Quebec Superior Court Justice Claudine Roy granted a temporary
injunction on September 23, 2014, stopping Energy East
Pipeline Ltd. and TransCanada Pipelines Ltd. from conducting
exploratory work in the St. Lawrence River near Cacouna, QC until
October 15, after which a critical period for beluga whale
reproduction has passed. The injunction was sought by environmental
groups including the David Suzuki Foundation.
The purpose of the TransCanada project is to study a portion of the sea-bed
under the St. Lawrence River to determine where a marine terminal
should be built to allow the export of Alberta tar sands oil.
According to the Court's decision, Quebec's Environment
Minister, David Heurtel, was "unreasonable" in
authorizing the project because he did not have sufficient
information concerning potential impacts on the Beluga whale.
The Beluga has become one of those iconic species representing
the threats posed to biodiversity generally. According to the
Department of Fisheries and Oceans, commercial whaling in the
St. Lawrence depleted its population severely, and there has been
"no noticeable recovery" of the population since the 1979
whaling ban due to factors such as pollution, reduced food sources,
and habitat degradation.
Quebec's Environment Department initially refused to approve
the project until seven questions were sufficiently answered about
underwater noise the project would create. Noise is considered a
"contaminant" under Quebec's Environment Quality Act. There are no
regulatory standards for underwater noise, but scientific research
shows that noise can significantly affect marine mammals by forcing
them away from critical habitat such as breeding grounds. Moreover,
the Quebec minister cannot approve a project that is contrary to
federal or provincial law. Under the federal Species At
Risk Act (SARA), belugas in the St. Lawrence estuary are listed
as threatened. Any activity affecting a species identified under
SARA as endangered or threatened requires a federal permit. The
seven questions the Quebec Environment Department wanted answered
included the following:
1. How realistic are the estimated noise levels for the
2. Will the work on the dates proposed cause a significant impact
on the whales?
3. Will the project generally cause disturbance or have significant
impacts on the whales?
4. What mitigation measures have been proposed and are they
5. What additional measures could be taken to render the project
6. If the project will cause significant disturbance to the beluga,
despite additional mitigation measures, will the survival of the
beluga be jeopardized?
7. Are any other species of marine mammals likely to be present and
can mitigation measures for those species apply to the Beluga?
According to the Court's decision, the provincial department
raised these questions based on alleged concerns for the Beluga,
never got sufficient answers, and then went ahead and approved the
project anyway. "If the minister did not get the answers to
his questions, he should have continued the process or at least
explained why he suddenly decided to recommend approval," Roy
wrote. It has been reported elsewhere that federal marine
scientists were "muzzled" from speaking with the Quebec
Environment Department during the application process.
TransCanada submitted that it would prove to be a hardship if it
had to delay the work until the river iced over, but the judge
noted that the company "provided no specific information on
the impact...other than an economic hardship."
Of particular note from a legal perspective, Judge Roy referred
in her decision to the Precautionary Principle from Paragraph 7 of
Declaration on Sustainable Development. The principle
states that sustainable development policies must be based on a
principle of precaution, and that when serious damage may be
inflicted on the environment, the lack of complete scientific
certainty should not be an excuse for postponing measures to
protect it. The Court's decision cited the 2001 Supreme Court
of Canada opinion from 114957 Canada Ltée (Spraytech,
Société watering) c. Hudson (Ville),
emphasizing that this principle is embedded in several provisions
of federal law and that other courts have stated that the principle
"may not be satisfied with assumptions." In the case of
the Belugas, Judge Roy wrote that there was "no evidence"
that the Ministers took account of the precautionary principle in
authorizing the project. We applaud anytime a court holds the
government accountable to recognizing this very important
environmental principle, especially where the downside to a
corporation is simply unexplained economic hardship.
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