Federal Court Decisions

Date: 20000731

Docket: T-1586-98

BETWEEN:

     JOHN R. LAVOIE

     Applicant

     - and -

     THE MINISTER OF THE ENVIRONMENT,

     THE MINISTER OF FISHERIES AND OCEANS,

     MINISTER OF INDIAN AND NORTHERN AFFAIRS,

     KAGIANO POWER CORPORATION,

     AND OJIBWAYS OF THE PIC RIVER FIRST NATION

     Respondents

     REASONS FOR ORDER

LEMIEUX J.:

[1]          This judicial review application by John Lavoie (the "applicant") focusses on the obligations of the federal authorities under the Canadian Environmental Assessment Act ("CEAA") arising out of two decisions. The first was made on July 21, 1998, by the Department of Fisheries and Oceans " Fisheries and Habitat Management ("DFO"), as the responsible authority, determining, pursuant to paragraph 20(1)(a ) of the CEAA, a proposed project was not likely to cause significant adverse environmental effects. The second decision was made by Indian Affairs and Northern Development on September 21, 1998, to the same effect which permitted funding of the project to the Ojibways of Pic River First Nation.

[2]          The project, its origin reaching back to 1988, is the construction and operation of a small 4.9 megawatt "run of the river" hydraulic power generating station on the Kagiano River (the "River") at Twin Falls. Twin Falls consists of a series of chutes, falls, pools and islands, approximately 575 metres in length with an overall drop in elevation of 55 metres and is located some 23 kilometres north of Manitouwadge in Northern Ontario. The River is a tributary of the Pic River joining it a few kilometres downstream from Twin Falls. The Pic River flows into Lake Superior.

[3]          Destruction of fish and harmful alteration or destruction of fish habitat had been identified in 1991 as potential environmental effects of the project requiring authorization under sections 35(2) and 32 of the Fisheries Act. In its July 21, 1998 decision, DFO outlined mitigation and compensation measures required to compensate for the loss of food production and fish habitat as well as the loss of fish itself. As well, a monitoring and follow-up plan was established.

[4]          After completing its review of the project, DFO concluded, taking into account the implementation of mitigative and compensation measures, it was not likely to cause significant adverse environmental effects. DFO said its review had been based on information and advice provided by the project proponent by the Ontario Ministry of Natural Resources ("OMNR"), and the Ontario Ministry of the Environment, Environment Canada and the Canadian Coast Guard.

[5]          The applicant, John Lavoie, is a resident of Manitouwadge. He has fished, canoed, camped and commercially harvested animals on the River for 31 years operating a registered trap line in the area. Mr. Lavoie was also one of the first members and Secretary of the Twin Falls Public Advisory Committee (PAC) established in 1992 by the project"s proponent and OMNR to advise on its proposed development.

A.      BACKGROUND

[6]          The following highlights the main phases in the evolution of the project.

     (1)      The period 1988 to summer of 1992

[7]          Rapid-Eau Technologies Inc. ("Rapid-Eau"), which later became a shareholder in Kagiano Power Corporation ("KPC") (the "proponent") first thought of an hydro-electric project in the Twin Falls area in 1988 and in December of that year made application to OMNR for provincial authorization. The initial project ("version one") consisted of a generating station on the Pic River, the damming of the Kagiano River from Twin Falls to its confluence downstream with the Pic River with water feeding the generating station carried through a penstock. OMNR turned down this first version owing, in large measure, to the damage which it would cause to fishery habitat. A 1991 study by the proponent had indicated the area between Twin Falls and Pic River was a major spawning/nursery area for rainbow trout, salmon, walleye and possibly sturgeon.

(2)      The period from summer 1992 to March 1995

[8]          On June 26, 1992, Rapid-Eau made a substantial project change ("version 2") and applied to OMNR for location approval. This second version saw the generating station moved upstream to a location at the base of Twin Falls rather than on the Pic River. The Kagiano River would not be dammed at the top of Twin Falls but a weir would be constructed for water diversion purposes and carried to the generating station via a penstock. The tailrace (the exiting water from the generating station) would be discharged into the Twin Falls base pool, a spawning area for rainbow trout and other species.

[9]          This time period saw the following developments. The proponent became Kagiano Power Corporation ("KPC") and the Public Advisory Committee ("PAC") was established to advise on the project. As noted, the applicant John Lavoie was a first Member and was Secretary of the PAC, a position which he still occupies today; KPC prepared an information package on version 2 of the project which was explained at a public open-house on October 21, 1992, and formally presented at a public meeting held on December 15, 1992.

[10]          On November 4, 1992, OMNR formally sent the version 2 project proposal to DFO. OMNR's Manitouwadge Area Supervisor expressed the view to Edwin Debruyn, Senior Fish Habitat Biologist, at DFO, located in Burlington, Ontario, the proposal would require authorization under the Fisheries Act because a section of Twin Falls between the diversion weir and the tailrace would be dewatered during periods of low flow. OMNR advised DFO that the project was at the Project Information Package ("PIP") stage in terms of Ontario legislation. OMNR was of the view that now was the most appropriate time for DFO"s involvement.

[11]          Mr. Debruyn, participated in a December 7, 1992 briefing session at which were present officials from OMNR and A. Stenzel from Environmental Applications Group, environmental consultants to KPC who had previously prepared the 1991 fish habitat analysis of version one of the project.

[12]          The record indicates OMNR's District Manager receiving inputs on KPC's PIP from various Ontario departmental officials in site planning and engineering. In June 1993, OMNR's site planning officials expressed concern about the impact of area dewatering on productive invertebrate habitat raising the question of mitigation flows which, if such flows fell short, flagged whether the project should be approved or a compensation package worked out involving the measurement of lost productive capacity.

[13]          During this period of time DFO was an integral part of the Study Team reviewing version 2 of the project. The Study Team interacted with the proponents and the PAC.

[14]          On DFO's side, Karen McCabe-Gray raised issues related to the contour and depths of the pool areas in Twin Falls, outlined the pros and cons of putting the powerhouse on the central island in Twin Falls rather than its proposed location at its base, cautioned the tailrace pool area may not compensate enough if the upper pools in Twin Falls were dried up. She questioned the water flows into the base pool, identified invertebrate production requirements for the Twin Falls pools and sought answers to sturgeon presence and to the jumping capacity of rainbow trout to determine how far up Twin Falls they could reach. Furthermore, in a memo dated September 14, 1993, DFO referred to larval fish sampling from a DFO field trip on July 14, 1993, indicating larval fish presence just above the "impassable barrier" where nineteen white suckers were also found.

(3)      The period from December 23, 1993 to November 1996

[15]          On December 23, 1993, KPC's Fisheries Habitat Consultant indicated the PIP would be modified to reflect a change in location to the powerhouse and tailrace in order to address fisheries concerns expressed by DFO. In this version 3 of the project the powerhouse would now be located on one of the islands in Twin Falls so that the tailrace water would flow into some of the pools within the Falls themselves rather than only in the Twin Falls base pool. This revision, the consultants said, would ensure water flows in the north channel and would alleviate the impact on fish nurseries and invertebrate production in Twin Falls itself.

[16]          On November 8, 1993 and November 24, 1993, there were meetings of the PAC at which changes to version 3 of the project were discussed. Present at these meetings were officials from OMNR, the proponent and DFO.

[17]          In December 1993, KPC revised, for purposes of Ontario regulatory requirements, its initial PIP into a final PIP reflecting the powerhouse and tailrace location change.

[18]          On February 24, 1994, the PAC made a presentation to the Study Team on the final version 3 PIP. The PAC said the PIP contained major errors or shortcomings and identified a concern that there had been no on-site Twin Falls water flow studies and inadequate aquatic studies in 1993. In addition, the PAC said an island location for the powerhouse caused new problems related to the discharge of tailrace waters into the base pool. The PAC, while acknowledging it represented the public, expressed the view that direct public involvement was required because major changes to the proposal had not been reviewed by the public at large.

[19]          Throughout 1994, further exchanges took place between DFO, OMNR and KPC. In particular, Karen McCabe-Gray records a telephone conference call between OMNR officials and herself discussing various aspects of the project in version 3 and, in particular, the invertebrate production issue and the mitigative flow requirements.

[20]          On February 23, 1994, Karen McCabe-Gray summarized in writing her review of the PIP version 3. She was of the view the impacts to fish and fish habitat would not be significant and should be considered a minor disposition of a Crown resource and, if the Ontario agencies involved also determined the undertaking to be a minor disposition, the proponent should be issued location approval. If that approval was given, she noted final approvals from OMNR would be required as well as authorization from DFO for the harmful alteration, disruption or destruction of fish habitat.

[21]          She gave several reasons for calling the project a minor disposition including its run of the river operation resulting in insignificant changes to the River's oxygen and nutrient concentration, water temperature chemistry and water flow. The change to the island powerhouse location would allow for the maintenance of valuable fish habitat in the major pool beside the island in Twin Falls itself and she considered the small pools above this large pool not to be significant. In terms of fish habitat, she noted the cascades in Twin Falls were a barrier to upstream fish migration, and that invertebrate production in Twin Falls was small and did not provide a large quantity of food to fish in the pools and rapids located there. She observed the tailrace area would provide enhanced feeding/spawning habitat for rainbow trout and possibly other fish species.

[22]          She considered fish habitat compensation, fish migration and mitigative flows.

[23]          On March 10, 1994, OMNR wrote to KPC indicating the results of a February 23, 1994 Study Team meeting. The Study Team specifically identified flow distribution from the tailrace into the large base pool, prescribed water flows and stipulated a monitoring program. It said a public information session should be held.

[24]          The record contains the August 30, 1994 minutes of the Study Team meeting at which Karen McCabe-Gray was present and which discussed a number of fisheries issues, notably a comparison of habitat destroyed to habitat created or enhanced, water issues, monitoring, time for construction and DFO authorization for blasting.

[25]          KPC"s environmental consultant prepared a September 22, 1994 Remedial Action Plan ("RAP"). Its purpose was to set out specific mechanisms and commitments to address unanticipated impacts and deficiencies in the proposed mitigation and compensation approaches and the manner of addressing them. The RAP's effectiveness is premised on a monitoring program. For example, during the first year of operation, quarterly monitoring would take place, the tailrace base pool would be sampled and the manner of addressing any deficiency would be outlined. The RAP also contains a summary of habitat losses and gains and concludes that the expected net gains and/or losses of productive capacity would be small. In particular, the RAP said there will be a minor loss of aquatic habitat in Twin Falls equal to 250 m2 due to periodic dewatering during winter low flows observing the cascades represent a barrier to fish migration. One pool above the tailrace represents such a loss, the RAP says, but compensation would be provided in the Twin Falls base pool by increasing the depth of that pool thereby improving holding, rearing and overwintering habitat for fish. The RAP also addresses the issue of entrainment of fish by the power generating facility. This RAP was sent to OMNR on September 25, 1994 by KPC.

[26]          On March 9, 1995, OMNR issued KPC a conditional location approval for the location of the project on the island in Twin Falls and established certain terms and conditions. One condition was obtaining from DFO authorization for the destruction of fish habitat and associated compensation, the specification of mitigation flows and exclusion of any upstream diversions or dams whether in Kagiano River or at Kagiano Lake located upstream.

[27]          On April 15, 1995, Ontario's Minister of Environment and Energy decided an individual environmental assessment was not warranted and the project would not be designated subject to Ontario's Environmental Assessment Act.

     (4)      From November 1996 to November 1997

[28]          No major activity took place after Ontario's locational approval was granted by OMNR until November 8, 1996 when KPC submitted an application to DFO for authorization for works affecting fish habitat. Accompanying the application was a 200 page document covering such matters as background studies, public and regulatory consultation, description of existing conditions and proposed mitigation/compensation strategies. Those were the studies KPC had previously prepared for OMNR.

[29]          During this period a new issue arose in the context of OMNR's final construction and operation approval phase. OMNR, on January 15, 1997, commented on KPC's Kagiano Lake Water Control Environmental Overview Report. OMNR's letter to KPC sent up a number of red flags because the proposed water management plan called for flow increases during winter periods through late spring requiring water storage in Kagiano Lake, through the reactivation of the Kagiano Lake Dam, all with the result spring river flows in the Kagiano River would decrease by approximately ten cubic metres per second. OMNR called for additional studies and indicated to KPC that DFO would not give any approval for destruction of fish habitat until all studies were conducted.

[30]          On January 21, 1997, DFO acknowledged receipt of KPC's Application for Authorization and indicated reviews on impacts on fish and fish habitat were in progress. It said KCP's application and supporting documents would be part of the CEAA public registry and would be made available to members of the public, if requested.

[31]          On May 5, 1997, DFO sent a letter to OMNR on KCP's proposal to regulate flows in the River from Kagiano Lake upstream. DFO noted the proposal caused it serious concerns because of the anticipated flow changes in approximately 40 kilometres of the River above Twin Falls, changes in typical lake levels in Kagiano Lake (the "Lake") and changes to typical river flows. DFO called for a major impact study upstream from the power station and within the Lake itself as well as downstream from the powerhouse.

[32]          In a letter dated June 18, 1997, OMNR wrote to KPC indicating it had reviewed with DFO the proposal to regulate water flows out of Kagiano Lake and outlined DFO's concerns. MNR discouraged KPC from any water alteration use.

[33]          The project was registered with the Canadian Environmental Agency for environmental assessment with a screening start date of October 8, 1997.

In the Fall of 1997, KPC submitted to OMNR plans and specifications and an Environmental Protection Plan in order to obtain OMNR's approval for the construction and operation of the power station. On October 7, 1997, the PAC met with OMNR to review this documentation which the PAC characterized as containing major changes to what KPC had previously applied for. On November 4, 1997, the PAC received a briefing on the changes and on November 5, 1997, there was a public information meeting on the subject.

(5)      The period from November 29, 1997 to July 1998

[34]          The months of November, December 1997 and January 1998 saw the pace of communications between PAC and OMNR quicken.

(a)      On November 29, 1997, the Chair of PAC, Ron Fairservice, wrote to OMNR requesting consultation on what he described as the new (November 5, 1997) proposal to develop Twin Falls for hydro power. He identified the major changes as the Kagiano Lake Dam being a vital component of the new proposal, the change in location of the power station a few metres inside its previously identified island location, the impact of spring and summer construction, the impact of the new temporary road to the bottom of Twin Falls and the need for additional public consultation;

(b)      The PAC met with OMNR on December 22, 1997. The minutes, prepared by OMNR, indicate all of the issues identified by the PAC in its November 29, 1997 letter were discussed. The minutes indicate OMNR expressed the view the changes were not major. At that meeting, PAC requested to see the plans and specifications submitted by KPC before OMNR"s final approval was given. OMNR said to the PAC they should approach KPC on the issue.

(c)      Over Christmas of 1997, the PAC was given access by KPC to its plans and specifications which enabled the PAC to make detailed comments;

(d)      On January 9, 1998, the PAC made lengthy submissions to OMNR on the November 1997 changes and on the Environmental Protection Plan.

(e)      PAC met with OMNR on January 19, 1998. PAC's comments on KPC's plans and specifications were discussed. In addition, OMNR was to look into the PAC reviewing related fisheries reports and the final authorization for the destruction of fish habitat. OMNR discussed fisheries reports and indicated DFO authorization had not been completed yet. John Lavoie asked that a copy of the documentation be sent to DFO and OMNR indicated it would do so. It did so the next day. On February 13, 1998, the PAC wrote to KPC enclosing its comments and suggestions.

(f)      On February 18, 1998, OMNR's area supervisor met with the applicant; and on February 27, 1998, he wrote a lengthy letter to the Chair of PAC reviewing all of the issues which had been discussed since November 1997.

B.      THE SPOTLIGHT ON DFO

(a)      The February 24, 1998 letter

[35]          On February 17, 1998, John Lavoie, for the PAC, wrote to Virginia Thompson of OMNR indicating the PAC had recent conversations with DFO which led the PAC to believe that DFO was using inaccurate and/or incomplete information in their assessment. He said to Virginia Thompson that DFO cannot provide the PAC with written copies of the information they are using for their determinations unless PAC applies under the Access to Information process. He indicated DFO had suggested the PAC request the information from KPC and OMNR to avoid delays and expenses. He adds OMNR's area supervisor assured him on February 16th, OMNR would supply this information to the PAC saying the most recent information the PAC has is the 1994 version of the PIP. He said the PAC required current background information that had been provided to DFO and current information on the proposed fisheries mitigation/compensation indicating the PAC had made a similar request to KPC.

[36]          On February 24, 1998, John Lavoie, on behalf of the PAC, wrote to Karen McCabe-Gray at DFO indicating, in its second paragraph, DFO is unable or unwilling to supply the PAC with any of the written background information that it was using in its determinations. He added:

Our conversations with you and with the Ontario Ministry of Natural Resources biologists ... seem to confirm that you are using incomplete and incorrect information supplied by the proponent KPC. We have, as you suggested, talked with the proponent's fisheries consultant and it is apparent that he too is using the same incomplete and flawed data. These significant shortcomings have been repeatedly brought to the attention of MNR staff in the Wawa District but they have never been acknowledged, addressed or rectified. [emphasis mine]

[37]          Over the next two pages of his letter, Mr. Lavoie identifies issues related to the North Channel in Twin Falls and important pools in the proposed tailrace area being dewatered during natural low water periods. Mr. Lavoie talks about Twin Falls being a sturgeon spawning area and the Kagiano River hosting speckled trout and there still being no documentation or even official acknowledgement of this species. He talks about adult sturgeon and fingerling sturgeon being angled from Twin Falls at considerably higher elevations than the proposed tailrace pool " pools that will be dewatered under the current development program. He says the proponent has not identified the spawning areas, nursery areas or other habitats used by sturgeon and speckled trout.

[38]          In terms of public consultation, he said:

You have told the PAC that the public consultation requirement of the federal environmental assessment has been met through the Ontario Ministry of Natural Resources. We are not convinced that the federal public consultation requirements have been met. The PAC is in the process of documenting the shortcomings and inadequacies of the Ministry of Natural Resources public consultation requirements. MNR has not followed the public involvement/public consultations requirements as outlined in their own Waterpower Guidelines or their own Public involvement/public consultation Guidelines. [emphasis mine]

[39]          Mr. Lavoie adds:

Your telephone conversation with the Twin Falls Public Advisory Committee on February 19th did not inspire confidence that the Fisheries' concerns at Twin Falls will be adequately addressed. Your statement that you intend to sign the letter of intent as soon as you get it because you already know what's in it and your statement that you will attach a note to this letter recommending that PAC's request for public participation should be denied only seems to confirm that this Federal Environment Assessment will not be a meaningful process.[emphasis mine]

[40]          Mr. Lavoie stated the PAC requests the following action:

(1) Immediate public access to documents as outlined in section 55. (There are no documents in the public registry.. only the basic "tombstone" information)

(2) Meaningful public participation as required under the Federal Environmental Assessment Act (section 18(3)) or preferably

(3) A more detailed assessment by way of a review panel or mediation and

(4) A joint federal-provincial review of the Twin Falls proposal.

[41]          On that same day he wrote to the federal Minister of Fisheries and Oceans and to the federal Minister of Indian Affairs and Northern Development.

(b)      Attempts to access documents in the Public Registry

[42]          The applicant's record at page 46 appends a chronology of the PAC's attempts to access documents through the federal Public Registry identifying first a February 16, 1998 PAC phone call requesting from Karen McCabe-Gray the document list and then another one on February 19, 1998.

[43]          On March 3, 1998, he talked with Wayne Hyatt, DFO Senior Biologist in Burlington, Ontario. He made a note to the effect Mr. Hyatt did not appear to know how the Public Registry worked. He requested the document list.

[44]          The next recorded request is on April 21, 1998, when Mr. Lavoie left a telephone message with Wayne Hyatt requesting the document list and a reply to letters previously sent to DFO. Mr. Lavoie records a telephone conversation on April 29, 1998, asking Karen McCabe-Gray for the document list and indicating in his note she said she did not know if it was available. She raised with Mr. Lavoie the need for Access to Information clearance.

[45]          Mr. Lavoie had a telephone conversation on June 11, 1998, with Wayne Hyatt. His note said Mr. Hyatt informed him the document list was mailed on May 28th. He obtained a fax copy that day. Mr. Lavoie called Karen McCabe-Gray recording she told him should request the documents directly through herself and she would forward the request to the Access to Information Coordinator at DFO.

[46]          The day after receiving the document list, Mr. Lavoie asked Karen McCabe-Gray for 79 documents totalling 380 pages and had a telephone conversation with Lynn Desjardins, DFO Access Coordinator, who briefly described the ATIP process.

[47]          On June 16th, Mr. Lavoie follows up with a phone message to Karen McCabe- Gray asking her whether she has sent the requested documents to ATIP; on June 18th or 19th, Karen McCabe-Gray left Mr. Lavoie a telephone message indicating she had not sent those documents to ATIP.

[48]          On June 26th, Mr. Lavoie wrote to the Access to Information Commissioner requesting an investigation. An investigator was named. This investigator told Mr. Lavoie on July 9th that because PAC did not make a formal request for documents to ATIP, their rights had not been breached. The investigator said PAC's request for documents was made under the Public Registry and if it wanted a deferral of DFO's authorization, the route was the Federal Court.

[49]          On April 20, 1998, Karen McCabe-Gray wrote a very lengthy letter to John Lavoie following up on their telephone conversation of February 25th after receipt by DFO of PAC's letter of February 24, 1998. This letter addresses all the issues raised by the PAC including concerns about incomplete or flawed data in the KPC 1994 PIP, incorrect information in that PIP on water flows and potential dewatering of the North Channel, lack of information on sturgeon and brook trout, comments on the various pools located above the proposed tailrace not being indicated on any maps, no accurate or detailed drawings or documentation of the physical characteristic of the pool areas and the inadequacy of public consultation.

[50]          On July 10, 1998, John Lavoie, on behalf of the PAC, wrote to the Minister of Fisheries and Oceans after being advised by Karen McCabe-Gray the previous day DFO intended to issue an authorization for the destruction of fish habitat. He complained about repeated attempts to access documents through the public registry and the lack of meaningful public consultation. A similar letter was sent to the Minister of the Environment.

[51]          On July 5, 1998, Mr. Lavoie sent to Karen McCabe-Gray a blank cheque payable to Revenue Canada for payment of the previously requested documentation made on June 12, 1998. Mr. Lavoie added to his list of requested documents the final letter of intent, the environmental assessment screening report and any other documents that were not included on the document list mailed to him by DFO on May 28, 1998.

[52]          On July 9, 1998, Mr. Lavoie sent another letter to Karen McCabe-Gray asking her to immediately send all of the requested documents which were available at that time. He followed up on July 16, 1998.

[53]          DFO, as noted, issued its letter of authorization to KPC on July 21, 1998.

[54]          On July 21, 1998, Karen McCabe-Gray sent DFO"s Access to Information Coordinator the requested documents "for your 'ATIP-like review'". She indicated at this time there was no one in the region trained in ATIP procedures to determine whether the documents requested were appropriate for release .

[55]          Mr. Lavoie received the requested documents on August 10, 1998, when they were sent to his legal counsel.

(c)      The federal response in these proceedings

[56]          The federal response in terms of DFO came through the affidavit of Edwin Debruyn.

[57]          He indicates in or about November 1992, DFO was advised by OMNR of the project and that authorization under the Fisheries Act might be required at some future date. He states since that time, OMNR kept DFO apprised of developments with respect to the project. He acknowledges the November 1996 application by KPC for authorization for works affecting fish habitat and refers to the accompanying documentation sent by AGRA, KPC's fish habitat consultants. He confirmed a determination was made that a Fisheries Act authorization would be required for the harmful alteration, disruption or destruction of fish and/or fish habitat which triggered the application of CEAA; DFO became the responsible authority.

[58]          He mentions the Kagiano Lake dam issue and DFO's stance on it advising OMNR on May 5, 1997, any proposal to regulate flows in the River through the use of the dam at Kagiano Lake would substantially change the nature of the project and the assessment that would have to be conducted under the CEAA.

[59]          He said throughout the period from November 1996 through mid January 1997, DFO continued to review the project on an on-going basis and, in particular, DFO was kept advised by OMNR and other agencies concerning issues within their jurisdiction and much of the focus during this time was between the provincial authorities and KPC on the dam issue. He refers to a February 17, 1998 letter from AGRA on behalf of KPC for surface blasting operation review and approval under section 32 of the Fisheries Act.

[60]          In terms of public consultation, he said an extensive public consultation program had been undertaken by the proponent of the project in conjunction with OMNR as part of the provincial environmental approval process including the establishment of PAC who had been involved in reviewing the project for several years; he said it was determined no further public participation was warranted in the preparation of the screening report and this was believed to be consistent with both sections 18(2) and (3) of the CEAA and with one of the stated purposes of the CEAA, namely the avoidance of unnecessary duplication in the environment process. He adds, based on all of this information, a CEAA screening report was prepared in accordance with section 18(1) of the CEAA which concluded that, with the proposed mitigation and compensation measures, the project was not likely to cause significant adverse environmental effects.

[61]          In his affidavit, Mr. Debruyn stated that prior to issuing these authorizations, in accordance with DFO's policy for the management of fish habitat, DFO obtained from KPC an undertaking outlining the mitigation and compensation measures to be undertaken to ensure there would be no net loss of the production capacity of the affected fish habitat and these measures were incorporated into a letter of intent from KPC.

[62]          Mr. Debruyn deposed DFO does not authorize the harmful alteration, disruption or destruction of fish and/or fish habitat where the loss of fish habitat is determined to be unacceptable and unless measures are taken to compensate for the loss of the productive capacity of fish habitat. He stated professional judgment and common sense needed to be applied.

[63]          At paragraph 29 of his affidavit, he says all of Mr. Lavoie's concerns about the potential impact of the project on fish and fish habitat were not new and DFO considered them at the time they made their decision to issue the authorization.

[64]          Mr. Debruyn then talked about public registry documents at paragraph 33 through 47 of his affidavit.

[65]          He said once the proposal for the project was received in support of the application, it was entered into the departmental data base and once it was determined it would require an environmental assessment under the CEAA, the project was registered with the Canadian Environment Assessment Agency. Thereafter, a list of records relating to CEAA approval decisions was prepared on the departmental data base by the assessment biologist and this list of records included all records in possession of DFO authorization and CEAA review including those described in subsection 55(3) of the CEAA. He indicated the records themselves were kept on file at DFO to establish a public registry as referred to in section 55.

[66]          He added that employees of the Canadian Environment Assessment Agency maintained the federal environmental assessment index which contains key information provided by the responsible agency, on the environmental assessment, including a contact name to access documentation. Members of the public who wish to access further information about a particular environmental assessment could request listed documents relating to that assessment from the identified departmental contact. From that list of records, they could then select which documents they would like to examine and could request copies of those documents from the contact person.

[67]          He added, at the time, it was his understanding DFO's departmental procedure was that when the documents were requested from the list of records, it was necessary to give consideration to the Access to Information Act and, in particular, sections 27, 28 and 44 of that Act.

[68]          He deposes in order to ensure compliance with the Access to Information Act when releasing documents to the public, it was DFO's practice to forward all requests for public registry documents to the Access to Information and Privacy Office (the "ATIP") for review so that a qualified access to information officer could review the documents and assure no documents would be released in contravention of the Access to Information Act. He said this practice was in effect in February 1998.

[69]          He said on April 29, 1998, Mr. Lavoie asked for a copy of the public registry list of records on behalf of the PAC and was advised the list of records was just being updated so it could be sent to the ATIP for review. He confirms DFO's sending Mr. Lavoie on May 28, 1998, a copy of an undated public registry list of records, with advice that any request for documents be made to the Ontario Region Office cautioning any requested documents from the list of records would first have to be forwarded to the ATIP Office for review. He confirms the documents requested by PAC were cleared by DFO - ATIP on or about July 30, 1998. The Ontario Region then had to contact all third parties who might have been affected by the information in order to obtain their consent prior to releasing the documents. He confirms their August 10, 1998 delivery to Mr. Lavoie"s legal counsel.

[70]          The federal response on behalf of the Department of Indian and Northern Development ("INAC") was made through the affidavit of Roy Smallion who is employed as a Policy Analyst and is responsible for analysing proposals submitted to INAC by First Nations for Economic and Resource Development Projects.

[71]          In April 1998, he was asked to review a business plan submitted by the Ojibways of the Pic River First Nation whose reserve is located on Heron Bay in Northern Ontario. He said this First Nation was a 40% shareholder in KPC and was requesting between $200,000 and $500,000 as an equity contribution towards the project.

[72]          He said he reviewed the business plan, a 100-page document, which set out details of the project including all approvals obtained, details of financing and information regarding further financing required by the First Nation. At that time, KPC had arranged financing of $7.2 million of the total construction costs of $8 million from a corporate financial backer with the balance financed from a loan from a commercial bank and a contribution from the National Opportunity Fund Program operated by INAC.

[73]          Based on his analysis, he indicated to the First Nation he was prepared to recommend they be granted financial assistance in the amount of $300,000 which was found acceptable; he prepared a report dated May 12, 1998 to this effect.

[74]          In a letter to Roy Michano, Chief of the First Nations, dated July 15, 1998, the Minister advised the Department was willing to provide the financing. In his affidavit, Mr. Smallion said before the grant could be made, an environmental assessment of the impact of the project was required by paragraph 5(1)(b) of the CEAA.

[75]          In terms of section 55 of the CEAA, Mr. Smallion indicates the project was registered on the public registry (the Federal-Environmental Assessment Index ("FEAI")) in mid September of 1998.

[76]          He says the environmental assessment was completed on September 21, 1998 by Bruce Boles, Environment Officer with INAC who concluded the project was unlikely to cause significant environment effects.

[77]          Mr. Smallion concluded his affidavit by indicating that on April 26, 1999, INAC provided $300,000 to the First Nation for the project.

C.      THE ISSUES

[78]          The basis of Mr. Lavoie"s judicial review application is the alleged non-compliance by DFO and INAC with certain provisions of the CEAA and a breach of the common law duty of fairness. He raised five issues:

(1)      Did DFO breach section 55 of the CEAA by not providing him with convenient access to the public registry documents, and by requiring use of the Access to Information Act before their release;

(2)      Did DFO breach a common law duty of fairness by not providing the requested documents and an opportunity for him to comment on them prior to DFO approval;

(3)      Did DFO and INAC breach subsection 15(3) of the CEAA by failing to conduct an environmental assessment of regulating water levels at Kagiano Lake in relation to the Twin Falls project;

(4)      Did DFO and INAC breach the provisions of paragraph 16(1)(a) of the CEAA by failing to (a) conduct an environmental assessment of the cumulative effects of regulating Kagiano Lake and the Twin Falls hydro project and (b) consider information on environmental effects; and

(5)      Did INAC breach paragraph 5(1)(b) and 11 of the CEAA by not conducting a screening prior to deciding to authorize funds.

D.      ANALYSIS

(1)      A preliminary issue

[79]          Counsel for KPC and counsel for the Ojibways of the Pic River First Nation strongly urged upon me that I should dismiss Mr. Lavoie"s application on a preliminary point based on his lack of standing. They argue he has no individual status and, when he interfaced with DFO and INAC, he did so as a member of PAC and as its Secretary. If anybody should be before me it should be PAC and not Mr. Lavoie, they argued.

[80]          The argument is an attractive one but I decline to endorse it for the reasons set out by my colleague Mr. Justice MacKay in Citizen"s Mining Council of Newfoundland and Labrador v. Canada (Minister of the Environment), [1999] F.C.J. No. 273, where he rejected a similar challenge.

[81]          He found the issue raised by the applicant was a serious one concerning the application of section 15 of the Act. That is an issue before me but there is much more. Mr. Lavoie meets the genuine interest test. His concern for environmental issues at Twin Falls runs deep and his participation in PAC attests to this fact.

[82]          Mr. Justice MacKay was of the view public interest standing may be accorded where an applicant has a genuine interest and there is no evidence of another or others with a genuine interest that could be reasonably expected to bring a challenge.

[83]          It is said in this case PAC is such a person but as Justice MacKay found because others might share the applicant"s concerns but have not commenced a legal action should not bar the applicant from commencing one. I grant Mr. Lavoie standing in the public interest.

[84]          These counsel also raised mootness but I think Oldman River Society, infra, answers that contention. In that case, as here, the project was substantially completed yet the Supreme Court of Canada rejected an argument about mootness because compelling compliance might have some impact on mitigative measures to ameliorate any deleterious impact of the project.

(2)      Overview

[85]          It is acknowledged KPC"s project at Twin Falls triggered an environmental assessment of the project by DFO and INAC under the CEAA provisions of subsection 5(d) in the case of DFO and subsection 5(b) in INAC"s case.

[86]          The CEAA contemplates several mechanisms by which an environmental assessment may be conducted and these are set out in section 14 including, where applicable, a screening or comprehensive study and the preparation of a screening report or a comprehensive study report; a mediation or assessment by a review panel and the preparation of a report; and the design and implementation of a follow-up program.

[87]          In this case, the route followed both by DFO and INAC was a screening under section 18 of the CEAA which reads as follows:

18. (1) Where a project is not described in the comprehensive study list or the exclusion list, the responsible authority shall ensure that (a) a screening of the project is conducted; and (b) a screening report is prepared. 18(2) Source of information (2) Any available information may be used in conducting the screening of a project, but where a responsible authority is of the opinion that the information available is not adequate to enable it to take a course of action pursuant to subsection 20(1), it shall ensure that any studies and information that it considers necessary for that purpose are undertaken or collected. 18(3) Consideration of public comments (3) Where the responsible authority is of the opinion that public participation in the screening of a project is appropriate in the circumstances, or where required by regulation, the responsible authority shall give the public notice and an opportunity to examine and comment on the screening report and on any record that has been filed in the public registry established in respect of the project pursuant to section 55 before taking a course of action under section 20. [emphasis mine]

18. (1) Dans le cas où le projet n'est pas visé dans la liste d'étude approfondie ou dans la liste d'exclusion, l'autorité responsable veille_: a) à ce qu'en soit effectué l'examen préalable; b) à ce que soit établi un rapport d'examen préalable. 18(2) Information (2) Dans le cadre de l'examen préalable qu'elle effectue, l'autorité responsable peut utiliser tous les renseignements disponibles; toutefois, si elle est d'avis qu'il n'existe pas suffisamment de renseignements pour lui permettre de prendre une décision en vertu du paragraphe 20(1), elle fait procéder aux études et à la collecte de renseignements nécessaires à cette fin. 18(3) Participation du public (3) Avant de prendre sa décision aux termes de l'article 20, l'autorité responsable, dans les cas où elle estime que la participation du public à l'examen préalable est indiquée ou dans le cas où les règlements l'exigent, avise celui-ci et lui donne la possibilité d'examiner le rapport d'examen préalable et les documents consignés au registre public établi aux termes de l'article 55 et de faire ses observations à leur égard.

[88]          Screening is defined in section 2 of the Act to mean an environmental assessment that is conducted pursuant to section 18 and that includes a consideration of the factors set out in subsection 16(1) of the CEAA.

[89]          Under subsection 18(3) of the CEAA a responsible authority may not take a course of action outlined in section 20 until appropriate public participation has been completed.

[90]          Subsection 18(3) also refers to section 55 of the CEAA which are the provisions concerning the public registry. Subsections 55(1) through 55(3) read:

55. (1) For the purpose of facilitating public access to records relating to environmental assessments, a public registry shall be established and operated in a manner to ensure convenient public access to the registry and in accordance with this Act and the regulations in respect of every project for which an environmental assessment is conducted. 55(2) Public registry established (2) The public registry in respect of a project shall be maintained (a) by the responsible authority from the commencement of the environmental assessment until any follow-up program in respect of the project is completed; and (b) where the project is referred to a mediator or a review panel, by the Agency from the appointment of the mediator or the members of the review panel until the report of the mediator or review panel is submitted to the Minister. 55(3) Contents of public registry (3) Subject to subsection (4), a public registry shall contain all records produced, collected, or submitted with respect to the environmental assessment of the project, including (a) any report relating to the assessment; (b) any comments filed by the public in relation to the assessment; (c) any records prepared by the responsible authority for the purposes of section 38; (d) any records produced as the result of the implementation of any follow-up program; (e) any terms of reference for a mediation or a panel review; and (f) any documents requiring mitigation measures to be implemented.

55. (1) Est tenu, conformément à la présente loi et aux règlements, un registre public pour chacun des projets pour lesquels une évaluation environnementale est effectuée afin de faciliter l'accès aux documents relatifs à cette évaluation. 55(2) Établissement du registre (2) Le registre public est tenu_: a) par l'autorité responsable dès le début de l'évaluation environnementale et jusqu'à ce que le programme de suivi soit terminé; b) par l'Agence, dans les cas où une médiation ou un examen par une commission est effectuée, dès la nomination du médiateur ou des membres de la commission jusqu'au moment de la remise du rapport au ministre. 55(3) Contenu du registre (3) Sous réserve du paragraphe (4), le registre public contient tous les documents produits, recueillis ou reçus relativement à l'évaluation environnementale d'un projet, notamment: a) tout rapport relatif à l'évaluation environnementale du projet; b) toute observation du public à l'égard de l'évaluation; c) tous les documents que l'autorité responsable a préparés pour l'application de l'article 38; d) tous les documents produits par l'application d'un programme de suivi; e) le mandat du médiateur ou d'une commission; f) tous les documents exigeant l'application de mesures d'atténuation.

(3)      Federal - provincial coordination

[91]          The Supreme Court of Canada, in 1992, decided Friends of the Oldman River v. Canada, [1992] 1 S.C.R. 3. The environmental process, at that time, was governed by the Environmental Assessment and Review Process Guidelines Order (the "Guidelines Order") established in 1984 pursuant to section 6 of the then Department of Environment Act .

[92]          Mr. Justice La Forest dealt with the constitutional issue whether the Guidelines Order offended sections 92 and 92(A) of the Constitution Act, 1867. I derive the following principles from his reasons for judgment on this point which are set out at pages 62 through 76 of the reported case:

(a)      The Constitution Act has not assigned the matter of "environment" sui generis to either the provinces or Parliament. The environment, as understood in its generic sense, encompasses the physical, economic and social environment touching several heads of power assigned to the respective levels of government (page 63 para. (f) to (h));

(b)      The environment is not an independent matter of legislation under the Constitution Act, 1867 and "that it is a constitutionally abstruse matter which does not comfortably fit within the existing division of powers without considerable overlap and uncertainty" (page 64, para. (e));

(c)      In exercising their respective legislative powers, both levels of government may affect the environment, "either by acting or not acting" (page 65, para. (b)).

(d)      "What is important is to determine whether either level of government may legislate. One may legislate in regard to provincial aspects, the other federal aspects. Although local projects will generally fall within provincial responsibility, federal participation will be required if the project impinges on an area of federal jurisdiction ..." (page 69, para. (a)).

[93]          It is well recognized in Canadian constitutional law that one of the ways to overcome difficulties of divided jurisdiction is through federal-provincial cooperation and, in this respect, the techniques are well-known: cooperation without delegation, delegation, federal-provincial agreements, and joint panels.

[94]          The CEAA has reflected these techniques. In particular, I refer to subsections 12(4) and (5) of the Act dealing with federal-provincial cooperation. They read as follows:

12. (4) Where a screening or comprehensive study of a project is to be conducted and a jurisdiction has a responsibility or an authority to conduct an assessment of the environmental effects of the project or any part thereof, the responsible authority may cooperate with that jurisdiction respecting the environmental assessment of the project. 12(5) Definition of "jurisdiction" (5) In this section, "jurisdiction" means (a) the government of a province; (b) an agency or a body that is established pursuant to the legislation of a province and that has powers, duties or functions in relation to an assessment of the environmental effects of a project; (c) a body that is established pursuant to a land claims agreement referred to in section 35 of the Constitution Act, 1982 and that has powers, duties or functions in relation to an assessment of the environmental effects of a project; or (d) a governing body that is established pursuant to legislation that relates to the self-government of Indians and that has powers, duties or functions in relation to an assessment of the environmental effects of a project. [emphasis mine]

12.(4) L'autorité responsable peut, dans le cadre de l'examen préalable ou de l'étude approfondie d'un projet, coopérer, pour l'évaluation environnementale de celui-ci, avec l'instance qui a la responsabilité ou le pouvoir d'effectuer l'évaluation des effets environnementaux de tout ou partie d'un projet. 12(5) Définition d'"_instance_" (5) Dans le présent article, "_instance_" s'entend_: a) du gouvernement d'une province; b) d'un organisme établi sous le régime d'une loi provinciale ayant des attributions relatives à l'évaluation des effets environnementaux d'un projet; c) d'un organisme, constitué aux termes d'un accord sur des revendications territoriales visé à l'article 35 de la Loi constitutionnelle de 1982, ayant des attributions relatives à l'évaluation des effets environnementaux d'un projet; d) d'un organisme dirigeant, constitué par une loi relative à l'autonomie gouvernementale des Indiens, ayant des attributions relatives à l'évaluation des effets environnementaux d'un projet.

[95]          The Federal Court of Appeal in Canadian Environmental Law Association v. The Minister of Environment, docket A-327-99, June 5, 2000, favourably commented on such cooperation.

(4)      The issues of public participation and fairness

[96]          The point of departure for the analysis of two of the issues raised by the applicant is subsection 18(3) of the CEAA. Section 18, as noted, deals with the conduct of an environmental assessment by way of screening. As noted, for the project, it was this vehicle DFO and INAC chose to satisfy their obligations under section 5 of the Act.

[97]          I agree with counsel for the Ministers that subsection 18(3) of the CEAA provides a responsible authority with the discretion of deciding whether public participation in the screening of the project is needed or not. Such a decision, Parliament said, is a matter of the opinion of the responsible authority gauged in terms of being appropriate in the circumstances. There is no issue here that public consultation was required by regulation.

[98]          Counsel for the applicant did not really challenge, in any significant way, the exercise of that discretion but pinned her argument on the existence of an independent common law duty of fairness owed to Mr. Lavoie by the federal responsible authorities including an obligation by those authorities to respond to his objections and an opportunity for him to respond to the rejection of his objections relying on Mr. Justice Collier"s 1986 decision in Crestpark Realty Ltd. v. Director General, Aids and Waterways on behalf of the Minister of Transport, 1 C.E.L.R. (N.S.) 121.

[99]          Under the CEAA, there is a role for the common law doctrine of fairness in a number of ways but, however, I cannot accept counsel for the applicant"s submission as to its independent and stand alone application in the area of public participation, the right to access relevant documents and the right to comment prior to an authorization being given. The reason is simple. Parliament has, in 1992, legislated on the content of fairness and has displaced the common law.

[100]          This is not to say a responsible authority can arbitrarily freeze out public participation in an environmental assessment. Such a proposition runs contrary to the fourth paragraph of the preamble to the CEAA and the stated purpose of paragraph 4(d) which is "to ensure that there is an opportunity for public participation in the environmental process".

[101]          Nevertheless, Parliament, in subsection 18(3), has conferred a power on the responsible authority to decide, in the particular circumstances, whether public participation in the screening of a project is appropriate in the circumstances.

[102]          The exercise of this discretion is governed by well-known legal principles reflected in the Supreme Court of Canada"s judgments in Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2 and, most recently, in Baker v. Canada, [1999] 2 S.C.R. 817.

[103]          As I see it, the decision taken by the responsible authorities not to further open up public participation in the project was exercised on sound legal principles. A dominant feature of this case is federal-provincial coordination of the environmental aspects of the project and extensive public participation through the PAC. The facts recited in these reasons amply demonstrate this public participation was significant and meaningful in terms of inputs into the environmental assessment of the federal aspects of the project in all of its phases, including the November 1997 changes. That public participation and DFO"s role interfacing with OMNR led to significant changes to the project which were beneficial.

[104]          I also note Mr. Lavoie"s letter to DFO of February 24, 1998, raising several issues and DFO"s lengthy reply of April 20, 1998; OMNR did the same in its February 27, 1998 response to Mr. Fairservice, PAC"s Chairman, commenting on all outstanding issues.

(5)      The subsection 15(3) breach

[105]          Counsel for the applicant argued the provisions of subsection 15(3) of the CEAA were breached because DFO"s description of the project does not refer to the control of the water levels in Kagiano Lake. In the circumstances, it is argued subsection 15(3) required an expansion of the scope of the environmental assessment to include the environmental effects of controlling the water levels in Kagiano Lake and the regulation of water flows in Kagiano River from the Lake to Twin Falls, a distance of forty kilometres.

[106]          From a factual point of view, the record shows that DFO and INAC performed no such environmental assessment. The issue is whether the provisions of subsection 15(3) compelled such an assessment. The applicant relied principally on Mr. Justice Gibson"s decision in Friends of the West Country Association v. Canada (Minister of Fisheries and Oceans) (1998), 28 C.E.L.R. (N.S.) 97, then under appeal. Shortly after the conclusion of the hearing in this matter, counsel for the applicant advised me the Federal Court of Appeal had rendered its judgment in the appeal launched by the Minister reported as The Minister of Fisheries and Oceans, Director, Marine Programs, Canadian Coast Guard v. The Friends of the West Country Association, [2000] 2 F.C. 263. The Federal Court of Appeal"s decision, written by Rothstein J.A., is not favourable to the applicant"s position on this point.

[107]          As I see it, Mr. Justice Rothstein established the following principles in that case:

(1)      The issue of interpreting and applying sections 15, 16 and 55 of the CEAA involve questions of law to be decided on the standard of review of correctness. He left open the issue of the appropriate standard of reviewing the substance of discretionary decisions which Mr. Justice Gibson found to be one of reasonableness rather than patently unreasonableness.

(2)      Subsection 15(3) does not impose a mandatory obligation on the responsible authority to conduct an environmental assessment of other physical works outside the scope of the project as determined under subsection 15(1). A proper construction of subsection 15(3) is that it only requires an environmental assessment that pertains to the life cycle of the physical work itself as scoped or that are subsidiary to that physical work.

(3)      Subsection 15(3) could, as a result of a discretionary decision by the regulatory authority, cover such other non-scoped physical works where the regulatory authority is of the opinion such other non-scoped physical works are likely to be carried out in relation to the scoped physical work.

[108]          DFO"s environmental assessment screening report contained the following project description:

Construction of a 4.9 megawatt hydroelectric facility on the north shore of the Kagiano River at the crest of the Twin Falls. A weir will be constructed at the top of the falls in the south channel to direct water to an intake, resulting in decreased flows over the falls which will influence potential invertebrate production and isolated pockets of fish habitat. A 350 metre tailrace tunnel will be constructed underneath the falls by mining. In addition, a tailrace outlet will be constructed in the north east channel at the bottom of Twin Falls. An existing instream rock grade control downstream of the tailrace pool will be adjusted to increase low water levels to an elevation of 499.6 metres a.s.L. Use of explosives for purpose of removing or fracturing rock during the construction of the Twin Falls hydro-electric facility.

[109]          In that same screening report, DFO defined the project scope as follows:

The scope of the hydroelectric project includes the construction and operation of the hydroelectric facility, the environmental effects of malfunctions or remedial strategies that may occur in connection with the project, the cumulative environmental effects that may result from the project in combination with other projects or activities that have been or will be carried out, comments received from the public, and technically and economically feasible measures that would mitigate against any significant adverse environmental effects of the project.

[110]          Again, the screening reports described the scope of the environmental assessment as follows:

The scope of the environmental assessment includes: environmental effects identified in paragraph 16(1)(a) and section 2 of the CEAA; environmental effects associated with the construction and operation of the 4.9 mega watt hydroelectric facility on the north shore of the Kagiano River at the crest of the Twin Falls in Manitouwadge. The scope also includes all fish habitat enhancement work proposed in the Kagiano River, the secondary access roads and water crossings to be constructed from the existing forestry access roads, the hydro lines, the power house facility and the blasting activities associated with the construction of the hydroelectric facility.

[111]          The project as scoped did not include the regulation of water levels in Kagiano Lake nor the waterflows in Kagiano River from Kagiano Lake to Twin Falls. As I read the Federal Court of Appeal"s decision in Friends of West Country, supra, section 15(3) did not mandatorily compel DFO and INAC to conduct an environmental assessment identifying the environmental effects of those waters because they did not come within the ambit of the project as scoped.

[112]          DFO and INAC had a discretion to conduct an environmental assessment pertaining to those waters if they formed the opinion that the regulation of those waters was likely to be carried out in relation to the operation of the hydro-electric facility at Twin Falls.

[113]          I do not accept counsel for the applicant"s submissions the decision made by the responsible authorities not to conduct an environmental assessment of those water levels and flows is unreasonable.

[114]          The evidence in the record satisfies me the responsible authorities had a reasonable factual basis to conclude the way they did.

[115]          First, while KPC considered regulating water flows from Kagiano Lake for the benefit of its Twin Falls hydro-electric generating facility, it abandoned that idea and, on March 2, 1998, its Managing Director, David G. DeMontmorency wrote to its environmental advisors indicating Kagiano Power had formally notified OMNR that the Twin Falls development does not include any operation of Kagiano Lake. KPC arrived at its decision because DFO, in particular, when apprised of the possibility, stated to both OMNR and KPC such expanded development would require a redefinition of the scope of the assessment to include water levels in Kagiano Lake and water flows in Kagiano River between the Lake and Twin Falls.

[116]          Second, OMNR wrote to Dan Fairservice on February 27, 1998, about the Kagiano Lake Dam as a vital component to the project. He said there was no consideration being given to dispose of the Kagiano Dam site indicating the Dam was currently owned and maintained by a company other than KPC and neither the ownership nor the operating regime was expected to change. OMNR concluded the Dam was not a component of the proposal before it.

[117]          Third, KPC"s Managing Director swore an affidavit in these proceedings and said unequivocally KPC had no intention of developing the Dam at Kagiano Lake.

[118]          Fourth, DFO"s witness in these proceedings, Edwin Debruyn said that the approval given by DFO was for a run of the river hydro-electric facility which meant no water storage was involved at Kagiano Lake.

[119]          The applicant, in his written argument, mentioned a misdescription in the screening report concerning the location of the weir which was said to be in the South Channel. The applicant argues the weir will cover both the North and South Channels at Twin Falls. After examining the record, I find this misdescription is immaterial to the substance of the environmental assessment conducted by DFO and INAC at Twin Falls.

(6)      The section 16(1)(a) breach

[120]          Paragraph 16(1)(a) of the CEAA provides, inter alia, that every screening of a project shall include a consideration of the environmental effects of the project, including the environmental effects of malfunctions or accidents that may occur in connection with the project and any cumulative environmental effects that are likely to result from the project in combination with other projects or activities that have been or will be carried out.

[121]          Counsel for the applicant argues this paragraph requires DFO to assess the cumulative effects of operating the Dam at Kagiano Lake as part of the assessment of the Twin Falls hydro-electric project. The Federal Court of Appeal"s decision in

Friends of West Country, supra, is again on point.

[122]          Mr. Justice Rothstein"s analysis and conclusion on the proper interpretation of section 16 of the CEAA is similar to those reached when he interpreted section 15. In particular, he concluded the scope of the factors to be taken into consideration under paragraph 16(1)(a) is to be determined by the responsible authority and under subsection 16(3) finds this scoping is a discretionary decision on the part of the responsible authority.

[123]          Mr. Justice Rothstein said the process of interpreting this section involved two aspects. The first is for the responsible authority to consider the applicability of all of the factors in paragraphs 16(1)(a) to (e) to the project being assessed. Some consideration of each factor is mandatory. In terms of paragraph 16(1)(a). he concluded the paragraph required the responsible authority to consider environmental effects that are likely to result from the project"s scope under subsection 15(1), in combination with other projects or activities that have been or will be carried out. He identified the second aspect as involving the exercise of the discretion under subsection 16(3) to determine the scope of the paragraph 16(1)(a) factor i.e., the cumulative environmental effects that will be considered. He held that by necessary implication, a decision as to the cumulative environmental effects that are to be considered requires a determination of which other projects or activities are to be taken into account. He concluded that it was within the discretion of the responsible authority to decide which other projects or activities to include and which to exclude for purposes of a cumulative environmental effects assessment under paragraph 16(1)(a).

[124]          In Friends of West Country, Mr. Justice Rothstein faulted the Coast Guard because it declined to consider matters that were outside the defined scope of the projects and that were outside federal jurisdiction. In his view, the Coast Guard, in the case before him, construed the boundaries of the exercise of its discretion more narrowly than the provisions of section 16 permit and therefore declined to exercise the jurisdiction conferred on it.

[125]          The applicant before me cannot succeed on this point. An examination of the record leads me to the conclusion the approach taken by the responsible authorities is consistent with the approach defined by Mr. Justice Rothstein in Friends of West Country, supra. The paragraph 16(1)(a) factor was considered and, in the exercise of its discretion under subsection 16(3), the responsible authorities reasonably concluded there would be no cumulative environmental effects from the operation of the Kagiano Lake Dam because that Dam had not been in operation for some several years and there was no future intent to effect a change.

[126]          The applicant raised another point under section 16. Counsel argues the case law stands for the proposition that the responsible authorities charged with issuing an approval under section 20, must gather information sufficient to consider the full environmental implications of issuing that approval. The applicant says DFO and INAC failed in two ways: first, they did not determine the quantity of fish habitat that will be lost in Twin Falls above what has been described as the impassable barrier including nursery and migration habitat, and the effects on the productive capacity of fisheries from mortality due to entrainment. The applicant criticizes DFO for not conducting its own investigation or requiring KPC additional documentation on the point.

[127]          In arguing this point, the applicant takes aim, in my view, at the substance or merits of the assessment conducted by the responsible authorities or to put it in Mr. Justice MacKay"s words in Union of Nova Scotia Indians v. Attorney General of Canada, [1997] 1 F.C. 325 at 345:

They failed to conduct a careful and reasonable scientific assessment of the project.

Mr. Justice MacKay was of the view a challenge of this nature had to meet the patently unreasonable standard of review.

[128]          In Union of Nova Scotia Indians, supra, the applicants had argued that all of the details of migrating measures had to be resolved and considered before acceptance of the screening report took place. In addition, there were claims that critical information such as basic fish migration and fish habitat were not obtained. There was a divergence of scientific opinion which Justice MacKay at page 348, said:

It would be unusual if they did not have differing views, as the written record here reveals was the case.

[129]          Justice MacKay quoted with approval the following extract from the Federal Court of Appeal"s decision in Alberta Wilderness Association v. Express Pipelines Ltd ., [1996] F.C.J. No. 1016, where the Court described the process under the CEAA as follows at paragraph 10:

No information about the probable future effects of a project can ever be complete or exclude all possible future outcomes.... The principal criterion set by the statute is the "significance" of the environmental effects of the project: that is not a fixed or wholly objective standard and contains a large measure of opinion and judgment. Reasonable people can and do disagree about the adequacy and completeness of evidence which forecasts future results and about the significance of such results without thereby raising questions of law.

[130]          In Union of Nova Scotia Indians v. Canada, supra, Mr. Justice MacKay said this at page 349:

The very nature of the decision means that in judicial review proceedings, the Court must inevitably defer to the statutory decision maker, unless persuaded that the decision is patently unreasonable, in the sense that it cannot rationally be justified in light of all the information available to the decision maker at the time of the decision. So long as there is information on which the decision could be rationally based, the Court will not interfere.

[131]          I am satisfied the evidence available to the responsible authorities was such that a proper assessment of the two matters complained of by the applicant (fish habitat above the impassable barrier and fish entrainment in the turbines) was conducted.

[132]          First, DFO knew of and considered the presence of fish, the extent of fish habitat and habitat for food production above the impassable barrier. These issues were the subject matter of environmental studies in 1991 and 1993 and were the subject of consideration by DFO as is amply shown in the lengthy April 20, 1998 letter sent to the applicant by Karen Gray which is exhibit "N" to the affidavit of Edwin Debruyn. Second, KPC"s environmental consultant, Andreas Stenzel deposed an affidavit in these proceedings. His conclusions are spelled out at pages 77 through 80 of the record of the respondent Kagiano Power Corporation. As noted, Mr. Debruyn also deposed an affidavit on these points on behalf of the respondent Ministers. Both Mr. Debruyn and Mr. Stenzel were cross-examined on their affidavits.

[133]          My reading of these cross-examinations as well as the affidavit and cross-examination of the applicant"s expert Donald Speller demonstrates that the experts examined the presence of fish, fish habitat and habitat for food production in the area between the tailrace and the weir. The experts for the respondents were of the view the area was at best a marginal area for habitat and fish with Mr. Speller taking a somewhat but not completely different view. Mr. Speller indicated, several times, that his disagreement with the experts for the respondents was one which was a matter of opinion and judgment.

[134]          I conclude, as did Mr. Justice MacKay in Union of Nova Scotia Indians, supra, the decision reached by the responsible authorities were not unreasonable and clearly not patently unreasonable.

(7)      Breach of section 55 of the CEAA

[135]          The applicant argues a breach of section 55 of the CEAA for two reasons: first, DFO did not provide convenient access as required and second, DFO compelled an inappropriate and improper use of the Access to Information Act.

[136]          In terms of convenient access, the applicant highlights these facts: an initial request for documents made in February 1998; the receipt by the applicant of a list of documents in the public registry only in May 1998 and ultimately, the receipt of requested documents in August of that year.

[137]          Mr. Justice Gibson, in Friends of West Country, supra, dealt with a section 55 CEAA breach argument in a case where a screening report had been issued and public consultations mandated by the responsible authority.

[138]          Justice Gibson noted, in the case before him, the public registry was maintained in Sarnia, Ontario, but the applicants and its members resided in the foothills of Alberta. A representative of the applicant requested copies of all materials on the registry. Justice Gibson found copies of some materials were provided but copies of other materials were not provided for the stated reasons of costs and the amount of work in duplication of the materials. Then, the applicant"s representatives were invited to make an application for the materials under the Access to Information Act . Justice Gibson found, at page 122 of the reported case:

Given that the materials were requested for the purposes of public consultation provided for in subsection 18(3) of the CEAA and that the period provided for such consultations was quite short, the recommendation to make use of the Access to Information Act procedures was completely inappropriate and, more importantly, not in keeping with the obligation under section 55 of the CEAA and the related commitment recited in the preamble to the Act.

[139]          On appeal, Mr. Justice Rothstein for the Federal Court of Appeal, upheld Mr. Justice Gibson on this point. He found that the establishment and manner of operation of the public registry was subject to the exercise of discretion by the responsible authority and that while cost was a factor to be considered, and there is no proximity requirement for the registry, subsection 55(1) does require that convenient access to the registry must be ensured. He concluded that if a public registry is not established and operated in close proximity to the relevant geographic area of the environmental assessment, other reasonable means e.g. E-mail, faxes, placing a set of timely materials filed in the registry with an agent within close proximity to the project for access by the public, must be provided to comply with subsection 55(1). He added at page 290 requiring the public to resort to procedures under the Access to Information Act was the antithesis of what subsection 55(1) requires.

[140]          The Ministers" approach to this issue was rather defensive. They relied upon section 57 of the CEAA headed "Judicial Review" which reads:

57. An application for judicial review in connection with any matter under this Act shall be refused where the sole ground for relief established on the application is a defect in form or a technical irregularity.

57. Il n'est admis aucune demande de contrôle judiciaire liée à la présente loi et fondée uniquement sur un vice de forme ou

The Ministers also referred to subsection 18.1(5) of the Federal Court Act which reads:

(5) Where the sole ground for relief established on an application for judicial review is a defect in form or a technical irregularity, the Trial Division may (a) refuse the relief if it finds that no substantial wrong or miscarriage of justice has occurred; and (b) in the case of a defect in form or a technical irregularity in a decision or order, make an order validating the decision or order, to have effect from such time and on such terms as it considers appropriate.

(5) La Section de première instance peut rejeter toute demande de contrôle judiciaire fondée uniquement sur un vice de forme si elle estime qu'en l'occurrence le vice n'entraîne aucun dommage important ni déni de justice et, le cas échéant, valider la décision ou l'ordonnance entachée du vice et donner effet à celle-ci selon les modalités de temps et autres qu'elle estime indiquées.

[141]          Counsel for the Ministers argues that even if this Court were to conclude that there were technical irregularities in the manner in which the public registry was maintained, such irregularities did not cause any prejudice to Mr. Lavoie. Counsel for the Ministers argues there had been a comprehensive public consultation program on the project ongoing since 1992; Mr. Lavoie"s involvement was extensive being a First Member of the Public Advisory Committee; that DFO acted reasonably in determining there had been adequate public consultation of the project and that further public consultation would be unnecessary, duplicitous and wasteful.

[142]          The Ministers conclude that once a determination had been made, that no further public consultation was warranted, the applicant"s input, with or without the benefit of having reviewed the public registry document, was not required by the CEAA and that the alleged failures to provide convenient access to him to such documentation, would in no way undermine the public consultation process mandated by the CEAA.

[143]          Counsel for the Ministers adds that after having the requested documents and the benefit of counsel, Mr. Lavoie has yet to adduce any evidence that his review of the documents would have allowed him to raise any further issues concerning the assessment of the project and pointed to an extract of Mr. Lavoie"s cross-examination where he admitted he could not remember any new concerns that came out of his access to the documents he requested.

[144]          The circumstances in the case before me are different than those in Friends of West Country, supra. There, the need for further public participation was deemed appropriate whereas here, a determination was made that no further participation was appropriate because of the degree of public participation which had already taken place. Unlike Friends of West Country, no real issue was taken here about the location of the public registry and physical access to documents which seems to be the focus of Mr. Justice Rothstein"s comments in Friends of West Country, supra . Also in the case before me, unlike Friends of West Country, DFO did not compel Mr. Lavoie to use the Access to Information Act. Rather, it was DFO itself that wanted clearance from the ATIP before release.

[145]          In this context, the applicant"s complaint is more one of timeliness rather than convenient access. I observe that Parliament, in subsection 18(3), dealt with this issue of timeliness. If DFO and INAC had deemed further public consultation appropriate, the Twin Falls project could not have been approved until public notice had been given, the applicant had been given access to the documents in the public registry, had an opportunity to examine them and had an opportunity to comment on any record filed there before approval was given . In other words, any defect in the operation of the public registry would have affected the proponent of the project and the responsible authority but not the applicant. However, in my opinion, the necessary link between subsection 18(3) and section 55 does not exist in this case.

[146]          I take the applicant"s point about subsection 55(4) of the CEAA. That provision states the public registry shall contain a record if the responsible agency determines that record would have been disclosed to the public in accordance with the Access to Information Act if a request had been made in respect of that record under that Act at the time the record comes under this control. There is a further requirement in subsection 55(2) that the public registry shall be maintained by the responsible authority from the commencement of the environmental assessment until any follow-up program in respect of the project is completed.

[147]          The smooth running of a public registry would appear to contemplate pre-clearance by a departmental access to information coordinator before the record is placed on the public registry. However, this is a matter of inference rather than a specific wording in the statute. Even if the applicant was correct on this point, there is no consequence flowing to the applicant because the procedure used only caused delay in release in a case where public participation was not deemed appropriate.

[148]          I make one further additional point. Any breach of the provisions of the public registry in this case must be material to the substance of the applicant"s judicial review proceedings. If the purpose of his access to the documents was for the purpose of public comment, a breach of section 55 is irrelevant to the applicant"s judicial review. If the applicant"s purpose was to enhance his or PAC"s ability to monitor the effectiveness of the monitoring and compensation measures required by DFO, he has had convenient access to all of the documents he requested under section 55 for this purpose.

(8)      Did INAC breach section 5(1)(b) and 11

[149]          Paragraph 5(1)(b) provides than an environmental assessment is required before a federal authority "makes or authorizes payments... to the proponent for the purpose of enabling the project to be carried out in whole or in part".

[150]          The applicant argues that on July 15, 1998, the Minister of Indian and Northern Affairs informed the Chief of the Ojibways of the Pic River First Nation that her department would provide $300,000 from INAC to assist in the development of the Twin Falls project and that on August 15, 1998, the Minister issued a press release announcing the decision to fund. The applicant argues that it was only after his counsel wrote to the Minister stating that the decision to fund should have triggered an environmental assessment that the project was added to the federal environmental assessment index web site. Four days later, namely, September 21, 1998, the CEAA screening for the decision to fund was completed.

[151]          On this point, counsel for the Ministers concedes the Pic River First Nation was advised in July, 1998, that INAC was willing to provide $300,000 towards the establishment of the Twin Falls project but adds that at that time, all parties understood that such payment was conditional upon an environmental assessment being completed which it was on September 21, 1998. The funds actually flowed to the First Nation in April 1999.

[152]          Roy Smallion deposed an affidavit on behalf of INAC. He indicated the Minister had communicated by letter to the Chief of the Pic River First Nation on July 15, 1998 and indicated the department "was willing to provide $300,000 towards the establishment of the Twin Falls project...". In his affidavit, he indicated that before this type of financial assistance can flow to the First Nation, there must be an environmental assessment of the impact of the project on the local environment completed by INAC. His affidavit supports the proposition that the Minister"s commitment was conditional upon an environmental assessment being conducted. Even if the Minister had not explicitly made an environmental assessment conditional, such condition flows as a matter of law. In other words, it is a statutory condition precedent to making the payment. Such an assessment, here, was made before payment was made.

[153]          For these reasons, I conclude there was no breach by INAC of the CEAA provisions.

CONCLUSION

[154]          For all of these reasons, this judicial review application is dismissed with costs.

     "François Lemieux"

    

     J U D G E

OTTAWA, ONTARIO

JULY 31, 2000