MiningWatch Canada v. Canada (Minister of Fisheries and Oceans).

These were appeals from a Federal Court decision allowing an application for judicial review and ordering that public consultation be held on the proposed scope of the corporate appellants' anticipated mine and milling operation to be subjected to an environmental assessment under the Canadian Environmental Assessment Act. It was later determined that the scope of the project only required a screening report and the notice of commencement was retroactively amended. It was subsequently amended to add Natural Resources Canada as a responsible authority (RA) and amended a third time to describe the scope of the project for the purposes of the environmental assessment. The BCEAO and the federal environmental screening report concluded that the project was not likely to cause significant adverse environmental, heritage, social, economic or health effects. On judicial review of that decision the Federal Court held that the RAs had a legal duty pursuant to subsection 21(1) of the Act to ensure public consultation with respect to the proposed scope of the project. Prior to October 2003, section 21 stated that if the project was described in the comprehensive study list, a comprehensive study was required. It was amended in 2003 to state that where a project is described in the comprehensive study list, public consultation is required. The issue was whether the RAs have discretion to define and redefine the scope of the project and specifically whether the first appearance of the word 'project' in subsection 21(1) of the Act should read as 'project as scoped'. The Court held the appeals should be allowed. In 1999, the Appeal Division of the Federal Court in Friends of the West Country Assn. v. Canada (Minister of Fisheries and Oceans) held that subsection 15(1) of the Act confers on the responsible authority the power to determine the scope of the project in relation to which an environmental assessment is to be conducted, and that under subsection 15(3), the assessment to be carried out is in respect of the 'project as scoped'. In 2006 in Prairie Acid Rain Coalition v. Canada (Minister of Fisheries and Oceans) the Federal Court of Appeal determined that the word "project" in paragraph 5(1)(d) of the Act means "project as scoped" under subsection 15(1) of the Act. Given that the word 'project' in paragraph 5(1)(d) and in subsection 15(3) means 'project as scoped',the rules of statutory interpretation require that the first appearance of the word "project" in sections 18 and 21 be given the same meaning unless some different interpretation is clearly indicated by the context. Nothing in the Act indicated that an interpretation different from that previously established should be relied on. The key difference in the former and amended versions of section 21 is a requirement of public consultation. Therefore, subsection 21(1) was read as indicating that where the project 'as scoped' is described in the Comprehensive Study List Regulations, subsection 21(1) as amended applies and a public consultation is required. The RAs exercised their discretionary power to 'scope' and 'rescope' the project and made no error in doing so. Until a final decision has been made with respect to the environmental assessment, nothing prevents the RAs from rescoping. Subsection 31(3) of the Interpretation Act confirms that a power conferred may be exercised from time to time as required. The doctrine of functus officio did not apply because the scoping power given to RAs is of a continuing nature. The Federal Court of appeal held that the RAs acted beyond their statutory powers in sidestepping the statutory requirements of section 21 as amended in the guise of a decision to rescope the project. But section 21 as amended did not apply since the project 'as scoped' in the final scoping decision was not prescribed in the Comprehensive Study List Regulations. A public consultation was therefore not required.