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April
10, 2000
COURT RULES THAT FEDERAL ENVIRONMENTAL ASSESSMENT ACT AND
FISHERIES LAWS APPLY TO RED HILL EXPRESSWAY
On
Friday, April 7, the Federal Court of Canada dealt another
blow to the Region of Hamilton-Wentworth's attempts to block
a federal environmental assessment of the proposed Red Hill
Creek Expressway. The Region has been claiming that the
Canadian Environmental Assessment Act (CEAA) doesn't apply
to the project, and that it also doesn't require a permit
for the project under the federal Fisheries Act. The court
ruling rejects both of these claims.
In
the ruling, the judge states: "I would not grant leave to
assert that authorization is not required for the Expressway
Project under subsection 35(2) of the Fisheries Act, or
to assert that the need for that authorization did not trigger
the application of the CEAA." The judge explains her ruling
in the following excerpt from the decision:
"...the
Regional Municipality accepted the need for Fisheries
Act approval at an earlier stage of the construction project
as evidenced by the fact that it sought and in late June
1995 obtained, an authorization pursuant to subsection
35(2) of the Fisheries Act with respect to completion
of the Dartnall Road Interchange portion of the Lincoln
Alexander Expressway."
"Thereafter,
when discussion began between representatives of the Region
and the federal authorities in 1996 with respect to the
portion of the Expressway now at issue, the Region 'reiterated
the fact that the Red Hill Creek Expressway will cause
habitat destruction and that a compensation will be developed
in consultation with MNR and DFO'. Ultimately, in July
of 1998, the Region forwarded its application for authorization
under the Fisheries Act. This was done under cover of
a letter dated July 24, 1998. The letter stated 'this
early submission will facilitate the approval process
by providing DFO with the ability to initiate a screening
under the Canadian Environmental Assessment Act.' The
letter continued, 'the Region acknowledged the requirements
of the Canadian Environmental Assessment legislation in
developing the impact assessment process that is currently
underway'. "
"In
short, apparently being of the view that habitat destruction
would be caused (so that compensation would be required
under the Fisheries Act), having received a response to
the Draft Summary Report to the effect that indeed the
Project might have harmful impacts on fish and fish habitat,
and on the basis of that response, choosing to apply for
approval under the Fisheries Act, the applicant [the Region]
cannot now assert and rely on the absence of a more formal
decision which its own actions, in effect, pre-empted.
I accept counsel for the respondents' [federal government]
submission that prior to the issuance of the Review Panel's
terms of reference, there was no demonstration of any
intent to seek judicial review with respect to the requirement
of Fisheries Act approval or the application of CEAA."
This
decision contradicts the views which the Region and its
lawyers have been presenting for some time. Last week, for
example, the Region's lawyer stated on television: "There
is no need to have another environmental assessment. That
went on in 1985, went on for 100 days. The feds didn't participate,
they were invited to, declined. Why do they get off trying
to run their own process fifteen years later? We think its
unacceptable." The Region and its lawyers may find it unacceptable,
but the courts clearly think otherwise.
In
other parts of Friday's decision, the court ruled against
federal government attempts to limit some of the issues
in the upcoming court hearing. This overturns an earlier
decision that the Region had begun its court challenge too
late to address some of the federal actions and decisions
that it disagrees with. The court didn't rule on the validity
of this argument, only that this would have to be decided
at the full court hearing. This means the court case will
both last longer and may be more expensive than the environmental
assessment. The Region is taking the longer, more expensive
federal court route because it is well aware that the project
will not pass an independent environmental review.
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