Friends of the Oldman River Society v. Canada (Minister of Transport)

Friends of the Oldman River Society v. Canada (Minister of Transport)
Collection
Supreme Court Judgments
Date
1992-01-23
Report
[1992] 1 SCR 3
Case number
21890
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Stevenson, William; Iacobucci, Frank
On appeal from
Federal Court of Appeal
Subjects
Administrative law
Constitutional law
Environmental law
State
Notes
SCC Case Information: 21890
Decision Content
Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3
Her Majesty the Queen in right of Alberta,
as represented by the Minister of
Public Works, Supply and Services Appellant
and
The Minister of Transport and
the Minister of Fisheries and Oceans Appellants
v.
Friends of the Oldman River Society Respondent
and
The Attorney General of Quebec,
the Attorney General for New Brunswick,
the Attorney General of Manitoba,
the Attorney General of British Columbia,
the Attorney General for Saskatchewan,
the Attorney General of Newfoundland,
the Minister of Justice of the Northwest Territories,
the National Indian Brotherhood/Assembly of First Nations,
the Dene Nation and the Metis Association of the Northwest Territories,
the Native Council of Canada (Alberta),
the Sierra Legal Defence Fund,
the Canadian Environmental Law Association,
the Sierra Club of Western Canada,
the Cultural Survival (Canada),
the Friends of the Earth and
the Alberta Wilderness Association Interveners
Indexed as: Friends of the Oldman River Society v. Canada (Minister of Transport)
File No.: 21890.
1991: February 19, 20; 1992: January 23.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Stevenson and Iacobucci JJ.
on appeal from the federal court of appeal
Constitutional law ‑‑ Distribution of legislative powers ‑‑ Environment ‑‑ Environmental assessment ‑‑ Whether federal environmental guidelines order intra vires Parliament ‑‑ Constitution Act, 1867, ss. 91 , 92 ‑‑ Environmental Assessment and Review Process Guidelines Order, SOR/84‑467.
Environmental law ‑‑ Environmental assessment ‑‑ Statutory validity of federal environmental guidelines order ‑‑ Whether guidelines order authorized by s. 6 of Department of the Environment Act ‑‑ Whether guidelines order inconsistent with Navigable Waters Protection Act ‑‑ Department of the Environment Act, R.S.C., 1985, c. E‑10, s. 6 ‑‑ Navigable Waters Protection Act, R.S.C., 1985, c. N‑22, ss. 5 , 6 ‑‑ Environmental Assessment and Review Process Guidelines Order, SOR/84‑467.
Environmental law ‑‑ Environmental assessment ‑‑ Applicability of federal environmental guidelines order ‑‑ Alberta building dam on Oldman River
‑‑ Dam affecting areas of federal responsibility such as navigable waters and fisheries ‑‑ Whether guidelines order applicable only to new federal projects ‑‑ Whether Minister of Transport and Minister of Fisheries and Oceans must comply with guidelines order ‑‑ Department of the Environment Act, R.S.C., 1985, c. E‑10, ss. 4(1) (a), 5 (a)(ii), 6 ‑‑ Environmental Assessment and Review Process Guidelines Order, SOR/84‑467, ss. 2 "proposal", "initiating department", 6 ‑‑ Navigable Waters Protection Act, R.S.C., 1985, c. N‑22, s. 5 ‑‑ Fisheries Act, R.S.C., 1985, c. F‑14, ss. 35 , 37 .
Crown ‑‑ Immunity ‑‑ Provinces ‑‑ Whether Crown in right of province bound by provisions of Navigable Waters Protection Act, R.S.C., 1985, c. N‑22 ‑‑ Interpretation Act, R.S.C., 1985, c. I‑21, s. 17 .
Administrative law ‑‑ Judicial review ‑‑ Remedies ‑‑ Discretion ‑‑ Alberta building dam on Oldman River ‑‑ Dam affecting areas of federal responsibility such as navigable waters and fisheries ‑‑ Environmental group applying for certiorari and mandamus in Federal Court to compel Minister of Transport and Minister of Fisheries and Oceans to comply with federal environmental guidelines order ‑‑ Applications dismissed on grounds of unreasonable delay and futility ‑‑ Whether Court of Appeal erred in interfering with motions judge's discretion not to grant remedy sought.
The respondent Society, an Alberta environmental group, brought applications for certiorari and mandamus in the Federal Court seeking to compel the federal departments of Transport and Fisheries and Oceans to conduct an environmental assessment, pursuant to the federal Environmental Assessment and Review Process Guidelines Order, in respect of a dam constructed on the Oldman River by the province of Alberta ‑‑ a project which affects several federal interests, in particular navigable waters, fisheries, Indians and Indian lands. The Guidelines Order was established under s. 6 of the federal Department of the Environment Act and requires all federal departments and agencies that have a decision‑making authority for any proposal (i.e., any initiative, undertaking or activity) that may have an environmental effect on an area of federal responsibility to initially screen such proposal to determine whether it may give rise to any potentially adverse environmental effects. The province had itself conducted extensive environmental studies over the years which took into account public views, including the views of Indian bands and environmental groups, and, in September 1987, had obtained from the Minister of Transport an approval for the work under s. 5 of the Navigable Waters Protection Act . This section provides that no work is to be built in navigable waters without the prior approval of the Minister. In assessing Alberta's application, the Minister considered only the project's effect on navigation and no assessment under the Guidelines Order was made. Respondent's attempts to stop the project in the Alberta courts failed and both the federal Ministers of the Environment and of Fisheries and Oceans declined requests to subject the project to the Guidelines Order. The contract for the construction of the dam was awarded in 1988 and the project was 40 per cent complete when the respondent commenced its action in the Federal Court in April 1989. The Trial Division dismissed the applications. On appeal, the Court of Appeal reversed the judgment, quashed the approval under s. 5 of the Navigable Waters Protection Act , and ordered the Ministers of Transport and of Fisheries and Oceans to comply with the Guidelines Order. This appeal raises the constitutional and statutory validity of the Guidelines Order as well as its nature and applicability. It also raises the question whether the motions judge properly exercised his discretion in deciding not to grant the remedy sought on grounds of unreasonable delay and futility.
Held (Stevenson J. dissenting): The appeal should be dismissed, with the exception that there should be no order in the nature of mandamus directing the Minister of Fisheries and Oceans to comply with the Guidelines Order.
Statutory Validity of the Guidelines Order
The Guidelines Order was validly enacted pursuant to s. 6 of the Department of the Environment Act , and is mandatory in nature. When one reads s. 6 as a whole, rather than focusing on the word "guidelines" in isolation, it is clear that Parliament has elected to adopt a regulatory scheme that is "law", and amenable to enforcement through prerogative relief. The "guidelines" are not merely authorized by statute but must be formally enacted by "order" with the approval of the Governor in Council. That is in striking contrast with the usual internal ministerial policy guidelines intended for the control of public servants under the minister's authority.
The Guidelines Order, which requires the decision maker to take socio‑economic considerations into account in the environmental impact assessment, does not go beyond what is authorized by the Department of the Environment Act . The concept of "environmental quality" in s. 6 of the Act is not confined to the biophysical environment alone. The environment is a diffuse subject matter and, subject to the constitutional imperatives, the potential consequences for a community's livelihood, health and other social matters from environmental change, are integral to decision making on matters affecting environmental quality.
The Guidelines Order is consistent with the Navigable Waters Protection Act . There is nothing in the Act which explicitly or implicitly precludes the Minister of Transport from taking into consideration any matters other than marine navigation in exercising his power of approval under s. 5 of the Act. The Minister's duty under the Order is supplemental to his responsibility under the Navigable Waters Protection Act , and he cannot resort to an excessively narrow interpretation of his existing statutory powers to avoid compliance with the Order. There is also no conflict between the requirement for an initial assessment "as early in the planning process as possible and before irrevocable decisions are taken" in s. 3 of the Guidelines Order, and the remedial power under s. 6(4) of the Act to grant approval after the commencement of construction. That power is an exception to the general rule in s. 5 of the Act requiring approval prior to construction, and in exercising his discretion to grant approval after commencement, the Minister is not precluded from applying the Order.
Applicability of the Guidelines Order
The scope of the Guidelines Order is not restricted to "new federal projects, programs and activities"; the Order is not engaged every time a project may have an environmental effect on an area of federal jurisdiction. However, there must first be a "proposal" which requires an "initiative, undertaking or activity for which the Government of Canada has a decision making responsibility". The proper construction to be placed on the term "responsibility" is that the federal government, having entered the field in a subject matter assigned to it under s. 91 of the Constitution Act, 1867 , must have an affirmative regulatory duty pursuant to an Act of Parliament which relates to the proposed initiative, undertaking or activity. "Responsibility" within the definition of "proposal" means a legal duty or obligation and should not be read as connoting matters falling generally within federal jurisdiction. Once such a duty exists, it is a matter of identifying the "initiating department" assigned responsibility for its performance, for it then becomes the "decision making authority" for the proposal and thus responsible for initiating the process under the Guidelines Order.
The Oldman River Dam project falls within the ambit of the Guidelines Order. The project qualifies as a proposal for which the Minister of Transport alone is the "initiating department" under s. 2 of the Order. The Navigable Waters Protection Act , in particular s. 5 , places an affirmative regulatory duty on the Minister of Transport. Under that Act there is a legislatively entrenched regulatory scheme in place in which the approval of the Minister is required before any work that substantially interferes with navigation may be placed in, upon, over or under, through or across any navigable water.
The Guidelines Order does not apply to the Minister of Fisheries and Oceans, however, because there is no equivalent regulatory scheme under the Fisheries Act which is applicable to this project. The discretionary power to request or not to request information to assist a Minister in the exercise of a legislative function does not constitute a "decision making responsibility" within the meaning of the Order. The Minister of Fisheries and Oceans under s. 37 of the Fisheries Act has only been given a limited ad hoc legislative power which does not constitute an affirmative regulatory duty.
The scope of assessment under the Guidelines Order is not confined to the particular head of power under which the Government of Canada has a decision‑making responsibility within the meaning of the term "proposal". Under the Order, the initiating department which has been given authority to embark on an assessment must consider the environmental effect on all areas of federal jurisdiction. The Minister of Transport, in his capacity of decision maker under the Navigable Waters Protection Act , must thus consider the environmental impact of the dam on such areas of federal jurisdiction as navigable waters, fisheries, Indians and Indian lands.
Crown Immunity
Per Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.: The Crown in right of Alberta is bound by the Navigable Waters Protection Act by necessary implication. The proprietary right the province may have in the bed of the Oldman River is subject to the public right of navigation, legislative jurisdiction over which has been exclusively vested in Parliament. Alberta requires statutory authorization from Parliament to erect any obstruction that substantially interferes with navigation in the Oldman River, and the Navigable Waters Protection Act is the means by which it must be obtained. The Crown in right of Alberta is bound by the Act, for it is the only practicable procedure available for getting approval. The purpose of the Act would be wholly frustrated if the province was not bound by the Act. The provinces are among the bodies that are likely to engage in projects that may interfere with navigation. Were the Crown in right of a province permitted to undermine the integrity of the essential navigational networks in Canadian waters, the legislative purpose of the Navigable Waters Protection Act would effectively be emasculated.
Per Stevenson J. (dissenting): The province of Alberta is not bound by the Navigable Waters Protection Act . The Crown is not bound by legislation unless it is mentioned or referred to in the legislation. Here, there are no words in the Act "expressly binding" the Crown and no clear intention to bind "is manifest from the very terms of the statute". As well, the failure to include the Crown would not wholly frustrate the purpose of the Act or produce an absurdity. There are many non-governmental agencies whose activities are subject to the Act and there is thus no emasculation of the Act. If the Crown interferes with a public right of navigation, that wrong is remediable by action. There is no significant benefit in approval under the Act. Tort actions may still lie.
Constitutional Validity of the Guidelines Order
The "environment" is not an independent matter of legislation under the Constitution Act, 1867 . Understood in its generic sense, it encompasses the physical, economic and social environment and touches upon several of the heads of power assigned to the respective levels of government. While both levels may act in relation to the environment, the exercise of legislative power affecting environmental concerns must be linked to an appropriate head of power. Local projects will generally fall within provincial responsibility, but federal participation will be required if, as in this case, the project impinges on an area of federal jurisdiction.
The Guidelines Order is intra vires Parliament. The Order does not attempt to regulate the environmental effects of matters within the control of the province but merely makes environmental impact assessment an essential component of federal decision making. The Order is in pith and substance nothing more than an instrument that regulates the manner in which federal institutions must administer their multifarious duties and functions. In essence, the Order has two fundamental aspects. First, there is the substance of the Order dealing with environmental impact assessment to facilitate decision making under the federal head of power through which a proposal is regulated. This aspect of the Order can be sustained on the basis that it is legislation in relation to the relevant subject matters enumerated in s. 91 of the Constitution Act, 1867 . The second aspect of the Order is its procedural or organizational element that coordinates the process of assessment, which can in any given case touch upon several areas of federal responsibility, under the auspices of a designated decision maker (the "initiating department"). This facet of the Order has as its object the regulation of the institutions and agencies of the Government of Canada as to the manner in which they perform their administrative functions and duties. This is unquestionably intra vires Parliament. It may be viewed either as an adjunct of the particular legislative powers involved, or, in any event, be justifiable under the residuary power in s. 91 .
The Guidelines Order cannot be used as a colourable device to invade areas of provincial jurisdiction which are unconnected to the relevant heads of federal power. The "initiating department" is only given a mandate to examine matters directly related to the areas of federal responsibility potentially affected. Any intrusion under the Order into provincial matters is merely incidental to the pith and substance of the legislation.
Discretion
Per Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.: The Federal Court of Appeal did not err in interfering with the motions judge's discretion not to grant the remedies sought on the grounds of unreasonable delay and futility. Respondent made a sustained effort, through legal proceedings in the Alberta courts and through correspondence with federal departments, to challenge the legality of the process followed by the province to build the dam and the acquiescence of the appellant Ministers, and there is no evidence that Alberta has suffered any prejudice from any delay in taking the present action. Despite ongoing legal proceedings, the construction of the dam continued. The province was not prepared to accede to an environmental impact assessment under the Order until it had exhausted all legal avenues. The motions judge did not weigh these considerations adequately, giving the Court of Appeal no choice but to intervene. Futility was also not a proper ground to refuse a remedy in the present circumstances. Prerogative relief should only be refused on that ground in those few instances where the issuance of a prerogative writ would be effectively nugatory. It is not obvious in this case that the implementation of the Order even at this late stage will not have some influence over the mitigative measures that may be taken to ameliorate any deleterious environmental impact from the dam on an area of federal jurisdiction.
Per Stevenson J. (dissenting): The Federal Court of Appeal erred in interfering with the motions judge's discretion to refuse the prerogative remedy. The court was clearly wrong in overruling his conclusion on the question of delay. The common law has always imposed a duty on an applicant to act promptly in seeking prerogative relief. Given the enormity of the project and the interests at stake, it was unreasonable for the respondent Society to wait 14 months before challenging the Minister of Transport's approval. It is impossible to conclude that Alberta was not prejudiced by the delay. The legal proceedings in the Alberta courts brought by the respondent and others need not have been taken into account by the motions judge. These proceedings were separate and distinct from the relief sought in this case and were irrelevant to the issues at hand. The present action centres on the constitutionality and applicability of the Guidelines Order. It raises new and different issues. In determining whether he should exercise his discretion against the respondent, the motions judge was obliged to look only at those factors which he considered were directly connected to the application before him. Interference with his exercise of discretion is not warranted unless it can be said with certainty that he was wrong in doing what he did. The test has not been met in this case.
Costs
Per Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.: It is a proper case for awarding costs on a solicitor-client basis to the respondent, given the Society's circumstances and the fact that the federal Ministers were joined as appellants even though they did earlier not seek leave to appeal to this Court.
Per Stevenson J. (dissenting): The appellants should not be called upon to pay costs on a solicitor and client basis. There is no justification in departing from our own general rule that a successful party should recover costs on the usual party and party basis. Public interest groups must be prepared to abide by the same principles as apply to other litigants and be prepared to accept some responsibility for the costs.
Cases Cited
By La Forest J.
Referred to: Canadian Wildlife Federation Inc. v. Canada (Minister of the Environment), [1989] 3 F.C. 309 (T.D.), aff'd (1989), 99 N.R. 72; Alberta Government Telephones v. Canada (Canadian Radio‑television and Telecommunications Commission), [1989] 2 S.C.R. 225; Reference re Anti‑Inflation Act, [1976] 2 S.C.R. 373; Martineau v. Matsqui Institution Inmate Disciplinary Board, [1978] 1 S.C.R. 118; Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2; R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401; Belanger v. The King (1916), 54 S.C.R. 265; R. & W. Paul, Ltd. v. Wheat Commission, [1937] A.C. 139; Re George Edwin Gray (1918), 57 S.C.R. 150; Daniels v. White, [1968] S.C.R. 517; Smith v. The Queen, [1960] S.C.R. 776; Environmental Defense Fund, Inc. v. Mathews, 410 F.Supp. 336 (1976); Angus v. Canada, [1990] 3 F.C. 410; Province of Bombay v. Municipal Corporation of Bombay, [1947] A.C. 58; Sparling v. Quebec (Caisse de dépôt et placement du Québec), [1988] 2 S.C.R. 1015; R. v. Eldorado Nuclear Ltd., [1983] 2 S.C.R. 551; Her Majesty in right of Alberta v. Canadian Transport Commission, [1978] 1 S.C.R. 61; R. v. Ouellette, [1980] 1 S.C.R. 568; In Re Provincial Fisheries (1896), 26 S.C.R. 444; Flewelling v. Johnston (1921), 59 D.L.R. 419; Orr Ewing v. Colquhoun (1877), 2 App. Cas. 839; Attorney‑General v. Johnson (1819), 2 Wils. Ch. 87, 37 E.R. 240; Wood v. Esson (1884), 9 S.C.R. 239; Reference re Waters and Water‑Powers, [1929] S.C.R. 200; The Queen v. Fisher (1891), 2 Ex. C.R. 365; Queddy River Driving Boom Co. v. Davidson (1883), 10 S.C.R. 222; Whitbread v. Walley, [1990] 3 S.C.R. 1273; Fowler v. The Queen, [1980] 2 S.C.R. 213; Northwest Falling Contractors Ltd. v. The Queen, [1980] 2 S.C.R. 292; Murphyores Incorporated Pty. Ltd. v. Commonwealth of Australia (1976), 136 C.L.R. 1; Devine v. Quebec (Attorney General), [1988] 2 S.C.R. 790; Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182; Knox Contracting Ltd. v. Canada, [1990] 2 S.C.R. 338; Canadian National Railway Co. v. Courtois, [1988] 1 S.C.R. 868; Polylok Corp. v. Montreal Fast Print (1975) Ltd., [1984] 1 F.C. 713; Charles Osenton & Co. v. Johnston, [1942] A.C. 130; Harelkin v. University of Regina, [1979] 2 S.C.R. 561; Friends of the Oldman River Society v. Alberta (Minister of the Environment) (1987), 85 A.R. 321; Friends of Oldman River Society v. Alberta (Minister of the Environment) (1988), 89 A.R. 339; Friends of the Old Man River Society v. Energy Resources Conservation Board (Alta.) (1988), 89 A.R. 280; Champion v. City of Vancouver, [1918] 1 W.W.R. 216; Isherwood v. Ontario and Minnesota Power Co. (1911), 18 O.W.R. 459.
By Stevenson J. (dissenting)
Alberta Government Telephones v. Canada (Canadian Radio-television and Telecommunications Commission), [1989] 2 S.C.R. 225; Province of Bombay v. Municipal Corporation of Bombay, [1947] A.C. 58; Champion v. City of Vancouver, [1918] 1 W.W.R. 216; Harelkin v. University of Regina, [1979] 2 S.C.R. 561; Polylok Corp. v. Montreal Fast Print (1975) Ltd., [1984] 1 F.C. 713; P.P.G. Industries Canada Ltd. v. Attorney General of Canada, [1976] 2 S.C.R. 739; Syndicat des employés du commerce de Rivière-du-Loup (section Émilio Boucher, C.S.N.) v. Turcotte, [1984] C.A. 316.
Statutes and Regulations Cited
Act for the better protection of Navigable Streams and Rivers, S.C. 1873, c. 65.
Act for the removal of obstructions, by wreck and like causes, in Navigable Waters of Canada, and other purposes relative to wrecks, S.C. 1874, c. 29.
Act respecting booms and other works constructed in navigable waters whether under the authority of Provincial Acts or otherwise, S.C. 1883, c. 43, s. 1.
Act respecting Bridges over navigable waters, constructed under the authority of Provincial Acts, S.C. 1882, c. 37.
Act respecting certain works constructed in or over Navigable Waters, R.S.C. 1886, c. 92.
Act respecting certain works constructed in or over Navigable Waters, S.C. 1886, c. 35, ss. 1, 7.
Act respecting the Protection of Navigable Waters, R.S.C. 1886, c. 91.
Act respecting the protection of Navigable Waters, S.C. 1886, c. 36.
Act to authorize the Corporation of the Town of Emerson to construct a Free Passenger and Traffic Bridge over the Red River in the Province of Manitoba, S.C. 1880, c. 44.
Alberta Rules of Court, Alta. Reg. 390/68, r. 753.11(1) [en. Alta. Reg. 457/87, s. 3].
Code of Civil Procedure, R.S.Q., c. C-25, art. 835.1.
Constitution Act, 1867, ss. 91 "preamble", 91(10), (29), 92(10)(a), 92A.
Department of the Environment Act, R.S.C., 1985, c. E‑10, ss. 4 , 5 , 6 .
Department of Fisheries and Oceans Act, R.S.C. 1985, c. F‑15 .
Environmental Assessment and Review Process Guidelines Order, SOR/84‑467, ss. 2 "initiating department", "proponent", "proposal", 3, 4, 6, 8, 10, 12, 14, 25.
Federal Court Act, R.S.C., 1985, c. F-7, s. 28(2) .
Fisheries Act, R.S.C., 1985, c. F‑14, ss. 35 , 37 , 40 .
International River Improvements Act, R.S.C., 1985, c. I‑20 .
Interpretation Act, R.S.C., 1985, c. I‑21, ss. 2(1) , 17 .
Judicial Review Procedure Act, R.S.B.C. 1979, c. 209, s. 11.
Judicial Review Procedure Act, R.S.O. 1990, c. J.1, s. 5.
National Transportation Act, 1987, R.S.C., 1985 (3rd Supp.), c. 28, s. 3.
Navigable Waters' Protection Act, R.S.C. 1906, c. 115.
Navigable Waters Protection Act, R.S.C., 1985, c. N‑22, ss. 4 , 5 , 6 , 21 , 22 .
Railway Act, R.S.C., 1985, c. R‑3.
Authors Cited
Canada. Canadian Council of Resource and Environment Ministers. Report of the National Task Force on Environment and Economy, September 24, 1987.
Canada. Law Reform Commission. Constitutional Jurisdiction in Relation to Environmental Law. Unpublished paper prepared by Marie E. Hatherly, 1984.
Cotton, Roger and D. Paul Emond. "Environmental Impact Assessment". In John Swaigen, ed., Environmental Rights in Canada. Toronto: Butterworths, 1981, 245.
De Smith, S. A. Judicial Review of Administrative Action, 4th ed. By J. M. Evans. London: Stevens & Sons Ltd., 1980.
Dussault, René and Louis Borgeat. Administrative Law: A Treatise, 2nd ed., vols. 1 and 4. Translated by Murray Rankin. Toronto: Carswell, 1985.
Emond, D. P. Environmental Assessment Law in Canada. Toronto: Emond‑Montgomery Ltd., 1978.
Emond, Paul. "The Case for a Greater Federal Role in the Environmental Protection Field: An Examination of the Pollution Problem and the Constitution" (1972), 10 Osgoode Hall L.J. 647.
Gibson, Dale. "Constitutional Jurisdiction over Environmental Management in Canada" (1973), 23 U.T.L.J. 54.
Gillespie, Colin J. "Enforceable Rights from Administrative Guidelines?" (1989‑1990), 3 C.J.A.L.P. 204.
Hogg, Peter W. Liability of the Crown, 2nd ed. Toronto: Carswell, 1989.
Jeffery, Michael I. Environmental Approvals in Canada. Toronto: Butterworths, 1989.
Jones, David Phillip and Anne S. de Villars. Principles of Administrative Law. Toronto: Carswell, 1985.
La Forest, Gérard V. Water Law in Canada. Ottawa: Information Canada, 1973.
APPEAL from a judgment of the Federal Court of Appeal, [1990] 2 F.C. 18, 68 D.L.R. (4th) 375, [1991] 1 W.W.R. 352, 108 N.R. 241, 76 Alta. L.R. (2d) 289, 5 C.E.L.R. (N.S.) 1, reversing a judgment of the Trial Division, [1990] 1 F.C. 248, [1990] 2 W.W.R. 150, 30 F.T.R. 108, 70 Alta. L.R. (2d) 289, 4 C.E.L.R. (N.S.) 137. Appeal dismissed, with the exception that there should be no order in the nature of mandamus directing the Minister of Fisheries and Oceans to comply with the Guidelines Order. Stevenson J. is dissenting.
D. R. Thomas, Q.C., T. W. Wakeling and G. D. Chipeur, for the appellant Her Majesty the Queen in right of Alberta.
E. R. Sojonky, Q.C., B. J. Saunders and J. de Pencier, for the appellants the Minister of Transport and the Minister of Fisheries and Oceans.
B. A. Crane, Q.C., for the respondent.
J.‑K. Samson and A. Gingras, for the intervener the Attorney General of Quebec.
P. H. Blanchet, for the intervener the Attorney General for New Brunswick.
G. E. Hannon, for the intervener the Attorney General of Manitoba.
G. H. Copley, for the intervener the Attorney General of British Columbia.
R. G. Richards, for the intervener the Attorney General for Saskatchewan.
B. G. Welsh, for the intervener the Attorney General of Newfoundland.
R. A. Kasting and J. Donihee, for the intervener the Minister of Justice of the Northwest Territories.
P. W. Hutchins, D. H. Soroka and F. S. Gertler, for the intervener the National Indian Brotherhood/Assembly of First Nations.
J. J. Gill, for the interveners the Dene Nation and the Metis Association of the Northwest Territories, and the Native Council of Canada (Alberta).
G. J. McDade and J. B. Hanebury, for the interveners the Sierra Legal Defence Fund, the Canadian Environmental Law Association, the Sierra Club of Western Canada, the Cultural Survival (Canada) and the Friends of the Earth.
M. W. Mason, for the intervener the Alberta Wilderness Association.
//La Forest//
The judgment of Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ. was delivered by
La Forest J. -- The protection of the environment has become one of the major challenges of our time. To respond to this challenge, governments and international organizations have been engaged in the creation of a wide variety of legislative schemes and administrative structures. In Canada, both the federal and provincial governments have established Departments of the Environment, which have been in place for about twenty years. More recently, however, it was realized that a department of the environment was one among many other departments, many of which pursued policies that came into conflict with its goals. Accordingly at the federal level steps were taken to give a central role to that department, and to expand the role of other government departments and agencies so as to ensure that they took account of environmental concerns in taking decisions that could have an environmental impact.
To that end, s. 6 of the Department of the Environment Act, R.S.C., 1985, c. E-10 , empowered the Minister for the purposes of carrying out his duties relating to environmental quality, by order, with the approval of the Governor in Council, to establish guidelines for use by federal departments, agencies and regulatory bodies in carrying out their duties, functions and powers. Pursuant to this provision the Environmental Assessment and Review Process Guidelines Order ("Guidelines Order") was established and approved in June 1984, SOR/84-467. In general terms, these guidelines require all federal departments and agencies that have a decision-making authority for any proposal, i.e., any initiative, undertaking or activity that may have an environmental effect on an area of federal responsibility, to initially screen such proposal to determine whether it may give rise to any potentially adverse environmental effects. If a proposal could have a significant adverse effect on the environment, provision is made for public review by an environmental assessment panel whose members must be unbiased, free of political influence and possessed of special knowledge and experience relevant to the technical, environmental and social effects of the proposal.
The present case raises the constitutional and statutory validity of the Guidelines Order as well as its nature and applicability. These issues arise in a context where the respondent Society, an environmental group from Alberta, by applications for certiorari and mandamus, seeks to compel two federal departments, the Department of Transport and the Department of Fisheries and Oceans, to conduct a public environmental assessment pursuant to the Guidelines Order in respect of a dam constructed on the Oldman River by the Government of Alberta. That government had itself conducted extensive environmental studies which took into account public views. However, since the project affects navigable waters, fisheries, Indians and Indian lands, federal interests are involved. Specifically, the Society argues that the Minister of Transport must approve the project under the Navigable Waters Protection Act, R.S.C., 1985, c. N-22 , and in doing so is required to provide for public assessment of the project pursuant to the Guidelines Order. It also argues that the Minister of Fisheries and Oceans has a similar duty in the performance of his functions under the Fisheries Act, R.S.C., 1985, c. F-14 .
The case also raises the question whether the motions judge properly exercised his discretion in deciding whether or not to grant certiorari or mandamus. Accordingly the material background must be set forth in some detail.
Background
The history of the project begins in May 1958 when Alberta asked the Prairie Farm Rehabilitation Administration ("P.F.R.A.") of the federal Department of Agriculture to determine the feasibility of constructing a storage reservoir on the Oldman River, at a site called Livingstone Gap. In December 1966 the P.F.R.A. submitted its report and proposed another location, the Three Rivers site on the Oldman River, for further study. There followed a federal-provincial water supply study which lasted from 1966 to 1974. After this, in July 1974, the Alberta Department of the Environment initiated an examination of water demand and potential storage sites on the Oldman River and its tributaries, to be conducted in two phases.
The first phase consisted of an initial evaluation of sites in the Oldman basin for water storage carried out by a Technical Advisory Committee comprised of representatives from several provincial government departments including Environment, Culture and Multiculturalism, Energy Resources Conservation Board, Fish and Wildlife Division, Agriculture, as well as representatives from local municipal districts and industry. The Committee's report was released on July 14, 1976 and was followed by a series of public consultations with local authorities and other groups and individuals. The responses received were evaluated and issues arising from them were identified for further study in the second phase.
The second phase began on February 4, 1977 when the Minister of the Environment announced the creation of the Oldman River Study Management Committee consisting of six representatives of the public and three representatives of the provincial government. Its task was to address the issues raised by the public during the first study, and to make recommendations concerning overall water management in the river basin, including the incorporation of the concerns of area residents. This it was required to do in a more comprehensive way than the first phase by, inter alia, studying issues affecting the whole of the river basin such as salinization, sedimentation, recreation, fish habitat and other environmental issues. Public participation was encouraged, a series of public meetings and public workshops was held, and oral and written submissions were made by a variety of interest groups including Indian bands and environmental groups. The Management Committee released its final report in 1978.
That same year, a panel of the Environment Council of Alberta was constituted to hold public hearings on the management of water resources within the Oldman basin. Again, several public hearings were held throughout southern Alberta and the Council received briefs from a wide cross-section of Albertans representing the interests of business, agriculture, local governments, Indian bands and others. The Council submitted its report to the Minister of the Environment in August 1979 and recommended yet another location, the Brocket site on the Peigan Indian Reserve, should a dam be needed.
The provincial government then reviewed this report and the 1978 report and on August 29, 1980 announced its decision to build a dam on the Oldman River. It also stated that the Three Rivers site was the preferred location, but added that the final decision would be deferred until the Peigan Indian Band had an opportunity to submit a proposal for construction at the Brocket site. In November 1983 the Peigan Band presented a position to the Minister of the Environment describing its expected economic compensation if the dam were to be built at the Brocket site.
On August 8, 1984 the Premier of Alberta announced the government's decision to proceed with construction of the dam at the Three Rivers site. Before that announcement was made, however, the dam proposal was reviewed by the Regional Screening and Co-ordinating Committee ("R.S.C.C."), a committee of the federal Department of the Environment. The purpose of the R.S.C.C. was to ensure that proposals that may affect federal areas of concern are subjected to environmental review, and it actively followed the progress of the dam proposal until it was decided that the dam would not be built on Indian land.
Following the Three Rivers site announcement, Alberta commenced the design of the dam and launched an "Environmental Mitigation/Opportunities Action Plan" which spawned further environmental studies and public meetings. The provincial Department of the Environment opened a project information office close to the Three Rivers site to answer public enquiries. Several subcommittees were established by the Municipal District of Pincher Creek to provide input to the Alberta Department of the Environment on areas of local concern, including land use, fish and wildlife, recreation, and agriculture. In addition, the provincial Minister of the Environment ordered the appointment of a Local Advisory Committee to advise the Minister on such matters as road relocation, fish and wildlife concerns, and recreational opportunities. After gathering information from public meetings, the Committee submitted a report to the Minister with recommendations concerning fisheries, wildlife, historical resources, agriculture, recreation and transportation systems.
In 1987 the federal R.S.C.C. once again became involved in the project at the request of the Department of Indian and Northern Affairs to study its impact on federal interests, particularly on the Peigan Indian Reserve located approximately 12 kilometres downstream from the dam site. Alberta had already provided the Peigans with funding to conduct an independent study of the project's effect on the Reserve and its inhabitants. The Peigan report was submitted to the provincial Minister of the Environment in February 1987. It addressed such subjects as irrigation, surface and ground water considerations, dam safety, fisheries assessment, and spiritual and cultural assessment. The report prepared at the behest of the R.S.C.C. in July 1987 concluded that the project's effects on the Reserve would be either favourable or mitigable, but did note the possibility of negative environmental impacts affecting the Reserve ‑‑ i.e., increased dust storms, increased mercury levels in fish and the extinction of flood plain cottonwood forests.
I come now to a step of prime importance in this action. On March 10, 1986 the Alberta Department of the Environment applied to the federal Minister of Transport for approval of the work under s. 5 of the Navigable Waters Protection Act . That provision provides that no work is to be built in navigable waters without the prior approval of