[2016] 2 F.C.R. D-5
Environment
Judicial review of two decisions by Minister of Environment, Minister of Health (respondents) concerning genetically engineered Atlantic salmon containing single copy of opAFP-GHc2 transgene at EO-la locus known as AquAdvantage Salmon (AAS) — Applicants registered non-profit societies committed to public interest in marine environment protection — Other respondent, AquaBounty Canada Inc., biotechnology company developing, owning rights to AAS — Applying under Part 6 of Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33 (CEPA or Act) proposing to produce sterile, all female AAS eggs on commercial scale at PEI facility, to export eggs annually for grow-out, processing in Panama — In New Substances Notification, AquaBounty Canada Inc. including request for waiver of requirement to submit data from test conducted to determine pathogenicity, toxicity or invasiveness of AAS — Filing of Notification triggering 120-day assessment period provided for in CEPA, s. 108 — Department of Fisheries and Oceans (DFO) providing Minister of Environment with assessment of AAS, concluding that AAS not CEPA-toxic or capable of becoming CEPA-toxic for specific use scenario stated in AquaBounty’s Notification — DFO also not objecting to AquaBounty’s waiver request; recommending further assessment of any use of AAS beyond what AquaBounty proposing in issue of Significant New Activity Notice (SNAc Notice) — Minster of Environment granting waiver AquaBounty requesting — Respondents agreeing that manufacture, use of AAS proposed by AquaBounty not CEPA-toxic or capable of becoming CEPA-toxic, that SNAc Notice should be issued but differing from DFO on scope thereof — Minister of Environment publishing SNAc Notice in Canada Gazette in relation to AAS but notice broader than AquaBounty’s proposed uses of AAS — Applicants submitting that Minister of Environment failing to comply with requirements of CEPA when Minister publishing in Canada Gazette SNAc Notice in respect of AAS; that respondents failing to obtain, assess legally required information for toxicity assessment conducted under CEPA, s. 108 — Whether respondents’ decision that AAS not CEPA-toxic reasonable; whether Minster of Environment’s publication of SNAc Notice reasonable — Respondents considering information regarding potential uses, locations of introduction of AAS — Respondents relying on DFO Report, including DFO’s recommendation for further assessment — DFO Report showing that respondents considering other potential uses of AAS or locations of introduction; concluding having insufficient information to determine whether some potential uses could result in AAS becoming toxic — Therefore, Minister of Environment issuing SNAc Notice permitting potential uses of AAS that respondents determining would not result in toxicity while requiring additional assessment for other uses — Regarding validity of Minister of Environment’s waiver, Minister’s six-month delay in publishing notice of waiver not unreasonable — While publication must take place within reasonable time following grant of waiver, no statutory requirement that events must occur at exact same time or in close proximity — Also, Parliament’s use of word “is” in CEPA, s. 106(9) not necessitating finding that waiver only granted once notice published — Grant, notice of waiver dealt with by distinct provisions of CEPA, ss. 106(8),(9) respectively — If Parliament intending that notice itself would trigger legal effect of waiving information requirement, could have conveyed intention in single, explicit provision linking notice to legal effect — Regarding timing of waiver, New Substances Notification Regulations (Organisms), SOR/2005-248 (NSN Regs.), s. 6(d) stating that Ministers’ toxicity assessment running for 120 days after receiving information referred to in Schedule 5 — Provision not addressing how waiver request, corresponding failure to provide all information referred to in Schedule 5 affecting running of assessment period — Ministers claiming that under NSN Regs, s. 6(d), assessment period beginning to run when Ministers receiving information referred to in Schedule 5 or when, after receiving request for waiver regarding information not received, request ultimately granted — Interpretation thereof not unreasonable; more practical, reasonable than applicants’ proposed interpretation — As to right of public participation, notice of waiver not providing opportunity for public participation in toxicity assessment in manner applicants describing — Concerning SNAc Notice, CEPA, s. 106(10) restricting AquaBounty’s use of AAS at PEI facility since s. 106(10) specifying that activity involving living organism must take place at location specified in waiver request — In present case, clear that location specified in AquaBounty’s request for waiver being PEI facility — SNAc Notice issued to applicants not inconsistent with CEPA, s. 106(10) — SNAc Notice issued under CEPA, s. 110(1) directed only to use, not to manufacture, importation — CEPA, ss. 106(1) (manufacture, importation), 106(4) (use) having different focus — Consequently, even though SNAc Notice issued permitting use at contained facility (AquaBounty’s PEI facility), any person seeking to manufacture or import AAS must still file Notification under CEPA, s. 106(1), including AquaBounty — AquaBounty limited by s. 106(10) to using, manufacturing AAS at PEI facility given that AquaBounty receiving waiver — Therefore, no absurdity in Minister issuing SNAc Notice permitting wider range of uses of AAS than that permitted by CEPA, s. 106(10) — Scope of SNAc Notice not overly broad, unreasonable herein – Clear that Minister of Environment’s functional approach to SNAc Notice leading Minister to conclude that containment measures required by AAS SNAc Notice working equally well regardless of whether AAS grown out for research, reproduction or commercial grow-out — Application dismissed.
Ecology Action Centre v. Canada (Environment) (T-2114-13, 2015 FC 1412, Zinn J., judgment dated December 22, 2015, 33 pp.)