MiningWatch Canada v. Canada (Fisheries and Oceans)

MiningWatch Canada v. Canada (Fisheries and Oceans)
Collection
Supreme Court Judgments
Date
2010-01-21
Neutral citation
2010 SCC 2
Report
[2010] 1 SCR 6
Case number
32797
Judges
Binnie, William Ian Corneil; LeBel, Louis; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall; Cromwell, Thomas Albert
On appeal from
Federal Court of Appeal
Subjects
Administrative law
Environmental law
Notes
SCC Case Information: 32797
Decision Content
SUPREME COURT OF CANADA
Citation: MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6
Date: 20100121
Docket: 32797
Between:
MiningWatch Canada
Appellant
and
Minister of Fisheries and Oceans,
Minister of Natural Resources and
Attorney General of Canada
Respondents
And Between:
MiningWatch Canada
Appellant
and
Red Chris Development Company Ltd. and
BCMetals Corporation
Respondents
‑ and ‑
Mining Association of British Columbia, Association for
Mineral Exploration British Columbia, Canadian
Environmental Law Association, West Coast Environmental
Law Association, Sierra Club of Canada, Quebec
Environmental Law Centre, Friends of the Earth Canada and
Interamerican Association for Environmental Defense
Interveners
Coram: Binnie, LeBel, Fish, Abella, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 53)
Rothstein J. (Binnie, LeBel, Fish, Abella, Charron and Cromwell JJ. concurring)
______________________________
MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6
MiningWatch Canada Appellant
v.
Minister of Fisheries and Oceans,
Minister of Natural Resources and
Attorney General of Canada Respondents
- and -
MiningWatch Canada Appellant
v.
Red Chris Development Company Ltd. and
BCMetals Corporation Respondents
and
Mining Association of British Columbia, Association for
Mineral Exploration British Columbia, Canadian
Environmental Law Association, West Coast Environmental
Law Association, Sierra Club of Canada, Quebec
Environmental Law Centre, Friends of the Earth Canada and
Interamerican Association for Environmental Defense Interveners
Indexed as: MiningWatch Canada v. Canada (Fisheries and Oceans)
2010 SCC 2
File No.: 32797.
2009: October 16; 2010: January 21.
Present: Binnie, LeBel, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the federal court of appeal
Environmental law — Federal environmental assessment process — Comprehensive study — Scope of project — Project as proposed by mining company requiring comprehensive environmental study — Responsible authority excluding certain aspects from scope of project — Comprehensive study no longer necessary and assessment proceeding by way of screening — Whether environmental assessment should have proceeded by way of screening or comprehensive study — Whether federal environmental assessment track is determined by project as proposed by proponent or by discretionary scoping decision of responsible authority — Meaning of the word “project” — Canadian Environmental Assessment Act, S.C. 1992, c. 37, ss. 15 , 21 .
Administrative law — Judicial review — Remedy — Federal environmental assessment process — Project as proposed by mining company requiring comprehensive environmental study — Responsible authority excluding certain aspects from scope of project — Comprehensive study no longer necessary and assessment proceeding by way of screening — Public interest litigant filing application for judicial review — Substantive decisions made by responsible authority not challenged — Judicial review brought as test case to determine federal government’s obligations under s. 21 of Canadian Environmental Assessment Act — Federal Court setting aside decision to proceed by way of screening, quashing decision to issue permits and approvals to proceed with the project and prohibiting issuance of such permits and approvals until completion of comprehensive study — Whether Federal Court granted broader relief than was appropriate — Federal Courts Act, R.S.C. 1985, c. F‑7, s. 18.1(3) .
In order to develop a copper and gold open pit mining and milling operation in British Columbia, a mining company submitted a project description to the BC Environmental Assessment Office. Public comment was sought and the Office subsequently determined that the project was not likely to cause significant adverse, environmental, heritage, social, economic or health effects and issued a provincial environmental assessment certificate. The company also submitted to the federal Department of Fisheries and Oceans applications for dams required to create a tailings impoundment area. Initially, the Department stated that a comprehensive study was required because the project fell within the provisions of the Comprehensive Study List Regulations (“CSL”) promulgated under the Canadian Environmental Assessment Act (“CEAA ”). It subsequently scoped the project as to exclude the mine and mill and, given this, concluded that a comprehensive study was no longer necessary and that the assessment would proceed by way of screening. Additional public comment was not sought and the screening instead relied on information collected through the cooperative federal/provincial environmental assessment process. The federal screening report concluded that the project was not likely to cause significant adverse environmental effects and the responsible authority made the decision to allow the project to proceed. MiningWatch filed an application for judicial review of the decision to conduct a screening rather than a comprehensive study. The Federal Court allowed the application, concluding that the responsible authority had breached its duty under the CEAA by scoping the environmental assessment so that it only required a screening. The court quashed the decision to issue permits and approvals and prohibited further action by the responsible authority until it had conducted public consultation and completed a comprehensive study pursuant to s. 21 of the CEAA . The Federal Court of Appeal set aside the decision.
Held: The appeal should be allowed.
The CEAA and regulations require that the environmental assessment track be determined according to the project as proposed; it is generally not open to a responsible authority to change that level. An interpretation which provides that the word “project” in s. 21 of the CEAA means “project as proposed” by the proponent, rather than “project as scoped” by the responsible authority, is consistent with the statutory definition of that word in s. 2 of the CEAA , the language of the relevant regulations, and with Parliament’s intent as found in the respective roles of the responsible authority and the Minister in conducting environmental assessments under the CEAA . Where, as here, a project as proposed is listed in the CSL, the requirements in s. 21 are mandatory.
Tracking and scoping are distinct steps in the CEAA process. While the responsible authority does not have the discretion to determine the assessment track, once the appropriate track is determined, it has the discretion to determine the scope of the project for the purposes of assessment under s. 15(1) (a) of the CEAA . In the event that the project is referred to a mediator or a review panel under s. 21.1(1) (b), the scope of the project is determined by the Minister after consulting with the responsible authority pursuant to s. 15(1) (b). The presumed scope of the project to be assessed is the project as proposed by the proponent, but, as an exception to this general proposition, the responsible authority or Minister may enlarge the scope in the circumstances set out in s. 15(2) or (3) . The responsible authority or Minister cannot reduce the scope of the project to less than what is proposed by the proponent. For a project subject to a comprehensive study, the responsible authority can, and should, minimize duplication by using the coordination mechanisms provided for in the CEAA . In particular, federal and provincial governments can adopt mutually agreeable terms for coordinating environmental assessments.
In the present case, the federal environmental assessment should have been conducted for the project as proposed by the proponent. Since the proposed project was described in the CSL, the requirements of s. 21 applied. The responsible authority was free to use any and all federal‑provincial coordination tools available, but it was still required to comply with the provisions of the CEAA pertaining to comprehensive studies. By conducting a screening, the responsible authority acted without statutory authority.
In exercising his discretion to grant the relief he did, the trial judge did not take account of a number of relevant and significant considerations and granted broader relief than was appropriate. MiningWatch has no proprietary or pecuniary interest in the outcome of the proceedings and did not participate in the environmental assessment conducted by the provincial authority. No evidence of dissatisfaction with the environmental assessments conducted by the BC Environmental Assessment Office or the responsible authority and no evidence of dissatisfaction with the assessment process from anyone else was brought forward. MiningWatch has brought this judicial review as a test case of the federal government’s obligations under s. 21 . They made a strategic decision not to challenge the substantive scoping decision. When all the relevant considerations are taken into account, the appropriate relief is to allow the application for judicial review and declare that the responsible authority erred in failing to conduct a comprehensive study. No further relief is warranted. The focus of MiningWatch’s interest as a public interest litigant is the legal point to which the declaration will respond and there is no justification in requiring the proponent of the project to repeat the environmental assessment process when there was no challenge to the substantive decisions made by the responsible authority.
Cases Cited
Referred to: Friends of the West Country Assn. v. Canada (Minister of Fisheries and Oceans), [2000] 2 F.C. 263; Prairie Acid Rain Coalition v. Canada (Minister of Fisheries and Oceans), 2006 FCA 31, [2006] 3 F.C.R. 610, aff’g 2004 FC 1265, 257 F.T.R. 212; Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3; Schreiber v. Canada (Attorney General), 2002 SCC 62, [2002] 3 S.C.R. 269; Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385; R. v. Campbell, [1999] 1 S.C.R. 565; Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), 2004 SCC 54, [2004] 3 S.C.R. 152; Reza v. Canada, [1994] 2 S.C.R. 394; Harelkin v. University of Regina, [1979] 2 S.C.R. 561; Immeubles Port Louis Ltée v. Lafontaine (Village), [1991] 1 S.C.R. 326; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339.
Statutes and Regulations Cited
Canadian Environmental Assessment Act, S.C. 1992, c. 37 , Preamble, ss. 1 to 60, 2 “project”, “responsible authority”, 5(1)(d), (2), 7(1), 12(4), 15, 16, 18, 21, 21.1, 22, 23, 24, 37, 58(1)(c), (d), (i), (1.1), 71, 72, 74, 76, 77.
Comprehensive Study List Regulations, SOR/94‑638, Preamble, s. 3, Sch., s. 16.
Exclusion List Regulations, 2007, SOR/2007‑108, s. 2, Sch. 1, s. 1.
Explosives Act, R.S.C. 1985, c. E‑17 .
Federal Courts Act, R.S.C. 1985, c. F‑7, s. 18.1(3) .
Interpretation Act, R.S.C. 1985, c. I‑21, s. 15(2) .
Regulations Respecting the Coordination by Federal Authorities of Environmental Assessment Procedures and Requirements, SOR/97‑181.
Regulatory Impact Analysis Statement, SOR/94‑636.
Authors Cited
Brown, Donald J. M., and John M. Evans, with the assistance of Christine E. Deacon. Judicial Review of Administrative Action in Canada. Toronto: Canvasback, 1998 (loose‑leaf updated September 2009).
Hobby, Beverly, et al. Canadian Environmental Assessment Act : An Annotated Guide. Aurora, Ont.: Canada Law Book, 1997 (loose-leaf updated 2008, release 9).
Multidictionnaire de la langue française, 5e éd. Montréal: Québec Amérique, 2009, “projet”.
Sullivan, Ruth. Sullivan on the Construction of Statutes, 5th ed. Markham, Ont.: LexisNexis, 2008.
Wade, Sir William, and Christopher Forsyth. Administrative Law, 10th ed. by Christopher Forsyth. Oxford: Oxford University Press, 2009.
APPEAL from a judgment of the Federal Court of Appeal (Desjardins, Sexton and Evans JJ.A.), 2008 FCA 209, [2009] 2 F.C.R. 21, 379 N.R. 133, 36 C.E.L.R. (3d) 159, [2008] F.C.J. No. 945 (QL), 2008 CarswellNat 1699, setting aside a decision of Martineau J., 2007 FC 955, [2008] 3 F.C.R. 84, 33 C.E.L.R. (3d) 1, 318 F.T.R. 160, [2007] F.C.J. No. 1249 (QL), 2007 CarswellNat 3169. Appeal allowed.
Gregory J. McDade, Q.C., and Lara Tessaro, for the appellant.
Kirk Lambrecht, Q.C., and Michele E. Annich, for the respondents the Minister of Fisheries and Oceans, the Minister of Natural Resources and the Attorney General of Canada.
Brad Armstrong, Q.C., Diana Valiela and Heather M. Cane, for the respondents the Red Chris Development Company Ltd. and the BCMetals Corporation.
Gary A. Letcher and Laura M. Gill, for the interveners the Mining Association of British Columbia and the Association for Mineral Exploration British Columbia.
Richard D. Lindgren and Kaitlyn Mitchell, for the interveners the Canadian Environmental Law Association, the West Coast Environmental Law Association, the Sierra Club of Canada, the Quebec Environmental Law Centre, Friends of the Earth Canada and the Interamerican Association for Environmental Defense.
The judgment of the Court was delivered by
Rothstein J. —
1. Introduction
[1] The Canadian Environmental Assessment Act, S.C. 1992, c. 37 (“CEAA ” or “Act ”), is a detailed set of procedures that federal authorities must follow before projects that may adversely affect the environment are permitted to proceed. The Act and its regulations provide for different levels of intensity with which environmental assessments are to be performed depending upon the nature of the project under scrutiny. In practice, the intensity with which an environmental assessment should be conducted determines the “track” on which the assessment proceeds, whether by screening, comprehensive study, mediation or review panel.
[2] The issue in this appeal is whether the environmental assessment track is determined by the project as proposed by a proponent or by the discretionary scoping decision of the federal authority. In my opinion, the Act and regulations require that the environmental assessment track be determined according to the project as proposed; it is generally not open to a federal authority to change that level.
2. Facts
[3] Red Chris Development Company Ltd. and BCMetals Corporation (“Red Chris”) seek to develop a copper and gold open pit mining and milling operation in northwestern British Columbia. The appellant (MiningWatch) is a non‑profit society interested in the environmental, social, economic, health and cultural effects of mining and in particular its effects on indigenous people.
A. The Provincial Assessment Process
[4] On October 27, 2003, Red Chris submitted a project description to the BC Environmental Assessment Office (“BCEAO”). The BCEAO issued an order stating that the project would require an environmental assessment certificate before proceeding. The BC assessment proceeded smoothly. Red Chris prepared terms of reference covering all aspects of the project and made them available for comment by a working group (which included provincial and federal agencies, and the local First Nations groups). Red Chris also sought public comment on the project through several open house meetings. Once Red Chris submitted its application, the BCEAO posted the application online for public comment. Members of the public submitted several comments in response to the proponent’s application. On July 22, 2005, the BCEAO released its environmental assessment, concluding that the project “is not likely to cause significant adverse environmental, heritage, social, economic, or health effects”. On August 24, 2005, the province issued an assessment certificate.
B. The Federal Assessment Process
[5] On or about May 3, 2004, Red Chris triggered the federal environmental assessment process under ss. 5(1) (d) and 5(2) of the CEAA by submitting to the Department of Fisheries and Oceans (“DFO”) applications for dams required to create a tailings impoundment area (an area in a small valley to be used for the permanent storage of mining effluent). DFO concluded that a federal environmental assessment would be required. On or about May 21, 2004, a “Notice of Commencement of an environmental assessment” was posted on the Canadian Environmental Assessment Registry website stating that DFO, as a “responsible authority” (“RA”), would conduct a comprehensive study of the project and described the project as an
OPEN PIT MINE WITH ASSOCIATED INFRASTRUCTURE INCLUDING TAILINGS IMPOUNDMENT AREA, ACCESS ROADS, WATER INTAKE, TRANSMISSION LINES AND ACCESSORY BUILDINGS (E.G. MAINTENANCE, CAMPSITE) The scope of project will be added when available.
In a letter from DFO to other federal departments, DFO stated that a comprehensive study was required because the project’s proposed ore production was great enough that it fell within the provisions of the Comprehensive Study List Regulations, SOR/94-638 (“CSL”), promulgated under the CEAA .
[6] On June 2, 2004, Natural Resources Canada (“NRCan”) responded to this letter and announced that it was also an RA in addition to DFO because Red Chris required an approval under the Explosives Act, R.S.C. 1985, c. E-17 . DFO and NRCan prepared to conduct a comprehensive study until December 9, 2004, when DFO wrote a letter to the Canadian Environmental Assessment Agency advising that it had scoped the project such that it excluded the mine and the mill. DFO later finalized the scope of the project as only including the tailings impoundment area, the water diversion system with ancillary facilities and the explosives storage and/or manufacturing facility. As a result, DFO determined that, as the mine and mill were no longer included in the project as scoped for environmental assessment, a comprehensive study was not necessary and the assessment would proceed by way of screening. On December 14, 2004, the online notice of commencement was retroactively amended to indicate that the project would be subject to a screening rather than a comprehensive study.
[7] On or about April 19, 2006, the federal screening report was released. The report stated that it was “based on information collected through the cooperative federal/provincial EA [environmental assessment] process”. The RAs did not seek additional public comment, relying instead on the BC environmental assessment and the public notice and responses under it. The report concluded that the project is not likely to cause significant adverse environmental effects. On May 2, 2006, the RAs made their decision to allow the project to proceed. A few days after this decision, the Screening Report was posted on the Canadian Environmental Assessment Registry website.
C. Application for Judicial Review
[8] On June 9, 2006, MiningWatch Canada filed an application in the Federal Court for judicial review of the decision to conduct a screening rather than a comprehensive study. It alleged a breach of the duty under the CEAA to conduct a comprehensive study and to consult the public on the scope of the assessment.
3. Judicial History
A. Federal Court, 2007 FC 955, [2008] 3 F.C.R. 84
[9] Martineau J. allowed the application for judicial review. He concluded that DFO had been correct in first determining that the project required a comprehensive study. He found that the language of s. 21 of the CEAA , as amended in 2003, made public consultation mandatory for comprehensive studies and that DFO and NRCan had breached their duty under the CEAA by scoping the environmental assessment to include only those aspects of the project that fell under federal jurisdiction.
[10] Martineau J. quashed the decision of DFO to issue permits and approvals to Red Chris and prohibited further action by DFO and NRCan until they had conducted public consultation under s. 21 , completed a comprehensive study and complied with all other prerequisites to permit the project to be carried out.
B. Federal Court of Appeal, 2008 FCA 209, [2009] 2 F.C.R. 21
[11] Desjardins J.A., writing for a unanimous Federal Court of Appeal, allowed the appeal. The Court of Appeal found that “project” for federal environmental assessment purposes means “project as scoped” by a federal RA. Accordingly, a comprehensive study and public consultation are only mandatory where a project as scoped by the RA is listed in the CSL. Desjardins J.A. relied on the Federal Court of Appeal’s earlier decisions in Friends of the West Country Assn. v. Canada (Minister of Fisheries and Oceans), [2000] 2 F.C. 263 (“Sunpine”), and Prairie Acid Rain Coalition v. Canada (Minister of Fisheries and Oceans), 2006 FCA 31, [2006] 3 F.C.R. 610 (“TrueNorth”), and its conclusion that “project” in s. 5(1) (d) and s. 15(3) of the Act means “project as scoped”. Despite a recent amendment to s. 21 , Desjardins J.A. found that TrueNorth was still binding because the introductory text in s. 21(1) was not altered by the amendment. The Federal Court of Appeal allowed the appeal, set aside Martineau J.’s order and dismissed the application for judicial review.
4. Issue
[12] The issue in the present case is whether DFO and NRCan, as responsible authorities under the CEAA , have been conferred discretion under the CEAA to determine whether an environmental assessment proceeds by way of a screening or comprehensive study.
5. Analysis
[13] The relevant legislative and regulatory provisions are attached in the Appendix.
A. Procedural Options Under the CEAA
[14] The CEAA is, in the words of its formal title, “[a]n Act to establish a federal environmental assessment process”. It provides a process for integrating environmental considerations into planning and decision making (CEAA , Preamble; Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, at p. 71). In broad overview, the Act sets forth five potential procedural options or tracks for environmental assessment depending upon the nature of the project, i.e. the physical work or physical activity to be reviewed. These five tracks vary in levels of intensity of assessment:
1. No Assessment
2. Screening
3. Comprehensive Study
4. Mediation
5. Review Panel
(1) No Assessment
[15] Section 7(1) provides that if a project is described on the Exclusion List Regulations, 2007, SOR/2007‑108, or is required in response to an emergency, no environmental assessment need be carried out. Projects on this list are considered to have insignificant environmental effects. Projects in the Exclusion List Regulations, 2007 include, for example, the proposed maintenance or repair of a physical work (so long as it is not carried out in a national park, park reserve, national historic site or historic canal) (Sch. 1, s. 1).
(2) Screening
[16] The least intense environmental assessment track is termed a “screening”. If a proposed project does not appear in the exclusion list or the comprehensive study list (discussed below), then a screening is required pursuant to s. 18 of the Act . Projects requiring a screening are those considered to have some potential for adverse environmental effects, but those effects are not considered to be significant enough to warrant the more intense assessments discussed below.
(3) Comprehensive Study, Mediation, and Review Panel
[17] Finally, comprehensive studies, mediation and review panels all arise from the listing of a proposed project in the CSL. Under s. 21.1(1) of the Act , if a project is described in the CSL, the Minister of the Environment has three options. One is to refer the project to an RA (generally a federal department or agency) to proceed with a comprehensive study. A second is to refer the project to a mediator if all interested parties agree. A third is to refer the project to a review panel. Projects in the CSL are those considered likely to have significant adverse environmental effects (CSL, Preamble). A mine or mill with a proposed capacity above the specified threshold is listed in the CSL (CSL, Sch., s. 16).
[18] Some of the more important requirements pertaining to projects in the CSL that do not apply to projects that require only a screening assessment are:
(1) Mandatory public consultation at the outset and throughout the environmental assessment process (ss. 21 -23 ).
(2) A government funding program to facilitate public participation in the environmental assessment process (s. 58(1.1)).
(3) Determination by the Minister as to whether the environmental assessment should be conducted as a comprehensive study by the RA or be referred to mediation or to a review panel (s. 21.1).
(4) Determination by the Minister rather than an RA as to whether the project will cause significant adverse effects to the environment (s. 23).
G(5) Assessment of the purpose of the project and consideration of alternative means of carrying out the project and the environmental effects of the alternatives (s. 16(2)).
(6) The need for a follow-up program (s. 16(2)).
(7) The capacity of affected renewable resources to meet present and future needs (s. 16(2)).
Generally speaking, in comparison to a screening, projects in the CSL are subjected to more intensive assessment, ministerial oversight and mandatory public consultation.
B. Interpretation of Section 21
[19] The provision under scrutiny in the present appeal is s. 21 of the CEAA . Section 21 initiates the set of procedures that RAs must follow when a project is listed in the CSL. The relevant portion of the section reads as follows:
21. (1) Where a project is described in the comprehensive study list, the responsible authority shall ensure public consultation with respect to the proposed scope of the project for the purposes of the environmental assessment, the factors proposed to be considered in its assessment, the proposed scope of those factors and the ability of the comprehensive study to address issues relating to the project.
[20] The decision of the Federal Court of Appeal and the positions of the government and Red Chris on the proper interpretation of s. 21 are largely based on their interpretation of the application of s. 15(1) of the CEAA . They argue that s. 15(1) , which grants the discretion to “scope” the project (i.e. define what aspects of the project will be included in the federal environmental assessment), includes the discretion to “track” the project (i.e. determine the level of assessment). In other words, they argue that determining the assessment track and determining the scope of the project are the same step in the assessment process. The “scoping” provision, s. 15(1) , provides:
15. (1) The scope of the project in relation to which an environmental assessment is to be conducted shall be determined by
(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.
[21] Red Chris and the government argue that s. 15(1) is of “general application” and confers on an RA the discretion to determine the scope of the project in relation to which an environmental assessment is to be conducted. Therefore, even though a project as proposed by a proponent (in this case a mine and mill) appears in the CSL, it is open to an RA to scope the project for federal environmental assessment purposes in a more limited way. The result is that the project as scoped by the RA is not in the CSL and therefore requires only a screening and not a comprehensive study. They, therefore, support the approach taken in this case by DFO and NRCan which scoped the project as the tailings impoundment area, water diversion system and explosives storage/manufacturing facility, none of which are listed in the CSL.
[22] They further point out that ss. 18 to 20 which set out the screening process and ss. 21 to 24 which set out the comprehensive study process follow s. 15 . Section 18(1) commences with the words “[w]here a project is not described in the comprehensive study list”. Section 21(1) commences with the words “[w]here a project is described in the comprehensive study list”. Red Chris and the government argue that these “screening” and “comprehensive study” provisions follow directly after the “general” provisions which include s. 15(1) . Therefore, the reference to “project” in ss. 18 and 21 is subject to the scoping discretion in s. 15(1) . In other words, s. 15(1) gives RAs the discretion to scope a project and determine the track for assessment. (See Red Chris factum, at paras. 71-73.)
[23] Red Chris and the government also argue that their interpretation provides the RAs with the flexibility required to address the specific circumstances of each project. This flexibility allows for the consideration of the nexus between the assessment and the federal authority, the area of expertise of the RA, the provincial assessment process, the coordination between the province and federal authorities, and the elimination of duplication (Red Chris factum, at para. 97, and government factum, at para. 77). They argue that the appellant’s interpretation, which provides that “project” means “project as proposed by the proponent”, leads to a rigid, inflexible and arbitrary approach to environmental assessment (Red Chris factum, at para. 85).
[24] There is perhaps a rationale for the interpretation proposed by Red Chris and the government. Where projects are subject to environmental assessment by both provincial and federal authorities, it is not unreasonable to think that such projects should not be subject to two, duplicative, environmental assessments. Duplication could be minimized by scoping the project for federal environmental assessment purposes on a more limited basis than the project as proposed by the proponent, and by focussing on matters within federal jurisdiction and the specific approvals sought from the federal government by the proponents of the project.
[25] However, s. 12(4) of the CEAA provides that in such cases, a federal RA may cooperate with the province in respect of the environmental assessment. Detailed provisions for coordination are set out in the Regulations Respecting the Coordination by Federal Authorities of Environmental Assessment Procedures and Requirements, SOR/97-181, the Canada‑British Columbia Agreement for Environmental Assessment Cooperation (2004), and similar provincial-federal harmonization agreements across the country. Thus, Red Chris and the government’s policy arguments regarding duplication and coordination have been recognized in the CEAA and its regulations.
[26] Red Chris and the government rely heavily on two prior Federal Court of Appeal decisions, TrueNorth and Sunpine. In reaching its conclusion, the Federal Court of Appeal also relied on these prior decisions. However, I am of the opinion that the approach of the Federal Court of Appeal and that advocated by Red Chris and the government cannot be sustained. To the extent that the decisions relied on by Red Chris, the government and the Federal Court of Appeal are inconsistent with the analysis that follows, these reasons now govern.
[27] The duty of this Court is to interpret the Act based on its text and context. A close reading of the relevant provisions of the CEAA leads to the conclusion that it is not within the discretion of the RA to conduct only a screening when a proposed project is listed in the CSL.
[28] The starting point in the statutory interpretation exercise is the definition section, s. 2, of the CEAA . “[P]roject” in relation to a physical work is defined in English as “any proposed construction, operation, modification, decommissioning, abandonment or other undertaking in relation to that physical work”. “Projet” is defined in French as “Réalisation — y compris l’exploitation, la modification, la désaffectation ou la fermeture — d’un ouvrage ou proposition d’exercice d’une activité concrète, non liée à un ouvrage, désignée par règlement ou faisant partie d’une catégorie d’activités concrètes désignée par règlement aux termes de l’alinéa 59b) ”. The English definition of “project” expressly uses the word “proposed” and therefore means “project as proposed by the proponent”. Although the French definition does not use the word “proposed”, implicit in the French meaning of the word “projet” is the notion of proposal: [translation] “Idea of something one proposes to accomplish. . . . The word projet relates to something done before the project is carried out, unlike the English word, which covers both senses.” (Multidictionnaire de la langue française (5th ed. 2009), at p. 1313). In any event, even if “projet” were broader than the English equivalent, the common meaning would favour the more restricted meaning (see Schreiber v. Canada (Attorney General), 2002 SCC 62, [2002] 3 S.C.R. 269, at para. 56, per LeBel J.). Therefore, the starting point of this analysis is that the statutory definition of project is “project as proposed”.
[29] It is certainly possible that this definition may not apply to every use of the term “project” in the statute — particularly in the case of the CEAA where the term “project” appears well over 300 times. But displacement of the defined term requires express words or necessarily implied context that Parliament did not intend for the definition to apply to that particular use of the term (Interpretation Act, R.S.C. 1985, c. I‑21, s. 15(2) ; Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385, at p. 400; R. Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at p. 215). There is nothing in s. 18 or 21 to suggest that the term “project” as defined is not applicable or is displaced by the project as scoped by the RA under s. 15 .
[30] The CSL itself provides some further support that “project” in s. 21 does not mean “project as scoped” by the RA. The English version of the CSL describes projects in terms of proposals. For example, the Schedule states:
16. The proposed construction, decommissioning or abandonment of
(a) a metal mine, other than a gold mine, with an ore production capacity of 3 000 t/d or more;
The French equivalent reads:
16. Projet de construction, de désaffectation ou de fermeture :
a) d’une mine métallifère, autre qu’une mine d’or, d’une capacité de production de minerai de 3 000 t/d ou plus;
Inclusion of the word “proposed” in the English version of the CSL suggests that the opening words of s. 21 should be interpreted as “[w]here a project [as proposed] is described in the comprehensive study list” and not “[w]here a project [as scoped by the RA] is described in the comprehensive study list”. While again the French regulation does not expressly refer to “proposed”, as discussed above, implicit in the French definition of “projet” is the notion of proposal. In any case, there is certainly nothing in the term “projet” that suggests it means “project as scoped”.
[31] While it would be inappropriate to solely rely on regulations to interpret a provision of the governing legislation, the language in the regulations in the present case is consistent with the interpretation gleaned from the Act itself. In addition, the CSL is tightly linked to the CEAA . The CSL is one of the “[f]our regulations . . . needed to make the Act work” (B. Hobby et al., Canadian Environmental Assessment Act : An Annotated Guide (loose-leaf), at p. III-1), and the proclamation of ss. 1 to 60 , 71 , 72 , 74 , 76 and 77 of the CEAA was delayed until the CSL and other key regulations were already in force (Order Fixing January 19, 1995 as the Date of the Coming into Force of Certain Sections of the Act , SI/95-11; CSL Registration date: October 7, 1994). In these circumstances it is appropriate to consider the regulations when interpreting the governing statute because “[w]hen regulations are made to complete the statutory scheme, they are clearly intended to operate together and to be mutually informing” (Sullivan, at p. 370). See also Binnie J. in R. v. Campbell, [1999] 1 S.C.R. 565, at para. 26, and Deschamps J. in Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), 2004 SCC 54, [2004] 3 S.C.R. 152, at para. 35.
[32] A further indication that this interpretation is consistent with the intent of Parliament is found in the respective roles of the RA and the Minister in conducting environmental assessments under the CEAA . The CEAA grants the Minister the authority to prescribe that certain projects or classes of projects are subject to a comprehensive study. Section 58(1) (i) provides:
58. (1) For the purposes of this Act , the Minister may
. . .
(i) make regulations prescribing any project or class of projects for which a comprehensive study is required where the Minister is satisfied that the project or any project within that class is likely to have significant adverse environmental effects.
Red Chris and the government’s interpretation of s. 21 would render this authority subject to the overriding authority of the RA, presumably under s. 15(1) , to determine on a case‑by‑case basis whether the project would be subject to a comprehensive study. In other words, decisions of the Minister would be subordinate to decisions of the RA. The presumption in Canada, with a democratically elected responsible government, must be the other way around.
[33] I am unable to agree with the Federal Court of Appeal’s finding that there is “nothing in the context of the CEAA which indicates . . . a different interpretation from [the project as scoped by the RA]” (para. 49). The CSL includes classes of projects which the Minister has determined are likely to have significant adverse environmental effects (CEAA, s. 58(1) (i); CSL, Preamble). It would follow that by authorizing the Minister to make such regulations and thereby determine which projects require a comprehensive study, Parliament intended the Minister to determine which projects did or did not require comprehensive study, not the RA. The Regulatory Impact Analysis Statement, SOR/94-636, supports that view:
The Comprehensive Study List . . . supplies greater certainty and efficiency by identifying which major projects will automatically be assessed more extensively. [Emphasis added.]
[34] In sum, subject to my comments below about s. 15(2) and (3) , when the term “project” in ss. 18 and 21 is considered in context, the correct interpretation is “project as proposed” and not “project as scoped”. This means that the determination of whether a project requires a comprehensive study is not within the discretion of the RA. If the project as proposed is listed in the CSL, a comprehensive study is mandatory.
C. The Discretion to Scope
[35] How, then, does the discretion conferred on the RA or Minister under s. 15(1) to determine the scope of a project for the environmental assessment fit within the scheme of the Act ? I am of the opinion that tracking and scoping are distinct steps in the CEAA process. Generally, the RA does not have the discretion to determine the assessment track. However, once the appropriate track is determined, the RA does have the discretion to determine the scope of the project for the purposes of assessment.
[36] In the case of a project not in the CSL, a screening is conducted in accordance with the scope of the project as determined by the RA under s. 15(1) (a), subject to the requirements of s. 15(2) and (3) . The RA’s scoping decision is determinative.
[37] In the case of a project in the CSL, the answer is not as clear. However, I think it can be described in the following way. T