ENVIRONMENT
Judicial review of screening decision by federal responsible authorities (RAs) made under Canadian Environmental Assessment Act (CEAA) after conducting screening level environmental assessment of Sea-to-Sky Highway Improvement Project proposed by British Columbia Ministry of Transport (MOT)—Project covering approximately 95 km in distance, extending from West Vancouver to Whistler— Applicant seeking declaration, certiorari quashing screening decision that Project not likely to cause significant adverse environmental effects since decision clearing way for issuance of federal authorizations in southern portion of Project— Focus of dispute proposed construction of new four-lane highway over about 88 hectares of undeveloped timber lands owned either by applicant, private corporate landowner— Applicant contending federal screening assessment, decision not complying with CEAA since: (1) in environmental assessment, RAs failed to conduct risk analysis of material environmental effect, namely impact of blowdown or windthrow of trees likely to be caused by construction of new four-lane highway over affected area; (2) applicant denied procedural fairness (a) by denial of opportunity to comment on screening report contrary to CEAA, s. 18(3); (b) because screening decision unlawfully collapsed into screening report by curtailing applicant’s right to comment thereon— Environmental assessment for Project joint federal/provincial endeavour in accordance with Canada/BC Agreement for Environmental Assessment Cooperation—RAs, interested stakeholders, including applicant, actively involved in joint environmental assessment process—Screening decision, approved by RAs, contained in document entitled “Screening Recommendation and Decision Summary” dated June 10, 2004, identifying potential environmental impacts— Environmental Assessment Certificate issued by provincial government to MOT for Project under specific conditions, including making windthrow prediction assessment, implementing mitigation measures—Essence of environmental assessment under CEAA to predict environmental effects of proposed project, assess significance —Under CEAA, screening report (s. 18) to be prepared before decision made as to whether Project likely to cause significant adverse environmental effect or whether uncertainty precluding making of decision (s. 20)—S. 18(3) providing for possibility of public participation through public commenting on screening report prior to making of decision—In making determination on project’s significant adverse environmental effects, RAs having to take into account screening report, comments, implementation of mitigation measures considered appropriate (s. 20)—Review of principles flowing from cases decided under CEAA—Applicant’s argument screening decision unlawfully collapsed into screening report based on fact provincial Assessment Report also part of federal screening report, stating RAs concluded Project not likely to cause significant adverse environmental effects—Submitting, public comment on screening report thus meaningless—S. 18(3) of CEAA conferring on RAs discretionary authority to provide for public participation after release of screening report—S. 16 requiring every project screening to include consideration of listed factors including significance of environmental effect, compelling opinion of likelihood upon which RAs may reach s. 20 conclusion—Applicant very active participant as stakeholder in numerous committees reviewing Project, public at large consulted in material evolution of project—S. 18(3) not triggered when RAs holding meeting with applicant on June 7, 2004 because no evidence RAs making determination public participation in screening of project appropriate in circumstances—Evidence in fact pointing to contrary given applicant’s extensive participation in assessment process over two-year period—June 7, 2004 meeting further opportunity provided to applicant by RAs to make concerns known as important stakeholder in process—Furthermore, because Project subject of joint federal-provincial review, applicant had continuous access to RAs throughout screening process, made view on windthrow issue known—In determining whether project containing significant adverse effect, word “significance”, principal criterion under CEAA, containing large measure of opinion, judgment—Main issue whether RAs assessed windthrow of trees before making screening conclusion—Windthrow of trees environmental impact consisting of creation of new forest edge, capable of introducing new set of dynamic forces when forest opened up to clear new highway’s right of way—Expert’s report statements about uncertainty regarding Project’s possible windthrow effect, need for more information, must be appreciated within context of report itself and against background of other evidence available to RAs—RAs, provincial environmental authorities interpreting expert’s report as advice more information about site required before possible more specific windthrow mitigation options investigated—But ample evidence to assess environmental impact of windthrow in affected area, to consider significance thereof measured against known mitigation techniques, which cannot be implemented at preliminary design stage— Reasonable for RAs to rely on MOT’s commitment to mitigate impact through follow-up studies in circumstances— Application dismissed—Canadian Environmental Assessment Act, S.C. 1992, c. 37, ss. 16 (as am. by S.C. 1993, c. 34, s. 22(F)), 18 (as am. by S.C. 1993, c. 34, s. 23(F); 2003, c. 9, s. 9), 20 (as am. by S.C. 1993, c. 34, s. 25(F); 2003, c. 9, s. 11).
West Vancouver (District) v. British Columbia (Ministry of transportation) (T-1310-04, 2005 FC 593, Lemieux J., order dated 4/5/05, 57 pp.)