Friends of The Island Inc. v. Canada ( Minister of Public Works )
T-1394-93
Cullen J.
12/8/93
88 pp.
Application for judicial review seeking mandamus, prohibition and declaratory relief in respect of decision by Public Works Canada (PWC) to build bridge between Prince Edward Island and New Brunswick -- Applicant also requesting declaration agreement between federal government and respondents Strait Crossing Inc. (SCI) and Strait Crossing Development Corp. (SCI) unconstitutional until Prince Edward Island Terms of Union amended pursuant to Constitution Act, 1982 -- Project established by PWC in January 1987 to study feasibility of fixed crossing and identify and select preferred option in concert with Governments of Prince Edward Island and New Brunswick -- Guidelines Order applying to fixed link as project addressing environmental concerns -- Reed J. holding (a) no determination made by PWC under Guidelines Order, s. 12 concerning SCI proposal for construction and operation of Bridge; (b) discontinuance of existing ferry service would contravene existing Prince Edward Island Terms of Union -- PWC, as "initiating department", deciding potentially adverse environmental effects caused by SCI proposal insignificant or mitigable with known technology within Guidelines Order, s. 12(c) -- Decision attacked by applicant on several grounds -- Bill C-110 authorizing PWC to enter into agreement with SCI -- Initial assessment under Guidelines Order, s. 10 and determination under s. 12 complying with Reed J.'s order, consistent with requirements of Guidelines Order -- Full evidentiary record on which to make impact predictions and to base s. 12 determination -- Self-assessing decision arrived at with all objectivity necessary -- Onus not satisfied by applicant to justify intervention by Court -- PWC decision not made without regard to relevant factors, reasonable basis for it -- Effects found by PWC not environmental impacts but socio-economic effects, not required to be assessed under s. 12 -- Provisions outlined in Guidelines Order, s. 12(e) not part and parcel of determination under s. 12(c) -- Resolution passed by legislature of PEI to amend Prince Edward Island Terms of Union so as to allow substitution of fixed link for efficient steam service guaranteed in Terms of Union and to allow for collection of tolls -- Bill C-110 authorizing Minister of Public Works to enter into contract for construction of fixed link on certain terms and conditions -- Validity of Bill C-110 not at issue -- Mere promise by government to enact legislation in future unenforceable either by contract or estoppel-Applicant having standing to raise constitutional issues raised in application -- Question of prematurity or "ripeness" raised by respondents as discretionary bar to application -- No agreement before Court to determine constitutional validity of covenant binding on federal government -- Possible procurance of harm merely speculative -- Intended date of substantial completion date on which Government of Canada intends on stopping ferry service -- Cessation of ferry service clearly intended to be condition or term of agreement -- Argument not premature -- Crown having power of natural person to enter into contracts -- Not having power to bind itself to breach of supreme law of land, namely Constitution -- No statutory authority necessary to enable Crown to enter into contract -- Contract cannot unilaterally amend Constitution-Crown's power to contract not restricted by same limits as apply to exercise of legislative powers -- Minister of Crown cannot undertake course of action inconsistent with Constitution Act, 1982-Constitution cannot be circumvented by having executive enter into contract to do something not within Constitution or protected under Constitution -- Nothing inherently unconstitutional about building bridge or entering into contract to build bridge -- PWC and SCI not proposing to enter into agreement to violate Constitution -- No breach of Constitution if bridge built and no amendment in place, as long as ferry continues to run -- Discontinuance of ferry service requiring amendment to Prince Edward Island Terms of Union-Penalty clause amounting to $1.5 billion if new government fails to amend Constitution -- Constitution applicable to agreement-Nothing unconstitutional about PWC and SCI entering into agreement to build bridge, if undertaking to amend Constitution prior to discontinuance of ferry service -- Application dismissed-Environmental Assessment Review Process Guidelines Order, SOR/84-467, ss. 10, 12, 15 -- Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 52.