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May
1999 Newsletter
Courts
Strengthen Federal Assessment Rules
There
has been another significant court decision that should
improve federal environmental assessments. In early April,
the Federal Court of Canada ruled in favour of five conservation
organizations which had challenged the federal approval
of the open-pit Cheviot coal mines adjacent to Jasper National
Park. The Cheviot project had been approved by a federal
panel review and was subsequently given a permit to proceed
by the federal government. The court has overturned both
of these steps. It found that the joint federal-provincial
panel review did not comply with the Canadian Environmental
Assessment Act in several ways, and ordered the panel
re-opened to consider these matters.
The
Court ruled that that Panel contravened the Act because
it failed to consider alternatives that could have reduced
the mine's impact; that it failed to consider the extensive
cumulative effects from logging and other mining planned
in the vicinity of the Cheviot mine; and that it was incorrect
to conclude that the plans to dump millions of tons of waste
rock into stream valleys which provide nesting habitat for
migratory birds would not contravene the federal Migratory
Birds Convention Act. Here are some excerpts from the
decision of Justice Douglas Campbell of the Federal Court.
"I
find that the Joint Review Panel breached its duty to obtain
all available information about likely forestry in the vicinity
of the Project, to consider this information with respect
to cumulative environmental effects..."
"I
find that the Joint Review Panel breached its duty to obtain
all available information about likely mining in the vicinity
of the Project..."
"While
the alternative means of underground mining is generally
considered in the Joint Review Panel Report, the effects
of this alternative means, as compared to the effects of
open pit mining, are not considered in any meaningful way.
I agree with the applicants [the five conservation groups]
argument that simply identifying potential 'alternative
means' without discussing their comparative environmental
effects fails to provide any useful information to decision
makers and fails to meet the requirements of section 16(2)(b)
of CEAA."
"While rock might indeed be inert, as the Respondent [government]
contends, I agree with the applicants argument that millions
of tonnes of it deposited into creek beds constitutes a
threat to the preservation of migratory birds that nest
there, and, therefore, in such circumstances, is 'harmful'..."
News
reports on the court decision said that "the ruling sets
an important precedent for future environmental assessments.
It strengthens and clarifies the responsibility of the federal
government to require, through CEAA, a careful assessment
of alternatives to developments and the cumulative effects
of proposals in conjunction with other existing or planned
projects. The ruling places an onus on this and future panels
to gather and consider all environmental information rather
than simply relying on the information presented by the
proponent, which the panel did in the Cheviot case."
News
reports also stated that "the ruling establishes an important
precedent that the federal Migratory Birds Act protects
migratory birds' nesting habitat, even on provincial lands.
The mining company and the federal government had argued
that the Act did not apply to activities that destroyed
birds' habitat, but only to activities that caused direct
harm to birds."
Stewart Elgie of the Sierra Legal Defence Fund noted: "This
ruling establishes that the Migratory Birds Act protects
not just birds but also their habitat."A spokesperson for
the Alberta Wildlife Association stated: "The review was
found to be incomplete, which means there will be a reopened
hearing to address the shortcomings..."
The
Sierra Legal Defence Fund represented the five conservation
organizations which included the Canadian Nature Federation,
the Canadian Parks and Wilderness Society and the Jasper
Environmental Association. The responsible federal authority
in the case was the Department of Fisheries and Oceans.
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