A-395-89
Friends of the Old Man River Society (Appellant)
(Applicant)
v.
Minister of Transport and Minister of Fisheries
and Oceans and Her Majesty the Queen in Right
of Alberta, as represented by the Minister of
Public Works, Supply and Services (Respondents)
(Respondents)
INDEXED AS: FRIENDS OF THE OLDMAN RIVER SOCIETY Y.
CANADA (MINISTER OF TRANSPORT) (CA.)
Court of Appeal, Heald, Urie and Stone, JJ.A.—
Ottawa, January 23, 24 and March 13, 1990.
Environment — Construction of dam on Oldman River,
Alberta — Where areas of federal responsibility environmen
tally affected by proposal, Environmental Assessment and
Review Guidelines Order binding on Ministers to whom
approval application or action request made and on Ministers
in charge of areas of federal responsibility environmentally
affected — Guidelines Order, unlike Alberta environmental
impact studies, allowing for full public participation and
providing for large measure of independence of review panel.
Crown — Prerogatives — Provincial Crown not immune
from approval requirements of Navigable Waters Protection
Act — Clear from scheme of Act, Parliament intended to bind
provincial Crown — Act frustrated if provincial Crown not
bound.
Judicial review — Prerogative writs — Construction of dam
on Oldman River, Alberta — Respondent federal Ministers not
complying with Environmental Assessment and Review Guide
lines Order — Certiorari and mandamus to issue as Ministers
bound by Guidelines Order.
In March, 1986, the Alberta Department of the Environment
approached the federal Minister of Transport for approval,
under section 5 of the Navigable Waters Protection Act, of the
construction of a dam on the Oldman River. The approval was
granted without subjecting the project to any environmental
screening or initial assessment under the Environmental
Assessment and Review Process Guidelines Order. Nor was it
referred to the federal Minister of the Environment for public
review under that Order.
In 1987, the Minister of Fisheries and Oceans and the
Minister of the Environment were asked to intervene to ensure
that the project would be reviewed under the Guidelines Order.
They both declined, saying that Alberta would take care of any
problem associated with the dam.
This was an appeal from the Trial Division decision dismiss
ing an application for certiorari to quash the approval and
mandamus requiring both Ministers to comply with the Guide
lines Order. The appellant argued that the Trial Judge erred in
holding (1) that the Guidelines Order did not apply to an
application to the Minister of Transport for an approval pursu
ant to subsection 5(1) of the Navigable Waters Protection Act,
(2) that the Guidelines Order did not apply to the decision
making authority of the Minister of Fisheries and Oceans in the
circumstances of this case and (3) that it was not an appropri
ate case to grant certiorari or mandamus. A fourth issue was
whether the provincial Crown was subject to the proceedings in
this Court and whether it was immune from the approval
requirements of the federal legislation.
Held, the appeal should be allowed.
As was held by this Court in Canadian Wildlife Federation,
the Guidelines Order was a law of general application. The
guidelines were to be used by departments in the exercise of
their powers and the carrying out of their duties and functions
in furtherance of those duties and functions of the federal
Minister of the Environment himself which were related to
environmental quality. The Guidelines Order was intended to
bind federal ministers whenever their duties and functions
involved matters raising environmental questions in areas of
federal responsibility.
Paragraph 6(b) of the Guidelines Order provided that it
applied to any proposal that could have an environmental effect
on an area of federal responsibility. The evidence herein clearly
established that the construction and operation of the Oldman
River dam and reservoir could have an environmental effect on
at least three areas of federal responsibility, namely, fisheries,
Indians and Indian lands.
The Trial Judge erred in deciding that the Minister of
Transport was restricted to considering factors affecting marine
navigation only and that he was without authority to require
environmental review. The Guidelines applied to any proposal
where the initiating department was responsible as the decision
making authority. The proposal herein resulted in the Depart
ment of Transport becoming the initiating department respon
sible as the decision making authority. The environmental
effect of granting the application on any area of federal respon
sibility needed to be examined in accordance with the provi
sions of the Guidelines Order.
The Minister of Fisheries and Oceans was also bound by the
Guidelines Order. According to the definition of "proposal" in
the Guidelines Order, nothing in the nature of an application
was required. All that was needed was for the Minister to
become aware of an "initiative, undertaking of activity". This
certainly could be accomplished by a request on the part of an
individual for specific action falling within the Minister's
responsibilities. In such circumstances, if any "initiative, under
taking or activity" existed for which the Government of
Canada had a "decision making responsibility", a "proposal"
also existed. In this case, there was an initiative and there were
potential problems with respect to the fisheries resources. The
request that the Minister fulfill his responsibilities and that he
intervene to protect the fisheries resources rendered him the
"decision making authority" for determining what action would
be taken in relation thereto. The Minister's jurisdiction was
also engaged by reason of the approval application made to the
Minister of Transport: the Guidelines Order required the par
ticipation of every department in charge of an area of federal
responsibility that was environmentally affected by a proposal.
Although an appeal court will hesitate to interfere with the
exercise of a discretion by a trial judge, in this case, the
Motions Judge erred in finding that compliance with the
Guidelines Order would bring about a needless repetition of a
process which had been exhaustively canvassed over the past
twenty years. The Guidelines Order was drafted to ensure a
much more extensive public participation than that contemplat
ed under the provincial regime. And the independence of the
review panel was guaranteed to a much greater extent under
the Guidelines Order than at the provincial level.
This Court had, in this case, jurisdiction over Her Majesty
the Queen in right of Alberta. It was settled in Adidas (Can.)
Ltd. v. Skoro Enterprises Ltd. that any person who might be
adversely affected by an order such as the one here sought may
be joined as a party to the proceeding so that it can pursue
whatever remedy may be open to it by way of appeal therefrom.
Nor was the provincial Crown immune from the approval
requirements of the Navigable Waters Protection Act. It was
clear from the scheme of the Act that Parliament intended to
bind the provincial Crown. Furthermore, the statute would be
wholly frustrated if governments were not bound.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Department of the Environment Act, R.S.A. 1980, c.
D-19.
Department of the Environment Act, R.S.C., 1985, c.
E-10, s. 6.
Environmental Assessment and Review Process Guide
lines Order, SOR/84-467, ss. 2, 3, 4, 6, 10, 12, 13, 15,
18, 19, 21, 22, 27, 28, 29, 30, 31, 33, 36.
Environmental Council Act, R.S.A. 1970, c. 125; R.S.A.
1980, c. E-13.
Federal Court Act, R.S.C., 1985, c. F-7, ss. 2, 18.
Fisheries Act, R.S.C., 1985, c. F-14, ss. 35, 37.
International River Improvements Act, R.S.C., 1985, c.
1-20.
Navigable Waters Protection Act, R.S.C., 1985, c. N-22,
ss. 4, 5, 6.
CASES JUDICIALLY CONSIDERED
REVERSED:
Friends of the Oldman River Society v. Canada (Minis-
ter of Transport), [1990] I F.C. 248; [1990] 2 W.W.R.
150; 30 F.T.R. 108 (T.D.).
APPLIED:
Can. Wildlife Fed. Inc. v. Can. (Min. of the Environ
ment), [1990] 2 W.W.R. 69; (1989), 27 F.T.R. 159; 99
N.R. 72 (F.C.A.); Reg. v. All Saints, Wigan (Church-
wardens of) (1875-76), 1 App. Cas. 611 (H.L.); Adidas
(Can.) Ltd. v. Skoro Enterprises Ltd., [1971] F.C. 382;
(1971), 12 C.P.R (2d) 67 (C.A.).
DISTINGUISHED:
Canadian Wildlife Federation Inc. v. Canada (Minister
of the Environment), [1990] 1 F.C. 595 (T.D.).
CONSIDERED:
Alberta Government Telephone v. Canada (Canadian
Radio-Television and Telecommunications Commis
sion), [1989] 2 S.C.R. 225; [1989] 5 W.W.R. 388;
(1989), 98 N.R. 161.
REFERRED TO:
Rodd v. County of Essex (1910), 44 S.C.R. 137; Polylok
Corporation v. Montreal Fast Print (1975) Ltd., [1984] 1
F.C. 713; (1983), 1 C.I.P.R. 113; 76 C.P.R. (2d) 151; 41
C.P.C. 294; 52 N.R. 218 (C.A.); Canadian Wildlife
Federation Inc. v. Canada (Minister of the Environment),
T-2102-89, Muldoon J., order dated 28/12/89, not yet
reported.
COUNSEL:
Brian A. Crane and Martin W. Mason for
appellant (applicant).
Brian J. Saunders for Department of
Transport.
Dennis R. Thomas and Andrea B. Moen for
Province of Alberta.
SOLICITORS:
Cowling, Strathy & Henderson, Ottawa, for
appellant (applicant).
Deputy Attorney General of Canada, for
Department of Transport.
Milner & Steer, Edmonton, for Province of
Alberta.
The following are the reasons for judgment
rendered in English by
STONE J.A.: This appeal is brought from an
order of the Associate Chief Justice made on
August 11, 1989 [[1990] 1 F.C. 248] dismissing
an application under section 18 of the Federal
Court Act, R.S.C., 1985, c. F-7. The appellant
sought certiorari to quash an approval granted by
the Minister of Transport on September 18, 1987
to the Department of the Environment of the
Province of Alberta in respect of the construction
of a dam on the Oldman River' in that province
pursuant to the provisions of the Navigable Waters
Protection Act, R.S.C., 1985, c. N-22, as well as
mandamus requiring both the Minister of Trans
port and the Minister of Fisheries and Oceans to
comply with the Environmental Assessment and
Review Process Guidelines Order, SOR/84-467,
(the "Guidelines Order") made pursuant to sec
tion 6 of the Department of the Environment Act,
R.S.C. 1970 (2nd Supp.), c. 14 (now R.S.C., 1985,
c. E-10).
NATURE OF DISPUTE
At the heart of this dispute is the assertion that
the approval was not lawfully granted because the
Minister of Transport and the Minister of Fisher
ies and Oceans failed to comply with the Guide
lines Order. The dispute is similar to the one which
arose in Can. Wildlife Fed. Inc. v. Can. (Min. of
the Environment), [1990] 2 W.W.R. 69 (F.C.A.),
where the issuing of a licence by the Minister of
the Environment (Canada) under another federal
statute 2 and regulations made thereunder was
challenged. This Court (per Hugessen J.A., at
' As it is clear from the record that this name, rather than
the one appearing in the style of cause, is the correct name of
the River, I shall so refer to it throughout these reasons for
judgment.
2 International River Improvements Act, R.S.C., 1985, c.
1-20.
page 70) made it clear in that case that the
Minister was obliged to follow the Guidelines
Order "just as he is obliged to follow any other law
of general application."
THE ISSUES
The three principal issues as submitted by the
appellant are:
(I) Whether the Learned Trial Judge erred in holding that the
EARP Guidelines Order does not apply to an application to the
Minister of Transport for an approval pursuant to section 5(1)
of the Navigable Waters Protection Act;
(2) Whether the Learned Trial Judge erred in holding that the
EARP Guidelines Order does not apply to the decision making
authority of the Minister of Fisheries and Oceans in the
circumstances of this case pursuant to sections 35 and 37 of the
Fisheries Act;
(3) Whether the Learned Trial Judge erred in holding that this
was not an appropriate case to grant certiorari or mandamus.
A fourth issue is whether the provincial Crown is
subject to the proceedings in this Court and wheth
er it is immune from the approval requirements of
the federal legislation.
BACKGROUND FACTS
An understanding of the true Import of the
issues is possible only when viewed in their factual
setting. Alberta is in the course of constructing a
dam at the Three Rivers site on the Oldman River
at a budgeted cost of some 353 million dollars. By
March 31, 1989, the dam was already 40% com
plete. The object of the work is to provide a secure
supply of water within the South Saskatchewan
River Basin in Southern Alberta. The Oldman
River has its source in the Rocky Mountains to the
west of the dam site. Its flows fluctuate, being
heaviest during spring run-off. The dam would
make it possible to impound river waters within a
reservoir for later use by farmers, ranchers, munic
ipalities and industries, among others.
The idea of a storage reservoir on the Oldman
River was first conceived in 1958 when Alberta
asked the federal government to determine the
feasibility of constructing such a work at Living-
ston Gap. In December, 1966 a "Progress Report
Preliminary Engineering Investigations Oldman
River Project, Proposed Three River Dam and
Reservoir", submitted by the Prairie Farm
Rehabilitation Administration of the federal
Department of Agriculture, raised doubts about a
site at Livingston Gap but suggested the Three
Rivers site for further investigation. Between 1966
and 1974 Alberta and Canada were involved in a
federal/provincial water supply study which
included the Three Rivers site.
In 1974, Alberta initiated studies into water
demands and potential storage sites on the Oldman
River and its tributaries, to be carried out in two
phases. The first phase, an evaluation of water
storage sites on the River, was conducted by the
Technical Advisory Committee appointed by the
Minister of the Environment (Alberta). It was
composed of representatives of various depart
ments of the provincial government including the
Department of the Environment, as well as other
bodies. This Committee produced a report' which
was released to the public in July 1976 for review
and comment. The Minister of the Environment
(Alberta) met and discussed these studies with
interested persons and received responses from
other departments of government, local authorities
3 Exhibit "E" to the Affidavit of Lorand K. Szojka of June
13, 1989, Appeal Book, Vol. 1, at p. 134 (the "Szojka Affida
vit"). The report, which is in five volumes, is titled "Oldman
River Flow Regulation: Preliminary Planning Studies" and
deals with water demand and supply, environmental consider
ations, and economic and environmental evaluation. Volume IV
of the report concerns environmental considerations and
includes a report on fish by D.S. Radford which was later relied
upon in the federal reports by Environment Canada and the
Department of Fisheries.
and associations. Several of the issues studied at
the second stage derived from these responses.
In early 1977, the Minister of the Environment
(Alberta) announced the formation of the Oldman
River Study Management Committee, consisting
of six representatives of the public and three repre
sentatives of the provincial government. This Com
mittee was mandated to conduct the second phase
study and was required to "make recommenda
tions relative to overall water management in the
Basin including the incorporation of the concerns
of area residents" 4 after studying, inter alfa, such
matters as "salinization, sedimentation, recreation,
fish habitat, and other environmental issues relat
ing to a number of sites and alternatives to dam
construction". 5 Some efforts were made to encour
age public participation in the process through use
of flyers and newsletters sent to households, press
releases, press conferences, and open house public
information exchange sessions. In the course of
these studies several meetings were held with
municipal district, improvement district, county,
city, town and village councils in the area and
workshops were conducted by the Management
Committee. Views, oral or written, were expressed
by various governmental and non-governmental
organizations, including fish and game associa
tions and Indian bands, among others. In 1978, the
Management Committee issued its "Oldman
River—Final Report, 1978". 6
The matter then passed for further study by a
panel of the Environmental Council of Alberta, a
4 The Szojka Affidavit, at p. 135.
5 Ibid.
6 Szojka Affidavit, Exhibit "S", at p. 137. "Oldman River
Basin—Phase 11 studies: Report and Recommendations;
(Continued on next page)
body established by statute.' In July, 1978 the
Lieutenant-Governor in Council ordered this body
to receive briefs and submissions on matters relat
ing to the dam. A number of public hearings were
held in Southern Alberta during November, 1978,
and numerous presentations and supplementary
briefs were received from different sources includ
ing environmental and other special interest
groups. In August, 1979 the Council submitted a
report 8 to the Minister of the Environment (Alber-
ta). The briefs received and the report itself
include some discussion of fish habitat. This report
together with the "Oldman River—Final Report,
1978" were later reviewed by provincial officials
and by a provincial government caucus committee.
On August 29, 1980, Alberta announced its deci
sion to construct a dam, and indicated at that
same time that the Three Rivers site was the
"preferred location" but that a final decision as to
site selection would be deferred to allow the
Peigan Indian Band the opportunity to submit a
proposal for an alterative site on its Reserve down
stream near Brocket. The Band submitted a writ
ten position 9 to the Minister of the Environment
(Alberta) in November, 1983. In August, 1984
Alberta announced its decision to proceed with
(Continued from previous page)
August, 1978". This report discusses water supply and distribu
tion systems, water management, and contains a technical
studies section which includes a subsection discussing the
"Environmental Overview".
' Environmental Council Act, R.S.A. 1970, c. 125 (now
R.S.A. 1980, c. E-13).
8 Szojka Affidavit, Exhibit "X", at p. 138. "Public Hearings
on Management of Water Resources within the Oldman River
Basin: Report and Recommendations". This report discusses
water management, irrigation, municipal and industrial uses,
markets, rehabilitation (agricultural), water storage, cost/bene-
fit analysis, compensation and expropriation, and Indian
reserves.
9 Szojka Affidavit, Exhibits "BB" and "CC".
construction of the dam at the Three Rivers site.
The Guidelines Order was already in force.
Attention then turned to the design, construc
tion and operation of the dam. The design was
completed in 1985 and a start was made in 1986
on the construction of a diversion tunnel associated
with the work. At the same time mitigation meas
ures were initiated and are on-going. In October,
1984 notices were published in local newspapers
inviting the public to attend "open houses" for the
sharing of information and the reception of con
cerns on such subjects as archaeology, fish habitat,
recreation, wildlife and irrigation, and a number of
these meetings were held. A project information
office was opened by the Department of the Envi
ronment (Alberta) close to the Three Rivers site
for the purpose of responding to public enquiries.
In addition to this, aspects of the project were
pursued through a number of subcommittees
established by an area municipal district and
assisted by the Department of the Environment
(Alberta).
In January, 1985, a Local Advisory Committee
was appointed by order of the Minister of the
Environment (Alberta) to act in an advisory
capacity to the Minister on matters related to the
project, including farming, relocation of roads,
location of reservoir crossings, local fish and wild
life concerns and recreational opportunities. The
Committee, composed of area residents and repre
sentatives of a nearby village and town, held a
number of public meetings. In June, 1988 the
Local Advisory Committee submitted a report 10 to
the Minister of the Environment (Alberta) con
taining recommendations in respect of fisheries,
wildlife, historical resources, agriculture, recrea
tion and transportation. Finally, concerns over the
impact of the dam on the lands of the Peigan
10 Szojka Affidavit, Exhibit "H H", at p. 142. "Oldman River
Report—Local Advisory Committee Report and Recommenda
tions to the Minister of the Environment, June 30, 1988". The
studies and reports presented to the Committee include some
42 volumes on fisheries mitigation and related topics.
Indian Band were subjected to study as appears
from a report made by the Band to the Minister of
the Environment (Alberta) in February, 1987.
A contract for the construction of the dam was
awarded by Alberta in February, 1988, and con
struction work has proceeded thereunder.
THE APPROVAL
On March 10, 1986 the Department of the
Environment (Alberta) approached the Minister of
Transport for an approval under section 5 of the
Navigable Waters Protection Act. The Deputy
Minister of Transport published notice of this
application in local newspapers advising that a
description of the site and plans of the Oldman
River Dam Project had been deposited with the
Department and that, after the expiration of one
month from the date of publication, the Depart
ment of the Environment (Alberta) would apply
under the Act "for approval of the said site and
plans". In due course, on September 18, 1987, the
approval was granted but upon a number of condi
tions all of which pertain to marine navigation.
Prior to granting this approval, the Minister of
Transport did not subject the matter to any envi
ronmental screening or initial assessment under
the Guidelines Order. Nor was it referred to the
Minister of the Environment (Canada) for public
review under that Order.
THE APPELLANT
The appellant came into existence as an incorpo
rated Society on September 8, 1987. Earlier, by
letter sent at the beginning of August, 1987, the
Southern Alberta Environmental Group raised
with the Minister of Fisheries and Oceans the
'question of compliance with the Guidelines Order.
That letter reads in part:
The "Procedures and Rules for Public Meetings" document
published by the Federal Environmental Assessment Review
Office in 1985, state that, under the Environmental Assessment
• and Review Process, federal departments are required to take
environmental matters into account throughout the planning
and implementation of projects that have an environmental
effect on a matter of federal responsibility.
Protection of fish habitat and fisheries are a federal matter and
the responsibility of your Department. It is clear that the
Oldman River Dam will have an impact on the fisheries
resources. Therefore, as Minister of the Department of Fisher
ies and Oceans, will your department call for initiation, under
FEARO, of an Initial Environmental Evaluation of the impacts
of the Oldman River Dam on the fishery resources of the
Oldman River and its tributaries, and consider a full environ
mental assessment and review of the project?
In his reply of August 25, 1987, the Minister
stated, inter alla:
The fisheries officials have raised a number of concerns with
the proponents of the dam and are now awaiting the formula
tion of mitigation and compensation proposals to remedy the
potential problems posed to the fisheries resources.
In view of the long-standing administrative arrangements that
are in place for the management of fisheries in Alberta, and the
fact that the potential problems associated with the dam are
being addressed, I do not propose to intervene in this matter.
By letter of December 3, 1987, the appellant
asked the Minister of the Environment (Canada)
that the project be reviewed under the Guidelines
Order. On January 15, 1988, the Minister's office
replied as follows:
As you may be aware, the Oldman River dam project falls
primarily within provincial jurisdiction. The federal govern
ment is not directly involved with the proposal, and, therefore,
it would be inappropriate for Environment Canada or Fisheries
and Oceans Canada to intervene directly by attempting to link
it to the Federal Water Policy.
It is incumbent upon Environment Canada, nevertheless, to
ensure that the pollution control provisions of the federal
Fisheries Act are implemented. Section 33 of the Act contains
the pollution specifications that prohibit the deposits of
deleterious substances into waters frequented by fish. Depart
mental officials with Environment Canada's Western and
Northern regional office in Edmonton have reviewed a number
of fisheries and environmental reports relevant to the project.
Although the reviews identified a number of concerns about the
project, Environment Canada is confident that Alberta's pro
posed mitigation plans will remedy any detrimental effects on
the fishery's resource.
In view of the long-standing administrative arrangements that
are in place for the management of the environmental impact
assessment proposals and the fisheries in Alberta, and because
the potential problems associated with the dam are being
addressed, it is not appropriate for Environment Canada to
intervene. Please rest assured, however, that federal and provin
cial agencies will closely follow the court proceedings on the
matter and monitor the project to ensure that guidelines and
regulations related to the construction and operation of the dam
will be followed.
A provincial licence granted for construction of
the dam by the Department of the Environment
(Alberta) was twice challenged by the appellant in
the Alberta Courts. The first challenge, in Octo-
ber, 1987, resulted in the quashing of the licence
and the issuing of a second one. An application to
quash this second licence was dismissed in April,
1988. It is apparent from the record that the
appellant did not become aware of the approval
until February 16, 1989. The present proceedings
attacking it were commenced in the Trial Division
on April 21 of that year.
THE GUIDELINES ORDER
Before discussing the issues raised on this
appeal, it is necessary to examine the content and
scope of the Guidelines Order. Section 6 of the
Department of the Environment Act, pursuant to
which the Order was adopted, states:
6. For the purposes of carrying out his duties and functions
related to environmental quality, the Minister may, by order,
with the approval of the Governor in Council, establish guide
lines for use by departments, boards and agencies of the
Government of Canada and, where appropriate, by corpora
tions named in Schedule I11 to the Financial Administration
Act and regulatory bodies in the exercise of their powers and
the carrying out of their duties and functions.
Section 2 of the Guidelines Order contains a
number of definitions:
2. In these Guidelines,
"Environmental Impact Statement" means a documented
assessment of the environmental consequences of any pro
posal expected to have significant environmental conse
quences that is prepared or procured by the proponent in
accordance with guidelines established by a Panel;
"department" means, subject to sections 7 and 8,
(a) any department, board or agency of the Government of
Canada, and
(b) any corporation listed on Schedule D to the Financial
Administration Act and any regulatory body;
"initiating department" means any department that is, on
behalf of the Government of Canada, the decision making
authority for a proposal;
"Minister" means the Minister of the Environment;
"Office" means the Federal Environmental Assessment Review
Office that is responsible directly to the Minister for the
administration of the Process;
"Panel" means an Environmental Assessment Panel that con
ducts the public review of a proposal pursuant to section 21;
"Process" means the Environmental Assessment and Review
Process administered by the Office;
"proponent" means the organization or the initiating depart
ment intending to undertake a proposal;
"proposal" includes any initiative, undertaking or activity for
which the Government of Canada has a decision making
responsibility.
Sections 3, 6, 10, 12, 13, 15 and 19 of the
Guidelines Order contain various general provi
sions, and provide for an environmental screening
or initial assessment of a proposal. They read:
3. The Process shall be a self assessment process under
which the initiating department shall, as early in the planning
process as possible and before irrevocable decisions are taken,
ensure that the environmental implications of all proposals for
which it is the decision making authority are fully considered
and where the implications are significant, refer the proposal to
the Minister for public review by a Panel.
6. These Guidelines shall apply to any proposal
(a) that is to be undertaken directly by an initiating
department;
(b) that may have an environmental effect on an area of
federal responsibility;
(c) for which the Government of Canada makes a financial
commitment; or
(d) that is located on lands, including the offshore, that are
administered by the Government of Canada.
10. (I) Every initiating department shall ensure that each
proposal for which it is the decision making authority shall be
subject to an environmental screening or initial assessment to
determine whether, and the extent to which, there may be any
potentially adverse environmental effects from the proposal.
(2) Any decisions to be made as a result of the environmen
tal screening or initial assessment referred to in subsection (1)
shall be made by the initiating department and not delegated to
any other body.
12. Every initiating department shall screen or assess each
proposal for which it is the decision making authority to
determine if
(a) the proposal is of a type identified by the list described
under paragraph 11(a), in which case the proposal may
automatically proceed;
(b) the proposal is of a type identified by the list described
under paragraph 11(b), in which case the proposal shall be
referred to the Minister for public review by a Panel;
(c) the potentially adverse environmental effects that may be
caused by the proposal are insignificant or mitigable with
known technology, in which case the proposal may proceed
or proceed with the mitigation, as the case may be;
(d) the potentially adverse environmental effects that may
be caused by the proposal are unknown, in which case the
proposal shall either require further study and subsequent
rescreening or reassessment or be referred to the Minister for
public review by a Panel;
(e) the potentially adverse environmental effects that may be
caused by the proposal are significant, as determined in
accordance with criteria developed by the Office in coopera
tion with the initiating department, in which case the pro
posal shall be referred to the Minister for public review by a
Panel; or
(f) the potentially adverse environmental effects that may be
caused by the proposal are unacceptable, in which case the
proposal shall either be modified and subsequently
rescreened or reassessed or be abandoned.
13. Notwithstanding the determination concerning a pro
posal made pursuant to section 12, if public concern about the
proposal is such that a public review is desirable, the initiating
department shall refer the proposal to the Minister for public
review by a Panel.
15. The initiating department shall ensure
(a) after a determination concerning a proposal has been
made pursuant to section 12 or a referral concerning the
proposal has been made pursuant to section 13, and
(b) before any mitigation or compensation measures are
implemented pursuant to section 13,
that the public have access to the information on and the
opportunity to respond to the proposal in accordance with the
spirit and principles of the Access to Information Act.
19. It is the role of every department that has specialist
knowledge or responsibilities relevant to a proposal to
(a) provide to the initiating department any available data,
information or advice that the initiating department may
request concerning
(i) any regulatory requirements related to the project, and
(ii) the environmental effects and the directly related
. social impact of those effects; and
(b) as appropriate, advocate the protection of the interests
for which it is responsible.
The Guidelines Order also provides for a public
review as may be required by sections 12 or 13.
Such a review is conducted by an Environmental
Assessment Panel under an elaborate set of provi
sions set out in sections 21-32 of the Guidelines
Order. Members of the panel must be "unbiased
and free of any potential conflict of interest rela
tive to the proposal" (paragraph 22(a)), be "free
of any political influence" (paragraph 22(b)), and
have "special knowledge and experience relevant
to the anticipated technical, environmental and
social effects of the proposal" (paragraph 22(c)).
Panel hearings must be held in public (subsection
27(1)); the panel is required to "conduct a public
information program to advise the public of its
review and to ensure that the public has access to
all relevant information" (subsection 28(1)); all
information submitted to a panel "shall become
public information" (subsection 29(1)); the public
must have access to, and sufficient time to exam
ine and comment upon, information submitted to a
panel prior to a public hearing (subsection 29(2));
an initiating department is required to include in
its consideration of a proposal "the concerns of the
public regarding the proposal and its potential
environmental effects" (paragraph 4(1)(b)); the
Federal Environmental Assessment Review Office,
which has responsibility directly to the Minister of
the Environment (Canada) for the administration
of the review process, is required, inter alla, to
assist an initiating department "in the provision of
information on and the solicitation of public
response to proposals" so as to ensure that "public
opinion is heard" in a timely manner (paragraph
18(b)).
By virtue of section 36 of the Guidelines Order,
certain responsibilities in respect of a public review
devolve upon departments of the Government of
Canada other than the "initiating department":
36. In a public review, it is the role of every department that
has specialist knowledge or responsibilities relevant to a pro
posal to
(a) provide to the Panel and any other participants in the
public review any available data, information or advice that
is requested from them;
(b) provide experts at public hearings of the Panel to make
presentations or to respond to questions; and
(e) where appropriate, advocate the protection of the inter
ests for which they have responsibility.
Section 31 of the Guidelines Order provides for
what must be done at the end of a public review
process. It reads:
31. (1) At the end of its review, a Panel shall
(a) prepare a report containing its conclusions and recom
mendations for decisions by the appropriate Ministers; and
(b) transmit the report referred to in paragraph (a) to the
Minister and the Minister responsible for the initiating
department.
(2) The Minister and the Minister responsible for the initiat
ing department shall make the report available to the public.
AREAS OF FEDERAL RESPONSIBILITY
One need not look far to see that construction
and operation of the Oldman River dam and reser
voir may have an environmental effect on areas of
federal responsibility. At least three such areas
would appear to be so affected, namely, fisheries,
Indians and Indian lands. In my view, the evidence
speaks both loudly and eloquently that these par
ticular areas of federal responsibility might,
indeed, be adversely affected by the presence of
dam and reservoir.
Fisheries
Studies conducted on behalf of the provincial
authorities delineate a multitude of potential
adverse impacts upon the fish population in the
Oldman River resulting from increased sediment
loads, water pollution, barriers to migration and
use of explosives during construction of the dam.
Potential impacts, both upstream and downstream,
of the dam and reservoir and of water impound-
ment were also identified.
In February, 1987, Environment Canada pre
pared an "Environmental Impact Evaluation" on
the basis of reports prepared by or for these
authorities and the Peigan Indian Band. At pages
9-10 of this document it is stated:
Construction of the Oldman River will result in significant
habitat alterations to the fishery resource both upstream and
downstream of the dam site. Anticipated downstream effects
will be felt during both the construction and operational phases
of the dam. These have been discussed by Radford (1975),
McCart (1978), and Allen (1985) from which most of the
following summary has been gleaned.
During construction increased sediment levels may result in
short-term reductions in benthic invertebrate (fish food) popu
lations. Direct effects of increased sediment loads on fish would
likely be limited to eggs and fry, however, the extent of
spawning in the affected area is uncertain. Spills of toxic
materials may affect fish directly or indirectly, the magnitude
of the effect depending upon the nature and quantity of the
spilled substance. The use of explosives has the potential to
cause high mortalities, especially during the spring and autumn
migration periods. High water velocities in the diversion tunnels
may disrupt fish migrations past the dam site during the
construction period.
Stratification within the reservoir may lead to release of very
cold water, resulting in reduced summer water temperatures
downstream. The consequence of this could be a change in
species composition in the affected area in favour of cold water
species (trout and mountain whitefish) and to the detriment of
warm water forms (pike and walleye). Fish inhabiting this zone
may grow at reduced rates.
Fish migrations (e.g. rainbow trout and mountain whitefish)
past the dam site will be completely blocked by the new dam.
This will affect species such as rainbow trout which currently
use areas both upstream and downstream of the site in the
course of their life histories. A serious reduction in trout
populations upstream of the dam site may occur unless suitable
alternative habitat can be found in the newly created reservoir.
Fish trapped downstream of the dam site may concentrate
immediately below the dam where they may be highly suscept
ible to overharvesting.
Concerns of a similar nature are also expressed
in "Comments on the Oldman River Dam Propos
al" of February 24, 1987 prepared by the Central
and Arctic Region of the Department of Fisheries
and Oceans. At the request of the Department of
Indian and Northern Affairs, six provincial reports
on the project dealing with fisheries resource
assessment and impact mitigation were reviewed,
the focus being on the identification of potential
major impacts, possible mitigation measures and
the effect on the fisheries of the Peigan Indian
Reserve. The following comments, under the head
ing of "Fisheries Impacts", appear at pages 1-2:
1) Both coldwater and coolwater sport species will be affected.
The coldwater species, in order of abundance, are mountain
whitefish, rainbow trout, and occasional bull trout, brown trout
and cutthroat trout. Coolwater species include lake whitefish,
northern pike, walleye and goldeye, the latter two being rare.
The non-sport species are dominated by suckers.
2) Construction of the Oldman River Dam will flood (in order
of importance as fish habitat) 6.5 km of the Crowsnest River,
17.5 km of the Oldman River and 9.5 km of the Castle River.
3) The 2300 ha reservoir will be fairly productive initially (2-3
years) due to the influx of nutrients from newly flooded terre
strial areas. Following this initial surge, however, productivity
will decline to very low levels and will be capable of producing
significantly fewer sport fish than does the existing riverine
habitat (although the reservoir is some 20 times greater in area
than the area of river that will be flooded, it will likely be
capable of producing less than half as much sport fish annual
ly). Cold water temperatures and high water exchange rates are
the main factors resulting in low reservoir productivity. The
reservoir will offer poor quality fish habitat, depending on
drawdown regimes which are expected to be extreme (up to 20
m). Shoreline erosion occurring due to fluctuating water levels
will result in increased sediment deposition. Strong prevailing
winds will make boating very hazardous, and dangerous ice
conditions (due to drawdown) will limit ice fishing opportuni
ties. The reservoir fish population will become dominated by
non-sport species, principally white suckers. Mercury contami
nation of fish is a - possibility.
4) The aquatic community below the Oldman River Dam is
likely to be altered by the low temperature and higher nutrient
levels of the water released. Early in reservoir life, this water
may be of such low quality as to cause downstream fish kills.
Over the longer term, lower water temperatures may alter use
by coolwater fish species. River substrates directly below the
dam will be altered due to increased water velocities.
5) There are a number of construction related impacts, such as
increased erosion and siltation, sewage and refuse disposal,
explosives use, fuel and chemical spills.
6) The Oldman River Dam will act as a barrier to fish
movements, affecting species whose life cycles including habi
tats above and below the dam site. In the case of rainbow trout,
exclusion from downstream areas is expected to have a minimal
impact. Although some rainbow trout do utilize areas down
stream of the dam site for rearing and overwintering, the
number of fish involved is thought to be small, in relation to the
total population. Most rainbow trout spawning occurs above
FSL (Full Storage Level) and the population is thought not to
be highly mobile. Major summer feeding and overwintering
areas in the lower Crowsnest and Oldman rivers will be inun
dated. Alternative habitats offered by the post-impoundment
environment will probably be inferior to those being lost.
Mountain whitefish, in contrast to rainbow trout, migrate
extensively within the study area. While some overwintering
occurs upstream of the dam site, most mountain whitefish
probably overwinter in downstream areas. Major spawning and
feeding areas occur upstream of the dam site and will be
inaccessible to the population after construction. Considerable
spawning does, however, occur downstream of the dam, and it
is anticipated that a mountain whitefish population will remain
in the area. However, since much of the support habitat for this
species is located above the dam, reduced population sizes are
anticipated.
Indians and Indian lands
Additional comments showing potential adverse
impacts on the Peigan Indian Band and Reserve
lands located downstream of the dam site, appear
at page 4 of the "Comments on the Oldman River
Dam Proposal":
I) Construction related impacts may alter water quality or
quantity at the Peigan Indian Reserve, the western boundary of
which is located approximately 12 km below the dam site.
Increased levels of suspended sediment, fuel or chemical spills,
etc. are possibilities.
2) If flow augmentation is incorporated into the operating
regime of the Oldman River Dam, benefits would accrue to the
downstream fisheries and the dam would have a positive down
stream impact in this case.
3) In the first few years of operation, releases of oxygen
deficient and possibly toxic water from the hypolimnion may
cause fish kills downstream of the dam (however, it is not
known how far downstream these effects may occur).
4) In the long term, depressed temperature regimes, increased
nutrient levels and productivity are anticipated to occur down
stream of the dam. Again, it is difficult without operating
regime scenarios to predict how far downstream temperature
and productivity effects might be manifested. At present, the
section of the Oldman River main stem from Brocket to
Lethbridge is considered to be a transition zone, occupied by
both coldwater and coolwater species. With depressed tempera
tures, increased productivity and especially, augmented flows, it
is anticipated that some portion of the transition zone will be
replaced by a high quality coldwater fishery.
Then, again, in the Environmental Impact Evalua
tion mentioned above we find the following further
indication of potential impact upon Indian lands,
at page 12:
Furthermore, dust storms affecting Reserve lands could
increase as a result of wind erosion on soil exposed by the
annual draw-down of the reservoir. The project may cause the
mercury content to increase in fish, and local extinction of the
flood-plain cottonwood forest. These last two consequences of
the project are not certain, and they should be monitored or
studied during the next decade.
DISCUSSION
I turn now to discuss the issues raised for our
decision.
Is the Minister of Transport bound by the Guide
lines Order?
The first issue is whether the Motions Judge
erred in deciding that the Minister of Transport, in
granting the approval under the Navigable Waters
Protection Act, was not bound by the Guidelines
Order. Sections 5 and 6 of that Act provide:
5. (I) No work shall be built or placed in, on, over, under,
through or across any navigable water unless
(a) the work and the site and plans thereof have been
approved by the Minister, on such terms and conditions as
the Minister deems fit, prior to commencement of
construction;
(b) the construction of the work is commenced within six
months and completed within three years after the approval
referred to in paragraph (a) or within such further period as
the Minister may fix; and
(c) the work is built, placed and maintained in accordance
with the plans, the regulations and the terms and conditions
set out in the approval referred to in paragraph (a).
(2) Except in the case of a bridge, boom, dam or causeway,
this section does not apply to any work that, in the opinion of
the Minister, does not interfere substantially with navigation.
6. (I) Where any work to which this Part applies is built or
placed without having been approved by the Minister, is built
or placed on a site not approved by the Minister, is not built or
placed in accordance with plans so approved or, having been so
built or placed, is not maintained in accordance with those
plans and the regulations, the Minister may
(a) order the owner of the work to remove or alter the work;
(b) where the owner of the work fails forthwith to comply
with an order made pursuant to paragraph (a), remove and
destroy the work and sell, give away or otherwise dispose of
the materials contained in the work; and
(e) order any person to refrain from proceeding with the
construction of the work where, in the opinion of the Minis
ter, the work interferes or would interfere with navigation or
is being constructed contrary to this Act.
(2) Any owner or person who fails to comply with an order
given to that owner or person pursuant to paragraph (l)(a) or
(c) is guilty of an offence and liable on summary conviction to a
fine not exceeding five thousand dollars.
(3) Where the Minister removes, destroys or disposes of a
work pursuant to paragraph (I)(b), the costs of and incidental
to the operation of removal, destruction or disposal, after
deducting therefrom any sum that may be realized by sale or
otherwise, are recoverable with costs in the name of Her
Majesty from the owner.
(4) The Minister may, subject to deposit and advertisement
as in the case of a proposed work, approve a work and the plans
and site of the work after the commencement of its construction
and the approval has the same effect as if given prior to
commencement of the construction of the work.
The reasons of the Motions Judge for conclud
ing as he did, appear at pages 268-269 of his
Reasons for Order:
This application seeks to set aside the Minister's approval
under subsection 5(1) for his failure to trigger environmental
review pursuant to the Guidelines Order. The difficulty with
this premise is that the NWPA sets out no requirement for
environmental review of any sort, nor does the Department of
Transport Act, R.S.C., 1985, c. T-18 require the Minister to
consider environmental factors in carrying out his duties. As
the Minister of Transport is restricted to consideration of
factors affecting marine navigation when issuing approval, I
find that he was without authority to require environmental
review. Certiorari will issue where there is a lack of jurisdic
tion, which includes acting upon irrelevant considerations; a
breach of the duty to act fairly; or an error of law on the face of
the record. I am unable to conclude that the Minister of
Transport has erred under any of these categories. The approv
al granted here was within the authority accorded by the
NWPA. Indeed any triggering of the Guidelines Order by this
Minister would have required him to exceed the limits of his
authority. Certiorari should not therefore issue against the
Minister of Transport. Furthermore, since 1 have found that
there is no requirement in the NWPA. or the Department of
Transport Act to invoke the environmental review process, the
requested order for mandamus directing the Minister to
comply with that process is also refused.
With respect, I am unable to agree that, in
deciding whether to grant the approval, the Minis
ter of Transport was restricted to considering fac
tors affecting marine navigation only and that he
was without authority to require environmental
review. Such conclusions appear to be quite at
odds with the true and, indeed, very far-reaching
import of the Guidelines Order. The dam project
to which the approval related fell squarely within
the purview of paragraph 6(b) of the Guidelines
Order as a "proposal ... that may have an envi
ronmental effect on an area of federal responsibili
ty". This "proposal" resulted in the Department of
Transport becoming the "initiating department"
responsible as the "decision making authority".
The environmental effect of granting the applica
tion on any area of federal responsibility needed to
be examined in accordance with the provisions of
the Guidelines Order. That Order was engaged in
all of its detail.
The respondents argue for a much narrower
reading of the Guidelines Order. They say it is not
applicable to a case where the provisions of a
specialized statute require consideration of statu
tory criteria not directly related to environmental
concerns and that such is the case here because the
language of the Navigable Waters Protection Act
restricts the Minister to considering "navigation"
only. In my view, to accept this contention would
require us to ignore the true nature of the Guide
lines Order which, as was held in Canadian Wild
life, is a law of general application. By virtue of
section 6 of the Department of the Environment
Act, any guidelines established are to be used "by
departments . .. in the exercise of their powers and
the carrying out of their duties and functions" in
furtherance of those duties and functions of the
Minister of the Environment (Canada) himself
which are "related to environmental quality". I
conclude that the Guidelines Order was intended
to bind the Minister in the performance of his
duties and functions. It created a duty which is
superadded to the exercise of any other statutory
power residing in him. The source of the Minister's
jurisdiction and responsibility to address environ
mental questions in areas of federal responsibility
springs not from that statutory law but from the
Guidelines Order itself. The Minister had a posi
tive obligation to comply with it.
Before leaving this issue I wish to deal with a
further submission of the Minister. On the basis of
the Guidelines Order itself he contends that it was
never intended to apply in a case such as this
because it is clearly inconsistent and in conflict
with the approval scheme set up under the Navi
gable Waters Protection Act. While it is required
under section 3 of the Guidelines Order that the
initiating department "as early in the planning
process as possible and before irrevocable decisions
are taken, ensure that the environmental implica
tions of all proposals ... are fully considered",
under subsection 6(4) of that Act the Minister
may "approve a work and the plans and site of the
work after the commencement of its construction",
the approval to have "the same effect as if given
prior to commencement of the construction of the
work". An inconsistency or conflict, it is submit
ted, lies in the fact that this authority to grant an
approval after construction of a work has com
menced may be exercised well after the stage
denoted by the phrase "as early in the planning
process as possible and before irrevocable decisions
are taken".
As I see it, the provisions of section 6 of that
Act pertain to the remedial powers of the Minister
in deciding what action he might take in the event
of a failure to secure a section 5 approval prior to
the commencement of construction. Subsection (4)
thereof is an exception to the general rule, is
entirely discretionary and clearly subservient to
the fundamental requirement set out in paragraph
5(1)(a) that an approval be obtained prior to the
commencement of construction. Nor can I see
anything in the Guidelines Order that would pre
vent the Minister from complying with its terms to
the fullest extent possible in exercising his discre
tion under subsection 6(4) of the Navigable
Waters Protection Act. That being so, I can find
no inconsistency or conflict between these two
pieces of federal legislation.
Is the Minister of Fisheries and Oceans bound by
the Guidelines Order?
The second issue is whether the learned Motions
Judge erred in deciding that mandamus would not
lie so as to compel the Minister of Fisheries and
Oceans to comply with the Guidelines Order. In
concluding that mandamus would not lie against
the Minister, the learned Judge first noted that the
application involved an issue of fact properly
resolved at a trial, and then added (at pages
270-271):
Section 6 of the Department of the Environment Act, R.S.C.
1985, c. E-10 states the Guidelines Order is for use by depart
ments, boards and agencies of the Government of Canada in
exercising their powers and carrying out their duties and func
tions. The Guidelines Order itself is addressed to those federal
departments which are "initiating departments" in connection
with a "proposal". The definitions of these terms require that
the federal department have decision making responsibility in
relation to a project. Paragraph 6(b) provides that the Guide
lines will apply to any proposal that may have an environmental
effect on an area of federal responsibility.
I see no reason to conclude that in enacting the Guidelines
Order, Parliament had any intention of extending such author
ity beyond federal agencies. Clearly then, the Minister of
Fisheries and Oceans cannot be required to proceed with
environmental review because his department has not undertak
en a project. In the alternative, if the Guidelines can be seen to
extend to those projects initiated provincially, then the use of
the word "proposal" must mean that a federal department will
bring the Guidelines into play if it in fact receives a proposal
requiring its approval. Since the Fisheries Act does not contem
plate an approval procedure for any permit or licence, referral
to environmental review under the Guidelines Order is not
required of the Minister. It follows, therefore, that mandamus
cannot issue to order the Minister of Fisheries and Oceans to
proceed with such a review.
Equally important, the same doubts arise here as I expressed
in connection with the scope of the Minister of Transport to
take into account environmental factors under the NWPA.
Even if the Fisheries Act provided for issuance of a permit or
licence, the powers of the Minister to consider factors is limited
by the scope of that statute and the Department of Fisheries
and Oceans Act, R.S.C., 1985, c. F-15.(sic) Environmental
factors are not raised under either of the statutes and I do not
believe there would be any justification for the respondent
Minister to involve the Minister of the Environment, nor to
trigger the Guidelines Order.
The respondents sought to demonstrate the cor
rectness of these conclusions by reference to cer
tain language found in both the Fisheries Act,
R.S.C., 1985, c. F-14, and the Guidelines Order.
Their submissions were directed at countering the
assertion by the appellant that the Guidelines
Order when read with sections 35 and 37 of the
Fisheries Act" cast an obligation upon the Minis
ter of Fisheries and Oceans to comply with the
" These sections read:
35. (I) No person shall carry on any work or undertaking
that results in the harmful alteration, disruption or destruc
tion of fish habitat.
(Continued on next page)
Guidelines Order. According to the respondents,
the Minister was under no duty to do so unless he
had before him a "proposal" with respect to which
he was the "decision making authority". Such
could only be the case in relation to the Oldrnan
River dam project if a person had invoked the
Minister's jurisdiction under section 37 by which
he may authorize the "alteration, disruption or
destruction of fish habitat". As no such request
was made to the Minister, no "proposal" came
before him for decision and, accordingly, he was
not under any legal obligation to comply with the
Guidelines Order.
(Continued from previous page)
(2) No person contravenes subsection (I) by causing the
alteration, disruption or destruction of fish habitat by any
means or under any conditions authorized by the Minister or
under regulations made by the Governor in Council under
this Act.
37. (1) Where a person carries on or proposes to carry on
any work or undertaking that results or is likely to result in
the alteration, disruption or destruction of fish habitat, or in
the deposit of a deleterious substance in water frequented by
fish or in any place under any conditions where that deleteri
ous substance or any other deleterious substance that results
from the deposit of that deleterious substance may enter any
such waters, the person shall, on the request of the Minister
or without request in the manner and circumstances pre
scribed by regulations made under paragraph 3(a), provide
the Minister with such plans, specifications, studies, proce
dures, schedules, analyses, samples or other information
relating to the work or undertaking and with such analyses,
samples, evaluations, studies or other information relating to
the water, place or fish habitat that is or is likely to be
affected by the work or undertaking as will enable the
Minister to determine
(a) whether the work or undertaking results or is likely to
result in any alteration, disruption or destruction of fish
habitat that constitutes or would constitute an offence
under subsection 40(1) and what measures, if any, would
prevent that result or mitigate the effects thereof; or
(b) whether there is or is likely to be a deposit of a
deleterious substance by reason of the work or undertaking
that constitutes or would constitute an offence under sub
section 40(2) and what measures, if any, would prevent
that deposit or mitigate the effects thereof.
(2) If, after reviewing any material or information pro
vided under subsection (I) and affording the persons who
provided it a reasonable opportunity to make representations,
the Minister or a person designated by the Minister is of the
opinion that an offence under subsection 40(1) or (2) is being
or is likely to be committed, the Minister or a person
(Continued on next page)
I am unable to agree with this analysis.
Although the word "proposal" in its ordinary sense
may mean something in the nature of an applica
tion, in the Guidelines Order it is a defined word
which is used to encompass a scope far broader
than its ordinary sense. This definition reads:
"proposal" includes any initiative, undertaking or activity for
which the Government of Canada has a decision making
responsibility.
Plainly, nothing in the nature of an application is
required by the words employed in this definition.
As I see it, applications or requests for authoriza
tions or approvals are but means of calling a
Minister's attention to the existence of an "initia-
tive, undertaking or activity" but they are not the
only means. A Minister may become aware of an
"initiative, undertaking or activity" in some other
way, which I think would include a request on the
part of an individual for specific action falling
within the Minister's responsibilities under a stat
ute which he is charged with administering on
behalf of the Government of Canada. In such
circumstances, if any "initiative, undertaking or
activity" exists for which the Government of
Canada has "a decision making responsibility" a
"proposal" also exists.
It is also clear that the "initiative, undertaking
or activity" must come within one of the categories
set out in section 6 of the Guidelines Order. If it
does, then it becomes the responsibility of every
"initiating department" "for which it is the deci
sion making authority" to deal with it as a
"proposal" in accordance with subsection 10(1) by
(Continued from previous page)
designated by the Minister may, by order, subject to regula
tions made pursuant to paragraph (3)(b), or, if there are no
such regulations in force, with the approval of the Governor
in Council,
(a) require such modifications or additions to the work or
undertaking or such modifications to any plans, specifica
tions, procedures or schedules relating thereto as the Min
ister or a person designated by the Minister considers
necessary in the circumstances, or
(b) restrict the operation of the work or undertaking,
and, with the approval of the Governor in Council in any
case, direct the closing of the work or undertaking for such
period as the Minister or a person designated by the Minister
considers necessary in the circumstances.
subjecting it "to an environmental screening or
initial assessment".
The crucial questions, therefore, are whether the
Minister was here faced with a "proposal" "that
may have an environmental effect on an area of
federal responsibility" for which he was "the deci
sion making authority".
As for the first, the record is clear that the
Minister was obviously aware of the dam and
reservoir project and of its possible adverse impact
upon the fisheries in the Oldman River. That is
apparent from the "Comments on the Oldman
River Dam Proposal" of February 24, 1987 pre
pared by his department, and from his letter of
August 25, 1987 in which he advised of his deci
sion not to intervene "to remedy the potential
problems posed to the fisheries resources". In my
opinion the alteration, disruption or destruction of
fish habitat by the project fell within an area of
federal responsibility and was an "initiative,
undertaking or activity" within the sense of the
defined word "proposal" in section 2 of the Guide
lines Order.
It remains, however, to determine whether in the
circumstances the "proposal" triggered an obliga
tion on the Minister to comply with the Guidelines
Order. The respondents' argument that it did not
is based upon a textual reading of sections 35 and
37 of the Fisheries Act by which it is recognized
that the Minister may authorize interference with
fish habitat in certain circumstances. The essence
of the argument is that nothing in the record
shows that the Minister was ever faced with decid
ing whether or not to grant such an authorization
and therefore that neither he nor his department
was, in the circumstances, a "decision making
authority" for a "proposal" which "may have an
effect upon an area of federal responsibility", i.e.
fisheries. Had the Minister determined to make a
"request" under subsection 37(1) he would ulti
mately have had to decide whether or not to
authorize such interference and accordingly would
have had to comply with the Guidelines Order but
not otherwise. ' 2
I cannot agree with these submissions. The Min
ister was specifically requested in early August,
1987 to intervene with a view to protecting the
fisheries resources in the Oldman River in the
context of the dam and reservoir construction
project which, as I have said, was an "initiative,
undertaking or activity" falling under the "propos-
al" definition of the Guidelines Order. Plainly, the
protection of the fish habitat and fisheries fall
within the responsibilities of the Minister and his
department under the Fisheries Act. The letter of
August, 1987, in effect, required of the Minister
fulfilment of his responsibilities to protect such
fish habitat and resources in the Oldman River,
which protection is recognized under sections 35
and 37 of the Fisheries Act, and rendered him the
"decision making authority" for determining what
action would be taken in relation thereto. It was
open to the Minister to decide either not to inter
vene or to make a "request" of the dam proponent
and proceed under section 37, and decide he did.
In so doing, the Minister fell under the obligations
of an "initiating department" as the "decision
making authority" for an "initiative, undertaking
or activity for which the Government of Canada
has a decision making responsibility" "that may
have an environmental effect on an area of federal
responsibility". The fact that the Minister declined
to take action pursuant to the Fisheries Act did
not absolve him of his responsibility to comply
with the Guidelines Order.
As I read the Guidelines Order, the jurisdiction
and responsibilities of the Minister of Fisheries
and Oceans was also engaged by reason of the
approval application made to the Minister of
Transport under the Navigable Waters Protection
Act. Several sections of the Guidelines Order seem
clearly to point in that direction. Section 3 requires
that the initiating department "as early in the
' 2 No regulations have been adopted whereby the Minister
may act "without request".
planning process as possible and before irrevocable
decisions are taken, ensure that the environmental
implications of all proposals for which it is the
decision making authority are fully considered";
section 6 renders the Guidelines Order applicable
"to any proposal . .. that may have an environ
mental effect on an area of federal responsibility";
while section 19 requires that "every department
that has specialist knowledge or responsibilities
relevant to a proposal ... as appropriate", "advo-
cate the protection of the interest for which it is
responsible". Then, at the end of the public review
process, the report of the Environmental Assess
ment Panel must contain "conclusions and recom
mendations for decisions by the appropriate Minis
ters" which I interpret as referring to every
Minister in charge of an area of federal responsi
bility to the extent the area is environmentally
affected by a proposal. After that, the provisions of
paragraphs 33(1)(c) and (d) would appear to
apply both in respect of the Minister of Transport
and the Minister of Fisheries and Oceans:
33. (I) It is the responsibility of the initiating department in
a public review to
(c) subject to subsection (2), decide, in cooperation with any
other department, agency or board of the Government of
Canada to whom the recommendations of a Panel are direct
ed, the extent to which the recommendations should become
a requirement of the Government of Canada prior to author
izing the commencement of a proposal;
(d) subject to subsection (2), ensure, in cooperation with
other bodies concerned with the proposal, that any decisions
made by the appropriate Ministers as a result of the conclu
sions and recommendations reached by a Panel from the
public review of a proposal are incorporated into the design,
construction and operation of that proposal and that suitable
implementation, inspection and environmental monitoring
programs are established; 13
13 The provisions of paragraphs 33(1)(c) and (d) are subject
to subsection 33(2) requiring their amendment "to account for
and not to interfere with" the decision of the initiating depart
ment which "has a regulatory function in respect of the propos
al". If it could be said that the Department of Transport had
such a function, it has not been demonstrated that the respon
sibilities set out in paragraphs (1)(c) and (d) would interfere
with that function.
Read together, these provisions suggest that any
possible adverse impacts upon the fish habitat and
fish resources in the Oldman River had to be
subjected to the Guidelines Order procedures prior
to granting the approval, and that the Minister of
Fisheries and Oceans as the Minister responsible
for the protection of fish habitat and fisheries
resources in the Oldman River was required to
play his full part under the Guidelines Order. It
then remained for the Minister of the "initiating
department", Transport, to grant or refuse the
approval at the end of this review process.
Interfering with Discretion
The third issue is whether the learned Motions
Judge erred in the manner he exercised his discre
tion. It seems obvious that he here assumed,
despite his earlier findings, that the Guidelines
Order bound both the Minister of Transport and
the Minister of Fisheries and Oceans but that the
circumstances militated against granting the dis
cretionary relief sought. His reasons for so decid
ing appear at pages 273-274 of his Reasons for
Order:
Finally, on the issue of the discretionary nature of the relief
sought, I turn to the history of this project and the question of
delay. Approval under the NWPA was granted on September
18, 1987 following the publication in August 1986 of public
notices that Alberta's request for approval was under consider
ation. No steps were taken to quash the approval and to compel
the application of the Guidelines Order until this notice of
motion was filed on April 21, 1989. By that date the Oldman
River project was approximately 40% complete. I would also
note that even though the Society was not formed, many of the
members were individually aware of and opposed to the project
from the early 1970's. The applicant was further aware of the
position taken by the Minister of Fisheries and Oceans in
August, 1987 that he did not intend to intervene in the project.
There is no justification for allowing all of this activity to take
place before launching the present attack. It would be, in my
opinion, entirely inappropriate to grant the relief sought at this
time.
Nor can I ignore the extent and comprehensive nature of
environmental review carried out by the Province of Alberta. I
am satisfied that the public review process carried out here has
identified every possible area of environmental social concern
and has given every citizen, including the members of the
applicant organization, ample opportunity to voice their views
and to mobilize their opposition. The exercise of discretion in
favour of the relief sought would, in my opinion, bring about
needless repetition of a process which has been exhaustively
canvassed over the past twenty years.
The respondents submit that it would be wrong
for this Court, sitting in appeal, to interfere with
this exercise of discretion because the learned
Motions Judge acted reasonably by basing his
refusal on delay and duplication. That it was
within the discretion of the Judge below to grant
or refuse that relief seems well established on high
authority, and was expressed in this way by Lord
Chelmsford in Reg. v. All Saints, Wigan (Church-
wardens of) (1875-76), 1 App. Cas. 611 (H.L.), at
page 620:
Now there appears to me,to have been some little confusion
upon this subject, which can easily be removed. A writ of
mandamus is a prerogative writ and not a writ of right, and it is
in this sense in the discretion of the Court whether it shall be
granted or not. The Court may refuse to grant the writ not only
upon the merits, but upon some delay, or other matter, personal
to the party applying for it; in this the Court exercises a
discretion which cannot be questioned. So in cases where the
right, in respect of which a rule for a mandamus has been
granted, upon shewing cause appears to be doubtful, the Court
frequently grants a mandamus in order that the right may be
tried upon the return; this also is a matter of discretion.
See also Rodd v. County of Essex (1910), 44
S.C.R. 137, at page 143.
As a general rule, an appellate court will not
interfere with the exercise of a discretion by a trial
judge unless the judge has proceeded upon some
erroneous principle, or some misapprehension of
the facts, or where the order is not just and
reasonable. Certain of the authorities on the point
are collected by Thurlow C.J. in Polylok Corpora
tion v. Montreal Fast Print (1975) Ltd., [1984] 1
F.C. 713 (C.A.), at pages 723-725. In my opinion,
however, the Motions Judge did err in a way which
clearly justifies interference with his discretion.
Whatever might be said about his treatment of the
question of delay on the part of the appellant in
launching the proceedings in the Trial Division
(which I am not persuaded is well-founded in
principle), 14 it seems clear that his decision was
also based upon what he considered to be a
duplication of the environmental review process
for, as he put it, compliance with the Guidelines
Order would "bring about a needless repetition of
a process which has been exhaustively canvassed
over the past twenty years".
As the voluminous record before us clearly
demonstrates, much detailed work and study has
been done by or on behalf of Alberta as well as by
others, in examining the environmental impacts of
the dam project upon the Oldman River fisheries
and otherwise. Counsel for Alberta offered a com
parative analysis of each step taken in carrying out
these studies and the assessment and review
examination required by the Guidelines Order, but
I must agree with counsel for the appellant that
this comparison falls down in at least two crucial
respects. The Guidelines Order, unlike the provin
cial regime, was plainly drafted to allow for the
expressing of public concern and the availability of
a full opportunity for the public to participate in
the environmental assessment and review process.
Although public input was received in the course
of the provincially based studies mentioned above,
the laws under which they were carried out place
much less emphasis on the role of the public in
addressing the environmental implications than
14 The record seems to amply explain the delay. The appel
lant did not come into existence until September, 1987 and, as
noted supra, it did not become aware that the Approval had
been granted until some two months before the proceedings
were actually launched. In the meantime, it had sought unsuc
cessfully to attack the provincial licence permitting construc
tion of the dam and secured legal advice as to whether the
federal Ministers were bound by the Guidelines Order. The
decision of the Trial Division in Canadian Wildlife, supra,
finding that the Order was binding upon the Minister of the
Environment (Canada), was handed down in early April, 1989,
only a few days before the Trial Division proceedings were
commenced.
does the Guidelines Order. 15 Secondly, nothing in
those laws guarantees the independence of the
review panel in any discernible measure, 16 and
certainly not in a measure quite like that provided
for in section 22 of the Guidelines Order. The idea
of an opportunity for the public to voice environ
mental concerns before an independent panel is, of
course, central to the working of the federal
scheme, which was recently described by Muldoon
J. in the Trial Division in Canadian Wildlife Fed
eration Inc. v. Canada (Minister of the Environ
ment) (Court File No. T-2102-89, December 28,
1989), at page 10 of his reasons for order:
mendations—formulated through and after an utterly public
and mandatorily fair process—for decisions by the appropriate
Ministers, and transmit that report to the Minister who, in this
instance, is also the Minister responsible for the "initiating
department". Guideline 32 continues and ends with the com
mand to the Minister to make the Panel's report available to
the public. This is the great strength of this legislative scheme.
It balances the information, knowledge and ultimately the
opinion of the public, against the authority of the Minister and
the government of the day who may, for what they believe to be
high purposes of State, quite ignore the Panel's recommenda
tions. They may, equally of course, adopt or adapt the Panel's
recommendations in order to save both the environment and the
project, as they see fit and feasible.
15 See e.g. paragraph 4(b), and sections 13, 15, 28, 29 and 30
of the Guidelines Order.
16 The legal bases under the laws of Alberta of the Technical
Advisory Committee, the Management Committee and the
Local Advisory Committee was not established before us,
though they probably derive from the powers of the Minister of
the Environment (Alberta) under the Department of the Envi
ronment Act, R.S.A. 1980, c. D-I9. It is noted, however, that
several of the non-governmental members of the last two
committees might have had a lesser degree of independence
than that required by the Guidelines Order because, being
ranchers and farmers, the creation of this new water resource
might enure to their benefit. Nothing in the Environmental
Council Act expressly requires that a panel selected pursuant to
its terms be independent in the ways required by the Guidelines
Order.
At the end of its work, the Environmental Assessment Panel
must prepare a report containing its conclusions and recom-
THE PROVINCIAL CROWN
Two questions need be discussed at this point,
namely, the jurisdiction of the Court over Her
Majesty in right of Alberta as a party respondent
and, secondly, whether that party is immune from
the provisions of the Navigable Waters Protection
Act.
Jurisdiction
This issue was raised before us but not in the
Court below, and derives from the decision of the
Trial Division of November 30, 1989 in the
Canadian Wildlife Federation Inc. v. Canada
(Minister of the Environment), [[1990] 1 F.C. 595
(T.D.)], matter. It was there held the Court lacked
jurisdiction over one of the respondents because, as
a body constituted and established by the laws of
Saskatchewan, it was not a "federal board, com
mission or other tribunal" as defined in section 2
of the Federal Court Act. The question here is
whether Her Majesty the Queen in right of Alber-
ta is to be similarly viewed and, accordingly,
whether we should find that the Court is without
jurisdiction over this party.
It seems to me that the point was settled by this
Court in Adidas (Can.) Ltd. v. Skoro Enterprises
Ltd., [1971] F.C. 382, which I interpret as holding
that any person who might be adversely affected
by an order such as the one here sought may be
joined as a party to the proceeding "so that it can
pursue whatever remedy may be open to it by way
of appeal therefrom". In my opinion, the party in
question is properly before us as a party
respondent.
Crown immunity
Finally, the submission is made that Her Majes
ty in right of Alberta is immune from the approval
requirements of the Navigable Waters Protection
Act, a contention which apparently explains the
action of the Minister of the Environment (Alber-
ta) of June 9, 1989 in returning the approval to the
Department of Transport and requesting that it be
cancelled. That request was denied. Naturally,
counsel for the federal ministers resists the
submission.
The argument places reliance upon the tests laid
down by Chief Justice Dickson in Alberta Govern
ment Telephone v. Canada (Canadian Radio-
Television and Telecommunications Commission),
[ 1989] 2 S.C.R. 225, at page 281:
In my view, in light of PWA and Eldorado, the scope of the
words "mentioned or referred to" must be given an interpreta
tion independent of the supplanted common law. However, the
qualifications in Bombay, supra, are based on sound principles
of interpretation which have not entirely disappeared over time.
It seems to me that the words "mentioned or referred to" in s.
16 are capable of encompassing: (1) expressly binding words
("Her Majesty is bound"); (2) a clear intention to bind which,
in Bombay terminology, "is manifest from the very terms of the
statute", in other words, an intention revealed when provisions
are read in the context of other textual provisions, as in
Ouellette, supra; and, (3) an intention to bind where the
purpose of the statute would be "wholly frustrated" if the
government were not bound, or, in other words, if an absurdity
(as opposed to simply an undesirable result) were produced.
These three points should provide a guideline for when a statute
has clearly conveyed an intention to bind the Crown.
It is contended that none of these tests is satisfied.
The Navigable Waters Protection Act does not
contain words expressly binding the provincial
Crown. I am persuaded, nonetheless, that when
the provisions of this Act are read in the context of
other textual provisions an intention to bind the
provincial Crown is revealed. For example, the
provincial Crown is by section 4" expressly taken
out of the application of the statute only to the
extent that a work is authorized under an Act of
the legislature "passed before the province
became" part of Canada. This surely manifests an
intention that the provincial Crown is otherwise
bound by the statute.
17 4. Except the provisions of this Part that relate to rebuild
ing, repairing or altering any lawful work, nothing in this Part
applies to any work constructed under the authority of an Act
of Parliament or of the legislature of the former Province of
Canada, or of the legislature of any province now forming part
of Canada passed before that province became a part thereof.
Mr. Crane further contends that the purpose of
the statute would be wholly frustrated if govern
ment were not bound, it being notorious that many
obstructions placed in navigable waters (e.g.
wharves, docks, piers, jetties, etc.) are constructed
by or at the instance of government, federal or
provincial. I accept this to be so, and agree with
the burden of his submission that to hold the
Crown exempt from the approval requirements of
the Act could result in navigable waters being
rendered unsafe contrary to its true intent and
spirit.
DISPOSITION
In the result, I would allow this appeal with
costs both here and in the Trial Division, and
would grant the appellant
(a) an order in the nature of certiorari quashing
the approval of September 18, 1987 issued by the
Minister of Transport to the Alberta Department
of the Environment for permission to carry out
works in relation to construction of a dam on
Oldman River in the Province of Alberta pursuant
to the Navigable Waters Protection Act;
(b) an order in the nature of mandamus directing
the Minister of Transport to comply with the
Guidelines Order;
(c) an order in the nature of mandamus directing
the Minister of Fisheries and Oceans to comply
with the Guidelines Order.
HEALD J.A.: I concur.
URIE J.A.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.