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Prairie Acid Rain Coalition, Pembina Institute For Appropriate Development and Toxics Watch Society of Alberta (Appellants) v. Minister of Fisheries and Oceans of Canada and TrueNorth Energy Corporation (Respondents)

Pays/Territoire
Canada
Type de cour
Autres
Date
Jan 27, 2006
Source
UNEP, InforMEA
Nom du tribunal
Federal Court of Appeal
Juge
Rothstein
Noel
Malone
Numéro de référence
[2006] 3 F.C.R. 610
Langue
Anglais
Sujet
Eau
Mot clé
EIA
Résumé
This was an appeal from a decision of the Federal Court dismissing the appellants’ application for judicial review of a decision of the Department of Fisheries and Oceans (DFO) determining, pursuant to subsection 15(1) of the Canadian Environmental Assessment Act (CEAA), the scope of a project to be subject to a federal environmental assessment. The project in question, the “Fort Hills Oil Sands Project”, was primarily subject to regulation by the province of Alberta. However, because the undertaking required the destruction of Fort Creek, a fish bearing watercourse, the respondent TrueNorth (the proponent of the project) had to obtain authorization from the Minister of Fisheries pursuant to subsection 35(2) of the Fisheries Act. This triggered the CEAA pursuant to paragraph 5(1)(d) of that Act, and led to the impugned decision by the DFO, i.e. that the scope of the project that was to be subject to a federal environmental assessment was the destruction of Fort Creek. The appellants applied for judicial review of that determination on the basis that the CEAA assessment should cover the entire oil sands undertaking and consider all areas of federal jurisdiction and not just the destruction of fish habitat. The Federal Court of Appeal held that the appeal should be dismissed. The Court was of the view that the DFO was not required to scope the project as the entire oil sands undertaking. Subsection 15(1) of the CEAA empowered the DFO to determine the scope of the project. Paragraph 5(1)(d) of the CEAA provided that “[a]n environmental assessment of a project is required before a federal authority . . . issues a permit or licence, grants an approval or takes any other action for the purpose of enabling the project to be carried out in whole or in part.” The words “in whole or in part” recognized that within a project as scoped by a responsible authority, the power to be exercised by a federal authority under that paragraph could relate only to a part of that project. The narrow scoping of a project did not preclude the Minister from referring to a mediator or a review panel, transboundary adverse effects or adverse effects on lands in which Indians had an interest under subsections 46(1) and 48(1). Under paragraph 16(1)(a), every screening or comprehensive study of a project had to include “the environmental effects of the project.” If the destruction of Fort Creek caused adverse transboundary effects or adverse effects on lands in which Indians had an interest, those concerns could be taken into account in the screening or comprehensive study being undertaken under section 16 of the CEAA. It was not necessary to rescope the project.
Texte intégral
2006fca31.html