3) of the CEAA? The Applicants urge that I consider the haulroad to be a "modification" caught by subsection 15(3). I do not agree. In this context, a "modification" is one that can be identified at the time of the application. For example, the application itself may involve modifying a structure or project, such as a bridge or mine. In this sense, the Cheviot mine project was a modification of an existing mine site. A project proponent for a mine might recognize, at the time he applied for approval of his project, that, upon recovery of a certain percentage of minerals from the site, a new or modified method of recovery would be put in place. These modifications would be considered as part of the overall assessment of the project.
[28] Adoption of the meaning suggested by the Applicants leads to the result that any type of modification to the project design, no matter how small or insignificant would obligate the responsible authority to redo the assessment. This is not logical. Environmental assessments are to be carried out "as early as practicable in the planning stages of the project" (CEAA, section 11). In Tsawwassen Indian Band v. Canada (Minister of Finance), [1998] F.C.J. No. 370 (F.C.T.D.) at paragraph 61, Justice Richard (as he then was) noted that the provisions of the CEAA make it clear that the Act "is intended only to apply to proposed projects which are still in the planning stages on or after January 19, 1995, and for which irrevocable decisions have not been made." Since projects are submitted for environmental assessment at an early stage of their development, final determinations of and amendments to project design and construction will continue well beyond the assessment stage. Provided that the environmental assessment is still applicable to the project, there is no need for a new assessment. The modifications may, in fact, reduce the environmental impacts. That is the situation of the Cheviot mine. As can be seen from the comparative chart above, the current Cheviot Mine project is a much smaller project than that reviewed by the Joint Review Panels.
[29] A further problem with the Applicants' submission is that it ignores subsection 37(1.1). Once a Joint Review Panel delivers its report, this section operates to require the preparation, with the approval of the Governor in Council, of a federal response and to require the responsible authority to take a course of action in conformity with the federal response.
[30] The conclusion that subsection 15(3) does not operate to require a re-opening of the assessment does not mean that CRC may carry out any manner of amendments without oversight. In some cases, a modification may, on its own or cumulatively with other projects, trigger an assessment under CEAA. However, section 5 of CEAA would be the operative provision and not subsection 15(3). Further, if, at the stage of review set out in subsection 37(1.1), the responsible authority believes that the project now before the department with many more of the details known and disclosed is substantially different from (or not "in conformity" with) the federal response, the authority could simply refuse to issue the authorization.
(d) Application of section 24 of CEAA
[31] During cross-examination on her affidavit, Ms. Dorthy Majewski, an impact assessment biologist with DFO, identified section 24 as the provision of CEAA under which she was acting. In the Applicants' view, section 24 does not remove the fundamental duty imposed under the Act to prepare an assessment of modifications, rather it is concerned with how to accommodate pre-existing information into another environmental assessment. In particular, the Applicants submit that section 24 of the Act does not grant the responsible authority the discretion to refuse an assessment if it considers the modifications to the physical work to be insignificant.
[32] The Applicants are correct that section 24 of CEAA does not impose a duty to conduct a further assessment; it exists to avoid duplication and promote efficiency in environmental assessment.
[33] CRC submits that Ms. Majewski's reliance on section 24 was in error and that, in fact, the determination DFO was required to make was made pursuant to paragraph 37(1.1)(c) of CEAA. I agree; the provision in issue is not section 24. Rather, DFO's authority, given the existence of the Joint Review Panel Reports, is found in paragraph 37(1.1)(c).
[34] In my view, section 24 does not apply to the facts of this case. After the completion of a joint review panel report, the actions of the responsible authority are governed by subsection 37(1.1). First, with the approval of the Governor in Council, the responsible authority responds to the report; that is, the federal response is prepared and approved by the Governor in Council. The next step applicable in respect of this project is for the responsible authority to take a course of action that is in conformity with the federal response. The possible courses of action are set out in subsection 37(1). Reading the provisions of subsection 37(1) and paragraph 37(1.1)(c) in their context, in the case of the Cheviot project, the only applicable course of action would be to issue the authorization if (and only if) the project, as now presented is "in conformity with" the federal response.
[35] The error of Ms. Majewski in identifying the correct legislative provision is not, in this case, significant. While Ms. Majewski incorrectly identified the relevant section number, she also confirmed that her task was to ensure that the issuance of the Mine Pit Authorization was "in conformity" with the approval of the Governor in Council. As noted by the Supreme Court of Canada in British Columbia (Milk Board) v. Grisnich, [1995] 2 S.C.R. 895 at paragraph 20, "Courts are primarily concerned with whether a statutory power exists, not with whether the delegate knew how to locate it". Ms. Majewski, while misstating the statutory provision under which she was acting, understood the responsibilities of the responsible authority.
[36] In summary on this issue, I am satisfied that subsection 15(3) of CEAA does not apply to require a further assessment of the Cheviot mine project.
Issue #2: Did DFO err by concluding that the haulroad did not trigger an environmental assessment under section 5 of CEAA?
[37] When DFO first received information on the haulroad, the department reviewed the proposal to determine whether the application triggered an environmental assessment pursuant to section 5 of CEAA. Briefly, the question was whether the haulroad engaged a valid head of federal power (Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3 at paras. 86-87). By letter dated January 7, 2003, DFO advised Sierra Legal Defence Fund that:
On the basis of information provided to date with respect to the current Cheviot Mine haulroad project proposal, DFO staff have concluded that this project will not likely result in harmful alteration, disruption or destruction of fish habitat. Therefore, there is no need for DFO to issue any Fisheries Act authorizations and as such, DFO would not be exercising any power, duty or function referred to in section 5 of CEAA or under any other statute or regulation pertaining to the current Cheviot Mine haulroad.
[38] While the Applicants rely on the first issue as their principal argument, they also assert that DFO has a trigger in relation to the haulroad and that, as an alternative, an assessment of the haulroad itself was required. The trigger, in their view, is the placing of fill and materials into Cheviot Creek to create a causeway over which the road passes. This action requires, they submit, authorization for an undertaking affecting fish habitat pursuant to the Fisheries Act. There do not appear to be any other triggers upon which a CEAA assessment would be required.
[39] The Respondents submit that the causeway was applied for and authorized as part of the original Cheviot project. As such, it was assessed by the Joint Review Panel. I agree with the Respondents.
[40] In considering this issue, I begin with the view that, if the causeway was constructed solely to support the haulroad, the Applicants are correct that section 5 of CEAA would require an assessment of the haulroad proposal. However, the evidence demonstrates, in my view, that the causeway or dam was constructed to create the Cheviot Creek Pond. The creation of this pond was a component of the Cheviot Mine Pit and, thus, was assessed as part of the Joint Review Panel Reports. The Mine Pit Authorization permits the construction of the pond, including the causeway.
[41] Mr. Dane McCoy, an environmental specialist and project manager of the Cheviot Creek project, was an affiant for CRC. In his affidavit, he states that the construction and operation of the haulroad "does not in any way modify or alter the work and undertakings associated with the Cheviot Creek Pit." Mr. McCoy was cross-examined on the haulroad application. The Applicants refer to the following exchange as support for their view that the causeway is a CEAA trigger:
Q. In the haulroad application the crossing of Cheviot Creek was identified. In the pit development application it was refined and specifically proposed with specific engineering drawings, correct?
A. That's correct.
Q. And that crossing as identified in detail in the pit application became the subject of a Fisheries authorization we just looked at [the Mine Pit Authorization that is the subject of this judicial review]?
A. That's correct.
[42] In my view, this excerpt is not persuasive evidence that the causeway was built for the haulroad. The haulroad traverses Cheviot Creek by way of a causeway. However, a review of the entire exchange between counsel for the Applicants and Mr. McCoy as well as the re-examination of Mr. McCoy by CRC's counsel provides a more complete picture that demonstrates that the causeway creates the Cheviot Creek pond. The role of this pond was explained by Mr. McCoy as follows:
The [Cheviot Creek] pond . . . was required for the Cheviot creek pit development area to capture and contain and remove the suspended solvents from any of the surface runoff coming off the pit development area.
[43] In effect, it is not the crossing by the haulroad that is the subject of the Mine Pit Authorization. Rather, the causeway as a means of creating the Cheviot Creek pond is the subject of the Mine Pit Authorization and was assessed by the Joint Review Panels.
[44] The Applicants also refer to one sentence in a document entitled "Cheviot Creek Pit Water Management, January 2003", which was submitted by CRC as part of their filings with DFO. The sentence in question states that "the pond is created by the haulroad across the Cheviot valley with a 26 m wide road at the top". This sentence must, however, be placed into context. The sentence is part of a section entitled "Sediment Control Facilities". In this section, the authors describe the pond as one of several water management structures required as part of the Cheviot Creek pit development. Once again, I conclude that this evidence, when read as a whole, demonstrates that the primary purpose of the causeway is to create a pond as part of the Cheviot Mine pit.
[45] The necessity of settling ponds - such as the Cheviot Creek Pond - was discussed in the first Joint Panel Report. In particular, at page 44, the panel noted that:
A large surface mine in rugged terrain will create numerous sources of sediments. The Panel believes, however, the sediment control can be achieved through the use of diversions, sedimentation ponds and the careful addition of flocculants. [emphasis added]
[46] I am satisfied that the Cheviot Creek Pond is such a pond that was created by the construction of the causeway. As such, it was scoped into and reviewed as part of the Cheviot project. The fact that CRC places a haulroad on top of the causeway does not trigger another CEAA review.
[47] Accordingly, the haulroad does not trigger an environmental assessment under CEAA.
Issue No. 3: Did the Minister of Fisheries and Oceans err in issuing the Mine Pit Authorization without ensuring the implementation of mitigation measures identified in the federal responses?
(a) Section 37 of CEAA
[48] Once a joint panel report is considered and approved by the Governor in Council, section 37 becomes operative. The relevant portions of that provision are as follows:
(1)(a) where, taking into account the implementation of any mitigation measures that the responsible authority considers appropriate,
(i) the project is not likely to cause significant adverse environmental effects, or
(ii) the project is likely to cause significant adverse environmental effects that can be justified in the circumstances,
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; or
¼
(1.1)(c) the responsible authority shall take a course of action under subsection (1) that is in conformity with the approval of the Governor in Council referred to in paragraph (a).
(1)(a) si, compte tenu de l'application des mesures d'atténuation qu'elle estime indiquées, la réalisation du projet n'est pas susceptible d'entraîner des effets environnementaux négatifs importants ou est susceptible d'en entraîner qui sont justifiables dans les circonstances, exercer ses attributions afin de permettre la mise en oeuvre totale ou partielle du projet;
¼
(1.1) l'autorité responsable prend alors la décision visée au titre du paragraphe (1) conformément à l'agrément.
[49] Briefly, the CEAA requires that, in the course of exercising its regulatory powers under paragraph 5(1)(d), a responsible authority is to ensure the implementation of any mitigation measures it considers appropriate. Moreover, pursuant to subsection 37(1.1), the responsible authority must take a course of action that is "in conformity" with the federal response. The determination of whether the current Cheviot mine proposal, as now proposed, was "in conformity" with that which was approved by the Governor in Council, as reflected in the second federal response, is a discretionary decision.
[50] For purposes of these reasons, I have assumed that the standard of review applicable to DFO's decision as to whether a project is in conformity is one of reasonableness simpliciter.
[51] In this case, the responsible authority was DFO since it is this department that was responsible for the issuance of any Fisheries Act approvals. Ms. Majewski bore the overall responsibility for ensuring compliance with the CEAA and the Fisheries Act. She has been associated with the Cheviot mine project since 2001.
(b) DFO section 37 response
[52] As noted, Ms. Majewski, headed up DFO's obligations with respect to the Cheviot mine project. Part of DFO's task was to ensure the coordination of all federal authorities. In this case, the federal authorities are those government departments or agencies (as defined in subsection 2(1) of CEAA) with specialist or expert information or knowledge with respect to the Cheviot project. In contrast to DFO whose obligation is to issue the authorization under a particular legislative provision, the federal authorities do not have a direct regulatory approval role. In this case, DFO was mandated to determine whether to issue the Fisheries Act authorization. This was a decision for DFO to make, not Environment Canada or Parks Canada.
[53] From July 2002, when CRC notified DFO that it was proceeding with an amended Cheviot mine project, DFO staff, under Ms. Majewski's direction began review of the information and undertook discussions and communications with other federal authorities, including Parks Canada and Environment Canada. In December 2003, when CRC submitted its application for the mine pit development, she asked DFO staff to review the application and consider appropriate terms that any authorization would include to be in conformity with the federal responses to the Joint Review Panel recommendations in 1997 and 2000.
(c) Alleged errors
[54] The Applicants submit that DFO erred in two significant findings:
1. DFO did not condition its Mine Pit Authorization with "terms required by Environment Canada as necessary to protect migratory birds and their habitat", in particular, with respect to the Harlequin duck habitat. The first response provided that relevant authorizations issued under the Fisheries Act would contain such conditions.
2. DFO erred in issuing the Mine Pit Authorization because two provincial project management committees identified in the first response no longer existed. The federal government had committed to working with these committees for the purpose of developing and implementing mitigation measures with the respect to grizzly bears.
[55] I will consider each of these alleged fatal flaws.
(d) Harlequin Ducks
[56] The protection of Harlequin ducks and their habitat was addressed by the Joint Review Panel Reports and the federal responses. In the first Joint Review Panel Report, however, the panel concluded that it did not believe that the adverse environmental effects on Harlequin ducks would be significant and that the mitigation strategies committed to by CRC (and which were made a general condition in the Alberta approval of the mine construction and operation) were reasonable. The panel did not impose any specific conditions. In the first federal response, the government stated at page 9:
The Government of Canada agrees with the Panel that ongoing monitoring of Harlequin ducks is warranted and that further inventories of area streams are needed and will work with AEP [Alberta Environment Protection] to assist in monitoring other area streams. The Government of Canada (Environment Canada) is currently a member of the CRC McLeod River Harlequin Study Group wh