A-586-94
| CORAM: STONE J.A. |
| DESJARDINS J.A. |
| McDONALD J.A. |
BETWEEN:
CANADIAN PARKS AND WILDERNESS SOCIETY
Appellant
(Applicant)
- and -
SUPERINTENDENT OF BANFF NATIONAL PARK
DIRECTOR OF THE WESTERN REGION OF PARKS CANADA
THE MINISTER OF ENVIRONMENT, THE SECRETARY OF STATE
THE CHIEF ENVIRONMENTAL SCIENCES DIVISION
CANADIAN PARKS SERVICE WESTERN REGION
THE ATTORNEY GENERAL OF CANADA and
SUNSHINE VILLAGE CORPORATION
Respondents
(Respondents)
Heard at Calgary, Alberta, Wednesday, June 5, 1996.
Judgment rendered at Ottawa, Ontario, Thursday, August 29, 1996.
REASONS FOR JUDGMENT BY DESJARDINS J.A.
CONCURRED IN BY STONE J.A.
DISSENTING REASONS FOR JUDGMENT BY McDONALD J.A.
A-555-95
(T-808-95)
| CORAM: STONE J.A. |
| DESJARDINS J.A. |
| McDONALD J.A. |
BETWEEN:
SUNSHINE VILLAGE CORPORATION
Appellant
(Applicant)
- and -
MICHEL DUPUY
| in his capacity as THE MINISTER OF CANADIAN HERITAGE |
SHEILA COPPS
in her capacity as THE MINISTER OF ENVIRONMENT
and G.A. YARRANTON, ROBYN G. USHER and DAVID R. WITTY
in their capacity as an environmental assessment panel
under the Canadian Environmental Assessment Act
to review Sunshine Village Corporation's 1992
Long-Range Development Plan
and CANADIAN PARKS AND WILDERNESS SOCIETY
Respondents
(Respondents)
Heard at Calgary, Alberta, Thursday, June 6, 1996.
Judgment rendered at Ottawa, Ontario, Thursday, August 29, 1996.
REASONS FOR JUDGMENT BY DESJARDINS J.A.
CONCURRED IN BY STONE J.A.
DISSENTING REASONS FOR JUDGMENT BY McDONALD J.A.
A-586-94
| CORAM: STONE J.A. |
| DESJARDINS J.A. |
| McDONALD J.A. |
BETWEEN:
CANADIAN PARKS AND WILDERNESS SOCIETY
Appellant
(Applicant)
- and -
SUPERINTENDENT OF BANFF NATIONAL PARK
DIRECTOR OF THE WESTERN REGION OF PARKS CANADA
THE MINISTER OF ENVIRONMENT, THE SECRETARY OF STATE
THE CHIEF ENVIRONMENTAL SCIENCES DIVISION
CANADIAN PARKS SERVICE WESTERN REGION
THE ATTORNEY GENERAL OF CANADA and
SUNSHINE VILLAGE CORPORATION
Respondents
(Respondents)
A-555-95
(T-808-95)
BETWEEN:
SUNSHINE VILLAGE CORPORATION
Appellant
(Applicant)
- and -
MICHEL DUPUY
| in his capacity as THE MINISTER OF CANADIAN HERITAGE |
SHEILA COPPS
in her capacity as THE MINISTER OF ENVIRONMENT
and G.A. YARRANTON, ROBYN G. USHER and DAVID R. WITTY
in their capacity as an environmental assessment panel
under the Canadian Environmental Assessment Act
to review Sunshine Village Corporation's 1992
Long-Range Development Plan
and CANADIAN PARKS AND WILDERNESS SOCIETY
Respondents
(Respondents)
REASONS FOR JUDGMENT
DESJARDINS J.A.
The issue raised in these two appeals1 is whether development proposals made by Sunshine Village Corporation, with regard to its ski resort in the Banff National Park, come under the purview of the Environmental Assessment and Review Guidelines Order,2 ("EARPGO") and the Canadian Environmental Assessment Act.3
THE A-586-94 APPEAL
This appeal is from a judgment of the Trial Division (Joyal J.), which dismissed an application for judicial revision brought by the appellant, Canadian Parks and Wilderness Society ("CPAWS"), against the validity of a decision by the superintendent of Banff National Park and the director of the Western Region of Parks Canada ("Parks Canada") to enter into a construction agreement, on September 17, 1993, with Sunshine Village Corporation ("Sunshine"). The construction agreement relates to Sunshine's 1992 Goat's Eye Mountain project. The appellant claimed that, before deciding whether to enter into the construction agreement, Parks Canada was required to subject Sunshine's 1992 Goat's Eye Mountain proposal, which was one component of a larger development plan, to a proper environmental assessment as required under EARPGO. In the same proceedings, CPAWS asked for a declaration of invalidity with regard to the decision of the Hon. Jean Charest, Minister of Environment, at the time, dated August 31, 1992, to approve Sunshine's 1992 long-range development proposal. CPAWS also requested that the Secretary of State of Canada, as Minister responsible for National Parks at the time the proceedings were taken, be required to subject Sunshine's 1992 long-range development proposal to an environmental assessment as required under EARPGO, before deciding whether to approve the proposal.
1) The facts
Banff National Park ("the Park") was established in 1885. It is Canada's oldest national park. The National Parks Act4 was adopted in 1930 to govern the management of lands in national parks including Banff Park. The "General Purposes" section of the Act provides that "... the National Parks shall be maintained and made use of so as to leave them unimpaired for the enjoyment of future generations". In 1984, Canada was honored by UNESCO when the "Rocky Mountain National Parks", which included Banff, Jasper, Yoho and Kootenay National Parks, were accepted as a World Heritage Site.5
The ski resort at Sunshine Village has a lengthy history of recreational use.6 The first facility development at the site was a cabin built in 1928 by Canadian Pacific for recreational horseback riders travelling through the area on extended tours to the south of Banff Park and Assiniboine Park. The area has been used for skiing since the early 1930s.
Commercial ski operations have been conducted since 1934 on a continual basis. The Sunshine Village ski area is located on the west side of Banff National Park near the Alberta/British Columbia border in an area designated as "Zone IV -Outdoor Recreation". The area includes two main watercourses, Healy Creek and Sunshine Creek. It includes valley bottom, subalpine and alpine areas stretching to the continental divide. It is variously inhabited by mountain goat, bighorn sheep, mule deer, white-tailed deer, elk and moose.7
a) The 1970 Plan
In the mid 1970s, public discussions began to take place about the development of a long-range plan to expand ski facilities in that area following a project presented by the previous owners of the Sunshine Village ski area. On April 6, 1978, the Hon. J. Hugh Faulkner, Minister of Indian and Northern Affairs, approved as proposed development plans which the Minister believed would establish a first-class downhill skiing area. The following components were approved:8
| - The Gondola access lift |
| - The parallel chair (as supplement to Gondola) |
| - Wheeler chair lift |
| - Fireweed T-Bar |
| - Goats Eye T-Bar |
| - Goats Eye chair lift # 1 |
| - Goats Eye chair lift # 2 |
Another set of components was approved in principle on the basis of need for the ski area. Relevant details such as size, location and design were to be resolved with Parks Canada, Western Region. The components were:
| - Maintenance building at zone 16 on the access road |
| - Day lodge additions at the Upper Village |
| - Ski patrol building at the Upper Village |
| - Day lodge at the Gondola mid-station |
| - Staff quarters at the Upper Village |
| - Swimming pool at the Upper Village |
| - Skating rink at the Upper Village |
| - Restaurant and lounge in the log building at the Upper Village |
| - A second water reservoir at the Upper Village |
Further approvals were also given for an Upper Village Sports Shop, a Great Divide Snacks, the construction of the Bye Bye Bowl and Tee Pee Town lifts and an upgrade of the sewage treatment.
Approval was obtained to enlarge the Bourgeau parking lot up to 1488 cars. The parking lot is linked to the Trans Canada Highway by an access road. The construction of the Bourgeau day lodge was, however, denied because of space limitations in the Healy Creek Valley.
A proposed hotel development at Sunshine was also denied as contrary to National Park visitor accommodation consolidation policies. Snowmaking would only be considered for exceptional site-specific needs and only on a case by case basis after having due regard to environmental concerns.
The 1978 letter of Minister Faulkner specifically stated:9
| ... I cannot over-emphasize that approval-in-principle of the development proposals requires your firm commitment to environmental rehabilitation and protection measures. |
A number of specific measures were addressed. The letter further stated:10
| ... All future environmental management and development at Sunshine must be carried out on the basis of an official long-range plan. The foregoing conditions will provide adequate guidance for you and Parks Canada officers, to establish clearly defined boundaries. Phasing for environmental rehabilitation will be as important as plans for revenue producing investments. I am requesting the Director of the Western Region to work with you to prepare an official document which reflects my intentions. This document will then become the reference source to guide your company, Parks Canada officers and all individuals interested in policies and plans for the future of this part of Banff National Park. |
| [My emphasis] |
On May 15, 1978, Parks Canada and Sunshine's owners signed a development agreement setting out certain terms and conditions for the development of the ski area. Three of the provisions of the development agreement read as follows:11
| 1. Her Majesty approves in principle the construction of the gondola lift, various other ski lifts, and the ancilliary [sic] facilities all as more particularly described in the Minister's letter (hereinafter called the "improvements"). |
| 2. The Developer agrees to co-operate with Her Majesty in the preparation of an Official Plan which shall have general application to the construction of the improvements and the rehabilitation of the natural features of the lands and surrounding areas damaged during the course of construction of the improvements. The said Official Plan shall also contain general guidelines to be observed in order to harmonize the Developer's operations on the lands with the concept of preserving the existing natural features of the lands. |
| ... |
| 5. Her Majesty covenants and agrees that contemporaneously with approving the plans and specifications submitted by the Developer Her Majesty's lawful representatives will issue such permits and licenses as are required by the Regulations under the National Parks Act and as are necessary in order to proceed with construction of the improvements. The Developer agrees that it will not cut down or permit the cutting down, interfere with or permit the interference with any timber, trees or other vegetation upon the lands or impair or permit the impairment of the natural beauty of the lands without first having obtained the permission of the Superintendent such permission not to be unreasonably withheld. |
| [My emphasis] |
Pursuant to the agreement, the Sunshine Village gondola was constructed and opened to the public for the 1979-80 season and the parking lot was expanded. Ski facilities adjacent to Goat's Eye Mountain were developed in the 1980s, but some of the lifts approved by the Minister were not constructed at the time.
In March 1981, a portion of 918 hectares of Banff National Park was leased from the Government to T.I.W. Industries Ltd., predecessor in title to Sunshine, with the lease expiring in the year 2020. The lease made reference in recital to the ministerial approved expansion of the lessee's existing operations. It then stated in section 3 that:12
| The Lessee covenants that it will obtain all licences and permits required by the Regulations made pursuant to the National Parks Act and comply with the provisions of the National Parks Act and with the Regulations made pursuant to such statute and all other statutes relating thereto, as they may be amended, revised or substituted from time to time. |
| [My emphasis] |
Later in 1981, the present respondent, Sunshine, a company incorporated under the Alberta Business Corporations Act13 purchased the ski resort.
On June 21, 1984, the EARPGO, adopted pursuant to the Government Organization Act, 1979,14 came into force.15
Between 1981 and 1986, little was built on the Sunshine site. In 1986, Sunshine indicated its desire to go forward with developments at the ski area. In March 1986, Parks Canada and Sunshine executed an agreemend termed the 1986 Long-Range Development Guidelines. It explained the need for Minister Faulkner's letter of April 1978 in the following terms:16
| ... An April 6, 1978 letter from the Minister then responsible for Parks Canada to the management of Sunshine Village (Appendix A) outlined the Minister's approvals of certain development proposals. It was intended that his letter would serve as the authority for development at the resort area until the Agreement was drafted and signed. |
| A variety of circumstances, including a change in ownership and management of Sunshine Village, resulted in delay in getting the Agreement into a final form for signature. In the interim, many of the assumptions upon which earlier drafts of the Agreement were based have proven inaccurate, particularly due to drastic unforeseen changes in general economic conditions affecting the country as a whole and Alberta in particular. |
| [My emphasis] |
It confirmed the approvals described by the Minister in his 1978 letter. It stated that approved items not yet undertaken were still considered acceptable to both parties. Under the caption: "Procedures for Plan Review and Amendment", it stated:17
| The basic purpose of a Long-Range Development Guideline Agreement is to describe, in appropriate detail, the nature and extent of development that is agreed upon and approved. As with any plan for future development, modifications can be anticipated as development proceeds and time passes. All long range plans should be periodically re-evaluated. |
| [My emphasis] |
The agreement further stated:18
| If, in the opinion of either party to this agreement, a proposed amendment has the potential for significant public interest or concern, then a public notice describing the proposed amendment shall be posted in adequate time prior to the date the proposed amendment is to become effective. If as the result of posting the public notice there is in fact a significant level of public interest in, or concern over, a proposed amendment; then a mechanism shall be established for public review and comment on the proposed amendment. |
| While the final decision on any proposed amendment shall be the prerogative of the Minister responsible for Parks Canada, it is anticipated that in the ordinary course, where neither party is of the opinion the amendment has the potential for significant public interest or concern, amendments will be negotiated and agreed upon by the management of Sunshine Village and authorized local representative of the regional offices of Parks Canada. |
Following the completion of the 1986 agreement, Sunshine Village produced, in March 1987, the Long-Range Planning Program which specifically stated:19
| Sunshine Village's proposed revisions to the Long-Range Development Guidelines are subject to the federal government's Environmental Assessment and Review Process (EARP). |
Sunshine proposed extensive amendments to their long-range plan, but withdrew them in 1989 after Parks Canada's analysis concluded that the 1987 Plan involved serious environmental impacts and was in contravention of National Park policy and the Banff National Park Plan and incorporated public safety hazards.
Then, by letter dated April 27, 1989, the Hon. Lucien Bouchard, Minister of the Environment, indicated that Sunshine could submit a substantially modified proposal plan within eighteen months. Minister Bouchard also stated the following:20
| ... Environment Canada officials will be available to work with Sunshine representatives during the development of what will have to be an environmentally-acceptable proposal. That proposal, naturally, will be subject to public meetings and to a final decision by me in my capacity as Minister of the Environment. |
Subsequently, the deadline for submission of the proposal was extended a number of times.
b) The 1992 Plan
Finally, on June 3, 1992, Sunshine completed its 1992 Long-Range Development Plan proposal ("the 1992 Plan")21 and submitted it to the Minister of the Environment, Minister Charest, for approval.
Sunshine introduced its plan by stating that it intended to satisfy the mission for the Sunshine ski area which was established in 1978, namely to provide a high quality visitor experience in an environmentally sensitive manner. The proposed plan indicated first the facilities which had been approved in 1978 and which had been constructed:
| - a gondola access lift from the Bourgeau parking lot to the village |
| - Wheeler chair lift |
| - Fireweed T-Bar |
| - Tee Pee Town chair lift |
| - Assiniboine T-Bar |
| - new sewage treatment system |
| - new maintenance building |
| - swimming pool at the village (an outdoor hot pool was built) |
| - restaurant and lounge in the old Sunshine lodge (partially provided) |
| - a second water reservoir at the village |
| - village ski shop (now licensed to Sport Check) |
| - increase of the Bourgeau parking lot to 1488 vehicles, and |
| - additional employee housing in the village (partially completed). |
It indicated the facilities that, in Sunshine's view, had been approved but not yet built.
| - chair lifts to parallel the gondola |
| - 3 lifts and associated runs on Goat's Eye Mountain |
| - Bye Bye Bowl lift |
| - Meadow Park lift |
| - day lodge addition |
| - ski patrol building at the village |
| - new day lodge at the gondola mid-station |
| - skating rink at the village, and |
| - snack bar at the base of the Divide chair. |
It stated Sunshine Village's intention to proceed with those facilities previously approved but not developed. Siting of proposed and replacement facilities would be determined with park representatives during subsequent design stages.
The proposed construction of the three lifts and associated runs on Goat's Eye Mountain mentioned in the above list of facilities, approved but not yet built, involved the opening of an entirely new ski area adjacent to the existing one.
To understand what shall herein be referred to as the Goat's Eye Mountain project, a description of the Sunshine Village Ski area is useful at this point.
Sunshine's geographical area is roughly the following. On arrival, skiers park their cars at the Bourgeau area parking lot which is located in the Healy Creek Valley. From there, they take a fairly long gondola ride from the Bourgeau Station past a mid-station to the Sunshine Village Station at a higher elevation. The Day Lodge Inn and other skiers' facilities are located in Sunshine Village. It is also the base for the original ski area. The proposed Goat's Eye Mountain project is located on the left approximately halfway up the gondola en route to Sunshine Village. This new development involved the installation of a high speed quad chair-lift, a conventional chair-lift and a T-Bar lift to the summit and was expected to increase the overall skier capacity from 4500 to 7000 skiers.22
The July 1992 Goat's Eye Mountain Design Proposal and Environmental Assessment reveals that "three phases" of development were planned. Phase I, which included clearing of ski runs and construction of the "Goat's Eye I" ski lift, would occur in year 1. Phase II, which included construction of a day lodge, would occur in year 2. And phase III, which involved installation of the "Goat's Eye II and III lifts", would occur in year 3.23
The 1992 Plan also dealt with a number of proposed modifications to the 1978 Plan.
Sunshine foresaw the construction of a terraced parking lot for an additional 1100 vehicles. This was a new proposal because the Healy Base proposal, which had been part of the 1987 Plan, had been abandoned. This expansion involved the realignment of portions of Healy Creek which Sunshine recognized would require necessary environmental mitigation to be addressed through subsequent design stages. Two small boundary adjustments would be needed.
The 1978 Plan approvals proposed parallel chair-lifts to the gondola. The 1992 Plan called for a high-speed quad chair-lift not necessarily parallel to the entire gondola. Sunshine proposed an additional 40 to 50 hotel guest-rooms to the existing 84 rooms low rise in scale to be located within the Village area and quarters for additional staff within the Village area. Finally, Sunshine undertook to use technological improvements, such as water efficient fixtures, to ensure demand did not exceed the water supply.
The 1992 Plan was the subject of a workshop attended by interested parties in February 1992. It was presented to Minister Charest, who was then Minister of the Environment, for his approval on May 29, 1992. Before Minister Charest approved the 1992 Plan, Dr. Bruce F. Leeson, Chief of the Environmental Assessment Sciences Division for the Western Region of Parks Canada, prepared an "environmental scoping" of the 1992 Plan, dated July 30, 1992. Dr. Leeson concluded that, providing the authorities could deal with the more contentious points of the 1992 Sunshine Plan proposal, e.g. size and location of hotel improvements, parking lot, in a mutually satisfactory fashion, the 1992 Plan was not a major modification to the approved 1978 Plan. He felt, in that case, that comprehensive public consultation was not required. A cover note, prepared by the author, stated that the document was a "cursory scoping", which was "prepared strictly for internal purposes under a one day deadline" and "was not intended to be an environmental screening".24
By letter dated August 31, 1992, Minister Charest approved the entire 1992 Plan (the "Charest approval") and concluded that there was no need for a full public consultation process. The letter read in its pertinent parts:
| The plan presents a concept that strikes a sound balance between environmental and financial considerations and that should go a long way towards addressing the concerns raised over the years by interested parties. I am pleased to give my approval to the plan as submitted, with the understanding that: |
| - the environmental assessment review process will apply to each plan component, in a manner consistent with the standard development approval process in Banff National Park; |
| - the daily skier design capacity will be set at 7000 people; |
| - the total incremental expansion of the existing parking area at Bourgeau will accommodate 1100 additional vehicles; |
| - the hotel redevelopment will involve a total of 124 to 134 guest rooms and remain within the existing footprint of the defined Village area; |
| - the increase in the provision of sleeping accommodations for a designed capacity of 50 additional staff will also be within the existing footprint of the defined Village area; |
| - the Long Range plan will be reviewed shortly after the year 2000. |
| As you know, the understanding and support of a number of groups is essential to this development. I am pleased, therefore, that you will be holding public information sessions. Given that the proposal does not vary significantly from the 1978 plan, I believe that there is no need for a full public consultation process. |
| Allow me to express my appreciation and support for your efforts to ensure that Sunshine Village continues to be one of Canada's outstanding recreational attractions. |
| Yours sincerely, |
| (S) Jean J. Charest |
A press release issued on September 11, 1992, stated that the EARPGO and other federal guidelines would apply to each component of the plan.25 Moreover, in a letter to Mr. Graeme Pole, dated October 6, 1992, Minister Charest indicated:26
| As you are probably aware, on September 11, Environment Canada's Parks Service and Sunshine Village Corporation (SVC) formally announced that agreement had been reached on the new development plan for the Sunshine Village ski area. Given that this proposal updates but does not substantially modify the previously approved plan, comprehensive public consultation will not be required. The Parks Service and SVC will, however, jointly host an open house in Banff this fall to enable the public to view the proposal. My department has carefully reviewed the plan, and I want to assure you that it is consistent with federal regulations, legislation and policy. |
| Although the conceptual plan has received approval, I want to explain that each individual component is now subject to the existing site-specific development review. This undertaking includes the application of both the environmental assessment review process and other federal development guidelines to each component prior to the start of any construction. |
In October 1992, an agreement was entered into by Sunshine and Canadian Parks Service regarding responsibility for avalanche control in which Sunshine reiterates that it will develop Goat's Eye Mountain pursuant to the long-range plan.27
In early December 1992, Canadian Parks Service and Sunshine jointly hosted two public information sessions to explain the Long-Range Development Plan.28
On December 14, 1992, after receiving a copy of Minister Charest's August 31, 1992 letter, the President of CPAWS wrote to the Minister seeking to clarify whether the Minister actually had approved Sunshine's proposal, and requesting assurance that there would be a full environmental assessment of Sunshine's proposed expansion as a whole before any development activities were approved.29 No response to this letter was received despite repeated efforts to obtain one.30
On February 12, 1993, after two stages of review of previous drafts, the environmental assessment of all three phases of the Goat's Eye Mountain Plan was approved and accepted by Parks Canada in a screening decision made in accordance with the EARP Guidelines. This approval was signed by Dr. Leeson and Mr. Charlie Zinkan, Superintendent of Banff National Park. The decision included the following observations:31
| ... Formal public consultation is not required because development of the Goat's Eye pod is a component of a larger plan which was approved in 1978 subsequent to extensive public consultations... |
| ... |
| Environmental impacts predicted to result from the proposed development of Goat's Eye Mountain for skiing at Sunshine Village are either insignificant or mitigable with known technology as defined in section 12(c) of Environmental Assessment and Review Process Guidelines Order 1984. |
In September of 1993, Sunshine entered into a construction agreement with Banff National Park officials to set out the terms under which the development of phase I of Goat's Eye Mountain would take place pursuant to the 1992 Goat's Eye Mountain screening decision. The components were the Goat's Eye lift I, the ski runs and the temporary washroom facilities.32
On October 7, 1993, a restricted activity permit was issued for the purpose of clearing ski runs as specified in the construction agreement. The permit was to be effective from October 7, 1993 to November 15, 1993, to clear the lower part of the ski runs.
In late October 1993, after clearance of trees had commenced, but before it was concluded, the issuance of the restricted activity permit was challenged in this Court by CPAWS. Its injunction application, in file T-2505-93, was dismissed by Strayer J.33 on November 12, 1993.
Because the injunction was denied, the logging necessary to clear the lower sections of the ski runs was completed.
On October 22, 1993, CPAWS filed its present application seeking an order declaring invalid or unlawful the construction agreement of September 17, 1993, between Parks Canada and Sunshine, and the timber cutting permit issued on October 7, 1993. CPAWS further demanded that the 1992 Charest approval be declared null, and requested an order for a proper environmental assessment to be conducted under EARPGO before further developments of the long-range development proposal proceed.
The second Goat's Eye Mountain permit was to allow the clearing of the upper sections of the ski runs. However, at the time it was due to be issued, it was refused or delayed.
In January of 1994, the environmental screening of Sunshine's 1992 Long-Term Development Plan under the EARPGO and the National Parks Act was completed by an independent environmental consultant hired by Parks Canada. In a chapter entitled "Preparation of Environmental Protection Plan", the report stated:34
| The 1992 long range plan submitted by SVC is very much conceptual in nature, and details pertaining to the design, construction, and operation of proposed facilities are limited. This information deficiency has increased the difficulty of screening the expansion plans of SVC, and has resulted in unanswered questions related to several aspects of the plan. Therefore, prior to the approval of any project components, it is recommended that a detailed environmental protection plan (EPP) for all expansion components be developed by the proponent, outlining undertakings, design measures and procedural constraints to be developed for the protection of environmental resources in the SLA and surrounding areas. Although the focus and scope of this plan should be developed in conjunction with Parks Canada, some recommended components of the plan have been outlined below. |
| ... |
On January 25, 1994, the Hon. Michel Dupuy, who was the Minister responsible for Parks Canada, wrote The Hon. Sheila Copps, Minister of the Environment, and asked her to appoint a review panel pursuant to section 13 of EARPGO to study both Sunshine's Goat's Eye Mountain proposal and its 1992 long-range development proposal. In ordering that the two proposals be reviewed together, the Minister said:35
| ... It is recognized that the majority of public concerns relate to the overall future development of the Sunshine area rather than to any particular component of the development plan. |
On January 25, 1994, Sunshine started an action in the Federal Court (File T-137-94) to compel the issuance of its second permit for Goat's Eye Mountain and complete its programme set in the construction agreement of September 17, 1993 with Parks Canada. The CPAWS' application and Sunshine's application were heard together in May of 1994. In the meantime, however, more precisely in February of 1994, based on the Delta Report, Parks Canada made a screening decision under paragraph 12(d) of the EARPGO that Sunshine's 1992 long-range development proposal should be referred for public environmental review by a panel.36
Joyal J. issued his decision on October 13, 1994. He dismissed CPAWS' application and allowed Sunshine's application. As a result, the Goat's Eye Mountain development continued. CPAWS appealed Joyal J.'s decision and also asked the Federal Court of Appeal to stay that decision. Pratte J.A. refused to stay but offered CPAWS a February 1995 appeal date. CPAWS declined the offer but maintained the appeal.
The cutting of the timber in the upper section of the ski run is now completed. We are, therefore, not seized in appeal with that part of the decision of Joyal J. in Sunshine's application.
2) The decision appealed from
Before Joyal J., Sunshine and the federal government challenged CPAWS' standing to launch its proceeding. As CPAWS did not have a private right in the matter, Sunshine submitted that the only way CPAWS could bring its proceeding was through public interest standing. Sunshine suggested that the principles set out in Finlay v. Canada (Minister of Finance)37 had not been met. Moreover, it was Sunshine's position, and that of the Crown, that the issue brought forward by CPAWS was academic, since the purpose of the proceeding was to set aside the agreements in order to have further environmental assessments which Parks Canada had decided to do.
The trial judge resolved CPAWS' standing to launch its own proceeding by finding that the proceeding was moot. Referring to the test in Borowski v. Canada (Attorney General),38 the trial judge wrote:
| I must agree with the mootness of CPAWS' proceeding. CPAWS was seeking environmental assessments of Sunshine's project pursuant to the EARP Guidelines. This goal may have been valid at the time the proceedings were initiated, but since Parks Canada has decided to set-up a review panel to further assess the environmental impacts of the project, the action is no longer necessary.39 |
With regard to other requests made by CPAWS in their statement of claim, he concluded that they could be dealt with in the course of deciding Sunshine's application. On that, the trial judge had this to say:
| ... CPAWS's request to invalidate the construction agreement, the timber cutting permit and the approval of the long-range plan can be dealt with in conjunction with the issue as to whether or not the EARP Guidelines applied to those situations, and whether or not they were followed. One must not forget, in any event, that CPAWS has validly been given the standing of respondent in Sunshine's application.40 |
On the question of the applicability of the 1984 EARPGO to the long-range plan for the development of Sunshine Village and the Goat's Eye Mountain project, the trial judge found that the EARPGO did not have retroactive effect on the initial project of 1978, but they did apply to those parts of the 1978 Plan which had been the subject of amendments subsequent to the Guidelines Order taking effect in 1984.
The trial judge found that the Goat's Eye Mountain development had been through an environmental assessment screening process pursuant to section 13 of the EARPGO and, subsequently, had been the subject of a construction agreement under which one timber cutting permit was issued by Parks Canada in October 1993. In light of these events, he concluded that the Goat's Eye Mountain development was no longer a "proposal" for the purposes of the EARP Guidelines. This part of his reasons reads as follows:
| I appreciate that contractual agreements do not vitiate any powers or jurisdiction granted to Parks Canada pursuant to its statute or regulations, but once the construction agreement was entered into and the timber cutting permit was issued, Sunshine was no longer dealing with a Goat's Eye "proposal", but rather with the "implementation" of its project while waiting for the second permit to be issued. Section 15 deals with "proposal" which I do not believe the Goat's Eye project was in this case. "Proposal" is defined in the Guidelines as follows: |
| "proposal" includes any initiative, undertaking or activity for which the Government of Canada has a decision making responsibility." |
| It would seem to me that by entering into a construction agreement and granting a timber cutting permit for the lower part of the ski runs, that the Government had already made a decision and was no longer dealing with a proposal. The agreement was under way and being implemented.41 |
He was careful, however, to add the following:42
| ... I would add, however, that any public response to the other components of long-range plan might still be acceptable since that plan is still in the "proposal" stage, having not gone through any screening process or preliminary environmental assessments. |
3) The arguments before us - Analysis
The precise extent of Joyal J.'s order concerning Goat's Eye Mountain project arises as a preliminary matter before us.
Did the trial judge's order apply only to the components of the Goat's Eye Mountain development that were before Parks Canada at the time - namely the completion of timber clearing for ski runs and the construction of one lift - or did the order also cover still unbuilt components of the Goat's Eye Mountain development?
As stated earlier, Sunshine's Goat's Eye Mountain Design Proposal and Environmental Assessment, dated July 1992, sets out the company's "proposal" for development of Goat's Eye Mountain. This document provided information concerning three phases of development which were planned.
However, the construction agreement, which was challenged by CPAWS in the proceeding before Joyal J., provided detailed information concerning phase I only, namely the clearing of timber for runs and the construction of the Goat's Eye I lift. It also permitted the construction of temporary washroom facilities in the vicinity of the gondola mid-station building.
The phase I components, set out in the construction agreement, were under way at the time of the hearing before Joyal J. and have now been completed.43 The phase II and III components were not under way and had not been permitted at the time of the hearing before Joyal J. Currently, only a temporary day lodge has been installed, and lifts II and III have not been constructed.44
Since, however, the issue of the remaining unbuilt phases of the Goat's Eye Mountain development arises in appeal A-555-95, this matter will be dealt with at that stage.
The issue to be decided in this appeal is whether the appellant has standing to bring this application for judicial review.
It is evident from the facts that the appellant is not "directly affected by the matter in respect of which relief is sought",45 namely with regard to the construction agreement of September 17, 1995, and the Charest approval of August 31, 1992. CPAWS does not, therefore, have standing as of right.
I agree, however, with Reed J. in Friends of the Island Inc. v. Canada (Minister of Public Works) (T.D.)46 that it was not the intention of Parliament, by including the words "directly affected" in subsection 18.1(1) of the Federal Court Act, to restrict the public interest standing to the pre-Thorson,47 Borowski,48 Finlay49 test. She suggested that:
| ... the wording in subsection 18.1(1) allows the Court discretion to grant standing when it is convinced that the particular circumstances of the case and the type of interest which the applicant holds justify status being granted.50 |
Thus Reed J. reasoned that if an applicant is able to meet the above criteria and, assuming that there is a justiciable issue and no other effective and practical means of getting the issue before the courts, standing will be granted.51
In the case at bar, the issues are clearly justiciable as demonstrated in appeal A-555-95 where they are also raised. Moreover, as apparent from the facts, CPAWS has demonstrated, early in the process, a genuine interest as a public interest group. The primary objective of CPAWS and its members is to preserve the integrity of the ecosystem in Canada's parks and wilderness areas.52 But, says Sunshine, since the federal government changed its position in January of 1994, CPAWS can no longer claim that there is no reasonable or effective way to bring the issue before the Court. What happened is that between the filing date of CPAWS' application on October 22, 1993, and the hearing before Joyal J., in early May of 1994, the federal government, which initially had opposed CPAWS' request for an injunction before Strayer J., on November 3, 1993, has requested, on January 25, 1994, a review panel pursuant to section 13 of the EARPGO53 and has adopted the position of CPAWS before Joyal J. and before us.
I am far from being convinced, however, that the interests of CPAWS and those of the Attorney General, which did not always coincide in the past, will necessarily do so in the future. It may be premature to conclude otherwise and harmful to deny CPAWS standing.
The matter being discretionary, I would grant standing to CPAWS in these proceedings.
The issues raised by CPAWS in its application, namely the validity of the construction agreement of September 17, 1993, the validity of Minister Charest's approval of August 31, 1992, and the necessity of appointing an environmental assessment panel review, interrelate, on the merits, with Sunshine's attack, in appeal A-555-95, on the validity of the appointment of a panel to assess Sunshine's proposals. CPAWS' ground of concern will, therefore, be addressed together with those of Sunshine in appeal A-555-95.
THE A-586-94 and the A-555-95 APPEALS
a) Further facts
Because of the ongoing litigation, which led to Joyal J.'s decision, the federal government delayed the appointment of the review panel.54
Following Joyal J.'s decision, Sunshine received a second timber cutting permit and completed its phase I of the Goat's Eye development plan: the clearing of timber for runs and lifts and the construction of the Goat's Eye lift I. Phase II and III remain undone as well as all the modifications proposed in the 1992 Plan proposal.
The terms of reference for the review panel were revised in December of 1994 by Minister Dupuy as a result of Joyal J.'s decision,55 so as to exclude the 1993 approval development of Goat's Eye Mountain.
On March 24, 1995, Minister Copps appointed a panel pursuant to the newly enacted Canadian Environmental Assessment Act to review Sunshine's 1992 proposal.56 The terms of reference include all the unbuilt components of the 1978 Plan, including phase II and III of the Goat's Eye Mountain project, plus the proposed components of the 1992 Long-Term Development Plan.
On April 24, 1995, Sunshine filed an application for judicial review challenging the appointment of a panel to assess Sunshine's Plan which, it felt, could not be subject to an environmental assessment review process. It contended that Sunshine's Plan had already been approved by the responsible Minister.
Heald J., sitting as a judge of the Trial Division, dismissed the application.
b) The decision appealed from in appeal A-555-95
Heald J. made it clear he was not dealing with Goat's Eye Mountain project which Joyal J. had decided to be outside EARPGO. What Heald J. was dealing with, he said, was the 1992 Plan which had in it some unbuilt portions of the 1978 Plan, other than Goat's Eye Mountain, together with some important modifications, namely the long-range plan. Heald J. was of the view that the Charest letter of 1992, which he said was not without ambiguity, did not constitute a final approval of the 1992 Plan and, therefore, did not move the plan beyond the proposal stage and into the implementation stage so as to place it outside the scope of environmental assessment. He based his decision firstly on the fact that Minister Charest clearly indicated that "the environmental assessment review process would apply to each plan component, in a manner consistent with the standard development approval process in Banff National Park". The use of the words "environmental assessment review process" strongly suggested the plan would be subjected to further environmental assessment. He was also of the view that the preliminary environmental assessment done by Dr. Leeson of Parks Canada, on July 30, 1992, which he referred to as "scoping", was not an initial assessment within the meaning of section 10 of the EARPGO because Dr. Leeson "reaches no firm conclusion" about the environmental impacts and "is by no means unequivocal in his findings". He rejected the appellant's contention that the applicable Building Permit Guidelines, adopted pursuant to the National Parks Act, excluded an environmental assessment process. Heald J. also rejected the argument that management directive 2.4.2 ousted the jurisdiction of the panel. Heald J. concluded that the Environmental Review Board had been properly constituted. He held that the panel was not barred from examining the unbuilt portions of the 1978 Plan, but was barred from examining those portions of the Goat's Eye Mountain project referred to in the panel's terms of reference, except with respect to their contribution to cumulative environmental effects.
Sunshine claims the trial judge erred in each of his conclusions.
c) CPAWS' position
In brief, CPAWS claims EARPGO applies to phase II and III of the Goat's Eye Mountain project, to the unbuilt components of the 1978 approval and to the 1992 modifications to the 1978 Plan, since the 1978 Plan was only an approval "in principle". Joyal J. did not deal with the whole of the Goat's Eye Mountain project, but only with phase I which is the only phase comprised in the 1993 construction agreement. Heald J. took over from there.
d) Sunshine's position
Sunshine is satisfied Joyal J. dealt with all three phases of the Goat's Eye Mountain project which had all reached the implementation stage. Heald J. did not deal with any of the phases of the Goat's Eye Mountain project on account of Joyal J.'s decision. The Goat's Eye components, says Sunshine, are, therefore, clearly outside the scope of any review by an environmental assessment panel review. Sunshine complains, however, that although Heald J. seemed to accept this proposition, he failed to issue an order to that effect. The cumulative effects of the Goat's Eye Mountain project cannot be considered, however, says Sunshine, since, contrary to the Canadian Environmental Assessment Act,57 EARPGO is silent about them.
Sunshine claims that the unbuilt components of the 1978 approval are not subject to EARPGO since, to do so, would give a retroactive effect to EARPGO.
Sunshine also claims that the 1992 amendments to the 1978 Plan were approved by Minister Charest in August 1992. Since the Minister chose not to call for a public review under section 13 of EARPGO, there was no residual power in a subsequent Minister to order such a review. Sunshine submits that the terms of the letter indicate clearly that some form of approval has been given. The letter states "I am pleased to give my approval to the plan as submitted" and also that "there is no need for a full public consultation process". The project, at that stage, according to Sunshine, ceased to be a "proposal" under EARPGO. Indeed, works such as a new lease boundary survey, an Architectural Design Study for the 40-50 additional hotel rooms approved by Minister Charest and Parking Lot proposals were prepared, which indicate that the project has moved into its implementation stage. The Minister's 1992 letter, claims Sunshine, referred to the Building Permit Guidelines only and not to EARPGO. Moreover, the Minister, in approving the plan in 1992, had before him the Preliminary Assessment Plan prepared by Dr. Leeson. The initial assessment by Dr. Leeson indicates an intention by the Minister to take the necessary steps under EARPGO to "sign off" on a project, which had largely been approved fourteen years earlier, had been the subject of extensive public and bureaucratic review in its earlier stages and had been scaled down greatly in order to meet the Minister's concerns.
Finally, Sunshine submits that if this Court concludes that the subsequent Minister of Environment had some residual power to appoint a panel to review some aspects of the 1992 Plan, the terms of reference must be limited to those elements of the 1992 Long-Range Development Plan that constitute "physical work" within the meaning of the Canadian Environmental Assessment Act, namely the hotel expansion, the parking lot expansion, the additional staff accommodations and the realignment of the parallel chair-lift. Certainly, the review panel should have no authority over the Goat's Eye Mountain facilities, the unbuilt but approved components of the 1978 Plan, and the purpose of and the need for the plan or its components.
d) Analysis
a) Was the ministerial discretion under section 13 of the EARPGO exhausted?
(i) The 1978 Plan
I do not think that the 1978 Plan was approved unconditionally.
The 1978 ministerial letter served as authority for development at the resort area until a formal agreement was drafted and signed. The agreement signed in 1978 approved "in principle" the construction of the gondola lift, various other ski lifts and other ancillary facilities subject to "general guidelines to be observed in order to harmonize the Developer's operations on the lands with the concept of preserving the existing natural features of the lands". When the lease was signed in 1981, it referred to the agreed expansion of the downhill skiing facilities. The lessee, however, was committed to comply with the National Parks Act and Regulations "and all other statutes relating thereto, as they may be amended, revised or substituted from time to time." Thus EARPGO, which is a piece of legislation applicable to national parks, and which came into being in 1984, applied, from then on, to every proposed change to the land. Such an application of EARPGO is not retroactive. It is of immediate effect and is reflective of the foresight expressed by the parties in the agreement of 1978 and in the 1981 lease. Phase II and III of the Goat's Eye Mountain project and all remaining components of the 1978 Plan are, therefore, subject to EARPGO.
In oral pleadings, Sunshine claimed it had acquired (vested) rights under the 1978 ministerial letter and the 1981 lease. Since an approval was given at that time, it says, none of the components of that plan come within EARPGO. I fail to see the soundness of this argument. In The Queen v. Walker case,58 relied on by Sunshine, two leases of lots situated in Jasper Park were made by the Crown in 1924. Each lease provided that, if the lessee had complied with the terms of the lease and had given the required notice of a desire to renew, a lease for a second term of forty-two years containing the same stipulation, terms and conditions, except with regard to the rent, would be granted. The Supreme Court of Canada rejected the Crown's submissions that a change of legislation in the National Parks Act, 1930 prohibited the Minister from issuing leases in the terms of the covenants for renewal. Martland J. wrote:59
| The National Parks Act and the regulations enacted pursuant thereto are not to be construed as applying retrospectively so as to take away rights already created. They lay down rules applicable from the date of enactment regarding the disposition of property in National Parks, but in the absence of clear and specific terms to that effect they should not be interpreted so as to divest the respondents of contractual rights and equitable interests already validly granted to them. |
This is not our case. Whatever was approved in full or in principle in 1978 was referred to in the recital of the lease. But, contrary to what Sunshine asserts, the 1981 lease does not contain wording which could be interpreted to shut off the development of the ski resort to future environmental assessment. No rights were therefore acquired so as to exclude the unbuilt components from EARPGO.
(ii) The 1992 Charest approval
The Goat's Eye Mountain project and the unbuilt components of the 1978 Plan were incorporated in the 1992 Plan together with modifications to the 1978 Plan. What effect did the 1992 Charest approval have with regard to that whole set of proposals?
Dr. Leeson's preliminary environmental assessment of May 1992, or "cursory scoping",60 is nuanced.61 He felt that an increase of 40 to 50 new rooms to the existing 84 rooms might not be a big environmental deal provided it was handled carefully and did not enlarge in something bigger. He wrote:62
| ... As in 1978 and 1989, the policy contradiction question regarding expanding commercial hotel accommodation at ski hills probably will continue to be an issue. A way to firmly forestall further future expansion will be necessary. |
With regard to parking facilities, he foresaw that about 700 parking areas could be provided for. But, then, he wrote:63
| ... The remaining 400 parking spaces - to reach the proposed 1100 target - would encounter serious terrain impact and engineering difficulties, although probably not impossible. To achieve proper environmental protection, the engineering requirements on the steepest terrain might be judged to be economically impractical. |
With regard to skier capacity, he said:64
| ... It must be well recognized, however, that physical constraints of the landscape and ecological integrity of the national park are powerful limiting determinants to balancing the facilities at Sunshine Ski area - eg. water supply, parking, ski [sic]out, terrain modification, etc. It may be that a comfortably balanced ski area for 7000 skiers at Sunshine cannot be achieved due to these inherent limitations. |
He further wrote:65
| It is not possible to say conclusively at this point, that the environmental protection aspects of all the proposals in the 1992 plan can be overcome without difficulty. For example, the last 400 to 500 parking spaces of an 1100 space increase would have severe environmental, engineering and cost challenges. However, for the rest of the proposal, I forecast that our normal environmental assessment process would identify acceptable courses of action, in most cases. This contrasts with the Healy Base proposal which clearly was a severe challenge to the ecological integrity of the Sunshine area right from the beginning. |
| In the case of the May, 1992, proposals, we would not require a major environmental assessment at the concept stage because most of the proposals fall within the provisions of the 1978 plan. An environmental scoping report, prepared internally with information on hand, should be sufficient at the concept stage. Subsequently, each project would be handled by our standard process of scoping, predesign, environmental assessment, design, construction agreement, implementation, etc. |
He then concluded:66
| Providing we can deal with the more contentious points of the 1992 Sunshine Plan proposal - eg. size and location of hotel improvements, parking lot; in a mutually satisfactory fashion, I would not consider that Sunshine is proposing a major modification to the 1978 plan. In that case, comprehensive public consultation is not required. Rather, an information communication program targetted to special interest groups would be appropriate. |
Three months later, Minister Charest gave his approval to the 1992 plan as submitted with the understanding that:
| ... the environmental assessment review process will apply to each plan component, in a manner consistent with the standard development approval process in Banff National Park; |
The Minister may, as claimed by Sunshine, have referred only to the Building Permit Guidelines and not to EARPGO although his letter of October 6, 1992, to Mr. Graeme Pole appears to suggest otherwise. But, if he did so, he could not bypass the terms of a federal legislation which required that a "proposal" be submitted to an environmental assessment.
Dr. Leeson had indicated a number of concerns in his "scoping". If what Dr. Leeson was doing was a section 12 initial assessment, he was required to determine whether the potentially adverse environmental effects that may be caused by the proposal were insignificant, mitigable, unknown, significant or unacceptable. Only then could the course of action provided for by the EARPGO be known. His remarks, however, remained somewhat inconclusive.
Heald J. noted, with eloquence, in my view:67
| First, Mr. Leeson reaches no firm conclusion as to the gravity of the potential environmental impacts of the 1992 Plan; i.e. whether the impacts are mitigable, unknown, significant or unacceptable. Section 10 and 12 of the EARPGO make it clear that such a conclusion is an essential aspect of an initial screening. |
| Second, even if Mr. Leeson's decision could be construed as an initial assessment of the 1992 Plan, he is by no means unequivocal in his findings respecting the potential environmental impacts of the 1992 Plan. Although he states that "we would not require a major environmental assessment at the concept stage", he also notes that "[i]t is not possible to say conclusively at this point, that the environmental protection aspects of all the proposals in the 1992 plan can be overcome without difficulty." If anything, it seems that Mr. Leeson is concluding that the environmental impacts of portions of the 1992 Plan remain unknown. If that is the case, Parks Canada was obligated to conduct further study and subsequent rescreening or reassessment, or refer the proposal to the Minister for public review by a Panel. |
Moreover, Dr. Leeson appeared to rely on the 1978 approval as if that approval precluded him from analyzing the 1992 proposal under present day standards. Minister Charest also concluded his letter of August 31, 1992, by saying that "[g]iven that the proposal does not vary significantly from the 1978 Plan, I believe that there is no need for a full public consultation process".
Both were in error. I echo a statement made by Joyal J.68 to the effect that "... it would be nonsense for the Minister to approve amendments to a plan in 1992 but have to look at the environmental standards of 1978 before approving it."
There is no doubt that subsequent responsible Ministers held residual powers to act under section 13 of the Guidelines. In consequence, I conclude that the panel appointed by Minister Copps on March 24, 1995, under the Canadian Environmental Assessment Act, was validly constituted.
(iii) The Goat's Eye Mountain project
Phase II and III of the Goat's Eye Mountain project are rightly the subject of review by the panel.
Phase II and III of the Goat's Eye Mountain facilities were not included in the construction agreement of September 17, 1993. They, therefore, had not moved to the implementation stage under the reasoning of Joyal J.69 They were, however, part of a paragraph 12(c) determination under EARPGO made by Dr. Leeson and Mr. Zinkan on February 12, 1993.70 This determination concluded that "formal public consultation is not required because development of the Goat's Eye Mountain pod is a component of a larger plan which was approved in 1978 subsequent to extensive public consultation". This conclusion, however, does not shelter phase II and III from the scrutiny of a review panel.
Section 13 of EARPGO grants a Minister the authority to refer a proposal to a review panel despite a determination by department officials, made pursuant to paragraph 12(c), that the adverse environmental effects of a proposal are "insignificant" or "mitigable". Since I have concluded that phase II and III of Goat's Eye Mountain were not the subject of the 1993 construction agreement, and thus had not reached the implementation stage, it was still open to Ministers Dupuy and Copps to refer them to the review panel.71
b) The terms of reference of the review panel
Sunshine has attacked the terms of reference of the Environmental Assessment Panel Review which directs the panel to study "... the need for the project"72 and the cumulative effects of the long-range proposal.
Subsections 74(1) and (2) of the Canadian Environmental Assessment Act provide the following transitional measures:
| 74. (1) The Environmental Assessment and Review Process Guidelines Order, approved by Order in Council P.C. 1984-2132 of June 21, 1984 and registered as SOR/84-467, shall continue to apply in respect of any proposal that prior to the coming into force of this section was referred to the Minister for public review and for which an Environmental Assessment Panel was established by the Minister pursuant to that Order. |
| (2) The Order referred to in subsection (1) shall continue to apply in respect of any proposal for which an environmental screening or initial assessment under that Order was commenced before the coming into force of this section, but where any such proposal is referred to the Minister for public review pursuant to section 20 of that Order, this Act shall thereupon apply and the Minister may refer the project to a mediator or a review panel in accordance with section 29. |
Subsection 74(2) of the Act makes it clear that where "any such proposal is referred to the Minister for public review pursuant to section 20 of that Order, this Act shall thereupon apply..." The 1992 proposal, which was approved by Minister Charest in 1992, was the subject of a screening decision under paragraph 12(d) of the EARPGO by Parks Canada, in February 1994, based on the Delta Report and was the subject of a section 13 determination on January 25, 1994, by Minister Dupuy. Section 20 of the EARPGO and the new Act, therefore, apply to the case at bar.
Paragraphs 16(1)(a) and (e), and 16(2)(a), of the Act make it compulsory for a review panel to assess "cumulative environmental effects" that are likely to result from a project, "the need for the project" and "the purpose of the project".73
The terms of reference of the panel are, therefore, in order with the Act.
CONCLUSION ON BOTH APPEALS
Since the September 17, 1993, construction agreement, which dealt with phase I of the Goat's Eye Mountain project, is now spent, and considering that the other conclusions sought by CPAWS in its application for judicial review have been overtaken by events, namely the appointment of the Environmental Assessment Panel Review, I would dismiss CPAWS' appeal in file A-586-94, but without costs since CPAWS is, in the result, a winning party.
Having concluded to the validity of the appointment of the Environmental Assessment Panel Review and of its terms of reference, I would dismiss with costs Sunshine's appeal in file A-555-95.
"Alice Desjardins"
J.A.
"I agree
A.J. Stone J.A."
A-586-94
| CORAM: STONE J.A. |
| DESJARDINS J.A. |
| McDONALD J.A. |
BETWEEN:
CANADIAN PARKS AND WILDERNESS SOCIETY
Appellant
(Applicant)
- and -
SUPERINTENDENT OF BANFF NATIONAL PARK
DIRECTOR OF THE WESTERN REGION OF PARKS CANADA
THE MINISTER OF ENVIRONMENT, THE SECRETARY OF STATE
THE CHIEF ENVIRONMENTAL SCIENCES DIVISION
CANADIAN PARKS SERVICE WESTERN REGION
THE ATTORNEY GENERAL OF CANADA and
SUNSHINE VILLAGE CORPORATION
Respondents
(Respondents)
A-555-95
(T-808-95)
BETWEEN:
SUNSHINE VILLAGE CORPORATION
Appellant
(Applicant)
- and -
MICHEL DUPUY
in his capacity as THE MINISTER OF CANADIAN HERITAGE
SHEILA COPPS
in her capacity as THE MINISTER OF ENVIRONMENT
and G.A. YARRANTON, ROBYN G. USHER and DAVID R. WITTY
in their capacity as an environmental assessment panel
under the Canadian Environmental Assessment Act
to review Sunshine Village Corporation's 1992
Long-Range Development Plan
and CANADIAN PARKS AND WILDERNESS SOCIETY
Respondents
(Respondents)
DISSENTING REASONS FOR JUDGMENT
McDONALD J.A.
I have read Madame Justice Desjardins' reasons with interest, but must respectfully disagree with her conclusion. I agree with her statement of facts, and with some reservations, her conclusion that CPAWS had standing, but I cannot agree with her interpretation of the August 31, 1992 letter from then Minister of the Environment Jean Charest74. In my opinion, the Charest letter was a final approval of the 1992 Plan and as such, no residual jurisdiction remained in the subsequent minister to appoint a new review panel under either section 13 of the Environmental Assessment and Review Process Guidelines Order, ("EARPGO")75 or the Canadian Environmental Assessment Act, ("CEAA").76
In my respectful view, the wording of the Charest letter clearly identifies it as a final approval of the 1992 Plan. Minister Charest grants his approval and unequivocally states: "Given that the proposal does not vary significantly from the 1978 plan, I believe that there is no need for a full public consultation process". It is difficult to imagine a more explicit rejection of the need for a review panel to be appointed under EARPGO. The Minister further states: "I am pleased to give my approval to the plan as submitted ..." [emphasis added], terminology which indicates that he did not anticipate or consider necessary the kinds of changes a further public review under EARPGO might bring about. Further support for this interpretation is found in the letter to Mr. Graeme Pole, dated October 6, 1992, in which Minister Charest stated:
| As you are probably aware, on September 11, Environment Canada's Park Service and Sunshine Village Corporation (SVC) formally announced that agreement had been reached on the new development plan for the Sunshine Village ski area. Given that this proposal updates but does not substantially modify the previously approved plan, comprehensive public consultation will not be required. The Parks Service and SVC will, however, jointly host an open house in Banff this fall to enable the public to view the proposal. My department has carefully reviewed the plan, and I want to assure you that it is consistent with federal regulations, legislation and policy. |
| Although the conceptual plan has received approval, I want to explain that each individual component is now subject to the existing site-specific development review. This undertaking includes the application of both the environmental assessment review process and other federal development guidelines to each component prior to the start of any construction.77 |
| [Emphasis added] |
Madame Justice Desjardins cites this letter in support of her position that approval was contingent upon a further environmental review. With great respect, I believe the wording supports the interpretation put forth in these dissenting reasons. Although this is simply an informal letter and not an official document, in my view Minister Charest again makes it clear that he has given final approval to the 1992 Plan.
As support for their argument that any approval in the August 31, 1992 letter was conditional on a future review under EARPGO, the respondents rely on the Minister's "understanding" that:
| ... the environmental assessment review process will apply to each plan component, in a manner consistent with the standard development approval process in Banff National Park;78 |
When viewed within the context of the approval letter as a whole, and mindful of the Oct. 6, 1992 letter to Graeme Pole, I interpret the above statement to be a reference to the Building Permit Guidelines ("Guidelines"), as Sunshine suggests, and not to EARPGO. It is clear from the full context of the letter that the 1992 plan was approved and Minister Charest was addressing how, not whether, to implement it. Implementation was to be in accordance with the standard approval process in the Park. The standard approval process in Banff National Park is governed by the Building Permit Guidelines. Incorporated into the Guidelines is the Parks Canada Management Directive 2.4.2. ("Directive"). The Guidelines and the Directive modify and create exemptions to the process found in the legislation. This would be the "site-specific development review" that Minister Charest refers to in his letter to Mr. Pole cited above.
The Directive provides that activities conducted within existing facilities are normally exempt from a screening if the activities conform to the original purpose of the facilities. I would not interpret the phrase "within existing facilities" as restrictively as Heald J. suggests. By way of explanation, the Directive states that a golf course cannot be used for snowmobiling, as such would not conform with the area's original purpose. This indicates to me that the primary purpose is to ensure that the use remains the same. It does not mean that the only changes allowed are those which physically affect the structures and facilities already in place. I do not agree with the Trial Judge that the exemption cannot in any circumstances apply to an expansion, particularly given the relatively limited nature of the expansion in issue here. As noted by Minister Charest, the 1992 Plan did not vary significantly from the 1978 Plan which had previously been approved.
Although not determinative of the relevant issue, I also think the actions of the parties to the lease, can be of assistance in interpreting the nature of the Charest letter. Both Sunshine and Parks Canada behaved as though they had received final approval to proceed. Significantly, as Heald J. noted, Sandra B.M. Davis, the Director General, Western Region, Parks Canada, indicated in a briefing note that no environmental assessment by the Federal Environmental Assessment Review Office would occur. Sunshine entered into an agreement with Parks Canada to take over avalanche control in exchange for forgiveness of a disputed debt it owed. The Superintendent of the Park provided new and more detailed parking lot proposals. Extensive clearing of the land occurred. These and other similar activities which I will not detail here indicate that Sunshine, Parks Canada, and arguably by their lack of intervention, the Department of the Environment, considered the approval to be final. It was not until CPAWS became involved approximately four months later that the alleged "ambiguity" in the Charest approval became an issue.
In my respectful view, Minister Charest's approval was both valid and final. The approval was based on a Preliminary Environmental Assessment prepared by Dr. Bruce F. Leeson, Chief, Environmental Assessment Division, Western Region-Canadian Parks Service. In my opinion, the Leeson report was sufficient to meet the EARPGO screening requirements. It must be remembered that Dr. Leeson had been involved with environmental issues in Banff National Park for many years. Bringing forth a report for the Minister under a one day guideline would not, in my view, diminish in any way his assessment that a "comprehensive public consultation is not required".79
Madame Justice Desjardins speaks of Dr. Leeson's assessment of May 1992 as being "nuanced". I would agree that it is difficult, if not impossible, to prepare a report for government that is totally definitive when dealing with environmental issues which are never static. Given Dr. Leeson's vast experience within the Department and the fact that studies had been ongoing since 1978, I am of the view that Minister Charest's reliance on Dr. Leeson's report was totally within his prerogative as Minister of the Environment.
Minister Charest says that his department "carefully reviewed the plan", an understandable comment considering that the proposal had been before the department in various forms since 1978. While some criticism of the thoroughness of Dr. Leeson's 1992 report might be valid, it nevertheless was accepted by the Minister and acted upon, which in my view was commendable.
This project, which has been the subject of so much litigation, was originally approved by Minister J. Hugh Faulkner in 1978. An updated and slightly amended version of the Plan received approval in 1992. Sunshine should not be expected to exist in a constant state of uncertainty. It should be able to rely on the approvals it has received and move forward. As Joyal J. stated:
| In my view, public concerns over environmental issues should not be made a matter of whim by anyone purporting to act under the authority of either the EARP Guidelines or the authority of the National Parks Act and its large volume of regulations. It would mean that no matter the many processes to which an applicant must submit, there is no finality to any proposal. This is especially relevant when dealing with a development which is planned not in relation to a wilderness area or to carve out some commercial use from pristine parks territory, but is earmarked for an area which has been specifically "designated" under the National Parks Act Schedule as a recreational ski area.80 |
For the reasons given above, I conclude that the Charest letter of August 31, 1992, constituted a final and valid approval of the 1992 Plan. As Heald J. noted:
| If the letter constitutes a final approval, it would, in my view constitute an "irrevocable decision", moving the 1992 Plan beyond the proposal stage and into the implementation stage and placing the 1992 Plan outside the scope of environmental assessment, and removing the jurisdiction of the panel appointed under the CEAA ...81 |
After receiving final approval from Minister Charest, the Plan proceeded to the implementation stage and the subsequent Minister of the Environment had no jurisdiction to create another review panel. As she had no residual power, the panel appointed by Minister Sheila Copps on March 24, 1995, was invalidly constituted. For these reasons I reach a different conclusion than Madame Justice Desjardins in file number A-555-95 only. I would allow that
appeal with costs to Sunshine Village Corporation.
| "F.J. McDonald" J.A. |
A-586-94
BETWEEN:
CANADIAN PARKS AND WILDERNESS SOCIETY
Appellant
(Applicant)
- and -
SUPERINTENDENT OF BANFF NATIONAL PARK
DIRECTOR OF THE WESTERN REGION OF PARKS CANADA
THE MINISTER OF ENVIRONMENT, THE SECRETARY OF STATE
THE CHIEF ENVIRONMENTAL SCIENCES DIVISION
CANADIAN PARKS SERVICE WESTERN REGION
THE ATTORNEY GENERAL OF CANADA and
SUNSHINE VILLAGE CORPORATION
Respondents
(Respondents)
A-555-95
(T-808-95)
BETWEEN:
SUNSHINE VILLAGE CORPORATION
Appellant
(Applicant)
- and -
MICHEL DUPUY
| in his capacity as THE MINISTER OF CANADIAN HERITAGE |
SHEILA COPPS
in her capacity as THE MINISTER OF ENVIRONMENT
and G.A. YARRANTON, ROBYN G. USHER and DAVID R. WITTY
in their capacity as an environmental assessment panel
under the Canadian Environmental Assessment Act
to review Sunshine Village Corporation's 1992
Long-Range Development Plan
and CANADIAN PARKS AND WILDERNESS SOCIETY
Respondents
(Respondents)
REASONS FOR JUDGMENT
__________________
1 These appeals were heard successively with a number of other related appeals following directives in the nature of case management issued by the Chief Justice pursuant to Rules 327.1 and 327.2 of the Federal Court Rules . The appeals filed in actions T-2505-93, T-137-94 and T-808-95 were consolidated and included the following appeals and cross-appeals: A-199-94, A-586-94, A-587-94, A-464-95, A-555-95, A-416-95, A-394-95. Judgments had been rendered in all these appeals when the present two appeals were heard. A motion to dismiss appeal A-586-94 for mootness was rejected on June 5 1996.
2 SOR/84-467, 22 June 1984, Canada Gazette Part II, vol. 118, No. 14 at 2794.
5 Subsequently, three British Columbia provincial parks were included as well (Mount Assiniboine, Hamber and Mount Robson). See Environmental Screening: Sunshine Village Corporation 1992 Long-Term Development Plan. ("Delta Report"). A.B. (A-586-94), vol. IX, 1211 at 1237.
6 Affidavit of Ralph D. Scurfield, President and Chief Executive Officer of Sunshine. A.B. (A-555-95), vol. I at 15.
7 Delta Report, A.B. (A-586-94), vol. IX at 1246-81.
8 A.B. (A-586-94), vol. VI at 686-91.
9 A.B. (A-586-94), vol. VI at 689.
10 A.B. (A-586-94), vol. VI at 690.
11 Development Agreement, A.B. (A-586-94), vol. XI, 1539 at 1541.
12 A.B. (A-586-94), vol. V at 623.
15 SOR/84-467, 22 June 1984, Canada Gazette Part II, vol. 118, No. 14 at 2794.
16 A.B. (A-555-95), vol. I at 96-97.
17 A.B. (A-555-95), vol. I at 98.
18 A.B. ( A-555-95), vol. I, 95 at 97, 99, 100.
19 Sunshine Village, Banff National Park, Canada, Long-Range Planning Program - Public Consultation Phase, A.B. (A-555-95), vol. I at 124.
20 A.B. (A-555-95), vol. III at 417.
21 A.B. (A-586-94), vol. XIV at 1995-2007.
22 Sunshine Village Corp. v. Canada (Minister of Canadian Heritage) (1995), 98 F.T.R. 25.
23 Goat's Eye Mountain proposal, July 1992, A.B. (A-586-94), vol. XIV at 2018.
24 Preliminary Environmental Assessment of Sunshine Village Long-Range Development Plan, July 15, 1992. A.B. (A-586-94), vol. VI at 779.
25 A.B. (A-555-95), vol. III at 456.
26 A.B. (A-586-94), vol. VIII at 1204.
27 A.B. (A-586-94), vol. XIV at 2173.
28 Canadian Parks and Wilderness Society v. Banff National Park (Superintendent) (1994), 84 F.T.R. 273 at 279, Joyal J.; Ralph D. Scurfield's affidavit, A.B. (A-555-95), vol. I at 25, para. 30.
29 Affidavit of Harvey Locke, A.B. (A-586-94), vol. I at 41-42.
30 Affidavit of Harvey Locke, A.B. (A-586-94), vol. I at 22-23.
31 Screening Decision, A.B. (A-586-94), vol. I at 57-58.
32 Construction Agreement - Construction of Goat's Eye Mountain Ski Pod, A.B. (A-586-94), vol. IV at 475.
33 Canadian Parks and Wilderness Society v. Banff National Park (Superintendent) (1993), 69 F.T.R. 241.
34 Delta Report, A.B. (A-586-94), vol. IX, 1210-1359 at 1330.
35 Letter from the Hon. Michel Dupuy to the Hon. Sheila Copps, January 25, 1994, A.B. (A-586-94), vol. V at 609.
36 Initial Assessment Determination, February 1994, A.B. (A-555-95), vol. VI at 822-45.
37 [1986] 2 S.C.R. 607; 71 N.R. 338; 33 D.L.R. (4th) 321.
38 [1989] 1 S.C.R. 342 at 353.
39 (1994), 84 F.T.R. 273 at 287.
40 (1994), 84 F.T.R. 273 at 287.
41 (1994), 84 F.T.R. 273 at 289-90.
42 (1994), 84 F.T.R. 273 at 290.
43 Goat's Eye Mountain proposal, July 1992, A.B. (A-586-94), vol. XIV at 2070-96; See affidavit of Ralph D. Scurfield, President and Chief Executive Officer of Sunshine Village, March 30, 1996, at 3-4, in a motion to strike CPAWS' appeal as moot in file A-586-94; Terms of Reference of Environmental Assessment Panel Review, March 24, 1995, A.B. (A-555-95), vol. VI at 929.
44 Affidavit of Ralph D. Scurfield, March 30, 1996, at 3-4.
45 Subsection 18.1(1) of the Federal Court Act .
46 [1993] 2 F.C. 229 at 280-87.
47 Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138; 43 D.L.R. (3d) 1; (1974), 1 N.R. 225 (S.C.C.).
48 Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; [1989] 3 W.W.R. 97; 57 D.L.R. (4th) 231 (S.C.C.).
49 Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607; [1987] 1 W.W.R. 603; 33 D.L.R. (4th) 321 (S.C.C.).
51 [1993] 2 F.C. 229 at 280. See also Nova Scotia (Attorney General) v. Ultramar Canada Inc. (T.D.) , [1995] 3 F.C. 713, MacKay J. A more restricted approach is to be found in the decision of the Alberta Court of Appeal in Friends of the Athabasca Environmental Association v. Alberta (Public Health Advisory and Appeal Board) (24 January 1996), 9403-0365 AC (Alta C.A.) a case relied on by Sunshine. This case dealt, however, with the issue of standing before a board, namely the Public Health Advisory and Appeal Board under the Public Health Act, S.A. 1984, c. P-27.1. See also Canadian Union of Public Employees Local 30 et al. v. WMI Waste Management of Canada Inc. (24 January 1996), 9403-0228 AC (Alta C.A.).
52 Affidavit of Harvey Locke, A.B. (A-586-94), vol. I at 18-20.
53 Letter from the Hon. Michel Dupuy to the Hon. Sheila Copps, January 25, 1994, A.B. (A-586-94), vol. V at 609.
54 Letter from the Hon. Michel Dupuy to Hon. Sheila Copps, August 17, 1994, A.B. (A-555-95), vol. VI at 897.
55 Letter from the Hon. Michel Dupuy to the Hon. Sheila Copps, December 22, 1994, A.B. (A-555-95), vol. VI at 901.
56 News Release, A.B. (A-555-95), vol. VI at 926.
57 S.C. 1992, c. 37, para. 16(1)(a).
60 I note that, contrary to two other screenings on file, that of February 12, 1993, A.B. (A-586-94), vol. I at 57-58, and that of February 1994, A.B. (A-555-95), vol. VI at 822-24, Dr. Leeson's May 1992 report does not refer to the section of EARPGO under which it was done. This adds credibility to the author's note that the document was a "cursory scoping" which was "prepared strictly for internal purposes under a one day deadline" and "was not intended to be an environmental screening". See Preliminary Environmental Assessment of Sunshine Village Long-Range Development Plan, July 15, 1992, A.B. (A-586-94), vol. VI at 779.
61 A.B. (A-586-94), vol. VI at 780.
62 A.B. (A-586-94), vol. VI at 780.
63 A.B. (A-586-94), vol. VI at 781.
64 A.B. (A-586-94), vol. VI at 781.
65 A.B. (A-586-94), vol. VI at 783.
66 A.B. (A-586-94), vol. VI at 783.
67 Sunshine Village Corp. v. Canada (Minister of Canadian Heritage) (1995), 100 F.T.R. 284 at 299.
68 (1994), 84 F.T.R. 273 at 288, para. 68.
69 (1994), 84 F.T.R. 273 at 289-90, paras. 76 and 77.
70 A.B. (A-586-94), vol. I at 57-58.
71 The terms of reference of the review panel thus correctly state that "the review will not reassess the 1993 approved development for Goat's Eye Mountain". The "1993 approved development for Goat's Eye Mountain" refers to Phase I only since it was the only portion of the development included in the September 17, 1993, construction agreement.
72 A.B. (A-555-95), vol. IV, 926 at 929.
73 Paragraphs 16(1)(a) and (e), and 16(2)(a) of the Act read:
16. (1) Every screening or comprehensive study of a project and every mediation or assessment by a review panel shall include a consideration of the following factors: (a) 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; ... (e) any other matter relevant to the screening, comprehensive study, mediation or assessment by a review panel, such as the need for the project and alternatives to the project, that the responsible authority or, except in the case of a screening, the Minister after consulting with the responsible authority, may require to be considered.
(2) In addition to the factors set out in subsection (1), every comprehensive study of a project and every mediation or assessment by a review panel shall include a consideration of the following factors: (a) the purpose of the project;...
74 Appeal Book, vol. III at p. 445.
77 Common Appeal Book, vol. VIII at p. 1204.
79 Common Appeal Book, vol. VI at p. 783.
80 Canadian Parks and Wilderness Society v. Banff National Park (1994), 84 F.T.R. 273 (F.C.T.D.) at p. 293.
81 Sunshine Village Corporation v. Canada Minister of Canadian Heritage) et. al. (1995), 100 F.T.R. 284 (F.C.T.D.) at p. 298.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: A-555-95
APPEAL AGAINST A JUDGMENT OF THE TRIAL DIVISION DELIVERED SEPTEMBER 8, 1995. TRIAL DIVISION FILE NO.: T-808-95.
STYLE OF CAUSE: Sunshine Village Corporation v. Michel Dupuy et al.
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: June 6, 1996
REASONS FOR JUDGMENT OF THE COURT BY: Desjardins, J.A.
CONCURRED IN BY:
Stone, J.A.
DISSENTING REASONS FOR JUDGMENT BY:
McDonald, J.A.
DATED:
August 29, 1996
APPEARANCES:
Mr. John J. L. Hunter, Q. C.
Mr. Tilleman
for the Appellant
Mr. Kirk N. Lambrecht
for the Respondent (AGC)
Mr. Stuart Elgie
for the Respondent
(CPAWS)
SOLICITORS OF RECORD:
Davis & Company
Vancouver, B. C.
for the Appellant
Mr. George Thomson
Deputy Attorney General of Canada
Ottawa, Ontario
for the Respondent (AGC)
Sierra Legal Defence Fund
Toronto, Ontario
for the Respondent
(CPAWS)
FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.:
A-586-94
APPEAL AGAINST A JUDGMENT OF THE TRIAL DIVISION DELIVERED ON OCTOBER 13, 1994. TRIAL DIVISION FILE NO.: T-2505-93.
STYLE OF CAUSE:
Canadian Parks and Wilderness Society v. Superintendent of Banff National Park et al.
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: June 6, 1996
REASONS FOR JUDGMENT OF THE COURT BY: Desjardins, J. A.
CONCURRED IN BY: Stone, J. A.
DISSENTING REASONS FOR JUDGMENT BY: McDonald, J.A.
DATED:
August 29, 1996
APPEARANCES:
Mr. Stuart Elgie
for the Appellant
Mr. Kirk N. Lambrecht for the Respondent (AGC)
Mr. John J.L. Hunter, Q.C.
Mr. Tilleman for the Respondent (Sunshine Village Corp.)
SOLICITORS OF RECORD:
Sierra Legal Defence Fund
Toronto, Ontario for the Appellant
Mr. George Thomson
Deputy Attorney General of Canada
Ottawa, Ontario for the Respondent (AGC)
Davis & Company Vancouver, B. C.
for the Respondent (Sunshine Village Corp.)