Alberta Wilderness Assn. v. Canada ( Minister of Fisheries and Oceans )
T-2354-97
McKeown J.
12/6/98
14 pp.
Application for judicial review of Report of Joint Review Panel for Cheviot Coal Project, Mountain Park area, Alberta, with respect to environmental assessment-Whether applicants' failure to seek judicial review of Federal Response fatal to judicial review application-Cheviot Project proposal by Cardinal River Coal Ltd. (CRC) to develop number of coal leases owned by one of CRC's principals as replacement mine for CRC's existing Luscar mine-Located in area of eastern slopes of Rocky Mountains known as Alberta Coal Branch-Cheviot Project including construction, operation, decommissioning of mine, upgrade of access road, upgrade of railway line, installation of new transmission line and substation to supply electrical power-Under Alberta Environmental Protection and Enhancement Act, environmental impact assessment (EIA) report completed in February 1996-In March 1996, CRC advised Department of Fisheries and Oceans of intention to apply for authorization under Fisheries Act, s. 35(2)-Prior to issuing Fisheries Act, s. 35(2) authorization, Canadian Environmental Assessment Act, s. 5(1)(d) requires environmental assessment be conducted-Minister determined potentially significant adverse environmental effects would likely result from project and that public concern existed-In October 1996, agreement entered into between Canada and Alberta for operation of Joint Review Panel and conduct of environmental assessment hearings-Panel issued 161-page report dated June 6, 1997-Report including decisions of Alberta Energy and Utilities Board to approve Cheviot Coal Mine Project, recommendation of federal government to provide regulatory approval for project by issuing Fisheries Act authorization-Under CEAA, s. 37(1.1), responsible authority obliged to take into consideration, respond, with approval of Governor in Council, to Joint Review Panel Report-On October 2, 1997, Minister, being responsible authority referred to in s. 37(1.1)(c), with approval of Governor in Council, published "Federal Government Response to Environmental Assessment Report of Joint Review Panel on Cheviot Coal Project"-On October 31, 1997, applicants filed present application for judicial review-Never applied for judicial review of Federal Response-Report of Joint Panel not "decision or order" within meaning of Federal Court Act, s. 18.1(2)-Critical decision Minister must make whether environmental effects of project insignificant or significant and, if the latter, whether justifiable-Because s. 37(1.1)(c) mandatory provision, Minister having no discretion to make determination concerning jurisdiction to take course of action under CEAA, s. 37(1)-Since Federal Response remained unchallenged in any court of competent jurisdiction, it stands as barrier to relief claimed by applicants against Minister-Application dismissed-Environmental Protection and Enhancement Act, S.A. 1992, c. E-13.3-Fisheries Act, R.S.C., 1985, c. F-14, s. 35(2)-Canadian Environmental Assessment Act, S.C. 1992, c. 37, ss. 37(1) (as am. by S.C. 1994, c. 46, s. 3), 37(1.1) (as enacted idem)-Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1(2) (as enacted by S.C. 1990, c. 8, s. 5).