Quebec Superior Court Justice Claudine Roy granted a temporary injunction on September 23, 2014, stopping Energy East Pipeline Ltd. and TransCanada Pipelines Ltd. from conducting exploratory work in the St. Lawrence River near Cacouna, QC until October 15, after a critical period for beluga whale reproduction has passed. The injunction was sought by environmental groups including the David Suzuki Foundation.
The purpose of the TransCanada project is to study a portion of the sea-bed under the St. Lawrence River to determine where a marine terminal should be built to allow the export of Alberta tar sands oil. According to the Court’s decision, Quebec’s Environment Minister, David Heurtel, was “unreasonable” in authorizing the project because he did not have sufficient information concerning potential impacts on the Beluga whale.
The Beluga has become one of those iconic species representing the threats posed to biodiversity generally. According to the federal Department of Fisheries and Oceans, commercial whaling in the St. Lawrence depleted its population severely, and there has been “no noticeable recovery” of the population since the 1979 whaling ban due to factors such as pollution, reduced food sources, and habitat degradation.
Quebec’s Environment Department initially refused to approve the project until seven questions were sufficiently answered about underwater noise the project would create. Noise is considered a “contaminant” under Quebec’s Environment Quality Act. There are no regulatory standards for underwater noise, but scientific research shows that noise can significantly affect marine mammals by forcing them away from critical habitat such as breeding grounds. Moreover, the Quebec minister cannot approve a project that is contrary to federal or provincial law. Under the federal Species At Risk Act (SARA), belugas in the St. Lawrence estuary are listed as threatened. Any activity affecting a species identified under SARA as endangered or threatened requires a federal permit. The seven questions the Quebec Environment Department wanted answered included the following:
1. How realistic are the estimated noise levels for the project?
2. Will the work on the dates proposed cause a significant impact on the whales?
3. Will the project generally cause disturbance or have significant impacts on the whales?
4. What mitigation measures have been proposed and are they adequate?
5. What additional measures could be taken to render the project acceptable?
6. If the project will cause significant disturbance to the beluga, despite additional mitigation measures, will the survival of the beluga be jeopardized?
7. Are any other species of marine mammals likely to be present and can mitigation measures for those species apply to the Beluga?
According to the Court’s decision, the provincial department raised these questions based on alleged concerns for the Beluga, never got sufficient answers, and then went ahead and approved the project anyway. “If the minister did not get the answers to his questions, he should have continued the process or at least explained why he suddenly decided to recommend approval,” Roy wrote. It has been reported elsewhere that federal marine scientists were “muzzled” from speaking with the Quebec Environment Department during the application process.
TransCanada submitted that it would prove to be a hardship if it had to delay the work until the river iced over, but the judge noted that the company “provided no specific information on the impact…other than an economic hardship.”
Of particular note from a legal perspective, Judge Roy referred in her decision to the Precautionary Principle from Paragraph 7 of the Bergen Declaration on Sustainable Development. The principle states that sustainable development policies must be based on a principle of precaution, and that when serious damage may be inflicted on the environment, the lack of complete scientific certainty should not be an excuse for postponing measures to protect it. The Court’s decision cited the 2001 Supreme Court of Canada opinion from 114957 Canada Ltée (Spraytech, Société watering) c. Hudson (Ville), emphasizing that this principle is embedded in several provisions of federal law and that other courts have stated that the principle “may not be satisfied with assumptions.” In the case of the Belugas, Judge Roy wrote that there was “no evidence” that the Ministers took account of the precautionary principle in authorizing the project.