Salmonid Association of Eastern Newfoundland First Applicant And: Freshwater-Alexander Bays Ecosystem Corporation Second Applicant And: Port au Port Bay Fishery Committee Third Applicant And: John Baird Fourth Applicant And: Alan Pickersgill Fifth Applicant And: Wayne Holloway Sixth Applicant And: Her Majesty in Right of Newfoundland v. Labrador, 2020 NLSC 34

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Salmonid Association of Eastern Newfoundland v.

Her Majesty the Queen in Right of Newfoundland and Labrador , 2020 NLSC 34 Date : February 27, 2020 Docket : 201901G2746 Between: Salmonid Association of Eastern Newfoundland First Applicant And: Freshwater-Alexander Bays Ecosystem Corporation Second Applicant And: Port au Port Bay Fishery Committee Third Applicant And: John Baird Fourth Applicant And: Alan Pickersgill Fifth Applicant And: Wayne Holloway Sixth Applicant And: Her Majesty in Right of Newfoundland and Labrador , as represented by THE HONOURABLE GRAHAM LETTO, MINISTER OF MUNICIPAL AFFAIRS AND THE ENVIRONMENT

First Respondent And: Northern harvest Smolt Ltd. Second Respondent Before: Justice Daniel M. Boone Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: November 6 and 7, 2019

Summary: The Applicants sought to quash the decision of the Minister of Municipal Affairs and Environment releasing an aquaculture project from environmental assessment under the Environmental Assessment Act ,

Part X, and a further decision of the Minister dismissing an appeal from the Release Decision. Underlying both decisions was a determination by the Minister to consider only the onshore components of the project and exclude the related increased utilization of existing open net sea cages from environmental review. The Court held that the Act and Regulations required the inclusion of the sea cages in the scope of the Project and the decision of the Minister excluding the sea cages was unreasonable. Significant public concern was expressed to the Minister regarding the increased utilization of the sea cages.

The Act therefore required an environmental assessment of the project and the decisions of the Minister to release the Project and to dismiss an appeal from that decision were unreasonable. Appearances: James Gunvaldsen Klaassen and Sarah McDonald Appearing on behalf of the First, Second, Third, Fourth, Fifth, and Sixth Applicants Suzanne M. Orsborn Appearing on behalf of the First Respondent J. Alexander Templeton Appearing on behalf of the Second Respondent Authorities Cited: CASES CONSIDERED: Atlantic Salmon Federation (Canada) v.

Newfoundland (Environment and Climate Change) , 2017 NLTD(G) 137; Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 ; Bell Canada v. Canada (Attorney General) , 2019 SCC 66 ; Canada Post Corp. v. Canadian Union of Postal Workers , 2019 SCC 67 ; 114957 Canada Ltée (Spraytech, Société d'arrosage) v.

Hudson (Town) 2001 SCC 40; Newfoundland and Labrador (Environment and Climate Change) v. Atlantic Salmon Federation(Canada), 2018 NLCA 53, aff’g Atlantic Salmon Federation (Canada) v. Newfoundland (Environment and Climate Change), 2017NLTD(G) 137; Labrador Inuit Assn. v. Newfoundland (Minister of Environment & Labour) (1997), (NL CA), 155Nfld. & P.E.I.R. 93, 481 A.P.R. 93 (Nfld. C.A.); Quebec (Attorney General) v. Canada (National Energy Board), (SCC), [1994] 1 S.C.R. 159; Bow Valley Naturalists Society v.

Canada (Minister of Canadian Heritage), 2001 CarswellNat 1721, 266N.R. 169 (F.D.A.) STATUTES CONSIDERED: Environmental Protection Act, S.N.L. 2002, c. E-14.2; Environmental Assessment Regulations, 2003,Nfld. Reg. 54/03; Species at Risk Act, S.C. 2002, c. 29 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sched. D REASONS FOR JUDGMENT Boone, J.: INTRODUCTION [1] Northern Harvest Smolt Ltd. (NHS) owns the Indian Head salmon hatchery. It grows hatchlings to smolt at that land basedfacility.

It then transfers the smolt to sea pens where they grow to maturity. [2] NHS planned to expand the hatchery and registered the Indian Head Hatchery expansion project (the “Project”) under theEnvironmental Protection Act, S.N.L. 2002, c. E-14.2 (the “Act”). Several interested individuals and advocacy groups, including theApplicants, made submissions opposing the Project. The Minister of Municipal Affairs and Environment reviewed the project proposaland released it from further review. Many of those who had opposed the Project appealed to the Minister to reconsider the decision.

TheMinister dismissed the appeals. [3] The Applicants ask this Court to quash both decisions of the Minister. [4] At the core of the Applicants’ position is their attack on another decision of the Minister that they say underpinned both thedecisions that they seek to quash. NHS proposed to extend the hatchery. The project description did not reference the sea pens whereNHS planned to transfer the smolt. The Applicants say that the environmental impact of the hatchery expansion should not have beenconsidered without simultaneous review of the impact of the sea pens.

The Applicants say the determination of the Minister to considerthe land-based expansion as a stand-alone project was unreasonable. [5] The parties agree that the standard of review that the Court should apply is that of reasonableness. This would have been theresult before three recent decisions of the Supreme Court of Canada removed any doubt. The parties disagree as to whether the decisionof the Minister to release the hatchery expansion from further environmental review without including review of the sea cages wasreasonable. Whether it was, is the only issue in this case.

These recent Supreme Court decisions included clear instruction as to how toapply the reasonableness standard. [6] In order to apply the standard to the Minister’s decisions, I will first summarize the decision and the salient parts of the recordthat informed it. I will then refer to the instruction from the Supreme Court of Canada as to how to apply the standard. Finally, I willapply the standard as instructed. [7] I have determined that the decisions under review are unreasonable and ought to be quashed.

My reasons for that decision willbe explained as I go through the process I have described. review of minister’s decisions The Statutory and Regulatory Scheme [8] The decisions under review were made as an exercise of ministerial authority under the Environmental Protection Act and in

particular

Part X of the Act , which provides for a regime of government approval of projects with potential environmental impact. The purpose of this Part of the Act is described in

section 46 : 46. Purpose The purpose of this

Part is to (

a) protect the environment and quality of life of the people of the province; and (

b) facilitate the wise management of the natural resources of the province, through the institution of environmental assessment procedures before and after the commencement of an undertaking that may be potentially damaging to the environment. [ 9 ] The Act includes an absolute prohibition against projects being undertaken without environmental review: 48. A person shall not proceed with an undertaking unless that undertaking has been exempted or released under this Act . [ 10 ] The Act defines certain terms that have particular relevance in this matter: 2.

Definitions In this Act (a) "activity" means an activity or part of an activity as defined and prescribed by regulation (t) "minister" , unless the context indicates otherwise, means the minister appointed under the Executive Council Act to administer this Act ; (mm) "undertaking" includes an enterprise, activity, project, structure, work or proposal and a modification, abandonment, demolition, decommissioning, rehabilitation and an extension of them that may, in the opinion of the minister, have a significant environmental effect; [ 11 ] As well,

Part X of the Act includes specific defined terms germane to the question of environmental review. The terms defined in

Part X that have relevance to this matter are as follows: 45.

In this Part … (d) " environmental assessment " means a process by which the environmental effect of an undertaking is predicted and evaluated before the undertaking has begun or occurred; (e) " environmental impact statement " means a report that presents the results of an environmental assessment; (f) " environmental preview report " means a report presenting the results of an investigation based on readily available information that supplements the information provided by a proponent upon registration of an undertaking and which is necessary to assist the minister in making a determination as to whether or not an environmental impact statement is required; …

(h) " proponent " means a person who (

i) carries out or proposes to carry out an undertaking, or (ii) is the owner or person having charge, control or management of an undertaking; and (i) " release " means the release of an undertaking under

section 51, 54, 67 or 72 from the further application of the environmental assessment requirements of this Part. [ 12 ] As noted,

section 48 prohibits any non-exempt undertaking that has not been released. A proponent of a non-exempt undertaking seeks to have its project released by registering the undertaking: 49(1) A proponent shall, in the form and with the content prescribed by the minister and before proceeding with the final design of an undertaking, notify the minister of the proposed undertaking and that notification shall be considered to be a registration of the undertaking under this Act . [ 13 ] Unless Cabinet determines under

section 50 that the undertaking is contrary to law or policy, then the Minister must examine the proposed undertaking: 51(1) Where, following an examination by the minister under subsection 50(1), the Lieutenant-Governor in Council does not give a direction under subsection 50(2), the minister, using criteria prescribed by regulation, shall determine whether (

a) an environmental preview report is required; (

b) an environmental impact statement is required; or (

c) the undertaking may be released. [ 14 ]

Section 51 requires the Minister consider the undertaking pursuant to the criteria required in the Environmental Assessment Regulations, 2003 , Nfld. Reg. 54/03 . These include mandated screening criteria to be applied by the Minister to the determination whether an undertaking should be released or an environmental impact statement required: 23. Screening criteria for release 23(1) Where the minister releases an undertaking because (

a) there are no environmental or public concerns; or (

b) the environmental effects of the undertaking will be mitigated under

an Act of the province or of Canada , he or she, in making a determination under paragraph (

a) or (b), may consider (

c) the comprehensiveness of the description of the undertaking; (

d) whether or not there is a demonstrated commitment by the proponent to conduct an environmentally sound undertaking; (

e) the compatibility of the undertaking with other resource use in the area of the undertaking; (

f) whether or not the undertaking occurs in an environmentally or other sensitive area;

(

g) the defined boundaries of the undertaking and whether or not the undertaking is contained within that area; and (

h) the technology to be employed for the undertaking and whether or not it is environmentally benign. 23(2) In making a determination under paragraph (1)(b), the minister may consider (

a) issues of concern relating to the environmental effects of the undertaking; (

b) whether or not licences, certificates, permits, approvals or other documents of authorization required at law will mitigate the environmental effects referred to in paragraph (a); (

c) whether or not sufficient detail of the undertaking has been provided to determine the level of the known environmental effects of the undertaking; (

d) whether or not the means of determining further information have been identified; and (

e) the environmental effect of the technology to be used and mitigating factors of the technology. 25. Screening criteria for environmental impact statement 25(1) Where, the minister determines with respect to an undertaking that there (

a) may be significant negative environmental effects; or (

b) is significant public concern, the minister shall require an environmental impact statement. 25(2) In making a determination under paragraph (1)(a), the minister may consider (

a) whether or not the environmental baseline information provided with respect to the undertaking is sufficient for predicting environmental effects; (

b) whether or not original field data collection is required; (

c) whether or not the undertaking would be located in an environmentally sensitive area; (

d) whether or not hazardous or toxic substances in combination with unknown or experimental technology are intended to be used with respect to the undertaking;

(

e) whether or not the undertaking emissions, discharges or effluent may exceed limits imposed by law; (

f) the environmental effects of the undertaking upon rare or endangered species; and (

g) the economic importance of a resource to which the undertaking relates. 25(3) In making a determination under paragraph (1)(b), the minister may consider whether or not (

a) public acceptability of the undertaking is seriously questioned; and (

b) government policy has been established to address public concerns. [ 15 ] Under the heading of Aquaculture, the Regulations make specific provision for the registration of an undertaking such as the one under consideration in this matter: 29. Aquaculture An undertaking that will be engaged in farm raising fish or shellfish where that undertaking will intervene in the rearing process to enhance production by keeping the animals in captivity, stocking and feeding the animals and protecting the animals from predators including (

a) fish or shellfish farming in salt water or fresh water ; and (

b) fish or shellfish breeding and propagating or hatchery services, where the undertaking will include the construction of shore based facilities other than wharves and storage buildings and (

c) permanent marine trap or weir fisheries, shall be registered. [ 16 ] The Act makes provision for agreements between the provincial government and other governments for undertakings that have multi-jurisdictional aspects: 72(2) Notwithstanding

section 47, the minister may, with the approval of the Lieutenant-Governor in Council, enter into an agreement with the government of another province or territory, of Canada, or with a combination of them, with respect to the conduct of environmental assessments in accordance with a uniformly applied process. 72(3) Where an agreement is entered into under this section, this Part, a provision of this Part or regulations made with respect to this Part shall apply in accordance with the agreement only and the process established by that agreement shall be considered to satisfy the requirements of this Part or regulations made with respect to this Part. [ 17 ] At the hearing of this matter, the Minister filed a 1988 Agreement between the Province and Canada that delineated the respective legislative and regulatory jurisdiction of each level of government in respect of the aquaculture industry.

This Agreement was not part of the record before the Minister, and was not referenced by either the proponent or the opponents of the Project, or by staff of the Minister’s department or any other government department or agency that advised the Minister. More importantly, this agreement provided for legislative and regulatory jurisdiction. It was not an agreement “with respect to the conduct of environmental assessments in accordance with a uniformly applied process.” It therefore did not constitute an agreement prescribed by

section 47 and did not displace the application of the Act or Regulations . [ 18 ] Finally, in order to complete the description of the statutory and regulatory scheme, I note the provisions that led to the involvement of the Applicants in this matter.

[ 19 ] The Regulations require an opportunity for public input: 3(2) The minister shall announce the registration of an undertaking not more than 7 days after that registration and shall make copies of the registration documentation available to interested members of the public. 3(3) A person who wishes to make responses to or comments on registration documentation made available under subsection (2) shall submit those responses or comments to the minister, in writing, not more than 35 days after the announcement is made under that subsection. [ 20 ] The Act allows for appeal from a decision of the Minister, including a decision to release an undertaking from environmental review: 107.

Appeal to minister 107(1) A person to whom subsection 108(1) does not apply, who is aggrieved by a decision or an order made under this Act , may appeal that decision or order to the minister by notice in writing, within 60 days of receipt of that decision or order, stating the reasons for the appeal. 107(2) The minister shall notify the appellant, in writing, of his or her decision within 30 days of receipt of the notice of appeal. 107(3) The minister may dismiss the appeal, allow the appeal or make another decision or order that may be made under this Act . [ 21 ] The reference to

section 108 does not apply in this case. [ 22 ] The Act does not provide a statutory right of appeal from an appellate decision of the Minister under

section 107; neither does the Act expressly include a provision that such a decision is final or not reviewable. The Record The Environmental Registration Submission for the Hatchery Expansion [ 23 ] NHS submitted the Project for environmental registration on July 10, 2018. The Project was described as necessary to increase the quantity and improve the quality of salmon smolts produced at the hatchery and was comprised of three major components: upgrades to the existing hatchery; expansion of the hatchery on land; and new supporting infrastructure. [ 24 ] The cover letter that delivered the submission, and the Executive

Summary of the submission, stated that the Project would provide smolts to the licensed sea cage sites that belong to Northern Harvest Sea Farms. [ 25 ] The dispute between the parties is cast in sharp relief by a particular aspect of this case disclosed by the record. Prior to presenting the Project for registration, NHS advised the Department that it intended to construct 12 new sea cages to raise the smolt produced by the hatchery expansion. The department advised NHS that these new sea cages would have to be included in the environmental review.

NHS changed its plans and the Project presented for registration instead stated an intention to raise the smolt in existing sea cages. NHS still intended to construct 12 new sea cages, but to stock those cages with smolt from a different source. [ 26 ] As required by the Act and Regulations , the Minister obtained technical advice from the staff of his Department, other Departments, and the federal Government, as well as public input. This advice from civil servants was summarized in a memo from John Reynolds, Environmental Scientist (the “Reynolds Memo”).

The submission and the documents provided in response to these requests for input constituted the record before the Minister upon which he based his decision to release the Project from further environmental review. His decision to dismiss the

section 107 appeal also took into account the submissions on appeal. Government Screening Committee Memo and Public Input [ 27 ] The Reynolds Memo included a

summary of the recommendations of the Government Screening Committee. This process involved review of the Registration Submission by Departments and Agencies of the provincial and federal governments with jurisdiction or responsibility for aquaculture and related programs. All recommended release of the Project. [ 28 ] The Minister also sought public input as required by the Regulations . Municipalities, economic development agencies, environmental groups, indigenous governments, commercial fish harvesters, business owners, recreational fishing groups, and individuals responded.

As is often the case, public opinion was divided. Some groups and individuals were in support of the Project because of the economic, industrial, and technological benefits it would bring. Others, including each of the Applicants, warned of the risks to the environment and existing species of fish and birds that would be created by the Project. Many of those who advocated both for and against the Project focused not on the expansion of the land-based hatchery, but rather, on the benefits or risks presented by the increased production of adult salmon in sea cages.

The Release Decision [ 29 ] On September 4, 2018, the Minister released the Project from further environmental assessment. The release was subject to certain conditions, none of which is relevant to the issues in this case.

[ 30 ] On the same day the Minister notified NHS of the release, he also wrote directly to two of those who had responded to the request for public input, advising the Project was released. In that correspondence, the Minister addressed the concern that the Project description submitted for registration by NHS did not include reference to the sea cages where the salmon smolt produced at the expanded hatchery were going to be raised to adulthood: I have reviewed your concerns that the proponent does not describe marine sea cage sites in their registration document. As per

section 29 of the Environmental Assessment Regulations , the development of marine sea farms is considered an undertaking for the purposes of an environmental assessment only where there is the construction of shore-based facilities other than wharves and storage buildings, such as hatcheries. As a result, within the province marine sea farms and hatcheries have developed both separately and with each other. The first scenario has occurred when the marine sea farms were operating prior to the hatchery construction, often because of being stocked with smolt from hatcheries outside of the province.

The second scenario has occurred when new marine sea farms are proposed for development in conjunction with the development of a hatchery. The proponent advised, and the Department of Fisheries and Land Resources concurs, that the marine sea cage sites, intended to be stocked with smolt coming from this hatchery expansion, are licensed sites that went through the licensing process, which included a provincial and federal review process. The smolt they intend to use will continue to be the St. John’s River stain [ sic ].

Furthermore, they advise that while they do intend to increase production, that increase will occur on licensed sites that have not been stocked to their full capacity of any of its sites. As a result, we have determined that the marine sea cage component does not require further environmental assessment. [ 31 ] I will refer to the letter notifying NHS of release and the letters to the opponents of the Project collectively as the Release Decision. The

section 107 Appeals to the Minister [ 32 ] Two appeals were made to the Minister pursuant to

section 107 of the Act . The first was by an individual named Bill Bryden; the second was on behalf of a number of individuals and groups, including all of the Applicants in this matter. [ 33 ] The essence of both

section 107 appeals was the same: the statute, regulations, and common law principles required the Minister to consider the Project as including the sea cages in which the salmon smolt from the hatchery expansion were to grow to adult size. The Appellants argued that (

i) the hatchery expansion and increase in fish in the sea cages would happen simultaneously, (ii) the same entity ultimately owned both the hatchery and cages and (iii) the hatchery expansion and increase in number of fish in cages were therefore connected actions. The hatchery expansion and increased utilization of sea cages were as much connected actions as the related operations under consideration in Atlantic Salmon Federation (Canada) v. Newfoundland (Environment and Climate Change) , 2017 NLTD(G) 137 (“ Atlantic Salmon Federation ”), a decision of Justice Butler of this Court that I will discuss in detail later in these reasons. The appellants argued that purposeful

interpretation of

section 29 of the Regulations required examination of both the hatchery expansion and increase in stocks in the sea cages. Therefore, the decision of the Minister to release the Project from further review without consideration of the environmental impact of the sea cages effectively allowed the increase in fish caging to escape environmental scrutiny and was unlawful. [ 34 ] Several community groups wrote to the Minister advocating that he should dismiss the Appeals.

In the main, these submissions highlighted the economic benefits of the aquaculture industry, although several noted that the sea cages were already licensed. NHS also responded to the Appeal, arguing that the scope of the Project was properly confined to the expansion of the shore-based hatchery and that the cages were already licensed and required no expansion.

NHS argued that sea cages were subject of federal jurisdiction and subject to environmental assessment under federal legislation. [ 35 ] The provincial Department of Fisheries and Land Resources provided input by means of an Information Note in response to the

section 107 Appeals. The most important points made in the Note were that the sea cages were licensed to receive the number and strain of salmon to be produced by the hatchery expansion, and that the cages “already underwent an extensive federal and provincial review under the aquaculture licensing process, which included an environmental review and public consultation.” The Department of Justice and Public Safety was consulted by the Minister and his staff in preparation of the decision on appeal, although no written material from that Department was included in the Record. The Minister’s Decision on the

Section 107 Appeals [ 36 ] The Minister dismissed the appeals. [ 37 ] The Minister determined the hatchery expansion and sea cages were not connected actions: The sea farms were developed, licensed, and operated prior to the existence of the Indian Head Hatchery and they do not require this Hatchery in order to function. Any increase in production could be supplied through smolts obtained from other hatcheries as the proponent described as an alternative on the registration document.

As the sea farms have separate utility from and can proceed without the hatchery expansion, they cannot be considered connected actions. [ 38 ] The Minister decided that because the Project was an expansion to an existing hatchery and the sea cages were already licensed and operating, the matter under appeal was distinct from the matters under consideration in Atlantic Salmon Federation . [ 39 ] The Minister further determined that purposeful application of

section 29 of the Regulations did not require that the hatchery expansion and increased utilization of sea cages be considered together: The 33 NHS marine sea farm sites, intended to be stocked with fish coming from the hatchery expansion, are existing aquaculture licensed sites that completed the licensing process. NHS advises that while they do intend to increase production, that increase will occur

on fully licensed sites that have not been stocked to their full licensed capacity and that NHS has not submitted any plans to expand site perimeters or capacity of any of its sites. The marine sea farm sites associated with this undertaking have been evaluated in accordance with the established licensing process and existed prior to the proposed expansion of the hatchery. No modifications to the existing licensed marine sea farms are required. … As existing undertakings, the sea farms do not require environmental assessment.

The Act obliges a proponent to notify the Department before the final design of a proposed undertaking. Once that information is received, an examination of it commences. The Act does not authorize the assessment of an existing undertaking unless the proposal is to modify, extend, or otherwise deal with one.

The prediction and evaluation of environmental effects as they relate to this undertaking only involve the expansion and upgrade of the Indian Head Hatchery. [ 40 ] As to the argument by the Appellants that the result of the exclusion of the increased utilization of the sea cages from the scope of the Project was to allow the proponent to avoid environmental review of the sea cages, the Minister determined that the environmental impact of the sea cages had already been sufficiently considered: Although the existing sea farms to be stocked by the hatchery expansion did not require environmental assessment, they are still subject to the licensing process and provincial and federal regulatory regime.

The aquaculture industry is subject to provincial legislation under the mandates of the Department of Fisheries and Land Resources and the Department of Municipal Affairs and Environment. It is also subject to federal regulation under the mandates of Fisheries and Oceans Canada, Transport Canada, Environment and Climate Change Canada, Health Canada, and the Canadian Food Inspection Agency.

The federal Aquaculture Activities Regulations provide conditions under which aquaculture operators can install, operate, maintain, and remove an aquaculture facility, as well as how they take measures to treat their fish for disease and parasites, and deposit organic matter. [ 41 ] The Minister concluded: Therefore, the Indian Head Hatchery expansion does not create any increase in the marine environmental footprint that has not already been evaluated and approved through the required provincial and federal regulatory regime.

Administrative Law and the Task of this Court [ 42 ] The exercise engaged by this Application is one requiring the Court to apply the principles of administrative law. The Courts are not the only decision makers in our society. Indeed, most decisions that affect individuals and corporations are made by administrative tribunals or by agencies of the executive branch of government charged with the application of legislation and regulation. Whenever the government delegates executive decision-making authority, it tasks the decision maker with choosing which of multiple competing interests will prevail.

In every decision there is the potential for arbitrariness, capriciousness, inconsistency, or unfairness. The role of the Courts is to ensure that such potential is not realized and that decisions are consistent with the rule of law. [ 43 ] The Supreme Court of Canada has recently given renewed direction to the Courts on how to fulfill this role. In three cases ( Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 ; Bell Canada v. Canada (Attorney General) , 2019 SCC 66 ; Canada Post Corp. v.

Canadian Union of Postal Workers , 2019 SCC 67 ) heard at the same time, the Court, having given notice of its intention to do so and inviting intervenors to present in those cases, revisited the law regarding judicial review of administrative decisions. These decisions were released following argument in this case, and I requested the parties to make specific additional submissions. As directed, my decision will be guided by this restatement of the law. Standard of Review [ 44 ] In this case, the parties agree that reasonableness is the applicable standard.

The Supreme Court held that the presumptive standard the Court should apply to determine whether an administrative decision is consistent with the rule of law is reasonableness. The word “reasonable” in this context does not mean that the decision is a moderate, or “good enough” approximation of some notionally correct decision. Rather, it is intended to convey the primary meaning of the word: internally logical and rational, based on reason. Of course, a logical conclusion can be reached from fallacious premises and logic alone does not ensure compliance with the rule of law.

Therefore, judicial review must include consideration of the legal context for the decision and assess whether the decision proceeds logically from the law and the facts in the record. As the majority put it in Vavilov at paragraph 85 : “a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker.

The reasonableness standard requires that a reviewing court defer to such a decision.” [ 45 ] The factual context includes the evidence in the record before the decision maker, and if applicable, the submissions made by parties. The most important aspect of legal context will usually be the governing statutory scheme, but other considerations can include related statutes, common law principles including precedent and past practices of the administrative body, and principles of statutory

interpretation. Very often, application of the standard of review will turn on the

interpretation of the statutory or regulatory provisions or precedents that provide the legal context. In most cases, there will not be a single, right

interpretation, and the Supreme Court in Canada Post has directed reviewing Courts how to proceed to assess the decision maker’s choice of

interpretation: 42 Where the meaning of a statutory provision is in dispute, the administrative decision maker must demonstrate in their reasons that they were alive to the "essential elements" of statutory

interpretation: "the merits of an administrative decision maker's

interpretation of a statutory provision must be consistent with the text, context and purpose of the provision" ( Vavilov , at para. 120 ). Because those who draft statutes expect that the statute's meaning will be discerned by looking to the text, context and purpose, a reasonable

interpretation must have regard to these elements — whether it is the court or an administrative decision maker tasked with the interpretative exercise

(Vavilov , at para. 118). In addition to being harmonious with the text, context and purpose, a reasonable

interpretation should conform toany interpretative constraints in the governing statutory scheme, as well as interpretative rules arising from other sources of law. … The Legal Context Environmental Legislation, the EPA and EPA Regulation 29 [46] The Applicants argue that the Minister’s decisions were unreasonable because he applied an overly narrow

interpretation of theAct and Regulations that failed to properly account for important interpretative principles. The decision was not consistent with the text,context, and purpose of the Act and Regulations, and therefore did not conform to the legal constraints imposed on the Minister asdecision maker. The Applicants’ arguments are twofold: • First, the Applicants argue the

interpretation of

section 29 of the Regulations adopted by the Minister is unreasonable and; • Second, the principles of

interpretation of environmental legislation required the Minister consider the Project scope as includingboth the expansion of the hatchery and the increased utilization of existing sea cages. [47] The legal context in this matter is suffused with the magnitude of environmental concerns recognized by legislatures and courts. The wording of legislation must be read in context and using the ordinary rules of grammar, syntax, and meaning.

However,environmental protection is a fundamental value of Canadian society; environmental protection legislation and regulation must thereforebe interpreted broadly and liberally, using the precautionary approach that supports protection over remediation: 114957 Canada Ltée(Spraytech, Société d'arrosage) v. Hudson (Town) 2001 SCC 40; Newfoundland and Labrador (Environment and Climate Change) v.Atlantic Salmon Federation (Canada), 2018 NLCA 53; Labrador Inuit Assn. v. Newfoundland (Minister of Environment & Labour)(1997), (NL CA), 155 Nfld. & P.E.I.R. 93, 481 A.P.R. 93 (Nfld.

C.A.). [48] The Applicant argues that broad, purposive

interpretation of the Act and

section 29 of the Regulations leads to the conclusionthat the undertaking in this case included both the hatchery expansion and the sea cages. [49] It is important to note at this stage that

interpretation of the Act and Regulations have been considered by this Court and by theCourt of Appeal in another aquaculture case: Newfoundland and Labrador (Environment and Climate Change) v. Atlantic SalmonFederation (Canada), 2018 NLCA 53, aff’g Atlantic Salmon Federation (Canada) v. Newfoundland (Environment and Climate Change),2017 NLTD(G) 137 (“Newfoundland and Labrador (Environment and Climate Change)”). [50] In that case, a majority of the Court of Appeal set out the proper

interpretation of the legal constraints imposed by the Act andRegulations on the Minister releasing a project from environmental review: Interpreting the language in the Regulations in the "ordinary and grammatical sense": The mandatory "rules" in

section 25 andthe "exceptions" in

section 23 253

Section 25 establishes presumptive, mandatory rules which direct the Minister to require an environmental impact statement incertain circumstances.

Section 23 outlines the exceptions, when the Minister is not required to follow these rules, and may release aproject without ordering that an environmental impact statement be prepared. 254 In this framework, the "rules" in section 25(1) mandate an environmental impact statement before a project is released, in either oftwo separate circumstances, namely, where the Minister determines: (

a) there may be significant negative environmental effects; or (

b) there is significant public concern. 255 The "exceptions" to these rules are found in section 23(1), and allow a project to be released in either of two separatecircumstances, namely because: (

a) there are no environmental or public concerns; or (

b) the environmental effects of the undertaking will be mitigated under

an Act of the province or of Canada 256 Section 23(1)(a), then, provides for the first "exception" to the rule requiring an environmental impact statement.

257 It allows the Minister to greenlight and release an undertaking because there are no environmental or public concerns. Clearly, and as discussed above, this

section does not apply to the project, as there are environmental and public concerns. 258 Section 23(1)(

b) provides for the second "exception". 259 It states that an undertaking may be released because the environmental effects will be mitigated. Presumably this reference to environmental effects relates to the mandatory rule, in section 25(1)(a), that requires an environmental impact statement (and precludes the release of an undertaking) where there may be significant negative environmental effects. 260 The language chosen by the legislature is important here. 261 Both the mandatory rule in section 25(1)(a), and the exception to this rule, in section 23(1)(b), refer specifically to environmental effects. 262 The mandatory language of section 25(1)(

a) means that an undertaking cannot be directly released (without an environmental impact statement) where there may be significant negative environmental effects, whereas the language of section 23(1)(

b) provides for release where the environmental effects will be mitigated. 263 The language used in section 23(1)(b), which allows for release without further environmental assessment, focuses exclusively on the environmental effects. 264 It does not, however, address public concern. 265 That is,

section 23 does not provide an exception to allow for the release of an undertaking in the other circumstance when an environmental impact statement is required by the legislation; namely, where there is significant public concern under section 25(1)(b). 266 As discussed above, public concern and environmental effects are separate and distinct bases, in

section 25, on which the Minister shall require an environmental impact statement. 267 Either significant public concern or significant negative environmental effects will trigger this requirement. 268 There is nothing in the language of section 23(1)(

b) to permit an

interpretation that displaces the requirement for an environmental impact statement in circumstances where the Minister has determined that there is significant public concern. 269 To allow a release under section 23(1)(

b) would ignore the clear language of section 25(1)(b), which states that a determination that there is significant public concern mandates the Minister to require an environmental impact statement before making a decision on release. 270 Public concern and environmental effects are separate issues, and are treated distinctly in the Regulations. To conflate them, unilaterally, would do violence to the legislative language. 271 The Minister purported to release the project under section 23(1)(b). However, this

section cannot be used to release the project without an environmental impact statement where, as here, the Minister has determined there are significant public concerns.

272 The language of section 23(1)(b), interpreted in its "grammatical and ordinary sense", does not support the Minister's

interpretation in this regard. Analysis and Application to this case

Summary of Rationale for Minister’s Decisions [ 51 ] The Minister based both his Release Decision and the decision on appeal on the same reasons, which I paraphrase as follows: 1. Under

section 29 of the Regulations , the development of marine sea farms is considered an undertaking for the purposes of an environmental assessment only where there is the construction of shore-based facilities; 2. The Act does not authorize the assessment of an existing undertaking unless the proposal is to modify, extend, or otherwise deal with one; 3. As the sea farms have separate utility from and can proceed without the hatchery expansion, they are not connected actions; 4.

The hatchery expansion did not create any increase in the marine environmental footprint that had not already been evaluated and approved through the required provincial and federal regulatory regime. [ 52 ] I will consider the reasonableness of the decisions within the framework of the rationale expressed by the Minister.

Interpretation of the Regulations,

Section 29 [ 53 ] The Applicants say the wording of

section 29 inextricably links onshore facilities and the sea cages. [ 54 ] For ease of reference I repeat

section 29: 29. Aquaculture An undertaking that will be engaged in farm raising fish or shellfish where that undertaking will intervene in the rearing process to enhance production by keeping the animals in captivity, stocking and feeding the animals and protecting the animals from predators including (

a) fish or shellfish farming in salt water or fresh water ; and (

b) fish or shellfish breeding and propagating or hatchery services, where the undertaking will include the construction of shore based facilities other than wharves and storage buildings and (

c) permanent marine trap or weir fisheries, shall be registered. [ 55 ] The onshore hatchery expansion was clearly required to be registered pursuant to

section 29. It will intervene in the rearing process to enhance production by keeping the animals in captivity, stocking and feeding the animals and protecting the animals from predators. It will include fish hatchery services and the construction of shore-based services other than wharves and storage buildings. [ 56 ] A project involving only the construction of sea cages would not require registration under

section 29. New sea cages would intervene in the rearing process to enhance production by keeping the animals in captivity, stocking and feeding the animals and protecting the animals from predators but would not involve construction of shore-based services, a permanent marine trap or weir fisheries, which catch live fish. [ 57 ] The record discloses that the Department interpreted

section 29 to require registration to include new sea cages built in conjunction with new shore-based facilities. The only

interpretation that would support this practice would utilize a definition of the word “undertaking” to include both the shore-based facilities and the new sea cages. [ 58 ] Therefore, according to the Minister’s

interpretation of

section 29, sea cages are only subject to environmental registration, and therefore environmental assessment, in the event the proponent develops new sea cages simultaneously with the construction of shore- based facilities. [ 59 ] The Reynolds Memo included the following position regarding the application of

section 29 of the Regulations :

As per

section 29 of the Environmental Assessment Regulations , the development of marine sea farms is required to complete an environmental assessment only where there is the construction of shore-based facilities other than wharves and storage buildings, such as hatcheries. As a result, within the province marine sea farms and hatcheries have developed both 1) separately and 2) with each other.

The proponent advised, and FLR concurs, that the marine sea cage sites intended to be stocked with fish coming from the hatchery expansion are licensed sites that went through the licensing process, which included a provincial and federal review process. Furthermore, they advise that while they do intend to increase production, that increase will occur on fully licensed sites that have not been stocked to their full licensed capacity and that they have not submitted any plans to expand site perimeters or capacity at any of its sites.

Advice was sought from JPS regarding whether or not a description of pre-existing sea cages is required for this project and they advised in a meeting with the Environmental Assessment Division on August 30, 2018, that continuing to allow hatcheries to proceed through environmental assessment without considering the pre-existing marine sea farms may be defensible.

However, valid arguments could be made on both sides of a challenge and the Environmental Assessment Act and Environmental Assessment Regulations are not clear as to whether pre-existing components of projects should be considered and there is a risk of a legal challenge if the pre-existing cages are not assessed as well.

Section 29 of the Regulations , as written, creates a situation where in some instances marine sea farms are required to undergo environmental assessment and in others they are not. The Environmental Assessment Division recognizes the confusion that creates for the industry and the public. In consideration of the level of public acceptability of aquaculture and existing regulatory requirements, the Regulations should be clarified to either always or never require the registration of marine sea farms. [ 60 ] The answer to the question whether the sea cages intended to be stocked from the hatchery expansion were required to be part of the environmental registration does not lie in

interpretation of

section 29. That provision does not exclude sea cages from the scope of an aquaculture undertaking. It says only that an aquaculture undertaking that will include shore-based services or marine weirs or traps must be registered. [ 61 ] In Atlantic Salmon Federation , Butler J. noted the following jurisdictional consideration as impacting on

interpretation of

section 29: 102 Federation counsel suggests that there is a jurisdictional explanation for why certain aquaculture projects require registration as designated undertakings. Relying upon the principled approach to statutory

interpretation, he suggests that fisheries is predominantly under Federal jurisdiction, but that

section 29 of the Regulations addresses an aquaculture undertaking that involves both provincial elements (i.e. a shore-based component) and Federal elements. For these designated aquaculture projects, registration is a requirement. 103 I accept that this is the plain meaning of

section 29 of the Regulations . [ 62 ] I also accept that

interpretation. [ 63 ] However, the answer to the question whether the sea cages in this case were required to be part of the environmental review does not depend upon jurisdictional considerations. The Department considers it has jurisdiction over environmental review of sea cages if they are newly built in connection with shore-based services. This jurisdictional nexus does not arise with the new construction of sea cages. It arises from the construction of shore-based facilities and use of related sea cages, and the connection between the two.

There is no jurisdictional reason that precludes the Minister from reviewing existing sea cages if the proponent intends to utilize the cages in connection with shore-based facilities. [ 64 ] Therefore, the Minister’s rationale for the release and for dismissing the appeal based on

interpretation and application of

section 29 is not reasonable. As noted, the Minister determined in previous cases that the use of new marine sea farms is considered an undertaking for the purposes of an environmental assessment where utilized in conjunction with construction of shore-based facilities. There is no logical chain of analysis that leads from the legal context imposed by

section 29 to the conclusion that environmental review was not required for existing sea cages intended to be stocked from the hatchery expansion. Does the Act apply to require consideration of an existing facility? [ 65 ] As noted, the Minister determined the Act does not authorize the assessment of an existing undertaking unless the proposal is to modify, extend, or otherwise deal with one.

There is no exposition in either decision of the line of reasoning that led to this broad conclusion. [ 66 ] The factual findings upon which the Minister based his determination are set out in the response of the Minister to those opposing the release of the Project: The smolt they [NHS] intend to use will continue to be the St. John’s River stain [sic].

Furthermore, they advise that while they do intend to increase production, that increase will occur on licensed sites that have not been stocked to their full licensed capacity and that they have not submitted any plans to expand site perimeters or capacity of any of its sites. [ 67 ] The Minister addressed the legal question whether existing sea cages must be subject to environmental review when intended to be utilized by a new or expanded onshore facility: As existing undertakings, the sea farms do not require environmental assessment.

The Act obliges a proponent to notify the Department before the final design of a proposed undertaking. Once that information is received, an examination of it commences. The Act does not

authorize the assessment of an existing undertaking unless the proposal is to modify, extend or otherwise deal with one. [ 68 ] The Minister did not elaborate on this determination or provide any support for it.

In the Reynolds Memo there is discussion of advice from the Department of Justice and Public Safety that appears to bear on the issue: Advice was sought from JPS regarding whether or not a description of pre-existing sea cages is required for this project and they advised in a meeting with the Environmental Assessment Division on August 30, 2018, that continuing to allow hatcheries to proceed through environmental assessment without considering the pre-existing marine sea farms may be defensible.

However, valid arguments could be made on both sides of a challenge and the Environmental Assessment Act and Environmental Assessment Regulations are not clear as to whether pre-existing components of projects should be considered and there is a risk of a legal challenge if the pre-existing cages are not assessed as well. [ 69 ] The record does not include any request from the Minister or his staff for further elucidation of this discussion.

It also does not include any explanation as to how the Minister chose between these two conflicting positions, which he was advised were equally valid. [ 70 ] The record also includes the submissions made by the parties to the Release Decision and the

section 107 appeals. NHS responded to the appeals by letter from its solicitors, in which the following arguments are set out: The authority of the Ministry to conduct an environmental assessment under

Part X of the EPA arises when new undertaking, or a modifications to an existing undertaking, is proposed through the registration process.

Section 48, described on page 3 of Ecojustice’s letter, along with the definition of environmental assessment which is set out below, demonstrates that

Part X of the EPA , and the EA Regs, applies to undertakings before they are constructed (or changed) “environmental assessment” means a process by which the environmental effect of an undertaking is predicted and evaluated before the undertaking has begun or occurred [original emphasis] The EPA does not include the authority to assess undertakings which are already permitted and operating. It is not retroactive, and cannot be used to require assessment of existing and fully licensed projects.

This is a threshold issue for the Minister who simply does not have the authority to accept the registration, or conduct an assessment of, an existing permitted undertaking, unless it is being modified. [ 71 ] The question identified by the Minister was whether an existing structure that was built without being subject to provincial environmental oversight, could be required to undergo environmental assessment under the Act if proposed to be utilized in connection with another facility, the hatchery expansion, which was subject to provincial environmental legislation. [ 72 ] The Act does not prohibit environmental review of existing operations and even expressly allows for it: 46.

Purpose The purpose of this

Part is to (

a) protect the environment and quality of life of the people of the province; and (

b) facilitate the wise management of the natural resources of the province, through the institution of environmental assessment procedures before and after the commencement of an undertaking that may be potentially damaging to the environment. [emphasis added] [ 73 ] Environmental protection is a fundamental value of Canadian society and environmental protection legislation and regulation must therefore be interpreted broadly and liberally using the precautionary approach that supports protection over remediation. A restrictive reading of the Act that is not based in the text and appears to contradict the actual words used is not consistent with the accepted approach to

interpretation of environmental legislation. The Act does not expressly exclude existing facilities from environmental review. A broad and purposive reading of the Act , bearing in mind the precautionary principle, would support an

interpretation that required the inclusion of the sea cages in the scope of the environmental review [ 74 ] The Minister did not explain his reasons for his adoption of an

interpretation that he was aware was one of two valid but opposite readings. His reasons therefore did not demonstrate that he was “alive to the essential elements of statutory

interpretation.” Moreover, the

interpretation of the Act that he adopted was not “harmonious with the text, context and purpose” of the legislation or the interpretative rules that the authorities mandate for use in reading environmental legislation. Consequently, his decision on this issue was not reasonable. Project Scoping - the “connected actions” test [ 75 ] The first question to be resolved here is whether the Minister had any discretion to exercise in deciding what components of the Project to review, or whether he was bound only to consider the Project in the scope with which it was presented by the proponent. [ 76 ] NHS set out its position on this issue in its solicitor’s letter responding to the

section 107 appeals:

…it is the proponent who decides what they will register for assessment under s. 49 of the Environmental Protection Act (“ EPA ”). While s. 49 requires the registration to be “in the form and with the content prescribed by the Minister”, neither the EPA , nor the Environmental Assessment Regulations (“EA Regs”) provide any explicit guidance or requirements for registration documentation. Ecojustice concedes this on page 3 of the letter.

The role of the Minister at that stage is to review registration documentation to determine if a registration is contrary to law or policy; to indicate to the proponent whether there is any further information that is needed; and to post the registration documentation for public comment. Once the public comment period is complete, the Minister must make a determination as to whether the undertaking should be sent for further assessment or be released. [ 77 ] NHS included the increase in utilization of the sea cages as part of its registration. In the Executive

Summary that accompanied the registration, the proponent said: This document is prepared for the Newfoundland and Labrador Department of Municipal Affairs and Environment (Project Registration), pursuant to the Newfoundland and Labrador Environmental Protection Act , for the expansion and upgrading of the licensed Indian Head Hatchery, owned by Northern Harvest Smolt (NHS) in Stephenville, NL. The Indian Head Hatchery provides smolt for the Northern Harvest Sea Farms (NHSF) licensed saltwater farms, with a production capacity of 4.5 million fish annually from egg incubation through to smolt.

The proposed expansion will bring production to 6.7 million smolt annually. [ 78 ] The bulk of the registration submission described the expansion of the onshore facilities. But, it is wrong to suggest that the submission did not include the sea cages. [ 79 ] NHS argues that the parameters of a Project are set solely by the proponent in its submission for registration, and that the role of the Minister is to consider the Project as confined by the proponent. [ 80 ] The exercise of outlining the Project for consideration is known as scoping.

In the federal environmental regime, the question of responsibility for scoping is explicitly prescribed by legislation. In her Atlantic Salmon Federation decision, Butler J. determined to quash both a Minister’s decision to register and to release an aquaculture project from environmental assessment. The scoping question arose because the Project as originally submitted for registration had three components: a hatchery, sea cages, and processing.

However, the Minister determined the Project could be considered without including the processing plant, and the proponent withdrew the registration and submitted another that excluded the plant. This raised the scoping question. [ 81 ] Butler J. determined that the registration decision was reasonable and within the range of possible outcomes. She decided that the release decision was unreasonable.

Her determination on the release decision was affirmed on appeal, but her decision on the registration decision was not appealed. [ 82 ] An initial important point that arises from Butler J.’s decision is her finding that the Minister had a registration decision to make. In other words, she did not accept the position advocated for by NHS in this case, that the question of scoping is entirely in the hands of the proponent and the Minister’s role is merely to review the Project as presented. Butler J. concluded that

section 49 of the Act , read together with

section 3 of the Regulations , provided the Minister with the power to deny registration to an insufficiently described project. [ 83 ] In this case, the Applicants do not seek a direct remedy overturning the registration decision. However, all parties agreed the registration decision was one that was “underlying” the Release Decision. As the Minister put it in written argument before this Court, “it is implicit in the Minister’s Release Decision that the undertaking was properly registered.” I accept this position, and therefore, will consider the reasonableness of this underlying decision.

I also accept the conclusion that necessarily follows: if the registration or scoping decision was unreasonable, then this renders the Release Decision unreasonable, as release depended upon registration. [ 84 ] There is no explicit statutory or regulatory direction to guide the Minister in the scoping or registration decision. As noted by Butler J. in Atlantic Salmon Federation , the situation is different in the federal sphere. Referring to the Federal Court decision in Conseil des Innus de Ekuanitshit v.

Canada (Procureur général) , 2013 FC 418 , she noted: 71 In determining that the decision (not to expand the scope of the Project) was reasonable, the Federal Court confirmed that discretion existed under

section 15 of the CEAA to determine "what elements of a proposed undertaking will make up a project for the purpose of an EA". It cited jurisprudence which established limits to the discretion and referenced statutory examples whereby a project's scope could be increased beyond that proposed (paragraph 54). 72 Also of assistance to the Minister and the Federal Court in Conseil des Innus was the Operational Policy Statement ("OPS") which established that when two projects could be considered "connected actions" they should generally be scoped together.

It provided that two projects are connected actions when (1) one project is automatically triggered by another; (2) one project cannot proceed without the other; or (3) both are part of a larger whole and have no independent utility if considered separately" (paragraph 57). [ 85 ] Notwithstanding that the Act and Regulations did not set out direction or guide the Minister in considering a scoping decision, Butler J. found that the registration decision under the environmental regime in this Province requires the same degree of attention: 76 The stated purpose of

Part X of the Act is protection of the environment and quality of life of the people of the Province and the facilitation of wise management of the Province's natural resources (section 46).

While the Act does not provide this Court with the same guidance that the CEAA gave the Federal Court, the public interest at stake is nevertheless the same, namely, whether the proponent had properly addressed the Project's true environmental footprint or was restricting what it chose to register in an effort to avoid environmental scrutiny by the appropriate officials. [ 86 ] In the absence of explicit statutory or regulatory direction or guideline, Butler J. determined that the connected actions test set

out in federal operational guidelines and applied by the Federal Court in Conseil des Innus are relevant and helpful in considering theregistration decision. I also find this test helpful in considering the scoping question that is at the heart of this case.

The connectedactions test appropriately defines the considerations that should guide the decision of the Minister. [87] The connected actions test considers that two activities are connected when (1) one project is automatically triggered byanother; (2) one project cannot proceed without the other; or (3) both are part of a larger whole and have no independent utility ifconsidered separately. [88] In the appeal decision, the Minister considered the argument by the

section 107 Appellants that application of the connectedactions test should result in a finding that the scope of the Project included both the hatchery expansion and increased utilization of thesea cages. The Minister found as follows: The undertaking as registered proposes to expand and upgrade the existing Indian Head Hatchery. While this expansion and upgradingwill provide more smolt to fully utilize the 33 existing licensed NHS marine sea farms, the focus of the undertaking is the existingphysical structure of the hatchery.

The sea farms were developed, licensed, and operated prior to the existence of the Indian HeadHatchery and they do not require this Hatchery in order to function. Any increase in production could be supplied through smoltsobtained from other hatcheries as the proponent described as an alternative in the registration document. As the sea farms have separateutility from and can proceed without the hatchery expansion, they cannot be considered connected actions. [89] The logic in this finding is flawed as it considers the connection between the hatchery and sea cages only from one perspective.

Although the sea cages could have independent utility from the hatchery expansion, the hatchery expansion does not have independentutility from the sea cages. The hatchery expansion could not proceed unless the smolt produced there could be placed in sea cages to beraised to commercial size. [90] I find support for this finding in the decision of the Supreme Court of Canada in Quebec (Attorney General) v. Canada(National Energy Board), (SCC), [1994] 1 S.C.R. 159.

In that case, the Court was considering a decision of theNational Energy Board to grant export license to Hydro-Quebec to export electrical power to the United States. One issue was whetherthe Board had erred in ordering the issuance of the licence conditional on the successful completion of environmental review of plantscontemplated to generate the electricity for export. The Supreme Court accepted a finding below that the contemplated plants wouldhave to be built irrespective of the export contract in order to fulfill increasing domestic demand.

Hydro-Quebec argued that, therefore,any environmental effects of the plants were not properly considered in determining the application for the export licence. The SupremeCourt found that the relationship between the export licenses and the power plants was established notwithstanding that the plants mightbe built in any event: 61 However, such a task is particularly difficult in this case, given the Board's finding that, although existing facilities were notsufficient to service the contracts, the new facilities contemplated would have to be built in any event to supply increasing domesticneeds.

The approval of the application for the licences would therefore simply have the effect of accelerating construction of thesefacilities, and the environmental effects of the acceleration alone were found not to be significant. Nevertheless, in my opinion, the Boarddid not err in giving some weight to the environmental effects of the construction of the planned facilities.

To say that such effectscannot be considered unless the Board finds that, but for the export contracts, the facilities would not be constructed, is to create asituation in which the construction of a generating facility may be contemplated solely for the purpose of fulfilling the demands of anumber of export contracts, but because no one export contract can be said to be the cause of the facility's construction, its environmentaleffects will never be considered. 62 A better approach is simply to ask whether the construction of new facilities is required to serve, among other needs, the demandsof the export contract.

If this question is answered in the affirmative, then the environmental effects of the construction of such facilitiesare related to the export. In these circumstances, it becomes appropriate for the Board to consider the source of the electrical power to beexported, and the environmental costs that are associated with the generation of that power. [91] The same can be said regarding the sea cages in this case. Although the cages could be independent of the hatchery expansion,the proponent chose to present its submission to the Minister with the inclusion of the intention to use these sea cages.

The proponentconnected the hatchery expansion with the increased utilization of the sea cages. [92] Indeed, the Minister noted in his decisions that the Department in the past considered the simultaneous construction of new seacages in conjunction with onshore facilities triggered environmental review of both. The Minister considered that this created asufficient jurisdictional connection to allow for provincial environmental review of sea cages that otherwise would have been subject tofederal regulation.

That logic could only hold if the onshore and offshore facilities were also considered to be connected actions. [93] In Bow Valley Naturalists Society v. Canada (Minister of Canadian Heritage), 2001 CarswellNat 1721, 266 N.R. 169 (F.D.A.),the Federal Court of Appeal considered the jurisprudence on the connected actions test in the federal sphere.

Linden J.A. concluded atparagraph 34: “It would thus appear that the "scope" of a project under s. 15 is normally limited to undertakings directly related to theproposed physical work, such as its construction and operation, and ancillary or subsidiary undertakings.” [94] I would apply this definition to the scoping requirement under the Act. Using that definition leads to the conclusion that theincreased utilization of the sea cages ought to have been considered within the scope of the project under review.

The use of the seacages is unquestionably ancillary to the hatchery expansion. [95] The adoption of that definition – and, specifically the use of the word “undertaking” - leads to consideration of one furtherargument raised by NHS. NHS argues that the word “undertaking,” used in the Act, is prospective. NHS submits that the structure ofthe Act is consistent with the prospective meaning of the word;

section 45(

d) defines an environmental assessment as a process that takesplace before an undertaking has begun or occurred.

[ 96 ] However, the definition of the word “undertaking” in the Act is not consistent with the use of the word only in the prospective sense. In

section 2(mm), the following definition is utilized: (mm) " undertaking " includes an enterprise, activity, project, structure, work or proposal and a modification, abandonment, demolition, decommissioning, rehabilitation and an extension of them that may, in the opinion of the minister, have a significant environmental effect; [ 97 ] Moreover, the Minister in his decisions, and NHS in response to the

section 107 appeals, described the sea cages as “existing undertakings,” a usage that is more consistent with an ongoing activity or enterprise. [ 98 ] I therefore find the scoping or registration decision of the Minister was not based on an internally coherent and rational chain of analysis that was justified in relation to the law that constrained his authority as a decision maker. It was not, in accordance with the Vavilov analysis, reasonable. As the registration decision was the underpinning of the Release Decision, it follows that the Release Decision and the decision on the

section 107 appeals are also unreasonable. Does the record show that the sea cages had already been subject to environmental review and does that matter? [ 99 ] The Minister determined that the hatchery expansion did not create any increase in the marine environmental footprint that had not already been evaluated and approved through the required provincial and federal regulatory regime. [ 100 ] The Minister dealt with this issue several times in the release and appeal decisions.

In the Release Decision, the Minister addressed the question this way: The proponent advised, and the Department of Fisheries and Land Resources concurs, that the marine sea cage sites, intended to be stocked with smolt coming from this hatchery expansion, are licensed sites that went through the licensing process, which included a provincial and federal review process. The smolt they intend to use will continue to be the St. John’s river stain [ sic ].

Furthermore, they advise that while they do intend to increase production, that increase will occur on licensed sites that have not been stocked to their full capacity of any of its sites.

As a result, we have determined that the marine sea cage component does not require further environmental assessment. [ 101 ] The most thorough discussion was included in the appeal decision in the context of the connected actions argument: Although the existing sea farms to be stocked by the hatchery expansion did not require environmental assessment, they are still subject to the licensing process and provincial and federal regulatory regime.

The aquaculture industry is subject to provincial legislation under the mandates of the Department of Fisheries and Land resources and the Department of Municipal Affairs and Environment. It is also subject to federal regulation under the mandates of Fisheries and Oceans Canada, Transport Canada, Environment and Climate Change Canada, and the Canadian Food Inspection Agency.

The federal Aquaculture and Activities Regulations provide conditions under which aquaculture operators can install, operate, maintain and remove an aquaculture facility, as well as how that take measures to treat their fish for disease and parasites, and deposit organic matter. [ 102 ] There is a subtle difference in the basis for the decisions on this issue. In the Release Decision, the Minister concluded that the sea cages did not require “ further environmental assessment” [emphasis added].

In considering the reasonableness of the Release Decision, the first question will be whether the record demonstrated that the sea cages had been subject to any environmental assessment. In the appeal decision, the Minister found that the sea cages did not require any environmental assessment under the Act . [ 103 ] The record does not demonstrate that the sea cages had, through the federal or provincial licensing process, been subject to a thorough and precautionary environmental assessment equivalent to that provided for in the Act .

On the contrary, the Minister found in the course of his appeal decision that the sea cages had not been subject to environmental assessment.

He said that environmental assessment of the sea cages was not required because of the environmental protections provided by the licensing and regulatory region to which the cages were subject. [ 104 ] More fundamentally, the decision of the Minister to release the Project was not justified in light of the legal constraints placed on the exercise of his decision-making power. [ 105 ] In Newfoundland and Labrador (Environment and Climate Change) , the Court of Appeal determined that the Minister does not have discretion to release a project from the requirement for environmental assessment when there has been an expression of significant public concern regarding the project.

A determination that the environmental effects of an undertaking are mitigated under other legislation only allows the Minister to release a project in the face of environmental and public concerns. [ 106 ] In this case, the record demonstrates ample expression of public concern regarding the sea cages. The Minister found that there had been no expressions of public concern regarding the onshore facility. However, the Reynolds Memo, the Release Decision, and the appeal decision all recognized that there had been expressions of public concern.

Twenty-five percent of the public comments received in response to the announcement of registration required by

section 3 of the Regulations were opposed to the Project. The bulk of these responses raised concern that the sea cages were not included in the registration. The record discloses that these responses did more than just address the exclusion of the cages per se, but also outlined particular concerns regarding the increase in open net salmon population and the threat this posed to wild salmon populations. The

section 107 appeal filed by Ecojustice on behalf of ten groups and individuals (including the Applicants) stated these concerns: Your failure to require Marine Harvest to register both the hatchery and associated marine farming components of its project for environmental assessment will undoubtedly mean that the significant increase in farmed smolt transferred to coastal waters will escape proper environmental scrutiny.

This is particularly troubling in light of the critical and well-recognized threats posed by open net salmon farming to Newfoundland and Labrador’s wild salmon populations. [ 107 ] The Ecojustice appeal went on to discuss specific environmental concerns raised in government publications, including inter-

breeding, loss of fitness, competition for food and space, and transmission of disease and parasites. [ 108 ] The Bryden

section 107 Appeal also identified threats to the native wild salmon population posed by increase in the open net salmon population. [ 109 ] The negative public responses received by the Department also noted the wild salmon stocks on the south coast of Newfoundland (where the sea cages are located) had been designated as threatened by the Committee on the Status of Endangered Wildlife in Canada and were being considered for listing pursuant to the federal Species at Risk Act, S.C. 2002, c. 29 . [ 110 ] As the Minister excluded the sea cages from the registration, he did not consider these expressions of concern.

However, if he had done so, then the record would not have supported a finding other than that there was significant public concern regarding the increased utilization of sea cages resulting from the transfer of an additional 2.2 million smolt from the hatchery expansion. As the Court of Appeal stated in Newfoundland and Labrador (Environment and Climate Change) : 359 In other circumstances it is possible that there may not be a ministerial determination that there is significant public concern about an undertaking.

However, in circumstances where the record demonstrates that there is significant public concern, the Minister cannot arbitrarily avoid the requirement of an environmental impact statement, under

section 25, by simply concluding that there is not significant public concern. [ 111 ] Therefore, as I have already found it was unreasonable for the Minister to exclude the sea cages, I also find the Minister was required by the presumptive mandatory rule in

section 25 of the Regulations to order an environmental assessment of the Project, including the expanded utilization of the sea cages because of the expression of significant public concern. Conclusion and Remedy [ 112 ] The legal constraints imposed on the Minister by the Act and Regulations required environmental assessment of the sea cages that were intended to be utilized in connection with the hatchery expansion. The decisions of the Minister did not demonstrate an internally coherent and rational chain of analysis from that requirement to the release of the Project from environmental assessment.

Consequently, the decision of the Minister to release the Project without considering the environmental impact of the sea cages and his decision dismissing the

section 107 appeals were unreasonable. These decisions are quashed. [ 113 ] The Supreme Court of Canada in Vavilov stated the usual remedy for an administrative decision found to be unreasonable is to remit the matter back to the decision maker for determination in accordance with the reasons of the Court. The c

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