Date: 20040819
Docket: T-1313-04
Ottawa, Ontario, this 19th day of August, 2004
Present: The Honourable Mr. Justice Harrington
BETWEEN:
BENNETT ENVIRONMENTAL INC.
Applicant
- and -
MINISTER OF THE ENVIRONMENT and
the CANADIAN ENVIRONMENTAL ASSESSMENT AGENCY
Respondents
- and -
EEL RIVER BAR FIRST NATION, PABINEAU FIRST NATION,
MICMAC OF GESGAPEGIAG, LISTUGUJ MICMAC GOVERNMENT
and the BELLEDUNE CITIZENS COMMITTEE
Interveners
REASONS FOR ORDER
[1] On May 21st this year, through a news release from the Canadian Environmental Assessment Agency, the then Minister of the Environment, the Honourable David Anderson, announced he was giving Bennett Environmental Inc. notice of his intention to refer its High Temperature Thermal Oxidizer facility in Belledune, New Brunswick to a review panel for an assessment of potential transboundary environmental effects in Québec and on federal lands and waters, the whole in accordance with the Canadian Environmental Assessment Act.
[2] The news release went on to say that although federal experts were of the view that the facility, which is intended to rid contaminated soil of pollutants, was not likely to cause significant adverse transboundary environmental effects, the Minister decided further assessment was needed because Health Canada was of the view that available data was too limited to state with absolute confidence that there were no human health concerns for transboundary communities.
[3] This news release was followed in short order by a letter from the Agency to Bennett notifying it of the Minister's intention, and by a further news release on June 14th announcing the actual referral of the project to a federal review panel.
[4] Before me is Bennett's application for judicial review of the June 14th decision. Bennett submits that:
a) the Minister did not actually make a decision. It follows that the review panel cannot proceed with its mandate;
b) if he did make a decision, it was not a decision Parliament empowered him to make. The Act permits environmental assessments of "projects". The Belledune facility was well beyond the "project" stage this past May and June. In fact, construction of the facility, duly licenced by New Brunswick authorities, and which needed no federal approval, was more than 90% complete;
c) if the Minister was authorized to make a decision, it should be set aside on judicial review for unreasonableness, not only because federal experts, including Health Canada, were of the opinion that the project was not likely to cause significant adverse transboundary effects but also because the proposed standard was impossible to achieve as no one can predict the future with absolute confidence;
d) finally, the decision should be quashed because it was unfair in the circumstances.
[5] I will deal with each submission in turn.
DID THE MINISTER MAKE A DECISION?
[6] The Act, 1992 S.C. c37, as amended, contemplates two ways in which a federal environmental assessment may be put in place. One is mandatory, the other discretionary.
[7] Section 5 of the Act requires that an environmental assessment be conducted before a federal authority becomes directly involved in a project, such as being the proponent thereof, doing something that commits it to carrying out the project, authorises financial assistance, makes federal lands available or issues a required approval, permit or licence. It is common ground that section 5 does not apply to the Bennett facility.
[8] Nevertheless the Minister may refer what would otherwise be a provincial project to a federal review panel if he "is of the opinion that the project may cause significant adverse environmental effects" in another province (s. 46), internationally (s.47) or on certain federal lands, including lands in a reserve set aside for the use and benefit of a band or other lands in respect of which First Nations have interest.
[9] Bennett submits that there is no evidence that the Minister actually referred the Belledune facility to a review panel. There is no evidence that he signed a directive. All we have are two news releases and the letter Bennett received from the Agency.
[10] As far as I am concerned the Minister did in fact make a decision to refer the matter to a review panel.
[11] Neither the Act nor the common-law prescribes a particular manner or form of decision making. If parliament intended that a decision to exercise discretion under sections 46 through 48 of the Act had to be reduced to writing it would have said so. For instance environmental assessment decision statements following comprehensive study reports under section 23 of the Act must be in writing.
[12] If the agency was issuing news releases and notices without authority we would have known by now. The Minister of the Environment is represented in these proceedings by the Deputy Attorney General who has no instructions that the Minister did not make the decisions he appears to have made. The only conclusion to draw is that the Minister instructed the agency to issue the news releases expressing his decisions. It matters not whether these instructions were given orally or in writing. It would be an inappropriate intrusion into the operations of the Department to require an affidavit from either the Minister confirming he made a decision or from someone in the agency confirming he or she was instructed by the Minister to issue the news releases, and to give Bennett notice. In the circumstances, the Department and agency were masters of their own procedure (Re Therrien, [2001] 2 S.C.R. 3 at para. 88). Indeed the press release, in and of itself, might have constituted sufficient notice (Stratégies St- Laurent v. Canada (Minister of the Environment), [1998] F.C.J. No. 1349, 156 F.T.R. 273, Rouleau J.).
IS THE BELLEDUNE FACILITY A "PROJECT"?
[13] The Act only permits environmental assessments of "projects", be they mandatory pursuant to section 5 and following or discretionary arising from transboundary considerations as set out in sections 46 and following. A "project" is defined in section 2 of the act as follows:
| "project" means (a) in relation to a physical work, any proposed construction, operation, modification, decommissioning, abandonment or other undertaking in relation to that physical work, or (b) any proposed physical activity not relating to a physical work that is prescribed or is within a class of physical activities that is prescribed pursuant to regulations made under paragraph 59(b); |
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« _projet_ » 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). |
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[14] Bennett claims that the facility, which was over 90% constructed be it this May or June, lost its status as a "project" when it got the go ahead from New Brunswick authorities in early 2003 and acted thereon. The respondents counter that they are not subjecting the proposed construction of the facility to review, only its proposed operation. That operation is still a "project" because Bennett has not yet received final approval from the New Brunswick authorities. The interveners go one step further. They point out that the issuance of the building permit is under appeal. If that permit is ultimately revoked, the construction was illegal in the first place.
[15] In order to put these competing submissions in context it is necessary to consider the purpose and history of the project.
[16] Bennett applied to the New Brunswick authorities on August 6th, 2002, for permission to construct and operate a High Temperature Thermal Oxidizer facility at Belledune. This facility, similar to one which has been operated for it in Québec for some years now, is centred on a rotary kiln. Contaminated soil is received from various "brownfield" sites in North America and subjected to high heat in order to volatilize the entrained hydrocarbons. These contaminants make their way into an afterburner where they are destroyed by further heat. Combustion gases are treated in downstream air pollution control units. The treated soils, up to one hundred thousand tonnes per year if Bennett's business plan works out, are then sampled and analysed to ensure that they meet applicable standards for intended end use.
[17] The project was referred to a Technical Review Committee comprised of representatives of a number of New Brunswick departments as well as representatives of the federal departments of the environment and fisheries and oceans. On January 17, 2003, Bennett was granted approval to proceed, subject to various conditions. Among other things, it was required to conduct a human health risk assessment including air deposition modelling, to install appropriate pollution control equipment, to submit for approval soil and ground water monitoring programs and to conduct public information sessions in the Belledune community.
[18] Bennett proceeded accordingly and on September 9, 2003, was granted approval to construct pursuant to the Clean Environment and Clean Air Acts of New Brunswick. Actual construction began September 15, 2003. The approval allows limited operation of the facility up to the time of commissioning and performance testing. Prior to full commercial operation, a New Brunswick approval to operate is required.
[19] Bennett is confident the facility will pass the test burns with flying colours, the whole to the satisfaction of the New Brunswick authorities, and be in full commercial operation by this October.
[20] The project has not gone down well in some quarters. As mentioned, the issuance of the very building permit itself is under appeal. Last October, a coalition of New Brunswick and Québec concerned citizens complained to the Minister about the "proposed toxic waste incinerator". They said there were deficiencies in the provincial environmental assessment process and asked for a federal assessment on the grounds that the project may cause significant adverse effects in Québec. The Micmac chiefs of the Baie des Chaleurs and the traditional seventh district of Gesgapegiag also expressed grave concerns that First Nation communities would suffer, as would the health of wildlife, waterfoul, migratory birds and water species.
[21] The Minister reacted by requesting an analysis of transboundary effects. A report with submissions from Environment Canada, Health Canada, Fisheries and Oceans and Indian and Northern Affairs was issued May 17th. More on this report later.
[22] I have come to the conclusion that Bennett's facility in Belledune was no longer a "project" when the Minister decided to refer it to a review panel. Since the Act only authorizes him to refer "projects" to a review panel, it follows he was acting without legal authority, and I so declare. The review panel cannot proceed.
[23] It is not necessary to identify the precise moment the facility went beyond the "project" stage. However it certainly had gone beyond that stage when construction began on September 15, 2003. Bennett suggests "project" status was exhausted around January 17, 2003, the date it was granted approval to proceed. It immediately engaged consultants and committed itself to get the necessary work done. That may or may not be so.
[24] The whole purpose of the Act is to project ahead, to prevent works that may be environmentally detrimental from starting in the first place. The preamble of the Act speaks of "integrating environmental factors into planning and decision making processes-" and public participation in the assessment of "projects to be carried out-". Furthermore, factors to be considered by a review panel in accordance with section 16 of the Act include whether there are "alternatives to the project" and "alternative means of carrying out the project- ".
[25] Approval of a project is not a licence to pollute. If the facility does in fact pollute, Bennett must pay and the facility could be shut down. Common law and statutory remedies remain intact.
[26] The facility was past the point of no return, even when the Minister was petitioned to establish a review panel. Although section 28 of the Act requires him to consider such petitions, a petition cannot have the effect of turning back the clock and bringing the facility back into the project stage.
[27] Directly on point is section 50 (1) of the Act which permits the Minister to prohibit the "proponent of the project" (Bennett) "from doing any act or thing that would commit the proponent to ensuring that the project is carried out in whole or in part" while the assessment of transboundary effects is under way. Bennett had acted and had done things committing it to carrying out the project long before the Minister referred the matter to a review panel.
[28] In Tsawwassen Indian Band v. the Canada (Minister of Finance), 2001 FCA 58, 270 N.R. 145, 37 C.E.L.R. (N.S.) 182, Linden J.A., speaking for the Federal Court of Appeal, said at paragraph 11 that "once a project is approved and construction has legally begun, that approval cannot be reopened. - [e]nvironmental assessments must only be done of proposed construction which is still in the planning stages."
[29] The respondents point out however that the Act was amended following Tswwassen by the addition of section of 2(3) which provides
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For greater certainty (3) For greater certainty, any construction, operation, modification, decommissioning, abandonment or other undertaking in relation to a physical work and any activity that is prescribed or is within a class of activities that is prescribed for the purposes of the definition "project" in subsection (1) is a project for at least so long as, in relation to it, a person or body referred to in subsection 5(1) or (2), 8(1), 9(2), 9.1(2), 10(1) or 10.1(2) is considering, but has not yet taken, an action referred to in those subsections.
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Précision (3) Il est entendu que la réalisation - y compris l'exploitation, la modification, la désaffectation ou la fermeture - d'un ouvrage, ou l'exercice d'une activité désignée par règlement ou faisant partie d'une catégorie d'activités désignée par règlement pour l'application de la définition de « _projet_ » au paragraphe (1), constituent un projet, au minimum, tant qu'une personne ou un organisme visés aux paragraphes 5(1) ou (2), 8(1), 9(2), 9.1(2), 10(1) ou 10.1(2) envisage mais n'a pas encore pris une mesure prévue à ces dispositions.
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[30] I cannot see how section 2(3) is of assistance. The pondering persons to which it refers are all federal officials, not provincial ones. I see nothing in the Act which indicates that Parliament intended a different time line with respect to projects which have a somewhat oblique indirect federal connection via transboundary effects, rather than a direct connection via section 5 of the Act.
[31] The interveners seize upon Mr. Justice Linden's proviso that construction be "legally begun". If the building permit is ultimately revoked, the New Brunswick consequences of this project are to be determined in New Brunswick, and by New Brunswick courts. The same holds true if the final operating permit is withheld.
WAS THE DECISION UNREASONABLE?
[32] In essence, Bennett says the science is such that the maximum concentration of pollutant would be 200 metres from its source, still well within Bennett's own property. Given that the Minister's own advisors think it unlikely that there will be transboundary effects, given that the Minister had earlier replied to a question in the House from a Bloc Québécois member of Parliament that the Belledune facility was a local matter, and given that a federal election was called two days after the first news release, the Minister knew, or should have known, the Act could not have possibly had any application. Furthermore, an "absolute confidence" standard is impossible to meet. While it might have been better had Health Canada said something to the effect that it could not rule out the possibility of transboundary effects because of insufficient data, rather than to say it was unable to so state with "absolute confidence", the Minister cannot be hung out to dry on those words.
[33] Since I have already decided that he could not refer the matter to a review panel because the facility was not a "project" within the meaning of the Act, it is not necessary for me to rule on this point and I decline to do so. However I would have been most reluctant to interfere with the Minister's discretion. The purpose of the panel would have been to develop additional information. Even if there were political motives, they cannot be considered by this Court (Thorne's Hardware Ltd. et al v. Her Majesty the Queen et al., [1983] 1 S.C.R. 106 per Dickson J., at p. 112). It should also be noted that the first press release came out just four days after the task force issued its report analysis.
WAS THE DECISION UNFAIR?
[34] In the light of my decision, it is not necessary to consider the various sub-topics canvassed by the parties under this heading, except one. Whether it would have taken the panel months or years to complete its task, Bennett would have been undeniably prejudiced as the legal viability of the facility would have been in doubt. Federal officials knew of the project by the autumn of 2002. Had I not held that the facility was no longer a "project" I would have been tempted to hold that it would not have been right for the Minister to commission studies rather than to act while Bennett was spending some 29 million dollars readying the facility. Put another way, if the matter were still a "project" I would have held that by analogy, Bennett as the proponent, should be treated no differently from "federal" proponents pursuant to section 5 and following of this Act. For instance, section 11 requires the federal authority to "ensure that the environmental assessment is conducted as early as practicable in the planning stages of the project and before irrevokable decisions are made".
[35] For these reasons the application for judicial review is granted, with costs. Although Bennett sought costs from the Minister on a solicitor client basis, there was no reprehensible or scandalous conduct on his part which would justify such costs. All parties agree that this is the first time the transboundary sections of the Act have come before the Court. Furthermore I do not think it was inappropriate for the Minister to attempt to distinguish Tsawwassen in the light of subsequent amendments to the Act. There shall be no costs against the interveners.
"Sean Harrington"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1313-04
STYLE OF CAUSE:
BENNETT ENVIRONMENTAL INC.
Applicant
- and -
MINISTER OF THE ENVIRONMENT and
the CANADIAN ENVIRONMENTAL ASSESSMENT AGENCY
Respondents
- and -
EEL RIVER BAR FIRST NATION, PABINEAU FIRST NATION,
MICMAC OF GESGAPEGIAG, LISTUGUJ MICMAC GOVERNMENT
and the BELLEDUNE CITIZENS COMMITTEE
Interveners
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: AUGUST 13, 2004
REASONS FOR ORDER : HARRINGTON J.
DATED: AUGUST 19, 2004
APPEARANCES:
Andrew J. Roman
Erin M. Tully FOR APPLICANTS
Brian Evernden FOR RESPONDENTS
Eric K. Gillespie FOR INTERVENERS
SOLICITORS OF RECORD:
Miller Thomson LLP
Toronto, Ontario FOR APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENTS
Cunningham & Gillespie LLP
Toronto, Ontario FOR INTERVENERS