In Wagner v Canada (Environment and Climate Change), the Federal Court set aside the decision of the Canadian Environmental Assessment Agency (“CEAA”) and directed the federal Minister of Environment and Climate Change to personally determine whether a review panel is required for the federal environmental assessment of the Springbank Off-Stream Reservoir Project (“Project”).

Background

The Project includes flood mitigation infrastructure that will affect 6,800 acres of private land. Alberta Transportation proposes to construct the Project in response to the June 2013 flooding in southern Alberta. The Applicants are land owners who will lose their lands if the Project is approved.

Under the federal Regulations Designating Physical Activities, the Project requires a federal environmental assessment. The Minister may refer a designated project’s environmental assessment to a review panel if she is of the opinion that is in the public interest.[1]

The Minister’s determination of whether a referral is in the public interest must include a consideration of the following factors:

  1. whether the designated project may cause significant adverse environmental effects;
  2. public concerns related to the significant adverse environmental effects that the designated project may cause; and
  3. opportunities for co-operation with any jurisdiction that has powers, duties or functions in relation to an assessment of the environmental effects of the designated project or any part of it.[2]

CEAA received more than one thousand comments from the public, most of which expressed opposition to the Project.

However, CEAA decided that there was no reasonable basis to refer the Project’s environmental assessment to a review panel.

The landowners sought judicial review of the CEAA’s decision. They argued that the decision was unreasonable and the Minister was required to decide whether a review panel was warranted. The Minister argued that the CEAA’s decision could not be reviewed by the Court.

Decision

The Federal Court rejected the federal government’s argument and concluded that the CEAA’s decision was subject to review. It found that CEAA’s decision was unreasonable for two reasons:

  1. CEAA’s internal decision-making process offended the requirements of transparency and intelligibility;[3] and
  2. CEAA failed to consider “public concerns” as required under the legislation.[4]

The Court noted that referring the Project’s environmental assessment to a review panel is of “ultimate importance” to the Applicants and the people of the Tsuut’ina Nation.

The Project has the potential to cause adverse effects to fish and fish habitat, Aboriginal fisheries, migratory birds, wetland habitats and the Tsuut’ina Nation’s reserve lands and Treaty and Aboriginal rights.

A review panel provides additional procedural protections and opportunities for participation. CEAA failed to provide any discussion with respect to the more than one thousand comments that it received from the public regarding the Project.

The Court set aside CEAA’s decision, and directed the federal Minister to personally decide whether the Project should be reviewed by a review panel.

Implications

This is the first reported decision with respect to the Minister’s discretion to order a review panel for an environmental assessment, pursuant to section 38 of Canadian Environmental Assessment Act 2012. The decision highlights the need for Ministerial oversight with respect to projects with the potential for significant adverse effects to the environment that attract a significant amount of public interest.