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Athabasca Chipewyan First Nation (Appellant) v. British Columbia Hydro and Power Authority (Respondent) and National Energy Board (Intervener); British Columbia Wildlife Federation and The Steelhead Society of British Columbia (Appellants) v. British Columbia Hydro and Power Authority (Respondent) and National Energy Board (Intervener)

Pays/Territoire
Canada
Type de cour
Autres
Date
Mar 14, 2001
Source
UNEP, InforMEA
Nom du tribunal
Federal Court of Appeal
Juge
Rothstein
Sharlow
Malone
Numéro de référence
[2001] 3 F.C. 412, 2001 FCA 62
Langue
Anglais
Sujet
Eau
Mot clé
EIA Procédures judiciaires/procédures administratives
Résumé
In 1998, British Columbia Hydro and Power Authority (B.C. Hydro) applied to the National Energy Board (NEB) for electricity export permits. The appellants and others filed interventions with the NEB, alleging that the issuance of the permits would result in adverse environmental effects downstream. They argued that this would cause and contribute to the alteration of the natural flow pattern of the rivers on which B.C. Hydro operates its dams, causing significant adverse environmental effects. The NEB issued the permits, having concluded that there would be no significant adverse environmental effects. This was an appeal from that decision. The only issue was whether the NEB had sufficient information before it to justify its conclusion. The Federal Court of Appeal held that the appeal should be allowed. The Court noted that the NEB was not a mere filing agency: it had to decide whether to recommend that an application undergo an elaborate licensing process and whether to impose terms and conditions on permits issued. In making those decisions, the NEB was to have regard to the impact of the exportation on the environment and measures for the protection and restoration of the environment. The Regulations required the applicant to furnish information as to the adverse environmental effect resulting from the proposed exportation of the electricity and the measures to be taken to mitigate any of those adverse environmental effects. The relevant standard of review of NEB decisions was reasonableness simpliciter. Before the NEB, B.C. Hydro explained that no new facilities would be constructed, but it failed to reveal whether there would be any change in the operation of existing facilities, such as altering the release of water at its dams, and to address potential adverse environmental effects from the issuance of the permits. Nor did the NEB explain in its reasons what changes, if any, the granting of the permits would have on the operation of B.C. Hydro’s dams, and whether any such changes would have adverse environmental downstream effects. The finding that there was insufficient evidence that the specific exports proposed to be made would have an impact on the environment was problematic. If the NEB purported to place the burden on the interveners to demonstrate adverse environmental impacts, it was wrong. It was incumbent on the permit applicant to provide the NEB with sufficient information to enable it to make a decision. It was not open to the NEB to infer from B.C. Hydro’s silence regarding operational changes that there would be no changes or significant adverse environmental effects. While the Court should defer to the NEB on questions within its area of expertise, since the NEB’s reasons failed to indicate that it even appreciated that potential operational changes was an issue, the Court could not conclude that the NEB had arrived at an informed and rational conclusion. Where a reviewing court has no basis upon which to piece together why the NEB reached the conclusion it did, the decision could not stand. The Court concluded that the appeal should be allowed and the permits quashed.
Texte intégral
2001fca62.html