Date: 19990917
Docket: T-1586-98
B E T W E E N :
JOHN R. LAVOIE
Applicant
- and -
THE MINISTER OF THE ENVIRONMENT,
THE MINISTER OF FISHERIES AND OCEANS, AND
KAGIANO POWER CORPORATION
OJIBWAYS OF THE PIC RIVER FIRST NATION
Respondents
REASONS FOR ORDER
(Delivered from the Bench at Ottawa, Ontario,
Tuesday, August 25, 1998)
HUGESSEN J.
[1] This is an application for interim relief in the context of an application for judicial review attacking a decision to issue a permit under the Fisheries Act in connection with a project for the construction of a dam and related hydro facilities on the Kagiano River north of Lake Superior.
[2] The application attacks the decision on grounds basically related to the process which led up to the issuance of the decision and the ensuing permits for construction. Originally, the applicant named as respondents, Kagiano Power Corporation and the two respondent Ministers, but during the course of a pre-hearing conference another respondent, the Ojibways of the Pic River First Nation, were added at their own request as respondents and they have filed materials and have participated in this hearing.
[3] The applicant alleges, in particular, that the construction of the project, which has now started, is going to cause irreparable damage to fish and to fish habitat. It is, of course, the decision of the Minister to allow such construction under the relevant provision of the Fisheries Act1, which is the decision now under attack.
[4] Without going into any detail, I am satisfied that the applicant has a case which deserve to be heard by the Court. I will make no further comment on it since that case will, in due course, have to be decided by another judge but my finding on that question brings me immediately to the second and third branches of the well-known tripotite test for the granting of interim relief.
[5] The applicant alleges irreparable harm of two orders both of which are environmental.
[6] In the first place, he says that fish and fish habitat are being damaged or destroyed by the construction which is presently going on and that that can never be recovered.
[7] In the second place, he says that the construction will result in the loss of an unspoiled wilderness area; that also cannot be recovered.
[8] As to the first of those concerns, there is evidence that the permit granted by the Minister contains serious conditions requiring mitigation of the damage to fish habitat and there is evidence that such mitigation provisions in the permit will have the effect of restoring and even possibly of improving fish habitat.
[9] There is not much that can be said about the second of those concerns except that I note that there is also evidence in the material before me to the effect that there has been considerable development of one kind or another nearby and that there appears to have been both forestry and mining operations carried out not very far away.
[10] The respondent Kagiano, for its part, alleges that it will suffer serious economic harm in the event that interim relief is granted. It points out that the applicant has not provided an undertaking with respect to damages and it urges that I should consider economic harm under the heading of irreparable harm for that reason.
[11] The respondent Kagiano also alleges that there is possible or even likely environmental harm which will result if a stay is ordered. The mitigation measures, to which I alluded a moment ago, are, by their nature, temporary and time sensitive and if the project construction were now stopped it is likely that, not only would they become ineffective for their original purpose but that they might independently result in further serious environmental harm downstream.
[12] The respondent First Nation endorses the position taken by the respondent Kagiano but adds a particular concern for irreparable harm of its own. It is a partner in the project. The people of the First Nation are a community who live downstream from the project. They are, on the evidence, the only community who live downstream from the project and they rely upon the Pic River, of which the Kagiano is a tributary, for their water both for drinking, recreational and fishery purposes. The project is an important development for the First Nation community and is one in which they have a vital stake. Its suspension would cause them economic harm and would also, on their showing, cause harm to the community at large.
[13] Weighing these conflicting views as best I can, and in the absence of any cross-examination on the affidavits, I have concluded that the balance of convenience favours the respondents.
[14] I accept the evidence that the mitigating measures to fish and fish habitat will protect those concerns and I also accept that if the construction were presently stopped there is a serious possibility that the damage to fish and fish habitat and indeed to the community which lives downstream of the project might be very serious indeed, although there has as yet been no assessment as to just how grave that damage might be. I also accept the respondents" submission that the failure on the part of the applicant to give an undertaking in damages is a consideration which must be taken into account. I want to make it quite plain that, in my view, the applicant is not obliged to give an undertaking in damages or, more accurately, that the Court has the power, in its discretion, to dispense him from doing so. The fact remains, however, that the only basis upon which economic harm can be excluded from the consideration of irreparable harm is if there is an undertaking in damages in place. Otherwise it would be the height of injustice to simply disregard the fact that, a respondent upon an application for interim relief might suffer serious, indeed fatal economic harm, which the Court would simply overlook.
[15] That particular consideration is singularly significant in my view in the circumstances of this case. The indications are that the corporate respondent is, by no means, a mint of money and, or course the First Nation respondent, is dependant to a large extent upon the development of the river, if I am to believe the evidence before me.
[16] I conclude, therefore, that I shall deny the application for interim relief. I will, as requested, make an order for the case-management of these proceedings and counsel may expect that the Associate Chief Justice will name a case-management judge in the next few days.
[17] Costs of the application will be in the cause.
"James K. Hugessen"
Judge
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