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August
1999 Newsletter
The
Region's Flimsy Court Challenge
On
August 18 the Regional Chairman's office released its "evidence"
for its allegations against the federal environmental assessment
of the proposed Red Hill Valley Expressway. The "evidence"
is incredibly weak. It consists of nothing more than a memo
expressing an opinion and requesting advice about that opinion.
The
region claims this supports its constitutional challenge,
but the memo is not written by a constitutional expert or
even by a lawyer. It is written by a federal fisheries biologist
and will obviously hold no weight in a constitutional court
case. It is revealing that the response to the memo (presumably
from a lawyer or constitutional expert) has not been released
by the Region.
The
memo is not even about the process over which the Region
has launched its lawsuit. The Region's legal challenge concerns
the Panel Review of the expressway project announced on
May 6, 1999 and the terms of reference for that panel, finalized
in early July. The memo, however, was written seven months
before that Panel Review began and concerns an earlier assessment
process called a "screening" which operates under very different
rules. The "screening" for the Red Hill project began in
June 1998.
There
is no requirement in Canadian law for a screening to include
an examination of Need and Alternatives, and the usual practice
is not to incorporate these factors. However, even as early
as last September, the memo reveals that federal officials
were considering including these factors because the public
was asking them to do so. The biologist simply asked for
advice on this.
Unlike"screenings",
Panel Reviews ALWAYS include consideration of need and alternatives.
Every panel review ever conducted by the federal government
has included these factors. The Region's legal challenge
is against the Panel Review, the process which superceded
the "screening". Therefore a memo making reference to factors
appropriate for inclusion in a "screening" process holds
little relevance to the Region's challenge of the Panel
Review process.
Despite
the Region's allegations, facts show that the Panel Review
of the Red Hill project does NOT go beyond federal jurisdiction.
The federal government is constitutionally responsible for
fisheries and therefore for deciding whether or not authorizations
under the Fisheries Act should be issued for the expressway
project. Canadian law requires the federal government to
carry out an environmental assessment before making these
decisions.
The
assessment does not infringe on local or provincial government
decision-making powers. It will simply decide if a federal
fisheries permit should be issued, and if other matters
of federal jurisdiction have been properly addressed. While
the assessment will cover all aspects of the project in
order to make a correct decision, at the end of the day
all the federal government can do is decide whether or not
to issue the fisheries permit. Of course, if the permit
is denied, the Region would be breaking the law to proceed
with its project, and may be subject to federal charges
and fines of up to $1 million per day.
Regional
officials are quite aware of this and have known for at
least three years that the Red Hill project must undergo
a federal assessment. In March 1996, the Region stated this
in writing, and in May 1996, it published a letter from
the federal government which confirmed this.
The
March 1996 document describes a "Proposed Assessment Process"
which the region was promising to undertake in order to
get an exemption from the provincial environmental assessment
process. On page 13 we read: "The following lists the federal
and provincial legislation, policies and guidelines that
the Region anticipates to be applicable to this project
even if no changes to the Expressway approved in 1985 are
made." The first two items listed are "Fisheries Act - for
authorization and compensation to fish habitat" and "Canadian
Environmental Assessment Act".
In
May 1996, the Region published its "Exemption Order" request
to the province. This includes a letter from Environment
Canada stating in part: "A federal CEAA screening will ultimately
require an assessment of all potential environmental impacts
of the project, the scope of which will be defined by the
Responsible Authority, but which would likely include the
entire North-South expressway project".
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