Originally published in Blakes Bulletin on Environmental Law, January 2007
Faced with the prospect of multiple or overlapping environmental assessments by different levels of government, federal-provincial harmonization schemes have been put in place in most Canadian jurisdictions to address the potential impacts of large projects or undertakings. These typically provide for early notification of proposed projects, co-operative environmental assessments, joint panel reviews and the establishment of provincial "single windows" to implement federal responsibilities under the agreements. A key tool for harmonizing multiple environmental assessments is the power to limit the scope of an individual assessment.
Despite such harmonization schemes, some litigants continue to ask the courts for an interpretation of the federal Canadian Environmental Assessment Act (CEAA) that would result in overlapping environmental assessments, where environmental assessments mandated by provincially-led joint review panels are alleged to be insufficiently comprehensive. A decision this past summer of the Supreme Court of Canada, refusing leave to appeal on one of these challenges, should hopefully lead to a decline in this type of litigation.
Six years ago, TrueNorth Energy Corporation announced its plans to commence operation of an oil sands mine in the Athabasca region north of Fort McMurray known as Fort Hills. Part of TrueNorth’s proposal included the de-watering of Fort Creek (a fish-bearing watercourse and tributary of the Athabasca River) – an action likely to cause a harmful alteration, disruption, or destruction of fish habitat (HADD). HADD is prohibited under the federal Fisheries Act unless expressly authorized by the Minister of Fisheries and Oceans, and such authorizations may only be issued after an environmental assessment has been concluded under CEAA.
The Fort Hills oil sands undertaking was primarily subject to regulation by the Province of Alberta. At the time that the Department of Fisheries and Oceans (DFO) conducted its environmental assessment to the project, an environmental assessment had already been conducted under the Alberta Environmental Protection and Enhancement Act (EPEA), involving public hearings at the Alberta Energy and Utilities Board (AEUB), followed by the issuance of approvals under the EPEA and the Alberta Water Act. Environment Canada made submissions at the hearings on environmental issues related to the oil sands undertaking including possible cumulative effects, air quality issues, and the anticipated impact on migratory birds.
The DFO limited the scope of the project that was to be the subject of the federal environmental assessment to the destruction of Fort Creek and ancillary or subsidiary works and activities.
Three public interest groups – Prairie Acid Rain Coalition, Pembina Institute for Appropriate Development and Toxics Watch Society of Alberta applied to the Federal Court for judicial review of the decision of the DFO to limit the scope of the assessment under CEAA. They considered the scope to be too narrow, asserting that, notwithstanding the AEUB hearings and decision, the CEAA environmental assessment should encompass the entire oil sands undertaking and consider all areas of federal jurisdiction (such as migratory birds, Aboriginal peoples and the water and fisheries of the Athabasca River), not just the potential destruction of fish habitat. The application was dismissed by both the Federal Court trial division and the Federal Court of Appeal. The Appellants then applied to the Supreme Court of Canada for leave to appeal in March of this year.
On July 20, 2006, the Supreme Court of Canada released its decision to dismiss the application. By declining to grant leave to appeal in this case, the Supreme Court left intact the Federal Court of Appeal’s decision as the final full judgment. This judgment clarifies that the power and discretion to scope a project under the CEAA rests entirely with the applicable federal responsible authority. To find otherwise, the Court reasoned, would rob the responsible authority of its statutory discretion to scope the project in accordance with its authority:
"If, as the Appellants seem to argue, the subsection 35(2) trigger requires the project’s scope be the entire oil sands undertaking, a responsible authority would have no discretion under subsection 15(1) of the CEAA as to the scoping of the project for federal environmental assessment purposes. Any trigger would automatically require an overall federal environmental assessment of the entire proposed physical work. Nothing in the CEAA supports the view that project scoping under subsection 15(1) must always include the entire proposed physical work.
In this case, that power and discretion were exercised reasonably and in accordance with the overall provisions of CEAA and the DFO’s harmonization obligations:
As a matter of policy, it is sensible that undertakings with potential adverse environmental effects be subject to only one environmental assessment. ...
It was both legally appropriate and efficient from a policy perspective for the DFO to rely on Alberta’s performance of an environmental assessment."
For project proponents, long drawn-out challenges to the scoping of projects under CEAA should now decline. The federal government, on the other hand, has its work cut out for it: Dan Woynillowicz of the Alberta-based Pembina Institute told the CBC that his organization would now put its efforts into ensuring that CEAA is reformed and strengthened.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.