Friends of the Oldman River Society v. Canada (Minister of Transport)

Statutory Validity of the Guidelines Order

a.Is the Guidelines Order authorized by s. 6 of the Department of the Environment Act ?

b.Is the Guidelines Order inconsistent with the Navigable Waters Protection Act and the Fisheries Act ?

Obligation of the Ministers to Comply with the Guidelines Order

a.Does s. 4(1) of the Department of the Environment Act preclude the application of the Guidelines Order to the Ministers?

b.Does the Guidelines Order apply to projects other than new federal projects?

c.Are the Ministers "initiating departments"?

d.Is the Navigable Waters Protection Act binding on the Crown in right of Alberta?

Constitutional Question

Is the Guidelines Order so broad as to offend ss. 92 and 92A of the Constitution Act, 1867 and therefore constitutionally inapplicable to the Oldman River Dam owned by Alberta?

Discretion

Did the Federal Court of Appeal err in interfering with the discretion of Jerome A.C.J. whereby he declined to grant the remedies sought?

Statutory Validity of the Guidelines Order

Is the Guidelines Order Authorized by s. 6 of the Department of the Environment Act ?

The appellant Alberta argued that the Guidelines Order is ultra vires because it does not fall within the scope of the powers conferred under its enabling legislation, s. 6 of the Department of the Environment Act . For convenience, I shall repeat this provision:

6. For the purposes of carrying out his duties and functions related to environmental quality, the Minister may, by order, with the approval of the Governor in Council, establish guidelines for use by departments, boards and agencies of the Government of Canada and, where appropriate, by corporations named in Schedule III to the Financial Administration Act and regulatory bodies in the exercise of their powers and the carrying out of their duties and functions.

The principal ground on which it is contended that the Guidelines Order is invalid is that by using the term "guidelines" s. 6 does not empower the enactment of mandatory subordinate legislation, but instead only contemplates a purely administrative directive not intended to be legally binding on those to whom it is addressed. There is of course no doubt that the power to make subordinate legislation must be found within the four corners of its enabling statute, and it is there that one must turn to determine if the Act can support delegated legislation of a mandatory nature, the non-compliance with which can found prerogative relief.

This issue was addressed in Canadian Wildlife, supra. In that case the applicant challenged the issuance of a licence by the Minister of the Environment under the International River Improvements Act and sought an order in the nature of certiorari quashing the licence, and mandamus requiring the Minister to comply with the Guidelines Order. In the Trial Division, Cullen J. found that the Guidelines Order is an enactment or regulation as defined in s. 2(1) of the Interpretation Act , R.S.C., 1985, c. I-21 , which provides:

2. (1) In this Act,

. . .

"enactment" means an Act or regulation or any portion of an Act or regulation;

. . .

"regulation" includes an order, regulation, rule, rule of court, form, tariff of costs or fees, letters patent, commission, warrant, proclamation, by-law, resolution or other instrument issued, made or established

(a) in the execution of a power conferred by or under the authority of an Act, or

(b) by or under the authority of the Governor in Council;

Cullen J. then concluded, at p. 322:

Therefore, EARP Guidelines Order is not a mere description of a policy or programme; it may create rights which may be enforceable by way of mandamus (see Young v. Minister of Employment and Immigration (1987), 8 F.T.R. 218 (F.C.T.D.) at page 221).

In the Court of Appeal, Hugessen J.A. relied on both the English and French versions of s. 6 of the Department of the Environment Act to find that it was capable of supporting a power to enact binding subordinate legislation. "The word `guidelines'", he stated, "in itself is neutral in this regard." Turning then, to the question whether the Guidelines were so written as to make them mandatory, he observed, at pp. 73-74:

Finally, there is nothing in the text of the Guidelines themselves which indicates that they are not mandatory; on the contrary, the repeated use of the word "shall" . . . throughout, and particularly in ss. 6, 13 and 20, indicates a clear intention that the Guidelines shall bind all those to whom they are addressed, including the Minister of the Environment himself.

I would agree with him on both points. The first question depends on legislative intent. The guidelines under the Act reviewed by this Court in the Reference re Anti-Inflation Act, [1976] 2 S.C.R. 373, for example, were clearly mandatory in nature. I am satisfied that s. 6 of the Act can sustain the enactment of mandatory guidelines, and that the Guidelines as framed are mandatory in nature.

There is nothing here to indicate that the Guidelines Order is merely another form of administrative directive which cannot confer enforceable rights, as was the case in Martineau v. Matsqui Institution Inmate Disciplinary Board, [1978] 1 S.C.R. 118. In Martineau the issue was whether a directive concerning the discipline of inmates, authorized by s. 29(3) of the Penitentiary Act, R.S.C. 1970, c. P-6, was "law" within the wording of s. 28 of the Federal Court Act , S.C. 1970-71-72, c. 1, and thus gave the Federal Court jurisdiction to review a disciplinary order made by the Board. This Court, by majority, held that the directive was not "law" within s. 28, Pigeon J. noting, at p. 129:

It is significant that there is no provision for penalty and, while they are authorized by statute, they are clearly of an administrative, not a legislative, nature. It is not in any legislative capacity that the Commissioner is authorized to issue directives but in his administrative capacity. I have no doubt that he would have the power of doing it by virtue of his authority without express legislative enactment. [Emphasis added.]

There is little doubt that ordinarily a Minister has an implicit power to issue directives to implement the administration of a statute for which he is responsible; see for example Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2. It is also clear that a violation of such directives will only give rise to administrative rather than judicial sanction because they do not have the full force of law.

Here though we are dealing with a directive that is not merely authorized by statute, but one that is required to be formally enacted by "order", and promulgated under s. 6 of the Department of the Environment Act , with the approval of the Governor in Council. That is in striking contrast with the usual internal ministerial policy guidelines intended for the control of public servants under the minister's authority. To my mind this is a vital distinction. Its effect is thus described by R. Dussault and L. Borgeat in Administrative Law (2nd ed. 1985), vol. 1, at pp. 338-39:

When a government considers it necessary to regulate a situation through norms of behaviour, it may have a law passed or make a regulation itself, or act administratively by means of directives. In the first case, it is bound by the formalities surrounding the legislative or regulatory process; conversely, it knows that once these formalities have been observed, the new norms will come within a framework of "law" and that by virtue of the Rule of Law they will be applied by the courts. In the second case, that is, when it chooses to proceed by way of directives, whether or not they are authorized by legislation, it opts instead for a less formalized means based upon hierarchical authority, to which the courts do not have to ensure obedience. To confer upon a directive the force of a regulation is to exceed legislative intent. It is said that the Legislature does not speak without a purpose; its implicit wish to leave a situation outside the strict framework of "law" must be respected.

The word "guidelines" cannot be construed in isolation; s. 6 must be read as a whole. When so read it becomes clear that Parliament has elected to adopt a regulatory scheme that is "law", and thus amenable to enforcement through prerogative relief.

Alberta also argues that the Guidelines Order is ultra vires on the ground that the scope of the subject matter covered in the delegated legislation goes far beyond that authorized by the Department of the Environment Act . More specifically, it contends that the authority to establish guidelines for the purposes of carrying out the Minister's duties related to "environmental quality" does not comprehend a process of environmental impact assessment, such as found in the Guidelines Order, in which the decision maker is required to take into account socio-economic considerations. Rather, it is argued, the Act only permits the enactment of delegated legislation that is strictly concerned with matters relating to environmental quality as understood in a physical sense.

I cannot accept that the concept of environmental quality is confined to the biophysical environment alone; such an interpretation is unduly myopic and contrary to the generally held view that the "environment" is a diffuse subject matter; see R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401. The point was made by the Canadian Council of Resource and Environment Ministers, following the "Brundtland Report" of the World Commission on Environment and Development, in the Report of the National Task Force on Environment and Economy, September 24, 1987, at p. 2:

Our recommendations reflect the principles that we hold in common with the World Commission on Environment and Development (WCED). These include the fundamental belief that environmental and economic planning cannot proceed in separate spheres. Long-term economic growth depends on a healthy environment. It also affects the environment in many ways. Ensuring environmentally sound and sustainable economic development requires the technology and wealth that is generated by continued economic growth. Economic and environmental planning and management must therefore be integrated.

Surely the potential consequences for a community's livelihood, health and other social matters from environmental change are integral to decision-making on matters affecting environmental quality, subject, of course, to the constitutional imperatives, an issue I will address later.

I have therefore concluded that the Guidelines Order has been validly enacted pursuant to the Department of the Environment Act , and is mandatory in nature.

Inconsistency With the Navigable Waters Protection Act and Fisheries Act

The appellants Alberta and the federal Ministers argue that the Guidelines Order is inconsistent with and therefore must yield to the requirements of the Navigable Waters Protection Act for obtaining an approval under s. 5 of that Act. Specifically, they say, the Minister of Transport is confined by the Act to a consideration of matters pertaining to marine navigation alone, and that the Guidelines Order cannot displace or add to the criteria mentioned in the Act. Alberta also submits that the Guidelines Order is similarly inconsistent with the Fisheries Act , but for the reasons set out later I do not find it necessary to address that issue.

The basic principles of law are not in doubt. Just as subordinate legislation cannot conflict with its parent legislation (Belanger v. The King (1916), 54 S.C.R. 265), so too it cannot conflict with other Acts of Parliament (R. & W. Paul, Ltd. v. Wheat Commission, [1937] A.C. 139 (H.L.)), unless a statute so authorizes (Re George Edwin Gray (1918), 57 S.C.R. 150). Ordinarily, then, an Act of Parliament must prevail over inconsistent or conflicting subordinate legislation. However, as a matter of construction a court will, where possible, prefer an interpretation that permits reconciliation of the two. "Inconsistency" in this context refers to a situation where two legislative enactments cannot stand together; see Daniels v. White, [1968] S.C.R. 517. The rule in that case was stated in respect of two inconsistent statutes where one was deemed to repeal the other by virtue of the inconsistency. However, the underlying rationale is the same as where subordinate legislation is said to be inconsistent with another Act of Parliament ‑‑ there is a presumption that the legislature did not intend to make or empower the making of contradictory enactments. There is also some doctrinal similarity to the principle of paramountcy in constitutional division of powers cases where inconsistency has also been defined in terms of contradiction ‑‑ i.e., "compliance with one law involves breach of the other"; see Smith v. The Queen, [1960] S.C.R. 776, at p. 800.

The inconsistency contended for is that the Navigable Waters Protection Act implicitly precludes the Minister of Transport from taking into consideration any matters other than marine navigation in exercising his power of approval under s. 5 of the Act, whereas the Guidelines Order requires, at a minimum, an initial environmental impact assessment. The appellant Ministers concede that there is no explicit prohibition against his taking into account environmental factors, but argue that the focus and scheme of the Act limit him to considering nothing other than the potential effects on marine navigation. If the appellants are correct, it seems to me that the Minister would approve of very few works because several of the "works" falling within the ambit of s. 5 do not assist navigation at all, but by their very nature interfere with, or impede navigation, for example bridges, booms, dams and the like. If the significance of the impact on marine navigation were the sole criterion, it is difficult to conceive of a dam of this sort ever being approved. It is clear, then, that the Minister must factor several elements into any cost-benefit analysis to determine if a substantial interference with navigation is warranted in the circumstances.

It is likely that the Minister of Transport in exercising his functions under s. 5 always did take into account the environmental impact of a work, at least as regards other federal areas of jurisdiction, such as Indians or Indian land. However that may be, the Guidelines Order now formally mandates him to do so, and I see nothing in this that is inconsistent with his duties under s. 5. As Stone J.A. put it in the Court of Appeal, it created a duty which is "superadded" to any other statutory power residing in him which can stand with that power. In my view the Minister's duty under the Guidelines Order is indeed supplemental to his responsibility under the Navigable Waters Protection Act , and he cannot resort to an excessively narrow interpretation of his existing statutory powers to avoid compliance with the Guidelines Order.

Section 8 of the Guidelines Order already recognizes that the environmental impact assessment thereunder will not apply where it would conflict with other statutory provisions. It reads:

8. Where a board or an agency of the Government of Canada or a regulatory body has a regulatory function in respect of a proposal, these Guidelines shall apply to that board, agency or body only if there is no legal impediment to or duplication resulting from the application of these Guidelines.

A broad interpretation of the application of the Guidelines Order is consistent with the objectives stated in both the Order itself and its parent legislation ‑‑ to make environmental impact assessment an essential component of federal decision-making. A similar approach has been followed in the United States with respect to their National Environmental Policy Act. As Pratt J. put it in Environmental Defense Fund, Inc. v. Mathews, 410 F.Supp. 336 (D.D.C. 1976), at p. 337:

NEPA does not supersede other statutory duties, but, to the extent that it is reconcilable with those duties, it supplements them. Full compliance with its requirements cannot be avoided unless such compliance directly conflicts with other existing statutory duties.

To hold otherwise would, in my view, set at naught the legislative scheme for the protection of the environment envisaged by Parliament in enacting the Department of the Environment Act , and in particular s. 6.

Nor do I think s. 3 of the Guidelines Order, which requires that the assessment process be initiated "as early in the planning process as possible and before irrevocable decisions are taken", is in any way inconsistent with s. 6 of the Navigable Waters Protection Act . Section 6 is largely concerned with empowering the Minister to remove or take other remedial action in relation to works constructed without complying with s. 5, but the appellants draw attention to s. 6(4) which permits the Minister to approve of a work that has already been built. On this point, I am in complete agreement with Stone J.A. where, at p. 41, he stated:

As I see it, the provisions of section 6 of that Act pertain to the remedial powers of the Minister in deciding what action he might take in the event of a failure to secure a section 5 approval prior to the commencement of construction. Subsection (4) thereof is an exception to the general rule, is entirely discretionary and clearly subservient to the fundamental requirement set out in paragraph 5(1)(a) that an approval be obtained prior to the commencement of construction. Nor can I see anything in the Guidelines Order that would prevent the Minister from complying with its terms to the fullest extent possible in exercising his discretion under subsection 6(4) of the Navigable Waters Protection Act . That being so, I can find no inconsistency or conflict between these two pieces of federal legislation.

It is thus clear to me that the Guidelines Order not only falls within the powers given by the Department of the Environment Act , but is completely consistent with the Navigable Waters Protection Act . It therefore falls to be decided whether the order applies in the instant case.

Obligation of the Ministers to Comply with the Guidelines Order

Section 4(1) of the Department of the Environment Act

Section 4(1) (a) of the Department of the Environment Act reads as follows:

4. (1) The powers, duties and functions of the Minister extend to and include all matters over which Parliament has jurisdiction, not by law assigned to any other department, board or agency of the Government of Canada, relating to

(a) the preservation and enhancement of the quality of the natural environment, including water, air and soil quality;

Alberta contends that by restricting the Minister of the Environment's jurisdiction to "matters over which Parliament has jurisdiction, not by law assigned to any other department, board or agency of the Government of Canada" (emphasis added), s. 4 has rendered the Guidelines Order inoperative in the present case. Because the Fisheries Act regulates the management of Canada's fisheries resource, it is argued, the Minister of the Environment's jurisdiction has been ousted in respect of all matters affecting fish habitat. This argument can be dealt with shortly. Its premise entirely misapprehends the "matters" covered by the respective pieces of legislation. The Guidelines Order establishes an environmental assessment process for use by all federal departments in the exercise of their powers and the performance of their duties and functions, whereas the Fisheries Act embraces the substantive matter of protecting fish and fish habitat. There is, of course, a connection between the two, but the crucial difference is that one is fundamentally procedural while the other is substantive in nature. Again, the approach suggested by the appellants would make the power given by s. 6 of the Department of the Environment Act virtually meaningless.

New Federal Projects

Alberta next takes issue with the purported application of the Guidelines Order to proposals other than "new federal projects, programs and activities" mentioned in s. 5 (a)(ii) of the Department of the Environment Act . That provision reads:

The Minister, in exercising his powers and carrying out his duties and functions under section 4, shall

(a) initiate, recommend and undertake programs, and coordinate programs of the Government of Canada that are designed

. . .

(ii) to ensure that new federal projects, programs and activities are assessed early in the planning process for potential adverse effects on the quality of the natural environment and that a further review is carried out of those projects, programs, and activities that are found to have probable significant adverse effects, and the results thereof taken into account . . . . [Emphasis added.]

The wording of that subparagraph, it is argued, is determinative of Parliament's intention to restrict the scope of the Guidelines Order to new federal projects, and consequently cannot apply to any project that is provincially sponsored. Here again, as I see it, Alberta seeks to place an unduly narrow construction on the extent of the Minister of the Environment's duties and functions under s. 6 of the Act. The Guidelines Order was enacted under s. 6, not s. 5, and the powers, duties and functions of the Minister there referred to encompass matters found in s. 4 as well as s. 5, including, inter alia, "the preservation and enhancement of the quality of the natural environment" (s. 4(1)(a)). Section 6 is thus not confined to new projects, programs and activities. Section 5 merely defines the Minister's minimum duties under s. 4. Section 4 is much broader. It is there that one finds the true range of the Minister's duties and functions related to environmental quality for which guidelines may be established.

Initiating Departments

Central to the arguments of the appellant Ministers is whether the Guidelines Order by its own terms has any application to the Oldman River Dam project. That question was not addressed by Alberta, and the Ministers concede that the Minister of Transport is an "initiating" department but argue that the Guidelines Order is inconsistent with and thus cannot stand with the Navigable Waters Protection Act . I have found the two enactments compatible for reasons already given, so there remains no issue between the parties that the provisions of the Guidelines Order govern the Minister of Transport. For the Minister of Fisheries and Oceans, it is argued that he is not bound to invoke the Guidelines Order in the instant case because he does not have "decision making authority" pursuant to the relevant provisions of the Fisheries Act . Because the matter of the Guidelines Order's application was the subject of profound disagreement in the courts below, I feel that it is necessary to first consider the terms of the Guidelines Order to construe its general application provisions.

The starting point, in my view, must be s. 6 of the Guidelines Order which sets out its governing principle of application. It bears repeating here:

These Guidelines shall apply to any proposal

(a) that is to be undertaken directly by an initiating department;

(b) that may have an environmental effect on an area of federal responsibility;

(c) for which the Government of Canada makes a financial commitment; or

(d) that is located on lands, including the offshore, that are administered by the Government of Canada. [Emphasis added.]

There can be no serious doubt that the Oldman River Dam project may have an environmental effect on an area of federal responsibility, including the matters falling within s. 91 of the Constitution Act, 1867 already identified ‑‑ i.e., navigation, Indians, lands reserved for the Indians and inland fisheries. Thus, the Guidelines Order applies if the project here is a "proposal" within the meaning of s. 2, which defines that term as follows:

2. In these Guidelines,

. . .

"proposal" includes any initiative, undertaking or activity for which the Government of Canada has a decision making responsibility. [Emphasis added.]

If there is such a proposal, the Guidelines Order under ss. 3 and 10 allocates responsibility for the application of the process to the "initiating department" to ensure that it fully considers the environmental implications of a proposal properly before it and subjects such proposal to an initial assessment to determine whether there may be any potentially adverse environmental effects from it. The entity designated as an "initiating department" is also defined by s. 2. It provides that an:

2. In these Guidelines,

. . .

"initiating department" means any department that is, on behalf of the Government of Canada, the decision making authority for a proposal; [Emphasis added.]

It has been argued that the definite article "the" in the definition of "initiating department", as contrasted with the indefinite article "a" used in the definition of "proposal", may evince an intention to narrow the scope of the application of the Guidelines Order to projects where the federal government is the predominant or sole decision-making authority; see for example C. J. Gillespie, "Enforceable Rights from Administrative Guidelines?" (1989-1990), 3 C.J.A.L.P. 204. I do not agree. As I see it, the only consequence of shifting from the indefinite in "proposal" to the definite in "initiating department" is to designate the particular emanation of the Government of Canada that is charged with the implementation of the Guidelines Order once it has been determined that the federal government has a decision-making responsibility.

In Angus v. Canada, [1990] 3 F.C. 410 (C.A.), Décary J.A. adopted a similar approach to construing the Guidelines Order but in a different context. There the issue was whether the Guidelines Order applied to an order in council issued by the Governor in Council under s. 64 of the National Transportation Act, 1987, R.S.C., 1985, c. 28 (3rd Supp.), which required VIA Rail to eliminate or reduce certain passenger services. Although the case turned on the narrow issue of whether the Guidelines Order was binding on the Governor in Council, which does not arise here, and Décary J.A. was dissenting on this point, his overall analysis of the application of the Guidelines Order is helpful where he stated, at p. 434:

The emphasis has been put by the learned Trial Judge and by the respondents on the words "initiating department" which relate to the administration of the Guidelines. I would rather put the emphasis on the words "proposal" and "Government of Canada", which relate to the "application" of the Guidelines. There is no requirement, in the definition of "proposal", that it be made by an initiating department within the meaning of the Guidelines. The intention of the drafter seems to be that whenever there is an activity that may have an environmental effect on an area of federal responsibility and whoever the decision-maker may be on behalf of the Government of Canada, be it a department, a Minister, the Governor in Council, the Guidelines apply and it then becomes a matter of practical consideration, when the final decision-maker is not a department, to find which department or Minister is the effective original decision-maker or the effective decision-undertaker, for there is always a department or a Minister involved "in the planning process" and "before irrevocable decisions are taken" or in the "direct undertaking" of a proposal.

Since the issue does not arise, I do not wish to comment on the application of the Guidelines Order to the Governor in Council, but the foregoing passage does capture the essence of its framework.

That is not to say that the Guidelines Order is engaged every time a project may have an environmental effect on an area of federal jurisdiction. There must first be a "proposal" which requires an "initiative, undertaking or activity for which the Government of Canada has a decision making responsibility". (Emphasis added.) In my view the proper construction to be placed on the term "responsibility" is that the federal government, having entered the field in a subject matter assigned to it under s. 91 of the Constitution Act, 1867 , must have an affirmative regulatory duty pursuant to an Act of Parliament which relates to the proposed initiative, undertaking or activity. It cannot have been intended that the Guidelines Order would be invoked every time there is some potential environmental effect on a matter of federal jurisdiction. Therefore, "responsibility" within the definition of "proposal" should not be read as connoting matters falling generally within federal jurisdiction. Rather, it is meant to signify a legal duty or obligation. Once such duty exists, it is a matter of identifying the "initiating department" assigned responsibility for its performance, for it then becomes the decision-making authority for the proposal and thus responsible for initiating the process under the Guidelines Order.

That there must be an affirmative regulatory duty for a "decision making responsibility" to exist is evident from other provisions found in the Guidelines Order which suggest that the initiating department must have some degree of regulatory power over the project. For example s. 12 provides:

12. Every initiating department shall screen or assess each proposal for which it is the decision making authority to determine if

. . .

(f) the potentially adverse environmental effects that may be caused by the proposal are unacceptable, in which case the proposal shall either be modified and subsequently rescreened or reassessed or be abandoned.

Again, s. 14 reads:

14. Where, in any case, the initiating department determines that mitigation or compensation measures could prevent any of the potentially adverse environmental effects of a proposal from becoming significant, the initiating department shall ensure that such measures are implemented.

Those provisions amplify the regulatory authority with which the Government of Canada must have clothed itself under an Act of Parliament before it will have the requisite decision-making responsibility.

Applying that interpretation to the present case, it will be seen that the Oldman River Dam project qualifies as a proposal for which the Minister of Transport alone is the initiating department. In my view the Navigable Waters Protection Act does place an affirmative regulatory duty on the Minister of Transport. Under that Act there is a legislatively entrenched regulatory scheme in place in which the approval of the Minister is required before any work that substantially interferes with navigation may be placed in, upon, over or under, through or across any navigable water. Section 5 gives the Minister the power to impose such terms and conditions as he deems fit on any approval granted, and if those terms are not complied with the Minister may order the owner to remove or alter the work. For these reasons I would hold that this is a "proposal" for which the Minister of Transport is an "initiating department".

There is, however, no equivalent regulatory scheme under the Fisheries Act which is applicable to this project. Section 35 prohibits the carrying on of any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat, and s. 40 lends its weight to that prohibition by penal sanction. The Minister of Fisheries and Oceans is given a discretion under s. 37(1) to request information from any person who carries on or proposes to carry on any work or undertaking that will or may result in the alteration, disruption or destruction of fish habitat. However, the purpose of making such a request is not to further a regulatory procedure, but is merely to assist the Minister in exercising an ad hoc delegated legislative power granted under s. 37(2) to allow an exemption from the general prohibition. That provision reads:

37. . . .

(2) If, after reviewing any material or information provided under subsection (1) and affording the persons who provided it a reasonable opportunity to make representations, the Minister or a person designated by the Minister is of the opinion that an offence under subsection 40(1) or (2) is being or is likely to be committed, the Minister or a person designated by the Minister may, by order, subject to regulations made pursuant to paragraph (3)(b), or, if there are no such regulations in force, with the approval of the Governor in Council,

(a) require such modifications or additions to the work or undertaking or such modifications to any plans, specifications, procedures or schedules relating thereto as the Minister or a person designated by the Minister considers necessary in the circumstances, or

(b) restrict the operation of the work or undertaking,

and, with the approval of the Governor in Council in any case, direct the closing of the work or undertaking for such period as the Minister or a person designated by the Minister considers necessary in the circumstances. [Emphasis added.]

In my view a discretionary power to request or not to request information to assist a Minister in the exercise of a legislative function does not constitute a decision-making responsibility within the meaning of the Guidelines Order. Whereas the Minister of Transport is responsible under the terms of the Navigable Waters Protection Act in his capacity as regulator, the Minister of Fisheries and Oceans under s. 37 of the Fisheries Act has been given a limited ad hoc legislative power which does not constitute an affirmative regulatory duty. For that reason, I do not think the application for mandamus to compel the Minister to act is well founded.

Crown Immunity

Alberta takes the position that even if the Guidelines Order could be said to apply to the project in its own terms, the Crown in right of Alberta is not bound by the Navigable Waters Protection Act and hence there can be no "decision making responsibility" on the part of the Government of Canada within the meaning of the Guidelines Order which could affect the province. The appellant Ministers agree that the Act is not binding on the Crown in right of a province, but argue that Alberta has waived its immunity by making application for approval under the Act.

The starting point on this issue is s. 17 of the Interpretation Act which codifies the presumption that the Crown is not bound by statute:

17. No enactment is binding on Her Majesty or affects Her Majesty or Her Majesty's rights or prerogatives in any manner, except as mentioned or referred to in the enactment.

It is agreed by all concerned that there are no express words in the Navigable Waters Protection Act binding the Crown, and it therefore remains to be decided whether the Crown is bound by necessary implication.

It is helpful to turn first to the common law. The leading case is the Privy Council decision in Province of Bombay v. Municipal Corporation of Bombay, [1947] A.C. 58. The issue there was whether the province of Bombay was exempt from the City of Bombay Municipal Act, 1888, which conferred power on the city to lay water-mains "into, through or under any land whatsoever within the city". The province owned land under which it was proposed to lay a water-main and it objected to the city's plans, unless the city complied with certain conditions which the city found unacceptable. Although there were no express words in the statute binding the Crown, the High Court of Bombay held that the Crown was bound by necessary implication because the statute "cannot operate with reasonable efficiency unless the Crown is bound".

The Privy Council agreed that the rule of Crown immunity admitted of at least one exception, necessary implication. Lord du Parcq explained the exception as follows, at p. 61:

If, that is to say, it is manifest from the very terms of the statute, that it was the intention of the legislature that the Crown should be bound, then the result is the same as if the Crown had been expressly named. It must then be inferred that the Crown, by assenting to the law, agreed to be bound by its provisions.

Their Lordships then went on to consider the argument, supported by some early authority, that a statute enacted for the public good must be held to bind the Crown, because the Act was manifestly intended to secure the public welfare. That contention was rejected on the simple ground that all statutes are presumptively for the public good. That, however, did not necessarily mean that the purpose of an enactment is altogether irrelevant. At page 63, it is stated:

Their Lordships prefer to say that the apparent purpose of the statute is one element, and may be an important element, to be considered when an intention to bind the Crown is alleged. If it can be affirmed that, at the time when the statute was passed and received the royal sanction, it was apparent from its terms that its beneficent purpose must be wholly frustrated unless the Crown were bound, then it may be inferred that the Crown has agreed to be bound.

As I mentioned in Sparling v. Quebec (Caisse de dépôt et placement du Québec), [1988] 2 S.C.R. 1015, at p. 1022, some doubt was expressed in R. v. Eldorado Nuclear Ltd., [1983] 2 S.C.R. 551, and Her Majesty in right of Alberta v. Canadian Transport Commission, [1978] 1 S.C.R. 61 (cf. R. v. Ouellette, [1980] 1 S.C.R. 568), as to whether the necessary implication exception survived the 1967 revision of what is now s. 17 of the Interpretation Act . There may also have been room for doubt as to whether the "wholly frustrated" test articulated in Bombay was determinative in finding the Crown bound by necessary implication. Professor Hogg in his text Liability of the Crown (2nd ed. 1989), argues that the necessary implication exception set out at the beginning of Bombay refers to a contextual analysis of the statute whereby one may discern an intention to bind the Crown by logical implication, and is thus a different species of necessary implication from that which arises when the purpose of the statute is wholly frustrated. He states, at p. 210:

What is contemplated in this passage is that a statute, while lacking an express statement that the Crown is bound, may contain references to the Crown or to governmental activity which make no sense unless the Crown is bound. If these textual indications are sufficiently clear, the courts will hold that the presumption is rebutted and the Crown is bound.

However, any uncertainty in the law on these points was put to rest by this Court's recent decision in Alberta Government Telephones, supra. After reviewing the authorities, Dickson C.J. concluded, at p. 281:

In my view, in light of PWA and Eldorado, the scope of the words "mentioned or referred to" must be given an interpretation independent of the supplanted common law. However, the qualifications in Bombay, supra, are based on sound principles of interpretation which have not entirely disappeared over time. It seems to me that the words "mentioned or referred to" in s. 16 [now s. 17 of the Interpretation Act ] are capable of encompassing: (1) expressly binding words ("Her Majesty is bound"); (2) a clear intention to bind which, in Bombay terminology, "is manifest from the very terms of the statute", in other words, an intention revealed when provisions are read in the context of other textual provisions, as in Ouellette, supra; and, (3) an intention to bind where the purpose of the statute would be "wholly frustrated" if the government were not bound, or, in other words, if an absurdity (as opposed to simply an undesirable result) were produced. These three points should provide a guideline for when a statute has clearly conveyed an intention to bind the Crown.

In my view, this passage makes it abundantly clear that a contextual analysis of a statute may reveal an intention to bind the Crown if one is irresistibly drawn to that conclusion through logical inference.

That analysis however cannot be made in a vacuum. Accordingly, the relevant "context" should not be too narrowly construed. Rather the context must include the circumstances which led to the enactment of the statute and the mischief to which it was directed. This view is consistent with the reasoning in Bombay as is evident from the passages quoted above where the test for necessary implication is expressed in terms of the time of enactment. In fact the approach taken by the High Court of Bombay in that case was criticized by the Privy Council for that very reason, at p. 62:

Even if the High Court were correct in its interpretation of the principle, its method of applying it would be open to the objection that regard should have been had, not to the conditions which it found to be in existence many years after the passing of the Act, but to the state of things which existed, or could be shown to have been within the contemplation of the legislature, in the year 1888.

I begin then by examining the circumstances that existed when the legislation was first enacted, bearing in mind that the general subject matter of the statute concerns navigation.

In so doing, it is useful to return to some of the fundamental principles of water law in this area, particularly those pertaining to navigable waters. It is important to recall that the law of navigation in Canada has two fundamental dimensions ‑‑ the ancient common law public right of navigation and the constitutional authority over the subject matter of navigation ‑‑ both of which are necessarily interrelated by virtue of s. 91(10) of the Constitution Act, 1867 which assigns exclusive legislative authority over navigation to Parliament.

The common law of England has long been that the public has a right to navigate in tidal waters, but though non-tidal waters may be navigable in fact the public has no right to navigate in them, subject to certain exceptions not material here. Except in the Atlantic provinces, where different considerations may well apply, in Canada the distinction between tidal and non-tidal waters was abandoned long ago; see In Re Provincial Fisheries (1896), 26 S.C.R. 444; for a summary of the cases, see my book on Water Law in Canada (1973), at pp. 178-80. Instead the rule is that if waters are navigable in fact, whether or not the waters are tidal or non-tidal, the public right of navigation exists. That is the case in Alberta where the Appellate Division of the Supreme Court, applying the North-West Territories Act, R.S.C. 1886, c. 50, rightly held in Flewelling v. Johnston (1921), 59 D.L.R. 419, that the English rule was not suitable to the conditions of the province. There is no issue between the parties that the Oldman River is in fact navigable.

The nature of the public right of navigation has been the subject of considerable judicial comment over time, but certain principles have held fast. First, the right of navigation is not a property right, but simply a public right of way; see Orr Ewing v. Colquhoun (1877), 2 App. Cas. 839 (H.L.), at p. 846. It is not an absolute right, but must be exercised reasonably so as not to interfere with the equal rights of others. Of particular significance for this case is that the right of navigation is paramount to the rights of the owner of the bed, even when the owner is the Crown. For example, in Attorney-General v. Johnson (1819), 2 Wils. Ch. 87, 37 E.R. 240, a relator action to enjoin a public nuisance causing an obstruction in the River Thames and an adjoining thoroughfare along its bank, the Lord Chancellor said, at p. 246:

I consider it to be quite immaterial whether the title to the soil between high and low water-mark be in the Crown, or in the City of London, or whether the City of London has the right of conservancy, operating as a check on an improper use of the soil, the title being in the Crown, or whether either Lord Grosvenor or Mr. Johnson have any derivative title by grant from any one having the power to grant. . . . It is my present opinion, that the Crown has not the right either itself to use its title to the soil between high and low water-mark as a nuisance, or to place upon that soil what will be a nuisance to the Crown's subjects. If the Crown has not such a right, it could not give it to the City of London, nor could the City transfer it to any other person.

This Court later came to the same conclusion in Wood v. Esson (1884), 9 S.C.R. 239. There, the plaintiffs had extended their wharf so as to interfere with access to the defendant's wharf. The defendant pulled up the piles and removed the obstruction to allow passage to his wharf, and the plaintiffs then brought an action in trespass on the ground that they enjoyed title under a grant from the province of Nova Scotia to the soil of the harbour on which the wharf was constructed. The Court held that the defendant was entitled to abate the nuisance created by the obstruction to navigation in the harbour. Strong J. remarked, at p. 243:

The title to the soil did not authorize the plaintiffs to, extend their wharf so as to be a public nuisance, which upon the evidence, such an obstruction of the harbour amounted to, for the Crown cannot grant the right so to obstruct navigable waters; nothing short of legislative sanction can take from anything which hinders navigation the character of a nuisance. [Emphasis added.]

This passage also underscores another aspect of the paramountcy of the public right of navigation ‑‑ that it can only be modified or extinguished by an authorizing statute, and as such a Crown grant of land of itself does not and cannot confer a right to interfere with navigation; see also The Queen v. Fisher (1891), 2 Ex. C.R. 365; In Re Provincial Fisheries, supra, at p. 549, per Girouard J.; and Reference re Waters and Water-Powers, [1929] S.C.R. 200.

What is more, the provinces are constitutionally incapable of enacting legislation authorizing an interference with navigation, since s. 91(10) of the Constitution Act, 1867 gives Parliament exclusive jurisdiction to legislate respecting navigation. That was made clear by this Court in Queddy River Driving Boom Co. v. Davidson (1883), 10 S.C.R. 222, where an injunction was sought to restrain the defendant company from erecting piers and booms in the Queddy River in New Brunswick. The defendant relied on its constituent legislation, passed by the provincial legislature, which permitted a certain degree of interference with navigation. The only issue before the Court was the authority of the legislature to pass the Act incorporating the defendant. Ritchie C.J. concluded, at p. 232:

. . . the legal question in this case, which is, to which legislative power, that of the Dominion Parliament or the Assembly of New Brunswick, belongs the right to authorize the obstruction by piers or booms of a public tidal and navigable river, and thereby injuriously interfere with and abridge the public right of navigation in such tidal navigable waters. It is not disputed that this legislation interfered with the navigation of the river . . .

I think there can be no doubt that the legislative control of navigable waters, such as are in question in this case, belongs exclusively to the Dominion Parliament. Everything connected with navigation and shipping seems to have been carefully confided to the Dominion Parliament, by the B.N.A. Act.

These cases served as an impetus for the enactment of what ultimately became the Navigable Waters Protection Act . Of relevance here is the enactment of one of the antecedent pieces of legislation ‑‑ An Act respecting booms and other works constructed in navigable waters whether under the authority of Provincial Acts or otherwise, S.C. 1883, c. 43 ‑‑ preceding the consolidated Act which was to govern all aspects of the protection of navigable waters. Section 1 provided:

1. No boom, dam or aboiteau shall be constructed whether under the authority of an Act of a Legislature of a Province of Canada, or under the authority of an Ordinance of the North-West Territories or of the District of Keewatin or otherwise, so as to interfere with navigation, unless the site thereof has been approved, and unless the boom, dam or aboiteau has been built and is maintained in accordance with plans approved by the Governor General in Council.

The Act also provided a means whereby existing structures which interfered with navigation, and thus created a public nuisance, could be legalized by seeking approval from the Governor General in Council.

That statute was but one enactment in which Parliament exercised its jurisdiction to prevent the erection or continuation of impediments to navigation. It had already legislated, inter alia, in respect of bridges (An Act respecting Bridges over navigable waters, constructed under the authority of Provincial Acts, S.C. 1882, c. 37); the removal of obstructions and wrecks from navigable waters (An Act for the removal of obstructions, by wreck and like causes, in Navigable Waters of Canada, and other purposes relative to wrecks, S.C. 1874, c. 29); and effluent from sawmills into navigable waters (An Act for the better protection of Navigable Streams and Rivers, S.C. 1873, c. 65).

The consolidation process began with the passage of An Act respecting certain works constructed in or over Navigable Waters, S.C. 1886, c. 35, dealing with construction of any "work" in navigable waters, and its companion legislation An Act respecting the protection of Navigable Waters, S.C. 1886, c. 36, concerning obstruction of navigable waters by wrecks. Section 1 of the former compendiously defined the term "work" to mean:

1. In this Act, unless the context otherwise requires, the expression "work" means and includes any bridge, boom, dam, aboiteau, wharf, dock, pier or other structure, and the approaches or other works necessary or appurtenant thereto; . . .

The definition was far more comprehensive in scope than its predecessors, and this aspect of the law, coupled with the requirement for approval from the Governor in Council of all such works, caused considerable consternation at the time as to the breadth of its potential retrospective effect for existing structures erected in navigable waters.

However, the statute was merely declaratory of the common law. To the extent that a structure interfered with the public right of navigation, it was a public nuisance, and the provinces were constitutionally powerless to authorize an interference of that nature. The retrospective effect of the law with respect to works built under the statutory authority of a provincial legislature, however, only went back as far as the time the province joined Confederation. Section 7 provided:

Nothing hereinbefore contained, except the provisions of the first and fifth sections hereof, shall apply to any work constructed under the authority of any Act of the Parliament of Canada, or of the legislature of the late Province of Canada, or of the legislature of any Province now forming part of Canada, passed before such Province became a part thereof.