Council of the Innu of Ekuanitshit v. Canada (Attorney General)

Council of the Innu of Ekuanitshit v. Canada (Attorney General)
Court (s) Database
Federal Court of Appeal Decisions
Date
2014-08-22
Neutral citation
2014 FCA 189
File numbers
A-196-13
Decision Content
Date: 20140822
Docket: A-196-13
Citation: 2014 FCA 189
CORAM:
GAUTHIER J.A.
MAINVILLE J.A.
BOIVIN J.A.
BETWEEN:
COUNCIL OF THE INNU OF EKUANITSHIT
Appellant
and
THE ATTORNEY GENERAL OF CANADA, in his capacity of legal member of the Queen’s Privy Counsel for Canada
and
The Honourable Keith ASHFIELD, in his capacity of MINISTER OF FISHERIES AND OCEANS CANADA
and
The Honourable Denis LEBEL, in his capacity of MINISTER OF TRANSPORT CANADA
and
The Honourable Joe OLIVER, in his capacity of MINISTER OF NATURAL RESOURCES CANADA
and
NALCOR ENERGY
Respondents
Heard at Montréal, Quebec, on June 9, 2014.
Judgment delivered at Ottawa, Ontario, on August 22, 2014.
REASONS FOR JUDGMENT BY:
BOIVIN J.A.
CONCURRED IN BY:
GAUTHIER J.A.
MAINVILLE J.A.
Date: 20140822
Docket: A-196-13
Citation: 2014 FCA 189
CORAM:
GAUTHIER J.A.
MAINVILLE J.A.
BOIVIN J.A.
BETWEEN:
COUNCIL OF THE INNU OF EKUANITSHIT
Appellant
and
THE ATTORNEY GENERAL OF CANADA, in his capacity of legal member of the Queen’s Privy Counsel for Canada
and
The Honourable Keith ASHFIELD, in his capacity of MINISTER OF FISHERIES AND OCEANS CANADA
and
The Honourable Denis LEBEL, in his capacity of MINISTER OF TRANSPORT CANADA
and
The Honourable Joe OLIVER, in his capacity of MINISTER OF NATURAL RESOURCES CANADA
and
NALCOR ENERGY
Respondents
REASONS FOR JUDGMENT
I. Background. 4
A. The Project 4
B. The decision to subject the Project to a joint environmental assessment 4
C. The guidelines for the environmental impact assessment 6
II. The judge’s decision. 10
III. Issues. 11
IV. Analysis. 11
A. Did the judge err in finding that the decisions of the Governor in Council and the responsible authorities complied with the CEAA?. 11
(1) Standard of review.. 12
(2) Reasonableness of the decisions of the Governor in Council and responsible authorities 15
(3) Conclusion. 28
B. Did the judge err in finding that the Crown had not breached its duty to consult the Innu of Ekuanitshit on aspects of the Project likely to have a prejudicial effect on their Aboriginal rights and to seek accommodation measures?. 29
(1) Standard of review.. 29
(2) The Crown’s duty to consult 29
V. Conclusion. 45
BOIVIN J.A.
[1] This is an appeal from a decision of Justice Scott (the judge) of the Federal Court dated April 23, 2013. In his decision, the judge dismissed the application for judicial review of the Council of the Innu of Ekuanitshit (the appellant or Innu of Ekuanitshit) against an order of the Governor in Council adopted on March 12, 2012, and a decision made on March 15, 2012, by Fisheries and Oceans Canada, Transport Canada and Natural Resources Canada. The order and the decision authorize, following an environmental assessment process, a project for the construction of two hydroelectric plants on the Churchill River in Newfoundland and Labrador. In dismissing the application for judicial review, the judge also found that the federal government had met its constitutional duty to adequately consult the appellant before adopting the order, but that consultations should continue.
[2] In the order of March 12, 2012, the Governor in Council approved the federal government’s response to the Report of the Joint Review Panel, Lower Churchill Hydroelectric Generation Project, Nalcor Energy, Newfoundland and Labrador. In its response, the federal government essentially found that the energy, socioeconomic and environmental benefits of the hydroelectric plant project outweighed its adverse environmental effects. The Governor in Council also allowed, under subsection 37(1.1) of the Canadian Environmental Assessment Act, S.C. 1992, c. 37 (Repealed, 2012, c. 19, s. 66) (the CEAA ), Fisheries and Oceans Canada, Transport Canada and Natural Resources Canada (the responsible authorities) to follow up on the Report of the Joint Review Panel.
[3] In their decision of March 15, 2012, made in conformity with the approval of the Governor in Council and under subsection 37(1) of the CEAA, the responsible authorities followed up with the Report and decided that they would allow the implementation of the project if certain environmental mitigation measures were applied.
[4] The appellant essentially argued that the judge erred in law and fact in his interpretation of the CEAA and in his conclusion that the federal Crown had fulfilled its duty to consult.
[5] For the following reasons, the appeal should be dismissed.
I. Background A. The Project [6] The sequence of events that led to this dispute is as follows.
[7] On November 30, 2006, Newfoundland and Labrador Hydro, now Nalcor Energy (Nalcor), submitted a registration and description document for the “Lower Churchill Hydroelectric Generation Project” (Project).
[8] In its Project, Nalcor planned the construction and operation of two hydroelectric plants in Lower Churchill River, Labrador. The Project specifically includes two hydroelectric plants, at Gull Island and Muskrat Falls, as well as transmission lines to the Labrador grid. The two plants will generate a total of more than 3,000 megawatts (MW). The Gull Island plant will have a capacity of 2,250 MW and will include a dam 99 m high and 1,315 m long, with a 232 km long reservoir inundating 85 km2 of land. The Muskrat Falls plant has a capacity of 824 MW, will include a dam 32 m high and 432 m long and a second one 29 m high and 325 m long, with a 59 km long reservoir, inundating an area of 41 km2.
B. The decision to subject the Project to a joint environmental assessment [9] In January 2007, the Minister of Environment and Conservation of Newfoundland and Labrador (provincial minister) decided that the Project would be subject to the Environmental Protection Act, SNL 2002, c. E-14.2 and an environmental impact study. He also recommended that a public hearing on the Project be held.
[10] One month later, Fisheries and Oceans Canada found that, to carry out the Project, it would have to take measures under subsection 35(2) of the Fisheries Act, R.S.C. 1985, c. F-14. Transport Canada found that it had to take measures under paragraph 5(1)(a) of the Navigable Waters Protection Act, R.S.C. 1985, c. N‑22. Since the Project required that Fisheries and Oceans Canada and Transport Canada issue permits and provide pre‑approval, they determined that the Project had to be subject to a federal environmental assessment. Fisheries and Oceans Canada and Transport Canada also decided that they would be the responsible authorities for the environmental assessment. Natural Resources Canada was added to the group of responsible authorities on August 19, 2011, after granting Nalcor a loan guarantee.
[11] Considering that the Project risks creating adverse environmental effects, the responsible authorities recommended submitting the Project to a federal review panel. In June 2007, the federal Minister of the Environment adopted this recommendation and decided to refer the assessment to a review panel.
[12] Following this process, the Newfoundland and Labrador government and the federal government agreed to submit the Project to an environmental assessment process, which would be conducted by a Joint Review Panel.
C. The guidelines for the environmental impact assessment [13] In December 2007 the provincial minister and the Canadian Environmental Assessment Agency jointly published a draft of the guidelines for the environmental impact assessment.
[14] From December 19, 2007, to February 27, 2008, the guidelines for the environmental impact assessment were subject to a public consultation.
[15] Following the comments received, the provincial Minister of the Environment and his federal counterpart published a final version of the guidelines for the environmental impact assessment on July 15, 2008. They told Nalcor that it would have to refer to these guidelines in completing its environmental impact study so as to meet the statutory requirements of both governments.
[16] On January 8, 2009, the provincial minister and the Canadian Environmental Assessment Agency, in accordance with section 40 of the CEAA, entered into an agreement to establish a Joint Review Panel (“Agreement for the Establishment of a Joint Review Panel for the Environmental Assessment of the Lower Churchill Hydroelectric Generation Project”). This agreement describes the mandate of the Joint Review Panel, which is essentially responsible for determining whether the completion of the Project is likely to have significant adverse effects on the environment, considering the implementation of mitigation measures by the proponent Nalcor. Under the agreement, the Joint Review Panel must also invite Aboriginal groups to make submissions on their Aboriginal rights in the region of the Project and the negative impact that the Project may have on them. Under section 15 of the CEAA, the federal Minister of the Environment defined the scope of the Project to be assessed as including the Muskrat Falls and Gull Island plants.
[17] Generally, under section 34 of the CEAA, the Joint Review Panel must first gather the information required for the environmental assessment of the Project under review. Second, it must hold hearings so as to give the public the opportunity to participate in the environmental assessment of the Project. Third, it must prepare a report containing its conclusions and recommendations relating to the environmental assessment of the Project and summarizing the comments received from the public. Fourth, it must submit its report to the federal Minister of the Environment and to the responsible authorities.
[18] On February 17, 2009, Nalcor submitted its environmental impact study, developed in accordance with the guidelines established by the Newfoundland and Labrador government and the federal government. In its environmental impact study, Nalcor identified the adverse environmental effects of the Project, proposed measures likely to mitigate them and assessed their significance considering these mitigation measures.
[19] From March 9, 2009, to April 15, 2011, 52 stakeholders, including the Innu of Ekuanitshit, made submissions regarding Nalcor’s environmental impact study to the Joint Review Panel for its information gathering process. Following these submissions, the Joint Review Panel submitted 166 information requests to Nalcor, who provided responses to all these information requests. Members of the public were then invited, on two occasions, to make submissions regarding Nalcor’s responses to the information requests.
[20] On January 14, 2011, after compiling the stakeholders’ submissions and considering Nalcor’s responses to the information requests, the Joint Review Panel found that the assessment could proceed to public hearings.
[21] From March 3, 2011, to April 15, 2011, the Joint Review Panel held public hearings in six municipalities of Newfoundland and Labrador and Quebec. The appellant made submissions, filed documents and showed a video during a hearing held in Sept-Îles, Quebec, on April 7, 2011.
[22] On August 23, 2011, the Joint Review Panel published its Report of the Joint Review Panel, Lower Churchill Hydroelectric Generation Project and presented it to the federal Minister of the Environment and the responsible authorities. The key finding of this Report was that the Project is likely to cause significant adverse environmental and socioeconomic effects, but that the potentially significant economic benefits that it would generate, although uncertain, would compensate for these risks. The Report also made more than 80 recommendations about the mitigation measures and the additional information that would be required on some aspects so that the Project could move forward.
[23] Following the publication of the Report of the Joint Review Panel, the appellant contacted the Canadian Environmental Assessment Agency and made some requests. In particular, the appellant requested that no decision be made regarding the Project before serious studies on the historic use of the land covered by the Project and on the caribou herds that live on it were carried out.
[24] On March 12, 2012, in order C.P. 2012-285, the Governor in Council endorsed both the response of the federal government to the Report (response) and the decision that the responsible authorities had to make under their respective laws (decision). Under subsections 37(1) and 37(1.1) of the CEAA, the federal government and the responsible authorities had to read the Report and determine whether the Project was justified despite its adverse environmental effects, but it was ultimately up to the Governor in Council to approve this response.
[25] The response, after summarizing the environmental assessment process and the issues contained in the Report, presented the federal government’s findings and the reasons for which the significant adverse environmental effects of the Project are justified by its benefits. It also responded to each of the Joint Review Panel’s recommendations. It described, among other things, the federal government’s participation in the Project.
[26] The decision contains the list of mitigation measures that must be implemented to carry out the Project, concerning inter alia: birds, fish, mammals and their habitat; Aboriginal use of land and resources for traditional purposes; socioeconomic effects; and physical and cultural heritage. The decision also provides for the implementation of a follow-up program that aims to monitor the accuracy of the environmental assessment and the effectiveness of the mitigation measures to be carried out from October 1, 2012, to October 1, 2037.
[27] On March 16, 2012, the responsible authorities officially filed their decision, previously endorsed by the Governor in Council, with the Canadian Environmental Assessment Agency (reference number 07-05-26178).
[28] One month later, the appellant filed an application for judicial review of the order of the Governor in Council endorsing the federal government’s response to the Report and the subsequent decision of the responsible authorities, approved by the order.
II. The judge’s decision [29] After establishing the facts of this matter and conducting an analysis of the evidence, the judge dismissed the application for judicial review for three main reasons.
[30] First, the judge determined that the appellant had not respected the deadline for the judicial review of the order that set the scope of the Project under section 15 of the CEAA. Despite this, whether or not the application for review was out of time, the judge found that the decision to maintain the current scope of the Project as presented by Nalcor - i.e. without the transportation line (between Labrador and the Island of Newfoundland) - was reasonable and that no breach of the process under the CEAA had been established.
[31] Second, the judge found that the decision of the federal government and the responsible authorities under section 16 of the CEAA was reasonable. The government was aware of the adverse environmental effects of the Project and carefully weighed them against the benefits from a national perspective. The judge decided that the appellant’s fear relating to the switched order of construction of the two dams and to the approval of the Gull Island Project was unsubstantiated at this stage.
[32] Third, the judge determined at paragraph 112 of his reasons that the government admitted that it had a duty to consult the Innu of Ekuanitshit and that, rather, the issue was whether the Crown had sufficiently consulted. He first stated that it was premature to conduct the judicial review of the federal government’s consultation process and accommodation at this stage, but he nonetheless proceeded to review the issue. After analyzing the evidence on the record and the case law regarding the Crown’s duty to consult, the judge found that the consultation process was not complete and that the consultation performed to date, i.e. up to the Governor in Council issuing the order, was sufficient.
III. Issues [33] This appeal raises two issues:
1. Did the judge err in finding that the decisions of the Governor in Council and the responsible authorities complied with the CEAA?
2. Did the judge err in finding that the Crown had not breached its duty to consult the Innu of Ekuanitshit on aspects of the Project likely to have a prejudicial effect on their Aboriginal rights and to seek accommodation measures?
IV. Analysis A. Did the judge err in finding that the decisions of the Governor in Council and the responsible authorities complied with the CEAA? [34] The appellant submits that the judge committed a number of errors in finding that the impugned decisions of the Governor in Council and the responsible authorities complied with the provisions of the CEAA. The errors involve, in particular, (i) the authorization of the Project under section 37 of the CEAA despite the lack of a construction date for the Gull Island plant, (ii) the uncertain application of section 24 of the CEAA, and (iii) the interplay between the powers of the Governor in Council and of the federal Minister of the Environment.
(1) Standard of review [35] In an appeal from a judicial review judgment, the role of this Court is to determine, first, whether the judge identified the appropriate standard of review and, second, whether he applied it correctly (Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 at paras. 45-47; Canada Revenue Agency v. Telfer, 2009 FCA 23 at para. 18).
[36] In this case, the appellant maintains that the judge erred by applying a standard of review that was far too deferential toward the decisions of the Governor in Council and the responsible authorities under section 37 of the CEAA. The appellant further criticizes the judge for having applied the principles in Thorne’s Hardware Ltd. v. The Queen, [1983] 1 S.C.R. 106 [Thorne’s Hardware] , when the Supreme Court recently rejected those principles in Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5 [Catalyst Paper]. According to the appellant, the judge should have instead used the standard of review analysis developed in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir] and found that a correctness standard should be applied to questions relating to jurisdiction and to the applicability of the CEAA (MiningWatch Canada v. Canada (Fisheries and Oceans), 2007 FC 955, [2008] 3 F.C.R. 84, aff’d. by 2010 SCC 2, [2010] 1 S.C.R. 6 [MiningWatch]) as well as to questions regarding the interpretation of the CEAA (Georgia Strait Alliance v. Canada (Minister of Fisheries and Oceans), 2010 FC 1233, [2012] 3 F.C.R. 136 at para. 60, conf. 2012 FCA 40, [2013] 4 F.C.R. 155 [Georgia Strait]).
[37] I cannot accept the appellant’s arguments with regard to the applicable standard of review in this case.
[38] The Supreme Court of Canada teaches us that an exhaustive analysis is not always necessary for determining the appropriate standard of review. A reviewing court must begin by determining whether the case law has already established in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question (Dunsmuir at para. 62).
[39] In this case, the crucial issue for the judge to decide with regard to the CEAA was whether the Governor in Council and the responsible authorities had respected the requirements of the Act prior to making their decisions under subsections 37(1) and 37(1.1) of the CEAA.
[40] The judge determined, at paragraphs 72 to 76 of his reasons, that the decisions made under subsections 37(1) and 37(1.1) of the CEAA should be reviewed on a reasonableness standard. In reaching his conclusion, the judge relied on Thorne’s Hardware, but also Inverhuron & District Ratepayers’ Assn. v. Canada (Minister of the Environment), 2001 FCA 203 at para 32, Bow Valley Naturalists Society v. Canada (Minister of Canadian Heritage), [2001] 2 F.C. 461 at para. 78 and Pembina Institute for Appropriate Development v. Canada (Minister of Fisheries and Oceans), 2005 FC 1123 at para. 74. These decisions, from this Court and the Federal Court, set out that a reviewing court must not intervene in decisions of the Governor in Council or responsible authority under section 37 of the CEAA, unless the statutory process was not followed properly. The judge concluded his overview of the case law by citing our Court at paragraphs 75 and 76 of his reasons as follows:
[75] In Canada (Wheat Board) v. Canada (Attorney General), 2009 FCA 214, at para 37, Justice Noël described the limits imposed on the Courts’ ability to review decisions made by the GIC pursuant to a legislative power given to it by statute as follows:
It is well-settled law that when exercising a legislative power given to it by statute, the Governor in Council must stay within the boundary of the enabling statute, both as to empowerment and purpose. The Governor in Council is otherwise free to exercise its statutory power without interference by the Court, except in an egregious case or where there is proof of an absence of good faith (Thorne’s Hardware Ltd. et al. v. The Queen et al., 1983 CanLII 20 (SCC), [1983] 1 S.C.R. 106, page 111; Attorney General of Canada v. Inuit Tapirisat of Canada et al, 1980 CanLII 21 (SCC), [1980] 2 S.C.R. 735, p. 752).
[76] This Court agrees with the above formulation of Justice Noël. As a result, the Court will only intervene with the GIC and Responsible Ministers’ decisions under subsections 37(1.1) and 37(1) if it finds that: 1) the CEAA statutory process was not properly followed before the section 37 decisions were made; 2) the GIC or Responsible Ministers’ decisions were taken without regard for the purpose of the CEAA; or 3) the GIC or Responsible Ministers’ decisions had no reasonable basis in fact; which is tantamount to an absence of good faith.
[41] I am of the view that the judge rightfully concluded that the above-mentioned case law establishes in a satisfactory manner that a reviewing court must show deference when reviewing the exercise of power delegated by the Act to the Governor in Council or to a Minister.
[42] As this judicial review does not involve questions of jurisdiction or statutory interpretation, the principles set out in MiningWatch at paragraph 135, and Georgia Strait at paragraph 60, upon which the appellant relies, do not apply.
[43] In addition, contrary to what the appellant asserts, Catalyst Paper, does not substantially alter the applicable law with respect to the judicial review of the exercise of a delegated authority. Although it is correct to state that the Supreme Court of Canada abandoned the distinction inherited from Thorne’s Hardware between policy, which is theoretically exempt from judicial review, and legality, the Court nonetheless reiterated the principle by which an authority “[i]n passing delegated legislation … must make policy choices that fall reasonably within the scope of the authority the legislature has granted it” (Catalyst Paper at para. 14).
[44] Therefore, in my view, the judge correctly found that deference was owed to the decisions made pursuant to subsections 37(1) and 37(1.1) of the CEAA, but that a reviewing court must ensure that the exercise of power delegated by Parliament remains within the bounds established by the statutory scheme.
(2) Reasonableness of the decisions of the Governor in Council and responsible authorities [45] The appellant submits that the judge committed three main errors in his analysis of the reasonableness of the impugned decisions.
(a) The absence of a construction date for the Gull Island plant [46] First, the appellant’s essential argument is that the Governor in Council and responsible authorities were not able to determine whether the Project’s negative consequences could be justified in the circumstances, as required by subsections 37(1) and 37(1.1) of the CEAA, since the Project as defined included the Gull Island plant, when to this date only the construction of the Muskrat Falls plant has been confirmed.
[47] With regard to the allegation of the abandonment of the construction of the Gull Island plant, the judge wrote as follows:
[91] The Applicant’s concerns regarding the approval of Gull Island is fundamentally a scoping argument which the Court has already concluded to be statute barred in this instance. The Applicant submits that Gull Island should have been removed or ¨scoped out¨ of the Project. The Supreme Court of Canada already decided that the minimum scope of a project ¨is the project as proposed by the proponent¨ (see MiningWatch, above, at para 39). The scope of the Project can then be increased but not decreased. The rationale is easy to understand. Why would a proponent propose a project larger than they intended to build? They would only be rendering the EA process more onerous for no valid reason…
[48] The judge concluded that, in light of the evidence and the obligations provided for under the CEAA, the decisions of the Governor in Council and responsible authorities were reasonable:
[95] The evidence before the Court indicates that the federal government was properly informed of the potential negative environmental impacts of the Project. Furthermore it reasonably justified its decision to proceed in this instance after having weighed the benefits against the negative environmental impacts from its national perspective. As the Court reviewed the Response and Decision, it is clear that both are carefully considered decisions that balance competing objectives.
[49] I point out that the impugned decisions were made under subsections 37(1) and 37(1.1) of the CEAA, which provide as follows:
Decision of responsible authority
Autorité responsable
37.(1) Subject to subsections (1.1) to (1.3), the responsible authority shall take one of the following courses of action in respect of a project after taking into consideration the report submitted by a mediator or a review panel or, in the case of a project referred back to the responsible authority pursuant to subsection 23(1), the comprehensive study report:
37.(1) Sous réserve des paragraphes (1.1) à (1.3), l’autorité responsable , après avoir pris en compte le rapport du médiateur ou de la commission ou, si le projet lui est renvoyé aux termes du paragraphe 23(1), le rapport d’étude approfondie, prend l’une des décisions suivantes :
(a) where, taking into account the implementation of any mitigation measures that the responsible authority considers appropriate,
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 œuvre totale ou partielle du projet :
(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
(b) where, 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 that cannot be justified in the circumstances, the responsible authority shall not exercise any power or perform any duty or function conferred on it by or under any Act of Parliament that would permit the project to be carried out in whole or in part.
b) si, compte tenu de l’application des mesures d’atténuation qu’elle estime indiquées, la réalisation du projet est susceptible d’entraîner des effets environnementaux qui ne sont pas justifiables dans les circonstances, ne pas exercer les attributions qui lui sont conférées sous le régime d’une loi fédérale et qui pourraient permettre la mise en œuvre du projet en tout ou en partie.
Approval of Governor in Council
Agrément du Gouverneur en Conseil
(1.1) Where a report is submitted by a mediator or review panel,
(1.1) Une fois pris en compte le rapport du médiateur ou de la commission, l’autorité responsable est tenue d’y donner suite avec l’agrément du Gouverneur en Conseil, qui peut demander des précisions sur l’une ou l’autre de ses conclusions; l’autorité responsable prend alors la décision visée au titre du paragraphe (1) conformément à l’agrément.
(a) the responsible authority shall take into consideration the report and, with the approval of the Governor in Council, respond to the report;
(b) the Governor in Council may, for the purpose of giving the approval referred to in paragraph (a), require the mediator or review panel to clarify any of the recommendations set out in the report; and
(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).
[50] Under section 15 of the CEAA, it was up to the Minister of the Environment to determine the scope of the Project that was to be subject to the environmental assessment process and Joint Review Panel Report, upon which the Governor in Council and responsible authorities were to ultimately base their decisions:
Scope of project
Détermination de la portée du projet
15.(1) The scope of the project in relation to which an environmental assessment is to be conducted shall be determined by
15.(1) L’autorité responsable ou, dans le cas où le projet est renvoyé à la médiation ou à l’examen par une commission, le ministre, après consultation de l’autorité responsable, détermine la portée du projet à l’égard duquel l’évaluation environnementale doit être effectuée.
(a) the responsible authority; or
(b) where the project is referred to a mediator or a review panel, the Minister, after consulting with the responsible authority.
[51] In the order, the Governor in Council thus describes as follows the Project whose scope was determined, on January 8, 2009, by the federal Minister of the Environment (A.B., Vol. 1 at. 201):
[translation]
The Nalcor Energy company proposes to build two hydroelectric generation facilities on the lower Churchill River in central Labrador, the combined capacity of which will be 3,074 megawatts (MW). The Project consists of two dams located at Muskrat Falls and Gull Island, two reservoirs and transmission lines between Muskrat Falls and Gull Island and between Gull Island and the existing Churchill Falls facility. Other facilities would include access roads, temporary bridges and construction camps; borrow pits and quarry sites, diversion facilities and spoil areas.
[Emphasis added.]
[52] In this instance the responsible authorities had to decide, with the agreement of the Governor in Council, whether to exercise their powers under their respective statutes, thereby allowing the Project as defined by the federal Minister of the Environment to proceed. To do so, the responsible authorities and the Governor in Council had to determine whether the adverse environmental effects described in the Joint Review Panel Report were justifiable given the positive effects of the Project and the application of appropriate mitigation measures.
[53] In the order, the Governor in Council determined, after consulting the Joint Review Panel Report as well as several government studies, that [translation] “the significant energy, economic, socio-economic and environmental benefits outweigh the negative environmental impacts of the Project identified in the Panel’s Report” (A.B., Vol. 1 at 206).
[54] I share the appellant’s view that the abandonment of the Gull Island plant, if this were proven to be true, would raise serious questions about the validity of the environmental assessment and the impugned decisions. The Project authorized by the Governor in Council and responsible authorities following the balancing exercise imposed by section 37 of the CEAA included the Muskrat Falls plant as well as the Gull Island plant. I would note that this authorization was not a blank cheque for Nalcor to postpone the construction of the Gull Island plant indefinitely. If Nalcor were to forego construction of the larger of the two plants assessed (Gull Island), or if there was an unreasonable delay in its construction, the balancing exercise carried out for one of the Report’s findings would be necessarily compromised.
[55] I note, however, that the appellant adduced no evidence that the Gull Island plant had truly been abandoned by the proponent. For its part, Nalcor contends that construction of the Gull Island plant has not been abandoned and that it still has every intention of building the plant. Nalcor explains its difficulty in providing a construction start date by invoking its obligation to satisfy internal control mechanisms that require, in particular, confirmation of access to commercial markets likely to ensure the profitability of the Gull Island plant.
[56] The sequence of construction of the two plants was certainly modified in November 2010. Following this modification, it was decided that the Muskrat Falls plant would be built first, when it was initially supposed to be built after the Gull Island plant. However, the reversal of the sequence of construction of the plants does not suggest that Gull Island will never be built.
[57] At best, it appears that, unlike the Muskrat Falls plant, there is no scheduled construction date currently planned for the Gull Island plant. The appellant has provided no statutory or judicial authority requiring that a proponent provide a specific construction date in advance for each component of a project of this magnitude. Indeed, if it is true that there is no basis for concluding that the Gull Island plant will actually be built, it is equally true that there is no evidence to the contrary either.
[58] In the absence of evidence of the abandonment of the construction of the Gull Island plant or of an unreasonable delay in its construction, the appellant has not established that it was unreasonable for the Governor in Council and responsible authorities to conclude that, in light of the positive effects and proposed mitigation measures, the adverse environmental effects of the Project including the two plants were justified.
[59] Therefore, I share the judge’s conclusion and find that this ground of appeal must fail.
(b) Section 24 of the CEAA [60] Second, the appellant submits that the judge erred by stating that section 24 of the CEAA would apply if the Gull Island facility was not built within a reasonable timeframe. At first instance, the appellant argued that approving the Project when there is no planned construction date for the Gull Island facility would be tantamount to granting indefinite approval for the Project, which was prejudicial to the appellant given the negative environmental impacts that would result.
[61] In upholding Nalcor’s argument, the judge concluded that section 24 of the CEAA prevents the indefinite approval of the Project decried by the appellant:
[91] …Furthermore, section 24 of the CEAA will prevent the indefinite approval of any component of a project which is not built within a reasonable timeframe.
[62] Section 24 of the CEAA provides, among other things, that when a proponent proposes to carry out a project for which an environmental assessment has previously been conducted, the responsible authority must use the assessment and corresponding report, while making any adjustments made necessary by changes in circumstances:
Use of previously conducted environmental assessment
Utilisation d’une évaluation antérieure
24.(1) Where a proponent proposes to carry out, in whole or in part, a project for which an environmental assessment was previously conducted and
24.(1) Si un promoteur se propose de mettre en œuvre, 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 :
(a) the project did not proceed after the assessment was completed,
a) le projet n’a pas été mis en œuvre après l’achèvement de l’évaluation;
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The responsible authority shall use that assessment and the report thereon to whatever extent is appropriate for the purpose of complying with section 18 or 21.
Necessary adjustments
Ajustements nécessaires
(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.
(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.
[63] The respondents acknowledge that the conditions for applying section 24 of the CEAA are uncertain. Nalcor further concedes that the judge’s words create confusion and that it is inaccurate to assert that section 24 of the CEAA “will prevent” the indefinite approval of a project or one of its components. According to Nalcor, this provision nonetheless implies that Parliament contemplated situations in which a project, after undergoing an environmental assessment, was not carried out and for which the initial assessment must be adjusted in order to take into account changes in circumstances that occurred in the intervening period.
[64] Section 24 of the CEAA has until now received only summary treatment in the case law. The section does appear to apply to situations in which a proponent submits for approval by the government a project that has already been assessed but never carried out. By requiring the responsible authority to use, with the necessary adjustments, the previous environmental assessment, section 24 of the CEAA appears geared toward achieving greater administrative efficiency by avoiding unnecessary duplication and minimizing the risks of the impacts resulting from the approval of projects not built within a reasonable timeframe.
[65] The relevance of such a provision in the context of this judicial review is unclear. Not only has the Project barely begun to move forward in this case, but it is difficult to fathom how the mechanism set out in section 24 of the CEAA, which deals with situations likely to occur long after a project has been approved, could be employed in a judicial review of a decision to approve made pursuant to section 37 of the CEAA.
[66] Even if the judge did not have to decide in the circumstances of this case on the application of section 24 of the CEAA, his findings are of no consequence. Indeed, any discussion surrounding the abandonment of the construction of the Gull Island facility, when less than three years have passed since the Project was approved, is at this point entirely hypothetical and speculative and cannot compromise the reasonableness of the impugned decisions.
(c) Limits on the Governor in Council’s power under the CEAA [67] Third, the appellant maintains that the judge erred by concluding that the Governor in Council’s power is limited by the decision on the scope of the Project made by his Environment Mini