What Level of Information Does A Proponent Need To Start An Environmental Assessment?
The B.C. Supreme Court addressed this question late in September 2018 in Carhoun and Sons Enterprises ltd. v Canada (Attorney General) 2018 BCSC 1675. The plaintiff brought an action against the federal government both for negligence and misfeasance. The plaintiff alleged that its application for an authorization under ss. 35(2) of the Fisheries Act to infill and develop fish and wildlife habitat areas for commercial and residential use was unduly delayed by the regulatory authority (RA)'s failure to initiate the federal environmental assessment process, a prerequisite to the Fisheries authorization, thereby causing the plaintiff proponent economic loss.
The plaintiff's consultant, in a written submission to the Department of Fisheries and Oceans (DFO) in September of 2009, said:
"It is anticipated that the information contained in this submission will form the basis for a formal application for environmental review under the Canadian Environmental Assessment Act (CEAA). The purpose of this submission is to confirm the project is feasible from a fish habitat perspective before conducting the additional work necessary to complete a full CEAA review document. The bulk of the submission includes information on fish habitat, fish habitat utilization and wildlife habitat within the study area."
Although the plaintiff contended that the Submission was complete with even more information than required by the DFO guidelines, the 2009 Submission in fact made numerous explicit references to additional information being provided by the plaintiff at an unspecified future date, including a stormwater management plan, habitat enhancement compensation options, habitat impact mitigation plans, a comprehensive habitat compensation plan, an environmental management plan that included general recommendations for erosion and sediment control during construction, and final construction drawings. Meetings between the plaintiff's representatives and the DFO were held over the next six months. In March the DFO requested that the project be redesigned and relocated. They were concerned about cumulative effects on fish habitat as a result of a number of existing and future projects. The plaintiff objected and the DFO embarked on interviews with stakeholders, visited the development and compensation sites, conducted an independent review of the technical information and DFO policy documents, and issued a report in July, 2010. The Report identified potential to offset losses to fish habitat which could be explored within the context of an EA screening process. In August, almost a year after the consultant's initial application on behalf of the plaintiff, the DFO formally advised that if the plaintiff was willing to make significant commitments toward habitat compensation and stormwater management, the DFO would be willing to initiate the EA process under CEAA.