EXERCISE OF AUTHORITY BY ADM CONSTITUTIONALLY VALID UNDER CEAA

In the case of Maloney v Garneau (2018 FC 188) the Applicant, Mr. David Maloney, sought judicial review of Aéroports de Montréal’s (“ADM”), decision to develop federally-owned lands (the “Project”). The Applicant challenged the constitutionality of section 67 of the Canadian Environmental Assessment Act, 2012 (“CEAA”), arguing that it unlawfully delegated ministerial power to the Assistant Deputy Minister (“ADM”). Mr. Maloney asserted that the ADM’s decision to proceed with the project was unreasonable and that Transport Canada (“TC”) had failed to exercise its jurisdiction over federal lands.

The ADM constitutes an “authority” as contemplated by subsection 66(b) of CEAA. As an authority under subsection 66(b), the ADM was required to determine whether or not its development project on federally owned land was likely to cause significant adverse environmental effects. The ADM ultimately found that the project was not likely to cause significant adverse environmental effects and proceeded with the development and the project was completed at the time Mr. Maloney’s case was heard.

The Federal Court dismissed the application and rejected the Applicant’s assertion that CEAA delegated discretionary power to ADM. The Court explained that Parliament’s decision to ensure that environmental effects are considered by authorities undertaking projects on federal lands and did not constitute a delegation of power.

In response to the Applicant’s assertion that TC failed to exercise jurisdiction over the federally owned lands, the Court emphasized that TC had no such jurisdiction in this case, as CEAA clearly legislates against the need for environmental assessments in the case of projects undertaken by authorities on federal lands.

Finally, the Court held that ADM’s decision to proceed with the project was not unreasonable, finding that while ADM’s environmental study could have been more detailed, the study was sufficient in its consideration of the potential negative impacts on aquatic life and migratory birds, the possibility of contaminants or pollutants, the potential for habitat fragmentation, and possible mitigation efforts.

The Federal Court concluded that the legislation was constitutionally valid and that there was no unlawful delegation of power to the ADM. The Federal Court also went further to state that the decision to proceed with the project was reasonable in the circumstances and that there was no failure by TC to exercise its jurisdiction.