ENVIRONMENT |
Bennett Environmental Inc. v. Canada (Minister of the Environment)
T-1313-04
2004 FC 1150, Harrington J.
19/8/04
13 pp.
Environment Minister announced intention to refer applicant's High Temperature Thermal Oxidizer facility (intended to rid contaminated soil of pollutants) in New Brunswick to review panel for transborder environmental assessment, under Canadian Environmental Assessment Act--Minister of view available data too limited to be certain no human health concerns--Initial notice given as news release, followed up by letter to applicant from Canadian Environmental Assessment Agency--In seeking judicial review, applicant says Minister in fact did not make decision, so review panel cannot proceed, or if did decide, was not authorized by Parliament to make decision as facility no longer "project", construction being 90% complete--Further submitted decision unreasonable, unfair--Under Act, s. 46 Minister may refer provincial project to federal review panel if of opinion may cause significant adverse environmental effects in another province or on reserve set aside for Indian band--Applicant argued Minister never referred its facility to review panel as never signed directive, but merely issued news release--Court disagreed as neither Act nor common law prescribes decision-making format--Nothing indicates decision to exercise discretion must be reduced to writing-- Only conclusion: Minister instructed Agency to issue new release expressing his decision--Inappropriate intrusion into departmental operations for Court to require affidavit from Minister or Agency confirming decision--Department, Agency were masters of own procedure: Therrien (Re), [2001] 2 S.C.R. 3--Press release may constitute sufficient notice: Stratégies St-Laurent v. Canada (Minister of the Environment) (1998), 156 F.T.R. 273 (F.C.T.D.)--Act only permitting environmental assessments of "projects"--Under Act, s. 2 "project" means any proposed construction, operation in relation to physical work or any proposed physical activity not relating to physical work, that is prescribed--Minister's position: not subjecting proposed construction of facility to review, only its proposed operation--Interveners, including Eel River Bar First Nation, also note issuance of building permit under appeal--Purpose, history of project considered --Applicant's facility will use rotary kiln to volatilize entrained hydrocarbons from North American "brownfield" locations--Would treat up to 100,000 tonnes of soil each year--Following reference to Technical Review Committee, imposition of certain conditions, construction approval granted under provincial clean air, environment legislation-- New Brunswick, Québec citizens' coalition complained to Minister about "proposed toxic waste incinerator", alleging deficiencies in provincial environmental assessment process-- Indian chiefs having grave concerns their communities, wildlife will be adversely affected--Applicant's facility no longer "project" at time referred to review panel by Minister --Therefore Minister acted without legal authority and review panel cannot proceed--Unnecessary to identify exactly when facility went beyond "project" stage--Purpose of Act to prevent works that may be detrimental to environment from starting--But project approval not licence to pollute--Should applicant's facility cause pollution, could be shut down--Facility beyond point of no return when Minister was petitioned to establish review panel--Reasons of Linden J.A. in Tsawwassen Indian Band (Council) v. Canada (Minister of Finance) (2001), 270 N.R. 145 (F.C.A.), stand for proposition once project is approved and construction begun, approval cannot be reopened--Environmental assessments are to be carried out while projects in planning stage--Although Act amended following Tsawwassen, no indication Parliament intended different time line re: projects having oblique federal connection due to transboundary effects, as opposed to direct connection under s. 5--As to whether decision unreasonable, according to applicant science such that maximum pollutant concentration will be 200 metres from source, well within applicant's property--Given Minister's advisors considered transboundary effects unlikely, and given Minister, responding in House of Commons to Bloc Québecois member's question, indicated applicant's facility was local matter, Minister knew, or should have known, Act inapplicable--Minister not "hung out to dry" by Health Canada's statement unable to say with "absolute confidence" transboundary effects impossible--But in view of holding facility not "project", unnecessary to rule on question whether decision unreasonable--Not for Court to consider whether reference to panel politically motivated (federal election called just two days after initial press release herein): see remarks of Dickson J. (as he then was) in Thorne's Hardware Ltd. et al. v. The Queen et al., [1983] 1 S.C.R. 106, at p. 112--As for unfairness of decision, questionable whether right for Minister to commission studies after applicant spent 29 million dollars on facility-- Application granted costs but not on solicitor-client basis as Minister's conduct not reprehensible, scandalous and this was first case involving Act's transboundary provisions--Not inappropriate for Minister to seek to distinguish Tsawwassen in view of statutory amendments--Canadian Environmental Assessment Act, S.C. 1992, c. 37, ss. 2 "project", 5.