The Precautionary Principle and Judicial Deference

The Ontario Superior Court of Justice decision in Sierra Club Canada v. Ontario was recently made available online. The decision is important for examining the level of deference by the judiciary in applying judicial review where matters extend into public policy relating to the precautionary principle in environmental law.

Background

The Detroit International Crossing Project (DICP) would add a much needed additional crossing to the Windsor-Detroit border, connecting the American interstates with the new Windsor-Essex Parkway and the 400 series highways in Ontario. Although the Windsor-Detroit crossings were only operating at 66% capacity in 2004, a significant increase in travel demand is expected before 2035 due to growth of Canadian population and GDP and Canadian exports.

The project was the result of considerable collaboration between the Canadian and American governments, and required approvals under the Canadian Environmental Assessment Act and Ontario Environmental Assessment Act. An environmental assessment approval under the provincial process revealed that the bridge could harm a number of Species at Risk (SARs), who are listed in O. Reg. 230/08 of the Endangered Species Act (“ESA“). Section 9 of the Act clearly states,

Protection and Recovery of Species

Prohibition on killing, etc.

9. (1) No person shall,

(a) kill, harm, harass, capture or take a living member of a species that is listed on the Species at Risk in Ontario List as an extirpated, endangered or threatened species…

The Act also seeks to protect the habitat of SARs in Section 10,

Prohibition on damage to habitat, etc.

10. (1) No person shall damage or destroy the habitat of,

(a) a species that is listed on the Species at Risk in Ontario List as an endangered or threatened species; or

(b) a species that is listed on the Species at Risk in Ontario List as an extirpated species, if the species is prescribed by the regulations for the purpose of this clause.

However, the Act also allows the Minister of Natural Resources to issue special permits (subject to certain limitations in sub 2),

Permits

17. (1) 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 an activity specified in the permit that would otherwise be prohibited by section 9 or 10. 2007, c. 6, s. 17 (1).

The Sierra Club Canada, a volunteer-based environmental organization, brought an application for judicial review of the federal decision to approve the bridge which the Federal Court dismissed earlier this year. A provincial permit was issued on February 9, 2010, and the Sierra Club sought judicial review of that decision on August 18, 2010 on four bases:

  1. an error in law by failing to apply the “precautionary principle”, or meaningfully considering the Statement of Environmental Values (SEV) of the Ministry of Natural Resources;
  2. a failure to comply with s. 17(2)(d)(ii) and (iii) of the ESA;
  3. a failure to consider relevant information; and,
  4. a reasonable apprehension of bias.

Standard of Review

Lederer J. cited the Supreme Court decision in Dunsmuir v. New Brunswick to conclude that the standard of review was reasonableness because the Minister was interpreting her own statute, with which she would have been particularly familiar with,

[53] Where the question is one of fact, discretion or policy, deference will usually apply automatically

[54] …Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity…
[emphasis added and citations omitted]

The court also cited Elementary Teachers’ Federation of Ontario v. Ontario (Labour) and the Ontario Court of Appeal decision in Mills v. Ontario (Workplace Safety and Insurance Appeals Tribunal), which interpreted Dunsmuir,

[22] …Applying the reasonableness standard will now require a contextual approach to deference where factors such as the decision-making process, the type and expertise of the decision-maker, as well as the nature and complexity of the decision will be taken into account. Where, for example, the decision-maker is a minister of the Crown and the decision is one of public policy, the range of decisions that will fall within the ambit of reasonableness is very broad.  In contrast, where there is no real dispute on the facts and the tribunal need only determine whether an individual breached a provision of its constituent statute, the range of reasonable outcomes is, perforce, much narrower.
[emphasis added]

The court clarified that no standard of reasonableness is required for allegations of bias because the procedure must be fair.

Interpretation of the ESA

The limitations on the Minister detailed in s. 17(2) of the ESA can be summarized as follows:

  1. s. 17(2)(d)(i), (iv), (v) and (vi)) require the Minister to form an opinion;
  2. s. 17(2)(d)(ii) and (iii))require the Minister to consult with an independent expert who has submitted a written report, including an opinion on whether the activity will jeopardize the survival or recovery of the species; and,
  3. s. 17(2)(d)(vii)) requires the issuance of permit be approved by the Lieutenant Governor in Council.

The court noted that nothing in the ESA requires the Minister to follow the expert opinion, which broadens the deference on the basis of public policy. Specifically, s. s. 17(2)(d)(i) allows the Minister to consider significant social or economic benefit to the province when considering the impact on SARs.

The applicant, Sierra Club, claimed that s. 17(2)(d) was not met because the precautionary principle found in both the preamble of the ESA and the SEV is an overarching consideration under s. 11(3), which renders a permit unlawful and invalid if it does not supersede all other factors. The precautionary principle was defined in the Environmental Review Tribunal decision, Davidson v. Ontario (Director, Ministry of the Environment),

A precautionary approach presumes the existence of environmental risk in the absence of proof to the contrary. It places the onus of establishing the absence of environmental harm upon the source of risk. In situations where scientific uncertainty exists as to whether an activity could have an adverse effect, the precautionary principle requires that it should be considered to be as hazardous as it could be.

Lederer J. rejected the applicant’s interpretation of Lafarge Canada Inc. v. Ontario (Environmental Review Tribunal) that the precautionary principle was an overarching and strict consideration, and distinguished the case because in Lafarge the directors failed to consider the SEV at all,

[53] …The precautionary principle is a guiding principle not a statutory or regulatory requirement.

[54] The description, found in the preamble to the ESA… does nothing more than observe that the precautionary principle is taken note of by the United Nations Convention on Biological Diversity. Its presence in the preamble does not make it law. The preamble serves to introduce the ideas and concerns which inform the legislation that follows. It is worthwhile noting that, among the ideas found in the preamble, is the need to balance the concerns dealt with by the ESA with others…

[56] The reference to a “precautionary approach” in Davidson v. Ontario (Director, Ministry of the Environment),supra, does nothing other than describe the view of the Environmental Review Tribunal as to what the precautionary principle requires (see: para. [47], above). It should go without saying that a statement, in the decision of a Board describing a principle, does not make it a statutory, regulatory or legal requirement.

The applicant accepted the expert opinion on the majority of the SARs mentioned in the permit, but questioned the position in relation to the Butler’s Gartersnake, Eastern Foxsnake and Colicroot. The applicant believed that the scientific data used in the opinion was insufficient, and that adaptive management strategies do not constitute a mitigation measure and would invariably fail. Lederer J. rejected this argument because it would require the court to actually go into the evidence, which would not be applying the proper deference required,

[88] As we understand it, adaptive management would require those engaged in the construction of the Parkway to continue to monitor how best to protect this species and to adapt its management until the best answer is found. In their report, the experts commend the “adaptive management strategy outlined…” (see: Expert Report on the Possible Effects of the Windsor-Essex Parkway on Colicroot, at p. 9). This approach is underscored by comments prepared for the Minister where the staff of the MNR said: “MNR will continue to work closely with MTO throughout the life of the project to review and revise the mitigation plans to better protect the eight species at risk covered by the Permit” (see: Summary of Stakeholder Comments and MNR Responses, at p. 12).

[89] There is no basis to suggest, as the applicant does, that reliance on adaptive management constitutes an error of law as opposed to requiring a demonstration of one year of survival of the plant species said to be at risk.

The Act does not require the Minister to accept every concern raised by the experts or any condition proposed, and a failure to do so does not constitute a lack of consultation where the expert reports are appropriately reviewed. Nor does the Act require the court to examine which information was presented to the Minister and determine what scientific evidence should have been provided to her.

The Minister is not required to go beyond the expert reports and consider the best scientific information available, consult with other agencies like Environment Canada, or identify other species that may be at risk but are not mentioned in the permit. The analysis document already stated that the identification of additional species may require additional compliance with the Act, or another permit. Section 17(2)(d)(v) of the ESA requires the Minister to consider reasonable alternatives, but does not require consideration of all possible alternatives or every reasonable alternative.

Reasonable Apprehension of Bias

The test for bias is derived from the Supreme Court of Canada case, Committee for Justice & Liberty v. Canada (National Energy Board),

 …the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information…[T]hat test is ‘what would an informed person, viewing the matter realistically and practically – and having thought the matter through –conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly’.

The standard for reasonable apprehension of bias was enunciated in Baker v. Canada (Minister of Citizenship and Immigration),

47 It has been held that the standards for reasonable apprehension of bias may vary, like other aspects of procedural fairness, depending on the context and the type of function performed by the administrative decision-maker involved: Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623; Old St. Bonifacesupra, at p. 1192…

The applicant’s allegation of bias was based on the fact that the Minister who issued the permit had previously been the Minister of Transportation, the ministry that applied for the permit. The court held that the proper test in this on the basis of Old St. Boniface was whether whether the mind of the decision-maker was closed and was no longer capable of being persuaded to a different view, and pointed to evidence that the Minister did in fact consider the issues raised in submissions.

Balancing the Environment and Social and Economic Benefit

The court denied the application, noting an obvious tension between the possible impact on SARs and social and economic benefit, but held that at its core it was a matter of government policy based on opinions, not a quasi-judicial decision. The evidence undermining the Minister’s decision was not appropriate for the court to review on the established level of deference to the legislature, and would ultimately put the court in the position of making a political decision, not a legal one:

[110] …The final demonstration of this lies in the submission of the applicant that the Minister erred in law by failing to account for “the uncertain status of the [Detroit River International Crossing] Project in Michigan…” The project has, apparently, not received the approvals, from the Michigan Legislature, necessary to proceed. It is the position of the applicant that the Minister erred in not accounting for the possibility that the approvals would not be forthcoming and that the result would be a “road to nowhere”. To accommodate this submission, the Minister would have to explain and the court would have to understand the obligations of the four governments to the partnership they formed, the status of any negotiations and the expectations for the political process in Michigan. This would deny the Minister the broad deference the law provides and take the court into the field of international relations where it has little, if any, business

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