Greenpeace Canada v. Canada (Attorney General)

Greenpeace Canada v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2014-05-14
Neutral citation
2014 FC 463
File numbers
T-1572-11, T-1723-12
Decision Content
Date: 20140514
Dockets:
T-1572-11
T-1723-12
Citation: 2014 FC 463
Ottawa, Ontario, May 14, 2014
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
GREENPEACE CANADA,
LAKE ONTARIO WATERKEEPER, NORTHWATCH AND CANADIAN ENVIRONMENTAL LAW ASSOCIATION
Applicants
and
ATTORNEY GENERAL OF CANADA,
MINISTER OF THE ENVIRONMENT,
MINISTER OF FISHERIES AND OCEANS,
MINISTER OF TRANSPORT,
CANADIAN NUCLEAR SAFETY COMMISSION
AND ONTARIO POWER GENERATION INC.
Respondents
AND BETWEEN:
GREENPEACE CANADA
AND CANADIAN ENVIRONMENTAL
LAW ASSOCIATION
Applicants
and
ATTORNEY GENERAL OF CANADA AND
ONTARIO POWER GENERATION INC.
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
TABLE OF CONTENTS
I. INTRODUCTION.. 5
II. BACKGROUND.. 5
III. DECISIONS UNDER REVIEW... 10
IV. ISSUES. 13
V. STANDARD OF REVIEW... 14
VI. STATUTORY PROVISIONS. 20
VII. ARGUMENT.. 28
A. Applicants. 28
EA Report - T-1572-11. 28
Failure to Comply with the CEAA.. 28
The PPE Approach. 30
Decommissioning and Waste Management 35
Procedural Errors. 37
Site Preparation License T-1723-12. 40
Legal Prerequisites. 41
Failure to Comply with Mandatory Requirements. 41
Procedural Fairness. 42
B. Respondents. 43
EA Report – T-1572-11. 43
Separate Scoping Decision – Collateral Attack. 44
There Was a Project to Assess. 45
The Bounding Approach. 46
Compliance with Section 16 of the Act 48
No Unlawful Delegation. 51
No Procedural Errors. 54
Site Preparation License T-1723-12. 55
Compliance with Statutory Scheme. 55
Procedural Fairness. 57
C. Applicant’s Reply Submissions. 58
EA Report T-1572-11. 58
No Collateral Attack. 58
VIII. ANALYSIS. 61
D. The Environmental Assessment – T-1572-11. 61
The Dispute. 61
The Law and Guiding Principles. 63
The Issues Raised. 71
No Project to Assess. 71
Improper Collateral Attack. 73
Scope of the Project 78
Scope of the factors to be considered. 82
Was there a Failure to Assess the Project in Accordance with the CEAA?. 93
What did the CEAA require?. 101
Evidence put forward by the Applicants. 118
Links to the issue of improper delegation. 124
Gaps in the bounding scenario regarding hazardous substance emissions and on-site 132
chemical inventories. 132
Consideration of spent nuclear fuel 149
Deferral of the analysis of a severe common cause accident 165
Relevant Case Law.. 172
West Vancouver. 172
Inter-Church Uranium Committee. 175
Express Pipelines. 178
Failure to Assess “Need” and “Alternatives” to the Project 182
Unlawful Delegation. 189
Procedural Issues. 193
Conclusions. 195
E. The Site Preparation License T-1723-12. 197
The Dispute. 197
Did the EA Comply with the CEAA?. 198
Did the CNSC Comply with the NSCA?. 198
Procedural Fairness. 202
The Motion to Strike. 204
Merits of the Procedural Fairness Issue. 207
IX. JUDGMENT.. 212
INTRODUCTION [1] This judgment relates to two applications for judicial review under s. 18.1 of the Federal Courts Act, RSC 1985, c F-7 [Federal Courts Act] in relation to the Darlington New Nuclear Power Plant Project (Project) proposed by Ontario Power Generation (OPG). The first application challenges the adequacy of the federal environmental assessment (EA) conducted by a joint review panel (JRP or Panel) established under a March 2009 agreement between the federal Minister of the Environment (Minister) and the Canadian Nuclear Safety Commission (CNSC) pursuant to s. 40 of the Canadian Environmental Assessment Act, SC 1992, c 37 (CEAA or the Act). Because the assessment was concluded on August 25, 2011, the governing statute is the CEAA, which has since been repealed and replaced. The second application challenges a Site Preparation Licence (Licence) that was issued by the CNSC to OPG on August 17, 2012 under the Nuclear Safety and Control Act, SC 1997, c 9 (NSCA), following the completion of the EA and the Government of Canada’s response to the Panel’s Environmental Assessment Report (EA Report).
BACKGROUND [2] In June 2006, the Ontario Minister of Energy directed OPG, which is wholly owned by the Province of Ontario, to begin the process of seeking federal approval for new nuclear power generation units at an existing site. This directive coincided with a Supply Mix Directive issued to the Ontario Power Authority, indicating that a combination of new and refurbished nuclear units would be needed to meet future base-load energy requirements in Ontario. The Government of Ontario later selected the existing Darlington nuclear site as the preferred site for the Project. In September 2006, OPG applied to the CNSC for a licence to prepare the Darlington site for the construction of a new nuclear power generation facility involving up to four new nuclear reactors. The Darlington site is located in Bowmanville, Ontario, on the north shore of Lake Ontario, in the Municipality of Clarington, and is the location of the existing Darlington Nuclear Generating Station (Darlington NGS).
[3] Under the Law List Regulations, SOR/94-636 (Law List Regulations), an environmental assessment was required before the Licence could be granted. The Project proposed by OPG – which includes the construction, operation, decommissioning and abandonment of the proposed reactors and the management of the associated conventional and radioactive waste – also required other federal approvals that would trigger a CEAA assessment under the Law List Regulations, including authorizations under s. 35(2) of the Fisheries Act, RSC 1985, c F-14 (Fisheries Act) and s. 5 of the Navigable Waters Protection Act, RSC 1985, c N-22 (NWPA) (now titled the Navigation Protection Act). The CNSC requested that the Minister refer the Project for review by a joint review panel, which the Minister did in March 2008. The Panel was “joint” in the sense that it was to conduct an environmental assessment of the Project under the CEAA, and was also to function as a CNSC panel for the purpose of reviewing the Licence application.
[4] In September 2008, the Minister and the CNSC published drafts of the Environmental Impact Statement Guidelines (EIS Guidelines) for the Project and the Joint Review Panel Agreement (Agreement), including the Panel’s Terms of Reference (Terms of Reference), for public comment. The EIS Guidelines provided direction to OPG on how to develop its Environmental Impact Statement (EIS) for the Panel’s consideration, and the Agreement outlined the framework for the establishment of the Panel and the conduct of the joint review. The final versions of these documents were published on March 12, 2009, after public comments were received and considered. Both documents stated that a range of designs were being considered and no decision had yet been made regarding reactor technology.
[5] On September 30, 2009, OPG filed its EIS, along with supporting documents and a revised Site Preparation Licence application. Since no specific nuclear reactor technology had been selected, OPG prepared its EIS based on what it called a “bounding approach” – also referred to as a “plant parameter envelope” (PPE) or “bounding scenario” approach – encompassing several possible reactor technologies. As described by OPG in its submissions to the Court, this approach involves identifying the salient design elements of the Project and, for each of those elements, applying the “limiting value” (the value with the greatest potential to result in an adverse environmental effect) based on the design options being considered. In theory, this results in a composite picture of the maximum expected environmental impact – the bounding scenario or PPE.
[6] Initially, three technology options were considered in developing the bounding scenario, referred to as the ACR-1000, US EPR, and AP1000 options. Later in the process, the Enhanced CANDU-6 (EC-6) reactor technology was added as an option, though it was not addressed in the EIS. OPG says the EC-6 option was added to the PPE model in July 2010 based on a letter from the CNSC to the Panel Chair. The letter explained that the PPE approach is meant to provide a generic “technology-neutral” EIS, and including the EC-6 technology in the Panel’s review would provide flexibility at later stages of the Project and minimize the likelihood that another EA would be required should the EC-6 technology be selected by OPG. The Panel requested additional information from OPG to facilitate its assessment of the EC-6 option. In October 2010, the Applicants objected to what they characterized as the late inclusion of the EC-6 design based on fairness and other grounds, but these objections were rejected by the Panel.
[7] The three member Panel was appointed on October 30, 2009. In November 2009, the Panel began its review of the sufficiency of the EIS. This included the consideration of comments and recommendations from the public, CNSC staff and other interested parties, including government agencies and departments, over the course of 11 months. These submissions included a letter from CNSC staff to the Panel secretariat dated November 2, 2009 stating that the EIS contained all of the information required by the EIS Guidelines and the regulations applicable to site preparation under the NSCA.
[8] The Panel made 284 requests to OPG for additional information related to the EIS, and 26 requests relating to the Licence application, based in part on the comments received. Technical briefing sessions open to the public were held at CNSC headquarters in December 2009 and June 2010. Comments on the sufficiency of the EIS were accepted up until October 8, 2010. The Panel concluded in December 2010 that the EIS and the supplementary responses from OPG contained sufficient information to enable the Panel to proceed to public hearings on the Project.
[9] These hearings were held over 17 days between March 21 and April 8, 2011. The Applicants participated as interveners during both the public hearings and the pre-hearing proceedings. On the final day of the hearings, the Panel released a revised procedure for written comments, permitting hearing participants (other than OPG) to make final written submissions by May 17, 2011, and OPG to make final written submissions by May 22, 2011. On June 3, 2011, the Panel gave notice that it had obtained and made public all of the information needed to prepare its report, and closed the record for the EA.
[10] On August 25, 2011, the Panel completed the EA and submitted the EA Report to the Minister. The EA Report concluded that the Project is not likely to cause significant adverse environmental effects, provided the mitigation measures proposed and the commitments made by OPG during the review, as well as the Panel’s 67 recommendations, are implemented.
[11] On September 23, 2011, the Applicants initiated the first of the judicial review applications under consideration here (T-1572-11), challenging the adequacy of the EA and the EA Report.
[12] Once an EA Report is submitted by a review panel, the responsible authorities prepare a Government Response, which is presented to the Governor in Council (Cabinet) for approval. “Responsible authorities” is a defined term referring in this case to federal departments or agencies that must make some decision or take some action in order for a project to move forward, and who are therefore responsible for ensuring the EA is conducted (see CEAA, ss. 2(1), 5(1)(d), 11(1)). In this case, the CNSC, the Department of Fisheries and Oceans (DFO) and Transport Canada are responsible authorities, and the Respondent Attorney General of Canada (AGC) indicates that the Department of Natural Resources and Health Canada were also involved in drafting the Government Response.
[13] The Government Response was issued on May 2, 2012, stating that the Government had concluded that the Project is not likely to cause significant adverse environmental effects. The Act requires responsible authorities to take a “course of action” that is consistent with the Cabinet-approved Government Response (see CEAA, s. 37(1.1)(c)). On May 8, 2012, the responsible authorities announced their “course of action decision” (or Final Decision) stating that the responsible authorities may exercise any power or perform any duty or function with respect to the Project because they are of the opinion that it is not likely to cause significant adverse environmental effects.
[14] On August 17, 2012, the Panel, acting as a panel of the CNSC for the purposes of the Licence application, issued a ten-year licence to OPG to undertake a range of site preparation activities in relation to the Project.
DECISIONS UNDER REVIEW [15] The EA Report, submitted by the Panel to the Minister on August 25, 2011, is 143 pages in length (plus appendices) and includes 67 recommendations directed to federal, provincial and municipal governmental authorities. The EA Report’s overall conclusion was that “the Project is not likely to cause significant adverse environmental effects, provided the mitigation measures proposed and commitments made by OPG during the review and the Panel’s recommendations are implemented”: EA Report at p. 143.
[16] With respect to the use of the PPE approach, the Panel made the following observations at page 45 of the Report:
The Panel accepts the use of a plant parameter envelope for environmental assessment purposes as an approach that allows the prediction of adverse environmental effects for a select group of reactor technologies. The Panel recognizes, however, that this is a departure from a more standard approach where the major components of a project are defined in advance of an environmental assessment.
Additionally, the Panel notes that aspects of the plant parameter envelope were based on preliminary design information. As such, there will be a need for ongoing verification of the conclusions reached on the significance of adverse environmental effects.
[17] The Panel stated that if the Project is to go forward, the selected reactor technology “must be demonstrated to conform to the plant parameter envelope and regulatory requirements, and must be consistent with the assumptions, conclusions and recommendations of the environmental assessment and the Government response to [the EA Report].” The Panel noted that this will need to be evaluated by the responsible authorities once a reactor technology is selected, and will be required to be demonstrated as part of the Application for a Licence to Construct: EA Report at p. 11. If the reactor technology selected is fundamentally different than those assessed, the Panel stated, “then this review does not apply and a new environmental assessment must be conducted”: EA Report at p. 143. This is reflected in Recommendation 1 of the EA Report, which reads:
The Panel understands that prior to construction, the Canadian Nuclear Safety Commission will determine whether this environmental assessment is applicable to the reactor technology selected by the Government of Ontario for the Project. Nevertheless, if the selected reactor technology is fundamentally different from the specific reactor technologies bounded by the plant parameter envelope, the Panel recommends that a new environmental assessment be conducted.
[18] The Licence, which is valid from August 17, 2012 to August 17, 2022, authorizes OPG to undertake a range of site preparation activities, including clearing and grubbing of vegetation, excavation and grading of the site, installation of services and utilities, construction of administrative and support buildings, and other activities. It is supported by a Record of Proceedings, Including Reasons for Decision, comprising over 50 pages (Reasons for the Licence Decision). Those Reasons describe the matters to be decided and the conclusions of the Panel (acting as the Commission) as follows:
9. In considering the application, the Commission was required to decide whether the site is suitable for the construction of a nuclear generating station, in accordance with the regulatory requirements of the Class I Nuclear Facilities Regulations and the expectations set forth in CNSC Regulatory Document RD-346. The Commission was also required to decide, pursuant to subsection 24(4) of the NSCA:
a) if OPG is qualified to carry on the activities that the licence would authorize; and
b) if, in carrying on those activities, OPG would make adequate provision for the protection of the environment, the health and safety of persons and the maintenance of national security and measures required to implement international obligations to which Canada has agreed.
[…]
13. Based on its consideration of the matter, as described in more detail in the following sections of this Record of Proceedings, the Commission concludes that OPG is qualified to carry on the activities that the licence will authorize. The Commission is of the opinion that OPG, in carrying on those activities, will make adequate provision for the protection of the environment, the health and safety of persons and the maintenance of national security and measures required to implement international obligations to which Canada has agreed…
ISSUES [19] The issues raised in these judicial review applications can be summarized as follows:
(a) Did the Panel fail to comply with the requirements of the CEAA in conducting the EA by:
i. Failing to conduct an environmental assessment of a “project” as defined in the Act;
ii. Failing to consider the “environmental effects” of the Project as required by s. 16 of the Act;
iii. Failing to assess the need for, and alternatives to, the Project as required by the Act and the Panel’s Terms of Reference;
iv. Failing to fulfill its information gathering, public consultation and reporting duties under s. 34 of the CEAA; or
v. Unlawfully delegating its duties under the Act?
(b) Did the Panel fail to comply with the requirements of the CEAA and the NSCA in issuing the Licence by:
i. Failing to ensure that an environmental assessment compliant with the CEAA was conducted prior to issuing the Licence; or
ii. Failing to comply with s. 24(4) of the NSCA by considering and granting the Licence in the absence of information specifically required by the relevant regulations?
(c) Did the Panel breach a duty of procedural fairness by preventing effective public participation in the joint review through its procedural rulings, or by relying on extraneous evidence in granting the Licence?
STANDARD OF REVIEW [20] The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is settled in a satisfactory manner by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless, or where the relevant precedents appear to be inconsistent with new developments in the common law principles of judicial review, must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis: Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 48.
[21] There is no dispute that issues of procedural fairness are reviewable on a standard of correctness: see Mission Institution v Khela, 2014 SCC 24 at para 79; Canadian Union of Public Employees (C.U.P.E.) v Ontario (Minister of Labour), 2003 SCC 29 at para 100; Sketchley v Canada (Attorney General), 2005 FCA 404 at para 53.
[22] The Applicants submit that failure to comply with a mandatory requirement of the CEAA is an error of law reviewable on the correctness standard, and that this standard applies to the question of whether the Panel in this case met its legal duties under the Act: MiningWatch Canada v Canada (Minister of Fisheries and Oceans), 2007 FC 955 at paras 135-37 [MiningWatch (FC)], rev’d 2008 FCA 209, rev’d 2010 SCC 2; Pembina Institute for Appropriate Development v Canada (Attorney General), 2008 FC 302 at paras 37, 41 [Pembina Institute]; Alberta Wilderness Assn v Cardinal River Coals Ltd, [1999] 3 FC 425 (TD) at paras 39-41 [Cardinal River Coals]; Friends of the West Country Assn v Canada (Minister of Fisheries and Oceans), [2000] 2 FC 263 (FCA) at para 25 [Friends of the West Country]; Prairie Acid Rain Coalition v Canada (Minister of Fisheries and Oceans), 2006 FCA 31 at paras 9-12; Environmental Resource Centre v Canada (Minister of the Environment), 2001 FCT 1423, [2001] FCJ No 1937 (TD) at paras 154-59 [Environmental Resource Centre]; Georgia Straight Alliance v Canada (Minister of Fisheries and Oceans) (sub nom Canada (Fisheries and Oceans) v David Suzuki Foundation), 2012 FCA 40 at paras 88-90, 96-106 [David Suzuki].
[23] The Respondents argue that, in substance, the Applicants are attacking the adequacy or “quality” of the evidence and the reasonableness of the conclusions based upon it, and the Court has cautioned against mis-characterizing such matters as issues of failing to comply with the requirements of the Act: Pembina Institute, above, at paras 38-40. They note that the Panel’s consideration of the evidence, including conclusions about its adequacy or the significance of environmental effects, are to be reviewed on a reasonableness standard: Pembina Institute, above, at para 37; Bow Valley Naturalists Society v Canada(Minister of Canadian Heritage), [2001] 2 FC 461 (FCA) at para 55 [Bow Valley]; Inverhuron & District Ratepayers’ Assn v Canada (Minister of the Environment), 2001 FCA 203 at paras 32-40 [Inverhuron (FCA)]; Alberta Wilderness Assn v Express Pipelines Ltd (1996), 137 DLR (4th) 177, [1996] FCJ No 1016 (FCA) at para 10 [Express Pipelines]. They argue that the same is true with respect to questions of whether the Panel properly considered the need for, and alternatives to, the Project: Grand Riverkeeper, Labrador Inc v Canada (Attorney General), 2012 FC 1520 at paras 27-40 [Grand Riverkeeper]. The Respondents point out that, while courts must ensure that the requirements of the CEAA are followed, they must defer to substantive determinations. A reviewing court is not to act as an “academy of science.” Provided the statutory steps are followed, it is not for judges to decide what projects should be authorized: Inverhuron (FCA), above, at para 36, citing Bow Valley, above.
[24] In addition, based on recent developments in the law on judicial review, the Respondents argue that, even in respect of many questions of law, the Panel’s findings are entitled to deference: Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2011 SCC 53 at para 24; Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 at paras 33-34 [Alberta Teachers]. Similarly, they note that this Court has established in the context of a licence renewal application that the CNSC’s interpretation and application of the NSCA is to be reviewed on a standard of reasonableness: Fond du Lac Denesuline First Nation v Canada (Attorney General), 2010 FC 948 at para 42, aff’d 2012 FCA 73 [Fond du Lac].
[25] It is true that prior to Dunsmuir, above, this Court and the Court of Appeal consistently applied a standard of correctness when reviewing a review panel or other administrative decision-maker’s interpretation of the CEAA and their duties under that Act (Cardinal River Coals, above; Friends of the West Country, above; Bow Valley, above, at para 55; Environmental Resource Centre, above, at paras 138, 154; Pembina Institute, above, at paras 37, 41), and applied a standard or reasonableness when reviewing a panel’s weighing of the evidence and substantive conclusions based on the evidence, such as whether a project is likely to cause significant adverse environmental effects (Bow Valley, above, at para 55; Inverhuron (FCA), above, at paras 39-40; Pembina Institute, above, at para 37). Thus, for example, interpreting the duty to consider the factors set out in s. 16 (Environmental Resource Centre, above, at paras 138, 152-154) and the statutory information gathering and reporting duties of a review panel set out in ss. 34(a) and (c) (Cardinal River Coals, above, at para 26) were seen as questions of law reviewable on a standard of correctness.
[26] In practice, it sometimes proved difficult to discern the difference between questions engaging a panel or decision-maker’s interpretation of their duties under the CEAA on the one hand, and questions of the sufficiency or quality of the evidence before the decision-maker on the other (see Cardinal River Coals, above, at para 24; Pembina Institute, above, at para 39; Express Pipelines, above, at para 10). This is not surprising, since fulfilling a duty to “consider,” to obtain “the information required,” or to prepare a report setting out one’s “rationale, conclusions and recommendations” is always a matter of degree; one could always go further in considering factors, gathering information, or setting out the rationale for one’s conclusions.
[27] The post-Dunsmuir jurisprudence tends to reflect an appreciation of this fact. I do not doubt that there is an element of statutory interpretation involved in determining how far to go in gathering information, considering a particular factor, or reporting on one’s rationale, conclusions and recommendations. But this is also a matter of judgment based on the facts and circumstances of each particular case, and is a question upon which a review panel can be expected to bring its experience and expertise to bear: see Grand Riverkeeper, above, at paras 35-40; Conseil des Innus de Ekuanitshit v Canada (Attorney General), 2013 FC 418 at paras 69-71 [Conseil des Innus de Ekuanitshit]; Canadian Transit Co v Canada (Minister of Transport), 2011 FC 515 at paras 83-86, aff’d 2012 FCA 70 [Canadian Transit]. This is in keeping with the now firmly established principle that an administrative decision-maker interpreting its home statute or a closely related statute is entitled to deference: see McLean v British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 SCR 895 at paras 21-22 [McLean]; Alberta Teachers, above, at para. 34; Dunsmuir, above, at para 54. The Federal Court of Appeal has recently confirmed that the principle from David Suzuki, above, holding that this presumption of deference does not apply in the same manner to non-adjudicative decision-makers, has been superseded by later Supreme Court jurisprudence: see Kandola v Canada (Minister of Citizenship and Immigration), 2014 FCA 85 at paras 30-42 (per Noel JA, Webb JA concurring) and para 86 (per Mainville JA).
[28] It may be that questions of law could arise under the CEAA or its successor legislation in relation to which, based on a contextual analysis, the presumption of reasonableness review would be rebutted and a standard of correctness would apply: see McLean, above, at para 22; Rogers Communications Inc v Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 SCR 283, at para. 16; Dunsmuir, above, at paras 58-61. However, I do not think any such questions arise here. While there is an element of statutory interpretation involved in answering issues a. i. through a. v, each is also a question of mixed fact and law that engages the expertise and judgment of the Panel. As such, in my view, each of these issues is reviewable on a standard of reasonableness.
[29] Similarly, as I found in Fond du Lac, above, at para 42, “reasonableness is the appropriate standard upon which to review the [CNSC’s] interpretation and application of the [NSCA]” in the course of its licensing decisions. As such, a standard of reasonableness applies in reviewing the Panel’s (functioning as the Commission) decision to issue the Site Preparation Licence in this case, including issues b. i. and b. ii. above.
[30] For clarity, I would note that because the CEAA sets out specific duties and responsibilities for a review panel, a reviewing court must go beyond assessing whether a panel came to a reasonable conclusion. The Court must have regard for the duties set out in the Act, and ensure that the panel has complied with them. However, in doing so, a degree of deference is owed to the panel’s judgment in terms of how to fulfill those responsibilities in a given case. They are duties that must be interpreted and carried out reasonably in the circumstances: see Grand Riverkeeper, above, at para 62.
[31] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at para 47, and Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59 [Khosa]. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
STATUTORY PROVISIONS [32] The following provisions of the CEAA are applicable in these proceedings:
Purposes
4. (1) The purposes of this Act are
(a) to ensure that projects are considered in a careful and precautionary manner before federal authorities take action in connection with them, in order to ensure that such projects do not cause significant adverse environmental effects;
(b) to encourage responsible authorities to take actions that promote sustainable development and thereby achieve or maintain a healthy environment and a healthy economy;
[…]
(d) to ensure that there be opportunities for timely and meaningful public participation throughout the environmental assessment process.
[…]
Duties of the Government of Canada
(2) In the administration of this Act, the Government of Canada, the Minister, the Agency and all bodies subject to the provisions of this Act, including federal authorities and responsible authorities, shall exercise their powers in a manner that protects the environment and human health and applies the precautionary principle.
[…]
Factors to be considered
16. (1) Every screening or comprehensive study of a project and every mediation or assessment by a review panel shall include a consideration of the following factors:
(a) the environmental effects of the project, including the environmental effects of malfunctions or accidents that may occur in connection with the project and any cumulative environmental effects that are likely to result from the project in combination with other projects or activities that have been or will be carried out;
(b) the significance of the effects referred to in paragraph (a);
(c) comments from the public that are received in accordance with this Act and the regulations;
(d) measures that are technically and economically feasible and that would mitigate any significant adverse environmental effects of the project; and
(e) any other matter relevant to the screening, comprehensive study, mediation or assessment by a review panel, such as the need for the project and alternatives to the project, that the responsible authority or, except in the case of a screening, the Minister after consulting with the responsible authority, may require to be considered.
Additional factors
(2) In addition to the factors set out in subsection (1), every comprehensive study of a project and every mediation or assessment by a review panel shall include a consideration of the following factors:
(a) the purpose of the project;
(b) alternative means of carrying out the project that are technically and economically feasible and the environmental effects of any such alternative means;
(c) the need for, and the requirements of, any follow-up program in respect of the project; and
(d) the capacity of renewable resources that are likely to be significantly affected by the project to meet the needs of the present and those of the future.
Determination of factors
(3) The scope of the factors to be taken into consideration pursuant to paragraphs (1)(a), (b) and (d) and (2)(b), (c) and (d) shall be determined
(a) by the responsible authority; or
(b) where a project is referred to a mediator or a review panel, by the Minister, after consulting the responsible authority, when fixing the terms of reference of the mediation or review panel.
[…]
Assessment by review panel
34. A review panel shall, in accordance with any regulations made for that purpose and with its term of reference,
(a) ensure that the information required for an assessment by a review panel is obtained and made available to the public;
(b) hold hearings in a manner that offers the public an opportunity to participate in the assessment;
(c) prepare a report setting out
(i) the rationale, conclusions and recommendations of the panel relating to the environmental assessment of the project, including any mitigation measures and follow-up program, and
(ii) a summary of any comments received from the public; and
(d) submit the report to the Minister and the responsible authority.
Objet
4. (1) La présente loi a pour objet :
a) de veiller à ce que les projets soient étudiés avec soin et prudence avant que les autorités fédérales prennent des mesures à leur égard, afin qu’ils n’entraînent pas d’effets environnementaux négatifs importants;
b) d’inciter ces autorités à favoriser un développement durable propice à la salubrité de l’environnement et à la santé de l’économie;
[…]
d) de veiller à ce que le public ait la possibilité de participer de façon significative et en temps opportun au processus de l’évaluation environnementale.
[…]
Mission du gouvernement du Canada
(2) Pour l’application de la présente loi, le gouvernement du Canada, le ministre, l’Agence et les organismes assujettis aux dispositions de celle-ci, y compris les autorités fédérales et les autorités responsables, doivent exercer leurs pouvoirs de manière à protéger l’environnement et la santé humaine et à appliquer le principe de la prudence.
[…]
Éléments à examiner
16. (1) L’examen préalable, l’étude approfondie, la médiation ou l’examen par une commission d’un projet portent notamment sur les éléments suivants :
a) les effets environnementaux du projet, y compris ceux causés par les accidents ou défaillances pouvant en résulter, et les effets cumulatifs que sa réalisation, combinée à l’existence d’autres ouvrages ou à la réalisation d’autres projets ou activités, est susceptible de causer à l’environnement;
b) l’importance des effets visés à l’alinéa a);
c) les observations du public à cet égard, reçues conformément à la présente loi et aux règlements;
d) les mesures d’atténuation réalisables, sur les plans technique et économique, des effets environnementaux importants du projet;
e) tout autre élément utile à l’examen préalable, à l’étude approfondie, à la médiation ou à l’examen par une commission, notamment la nécessité du projet et ses solutions de rechange, — dont l’autorité responsable ou, sauf dans le cas d’un examen préalable, le ministre, après consultation de celle-ci, peut exiger la prise en compte.
Éléments supplémentaires
(2) L’étude approfondie d’un projet et l’évaluation environnementale qui fait l’objet d’une médiation ou d’un examen par une commission portent également sur les éléments suivants :
a) les raisons d’être du projet;
b) les solutions de rechange réalisables sur les plans technique et économique, et leurs effets environnementaux;
c) la nécessité d’un programme de suivi du projet, ainsi que ses modalités;
d) la capacité des ressources renouvelables, risquant d’être touchées de façon importante par le projet, de répondre aux besoins du présent et à ceux des générations futures.
Obligations
(3) L’évaluation de la portée des éléments visés aux alinéas (1)a), b) et d) et (2)b), c) et d) incombe :
a) à l’autorité responsable;
b) au ministre, après consultation de l’autorité responsable, lors de la détermination du mandat du médiateur ou de la commission d’examen.
[…]
Commission d’évaluation environnementale
34. La commission, conformément à son mandat et aux règlements pris à cette fin :
a) veille à l’obtention des renseignements nécessaires à l’évaluation environnementale d’un projet et veille à ce que le public y ait accès;
b) tient des audiences de façon à donner au public la possibilité de participer à l’évaluation environnementale du projet;
c) établit un rapport assorti de sa justification, de ses conclusions et recommandations relativement à l’évaluation
environnementale du projet, notamment aux mesures d’atténuation et au programme de suivi, et énonçant, sous la forme d’un résumé, les observations reçues du public;
d) présente son rapport au ministre et à l’autorité responsable.
[33] The following provisions of the NSCA are applicable in these proceedings:
Licences
24. (1) The Commission may establish classes of licences authorizing the licensee to carry on any activity described in any of paragraphs 26(a) to (f) that is specified in the licence for the period that is specified in the licence.
[…]
Conditions for issuance, etc.
(4) No licence shall be issued, renewed, amended or replaced — and no authorization to transfer one given — unless, in the opinion of the Commission, the applicant or, in the case of an application for an authorization to transfer the licence, the transferee
(a) is qualified to carry on the activity that the licence will authorize the licensee to carry on; and
(b) will, in carrying on that activity, make adequate provision for the protection of the environment, the health and safety of persons and the maintenance of national security and measures required to implement international obligations to which Canada has agreed.
[…]
Catégories
24. (1) La Commission peut établir plusieurs catégories de licences et de permis; chaque licence ou permis autorise le titulaire à exercer celles des activités décrites aux alinéas 26a) à f) que la licence ou le permis mentionne, pendant la durée qui y est également mentionnée.
[…]
Conditions préalables à la délivrance
(4) La Commission ne délivre, ne renouvelle, ne modifie ou ne remplace une licence ou un permis ou n’en autorise le transfert que si elle est d’avis que l’auteur de la demande ou, s’il s’agit d’une demande d’autorisation de transfert, le cessionnaire, à la fois :
a) est compétent pour exercer les activités visées par la licence ou le permis;
b) prendra, dans le cadre de ces activités, les mesures voulues pour préserver la santé et la sécurité des personnes, pour protéger l’environnement, pour maintenir la sécurité nationale et pour respecter les obligations internationales que le Canada a assumées.
[…]
[34] The following provisions of the Class I Nuclear Facilities Regulations, SOR/2000-204 (Regulations) are applicable in these proceedings:
General Requirements
3. An application for a licence in respect of a Class I nuclear facility, other than a licence to abandon, shall contain the following information in addition to the information required by section 3 of the General Nuclear Safety and Control Regulations:
(a) a description of the site of the activity to be licensed, including the location of any exclusion zone and any structures within that zone;
(b) plans showing the location, perimeter, areas, structures and systems of the nuclear facility;
(c) evidence that the applicant is the owner of the site or has authority from the owner of the site to carry on the activity to be licensed;
(d) the proposed quality assurance program for the activity to be licensed;
(e) the name, form, characteristics and quantity of any hazardous substances that may be on the site while the activity to be licensed is carried on;
(f) the proposed worker health and safety policies and procedures;
(g) the proposed environmental protection policies and proc