Judgments

[1993] 2 F.C. 229

T-3068-92

Friends of the Island Inc. (Applicant)

v.

Minister of Public Works, Minister of Transportation, Minister of the Environment, the Attorney General of New Brunswick, the Attorney General of Prince Edward Island and SCI Partnership (Respondents)

Indexed as: Friends of the Island Inc. v. Canada (Minister of Public Works) (T.D.)

Trial Division, Reed J.—Toronto, March 1; Ottawa, March 19, 1993.

Environment — Application for mandamus compelling Minister of Public Works to initiate EARPGO, s. 12 assessment of specific design of bridge to be built between PEI and mainland — Generic initial environmental evaluation of fixed link proposal prepared before specific design chosen — All documentation, including successful developer’s response to proposal call, premised on further and more specific s. 12 evaluation of final design — Subsequent assessments, including developer’s environmental management plan addressed bridge project at concept level — Application allowed — S. 12 requiring assessment when proposal in form in which environmental considerations can be fully considered — S. 12 assessments of bridge proposal not done.

Constitutional law — Prince Edward Island Terms of Union — Application for declaration discontinuance of ferry service between PEI and mainland without constitutional amendment authorizing it breach of Terms of Union — Under Terms of Union federal government to assume and defray all charges for “Efficient Steam Service” between PEI and mainland and for protection of fisheries—Agreement between federal government and provinces for bridge between PEI and mainland to replace ferry service — Application allowed — Efficient Steam Service not meaning bridge — Discontinuance of ferry service must be effected by constitutional amendment — Obligation re protection of fisheries not imposing positive duty, only financial responsibility for such governmental services as provided.

Practice — Parties — Standing — Application for mandatory order re: EARPGO, s. 12 assessment, declaration constitutional obligations be complied with — Applicant meeting criteria for public interest standing established in Thorson, Borowski, Finlay cases — Federal Court Act, s. 18.1 not intended to limit judicial review to pre-Thorson, Borowski, Finlay test — Within Court’s discretion to grant standing when justified in circumstances — No other effective or practical means of getting issue before Court — Standing should not be denied based on theoretical alternative means of getting issue before Court — Must be reasonable probability of such other actions being taken — Province unlikely to test constitutionality of proposed discontinuance of Northumberland Strait ferry service — Individuals or corporations may bring action for declaration and mandamus as constitutional obligation for all residents of province, even perhaps all Canadians.

Judicial review — Application for mandamus compelling EARPGO, s. 12 assessment; declaration to enforce constitutional obligations — Generic initial environmental evaluation of fixed link between PEI and New Brunswick prepared in 1988; other assessments of concept, but not final specific design, since prepared — Delay in coming to Court not factor — Difficult to determine exactly when failure to take certain step occurs — Respondent not suffering prejudice justifying refusal of remedies — Renegotiation of governmental contracts to extend completion dates common — Applicant’s participation in process not precluding right to insist on compliance with EARPGO procedures — Mandatory requirements should be complied with even though much environmental review already — Minister of Public Works in signing Agreement “federal board, commission or other tribunal” within Federal Court Act, s. 2 — Application not premature although ferry service not to be discontinued until bridge built — Better to know constitutional amendment needed sooner rather than later.

Construction of statutes — Prince Edward Island Terms of Union — Federal government assuming financial responsibility to establish and maintain “Efficient Steam Service” between PEI and mainland under Terms of Union — Progressive interpretation of constitutional documents still constrained by meaning words can bear — “Efficient Steam Service” cannot mean bridge.

This was an application for mandamus to compel the Minister of Public Works to have an Environmental Assessment and Review Process Guidelines Order (EARPGO), section 12 assessment undertaken with respect to the specific design of the bridge to be built between Prince Edward Island and the mainland, and for a declaration that discontinuance of the ferry service, in the absence of a constitutional amendment authorizing it, would breach a term of the Prince Edward Island Terms of Union.

In 1985 the federal government received and considered three unsolicited proposals by private interests to construct a toll bridge or tunnel between Prince Edward Island and the mainland as alternatives to the ferry service. In 1987 the Department of Public Works commissioned a generic initial environmental evaluation (GIEE) of the proposals for a fixed link. It was contemplated that this study, conducted at the concept stage, would be followed by a specific environmental evaluation of the design finally selected for construction. In response to a project call for concept designs in 1988, seven proposals were submitted, including one for a tunnel. The response submitted by SCI Partnership contemplated that an environmental evaluation of the final detailed design would take place. The proposals were assessed and three developers chosen to compete further. Background material to the press release announcing the finalists indicated that a specific environmental evaluation of the winning design would take place. All three proposals were for a bridge, although the GIEE had indicated that the environmental risks associated with a tunnel were less than those associated with a bridge. In January 1989, instead of proceeding to a specific environmental evaluation, the fixed crossing project was referred to an Environmental Assessment Panel pursuant to the Guidelines Order because of the high public concern respecting the potential environmental effects of any such fixed link crossing. Public Works refused to provide to the Panel specific information which the former considered confidential with respect to the three proposals. The Panel complained that it did not have sufficient information to make an informed decision as the public review was being conducted in the middle of a process which precluded access to site specific information. The Panel’s report agreed that there was a need for an improved transportation link, but concluded that the risk of harmful environmental effects arising from the proposed bridge concept were unacceptable and recommended that the bridge project not proceed. It noted that subject to a favourable independent environmental review, a tunnel might be an acceptable transportation link, as could an improved ferry service. It regretted that the referral to the Panel was made after the only tunnel proposal had been rejected, precluding examination of all alternatives equally and the review of information contained in specific proposals. The government did not accept the Panel’s recommendation, noting that it had studied a generic concept and not the specific proposals under consideration. It undertook to study further the issue of ice-out delay, a significant concern of the Panel. Subsequently the Minister of Public Works announced that all three proposals met the environmental criteria established by the government in response to the Panel’s report and invited the developers to submit price bids. Strait Crossing Inc. (SCI) was the successful bidder. In December 1992, on behalf of the Government of Canada, the Minister of Public Works entered into the Northumberland Strait Crossing Project Federal-Provincial Agreement with the governments of Prince Edward Island and New Brunswick. SCI later released a draft environmental management plan relating not to the final plan for the bridge, but to the concept submission. After public and private meetings to discuss the plan and review by the Environmental Committee, a final environmental management plan, which was not appreciably different from the draft plan in so far as the detail concerning the bridge was concerned, was submitted. It must be approved before financial closing can take place on March 31, 1993. Final designs for the bridge will not be prepared until after financial closing is concluded.

The issues were whether the Minister of Public Works had complied with section 12 of EARPGO; whether the Northumberland Strait Crossing Project Federal-Provincial Agreement will result in a breach of the constitutional obligations of the Prince Edward Island Terms of Union; whether the applicant had standing to bring this application; and whether the relief sought was appropriate.

EARPGO, section 12 requires every initiating department to screen or assess each proposal for which it is the decision-making authority. The respondent argued that the preparation of the GIEE and its acceptance and adoption by Public Works was a section 12 screening and assessment of “the proposal”. The applicant argued that the GIEE was not a section 12 determination with respect to the bridge which is actually going to be built, and a review of a fixed crossing (bridge or tunnel) at the conceptual level did not meet the requirement of the EARPGO. It submitted that a “proposal” for the purposes of the EARPGO is meant to be specific. Alternatively, the design finally chosen for construction is a separate and distinct proposal which must also be assessed in accordance with section 12.

Under the Terms of Union, the Dominion Government agreed to assume and defray all charges for the establishment and maintenance of an “Efficient Steam Service” between the Island and the mainland and for the protection of the fisheries. The applicant argued that discontinuance of the ferry service would be a breach of the Terms of Union. A bridge is not an “Efficient Steam Service”. The respondents argued that the Terms of Union, a constitutional document, should be given a progressive interpretation and continuously adapted to new conditions and ideas. The applicant also argued that the proposed actions also offend the provisions requiring the protection of the fisheries.

The respondents argued that the applicant did not have standing to bring this application as it did not meet the criteria for public interest standing established by the Thorson, Borowski, and Finlay cases in that no material was filed to establish corporate objectives or interest; even if those criteria were met, section 18.1 of the Federal Court Act, permitting anyone “directly affected” by the matter in respect of which relief is sought to apply for judicial review, requires a party to have a specific or particular interest different from that of the public generally; the obligation under the Terms of Union was owed to the government of Prince Edward Island, not to individuals.

Finally it was argued that the Court should not grant the remedies sought because the applicant delayed in coming to Court; the applicant’s participation in many of the steps which have already been taken had lulled the respondents into a false sense of security; requiring any more environmental review would be superfluous; the challenged actions are not properly reviewable under Federal Court Act, section 18.1; any remedies based on the constitutional argument are premature since the ferry service would not be discontinued until after the bridge is built.

Held, the application should be allowed.

Whether EARPGO requires assessment of the proposal at the concept stage or at a more specific design stage may depend on the type of project being reviewed. The assessment is required to take place at a stage when the environmental implications can be fully considered (section 3), and when it can be determined whether there may be any potentially adverse environmental effects (subsection 10(1)). In addition, the screening or assessment by the initiating department should take place when both the proposal being assessed and the decision relating thereto, including the grounds on which it is based, can be released to the public. EARPGO, section 15 provides that the initiating department shall ensure, after a determination concerning a proposal has been made pursuant to section 12, that the public have access to the information and an opportunity to respond. The object is to allow for meaningful and comprehensive public discussion of the potential environmental impacts of the proposed structure or activity.

The Department of Public Works did not conduct a section 12 assessment with respect to the SCI bridge proposal as required by the EARPGO. The GIEE expressly stated that it did not fully consider the potential environmental implications. It emphasized that an assessment of the specific designs, once they were available, must be undertaken to ascertain whether there were any significant environmental impacts arising from whatever fixed crossing might be constructed. In addition, at the time of the GIEE, not even the SCI concept proposal, let alone the specific bridge design, was available for public review. This was equally true when the Panel was asked to undertake its review. The arguments relating to provisions requiring early assessment and use of the assessment as a planning tool do not lead to the conclusion that “proposal” should be given a broad definition. The argument that if the proposal must be specific then section 12 assessments would be required at every stage of the process was not convincing. Section 12 requires the assessment of a proposal when it is available in a form in which the environmental considerations can be fully considered.

The argument that a section 12 screening has been an ongoing de facto process since 1987 was rejected. Public Works has not sought to characterize the ongoing activity in that way. The Department’s position was that the section 12 assessment was done when the GIEE was published and that the Department did not and does not in the foreseeable future intend to conduct a section 12 assessment of the specific SCI proposal. All assessments which have gone on since the GIEE seem to have been addressed to this conceptual level for consideration. SCI’s recent environmental management plan was not part of a de facto section 12 assessment because it was designed to address mitigation methods and techniques rather than undertaking the assessment and classification of the environmental risks which can potentially arise from the project. The study by the Panel, its deliberations and report did not obviate the need for the specific environmental assessment which previously had been contemplated. Public hearings on a generic proposal are not a substitute for a specific evaluation of the actual project which it is planned to construct. The Court was disturbed by the incredible waste of public funds which resulted from referring a generic design to a panel when the government had access to more detailed information respecting the three concept proposals being considered and then rejecting the Panel’s recommendations because the Panel did not have before it the detailed information to which the government was privy but refused to make available. Such a result could have been avoided if a referral to a Panel had been made at a later stage.

Discontinuing the ferry service would be a breach of the constitutionally guaranteed Terms of Union. When using the progressive approach to constitutional interpretation, one is constrained by the wording of the text. The words must be able to bear the interpretation being put on them. The words “Efficient Steam Service” do not bear an interpretation which means bridge. The discontinuance of the ferry service must be effected by way of constitutional amendment.

The obligation imposed with respect to the protection of the fisheries requires the federal government to assume financial responsibility for whatever governmental services are provided for protection of the fisheries. It does not impose any positive duty on the federal government.

The applicant had standing. (1) The applicant has proven that it has sufficient interest as set out in Thorson, Borowski and Finlay. The applicant’s members are farmers, fishermen and environmentalists resident on PEI. There was abundant evidence establishing their individual interests. There was also evidence that the objects of the corporate applicant included activities aimed at opposing the construction of the bridge. (2) Subsection 18.1(1) was not intended to limit judicial review to the pre-Thorson, Borowski, Finlay test. It gives the Court discretion to grant standing when it is convinced that the particular circumstances of the case and the type of interest which the applicant holds justify status being granted, assuming there is a justiciable issue and no other practical or effective means of getting the issue before the courts. The applicant has demonstrated such interest and the issue is clearly justiciable. A party should not be denied standing merely because theoretically there are other ways of getting the issue before the Court. The possibility of such other actions being taken has to carry a reasonable degree of probability before standing should be refused on that basis. Such does not exist in this case. The provincial government as a party to the agreement is unlikely to test the constitutionality of the proposed discontinuance of the ferry service. The applicant met the requirement that there is no other effective and practical means of getting the matter before the Court, both with respect to the constitutional and environmental issues. (3) Individuals or corporate persons may bring an action seeking a declaration and a mandatory order that the constitutional obligations be complied with. The “obligee” may be the province, but the constitutional obligation is for the benefit of all the people of the province, and perhaps for Canadians from outside the province who wish to go to the Island. If only the province could sue to enforce the obligation, then a term of union could be altered by executive agreement with no recourse by the individuals affected. The particular constitutional obligation could not have been so amended before 1982. The Constitution Act, 1982 did not change that protected status.

As to the relief requested, (1) delay was not a relevant factor. The applicant was challenging a refusal to take certain action. It is difficult to determine exactly when a failure to take a positive step occurs. The respondents will not suffer the kind of prejudice which would justify refusing the remedies. Many of the arguments assumed that the bridge project would not go ahead if an environmental assessment pursuant to section 12 was ordered or if a constitutional amendment was required to effect discontinuance of the ferry service. Renegotiation of contracts to extend completion terms, especially government contracts, is very common. (2) Participation in public discussions does not eliminate the right to require that the legal procedures established by EARPGO be complied with. (3) The mandatory requirements should be strictly complied with. The relief sought should not be denied just because a great deal of environmental study has already been done. (4) The Minister of Public Works in signing the Federal-Provincial Agreement fell within the definition of “federal board, commission or other tribunal” in Federal Court Act, section 2, and the proposed action of signing contracts with SCI also fell within that definition. (5) If a constitutional amendment is needed, it is in everybody’s interest to know that now rather than later. If the applicant delayed bringing its application forward until 1997, when ferry service is discontinued upon completion of the bridge, the respondents would be arguing that the Court should refuse relief because of the applicant’s delay.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

An Act respecting the admission of the Colony of Prince Edward Island as a Province of the Dominion, S.C. 1873, c. 40.

An Act to provide for a further annual allowance to the Province of Prince Edward Island, S.C. 1901, c. 3.

An Act to ratify and confirm a certain agreement between the Governments of Canada, and Prince Edward Island, in respect of claims for non-fulfillment of the terms of Union, S.P.E.I. 1901, c. 3.

Bill C-110, Northumberland Strait Crossing Act, 3rd Sess., 34th Parl. (first reading, December 11, 1992, House of Commons), ss. 4(2), 7(1), 9.

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].

Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], ss. 96, 146.

Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 43, 52(1),(2)(b), Schedule.

Environmental Assessment and Review Process Guidelines Order, SOR/84-467, ss. 2, 3, 4, 5, 6, 10, 11, 12, 13, 14, 15, 16, 20, 21, 33, 34.

Federal Court Act, R.S.C., 1985, c. F-7, ss. 2, 18.1 (as am. by S.C. 1990, c. 8, s. 5), 28(2).

Navigable Waters Protection Act, R.S.C., 1985, c. N-22, s. 5.

Prince Edward Island Subsidy Act, 1912, S.C. 1912, c. 42.

Prince Edward Island Terms of Union, R.S.C., 1985, Appendix II, No. 12.

CASES JUDICIALLY CONSIDERED:

APPLIED:

Prince Edward Island (Minister of Transportation and Public Works) v. Canadian National Railway Co., [1991] 1 F.C. 129; (1990), 71 D.L.R. (4th) 596; 110 N.R. 394 (C.A.); R. (Canada) v. The Queen (P.E.I.), [1978] 1 F.C. 533; (1977), 83 D.L.R. (3d) 492; 33 A.P.R. 477; 20 N.R. 91 (C.A.) on constitutional issue; Thorson v. Attorney General of Canada et al., [1975] 1 S.C.R. 138; (1974), 43 D.L.R. (3d) 1; 1 N.R. 225; Minister of Justice of Canada et al. v. Borowski, [1981] 2 S.C.R. 575; (1981), 130 D.L.R. (3d) 588; [1982] 1 W.W.R. 97; 12 Sask. R. 420; 64 C.C.C. (2d) 97; 24 C.P.C. 62; 24 C.R. (3d) 352; 39 N.R. 331; Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607; (1986), 33 D.L.R. (4th) 321; [1987] 1 W.W.R. 603; 23 Admin.L.R. 197; 17 C.P.C. (2d) 289; 71 N.R. 338.

DISTINGUISHED:

R. (Prince Edward Island) v. R. (Canada), [1976] 2 F.C. 712; (1976), 66 D.L.R. (3d) 465 (T.D.); affd R. (Canada) v. The Queen (P.E.I.), [1978] 1 F.C. 533; (1977), 83 D.L.R. (3d) 492; 33 A.P.R. 477; 20 N.R. 91 (C.A.) on issue of standing.

CONSIDERED:

Attorney General of Quebec v. Blaikie et al., [1979] 2 S.C.R. 1016; (1979), 101 D.L.R. (3d) 394; 49 C.C.C. (2d) 359; 30 N.R. 225; Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714; (1981), 123 D.L.R. (3d) 554; 37 N.R. 158; Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3; (1992), 88 D.L.R. (4th) 1; [1992] 2 W.W.R. 193; 84 Alta. L.R. (2d) 129; 3 Admin. L.R. (2d) 1; 7 C.E.L.R. (N.S.) 1; 132 N.R. 321; affg [1990] 2 F.C. 18; (1990), 68 D.L.R. (4th) 375; [1991] 1 W.W.R. 352; 76 Alta. L.R. (2d) 289; 5 C.E.L.R. (N.S.) 1; 108 N.R. 241 (C.A.); overruling [1990] 1 F.C. 248; [1990] 2 W.W.R. 150; (1989), 70 Alta. L.R. (2d) 289; 4 C.E.L.R. (N.S.) 137; 30 F.T.R. 109 (T.D.).

REFERRED TO:

Naskapi-Montagnais Innu Assn. v. Canada (Minister of National Defence), [1990] 3 F.C. 381; (1990), 5 C.E.L.R. (N.S.) 287; 35 F.T.R. 161 (T.D.); Canadian Wildlife Federation Inc. v. Canada (Minister of the Environment), [1991] 1 F.C. 641; (1990), 6 C.E.L.R. (N.S.) 89; 121 N.R. 385 (C.A.); Cantwell v. Canada (Minister of the Environment) (1991), 6 C.E.L.R. (N.S.) 16; 41 F.T.R. 18 (F.C.T.D.); affd A-124-91, Pratte J.A., judgment dated 6/6/91, F.C.A., not yet reported; Can. Wildlife Fed. Inc. v. Can. (Min. of the Environment), [1990] 2 W.W.R. 69; (1989), 38 Admin. L.R. 138; 4 C.E.L.R. (N.S.) 1; 27 F.T.R. 159; 99 N.R. 72 (F.C.A.); affg (sub nom. Canadian Wildlife Federation Inc. v. Canada (Minister of the Environment)), [1989] 3 F.C. 309; [1989] 4 W.W.R. 526; (1989), 37 Admin. L.R. 39; 3 C.E.L.R. (N.S.) 287; 26 F.T.R. 245 (T.D.); Edwards, Henrietta Muir v. Attorney-General for Canada, [1930] A.C. 124 (P.C.); Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265; (1975), 12 N.S.R. (2d) 85; 55 D.L.R. (3d) 632; 32 C.R.N.S. 376; 5 N.R. 43; Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236; (1992), 88 D.L.R. (4th) 193; 2 Admin. L.R. (2d) 229; 5 C.P.C. (3d) 20; 8 C.R.R. (2d) 145; 16 Imm. L.R. (2d) 161; 132 N.R. 241; Vancouver Island Peace Society v. Canada, [1992] 3 F.C. 42 (T.D.); Canadian Wildlife Federation Inc. v. Canada (Minister of the Environment), [1990] 1 F.C. 595; (1989), 32 F.T.R. 81 (T.D.); affd [1991] 1 F.C. 641; (1990), 6 C.E.L.R. (N.S.) 89; 121 N.R. 385 (C.A.).

AUTHORS CITED

Cromwell, Thomas A., Locus Standi: A Commentary on the Law of Standing in Canada, Toronto: Carswell, 1986.

Cullen, Mary K. “The Transportation Issue, 1873-1973” in Francis W. P. Bolger ed., Canada’s Smallest Province: A History of P.E.I., Canada, John Deyell Company, 1973.

Emond, Paul D. “The Greening of Environmental Law” (1991), 36 McGill L.J. 742.

Hogg, Peter. Constitutional Law of Canada, 3rd ed., Toronto: Carswell, 1992.

APPLICATION for mandamus to compel the Minister of Public Works to undertake an Environmental Assessment and Review Process Guidelines Order (EARPGO), section 12 assessment with respect to the specific design of the bridge to be built between Prince Edward Island and the mainland, and for a declaration that discontinuance of the ferry service, in the absence of a constitutional amendment authorizing it, would breach a term of the Prince Edward Island Terms of Union. Application allowed.

COUNSEL:

Mark Freiman, William C. McDowell, Rodney Northey and Bonita M. Croft for applicant.

J. E. Thompson, Q.C., H. Lorne Morphy, Joseph C. de Pencier, Laurence A. Pattillo and Brian R. Evernden for respondents, Minister of Public Works, Minister of Transportation, and Minister of the Environment.

L. E. Clain, Q.C., Alan K. Scales, Q.C., Roderick H. Rogers and Meinhard Doelle for respondent Attorney General of Prince Edward Island.

P. A. MacNutt, Q.C. and P. Blanchet for respondent Attorney General of New Brunswick.

John I. Laskin and Douglas G. Hatch for respondent SCI Partnership.

SOLICITORS:

McCarthy Tétrault, Toronto, for applicant.

Deputy Attorney General of Canada for respondents, Minister of Public Works, Minister of Transportation, and Minister of the Environment.

Stewart McKelvey Stirling Scales, Charlottetown, for respondent Attorney General of Prince Edward Island.

Office of the Attorney General of New Brunswick, Fredericton, for respondent Attorney General of New Brunswick.

Davies, Ward & Beck, Toronto, for respondent SCI Partnership.

The following are the reasons for order rendered in English by

Reed J.: Two main issues are raised by this application: whether the respondent Minister of Public Works has complied with section 12 of the Environmental Assessment and Review Process Guidelines Order (Guidelines Order);[1] whether the Minister of Public Works, in signing the Northumberland Strait Crossing Project Federal-Provincial Agreement, on behalf of the Government of Canada, has entered into an agreement which will result in a breach of the constitutional obligations of the Prince Edward Island Terms of Union [R.S.C., 1985, Appendix II, No. 12] (the Terms of Union).[2] These issues are raised by activities related to the proposed construction and operation of a toll bridge between Cape Tormentine, New Brunswick, and Borden, Prince Edward Island. It is planned that the bridge will replace the ferry service which presently operates between those two locations.

Description of Events

In 1985 the federal government received three unsolicited proposals suggesting that an alternative to the Cape Tormentine-Borden ferry be established. These private interests proposed to design, finance, construct and operate a fixed crossing connecting Prince Edward Island to the mainland. Two of the suggestions were for the construction of a bridge; the third was for the construction of a rail tunnel. The Department of Public Works was asked to determine the feasibility of a fixed crossing and select a preferred option.

It was obvious that if a fixed crossing were to be built, environmental concerns would at some point have to be addressed. Sections 10 and 12 of the Guidelines Order state:

10. (1) Every initiating department shall ensure that each proposal for which it is the decision making authority shall be subject to an environmental screening or initial assessment to determine whether, and the extent to which, there may be any potentially adverse environmental effects from the proposal.

(2) Any decisions to be made as a result of the environmental screening or initial assessment referred to in subsection (1) shall be made by the initiating department and not delegated to any other body.

…

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

…

(c) the potentially adverse environmental effects that may be caused by the proposal are insignificant or mitigable with known technology, in which case the proposal may proceed or proceed with the mitigation, as the case may be;

(d) the potentially adverse environmental effects that may be caused by the proposal are unknown, in which case the proposal shall either require further study and subsequent rescreening or reassessment or be referred to the Minister for public review by a Panel;

(e) the potentially adverse environmental effects that may be caused by the proposal are significant, as determined in accordance with criteria developed by the Office in cooperation with the initiating department, in which case the proposal shall be referred to the Minister for public review by a Panel; or

(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. [Underlining added.]

In March of 1987 the Department of Public Works hired consultants to prepare what was called a generic initial environmental evaluation (GIEE). It was contemplated that that study would evaluate the proposals for a fixed crossing between Cape Tormentine and Borden at the concept stage and that this study would be followed by a specific environmental evaluation of whatever design was ultimately chosen for construction. The specific evaluation was to occur once the specific proposal and its details were known. It is clear that it was thought that this specific assessment was required in order to comply with the Guidelines Order. The letter of transmittal, dated March 15, 1988, to the Department of Public Works from the consultants, which accompanied the GIEE when it was prepared, makes it clear that that report was predicated on the assumption that a specific evaluation pursuant to the Guidelines Order would subsequently be undertaken:

The report takes into account the review comments of the various provincial and federal regulatory agencies, and includes a summary of the public participation aspects of the project to date including those directly associated with the environmental review process. The Generic IEE has been used as the basis for defining the environmental requirements included in the Proposal Call to prospective developers.

The Generic IEE was prepared in keeping with the requirements of the Federal Environmental Assessment and Review Process. This generic IEE has found that, at the concept level, the predicted environmental effects are not significant. After a developer is selected, a Specific IEE should be prepared for the design level environmental assessment and planning. This finding must be confirmed by the Specific IEE and detailed project design before the project should proceed. [Underlining added.]

The report itself indicated that there were, at the time of its writing, information deficiencies in three categories: those relating to the project description, which would be cured when a specific design was chosen; those relating to specific aspects of the environment, with respect to which a number of studies had already been commissioned; those relating to site-specific environmental data which would be necessary to evaluate the specific proposal when its details were known. The report also contained a description of what its authors expected the environmental evaluation process to be:

Public Works Canada will screen the design proposals for their environmental acceptability and compliance with the environmental requirements. In order to pass to the next stage of the proposal call, the costing stage, the developers must substantiate their approach and commitment to safe environmental management.…

After submission of the costed proposals, Public Works Canada will select the successful developer. At that time, this developer will submit the design and associated information for public review. Simultaneously, the developer, assisted by Public Works Canada, will prepare and submit the Specific IEE and design and construction guidelines. This will give the public time to learn about the selected design at the earliest time possible and to study it prior to receiving the Specific IEE. It is planned that public information sessions will be held during that period in October 1988. By doing this, the selected developer will be able to incorporate public comments into the Specific IEE in December. [Underlining added.]

The concluding paragraph of the report states:

Specific IEE

The successful developer will be required to prepare and submit the Specific IEE for regulatory and public review.… There will … be a much greater level of detail in the descriptions of such aspects as monitoring, protection planning, compensation, and contingency planning. In the design proposals, the developers must describe how they will proceed to complete the Specific IEE. Critical to the submission of the Specific IEE will be the public information and consultation process.…

The Specific IEE will thus eliminate many of the uncertainties inherent in this Generic IEE and it will be a comprehensive document which goes beyond where the traditional IEE ends. The Specific IEE will have benefitted from the receipt of data not available for the Generic IEE (geochemical, ice, and some fisheries studies), from the extensive agency review and public participation in the draft Generic IEE, and from the final Generic IEE which has responded to those reviews and which has identified further information requirements necessary to strengthen the basis of its conclusions. The process leading to the production of the Specific IEE including the review process should insure the document is comprehensive and addresses all concerns. [Underlining added.]

On March 28, 1988 the Minister of Public Works issued a proposal call to seven developers who had previously been identified through a screening process which had followed a call for expressions of interest. The seven in question had been determined to be capable of constructing a fixed crossing. The proposal call document, which called for concept designs, is dated March 15, 1988 and it will be referred to by that date.

The proposal call contained detailed requirements respecting the environmental considerations which would have to be addressed in accordance with the factors identified by the GIEE. The description of the environmental requirements set out in the proposal call indicated that many of the project assumptions which were made in developing the GIEE might or might not be valid for a specific developer. The proposal call also indicated that the list of concerns identified by the GIEE were not necessarily exhaustive. It was clearly contemplated that a design specific environmental evaluation would eventually be undertaken. It was also envisaged that the successful developer would be required to prepare an environmental management plan in connection with the project.

The responses to the proposal call which were received related to seven different proposals, one for a tunnel and six for a bridge. The response submitted by SCI contemplated that an environmental evaluation of the final detailed design, once it was prepared, would take place.

It is necessary to describe the activity which was undertaken by government officials during much of this same period of time. An interprovincial-interdepartmental committee of officials was struck early in the process (January or February, 1987) to review, monitor and assess the environmental aspects of a fixed crossing. This was initially called the Environmental Sub-Committee of the Technical Working Group, then the Environmental Evaluation Working Group and later the Environmental Committee (Environmental Committee). It was comprised of representatives from the federal departments of Public Works, Environment, Fisheries and Oceans, and Transport (Canadian Coast Guard), as well as representatives from the departments of Environment of New Brunswick, Nova Scotia and Prince Edward Island. Another committee was struck to review socio-economic concerns. This was initially called the Regional Industrial Benefits Committee and later just the Socio-Economic Committee. The Environmental Committee and the Socio-Economic Committee were sub-committees of a larger umbrella group, the Project Planning Committee. The conclusions of this Committee were reported to the Minister of Public Works through a project team which had been formed in the Department of Public Works. This team reported through the relevant Assistant Deputy Minister to the Deputy Minister and thus to the Minister of Public Works.

In the spring of 1988 the Environmental Committee assessed the seven proposals which were received in response to the proposal call of March 15, 1988. This was done by reference to the environmental factors identified in the GIEE report. I should note that while the proposal which was filed by SCI in response to the March 15 proposal call was a conceptual design, it contained a certain amount of detail both with respect to the proposed design of the bridge and with respect to environmental considerations. As has been noted, that response also contemplated that an environmental evaluation would be prepared of the final design when it was available. For example, in the response by SCI, of August 19, 1988, to queries from the Environmental Committee the following was said:

Because of the environmentally sensitive nature of the Cape Tormentine area, public access was not provided in our original design. Such access will, however, be facilitated by the addition of suitable vehicle pullouts. The nature and extent of access provided will have to be decided on the basis of a very detailed assessment of the potential impact of public access during the preparation of the specific IEE.

…

It is the intention of SCI on the above land component of the bridge to control drainage in a manner which prevents uncontrolled release of run-off and leaked hazardous material. A drainage control management program will be developed, incorporating settling basins and/or containment ponds. These concepts will be developed during preparation of the specific IEE.

…

It was specifically stated in the Eastern Designers and Company report that littoral sediment transport will probably not be affected by the bridge. However that statement was tempered by several provisos. These include the final pier spacing and clearance between berms, and the necessity for more detailed bathometry and sediment characteristics in the nearshore.… The Eastern Designers and Company study suggests and SCI agrees that physical model studies are required to establish/verify the correct spacings. It is proposed that a study of these possible problems, to confirm that littoral sediment transport will not be affected, be conducted as part of the specific IEE.…

On September 30, 1988 it was announced that three of the seven developers had been chosen to compete further (on pricing) for the project. The three proposals were all for a bridge. The background material to the Minister’s press communique indicates that after selection of the winning design a specific environmental evaluation of that design would take place.

On January 12, 1989 it was announced that instead of proceeding to a specific environmental evaluation, as had originally been planned, the Minister of Public Works would ask the Minister of Environment to refer the fixed crossing project to an Environmental Assessment Panel pursuant to the Guidelines Order. The Minister stated that this was being done because of the high public concern respecting the potential environmental effects of any such crossing. I should note that the GIEE had indicated that the environmental risks associated with a tunnel were less than those associated with a bridge. Section 13 of the Guidelines Order provides:

13. Notwithstanding the determination concerning a proposal made pursuant to section 12, if public concern about the proposal is such that a public review is desirable, the initiating department shall refer the proposal to the Minister for public review by a Panel.

On April 28, 1989 a Panel was appointed and asked to undertake a review of the potential environmental impacts resulting from the construction of a fixed crossing between Cape Tormentine and Borden. The Panel was given authority to examine the beneficial and harmful effects of a bridge as well as the “effects of other conceptual solutions, including a road tunnel, and the reasons why such conceptual solutions were rejected”. The Panel was provided, by the Department of Public Works, with a document, prepared by consultants, entitled Bridge Concept Assessment. The Bridge Concept Assessment document regurgitated much of the descriptive material which was in the GIEE and referred to the proposal call of March 15, 1988.

The Department of Public Works took the position that specific information with respect to the three proposals which at that time was in the hands of Public Works could not be provided to the Panel because that information was confidential: the three developers were still in competition with each other. The Panel was given material which had been obtained since the completion of the GIEE and was told that the project which was eventually chosen would have to meet the environmental concerns set out in the GIEE and the proposal call.

Under the heading “Project Description” in the Bridge Concept Assessment document the following is found:

The “project description” provided below is expressed in terms of the project’s requirements. These requirements were articulated in the Proposal Call document, issued on 15 March, 1988, and the subsequent addenda, Nos. 1-6, to which developers responded and against which proposals were evaluated. The development of the requirements, over the period 1986-1988, involved considerable input from a wide range of sources, including:

•€€€€€€ extensive consultation with the public, and federal and provincial departments and agencies;

•€€€€€€ the application of the EARP, particularly in addressing reviewers’ comments on the draft GIEE;

•€€€€€€ close adherence to the operating standards of Transport Canada, PWC and the corresponding provincial agencies;

•€€€€€€ the experience of the industry obtained through the consultative process with the private sector and the combined experience of the Delcan-Stone & Webster Joint Venture team; and,

•€€€€€€ a review of other similar operating facilities.

The completion of the GIEE and the Proposal Call documents marked a major achievement in that, with these two documents an extensive public and private sector consultation concerning project viability and standards had been successfully completed. What emerged were two documents, with broad general approval, defining the acceptable limits of any fixed crossing proposal.

In essence the tools needed for the next phase of the process were now ready to be used.

In the following sections, the “generic” bridge project is defined in terms of the requirements of the Proposal Call and the GIEE which the selected developer will be required to follow.

The final specific design will be reassessed by the developer against these requirements and any new ones that may emerge as a result of panel recommendations and other unanticipated “real” project activities. From these the developer will be required to detail the project-specific Environmental Management Plan which must receive final approval before the project proceeds.

The text will reflect the careful planning undertaken to assure technical reliance and environmental sensitivity during all stages of the work.

On August 16, 1989 the Panel wrote to Public Works complaining that the information which had been provided to it was not sufficient to allow for an informed decision:

Having examined the BCA documents ourselves and having considered carefully the opinions of our technical experts, of interested departments of government and of the public, the Panel has concluded that the information submitted to date is not sufficient to support thorough, meaningful discussion of all pertinent issues identified either in the Panel’s terms of reference or by participants in the review.

The Panel’s conclusions follow serious consideration of the nature of this review as well as of existing documentation. The Northumberland Strait Crossing public review takes place uncharacteristically in the middle of a process which precludes the Panel gaining access to more site-specific information. The Generic Initial Environmental Evaluation referred to a specific initial environmental evaluation process as the means by which project-specific issues would be addressed. That process will not now take place. Also, the “Environmental Management Plans”, and the “Environmental Protection Plans” included in the project proposals are not in the public domain and are therefore unavailable to the Panel. In the absence of that information, the Panel concluded that some of the work that would otherwise have fallen to the Specific IEE now rests in the domain of the Panel.

The Panel believes that it must have further information on certain subjects in order to reach conclusions on the following matters:

(1)  Where potential environmental impacts of the proposed fixed crossing have been identified, mitigative measures have been proposed, and residual (i.e., unmitigable) impacts have been described: is the situation acceptable, from the point of view of the mandate of the Panel?

(2)  Where it is impossible to obtain, within a reasonable period of time, sufficient additional information to enable qualified persons to predict the nature of any impacts of the proposed fixed crossing on a particular part of the environment: is the uncertainty of that situation acceptable, from the point of view of the mandate of the Panel?

I wish to advise you that the Panel has also examined the reasons, as stated by your Department, for having eliminated from further consideration the option of a tunnel (either a rail tunnel or a road tunnel) as a fixed crossing. The Panel has concluded that it is not prepared to accept those reasons as a final statement on that subject at this time, and has therefore decided to retain the tunnel option as an item for further consideration and possible discussion during the remainder of this public review. [Underlining added.]

Nine pages of questions followed. The Department of Public Works responded to many of the questions but still refused to provide specific information concerning the three concept designs under consideration.

The Panel’s report was made public on August 15, 1990. The Panel agreed that there was a need for an improved transportation link between Prince Edward Island and New Brunswick but concluded that the risk of harmful environmental effects arising from the proposed bridge concept were unacceptable. The Panel recommended that the bridge project not proceed. It noted however that, subject to a favourable independent environmental review, a tunnel concept might be an acceptable transportation link, as could an improved ferry service. A summary of the negative aspects of the project as found by the Panel reads:

The Panel, … has … identified several potentially harmful effects which, taken together, are cause for serious concern. One of these is the possible delay in ice-out due to the proposed bridge. The Panel believes that the scenario of a one- to two-week ice-out delay carries an unacceptable risk of occurrence. Such a delay could cause physical interference with important fisheries and alter the coastal micro-climate upon which local agriculture depends.

With regard to the marine ecosystem of the Northumberland Strait, the Panel concludes that scouring from bridge-induced nearshore ice causes a risk of increased damage to spawning grounds. The Panel also concludes that an unacceptable risk of loss of lobster production could result from the lowering of water temperatures by bridge-induced ice-out delay. Other concerns include effects of bridge construction on fish migratory patterns and effects of a major accidental spill of hazardous materials during bridge construction and operation.

Regarding the effects on more than 600 Marine Atlantic ferry workers who would become unemployed once the proposal became operational, the Panel concludes that socially acceptable solutions would not likely be found for many of those workers.

With respect to the process which had been followed, the Panel wrote:

In its examination of the Northumberland Strait Crossing Project, PWC, as the federal decision-making authority, chose to refer its project for public review after four of seven crossing proposals had been rejected, including the only tunnel proposal. The referral also came before a choice was made from the three remaining proposals.

The Panel believes that the project could have been referred for public review at two other stages in the evolution of the project. A referral could have been made at the time of the Generic Initial Environmental Evaluation, before the call for proposals, when both bridge and tunnel alternatives were open for full examination. PWC could also have referred a specific project for review after selecting one of the three remaining proposals. This would have had the advantage of more specific project information. It would also have had the disadvantage of less flexibility in incorporating recommendations of a panel into the project’s final design.

The Panel considers it regrettable that the timing of the referral created a situation in which the Panel could neither examine all alternatives equally, nor review potentially valuable information contained in a specific developer’s proposal, including an environmental management plan.

The Panel believes that for a project of this magnitude and complexity, there should be a two-stage panel review—one at the conceptual stage and one at the specific proposal stage. [Underlining added.]

On November 21, 1990 the government issued a public response to the Panel’s recommendations, as it is required to do pursuant to paragraphs 33(1)(c), (d) and (e) of the Guidelines Order:

33. (1) It is the responsibility of the initiating department in a public review [conducted by a Panel] to

…

(c) … decide, in cooperation with any other department, agency or board of the Government of Canada to whom the recommendations of a Panel are directed, the extent to which the recommendations should become a requirement of the Government of Canada prior to authorizing the commencement of a proposal;

(d) … ensure, in cooperation with other bodies concerned with the proposal, that any decisions made by the appropriate Ministers as a result of the conclusions and recommendations reached by a Panel from the public review of a proposal are incorporated into the design, construction and operation of that proposal and that suitable implementation, inspection and environmental monitoring programs are established;…

(e) … determine in what manner the decisions made under paragraph (c) and those referred to in paragraph (d) are to be made public. [Underlining added.]

The response noted that the Panel had studied a generic bridge concept and not the specific proposals which had been submitted to the Department of Public Works by the developers. It noted that some of the Panel’s concerns, therefore, did not apply to the specific proposals which were being considered by Public Works. It stated that those proposals already met or exceeded the environmental standards which had been recommended. The government emphasized that the eventually successful developer would have to prepare a comprehensive environmental management plan with respect to the final proposal before that proposal would proceed. A commitment was given that the developer would be required to obtain the approval of the relevant federal and provincial authorities for this plan and consult with the public in its preparation. The government stated that it did not accept the Panel’s recommendation that the bridge project should not proceed but that the issue of ice-out delay, which the Panel had identified as a significant concern, would be studied further. Some explanation was given as to why the government had decided not to accept or act upon the Panel’s other recommendations.

A group of independent experts (the Ice Committee) was asked to assess the validity of the modelling which had been done with respect to forecasting ice-out delay and to review the three bridge proposals which were then in the hands of Public Works. The Ice Committee concluded that all three proposals met the two-day ice-out delay over one hundred years criterion which had been stated by the Panel to be acceptable. The Ice Committee’s final report was submitted on December 20, 1991. It was made available to the public on January 30, 1992.

On December 20, 1991 the Environmental Committee also reported to Public Works. It had reviewed, again, each of the three concept proposals which were being considered to ensure that they complied with the environmental criteria which had been established by the GIEE and with the government’s response to the Panel report. The report of the Committee was made available to the public. The report stated:

The Environmental Committee unanimously concluded that given the information to date, each of the developers has the capability to construct a bridge in such a way as to create only insignificant or mitigable impacts on the bio-physical environment.

The report also stated that the Environmental Committee intended to ensure that all environmental concerns were appropriately addressed in the successful developer’s environmental management plan. The report went on to state:

All three developers were able to convince the Environmental Committee that they are capable of completing an acceptable EMP [Environmental Management Plan]. As part of the process to prepare this Plan, the developer must consult with the public and address legitimate environmental concerns raised during the consultation process. Furthermore, Financial Closing can only occur if the EMP has been reviewed by the Environmental Committee and approved by the Project Implementation Committee.

On January 30, 1992 the Minister of Public Works announced that all three proposals met the environmental criteria developed for the fixed link bridge project which had been established by the government in response to the Panel’s report. He announced that they had been reviewed by an interdepartmental/intergovernmental committee of officials who also had concluded that the three proposals met those requirements. The three developers were then invited to submit price bids for their respective proposals.

On May 27, 1992, the respondent Strait Crossing Inc. (SCI) of Calgary was determined to be the developer who was seeking the lowest annual subsidy and on July 17, 1992 the Minister of Public Works announced that negotiations with SCI, as the lowest bidder, would be entered into for the purpose of settling upon a financially acceptable proposal. Financial closing is scheduled for March 31, 1993.

On December 11, 1992, Bill C-110 (the Northumberland Strait Crossing Act) received first reading in the House of Commons. The proposed legislation grants authority to the Minister of Public Works, on behalf of Her Majesty in Right of Canada, to enter into agreements (for example with SCI) respecting the proposed fixed crossing. Relevant sections provide:

4. …

(2) The agreements entered into under this section may include

(a) provisions respecting the design, maintenance, financing, development, construction and operation of the crossing;

(b) undertakings in relation to industrial and employment benefits;

(c) provisions respecting the tolls, fees or other charges that may be imposed in respect of the crossing; and

(d) such other terms and conditions as the Minister considers desirable.

…

7. (1) Subject to subsection (2), there shall be paid out of the Consolidated Revenue Fund, for the purpose of paying an annual subsidy in respect of the crossing in accordance with an agreement, in each of the thirty-five fiscal years beginning with the fiscal year determined for that purpose in accordance with the agreement, on the dates set out in the agreement, an amount not exceeding an aggregate sum of forty-two million in 1992 dollars, adjusted, in accordance with the agreement, using the Consumer Price Index.

…

9. The Minister of Transport may, with the approval of the Governor in Council, make regulations prescribing, or prescribing the manner of calculating, the tolls, fees or other charges in respect of the use of the crossing that may be imposed on or after the lease of land and other property referred to in section 6 terminates in accordance with the terms and conditions of the lease.

On December 16, 1992, the Minister of Public Works, on behalf of the Government of Canada, entered into the Northumberland Strait Crossing Project Federal-Provincial Agreement. The Minister was exercising authority which had been granted to him by Order in Council.[3] The other parties to the agreement are the Government of Prince Edward Island and the Government of New Brunswick. That agreement states, in part:

6.(1) Public participation in the Federal Environmental Assessment Process (EARP) was undertaken to the satisfaction of Canada, Prince Edward Island and New Brunswick. Canada, through its Department of Fisheries and Oceans, Environment Canada and Transport Canada, in conjunction with the Provinces of New Brunswick and Prince Edward Island has deemed that a fixed crossing can be constructed in an environmentally acceptable manner.

6.(2) The construction and operation of the Fixed Crossing shall comply with the environmental laws, regulations and relevant environmental codes of practice of the Provinces of New Brunswick and Prince Edward Island and the government of Canada, as well as other specific requirements identified by means of the evaluation conducted under the Federal Environmental Assessment and Review Process (EARP).

…

10. Prince Edward Island recognizes that Canada has the responsibility for establishment of tolls for the fixed crossing. In exercising this responsibility, Canada has determined to set tolls for the use of the fixed crossing during the term of the operation by the Developer of the fixed crossing by a toll formula as generally described in Appendix “E” hereto. Canada will consult with Prince Edward Island to ensure that such tolls are fair and reasonable.

…

13.(1) Nothing in this agreement limits in any way the constitutional obligations of Canada as contained in the Terms of Union admitting Prince Edward Island into Canada:

“That the Dominion government shall assume and defray all the charges for the following services, viz: efficient steam service for the conveyance of mails and passengers, to be established and maintained between the Island and the mainland of the Dominion, winter and summer, thus placing the Island in continuous communication with the intercolonial Railway and the railway system of the Dominion”.

13.(2) Nothing in this agreement prejudices or limits the right of Prince Edward Island at any time to seek judicial interpretation, by way of declaration or otherwise, of the import of the Terms of Union identified in subsection 13(1) of this Agreement.

13.(3) The parties agree that the fixed crossing will replace the ferry service between Borden, Prince Edward Island, and Cape Tormentine, New Brunswick. Prince Edward Island and Canada acknowledge that Canada is undertaking this fixed crossing with the intention that its responsibilities under the Terms of Union are met. Canada nevertheless acknowledges that it is responsible for ensuring the Province of Prince Edward Island remains in continuous communication with the mainland through the operation of the fixed crossing. The parties also agree to take whatever steps are necessary to give effect to the terms of this subsection.

On December 21, 1992, SCI released a draft environmental management plan. This related not to the final plan for the bridge but to the concept submission of June 13, 1988 and August 1988 which had been filed in response to the proposal call of March 1988. The draft stated:

At this point in time, only a conceptual design for the bridge is being contemplated. Similarly, construction methodology has only been refined to the conceptual level. Detailed design and construction methods will proceed in earnest for project components, which will commence in the 1993 construction season.

Copies of the draft plan were distributed to public offices throughout Atlantic Canada. SCI established a toll-free number where people could call to make enquiries and request copies of the document. Copies of the plan were also forwarded to special interest groups, including the applicant. Private and public meetings to discuss the plan were held in Atlantic Canada between January 11 and 21, 1993. The Environmental Committee also reviewed the draft.

The supplementary affidavit of J. David Pirie, dated February 5, 1993, filed in support of SCI’s position explains the scope of the draft environmental management plan:

The level of design detail in the draft EMP is consistent with the level of detail used in describing the relatively short list of bridge design parameters or assumptions used in the GIEE and the BCA. The level of detail in the draft EMP was appropriate to show the public how SCI’s proposal compared with the generic bridge design assumptions. [Underlining added.]

SCI prepared its final environmental management plan which is not appreciably different from the draft plan in so far as the detail concerning the bridge is concerned. That plan contains nine substantive chapters. They are entitled: project description; environmental protection planning; contingency and response planning; environmental orientation and education program; reporting procedures; environmental effects monitoring (EEM); public information and consultation; compensation issues; regulatory approvals, authorizations and permits. The plan describes the bridge project to which it relates:

The following sections provide preliminary details regarding the conceptual design of the major project components, method of construction, and the scheduling and siting of project activities during the pre-construction, construction and operation phases as proposed by SCI.

The text of the environmental management plan describes its purpose:

… to outline proposed environmental management activities to be implemented through the life of the proposed project to minimize the potential effects of the project on the environment. The Environmental Management Plan is intended to be a dynamic, life-of-project document which will evolve and be updated to meet the changing needs of the project as it proceeds through the pre-construction, construction and operation phases. [Underlining added.]

This environmental management plan was submitted to the Environmental Committee on February 15, 1993 and must be approved before the financial closing on March 31, 1993 can take place.

On January 4, 1993, SCI submitted for Environmental Committee review a document called a final Environmental Component Report. The purpose of this report is to provide “an environmental review of the project components which differ substantially from or for which there were no specific details available during the federal environmental assessment of the bridge proposal”. The report states that mitigation measures and monitoring programs will be provided “to assist the development of a comprehensive EMP (environmental management plan), particularly the detailed aspects of the EMP which will be developed and implemented over the life of the project.” As I understand it, this document is part of the documentation required by the environmental assessment regulations of the province of New Brunswick and the province of Prince Edward Island.

The evidence indicates that it is not planned to prepare final designs for the bridge until after financial closing with the federal government is concluded. It is stated that the Ice Committee will review and approve the final design plans before construction commences. It is planned that the Environmental Committee will also be required to approve them. In addition, those plans will have to meet federal and provincial regulations such as those required by section 5 of the Navigable Waters Protection Act, R.S.C., 1985, c. N-22.

Considerations Re: Environmental Issue

It is useful to set out the relevant provisions of the Guidelines Order in a comprehensive fashion:

2. In these Guidelines,

“Environmental Impact Statement” means a documented assessment of the environmental consequences of any proposal expected to have significant environmental consequences that is prepared or procured by the proponent in accordance with guidelines established by a Panel;

“department” means, subject to sections 7 and 8,

(a) any department, board or agency of the Government of Canada, and

(b) any corporation listed in Schedule D to the Financial Administration Act and any regulatory body;

“initiating department” means any department that is, on behalf of the Government of Canada, the decision making authority for a proposal;

“Minister” means the Minister of the Environment;

“Office” means the Federal Environmental Assessment Review Office that is responsible directly to the Minister for the administration of the Process;

“Panel” means an Environmental Assessment Panel that conducts the public review of a proposal pursuant to section 21;

“Process” means the Environmental Assessment and Review Process administered by the Office;

“proponent” means the organization or the initiating department intending to undertake a proposal;

“proposal” includes any initiative, undertaking or activity for which the Government of Canada has a decision making responsibility.

Scope

3. The Process shall be a self assessment process under which the initiating department shall, as early in the planning process as possible and before irrevocable decisions are taken, ensure that the environmental implications of all proposals for which it is the decision making authority are fully considered and where the implications are significant, refer the proposal to the Minister for public review by a Panel.

4. (1) An initiating department shall include in its consideration of a proposal pursuant to section 3

(a) the potential environmental effects of the proposal and the social effects directly related to those environmental effects, including any effects that are external to Canadian territory; and

(b) the concerns of the public regarding the proposal and its potential environmental effects.

(2) Subject to the approval of the Minister and the Minister of the initiating department, consideration of a proposal may include such matters as the general socio-economic effects of the proposal and the technology assessment of and need for the proposal.

5. (1) Where a proposal is subject to environmental regulation, independently of the Process, duplication in terms of public reviews is to be avoided.

(2) For the purpose of avoiding the duplication referred to in subsection (1), the initiating department shall use a public review under the Process as a planning tool at the earliest stages of development of the proposal rather than as a regulatory mechanism and make the results of the public review available for use in any regulatory deliberations respecting the proposal.

Application

6. 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.

…

INITIAL ASSESSMENT

Initiating Department

10.(1) Every initiating department shall ensure that each proposal for which it is the decision making authority shall be subject to an environmental screening or initial assessment to determine whether, and the extent to which, there may be any potentially adverse environmental effects from the proposal.

(2) Any decisions to be made as a result of the environmental screening or initial assessment referred to in subsection (1) shall be made by the initiating department and not delegated to any other body.

11. For the purposes of the environmental screening and initial assessment referred to in subsection 10(1), the initiating department shall develop, in cooperation with the Office,

(a) a list identifying the types of proposals that would not produce any adverse environmental effects and that would, as a result, be automatically excluded from the Process; and

(b) a list identifying the types of proposals that would produce significant adverse environmental effects and that would be automatically referred to the Minister for public review by a Panel.

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

(a) the proposal is of a type identified by the list described under paragraph 11(a), in which case the proposal may automatically proceed;

(b) the proposal is of a type identified by the list described under paragraph 11(b), in which case the proposal shall be referred to the Minister for public review by a Panel;

(c) the potentially adverse environmental effects that may be caused by the proposal are insignificant or mitigable with known technology, in which case the proposal may proceed or proceed with the mitigation, as the case may be;

(d) the potentially adverse environmental effects that may be caused by the proposal are unknown, in which case the proposal shall either require further study and subsequent rescreening or reassessment or be referred to the Minister for public review by a Panel;

(e) the potentially adverse environmental effects that may be caused by the proposal are significant, as determined in accordance with criteria developed by the Office in cooperation with the initiating department, in which case the proposal shall be referred to the Minister for public review by a Panel; or

(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.

13. Notwithstanding the determination concerning a proposal made pursuant to section 12, if public concern about the proposal is such that a public review is desirable, the initiating department shall refer the proposal to the Minister for public review by a Panel.

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.

15. The initiating department shall ensure

(a) after a determination concerning a proposal has been made pursuant to section 12 or a referral concerning the proposal has been made pursuant to section 13, and

(b) before any mitigation or compensation measures are implemented pursuant to section 13,

that the public have access to the information on and the opportunity to respond to the proposal in accordance with the spirit and principles of the Access to Information Act.

16. The initiating department, in consultation with the Office, shall establish written procedures to be followed in order to make a determination under section 12 and shall provide the Office on a regular basis, with information, on its implementation of the Process with respect to the proposals for which it is the decision making authority.

…

Public Review

20. Where a determination concerning a proposal is made pursuant to paragraph 12(b), (d) or (e) or section 13, the initiating department shall refer the proposal to the Minister for public review.

21. The public review of a proposal under section 20 shall be conducted by an Environmental Assessment Panel, the members of which shall be appointed by the Minister. [Underlining added.]

There was initially some uncertainty as to the nature and scope of application of these guidelines. The jurisprudence has now established that while there is no obligation on the government to accept a Panel’s recommendations,[4] assuming the environmental review process proceeds to that stage, a screening or initial assessment by the initiating department in accordance with sections 3, 10 and 12 is mandatory.[5]

The dispute between the parties is very simple. The respondents argue that the Guidelines Order has been complied with; the applicant argues that it has not.

The respondents argue that the preparation of the GIEE by the consultants and its subsequent acceptance and adoption by Public Works was a section 12 screening and assessment of “the proposal”. That study concluded that the fixed crossing proposal would have insignificant or mitigable environmental impacts, therefore, no referral to an Environmental Assessment Panel was necessary. Nevertheless a referral to a Panel was made pursuant to section 13 of the Guidelines Order. The government rejected the Panel’s recommendations, as it is entitled to do, but accepted the criticism relating to the conclusions which had been drawn with respect to ice-out delay. Investigations and further study in that regard were undertaken and the results are being implemented. Consequently, it is stated, the Guidelines Order has been complied with.

It is useful to quote from some of the cross-examination of the Project Manager, James Feltham, given February 18, 1993, with respect to the Minister of Public Works’ position:

13. Q. As part of the determination under section 33 [the government’s response to the Panel’s recommendations], will there be a determination under section 12 of the Environmental Assessment Review Process Guideline order?

A. We don’t intend at this time.

14. Q. You say “at this time”, is there a circumstance where you foresee making a section 12 determination?

A. Not at this time.

15. Q. And there has been, I take it, a decision that there will be no referrals of the issue of potential effects of the SCI proposal for a fixed link bridge to a panel under the Environmental Assessment Review Guidelines?

A. Not at this time.

16. Q. When was a decision made not to refer this matter or not to undertake a section 12 decision?

A. On the SCI proposal?

17. Q. Yes.

A. The consideration of that decision is still ongoing.

18. Q. By whom?

A. By us and our advisors.

19. Q. “Us” is a compendius [sic] term, who is “us”?

A. The Department of Public Works.

20. Q. On what basis is that decision being considered?

A. On the basis of the information provided by the developer, the environmental management plan, the companion documents that are part of the requirements to the environmental management plan, and the review of those documents as they compare with the project that was reviewed by the panel.

21. Q. I take it that if that process discovers that there are significant differences between the risks that were assessed by the panel and the risks presented by the SCI proposal that there will be a section 12 determination?

A. That’s a what if, sir, and we have no knowledge of that at this time.

The cross-examination continued:

… there was to be a consideration under section 12 whereby the initiating department was to screen or assess the proposal in question and come to a determination as to which of the categories of section 12 it fulfilled.

MR. PATTILLO [counsel for the respondent Ministers]: Right.

39. MR. FREIMAN [counsel for the applicant]: In order to attempt or to accomplish such a determination, it was necessary in order to be able to determine whether the project fell under section 12(E) to develop criteria in co-operation with Public Works Canada that would define what potentially significant adverse environmental effects were. I am asking Mr. Feltham whether he has a copy of those criteria.

THE DEPONENT: There were no criteria as such developed between us and the FEARO [Federal Environmental Assessment Review Office] office. A FEARO representative was an observer on our project planning committee meetings, and was very much aware of the studies that we had commissioned for the purpose of doing a section 12 determination.

BY MR. FREIMAN:

40. Q. Can you tell me when was there a section 12 determination?

A. At the time of publishing the “Generic Initial Environment Evaluation”.

41. Q. What form did that determination take?

A. It took the form of the publication of the “Generic Initial Environment Evaluation” on the project. I believe the date on that publication is March 15th.

…

47. Q. Do I understand then that that letter in effect constitutes the determination that the effects were not significant for a reading of section 12?

A. The letter contains the advice of the consultants that in line with the terms of reference of their commission with us that in their opinion those impacts were insignificance [sic], yes. We adopted that as our own position on this project and published this final generic assessment.

48. Q. Can you show me where you adopted that?

A. We adopted it by making this public as the document of fact.

Contrary to Mr. Feltham’s position, counsel for the applicant argues that the GIEE is not a section 12 determination with respect to the SCI bridge which is actually going to be built and that a review of a fixed crossing (bridge or tunnel) at the conceptual level does not meet the requirement of the Guidelines Order. Counsel for the applicant argues that a “proposal” for the purposes of the Guidelines Order is meant to be specific and should contain the specific design details of the bridge which it is actually planned to build. Alternatively, he argues that if the study of a link at the conceptual stage does constitute a proposal for the purposes of the Guidelines Order, then the actual design which is finally chosen for construction is a separate and distinct, albeit related, proposal which must also be assessed in accordance with section 12 of the Guidelines Order.

With respect to what constitutes a “proposal” for section 12 purposes, the Department of Public Works defines the “proposal” as the mandate given to it “to study the feasibility of a fixed crossing and to choose the preferred option”. The respondents note that a broad definition is given to the word “proposal” in section 2 of the Guidelines Order (“‘proposal’ includes any initiative, undertaking or activity for which the Government of Canada has a decision making responsibility”) [underlining added] and that the description of the “proposal” which has been adopted by Public Works accords with that definition. It is argued that the Public Works definition also accords with the admonition in section 3 of the Guidelines Order that “the initiating department shall, as early in the planning process as possible and before irrevocable decisions are taken, ensure that the environmental implications of all proposals for which it is the decision making authority are fully considered”. [Underlining added.] It is argued that the broad definition of “proposal” adopted by Public Works is consonant with subsection 5(2) which states:

5. …

(2) For the purpose of avoiding the duplication referred to in subsection (1), the initiating department shall use a public review under the Process as a planning tool at the earliest stages of development of the proposal rather than as a regulatory mechanism. [Underlining added.]

Also it is argued that Public Works’ actions made eminent sense; they allowed developers to respond to environmental concerns when preparing their initial concept design rather than proceeding through to a final design stage and, after spending a lot of money, find out that that design was not acceptable for environmental reasons.[6]

Counsel for the applicant, on the other hand, argues that as a practical matter, a design for the construction of an environmentally sensitive project must be assessed at a sufficient stage of specificity to allow a complete evaluation to occur. It is argued that the wording, for example, of sections 33 and 34 of the Guidelines Order, makes it clear that the Guidelines are addressed to specific proposals. Section 34 describes the responsibilities of the “proponent” when a public review takes place, before a Panel, as including, for example, the preparation of an Environmental Impact Statement and the implementation of a public information program. Paragraph 33(1)(a) imposes on the “initiating department” the responsibility of making sure that “the proponent” fulfils its responsibilities. The GIEE describes the process which was envisaged at the time that report was prepared:

The Generic IEE describes the conceptual design of two fixed link alternatives: a bridge and a road tunnel. Much of the detailed design has not been completed, however there is information about the types and locations of activities required to build a bridge or tunnel. Information is also available on the existing natural and human environments.

…

After the competitive proposal call, a single developer will be selected to proceed with the project. This developer will prepare the Specific IEE which will include all technical, operational and maintenance information associated with each specific project activity. The selected developer would then be considered the proponent and would be required to obtain environmental approval of the specific design. At that time, Public Works Canada will serve in a project management and watchdog role on behalf of the Government of Canada. [Underlining added.]

It is not disputed that it is preferable to identify potential environmental concerns relating to a project before private sector developers (or public sector developers for that matter) proceed to a final design. It is also desirable to use the process as a planning tool and to avoid duplication. I am not convinced however that it is useful to consider whether the Guidelines Order requires the assessment of proposal at the concept stage or at a more specific design stage. What is required may very well depend on the type of project being reviewed. What does seem clear is that the assessment is required to take place at a stage when the environmental implications can be fully considered (section 3) and when it can be determined whether there may be any potentially adverse environmental effects (subsection 10(1)). In addition, the screening or assessment by the initiating department should take place at a time when both the proposal being assessed and the decision relating thereto, including the grounds on which it is based, can be released to the public.

Sections 15 and 16 of the Guidelines Order state:

15. The initiating department shall ensure

(a) after a determination concerning a proposal has been made pursuant to section 12 or a referral concerning the proposal has been made pursuant to section 13, and

(b) before any mitigation or compensation measures are implemented pursuant to section 13,

that the public have access to the information on and the opportunity to respond to the proposal in accordance with the spirit and principles of the Access to Information Act.

16. The initiating department, in consultation with the Office, shall establish written procedures to be followed in order to make a determination under section 12 and shall provide the Office on a regular basis, with information, on its implementation of the Process with respect to the proposals for which it is the decision making authority. [Underlining added.]

The object is to allow for meaningful and comprehensive public discussion of the potential environmental impacts of the proposed structure being built or activity being engaged in.

In the present case the GIEE did not fully consider the potential environmental implications. The GIEE expressly stated that it was not doing so. It emphasized that an assessment of the specific designs, once they were available, must be undertaken for the purpose of ascertaining whether there were in fact any significant environmental impacts arising from whatever fixed crossing might be constructed.

In addition, at the time of the GIEE, not even the SCI concept proposal, never mind the specific bridge design, was available for public review. This was equally true when the Panel was asked to undertake its review. The Panel regretted the fact that specific design information had not been made available to it and noted that for a proposal of the complexity and magnitude of that in question, a two-stage panel review—one at the conceptual stage and one at the specific proposal stage—should take place.

The arguments relating to the provisions which state that there is a need for early assessment, that the assessment is to be a planning tool and that duplication is to be avoided, are arguments which themselves, hinge on the meaning given to “proposal”. They do not lead to a conclusion that a proposal for the purposes of the Guidelines Order regulations should be given the broad definition for which Public Works argues as opposed to a more specific definition as contended by the applicant. In the present case one returns again and again to the fact that the particular assessment which is referred to by Public Works, as fulfilling the purposes of section 12, contains within itself caveats to the effect that it was not intended to fulfil that role and expressly stipulates that a specific evaluation of the final design must take place.

The respondents argue that if the proposal must be specific then any given project would have to be assessed, first, when the environmental feasibility study was done, then again, for example in this case, when the responses to the proposal call of March 15, 1988 were received, then again on the resubmission of the responses to the proposal call, then again with respect to the very specific design plans which will subsequently be prepared, and, lastly, each time a design change is made. Indeed, the applicant’s notice of motion is somewhat ambivalent since it seeks both an order of mandamus compelling the respondent Minister of Public Works to make a decision pursuant to section 12 with respect to the proposal call and with respect to the SCI proposal. I consider these to be requests for alternate remedies.

The argument that continual section 12 assessments would be required at every stage of the process is not convincing. It may very well be that continual assessment and reassessment is a convenient way of proceeding but that does not answer the fact that section 12 requires the assessment of a proposal when it is available in a form in which the environmental considerations can be fully considered.

Counsel for Prince Edward Island suggests that regardless of whatever labels are used, a section 12 screening has been an ongoing de facto process during the whole period of time from March 1987 until now. He argues that a de facto section 12 determination was made when the Department of Public Works accepted the consultant’s GIEE report. He argues that that report recommended that its conclusion be confirmed after the successful developer was chosen and that that is what is in fact happening. He argues, alternatively, that the Department of Public Works made a section 12 determination in September, 1988 when the three proposals were selected from the seven submitted.

Counsel for SCI points out that the screening and assessment process described in sections 3, 10 and 12 of the Guidelines Order is a self-assessment process; there is no standard or definition set out in the Order as to the criteria to be applied in deciding whether and what effects are potentially significant, insignificant, mitigable, unknown or unacceptable; the initiating department has a wide discretion to determine the details of the planning process appropriate to any given proposal; there are few procedural requirements imposed on the initiating department. It is argued that if a paragraph 12(c) determination was not made in March 1988, then, it was made on September 30, 1988 when the Minister of Public Works announced the selection of the three successful developers and that they met the environmental requirements of the GIEE and the environmental requirements of the proposal call.

I initially found these to be very attractive arguments. One is struck by the amount of paper which has been generated and filed and which seems to indicate that a significant amount of study has taken place. On reflection, however, I find I have difficulty in characterizing the activities which have taken place, including the various decisions of the Minister of Public Works to move ahead with the project, as well as the public discussion of SCI’s environmental management plan, as a de facto section 12 determination. An overriding reason for reaching this conclusion is that Public Works itself has not sought to characterize the ongoing activity in that way. Mr. Feltham’s cross-examination makes it clear that the Department’s position is that the section 12 assessment was done when the GIEE was published and that the Department did not and does not, in the foreseeable future, intend to conduct a section 12 assessment of the specific SCI proposal.

An argument which counsel repeatedly made was that the conceptual design proposal put forward by SCI in the spring of 1988 and subsequently resubmitted in August of that year was in fact the generic bridge which was studied in the GIEE and, subsequently assessed by the Panel in 1989-1990. To the extent that this is the case, then the study of that proposal is subject to the same qualifications respecting the lack of specific data which were expressed in those reports. All assessment which has gone on since the GIEE seems to have been addressed to this conceptual level consideration.

With respect to the recently prepared environmental management plan, its distribution to the public and availability for comment, the plan expressly states that it is addressed to the conceptual level design. Mr. Pirie’s evidence was that it was comparable to the level of detail which appeared in the GIEE. Another reason for not considering the environmental management plan, to be part of a de facto section 12 assessment is because that plan is designed to address mitigation methods and techniques rather than undertaking the assessment and classification of the environmental risks which can potentially arise from the project. The management plan addresses mitigation methods and includes the gathering of environmental data to accomplish those purposes. It does not assess and classify the potential environmental impacts of the SCI bridge project.

With respect to the argument that the study by the Panel, its deliberations and report obviated the need for the specific environmental assessment which previously had been contemplated, I cannot conclude that that is so. Public hearings on a generic proposal are not a substitute for a specific evaluation of the actual project which it is planned to construct. If specific design proposals had been referred to the Panel this might be different. It is particularly disturbing, in this case, to find that a generic design was referred to a panel when the government had access to more detailed information respecting the three concept proposals being considered which was not referred. A lot of time and public funds were spent on the Panel review. (It is estimated that approximately 20 million dollars in total has been spent on the environmental studies and procedures related to this project.) A lot of effort must have been spent both by the Panel members and by those who appeared before it. It seems downright silly and an incredible waste of public funds and people’s time to find, at the end of the day, that one of the reasons for which the government rejects the Panel’s recommendations is that the Panel did not have before it the detailed information to which the government was privy and which the government had refused to provide to the Panel. Such a result could have been avoided if a referral to a Panel had been made instead at a later stage of the process when the developer whose bid was lowest has been chosen and specific design plans could be made public.

I cannot conclude that the Department of Public Works, as the initiating department, has conducted a section 12 assessment with respect to the SCI bridge proposal as required by the Guidelines Order.

Considerations Re: the Constitutional Issue

The particular provision of the Terms of Union which is in issue states:

That the Dominion Government shall assume and defray all the charges for the following services, viz.:”

…

Efficient Steam Service for the conveyance of mails and passengers, to be established and maintained between the Island and the mainland of the Dominion, Winter and Summer, thus placing the Island in continuous communication with the Intercolonial Railway and the railway system of the Dominion;

Counsel for the applicant’s argument is simple: a bridge is not an “efficient steam service” (bateaux à vapeur).[7] A discontinuance of the ferry service between Cape Tormentine and Borden would be a breach of the Terms of Union.

The Terms of Union upon which the various provinces entered Canada are part of the Constitution and create constitutional obligations. This is now expressly recognized in the Constitution Act, 1982 [Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]], see subsection 52(1), paragraph 52(2)(b) and Item 6 of the Schedule to that Act. Prince Edward Island joined confederation pursuant to a United Kingdom Order in Council setting out terms and conditions (the Terms of Union). That Order in Council was given the status of a United Kingdom statute by section 146 of the then British North America Act, 1867 [30 & 31 Vict., c. 3 (U.K.)] (now the Constitution Act, 1982). Thus, prior to 1982, amendment would have had to have been accomplished by a statute of the United Kingdom.

The particular provision in issue, while found in a list of items[8] which transfer to the federal government responsibility for expenditures, which at the time were undertaken by the provincial government, has been recognized to be of a different character from most of the others. This follows from the fact that the federal government’s obligation is not only to assume and defray all the charges for but also to establish and maintain an efficient steam service between the Island and the mainland.[9] That this should be so is clear from the history surrounding the adoption of that obligation by the federal government, including its initial non-performance.

Counsel for Prince Edward Island filed a most interesting description of that history. It is found in a text entitled Canada’s Smallest Province: A History of P.E.I., John Deyell Company, 1973, chapter 10, “The Transportation Issue, 1873-1973” by Mary K. Cullen. I will reproduce the opening paragraphs [at pages 232-233]:

The insularity and sense of distinctive identity so clearly evident in Prince Edward Island’s prolonged opposition to Confederation was principally influenced by Northumberland Strait. Isolating the Island by masses of moving ice for nearly five months of the year, the strait had been a motivating reason for making such a small geographic unit into a separate British colony in 1769. Until 1827, the Island’s only winter link with the outside world was a lone courier who carried the mails fortnightly between Wood Islands and Pictou. Subsequently, weekly winter communication was established between Cape Traverse and Cape Tormentine where small ice boats with runners were hauled over the ice. In the 1860’s, private steamers were making bi-weekly summer trips to several mainland ports but this frequent intercolonial service had not overcome the Island’s special winter handicap. Prince Edward Island opposed Maritime legislative union because she refused to have her representatives sit in a remote parliament and impose taxes for public works from which the Island, in its insular position, could derive little benefit. A similar belief that winter isolation would limit many of the advantages of federal union was instrumental in the Island decision not to join Canada in 1867.

When delegates from the first Canadian Cabinet visited Charlottetown in August, 1869 to offer “better terms”, lack of winter communications was put forward by the Island Government as one of its outstanding objections to union. Premier R. P. Haythorne explained the inconvenience the Island people experienced “for want of means of getting off and on” and pointed out that this obstacle to union might be obviated by the maintenance of steam navigation between the Island and mainland during the winter season. George Etienne Cartier, one of the negotiators for Canada, felt a strong steamship could be constructed which would keep up year-round communication. In an effort to woo the Island into Confederation, the federal delegation pledged that Canada would assume and defray all charges for “efficient Steam Service for the conveyance of Mails and Passengers, to be established and maintained between the Island and the Dominion, winter and summer, thus placing the Island in continuous communication with the Intercolonial Railway and the Railway system of the Dominion.” The “better terms” of 1869 were rejected since the Canadian Government did not also agree to settle the land question to the Island’s satisfaction, but the essential communications feature was included in future negotiations. In 1873, when the Island, in extremely straitened circumstances because of railway liabilities, applied for admission to Canada, the communication pledge was incorporated in the terms of union.

The statesmen of Prince Edward Island considered the latter guarantee as a sine qua non of the agreement to enter Confederation. They always insisted that one of the principal motives that justified them in giving up their revenue and constitution was the clause in the terms of Confederation which provided for continuous and efficient transportation. It was not a mere matter of sectional privilege but a constitutional right. As the changing direction of the Island economy increased the importance of a mainland connection, the Islanders interpreted their “right” with the greatest imagination. The “conveyance of mails and passengers” was construed to embrace the transport of all kinds of produce and merchandise. Daily communication was the interpretation for “continuous” while “efficient” meant “the best available communication than can be had.” Finally, much importance was attached to the phrase “steam service” as opposed to “steam navigation,” and successive Island Governments maintained that if steam service could not be provided by boat, it should be furnished in some other way be it by balloons over the Northumberland or a tunnel under the strait.

For many years the Federal Government failed to implement the minimum requirements of the communications clause and at no time did it interpret the guarantee in the same sweeping manner as the Islanders. The efforts of the Island people to secure their constitutional right, as well as a service of increasing economic necessity form a dominant theme in the province’s relations with the Canadian Government. Nearly fifty years of persistence was rewarded in 1917, when with the establishment of a car ferry service, interrupted winter communication virtually ceased and Prince Edward Island became an integral part of the transcontinental railway system of Canada. [Footnotes omitted.]

Counsel for the respondents argue that the Terms of Union, being a constitutional document, should be interpreted in accordance with the principle of progressive interpretation. This approach is discussed by Hogg, in his text Constitutional Law of Canada.[10] That discussion relates to the interpretation of legislative fields of jurisdiction as between the provincial legislatures and the federal Parliament. It points out that these categories are not to be frozen in the sense in which they would have been understood in 1867. For example, the phrase “undertakings connecting the provinces with any other or others of the provinces” has been interpreted to include interprovincial telephone systems, although the telephone was unknown in 1867. Professor Hogg states: “the words of the Act are to be given a ‘progressive interpretation’, so that they are continuously adapted to new conditions and new ideas.” The progressive interpretation has been adopted in constitutional contexts other than those relating to the division of powers. See, for example, Attorney General of Quebec v. Blaikie et al., [1979] 2 S.C.R. 1016 and Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714. The Blaikie case relates to constitutionally entrenched language guarantees and the Residential Tenancies Act decision deals with legislative jurisdiction to create administrative tribunals without derogating from the section 96 authority to appoint judges of the Superior Courts which is conferred on the Governor General. The approach has also been held to be applicable when interpreting the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) R.S.C., 1985, Appendix II, No. 44]].

The idea underlying the doctrine of progressive interpretation is that the Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]], although undeniably a statute, is not a statute like any other: it is a “constituent” or “organic” statute, which has to provide the basis for the entire government of a nation over a long period of time. An inflexible interpretation, rooted in the past, would only serve to withhold necessary powers from the Parliament or Legislatures.[11]

Thus, I am asked to look at the purpose of the efficient steam service obligation and note that the object to be served is one of putting the Island in continuous communication with the mainland. It is argued that a bridge is a more effective means of doing this today than a ferry service. It is also noted that the wording of the obligation is imprecise and awkward and has already been the subject of progressive interpretation.

With respect to the awkwardness of the wording there is no mention of the word ferry in the English text although as noted above, the contemporary French version used the words “bateaux à vapeur”. It was suggested that “steam service” could relate to a railway as well as to a ferry service. In addition, a ferry service does not provide continuous communication. A ferry service is by its nature intermittent. It is argued that a bridge is both more efficient than a ferry service and would provide a more continuous link.

With respect to the progressive interpretation of the obligation which has already taken place:[12] the obligation has been interpreted as requiring the transportation of motor vehicles (not merely passengers without their vehicles) even though automobiles were unknown in 1873; the ferry service for many years has not been a “steam service” at all but is run by diesel; the determination of what is “efficient” is not assessed by reference to what was considered efficient in 1873 but by reference to what would be considered efficient today.

In addition, the legislative history, particularly the debates of the Prince Edward Island Legislature prior to that province joining Confederation, makes it clear that the Islanders’ concern was for a continuous link with the mainland. There is no evidence that bridge technology was advanced enough to make a bridge a viable option at that time but later, in 1885, an Island Senator proposed that a tunnel be built and this was determined to be technologically feasible although it does not appear to have been considered as a serious option by the federal government.

Words and verbal constructs by their very nature are imprecise. Courts are required to interpret the boundaries of the verbal constructs in which legislation and constitutions are framed. The arguments put forward in this case are concerned with the boundaries of legitimate interpretation of a constitutional text by the courts as opposed to what falls outside that domain. In effect, the perennial question is being asked: where does interpretation by a court stop and legislation by a court begin? Some say that all interpretation is legislation. In a sense, that is true but such interpretation is necessary in order to have functional laws.

There is no doubt that constitutional documents must be interpreted in a progressive fashion, in accordance with Lord Sankey’s “living tree doctrine”.[13] See Mr. Justice Dickson’s [as he then was] comments in Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714, at pages 723 and 749-750. Interpreting an “efficient steam service” to include ships run by diesel engines, interpreting an obligation to carry passengers as including passengers plus their vehicles and interpreting “efficient” by reference to contemporary as opposed to 1873 standards of efficiency are all legitimate applications of the progressive approach to constitutional interpretation. What I am asked to do however is of a different character. I am not being asked to interpret the words in accordance with the purpose and object of the provision. I am being asked to take the purpose and object of the provision (continuous communication with the mainland) and turn them into the operative and central verbal construct. I am not convinced that this is appropriate. When using the progressive approach to constitutional interpretation one is still constrained by the wording of the text. The words must be able to bear the interpretation being put on them.

In this regard, the decision of Chief Justice Iacobucci, speaking for the Federal Court of Appeal, in Prince Edward Island (Minister of Transportation and Public Works) v. Canadian National Railway Co., [1991] 1 F.C. 129, at pages 135-140, is very pertinent. That case dealt with the argument that the provision of Terms of Union in issue in this case required the federal government to maintain a railway service on Prince Edward Island. Although this is a different aspect of the provision than is in issue in the present case, the approach taken in interpreting the provision is very relevant if not controlling:

More specifically the appellant submits that the two railway related provisions of the Terms of Union (emphasized in the extract above) must be read by keeping in mind that, although they are part of the Constitution, the Terms of Union give effect to a deal made among different colonies. Counsel for the appellant then goes on to say that the Terms were not well drafted, extremely brief, (counsel for the appellant says the Terms are “expressed in less language than is found in, say, a car rental agreement”. See appellant’s memorandum of argument, para. 37) poorly organized and appear to reflect an attempt by the drafters to model them on the British Columbia Terms of Union [R.S.C., 1985, Appendix II, No. 10] concluded two years earlier. Taking all that into account, the appellant argues that the language in the Terms of Union cannot be fairly taken to express clearly their entire agreement on the subject of the Terms of Union in question. Resort must then be had to ascertaining the implied terms of the deal including any terms necessary to give the deal the efficacy the parties must reasonably have intended.

…

In my view, what the appellant is in effect arguing is that the Terms of Union are not clear on their face as shown by what he calls the poor drafting, brevity, disorganization and the like. To resolve the doubt one must discern an understanding that must be implied from the circumstances at the time and the conduct of the parties since the Terms of Union were approved. I find this approach rather dangerous because it can easily lead to a rewriting of the Terms if not a slanting of the arrangement unjustifiably in favour of one side. But more fundamentally I think the appellant’s approach is misguided because what is surely paramount is the meaning to be given to the words chosen by the parties in the Terms of Union.

In this respect, I do not agree that the words chosen were badly expressed or otherwise defective. In fact, I believe the relevant Terms of Union are clear in their intent and meaning and should be taken to express the agreement that was intended by the parties. In other words, there is no need to rely on the rules of statutory construction, extrinsic evidence, or legislative history when the language under consideration is clear.

…

This Court has held in R. (Prince Edward Island) v. R. (Canada) ([1976] 2 F.C. 712 (C.A.)), that this clause of the Terms of Union created a legal duty in favour of the province with respect to a ferry service to be operated continuously—winter and summer—between Prince Edward Island and the mainland.

…

Also the ferry service, by the use of the words “Efficient Steam Service”, can only mean “ship” according to the normal meaning to be given to such words. (Compare British Columbia Terms of Union, R.S.C., 1985, Appendix II, No. 10, s. 4, which provides as follows:

4. The Dominion will provide an efficient mail service, fort-nightly, by steam communication between Victoria and San Francisco, and twice a week between Victoria and Olympia; the vessels to be adapted for the conveyance of freight and passengers.)

In addition, it is also clear that the ferry obligation mentions only mails and passengers and not freight, and if freight were to have been intended it would have been very easy to include the term as was done in the British Columbia Terms of Union. (Supra, note 12.) Finally, the word “continuous” refers only to the problem of crossing the Northumberland Strait in Winter and Summer and does not refer to a continuous line of track existing on the Island, on and off the ferry, and then on the mainland. In my view, continuous has a seasonal or temporal meaning rather than a physical significance.

…

I conclude therefore that the decision and order of the Agency were not contrary to the Prince Edward Island Terms of Union and not thereby beyond the Agency’s jurisdiction. In arriving at this conclusion, I rely on the clear meaning of the language employed in the Terms. I recognize that courts have, by the decision of the Privy Council in Edwards, Henrietta Muir v. Attorney General for Canada, been instructed to interpret the constitution

… in a large, liberal and comprehensive spirit considering the magnitude of the subjects with which it purports to deal in very few words. ([1930] A.C. 124 (P.C.), at p. 137, per Lord Sankey, L.C.)

However, Lord Sankey also said:

… the question is not what may be supposed to have been intended, but what has been said. (Ibid.)

I find Lord Sankey’s caveat particularly apt to answer the arguments made by counsel for the appellant. (In relying on the clear meaning of the language used in the Terms of Union, I do not wish to imply that I agree with the arguments by counsel for the appellant relating to the rules of construction, extrinsic evidence, and legislative history. Indeed, counsel for CN and the Attorney General have made impressive arguments in response but I have not found it necessary to deal with these arguments in detail because of the clarity of the language in the Terms of Union.) [Underlining added.]

In my view, the words “efficient steam service” simply do not bear an interpretation which means bridge. To conclude otherwise would be to take on a role which more appropriately belongs to the legislators, not to the courts.

The applicants in this case say that the bridge project offends the constitutional Terms of Union not only by replacing the ferry service with a bridge but also by replacing an obligation to provide a public or government run service by a privately operated service. In addition, it is argued that the Terms of Union specifically state that the federal government is to “assume and defray all charges” connected with the service. It is contemplated that tolls will be charged by SCI for the use of the bridge. With respect to this last, tolls for the ferry service have in recent history, at least, always been charged. I do not think I need deal with these two last points given the conclusion I have come to that the discontinuance of the ferry service must be effected by way of constitutional amendment. The two additional considerations, however, add reason to the conclusion that the change contemplated is one which is most appropriately dealt with by constitutional amendment rather than by judicial interpretation.

A constitutional amendment to the Terms of Union is not now difficult to accomplish with respect to the particular provision in issue. The constitutional obligation is of concern only to Prince Edward Island and the federal government. Thus, it is amendable under section 43 of the Constitution Act, 1982. All that is required is a resolution of the Prince Edward Island Legislature and a resolution of the House of Commons and the Senate. The Governor General can then proclaim an amendment in force. This is a far more simple procedure than applies to changes to legislative fields of jurisdiction or to amendment respecting section 96 of the Constitution Act, 1867.

The applicant argues that the proposed actions by the respective governments pursuant to the Federal-Provincial Agreement and by the federal government (through the Minister of Public Works), in entering into agreements with SCI for the construction and operation of the bridge, offend not only the provisions of the Terms of Union requiring the establishment and maintenance of an efficient steam service with the mainland but also the provision respecting the protection of the fishery. In so far as these arguments are concerned, they are premised on an interpretation of the relevant provision of the Terms of Union which would prevent the federal government from taking any steps or procedures which had any negative impacts on the fishery, whether it be building harbours or wharves or indeed running a ferry service. I think it is clear that the obligation imposed with respect to the protection of the fishery requires the federal government to assume the financial responsibility for whatever governmental services are provided for the protection of the fishery. It does not, unlike the provision respecting an efficient steam service, impose any positive duty on the federal government. This is clear from the decision in R. (Canada) v. The Queen (P.E.I.), [1978] 1 F.C. 533 (C.A.), where Chief Justice Jackett stated at page 566:

Certain items, however, appear to contemplate that the Dominion Government will “assume” and “defray all the charges for” certain services (i.e., branches of the public service) theretofore operated by the Colony—e.g., “the Department of Customs”, “The Postal Department”, “The protection of the Fisheries”, “the Militia”, “The Geological Survey” and “The Penitentiary”. The item here in question—“Efficient Steam Service”—in my view, is different in character from either of those two classes of item. It refers to a service “to be established and maintained … Winter and Summer ….”. It does relate to a service but it does not provide for a mere assumption of operations theretofore operated by the Colony to be integrated into the respective national services but it is a requirement that a theretofore non-existent service be “established” and “maintained” in the future.

I am, therefore, of the view that this item in the paragraph in question is different in kind from the other items in that paragraph (with the possible exception of the “telegraphic communication” item). It is neither the repetition, for greater certainty, of what would follow from entry of the Province into Confederation on the same terms as apply to the other provinces nor is it a taking over of staff and facilities previously operated by the Colony. [Underlining added.]

While I cannot agree that the proposed construction of the bridge will result in a breach of the federal government’s obligation to assume and defray expenses relating to the protection of the fishery, I am persuaded that discontinuing the ferry service would be a breach of the constitutionally guaranteed Terms of Union upon which Prince Edward Island entered confederation.

Standing

The respondents argue that the applicant does not have standing to bring the present application. It is argued that: (1) the applicant does not meet the criteria for standing established by the decisions Thorson v. Attorney General of Canada et al., [1975] 1 S.C.R. 138; Minister of Justice of Canada et al. v. Borowski, [1981] 2 S.C.R. 575 and Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607; (2) even if the applicant meets the criteria for public interest standing as set out in the Thorson, Borowski and Finlay cases, subsection 18.1(1) of the Federal Court Act [R.S.C., 1985, c. F-7], as amended by S.C. 1990, c. 8, section 5, requires a more specific and particular interest, and the applicant does not possess such; (3) in so far as the constitutional issue is concerned, the obligation under the Terms of Union is owed to the Government of Prince Edward Island, not to individuals or persons, and only the province can sue to have it enforced.

The Thorson, Borowski and Finlay cases and Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265 establish that standing will be granted to a public interest group to challenge the exercise of administrative authority where: a serious issue is raised; the applicant shows a genuine interest as a citizen; there is no other reasonable and effective manner in which the issue may be brought before the Court. The respondents argue that the applicant has not established the requisite interest because it has filed no material to establish its corporate objects or interest. The interests of its members or shareholders cannot be taken to be the interest of the applicant. Reliance is placed on the decision in Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236.

The applicant’s members are farmers, fishermen, ferry workers and environmentalists resident in Prince Edward Island. There is abundant evidence establishing their individual interests. In my view, as I read the material which has been filed, there is also evidence that the objects of the corporate applicant, include, if not solely relate to, activities directed at opposing the construction of the bridge. In my view, the applicant has proven that it has sufficient interest as set out in the Thorson, Borowski and Finlay cases.

Counsel for SCI argues that regardless of the nature of public interest standing as defined in the Thorson, Borowski and Finlay cases, when subsection 18.1(1) of the Federal Court Act was amended by S.C. 1990, c. 8, the legislator chose to accord standing only to persons “directly affected by the matter in respect of which relief is sought.”[14] He argues that the words “directly affected” have a very well-defined and long standing meaning in the common law. They have been interpreted as requiring a party to have a special or particular interest different from that held by the public generally. He argues that when the amendment to subsection 18.1(1) was enacted the interpretation which had been given to that wording was known and therefore the legislator clearly intended to restrict public interest standing in subsection 18.1(1). He acknowledges that such restriction is inconsistent with the trend of the law as developed in Thorson, Borowski and Finlay. At the same time, he argues that it is clear from the wording chosen by the legislator that retraction from or restriction of those decisions was intended, in so far as subsection 18.1(1) is concerned. He notes that the usual terminology to provide for public interest standing is to state that a party who has a “genuine interest” may bring suit.

I am not convinced that the interpretation for which counsel contends is appropriate with respect to subsection 18.1(1). Prior to the amendments to the Federal Court Act,[15] subsection 28(2) of that Act provided “any party directly affected” could apply for judicial review:

28. …

(2) Any application under subsection (1) may be made by the Attorney General of Canada or any party directly affected by the decision or order by filing a notice of the application in the Court within ten days from the time the decision or order was first communicated to the office of the Deputy Attorney General of Canada or to that party by the board, commission or other tribunal, or within such further time as the Court of Appeal or a judge thereof may, either before or after the expiration of those ten days, fix or allow. [Underlining added.]

This provision is commented upon in Thomas A. Cromwell’s book Locus Standi: A Commentary on the Law of Standing in Canada, (Carswell, Toronto, 1986), at pages 163-164:

(B) Who is “directly affected” under section 28(2)? The application of this standing test requires the Court to traverse a semantic wasteland similar to that encountered in deciding who has an “interest”, who suffers “special injury” or who is a “person aggrieved”. Not surprisingly, even though there are only a few cases interpreting this aspect of s. 28(2), they are hard to reconcile. For example, in the John Graham [(1975), 68 D.L.R. (3d) 110 (F.C.A.)] case, the corporate applicant was held to have standing under s. 28 to challenge a decision of the C.R.T.C. approving the transfer of a majority share interest in a company in which it was a minority shareholder on the basis that the value and earnings for its shares could be affected by the transfer. While this was said to constitute a “direct effect”, it seems to be equally arguable that it was “indirect” in that it was not the transfer itself but the possible changes in value and earnings thereafter that would affect the applicant. This direct-indirect conundrum is not resolved by comparison with the Canadian Telecommunications Union [(1981), 41 N.R. 243 (F.C.A.)] case. In that case, the Court held that one union did not have standing to seek judicial review of a decision of the Canada Labour Relations Board certifying a rival union as bargaining agent for a certain group of employees. The applicant union argued that the Board’s decision, coupled with the creation of a new partnership of employers, placed the rival in a position to challenge the applicant’s representation of a group of employees of the new partnership. The Court noted that the applicant had been denied the status of an intervenor by the Board and found that it was affected only indirectly by the Board’s order. Its desire to protect its competitive position with the other union was not sufficient to give it standing under s. 28. It is not apparent how this effect is indirect while that in John Graham is direct. At best, the distinction seems to be one of degree rather than type.

An interesting approach to standing under s. 28(2) was proposed by LeDain J. in the Canadian Telecommunications Union case. In his view, the issue of whether the Board’s decision directly affected the applicant

involves … a determination whether that decision directly affected an interest which the court should recognize as sufficient for standing. The recognition of standing, at least where the interest on which it rests cannot be clearly defined in terms of legal right or obligation, is a matter of judicial discretion.…

In the light of this background, I cannot conclude that when Parliament amended the Federal Court Act to redress some of the difficulties which had been created by the earlier division of jurisdiction between the Trial Division and the Appeal Division (by sections 18 and 28 respectively) that it intended to limit judicial review under subsection 18.1(1) to the pre-Thorson, Borowski, Finlay test. I think the wording in subsection 18.1(1) allows the Court discretion to grant standing when it is convinced that the particular circumstances of the case and the type of interest which the applicant holds justify status being granted. (This assumes there is a justiciable issue and no other effective and practical means of getting the issue before the courts.) In this case, the applicant has demonstrated such interest and the issue is clearly justiciable.

It is argued that the applicant should not be given standing, at least, with respect to the constitutional issue, because there are other ways of getting that issue before the Court. It is argued that the provincial government can bring suit and that it has expressly reserved this right under the Federal-Provincial Agreement. This is not convincing. As a party to that agreement, it is highly unlikely that the provincial government would test the constitutionality of the proposed discontinuance of the ferry service. A party should not be denied standing merely because theoretically there are other ways of getting the issue before the Court. The possibility of such other actions being taken has to carry a reasonable degree of probability before standing should be refused on that basis. Such does not exist in this case. While the provincial government can, it is not likely to take action. The applicant has met the requirement that there is no other effective and practical means of getting the matter before the Court, both with respect to the constitutional and the environmental issues.

With respect to the argument that the applicant does not have standing to raise the constitutional issue because only the Government of Prince Edward Island can sue to enforce that obligation, this argument relies on past events and on comments in R. (Prince Edward Island) v. R. (Canada), [1976] 2 F.C. 712 (T.D.), affirmed by [1978] 1 F.C. 533 (C.A.). In so far as past events are concerned, Prince Edward Island has on two occasions presented memorials to the federal government complaining about breaches of the Terms of Union in issue: one in 1901, another in 1912. On both occasions compensation was paid to the provincial government.[16] In so far as the decision in P.E.I. v. Canada is concerned, it arose out of a strike of the ferry workers in 1973. This caused the Government of Prince Edward Island to again claim compensation for a breach of the Terms of Union. The province commenced an action for damages in the Federal Court. In reaching his decision that damages could not be awarded, Chief Justice Jackett wrote [at pages 555-556, note 30]:

³⁰ Compare Samson v. The Queen [1957] S.C.R. 832, per Locke J. at p. 841. As a realistic matter, it seems obvious that, just as being joined to the eastern provinces by railway was a sine qua non of British Columbia joining the union, so the right to be joined to the mainland by ferry service was a sine qua non of Prince Edward Island joining. To my mind, it is inconceivable that when such terms of union were given statutory form, the resultant rights were meant to be of such an empty nature that breach thereof would not give rise to a right to compensation.

That is not to say that an individual who happened to be an inhabitant of the Province at the time of breach has a legal claim to damages for his loss suffered as an individual. I express no opinion on that question but I must express doubt with regard thereto. I am of opinion that the “obligee” is the “Province”—i.e., the mass of inhabitants of the geographical area whoever they may be from time to time. I do not see the obligation to the Province as a joint right of the individuals or as a right held in trust for them as individuals. I see an analogy to the “booty of war” case (Kinloch v. The Secretary of State for India in Council (1882), 7 App. Cas. 619 (H.L.)) and to the case of reparations received by a country which is the successful party to a peace treaty.

Chief Justice Jackett dealt in that case only with the right of an individual to “claim to damages for his loss suffered as an individual.” That does not mean that individuals or corporate persons cannot bring an action seeking a declaration and a mandatory order that the constitutional obligations be complied with. The “obligee” may very well be the “Province” but the constitutional obligation is for the benefit of all the people of the province. And perhaps for the benefit also of Canadians from outside the province who wish to go to the Island. If the province alone can sue to enforce the obligation, then, the executive government of the province and the executive of the federal government can agree between themselves to alter a term of union with no recourse by the individuals affected to challenge it.

While one would assume that decisions would not be taken by the respective executive levels which did not reflect the will of their respective constituents (in this case, for example, a plebiscite was held on the Island with respect to the proposed construction of a fixed link) a principle which allows for change by the executive branches of government alone allows for amendments to be made which may or may not reflect the will of the people of the province.

I do not think the particular constitutional obligation could have been amended by executive agreement of the two governments before 1982. Section 146 of the Constitution Act, 1867 gave the Terms of Union the status of a United Kingdom statute. Thus at that time, an amendment would have required an Act of the United Kingdom Legislature. I do not think the 1982 Act changed that protected status. See also, Hogg, Constitutional Law of Canada,[17] at page 102 where he talks about the unique terms which operate as legally enforceable provisions to particular provinces.

It is argued that individual persons cannot enforce the ferry service obligation because the Federal-Provincial Agreement and the prospective contracts with SCI are not “laws”. If I understand the argument correctly, it is that the Minister of Public Works, in signing the Federal-Provincial Agreement and in the proposed signing of a contract with SCI, has engaged and is about to engage in an administrative act. Subsection 52(1) of the Constitution Act, 1982 states:

52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

In the first place subsection 52(1) does not say that it is only laws which can offend a constitutional obligation. Subsection 52(1) has two components and the first is that “[t]he Constitution of Canada is the supreme law of Canada”. That alone, in my view, guarantees a constitutionally protected status to constitutional obligations. Secondly, it would be inconsistent with the principle that something which cannot be done directly cannot be done indirectly, if the two governments by executive agreement could effect an amendment to a constitutionally protected obligation. Lastly, the Minister of Public Works in signing the Federal-Provincial Agreement was acting under authority of an Order in Council. The agreement with SCI will be entered into pursuant to federal legislation (the Northumberland Strait Crossing Act). Thus the discontinuance of the ferry will have been effected pursuant to laws and are governed by subsection 52(1) of the Constitution Act, 1982. Accordingly, in my view, the applicant has standing to seek enforcement of the constitutional obligation to provide a ferry service between Prince Edward Island and the mainland.

Discretionary Remedies and Miscellaneous Considerations

It is argued that the Court should not grant the remedies sought by the applicant in this case because: (1) the applicant delayed in coming to Court; (2) the applicant participated in many of the steps which have already been taken (the EARP Panel discussions, meetings to discuss the environmental management plan) and this lulled the respondents into a false sense of security; (3) there has been so much environmental review, already, that requiring more is just overkill; (4) the actions being challenged are not properly reviewable under subsection 18.1(1) of the Federal Court Act; (5) in so far as any remedies based on the constitutional argument is concerned, they are premature since it is not planned to discontinue the ferry until after the bridge is built in 1997.

I am not convinced that delay is a relevant factor. The applicant is challenging a refusal to undertake certain action. It is difficult to determine exactly when a failure to take a positive step occurs. It was open to the Department of Public Works to comply with sections 10 and 12 even as late as January 1993. Also in terms of delay, the draft environmental management plan was not available until December 21, 1992 and public comments were then expected in the early weeks of January 1993. If this process was intended to provide for meaningful public involvement, it did seem to occur with unseemly haste and at a very inconvenient time of the year. It seems that there was some expectation that by this time (i.e., before financial closing) more detailed plans of the bridge would be available for assessment.

With respect to the allegations that the respondents will suffer prejudice if the remedies sought are granted, I am not convinced that the respondents will suffer the kind of prejudice which would justify refusing the remedies. This project has taken over seven years to reach its present stage. The respondent, SCI, points to the contractual terms for the construction of the bridge, the arrangements it has made for financing and the prejudice it will suffer if it cannot fully utilize the 1993 construction season. The Governments of Prince Edward Island and New Brunswick are concerned that if the project does not go ahead that they will lose the $40.8 million and $20 million respectively which has been promised to provide for development activities in the Borden and Cape Tormentine areas (for example, for upgrading the road systems). They have filed affidavit evidence which predicts that the construction of the bridge will kick-start the Maritime economy and that if the bridge is not built, the New-Brunswick and the Prince Edward Island economies will suffer. Many of these arguments assume that the bridge project will not go ahead if an environmental assessment pursuant to section 12 is ordered or if a constitutional amendment is required to effect discontinuance of the ferry service. It is not unusual to find contracts being renegotiated when circumstances arise which were not initially foreseen, or which were initially foreseen but not taken into account. The renegotiation of contracts to allow for extended completion terms especially government contracts, it seems to me, is very common. I have not been convinced that the prejudice alleged is either so obvious or so drastic as to deny the applicant the remedies it seeks.

With respect to the participation by the applicant and its members in the various public discussions which have occurred, I find counsel for the applicant’s argument convincing. It would be strange to find that because members of the applicant had participated in the processes open to them, that they thereby lost their right to require that the legal procedures established by the Guidelines Order be complied with.

I have found the third consideration the most difficult to deal with. A reading of the vast quantities of material which have been filed seems to indicate that an enormous amount of environmental study and review has already taken place. One is tempted to conclude, as the respondents argue, that all possible significant environmental effects have been identified, regardless of what the bridge design will finally be, and that these will be taken into account when the bridge is designed to ensure that they are mitigated. Also, the argument that bridges by their nature are environmentally benign is an attractive one. Counsel for the respondents contends that it would be futile and quite superfluous to require more environmental assessment than has already been done.

Counsel for the applicant argues to the contrary. He argues, for example, that baseline studies which were identified as being required in 1987 have still not been done and that features of the bridge proposal, which have only now become public, such as the spacing of the near-shore piers, have not been studied. Also, he argues that the guarantees to the public contained in the Guidelines Order are minimal: the initiating department is left with a great deal of discretion; the government can ignore an Environmental Assessment Panel’s recommendation. It is argued that the public have the right to have the minimal procedural mandatory safeguards which are found in the Guidelines Order complied with.

I note that in Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, the Trial Judge [[1990] 1 F.C. 248] had refused to grant orders of mandamus and certiorari with respect to an environmental review, on the ground that such action would be futile and repetitive in the light of the extensive environmental review which had already taken place. The Federal Court of Appeal overruled that decision [[1990] 2 F.C. 18]. This was affirmed by the Supreme Court. At page 80 of the Supreme Court decision, Mr. Justice La Forest, in speaking for the Court, stated:

In my view this was not a proper ground to refuse a remedy in these circumstances. Prerogative relief should only be refused on the ground of futility in those few instances where the issuance of a prerogative writ would be effectively nugatory. For example, a case where the order could not possibly be implemented, such as an order of prohibition to a tribunal if nothing is left for it to do that can be prohibited; see de Smith, supra, at pp. 427-428. It is a different matter, though, where it cannot be determined a priori that an order in the nature of prerogative relief will have no practical effect.

What is troubling from the Court’s point of view in this case is that, while on reading the material which forms part of the record there appears to have been a great deal of general consideration of the various potential environmental concerns, one is left with the question as to whether specific design features of the bridge, not yet disclosed (or perhaps even yet decided upon) might carry with them significant environmental impacts. The difficulty I have in making a judgment as to whether adequate review has already taken place is that such a judgment requires me to enter into an assessment of the merits of the decisions which have been made, a realm which I think all parties agree is not an appropriate domain for a court on judicial review.[18]

I agree with counsel for the applicant’s argument that the mandatory requirements should be strictly complied with. I am not persuaded that because there appears to have been a great deal of environmental study done, I should refuse the relief sought.

In so far as the arguments that this application cannot be entertained pursuant to subsection 18.1(1) because, in so far as the constitutional issue is concerned at least, the signing of the Federal-Provincial Agreement by the Minister of Public Works is not a decision or order of a federal board, commission or tribunal, I am not convinced that this is so. The words “federal board, commission or other tribunal” are defined in section 2 [as am. idem, s. 1] of the Federal Court Act as meaning “any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown” [underlining added]. The Minister of Public Works in signing the Federal-Provincial Agreement fell within that definition and the proposed action of signing contracts with SCI will also fall within that definition.

It is argued that in so far as the constitutional obligation to continue a ferry service is concerned, this application is premature because that service is still running. It is not planned to discontinue it until the bridge is built, probably in 1997. What is more the Northumberland Strait Crossing Act is not yet law and courts are reluctant to address questions respecting the constitutionality of prospective legislation which has not been passed. This is not a convincing argument. If a constitutional amendment is needed, it is in everybody’s best interest to be aware of that now rather than later. If the applicant delayed bringing its application forward until 1997, the respondents would certainly be arguing that the Court should refuse relief because of the applicant’s delay.

Conclusion

In summary, the Department of Public Works has said that the section 12 evaluation for Guidelines Order purposes was done when the GIEE was prepared in March of 1988. It has said that it has not and does not, in the foreseeable future, intend to carry out any other section 12 review. The GIEE, on its own terms, states that it was not intended to and did not fulfil the section 12 requirements. All the documentation of that period, including SCI’s response to the proposal call, was based on the premise that a further and more specific section 12 evaluation of the final design would occur. Also, all the assessments which have been done since that time including the SCI environmental management plan, which was released in recent months have addressed the bridge project at the concept level. Thus, I think the applicant is entitled to an order requiring the Minister of Public Works to have a section 12 assessment undertaken with respect to the specific design of the bridge which SCI plans to build before irrevocable decisions are taken.

In addition, the proposed discontinuance of the ferry service by Federal-Provincial Agreement contemplates a breach of the constitutional terms on which Prince Edward Island joined Canada. The applicant is entitled to a declaration that such discontinuance, in the absence of a constitutional amendment authorizing it, would breach a term of the Prince Edward Island Terms of Union.

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