Sierra Club Canada (“Sierra Club”) sought a declaration invalidating a permit granted by the Minister of Natural Resources of Ontario (“Ontario”) allowing for a bridge to be built across the Detroit River, and the attendant disturbance of the habitat of several species (the “Permit”)

22. November 2011 0

Administrative law – Decisions of administrative tribunals – Ministerial – Public interest – Environmental matters – Wildlife habitat – Environmental impact assessment – Protections of species – Judicial review application – Delay – Bias – Procedural requirements and fairness – Compliance with legislation – Standard of review – Reasonableness simpliciter

Sierra Club Canada v. Ontario (Ministry of Natural Resources), [2011] O.J. No. 4374, 2011 ONSC 4655, Ontario Superior Court of Justice – Divisional Court, September 27, 2011, J.R.R. Jennings, J.M. Wilson and T.R. Lederer JJ.

A partnership was formed between the governments of the United States, Canada, Michigan and Ontario. The partnership decided to construct a bridge over the Detroit River, joining Windsor and Detroit. The project required Canadian federal and provincial environmental assessments before it could proceed. Sierra Club brought an application for judicial review attempting to thwart the federal assessment approval.

The Permit was issued pursuant to section 17 of the Endangered Species Act, 2007, R.S.O. 2007, c. 6. (“ESA”). The judicial review application was dismissed by the Federal Court.

The provincial assessment proceeded without any application for judicial review of the Ontario Minister of Environment’s decision to approve the bridge project under Ontario’s Environmental Assessment Act. As prerequisites to that approval, Ontario required particular permits under the ESA. In the Federal Court, Sierra Club first attempted to quash any preceding permits issued under the ESA, later conceding that decisions by the Minister, under the ESA, were outside Federal Court jurisdiction.

On February 9, 2010 the Permit was issued, allowing for the disturbance of species’ habitat due to the bridge construction.

There was a delay in Sierra Club’s bringing the application for judicial review. On a preliminary motion to dismiss the application for judicial review for delay, the Court found that the Ontario Ministry of Transportation had not assisted Sierra Club in obtaining documents in support of the application, despite a timely request for those documents. In addition, an expert opinion was solicited in support of the application and the application was brought very shortly after the opinion was completed.

The Court found that since the issue before it was novel and engaged a considerable public interest, it was not appropriate to deny a hearing on the merits unless there was clear procedural abuse. The four-month delay was not overly long, had been occasioned by an apparent refusal of Ontario to publicize the decision under review, and by the Ministry of Transportation’s slow response to a request for producible documents. The request for an expert opinion was reasonable in the circumstances. Prejudice had been minimal, since Michigan had yet to agree for the bridge building to go ahead. The application to dismiss for delay was dismissed.

Under section 9 of the ESA, anyone in Ontario is prohibited from harming species identified as endangered or threatened on the Species at Risk in Ontario List (“SAR”). Section 10 provides habitat protections for many of these species. However, section 17 of the ESA allows the Minister of Natural Resources to issue permits authorizing activities that may impact these species.

In the case of the bridge, Ontario identified that eight SAR could be impacted. A stakeholder meeting was held, and the Ontario received comments on the proposed permit raising concerns. A record of this information was compiled, along with expert reports on each SAR and other analyses. This record was considered by the Minister in making her decision to issue the permit, which included her opinion that the preconditions for such a permit had been met.

Sierra Club argued that Ontario erred by failing to apply the “precautionary principle” or to meaningfully consider the Statement of Environmental Values of the Ministry of Natural Resources. Sierra Club further submitted that Ontario had erred in law, in that the expert consultations were not compliant with the ESA, that relevant information was not considered, and that there was a reasonable apprehension that the Minister was biased.

Section 17(1) of the ESA reads:

The Minister may issue a permit to a person that, with respect to a species specified in the permit that is listed on the Species at Risk in Ontario List as an extirpated, endangered or threatened species, authorizes the person to engage in activity specified in the permit that would otherwise be prohibited by section 9 or 10.

(2)  The Minister may issue a permit under this section only if,

(d)  the Minister is of the opinion that the main purpose of the activity authorized by the permit is not to assist in the protection or recovery of the species specified in the permit, but,

(i)  the Minister is of the opinion that the activity will result in a significant social or economic benefit to Ontario,

(ii)  the Minister has consulted with a person who is considered by the Minister to be an expert on the possible effects of the activity on the species and to be independent of the person who would be authorized by the permit to engage in the activity,

(iii)  the person consulted under subclause (ii) has submitted a written report to the Minister on the possible effects of the activity on the species, including the person’s opinion on whether the activity will jeopardize the survival or recovery of the species in Ontario,

(iv)  the Minister is of the opinion that the activity will not jeopardize the survival or recovery of the species in Ontario,

(v)  the Minister is of the opinion that reasonable alternatives have been considered, including alternatives that would not adversely affect the species, and the best alternative has been adopted,

(vi)  the Minister is of the opinion that reasonable steps to minimize adverse effects on individual members of the species are required by conditions of the permit and

(vii)  the Lieutenant Governor in Council has approved the issuance of the permit.

The Court held that, aside from the bias question, the standard of review should be reasonableness. The Minister was interpreting her own statute, and should be accorded deference. Where a decision concerns a matter of public policy, “the measure of deference is all the more significant.” (para. 32)

The language of s. 17, requiring the Minister to form opinions, serves to broaden the deference that should be accorded to the decision. The Minister is required to consult, but is not bound by expert opinion, for example. Section 17(2)(d)(i) of the ESA requires the Minister to be of the opinion that “the activity will result in a significant social or economic benefit to Ontario”. The discretion conferred upon the Minister is significant.

The precautionary principle states that, “where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat.” (para. 45) Strict compliance with the precautionary principle is not a pre-condition to granting a permit. It is a guiding principle, not a regulatory requirement. The Minister of Natural Resources considered the precautionary principle, and specifically addressed Sierra Club on the point in reply to their submissions at the time. In the Summary of Stakeholder Comments and MNR Responses, the following explanation was included:

MNR is of the opinion that a precautionary approach has been taken in developing the permit and the conditions of the permit. Examples of this approach include consulting with species experts; requiring that trials be undertaken to test and identify the best approaches to mitigation (e.g. planting techniques) prior to impacting species; requirements for long-term monitoring; and the adoption of an adaptive management approach that may require additional mitigation steps to be undertaken where merited.

The Sierra Club argued that the Minister’s findings regarding two species of snake were without foundation. There was a lack of data to support the conclusion that the snakes’ survival or recovery would not be effected. The Court held that the deferential standard of review meant that it could not examine all of the evidence for itself and form its own conclusion. An application for judicial review is not a hearing de novo.

The Sierra Club submitted that the Minister’s consultation regarding Butler’s gartersnake did not meet the requirements set out in s.17(2) of the ESA. In particular, one expert who gave an opinion that the gartersnake would not be impacted by the bridge building was employed by a company that was bidding for work in respect of the bridge. However, the expert declared his independence, and his employer had not yet been retained or short-listed in respect of the project. It is the independence of the individual expert, not his employer, that is the issue. The Court dismissed this argument.

With respect to the SAR called the Colicroot, Sierra Club contended that the mitigation measures recommended by the experts were not included as conditions of the Permit. Again, the Court refused to look for inconsistencies with the report, or to scrutinize too closely how the Minister should have responded to expert opinion. Some of the mitigation measures were included while others were not. Reliance on an adaptive management technique for this species did not constitute an error of law. Consultation with experts had been completed, as required by s. 17(2)(d)(ii) and (iii) of the ESA.

Sierra Club argued that Ontario had failed to consider relevant information when deciding to issue the Permit. The submission that the Minister ought to go beyond independent expert advice and seek out the “best scientific information available” about the species was rejected. The ESA does not impose such a requirement on the Minister.

Similarly, the Minister had appropriately considered recovery strategies as required by s.11(8) of the ESA. Draft recovery strategies need not be considered.

With respect to the requirement that the Minister be of the opinion that building the bridge will result in a significant social or economic benefit to Ontario, evidence of decreased traffic demand in the area is not conclusive. Traffic demand is not the only social or economic benefit that the Minister may rely on in forming her opinion. Conditions for trade and investment, long-term infrastructure needs and short-term economic stimulus were all favourably considered.

Section 17(2)(d)(v) of the ESA requires the Minister to have considered “reasonable alternatives.” There is no requirement to consider all or every reasonable alternative. The no-build alternative did not necessarily require further consideration. The section is intended to refer to alternatives for actually completing a given project.

The Sierra Club sought to have the Court invalidate the Permit because of alleged changes to the footprint of the bridge since the Permit issued. The Court was unwilling to look at what had happened since issuance of the Permit. It was not relevant to this application for judicial review. Any expansion to the bridge footprint that may affect SAR would require a new permit application.

Turning to the allegation that there was a reasonable apprehension of bias in the Minister¸ Sierra Club submitted that the Minister of Natural Resources who issued the permit had been Minister of Transportation previously, and had been a proponent of the bridge in that role. The Minister’s role was legislative and political and there was no evidence that he had pre-judged the situation.

The judicial review application was dismissed.

To stay current with the new case law and emerging legal issues in this area, subscribe here.