Conseil des innus de Ekuanitshit c. Canada (Procureur général)

Conseil des innus de Ekuanitshit c. Canada (Procureur général)
Court (s) Database
Federal Court Decisions
Date
2013-04-23
Neutral citation
2013 FC 418
File numbers
T-778-12
Decision Content
Date: 20130423
Docket: T-778-12
Citation: 2013 FC 418
Ottawa, Ontario, April 23, 2013
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
CONSEIL DES INNUS DE EKUANITSHIT
Applicant
and
LE PROCUREUR GÉNÉRAL DU CANADA,
EN SA QUALITÉ DE JURISCONSULTE DU
CONSEIL PRIVÉ DE SA MAJESTÉ
POUR LE CANADA
ET
L’HONORABLE KEITH ASHFIELD, EN SA CAPACITÉ DE MINISTRE DES PÊCHES ET DES OCÉANS CANADA
ET
L’HONORABLE DENIS LEBEL,
EN SA CAPACITÉ DE MINISTRE
DES TRANSPORTS CANADA
ET
L’HONORABLE JOE OLIVER,
EN SA CAPACITÉ DE MINISTRE DES
RESSOURCES NATURELLES CANADA
ET
NALCOR ENERGY
ET
NEWFOUNDLAND AND LABRADOR HYDRO-ELECTRIC CORPORATION
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1] This is an application for judicial review filed on April 16, 2012 pursuant to sections 18 and 18.1 of the Federal Courts Act, RSC 1985, c-7 [FCA], by which the Applicant challenges the lawfulness of the Order in Council (C.P. 2012-285) taken by the Governor in Council (“the Order”) approving the federal government’s Response (“the Response”) to the Report of the Joint Review Panel, Lower Churchill Hydroelectric Generation Project, Nalcor Energy, Newfoundland and Labrador (“the Report”) and the related cause of action Decision dated March 16, 2012 (“the Decision”) by the responsible authorities, Fisheries and Oceans Canada [DFO], Natural Resources Canada [NRCan] and Transport Canada [TC] (collectively “the RAs”) pursuant to subsection 37(1) of the Canadian Environmental Assessment Act, SC 1992, c 37 [CEAA]. The Report was issued by a Joint Review Panel [JRP] as the culmination of its environmental assessment (“the EA”) of the Lower Churchill Hydroelectric Generation Project (“the Project”). The Order was made by the Governor in Council on March 12, 2012 pursuant to subsection 37(1.1) of the CEAA.
[2] The Applicant is seeking, amongst other remedies:
1. a declaration that
a) the Governor in Council and RAs did not fulfill their duty to consult the Innus d’Ekuanitshit (the Ekuanitshit) on the elements of the Project liable to have a prejudicial effect on their traditional rights;
b) the Governor in Council and RAs did not seek to accommodate the Ekuanitshit in a spirit of reconciliation consistent with the honour of the Crown;
c) despite the requirements of paragraph 4(1)(a) of the CEAA, the Governor in Council and RAs did not possess sufficient information to assess the potential negative impact that the Project is liable to have on the current use of the land and resources for traditional purposes by the Ekuanitshit;
d) the Project proposed by Nalcor Energy (“Nalcor”) is no longer the project proposed for evaluation under the CEAA due to subsequent changes in the implementation process;
e) the Project and the Labrador-Island Transmission Link Project (Transmission Link) constitute a single project under the CEAA; and
f) the Governor in Council and RAs did not have sufficient information in order to judge the economic benefits of the Project or whether there are other economically and technically feasible means of meeting energy requirements that are less environmentally harmful;
2. an order quashing the Order and the Decision;
3. an order returning the Report to the Governor in Council and RAs so that they may:
a) fulfill their duty to consult and accommodate the Ekuanitshit pursuant to section 35 of The Constitution Act, 1982 regarding the potential negative impacts of the Project on their traditional rights in a manner consistent with the honour of the Crown;
b) ask that further information be supplied regarding the necessity and negative impacts of the Project;
c) determine whether, in light of the supplementary information mentioned above, the Project’s negative impacts are still justifiable in the circumstances;
4. a writ of prohibition preventing the ministers of the DFO and TC from:
a) issuing permits under the Fisheries Act, RSC 1985, c F-14 and the Navigable Waters Protection Act, RSC 1985, c N-22; and
b) taking any other irrevocable decision in their roles as RAs with regards to the Project 5) Costs, regardless of the result of the application.
[3] For the reasons that follow, the Court is dismissing this application.
II. Background
A. The parties
(i) The Applicant
[4] Le Conseil des Innus d’Ekuanitshit (“the Applicant”) is a registered Indian band within the meaning of section 2 of the Indian Act, RSC 1985, c I-5.
[5] The Applicant participated throughout the EA process for the Project, and was awarded funding through the Canadian Environmental Assessment Agency’s (“the Agency”) Participant Funding Program to facilitate its participation in different phases of the EA.
(ii) The Respondents
[6] The Respondents are: (1) the Attorney general of Canada [AGC] named in lieu of the Governor in Council, whose approval of the Response is required pursuant to subsection 37(1.1) of the CEAA; (2) the Minister of Fisheries and Oceans, who, together with (3) the Minister of Transport and (4) the Minister of Natural Resources, constitute the Responsible Authorities [RAs] related to the Project; (the Government Respondents); (5) Nalcor; and (6) Newfoundland and Labrador Hydro-Electric Corporation.
[7] Fisheries and Oceans Canada [DFO] and Transport Canada [TC] identified themselves from the beginning as RAs with respect to the Project. DFO found that certain components of the Project would result in the harmful alteration, disruption or destruction of fish habitat and would consequently require authorizations under subsection 35(2) of the Fisheries Act, RSC 1985, c F-14. Transport Canada determined that the Project would require formal approval under subsection 5(1) of the Navigable Waters Protection Act, RSC 1985, c N-22 [NWPA] because the Project’s dams constitute works under that Act.
[8] Natural Resources Canada became a responsible authority on August 19, 2011, when a decision was taken by the Government of Canada to provide financial assistance to Nalcor in the form of a loan guarantee for a part of the Project.
[9] Nalcor is a Crown Corporation incorporated pursuant to the Energy Corporation Act, SNL 2007, c E-11.01. It is wholly owned by the Government of Newfoundland and Labrador (“the Province”), and was constituted to “engage in and carry out activities pertaining to the Province’s energy resources, including hydro-electric generation”. Nalcor is responsible for the implementation of the Province’s energy policy, and is governed in that respect by: the Energy Corporation Act, above; the Province’s long term energy policy, Focusing Our Energy (“the Energy Plan”); and the Electrical Power Control Act, 1994 , SNL 1994, c E-5.1.
B. The Project
[10] Nalcor’s proposed Project consists of:
“hydroelectric generating facilities at Gull Island and Muskrat Falls, and interconnecting transmission lines to the existing Labrador grid. The Project will be the subject of engineering design and marketing studies that will be conducted concurrently with the environmental assessment. As part of the environmental assessment, alternative means of carrying out the Project will be evaluated including its capacity, design, layout, and technology. The Project as currently planned is presented and, as with any project, will require optimization to reflect current market and business opportunities. Nevertheless, the Project will be very similar to previous concepts. Optimization will determine details such as the size and number of turbines within each powerhouse, and construction sequencing pending access to the south side of the river. Such changes and refinements will be relatively slight, and consistent with the normal process leading to final Project sanction. The Gull Island facility will consist of a generating station with a capacity of approximately 2,000 MW and include:
- a dam 99 m high and 1,315m long; and
- a reservoir 200 km2 in area at an assumed full supply level of 125 m asl.
The dam will be a central till-cored, rock-fill, zone embankment. The reservoir will be 225 km long, and the area of inundated land will 85 km2 at full supply level. The powerhouse will contain four to six Francis turbines.
The Muskrat Falls facility will consist of a generating station that will be approximately 800 MW in capacity and will include:
- a concrete dam with two sections on the north and south abutments of the river;
- a 107 km2 reservoir at an assumed full supply level of 39 m asl.
The north section of the dam will 32 m high and 180 m long, while the south section will be 29 m high and 370 m long. The north section will serve as a spillway in extreme precipitation events. The reservoir will be 60 km long and the area of inundated land will be 36 km2 at full supply. The powerhouse will contain four to five propeller or Kaplan turbines, or a combination of both.
The interconnecting transmission lines will consist of:
- a 735 kV transmission line between Gull Island and Churchill Falls; and
- two 230 kV transmission lines between Muskrat Falls and Gull Island.
The 735 kV transmission line will be 203 km long and the 230 kV transmission lines will be 60kn long. Both lines will likely be lattice-type steel structures. The location of the transmission lines will be north of the Churchill River; the final route is the subject of a route selection study that will be included in the environmental assessment. The lines between Muskrat Falls and Gull Island may be on separate towers, or combined on double-circuit structures”. (See Affidavit of Stephen Chapman, Exhibit SC-4, Federal Respondents Representations, Vol. 1, pages 270-271)
[11] The Project has a long history. Since 1978, three different versions of the Project have been contemplated. Two versions involved diversions of rivers and an agreement with Hydro Québec. As the negotiations failed with Hydro-Québec and it was determined that the diversion of rivers upstream of Churchill Falls was unfeasible, Nalcor focused on a project that did not entail the diversion of rivers. The version of the Project that was defined and registered by Nalcor for environmental assessment in November of 2006 is as described above; it does not rely on the diversion of rivers and is predicated on meeting identified needs within the Province and generating surplus energy to access export markets.
C. The CEAA Environmental Assessment Process
[12] It is important to describe the framework that applied to this EA under the CEAA. There are five stages involved. This application for judicial review was filed at the conclusion of the fourth stage.
[13] The Applicant submitted that correspondence related to phase V should be allowed in the record despite the fact that it was exchanged after the application. The Court decided that it should not be accepted in the record because phase V is still ongoing and, more importantly, the record should be confined to what was before the decision maker at the time the application was filed.
[14] The Project was registered in November 2006 and the RAs determined that the CEAA applied to the Project in February 2007.
[15] In June 2007, the Minister of the Environment referred the assessment to a review panel. Since the Province of Newfoundland and Labrador had also concluded that public hearings would be required under provincial legislation, the two Governments agreed to set up a JRP in January 2009.
[16] It is important to note that the CEAA provides for three types of environmental assessments: screening, comprehensive study and panel review. A panel review calls for a more comprehensive assessment and extended involvement by participants. The assessment was conducted by the JRP after the “Agreement for the Establishment of a Panel for the Environmental Assessment of the Lower Churchill Hydroelectric Generation Project” was concluded in January 2009. The federal Minister of the Environment, together with the provincial Ministers of Environment and Conservation and the Minister of Intergovernmental Affairs, appointed the five member panel responsible for the panel review.
[17] In order to better comprehend the scope and degree of involvement required under the EA, the Court believes that reproducing substantive extracts from the JRP Agreement that defined the Terms of Reference for the Panel’s EA will facilitate the comprehension of the issues raised by this application. The JRP Agreement specified that:
“2.0 Establishment of the Panel
2.1 A process is hereby established for the creation of a Panel, pursuant to sections 40, 41 and 42 of the CEAA and section 73 of the EPA and, for the purposes of the review of the Project/Undertaking.
3.0 Constitution of the Panel
3.1 The Minister of the Environment and the Lieutenant-Governor in Council of the Province of Newfoundland and Labrador shall jointly establish the Panel.
3.2 The Panel shall consist of five members.
4.0 Conduct of the Environmental Assessment by the Panel
4.1 The Panel shall have all the powers and duties of a panel set out in section 35 of the CEAA and sections 64 and 65 of the EPA and applicable regulations.
4.2 The Panel shall conduct the EA in a manner that discharges the requirements set out in the CEAA, the EPA and in the Terms of Reference for the Panel set out in Schedule 1.
6.0 Record of environmental Assessment and Panel Report
6.1 A Project File containing all records produced, collected or submitted with respect to the EA of the Project/Undertaking shall be maintained by the Agency from the appointment of the Panel until the report of the Panel is submitted to the Ministers. The Public Registry shall be operated in a manner to ensure convenient public access to the records for the purposes of compliance with section 55 of the CEAA and the practices of the Department.
6.2 On completion of the EA of the Project/Undertaking, the Panel shall prepare a report and submit it to the Ministers who will make it public.
6.3 The report will address the factors required to be considered under section 16 of the CEAA and section 65 of the EPA, will set out the rationale, conclusions and recommendations of the Panel relating to the EA of the Project/Undertaking, including any mitigation measures and follow-up program, and include a summary of issues raised by Aboriginal groups, governments and other interested parties. [Emphasis added]
6.4 The Parties agree to coordinate, to the extent possible, the timing and announcements of decisions on the Project/Undertaking.
6.5 Once the report is submitted to the Minister of the Environment, responsibility for the maintenance of the Public Registry in accordance with section 55 of the CEAA will be transferred to Fisheries and Oceans Canada as responsible authority.
8.0 Participant Funding
8.1 The Agency will administer a participant funding program to facilitate the participation of Aboriginal groups and the public in the EA of the Project/Undertaking. [Emphasis added]
Part I – Scope of the Project/Undertaking
The Proponent proposes a project/undertaking consisting of hydroelectric generating facilities at Gull Island and Muskrat Falls, and interconnecting transmission lines to the existing Labrador grid.
The Project/Undertaking includes the following components as described by the Proponent. The specific dimensions/characteristics of the proposal are subject to change as a result of the findings of the environmental assessment.
The Gull Island facility consisting of a generating station with a capacity of approximately 2,000 MW that includes:
• A dam 99 m high and 1,315 m long; and
• A 215 km2 reservoir in area at an assumed full supply level of 125 m above sea level (asl).
The dam is to be a concrete faced, rock fill dam. The reservoir is to be 230 km long, and the area of inundated land is to be in the order of 85 km2 at full supply level. The powerhouse is to contain five Francis turbines.
The Muskrat Falls facility consisting of a generating station with a capacity of approximately 800 MW that includes:
• A concrete dam with two sections on the north and south banks of the river; and
• A 100 km2 reservoir in area at an assumed full supply level of 39 m asl.
•
The north and south dams will be constructed or roller compacted concrete. The north section dam is to be in the order of 32 m high and 432 m long, while the south section is to be in the order of 29 m high and 125 m long. The reservoir is to be 60 km long and the area of inundated land is to be in the order of 41 km2 at full supply level.
The powerhouse is to contain four propeller or Kaplan turbines, or a combination of both.
Interconnecting transmission lines consisting of:
• A 735 kV transmission line between Gull Island and Churchill Falls; and
• Two 230 kV transmission lines between Muskrat Falls and Gull Island.
The 735 kV transmission line is to be 203 km long and the 230 kV transmission lines are to be 60 km long. Both lines will be lattice-type steel structures. The location of the transmission lines is to be north of the Churchill River; the final route is the subject of a route selection study that will be combined on double-circuit structures.
Part II – Scope of the Environmental Assessment
The panel shall consider the following factors in the EA of the Project/Undertaking as outlined in Sections 16(1) and 16(2) of the CEAA and Sections 57 and 69 of the EPA:
1. Purpose of the Project/Undertaking;
2. Need for the Project/Undertaking;
3. Rationale for the Project/Undertaking;
4. Alternative means of carrying out the Project/Undertaking that are technically and economically feasible and the environmental effects of any such alternative means;
5. Alternatives to the Project/Undertaking;
6. Extent to which biological diversity is affected by the Project/Undertaking;
7. Description of the present environment which may reasonably be expected to be affected, directly or indirectly, by the Project/Undertaking, including adequate baseline characterisation;
8. Description of the likely future condition of the environment within the expected life span of the Project/Undertaking if the Project/Undertaking was not approved;
9. Environmental Effects of the Project/Undertaking, including the Environmental Effects of Malfunctions, accidents or unplanned events that may occur in connection with the Project/Undertaking;
10. Any cumulative Environmental Effects that are likely to result from the Project/Undertaking in combination with other projects or activities that have been or will be carried out;
11. The significance of the Environmental Effects as described in items 9 and 10;
12. Mitigation measures that are technically and economically feasible and that would mitigate any significant adverse Environmental Effects of the Project/Undertaking, including the interaction of these measures with existing management plans;
13. Proposals for environmental compliance monitoring;
14. Measures to enhance any beneficial Environmental Effects;
15. Need for and requirements of any follow-up program in respect of the Project/Undertaking;
16. Capacity of renewable resources that are likely to be significantly affected by the Project/Undertaking to meet the needs of the present and those of the future;
17. Extent of application of the precautionary principle to the Project/Undertaking;
18. Comments received from Aboriginal persons or groups, the public and interested parties by the Panel during the EA;
19. Factors related to climate change including greenhouse gas emissions;
20. Proposed public information program.
To assist in the analysis and consideration of these issues, in addition to the Secretariat established by Canada and Newfoundland and Labrador to support the Panel, the Panel may retain, within its approved budget, independent expertise to provide information on and help interpret technical and scientific issues and matters related to traditional knowledge and community knowledge.
Aboriginal Rights Considerations
The Panel will have the mandate to invite information from Aboriginal persons or groups related to the nature and scope of potential or established Aboriginal rights or title in the area of the Project, as well as information on the potential adverse impacts or potential infringement that the Project/Undertaking will have on asserted or established Aboriginal rights or title.
The Panel shall include in its Report:
1. information provided by Aboriginal persons or groups related to traditional uses and strength of claim as it relates to the potential environmental effects of the project on recognized and asserted Aboriginal rights and title.
2. any concerns raised by Aboriginal persons or groups related to potential impacts on asserted or established Aboriginal rights or title.
The Panel will not have a mandate to make any determinations or interpretations of:
• the validity or the strength of any Aboriginal group’s claim to Aboriginal rights and title or treaty rights;
• the scope or nature of the Crown’s duty to consult Aboriginal persons or groups;
• whether Canada or Newfoundland and Labrador has met its respective duty to consult and accommodate in respect of potential rights recognized and affirmed by section 35 of the Constitution Act, 1982;
• the scope, nature or meaning of the Labrador Inuit Land Claims Agreement. [Emphasis added]
Part III – Steps in the Environmental Assessment Process
The main steps in the EA by the Panel will be as follows:
1. Site Visit;
2. Public Information Centres;
3. Submission of the EIS;
4. Review of the EIS;
5. Comments provided to the Proponent;
6. EIS Sufficiency;
7. Scheduling of Public Hearings;
8. Location of Public Hearings;
9. Conduct of Public Hearings;
10. Length of Public Hearings;
11. Delivery of Panel Report.”
[18] The final Environment Impact Statement [EIS Guidelines] were released by the Governments on July 15, 2008 after considering input provided by Aboriginal groups, including the Applicant, and other stakeholders between December 19, 2007 and February 27, 2008 on the scope of the Project and other issues (see Exhibit A-98 to Bennett Affidavit, Nalcor Representations [NR], Vol. 1 and Chapman Affidavit at paras 71 and 99, Federal Respondents Representations, Vol.1).
[19] The EIS Guidelines is a 10,800 page document that addresses the need, alternatives and cumulative effects of the Project.
[20] The EIS issues of concern were determined through: (a) the EIS Guidelines; (b) stakeholder and public consultation; (c) local and existing knowledge of potential environmental effects of projects (including hydro-electric projects); (d) Nalcor’s submissions describing the existing environment; and (e) analysis of the Nalcor study team, comprised of 15 environmental consulting firms.
(See Exhibits H, I, JJ, NN to Bennett Affidavit (NR, Vol 1, pages 421, 453 and 1737)
[21] The Applicant received plain language summaries of the EIS, translated into French and the Québec dialect of Innu-aimun (“Innu-aimun”).
(See Exhibit A-398 to Bennett Affidavit (NR, Vol. 1)
[22] Between March 9, 2009 and April 15, 2011, the JRP conducted its information gathering process. They began by inviting the public and government agencies to comment on the adequacy of the EIS. The Applicant was among the 52 parties who presented detailed submissions (see document entitled Legal Comments on the Adequacy of the Environmental Impact Statement of the Lower Churchill Hydroelectric Project dated June 22, 2009 (Applicant’s Record, Exhibit 12, page 996, NR, Vol. 3, page 490).
(See Exhibit J to Bennett Affidavit (NR, Vol. 1, page 462)
[23] These submissions led the JRP to issue Information Requests [“IRs”] to Nalcor. Between May 1, 2009 and March 21, 2010, the JRP sent 166 IRs in five separate rounds. The process was meant to enable the JRP and the public to: (a) scrutinize the EIS; (b) make additional requests for information; and (c) comment on Nalcor’s IR responses.
(See Exhibits A-251- A-432, K, L, pages 498 and 513 to Bennett Affidavit (NR, Vol. 1 and 3)
[24] Nalcor implemented a planning framework for the Project called the “Gateway Process”. The process entails six sequential phases between opportunity evaluation and decommissioning. In essence, at each of the six phases, there is a decision gate with respect to the development or not of the asset. Either the activity is stopped pending additional information or it can move to the next sequential phase or it is abandoned.
[25] Further to an announcement by Premier Williams on October 25, 2010, regarding a possible change in the sequencing of the Project, Nalcor was asked to provide additional information with respect to the change in the sequencing and the corresponding potential impact and environmental effects. Responses IR#JRP.165 and IR#JRP.166 filed in January 2011 contain a total of 160 pages. The main conclusion was to the effect that there are no material changes to the predicted environmental effects resulting from re-sequencing the Project phases (see Exhibit A-549 to Bennett Affidavit (NR, Vol 11, page 2756). These responses make no reference to the Applicant or to any other Quebec based innus.
[26] The application for the Transmission Link was filed on January 29, 2009 and revised on September 15, 2009. It called for the construction and operation of an approximately 1,100 km long transmission line and associated infrastructure within Labrador and the Island of Newfoundland and finally favoured the Gros Morne and the selection of the Long Range Mountains crossing as the proposed transmission corridor (see Applicant’s Record, V. Duro Affidavit, Exhibit 10, Vol. 3, Page 804).
[27] The record reveals that Nalcor filed over 5,000 pages of additional documentation for consideration by the JRP and stakeholders by way of IR responses. Thirteen of the IRs touched upon the Applicant’s specific concerns with respect to: (a) Aboriginal consultation; (b) caribou, including the Red Wine Mountain and Lac Joseph herds; (c) monitoring and follow-up; and (d) waterfowl survey methodology.
(See Exhibits A-251, A-432, A-588, K, L, KK, LL to Bennett Affidavit (NR, Vol 1, 3 and 8)
[28] On two occasions, the JRP invited the public to comment on Nalcor’s IR responses. The Applicant filed detailed submissions on both occasions.
(See Exhibits K, M, N to Bennett Affidavit (NR, Vol. 3, pages 498 and 544 and Exhibits 13, 17 to Duro Affidavit (Applicant’s Record, Vol. 4 and 5)
[29] On January 14, 2011, the JRP determined that the EIS (including the additional information submitted by Nalcor) was sufficient to proceed to the Hearing.
(See Exhibit A-544 to Bennett Affidavit (NR, Vol. 1)
[30] On January 14, 2011, participants were informed that the Hearing would begin on March 3, 2011. The Final Public Hearing Procedures were released on February 16, 2011, after consideration of extensive input from the public, including the Applicant.
[31] The Hearing was conducted over 30 days between March 3 and April 15, 2011, in six different communities and in the Province of Quebec. There were general, community and topic-specific hearing sessions.
(See Exhibit A-1385 to Bennett Affidavit (NR, Vol. 12)
[32] The Applicant, through its representatives, made oral submissions during the community Hearing session in Sept-Îles, Quebec, on April 7, 2011, during which a video and materials were presented to the JRP. Simultaneous translation was provided (French and Innu-aimun).
(See Exhibits A-1220, A-1244, A-1280, A-1284 to Bennett Affidavit (NR, Vol. 1 and Exhibits 20-25, 28, 43 to Duro Affidavit (Applicants Record, Vol. 5, 6 and 9)
[33] After the conclusion of 30 days of hearings, the JRP declared the record closed.
The Report
[34] The 355 page JRP Report was released to the Governments and the public on August 23 and 25, 2011, respectively.
(See Applicant’s Record, Affidavit V. Duro, Exhibit 3, Vol. 1, page 221)
[35] As required by CEAA and the TOR, the Report contains: (a) a description of the EA process, including public hearings; (b) the rationale, conclusions and recommendations regarding the nature and significance of the potential environmental effects ; (c) recommendations concerning, amongst others, the mitigation measures relating to the environmental management of the Project, caribou, monitoring and follow-up programs; (d) a summary of issues identified and comments and recommendations received from Aboriginal persons/groups; and (e) a summary of the issues raised and comments and recommendations received from the public, Governments and interested parties.
The Decision and Response of the Federal Government
[36] Pursuant to the CEAA and the EPA, the Governments jointly issued their responses and the decisions on March 15, 2012.
(See Exhibits R, S and T to Bennett Affidavit, NR, Vol. 3 and V. Duro Affidavit, Applicant’s Record, Exhibits 1 and 3, Vol. I, pages 170 and 218)
[37] The Response describes the Federal involvement in the Generation Project, the EA process, and the key considerations contained in the JRP Report. It also sets out the conclusions of the Federal Government and the reasons for its conclusion that the significant adverse environmental effects of the Generation Project are justified by its benefits; it also describes the decisions required of TC and DFO under their respective Acts and the CEAA and responds to each recommendation of the JRP.
(See Exhibit R to Bennett Affidavit (NR, Vol. 1 and 3, Applicant’s Record, V. Duro Affidavit, Exhibit 1, Vol.1, page 170)
[38] The Decision determined that the implementation of mitigation measures is required for the Project to address, inter alia: (a) birds, fish and mammals and/or their habitat (the caribou); (b) current Aboriginal use of land and resources for traditional purposes; (c) socio-economic impacts; and (d) physical and/or cultural heritage. The Decision also required the implementation of a follow-up program to verify the accuracy of the EA and to determine the effectiveness of any measures taken to mitigate adverse environmental effects of the Project for the period extending from October 1, 2012 to October 1, 2037.
(See Exhibit S to Bennett Affidavit, NR. Vol. 3, and V. Duro Affidavit, Exhibit 2, Vol. 1, page 218)
III. Relevant legislation
[39] The applicable sections of the Canadian Environmental Assessment Act, SC 1992, c 37 and of The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11, are appended to this decision.
IV. The issues
[40] The Court has framed the issues raised by this application as follows:
1. Is the Applicant’s challenge of the Project scoping decision statute barred? If not was it scoped in accordance with section 15 of the CEAA?
2. Did the Government Respondents properly consider section 16 factors of the CEAA prior to issuing their Decision and Response pursuant to s 37 of the CEAA?
3. Was the Applicant properly consulted and accommodated in relation to the Project?
V. Standard of review and analysis of the first issue:
1. Is the Applicant’s challenge of the Project scoping decision statute barred? If not was it scoped in accordance with section 15 of the CEAA?
A. Standard of review
[41] Determining the scope of a project under section 15 of the CEAA is a discretionary exercise to be reviewed on the standard of reasonableness (see Prairie Acid Rain Coalition v Canada (Minister of Fisheries and Oceans) [Prairie Acid Rain Coalition], 2004 FC 1265 at para 42; Inverhuron & District Ratepayers Ass. v Canada (Minister of The Environment) [Inverhuron], 2001 FCA 203; Bow Valley Naturalists Society v Canada (Minister of Canadian Heritage) [Bow Valley], 2001 CanLII 22029 (FCA), [2001] 2 FC 461) at para 55; Pembina Institute for Appropriate Development v Canada (Minister of Fisheries and Oceans), 2005 FC 1123).
B. Analysis
[42] The Applicant challenges, albeit indirectly, the Minister of the Environment’s [the Minister] scoping decision, made pursuant to paragraph 15 (1)(b), to conduct separate EAs for the Project and the Transmission Link. The Applicant argues that this amounted to “project splitting”. Citing subsections 15(1) and 15(3) of the CEAA, the Applicant argues that the Minister unreasonably refused to exercise his discretion to enlarge the scope of the Project’s EA by not including the Transmission Link. The Applicant submits that the Transmission Link is a related construction that was likely to be carried out in relation to the Project and is now an essential element.
[43] According to the Applicant, an inevitable result of this failure to “scope in” the Transmission Link is that the true negative effects of the actual Project remain unknown. This, in turn, renders the responsible authorities’ determination (pursuant to paragraph 37(1)(a) of the CEAA) that the significant adverse environmental effects of the Project could be justified in the circumstances, unreasonable.
[44] The Respondents counter that the judicial review of the Minister’s scoping decision is statute barred by subsection 18.1(2) of the FCA and that the Applicant is attempting to indirectly challenge the decision via its arguments based on paragraph 37(1)(a) of the CEAA and that in any case, the decision to maintain the scope of the Project as proposed by Nalcor was reasonable.
[45] A scoping decision made under section 15 of the CEAA is unquestionably a decision made by a “federal board, commission or other tribunal” within the meaning of subsection 18.1 (2) of the FCA (see Prairie Acid Rain Coalition, Inverhuron and Bow Valley, above). As such, the Applicant had to commence its application for judicial review within 30 days after the time the decision was first communicated. The Court may, however, in its discretion, grant an extension of time to commence an application (see subsection 18.1 (2) FCA).
[46] As a preliminary issue, the Court finds it is necessary to address the pertinence of the decision in Tzeachten First Nation v Canada (Attorney General), 2007 FC 1131 [Tzeachten 1], to the case at hand. Applying the reasoning found in Krause v Canada, [1999] FCJ No 179, Justice Lemieux found that “no extension of time is required […] when the object of the litigation is to obtain relief in a case where the duty to consult and accommodate reserve and aboriginal interests is engaged” (Tzeachten 1, above, at para 27). The limit to file in subsection 18.1(2) FCA does not apply in such cases.
[47] However, the decision in Tzeachten 1 is distinguishable from the present case because it dealt with the aboriginal group’s right to have the Crown’s consultation process judicially reviewed despite failure to file within the prescribed delay. Such is not the case in the present instance because if the Court declaring judicial review of the scoping decisions statute barred will not impact the judicial review of the consultation process provided to the Applicant. Subsection 18.1 (2) continues to apply.
[48] The Project scoping decision was made by the Minister and communicated to the Applicant on January 8, 2009. It is important to note that the Applicant had been aware of the Project’s scope since December 2007 when the EIS Guidelines were released. As for the decision to conduct separate EAs for the Generation Project and the Transmission Link, Nalcor advised the Applicant of the scope in February 2009 and the decision was taken in November 2009. Furthermore, the decision was re-confirmed and communicated to the Applicant on multiple occasions afterwards, with the last relevant communication occurring on January 31, 2011. This last confirmation was made in response to a letter sent by the Applicant on December 16, 2010, conveying its concerns about the scoping decisions to the Agency, the Province and the JRP. Despite its concern, the Applicant only commenced its application for judicial review on April 16, 2012.
[49] In Harold Leighton et al v Her Majesty in Right of Canada, 2007 FC 553 at paras 33 and 34, Justice Lemieux summarized the principles that should guide a decision to grant an extension of time to commence a judicial review:
[33] To grant or refuse a request for an extension of time to launch a judicial review application is a matter of discretion which must be exercised on proper principles. Those principles are well known with the Federal Court of Appeal’s decision in Grewal v. Canada (Minister of Employment and Immigration), [1985] 2 F.C. 263, being the seminal case.
[34] From Grewal, above, and other decisions of the Federal Court of Appeal, the task at hand is as follows:
• A number of considerations or factors must be taken into account in the exercise of the discretion;
• These factors include: (1) a continuing intention to bring the application, (2) any prejudice to the parties opposite, (3) a reasonable explanation for the delay, (4) whether the application has merit i.e., discloses an arguable case (hereinafter the four-prong test) and (5) all other relevant factors particular to the case [emphasis mine], see James Richardson International Ltd. v. Canada [2006] FCA 180 at paragraphs 33 to 35;
• As explained in Jakutavicius v. Canada (Attorney General) [2004] FCA 289, these factors or consideration are not rules that fetter the discretionary power of the Court. Once the relevant consideration or factors are selected, sufficient weight must be given to each of those factors or considerations;
• The weight to be given to each of the factors or considerations will vary with the circumstance of each case (Stanfield v. Canada, 2005 FCA 107 (CanLII), 2005 FCA 107);
• The underlying consideration in an application to extend time is to ensure that justice is done between the parties. The usual consideration in the standard four-prong test of continuing intention, an arguable case, a reasonable explanation for the delay and prejudice to another party is a means of ensuring the fulfillment of the underlying consideration of ensuring that justice is done between the parties. An extension of time can be granted even if one of the standard criteria is not satisfied (Minister of Human Resources Development v. Hogervrost, 2007 FCA 41; and
• The factors in the test are not conjunctive (Grewal, above, at pages 11 and 13).
[50] While the Court acknowledges that the Applicant has an arguable case, it will not grant an extension in the present case for the following reasons. Firstly, the indirect challenge comes two years after the Transmission Link scoping decision was communicated to the Applicant and the Applicant has failed to request such an extension. Secondly, the Court is convinced that any delay attributable to a review of the scoping decision will result in a serious financial prejudice to the opposing parties (Nalcor and the Government Respondents) and to the public in general.
[51] The Applicant has not petitioned this Court for an extension of time to challenge the scoping decisions, nor has it offered any reasonable explanation for the two years that have passed before bringing its application forward on this issue. This is not surprising given that the Applicant is challenging the decisions indirectly through subsection 37(1) of the CEAA. The Court underlines the fact that the Applicant was represented by able counsel throughout the relevant time frame and should have challenged the scoping decisions at the first opportunity before even participating in the two EA processes that were based on them.
[52] Because the Applicant neglected to challenge the Minister’s scoping decisions, the EA processes moved forward. Studies were conducted, meetings were held and serious investments were made by the proponents to move the Project along. As the Respondents explain: “To change the scope of the two projects at this time would require at least one new EA process, the preparation of a new EIS, reconvening a JRP, scheduling new public hearings, and re-engaging hundreds of stakeholders, all at great cost, inconvenience and delay”.
• Was the Minister