Federal Appeal

Environmental Law

Statutory protection of environment

Environmental assessment

Environmental Protection Act conferred significant discretion on Minister

Genetically engineered organisms. Biotechnology company A Inc. owned rights to genetically engineered Atlantic salmon which grew to market size significantly more rapidly than wild or farmed salmon. A Inc. proposed to produce sterile, all-female salmon eggs for export to facility in Panama. Ministers of Environment and Health determined A Inc.’s salmon was not toxic or capable of becoming toxic and granted A Inc. waiver from obligation to provide certain information under Environmental Protection Act. Minister of Environment issued notice in Canada Gazette indicating scope of activities permitted and advising that any other activities would require separate consideration. Federal Court dismissed public interest group’s application for judicial review. Federal Court determined that Ministers’ decisions were made in manner prescribed by Act and were reasonable, that Ministers reasonably decided A Inc.’s salmon was not toxic or capable of becoming toxic, and that Ministers considered information with respect to potential uses and locations of introduction of A Inc.’s salmon. Federal Court held that publication of notice of waiver occurred within reasonable time, that Act did not provide for public participation in toxicity assessments, that Minister of Environment’s publication of notice of permitted activities was reasonable, that Notice was not overbroad, and that anyone seeking to engage in same activities in another location would still have to file notice and undergo new assessment. Public interest group appealed. Appeal dismissed. Federal Court committed no error warranting court’s intervention. Act conferred significant discretion on Minister and decision was entitled to deference. Group failed to show it was unreasonable for Minister to conclude that potential for exposure to environment could be prevented. Scope of SNAc Notice could not be said to be overly broad or unreasonable. There was no absurdity or unreasonableness in Minister issuing SNAc Notice permitting wider range of uses of AAS than that permitted by s. 106(10). Finally, Federal Court did not breach duty of procedural fairness by arriving at own interpretation of legislation. Procedural fairness required that parties be able to make submissions about issues of statutory interpretation, but court’s ability to decide issues correctly was not constrained by parties’ submissions.

Ecology Action Centre v. Canada (Minister of the Environment and Climate Change) (2016), 2016 CarswellNat 5289, 2016 FCA 258, Nadon J.A., Eleanor R. Dawson J.A., and Woods J.A. (F.C.A.); affirmed (2015), 2015 CarswellNat 10968, 2015 CarswellNat 7756, 2015 FC 1412, 2015 CF 1412, Russel W. Zinn J. (F.C.).

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