2018 NLCA 53, 2018 NLCA 53

Her Majesty the Queen in Right of Newfoundland and Labrador, as represented by the Honorable Perry Trimper, Minister of Environment and Climate Change (appellant) v. Atlantic Salmon Federation (Canada) (first respondent) and Owen Myers (second respondent) and Grieg NL Nurseries Limited (third respondent) and Grieg NL Seafarms Limited (fourth respondent) (17/78) Indexed As: Newfoundland and Labrador (Environment and Climate Change) v. Atlantic Salmon Federation (Canada) 2018 NLCA 53 3 C.A.N.L.R. 295 Court of Appeal of Newfoundland and Labrador Welsh, Harrington and O’Brien JJ.A. September 14, 2018

Summary: The third respondents proposed to establish a salmon hatchery and nursery in Marystown to produce seven million smolt annually to stock aquaculture operations to be undertaken by them in Placentia Bay. The Minister of Environment and Climate Change released the undertaking from the requirement for an environmental impact statement pursuant to the Environmental Protection Act , SNL 2002, c. E- 14.2 and Regulations . The Minister’s determination to release the undertaking was appealed, for reconsideration, to the Minister by the first respondent, the Atlantic Salmon Federation.

After the Minister upheld his original decision, the Salmon Federation sought judicial review. The judicial review was allowed when the applications judge decided that the decision to release the project from environmental assessment was invalid because that determination was not an option available under the legislation . The Minister appealed. Held: Appeal dismissed (Harrington and O’Brien JJ.A. concurring). Welsh J.A.: Section 23(1) of the Regulations deals with the case when an undertaking is released from environmental assessment. It provides that when 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, the Minister will consider certain factors. Section 25(1) of the Regulations provides that 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. The exercise of the Minister’s jurisdiction in this case involved

interpretation of the Act and Regulations . The judge concluded that the reasonableness standard of review properly applied. Her analysis and conclusion was correct. Following her

interpretation of the language in sections 23 and 25 of the Regulations , the applications judge concluded that there was only one reasonable

interpretation of those provisions which was that release from an impact assessment was not a statutory option available to the Minister. Applying the presumption of coherence in this case, sections 23 and 25 of the Regulations must be read together, giving effect to both. The question is whether the Minister’s decision under

section 23 of the Regulations was reasonable based on an

interpretation of that provision together with

section 25 of the Regulations and section 51(1) of the Act .

The Minister recognized that there is “significant public concern” with respect to the undertaking as referenced in

section 25 of the Regulations . Accordingly, section 23(1)(a), which permits the Minister to release an undertaking where “there are no environmental or public concerns”, could not apply in this case. The question, then, is whether section 23(1)(

b) may apply where section 25(1)(

b) would otherwise require an environmental impact statement. There are two possible

interpretations. First, it may be argued that section 23(1)(

b) could not be relied upon because that provision speaks to mitigation of environmental effects, with no mention of public concern. Since section 23(1)(

a) directly addresses the question of public concern, and applies where there is “no” concern, and paragraph (

b) is silent regarding public concern, there would be no provision on which to release the undertaking under

section 23 if the Minister determines that the undertaking raises significant public concern. An alternate

interpretation of

section 23 is that the option to release an undertaking would be available if either paragraph (

a) or (

b) of that

section applied without regard to the reason for requiring an environmental impact statement. That is, under this

interpretation,

section 23 would be read as intending to operate “notwithstanding”

section 25. It can be inferred from the Minister’s decision that he adopted the second

interpretation of

section 23. It cannot be said that that determination was unreasonable. However, where the Minister determines, with respect to an undertaking, that there may be significant negative environmental effects, section 25(1)(

a) of the Regulations will necessarily apply requiring an environmental impact statement, unless the Minister determines that the environmental effects will be mitigated under federal or provincial legislation , in which case, the undertaking may be released under

section 23. That

interpretation gives effect to both provisions and avoids conflict. The tenor of the Minister’s decision in this case is that, in his opinion, sufficient consideration has been given to environmental concerns, and that issues that arise in the future will be dealt with by means of federal licensing and regulatory requirements together with conditions that the Minister may impose. That is not what

section 23 requires. Unless the Minister determines that all, not just significant, environmental effects of the undertaking “will” be “mitigated” under provincial or federal legislation, the Minister will not have authority to release the project under section 23(1) of the Regulations . In

summary, the applications judge erred in her analysis by failing to apply the presumption of coherence in interpreting sections 23 and 25 of the Regulations . A determination under

section 23 to release an undertaking from an environmental assessment may be made by the Minister even where

section 25 would otherwise require an environmental impact statement. However, in his decision, the Minister failed to address the necessary questions in order to release the undertaking pursuant to

section 23. The appeal should be dismissed. O’Brien J.A. concurring (Harrington J.A. concurring): The conclusion of Welsh J.A. that the applications judge appropriately identified reasonableness as the applicable standard is agreed with. The Act and Regulations prescribe and, notably, also limit the Minister’s powers in making a decision to release a project in this context. The purpose of the Act and Regulations is concerned with protecting the environment and quality of life of the people of the province and facilitating wise management of natural resources.

This purpose is achieved through “environmental assessment procedures” which contemplate participation by the public so that their concerns may be expressed and considered. Section 51(1) of the Act provides that the Minister, using criteria prescribed by regulation, shall make one of three determinations in relation to an undertaking. The Minister shall require an environmental preview report, require an environmental impact statement or release the project. The three options provided to the Minister in

section 51 of the Act are, in fact, constrained and limited by the criteria prescribed by the Regulations . The Minister’s authority to discharge is not unfettered. Sections 24 and 25 of the Regulations set out specific circumstances where the Minister must require either an environmental preview report or an environmental impact statement. The language in each case is mandatory. Section 25(1) of the Regulations directs that the Minister shall require an environmental impact statement in either of two, distinct circumstances. These circumstances are as follows: 1.

Where the Minister determines with respect to an undertaking that there may be significant negative environmental effects; or 2. Where the Minister determines with respect to an undertaking that there is significant public concern. The language mandates that the Minister shall require an environmental impact statement if the Minister determines that the criteria in either section 25(1)(

a) or (

b) is met.

If the Minister determined that there was significant public concern regarding this project, section 25(1)(

b) of the Regulations indicates the Minister shall require an environmental impact statement. A review of the record confirms that the Minister did , in fact, determine that there was significant public concern regarding the project. The Minister’s decision, to release the project from the further application of the environmental assessment requirements in the Act , was made with reference to section 23(1) of the Regulations . The language of

section 23 is not mandatory. Rather, it lists the criteria the Minister may consider when the Minister releases an undertaking in one of two specific circumstances, namely, because: 1. there are no environmental or public concerns; or 2. the environmental effects of the undertaking will be mitigated under an Act of the province or of Canada. The Minister could not release the project under section 23(1)(a) , as this

section permits release only where there are no environmental or public concerns. Instead, the Minister released the project pursuant to section 23(1)(b), that is, because “the environmental effects of the undertaking will be mitigated under

an Act of the province or of Canada.” The question is whether the Minister was authorized to release the project under section 23(1)(

b) in this case, where the Minister had determined that there was a significant public concern relating to the project. The Minister’s main argument on appeal is that the language of the Regulations was open to two reasonable

interpretations. One of these purported reasonable

interpretations would result in the Minister requiring an environmental impact statement, as mandated by section 25(1). The other purported reasonable

interpretation would permit the Minister to release the project from further environmental assessment requirements under the Act , on the basis that the environmental effects of the project will be mitigated under an Act of the province or of Canada, pursuant to section 23(1)(b). The first

interpretation (that is, that an environmental impact statement is required in these circumstances) is a reasonable

interpretation of the legislation. In order to determine whether the second purported

interpretation (that the project can be released without further environmental assessment) is also a reasonable

interpretation, requires a closer review of the language of sections 23 and 25, a consideration of how sections 23 and 25 are meant to operate together in the legislative context, and also a consideration of the purpose and intent of the legislation. The language used in section 23(1)(b), which allows for release without further environmental assessment, focuses exclusively on the environmental effects. It does not, however, address public concern. 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). 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. Any decision made by the Minister contingent on the need to read in the words “ notwithstanding

section 25 ” into

section 23 would constitute an unreasonable decision. The conclusion here, then, is that the ordinary language of sections 23 and 25, as written, does not support the purported “second”

interpretation (that the project can be released without an environmental impact statement). Such an

interpretation is not reasonable in the context of the present language. That leaves only one reasonable

interpretation. Moreover, the legislative context in this case involves interpreting environmental legislation. The Act ’s focus on environmental protection supports a precautionary approach to its

interpretation. Neither the Act nor Regulations may be interpreted in a manner that allows for the avoidance of precaution or protection of the environment. An enhanced level of public involvement is provided for in the Act . In this respect, public concern is important as a basis to trigger an environmental impact statement, and it must also be addressed through enhanced public participation during the environmental impact statement process.

In this respect, public concern is important as a basis to trigger an environmental impact statement, and it must also be addressed through enhanced public participation during the environmental impact statement process. Enhanced public participation in the assessment process, when public concern has been determined to be significant, is consistent with the legislative purpose, which is to protect the environment and quality of life of the people of the province and facilitate the wise management of the natural resources of the province. The proposed alternative

interpretation of the Regulations (that is, the

interpretation which would allow the Minister to release the project despite significant public concern ), downgrades the important role public concern plays in this area, and is not consistent with the overall purpose of the legislation.

The Minister, as the decision maker and statutory delegate, failed to properly consider a significant statutory provision (section 25) in thehome legislation, which required an environmental impact statement before release. Rather, the Minister released the project without aproper consideration or analysis of the mandatory language of

section 25. The Minister’s decision to release the project without requiringan environmental impact statement in this case was precluded by the legislation and therefore unreasonable. The appeal should bedismissed. Cases cited: Welsh J.A.: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895 Halifax (Regional Municipality) v. Canada (Public Works and Government Services), 2012 SCC 29, [2012] 2 S.C.R. 108 Montréal (City) v. Montreal Port Authority, 2010 SCC 14, [2010] 1 S.C.R. 427 O’Brien J.A. (concurring): Dunsmuir v.

New Brunswick, 2008 SCC 9, [2008]1 S.C.R. 190 Layman v. Layman Estate, 2016 NLCA 13, 375 Nfld. & P.E.I.R. 106 R v. Pardy, 2014 NLCA 37, 357 Nfld. & P.E.I.R. 49 Dwyer v. Bussey, 2017 NLCA 68, leave to appeal to SCC refused, 37921 (August 9, 2018) British Columbia v. Philip Morris International, Inc., 2018 SCC 36 Wilson v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47, [2015] 3 S.C.R. 300 McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895 Workplace Health, Safety and Compensation Commission v.

Allen, 2014 NLCA 42, 357 Nfld. & P.E.I.R. 1, leave to appeal to SCCrefused, 36265 (July 9, 2015) 114957 Canada Ltée (Spray-Tech, Société d’arrosage) v. Hudson (Ville), 2001 SCC 40, [2001] 2 S.C.R. 241 Labrador Inuit Association v. Newfoundland (Minister of Environment & Labour) (1997), (NL CA), 155 Nfld. &P.E.I.R. 93 (Nfld. C.A.) Peace Valley Landowner Association v. British Columbia (Minister of Environment), 2016 BCCA 377, 87 B.C.L.R. (5th) 44 Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153 Counsel: Peter E. Ralph Q.C., for the appellant; Michael J. Crosbie Q.C. and J.

Alexander Templeton, for the first respondent; No appearance by the second respondent; David G.L. Buffett Q.C. and Deborah L.J. Hutchings Q.C. for the third and fourth respondents. This appeal was heard on December 14, 2017 before Welsh, Harrington and O’Brien JJ.A. The following judgment was delivered on September 14, 2018 by Welsh J.A., with separate concurring reasons by O’Brien J.A. Harrington J.A. concurred with O’Brien J.A. ______________________________________________________________ Welsh J.A.:

[ 1 ] At issue in this appeal is whether an environmental impact statement is required for a salmon hatchery and aquaculture operation proposed for Placentia Bay. BACKGROUND [ 2 ] Grieg NL Nurseries Limited and Grieg NL Seafarms Limited (together “Grieg”) propose to establish a salmon hatchery and nursery in Marystown to produce seven million smolt annually to stock aquaculture operations to be undertaken by Grieg in Placentia Bay. [ 3 ] The project has been registered as provided for by the legislation.

Subsequently, the Minister of Environment and Climate Change released the undertaking from the requirement for an environmental impact statement, allowing Grieg to proceed with the project subject to complying with federal, provincial and municipal laws and any terms or conditions established by the Minister. [ 4 ] As provided under

section 107 of the Environmental Protection Act , SNL 2002, c. E-14.2, the Minister’s determination to release the undertaking was appealed, for reconsideration, to the Minister by the Atlantic Salmon Federation (the “Salmon Federation”). After the Minister upheld his original decision, the Salmon Federation sought judicial review. [ 5 ] On review, the applications judge concluded that, under the legislation, the Minister lacked jurisdiction to release the project. That determination is the subject of this appeal.

Issues related to registration of the project, addressed by the applications judge, have not been appealed. ISSUES [ 6 ] At issue is whether the applications judge erred in quashing the Minister’s decision to release the project from environmental assessment because that determination was not an option available under the legislation. ANALYSIS The Legislative Framework [ 7 ] The purpose of

Part X of the Act , “Environmental Assessment”, is set out in

section 46: 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. [ 8 ] Section 51(1) of the Act addresses options regarding environmental assessments that may apply to an undertaking in the absence of a direction from the Lieutenant-Governor in Council: 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. [ 9 ] The Environmental Assessment Regulations, 2003 , NLR 54/03, address screening criteria for these options. Section 23(1) deals with the case when an undertaking is released from environmental assessment: 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. “Release” is defined in

section 45(

i) of the Act to mean “the release of an undertaking under

section 51, 54, 67 or 72 from the further application of the environmental assessment requirements of this Part.” [ 10 ] Section 24(1) of the Regulations addresses criteria for requiring an environmental preview report where more information is necessary: Where the minister determines that there is insufficient detail to determine the significance of the environmental effects of an undertaking, he or she shall require an environmental preview report for that undertaking. [ 11 ] Section 25(1) of the Regulations addresses the requirement for an environmental impact statement: 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. “Environmental impact statement” is defined in

section 45(

e) of the Act to mean “a report that presents the results of an environmental assessment.” [ 12 ]

Section 56 of the Act applies where a project has been released from environmental assessment: Where, under

section 51 or 54, the minister notifies a proponent that an undertaking is released, the proponent may proceed with the undertaking subject to (

a) another Act or regulation of the province or of Canada; (

b) a municipal regulation, by-law or requirement; and (

c) the terms and conditions that the minister may, in his or her discretion, establish. [ 13 ]

Section 57 of the Act describes contents to be included in an environmental impact statement: An environmental impact statement shall be prepared in accordance with the guidelines, and shall include, … (

d) a description of the (

i) present environment that will be affected or that might reasonably be expected to be affected, directly or indirectly, by the undertaking, and (ii) predicted future condition of the environment that might reasonably be expected to occur within the expected life span of the undertaking, if the undertaking was not approved; (

e) a description of (

i) the effects that would be caused, or that might reasonably be expected to be caused, to the environment by the undertaking with respect to the descriptions provided under paragraph (d), and (ii) the action necessary, or that may reasonably be expected to be necessary, to prevent, change, mitigate or remedy the effects upon or the effects that might reasonably be expected upon the environment by the undertaking; (

f) an evaluation of the advantages and disadvantages to the environment of the undertaking, the alternative methods of carrying out the undertaking and the alternatives to the undertaking; (

g) a proposed set of control or remedial measures designed to minimize any or all significant harmful effects identified under paragraph (e); (

h) a proposed program of study designed to monitor all substances and harmful effects that would be produced by the undertaking; and (

i) a proposed program of public information as required under

section 58. [ 14 ] Section 107(1) of the Act provides for review of the Minister’s decision: 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. Standard of Review

[ 15 ] The applications judge concluded that the Minister’s decisions, first, on the registration question, which has not been appealed, and, second, on the release from environmental assessment, were both reviewable on a standard of reasonableness. However, regarding the release from environmental assessment, the judge quashed the Minister’s decision on the basis that he “lacked jurisdiction” to make that determination. [ 16 ] Where judicial review engages a question of jurisdiction, the standard set by the Supreme Court of Canada is correctness. This is made clear in the decision in Dunsmuir v.

New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190 , in which Bastarache and LeBel JJ., for the majority, concluded: [50] As important as it is that courts have a proper understanding of reasonableness review as a deferential standard, it is also without question that the standard of correctness must be maintained in respect of jurisdictional and some other questions of law. This promotes just decisions and avoids inconsistent and unauthorized application of law.

When applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer.

From the outset, the court must ask whether the tribunal’s decision was correct. [ 17 ] In applying this principle, it must be remembered that the word jurisdiction may be used in more than one context and, unless it is a “true question of jurisdiction” ( Dunsmuir , at paragraph 59 ), it will not always engage a standard of review of correctness. In this case, the basis for the applications judge’s conclusion is that, on the facts, only

section 25 of the Regulations could apply. In particular, she explained (2017 NLTD(G) 137): [209] The Minister’s Release Decision confirmed significant public concern and the potential for significant negative environmental impacts. On these facts, the Minister was constrained by his home statute to order an [environmental impact statement] under

section 25 of the Regulations . The Project represented an example of an undertaking requiring the highest level of further environmental assessment. … [211] I conclude therefore that the Minister lacked jurisdiction to release the Project. The only possible conclusion he could reach from the Record was that the Project had both “significant public concerns” and the potential for “significant negative environmental effects”. Read as a whole, the Minister’s letter to McInnes Cooper confirmed his acceptance of these factual conclusions for the Project. When these facts apply to a project,

section 25 of the Regulations constrains the Minister’s discretion and he is statutorily required to order an [environmental impact statement]. No other reasonable

interpretation of the Act and Regulations would permit the Minister to release such a project. [ 18 ] The applications judge does not suggest that the Minister did not have the jurisdiction to make a decision under section 51(1) of the Act . Rather, the exercise of the Minister’s jurisdiction in this case involved

interpretation of the Act and Regulations . This was not a “true” question of jurisdiction as contemplated in Dunsmuir , necessarily indicating a correctness standard of review.

In the result, the judge undertook a comprehensive analysis applying the Dunsmuir criteria in concluding that the reasonableness standard of review would apply. [ 19 ] To summarize, after recognizing that there is no privative clause in the Act or Regulations , the judge considered the Minister’s function, which required him to interpret the legislation “with expert advice from departmental staff assisting with the exercise of his discretion”, a factor suggesting a reasonableness standard (applications judge’s decision, at paragraph 49).

In addition, after reviewing relevant parts of the Act and Regulations , the judge concluded that the legislative context in which the question arises also supports a reasonableness standard: [91] … [I]n the within case, the Minister was required to consider which of the three statutory options was appropriate. For each, the Regulations provided him with assistance respecting the various considerations.

The Minister had to weigh the significance of the evidence and conclusions drawn from it, (including the significance of the environmental effects of the undertaking) before deciding if he should release, order an [environmental preview report], or order an [environmental impact statement]. [ 20 ] On balance, the judge concluded that the reasonableness standard of review properly applied.

I agree with her analysis and conclusion. (See decision of the applications judge, at paragraphs 39 to 49 and 80 to 92.) Release of the Project from an Environmental Impact Statement [ 21 ] In reviewing the Minister’s decision, the applications judge concluded that release was not a statutory option available to the Minister because once the criteria set out in section 25(1) of the Regulations had been satisfied, the Minister had no option but to require an environmental impact statement. This followed from her

interpretation of the language in sections 23 and 25 of the Regulations , and her conclusion that there was only one reasonable

interpretation of those provisions. [ 22 ] When there is only one reasonable

interpretation of a legislative provision, that is the

interpretation that must be applied. This does not amount to applying a standard of correctness. The principle is discussed in McLean v. British Columbia (Securities Commission) , 2013 SCC 67 , [2013] 3 S.C.R. 895 , where Moldaver J., for the majority, explained: [38] It will not always be the case that a particular provision permits multiple reasonable

interpretations. Where the ordinary tools of statutory

interpretation lead to a single reasonable

interpretation and the administrative decision maker adopts a different

interpretation, its

interpretation will necessarily be unreasonable – no degree of deference can justify its acceptance; see, e.g., Dunsmuir , at para. 75 ; Mowat , at para. 34. In those cases, the “range of reasonable outcomes” ( Canada (Citizenship and Immigration ) v. Khosa , 2009 SCC 12 , [2009] 1 S.C.R. 339 , at para. 4 ) will necessarily be limited to a single reasonable

interpretation – and the administrative decision maker must adopt it. [ 23 ] A second fundamental principle of statutory

interpretation relevant in this case is the presumption of coherence. The

presumption is summarized in Sullivan, Sullivan on the Construction of Statutes , fifth edition (Markham, ON: LexisNexis, 2008), at page 223: Governing principle . It is presumed that the provisions of legislation are meant to work together, both logically and teleologically, as parts of a functioning whole.

The parts are presumed to fit together logically to form a rational, internally consistent framework; and because the framework has a purpose, the parts are also presumed to work together dynamically, each contributing something toward accomplishing the intended goal. … The presumption of coherence is also expressed as a presumption against internal conflict.

It is presumed that the body of legislation enacted by a legislature does not contain contradictions or inconsistencies, that each provision is capable of operating without coming into conflict with any other. … [ 24 ] Applying that principle in this case, sections 23 and 25 of the Regulations must be read together, giving effect to both. The question is whether the Minister’s decision under

section 23 of the Regulations was reasonable based on an

interpretation of that provision together with

section 25 of the Regulations and section 51(1) of the Act . I will deal in turn with sections 23(1)(

a) and (b). Section 25(1)(

b) and

Section 23 of the Regulations [ 25 ] Section 25(1)(

b) of the Regulations will be engaged if the Minister determines that there is “significant public concern”. In his decision on the appeal under

section 107 of the Act , the Minister referred to “high public interest”, stating, at page 3: Public concern was considered in the assessment process and that concern was clearly acknowledged.

Those concerns are summarized in the Minister’s decision, at page 3: The main concerns identified during the assessment of the undertaking focused around: - Status of the wild salmon population in Placentia Bay and the South Coast, - Escapes and their direct and direct ( sic ) impacts to wild salmon, - Disease and disease transfer, - Parasites and parasite transfer, - Waste products (feed, fecal matter, drifting pesticides (e.g.

Salmosan), - Site Locations, and - Contingency Plan if the project does not work. [ 26 ] It is clear that the Minister recognized that there is “significant public concern” with respect to the undertaking as referenced in

section 25 of the Regulations . Accordingly, section 23(1)(a), which permits the Minister to release an undertaking where “there are no environmental or public concerns”, could not apply in this case (emphasis added). [ 27 ] The question, then, is whether section 23(1)(

b) may apply where section 25(1)(

b) would otherwise require an environmental impact statement. There are two possible

interpretations in circumstances where the Minister has determined that the undertaking raises significant public concern, the factor that would trigger the requirement for an environmental impact statement under section 25(1)(b). [ 28 ] First, it may be argued that section 23(1)(

b) could not be relied upon because that provision speaks to mitigation of environmental effects, with no mention of public concern. Since section 23(1)(

a) directly addresses the question of public concern, and applies where there is “no” concern, and paragraph (

b) is silent regarding public concern, there would be no provision on which to release the undertaking under

section 23 if the Minister determines that the undertaking raises significant public concern. This result would obtain even if section 23(1)(b), regarding the mitigation of environmental effects, may otherwise have been relied upon because section 25(1)(

b) would require an environmental impact statement in any event. [ 29 ] An alternate

interpretation of

section 23 is that the option to release an undertaking would be available if either paragraph (

a) or (

b) of that

section applied without regard to the reason for requiring an environmental impact statement. That is, under this

interpretation,

section 23 would be read as intending to operate “notwithstanding”

section 25. Applying that

interpretation, the Minister would have the option of releasing the undertaking from environmental assessment if either paragraph (

a) or (

b) of

section 23 was satisfied, and the reason for requiring an environmental impact statement under

section 25 would be irrelevant. [ 30 ] The first

interpretation is consistent with a broad reading of

section 25 which sets out the general rule that requires an environmental impact statement where there is significant public concern.

Section 23, as an exception to the general rule, would be more narrowly construed. That approach is also consistent with the purpose set out in

section 46 of

Part X of the Act to protect the environment of the province through procedures before as well as after the commencement of an undertaking. Finally, the factors that may be considered by the Minister in determining whether to release an undertaking under

section 23 do not provide assistance in interpreting the operation of section 25(1)(b). [ 31 ] On the other hand, the second

interpretation of

section 23 gives substantive effect to the Minister’s authority to release an undertaking from environmental assessment if either of the strict conditions is satisfied. As discussed below, section 23(1)(

b) can be relied upon only if the environmental effects “will be mitigated under

an Act of the province or of Canada”. That language circumscribes the extent of the Minister’s authority under

section 23, subject, of course to the situation covered under paragraph (a), where there are no environmental or public concerns. This

interpretation also avoids the likelihood of rendering section 23(1)(

b) virtually ineffective if, by virtue of the operation of section 25(1)(b), an environmental impact statement is always required and the project cannot be released since any undertaking requiring a determination under section 51(1) of the Act will most likely or almost certainly engage public concern.

[ 32 ] Where, as here, the ordinary tools of statutory

interpretation may lead to more than a single reasonable

interpretation, the principle discussed in McLean , where there is a single reasonable

interpretation, is not engaged. Rather, the question in this case is whether the Minister’s

interpretation is reasonable. [ 33 ] The Minister’s decision does not reference the alternate

interpretations. However, this is an instance in which the reasons may be supplemented on review. The Minister stated his reliance on section 23(1)(

b) of the Regulations and acknowledged the significant public concern relating to the undertaking. This supports the inference that he adopted the second

interpretation of

section 23. In my view, it cannot be said that that determination was unreasonable. [ 34 ] It is necessary, then, to consider whether the Minister’s decision, relying on section 23(1)(

b) of the Regulations , to release the undertaking from environmental assessment was reasonable. Section 25(1)(

a) and 23(1)(

b) of the Regulations [ 35 ] Where the Minister determines, with respect to an undertaking, that there may be significant negative environmental effects, section 25(1)(

a) of the Regulations will necessarily apply requiring an environmental impact statement, unless the Minister determines that the environmental effects will be mitigated under federal or provincial legislation , in which case, the undertaking may be released under

section 23. That

interpretation gives effect to both provisions and avoids conflict. [ 36 ] For example, an environmental assessment of a particular undertaking may be required under both federal and provincial legislation. If the Minister determines that the environmental effects “will be mitigated” by an environmental assessment under federal legislation, to avoid duplication, it would be open to the Minister to release the project from environmental assessment under the provincial scheme. [ 37 ] In relying on section 23(1)(b), the Minister concluded, at page 4: [Section] 23(1)(

b) of the Regulations grants the Minister the discretion to release an undertaking where “ the environmental effects of the undertaking will be mitigated under

an Act of the province or of Canada ”. This was a critical element in the decision to release the project. … The strength of the regulatory and permitting regime of [the federal departments of Fisheries and Oceans and Fisheries and Aquaculture] was thoroughly explored during the assessment of the project.

Both [the federal departments of Fisheries and Oceans and Fisheries and Aquaculture] provided substantive information during the assessment regarding the extensive nature of the further permitting and licensing requirements to which this project will be subjected after release of the project from the environmental assessment process. [ 38 ] Further, the Minister relied on “two important differences [from past aquaculture experiences when fish escaped] regarding the project, namely (1) the cage technology to be utilized, and (2) the use of triploid salmon” (page 5 of the Minister’s decision).

Finally, the Minister’s decision states, at pages 5 to 6: Throughout the Act and Regulations, language such as “in the opinion of the Minister” or “as determined by the Minister” is used. That language signifies that the Minister has discretion over a certain area of activity. This is important to consider when looking at the language pertaining to environmental assessment. The legislature has granted the Minister the discretion or authority to release an undertaking by use of the language “determines” in s. 25 ( sic ) of the Regulations.

The question is whether the Minister is of the opinion that there are environmental effects of significant public concern . This context is often overlooked in the heat of debate. An organization or individual may have come to a different conclusion regarding the release of an undertaking than the Minister. However, the difference of opinion does not mean that the Minister has acted outside his authority or discretion.

The province ensures that projects, which should proceed are released in a manner in which the risks to the environment are satisfactorily addressed through appropriate terms and consideration ( sic ) attached to permits and authorizations issued by the responsible federal and provincial agencies . The Department is satisfied that the environmental assessment for the Placentia Bay Atlantic Salmon Aquaculture project, carried out in collaboration with numerous departments and agencies, was carried out fully and diligently and considered all the risks that the undertaking raised .

It is my conclusion from this review that the decision to release the Project was consistent with the requirements of the Environmental Protection Act and with my responsibilities as enunciated in the Act. My original decision is upheld. (Emphasis added.) [ 39 ] If the Minister is exercising his authority under

section 23, the proper question is not “whether the Minister is of the opinion that there are environmental effects of significant public concern” (underlining above), but whether the environmental effects will be mitigated under federal or provincial law. [ 40 ] The Minister’s reference to releasing an undertaking, in a manner whereby risks to the environment are satisfactorily addressed through appropriate terms and conditions imposed by the Minister and the operation of federal and provincial legislation, does address an issue under

section 23. Indeed, it is consistent with the criteria set out in

section 56 of the Act when an undertaking has been released from environmental assessment. [ 41 ] That said, it should be noted that conditions that may be imposed by the Minister are not part of the analysis to determine whether an undertaking should be released from environmental assessment. Terms and conditions imposed by the Minister become relevant only after the Minister has made the determination to release the undertaking pursuant to

section 23 of the Regulations , and the proponent has been notified that the undertaking is released. It is then that

section 56 of the Act is engaged so that the proponent may proceed, subject to compliance with federal, provincial and municipal laws and terms and conditions that the Minister may impose. [ 42 ] Further, it is not the “Department”, but the Minister, who must be satisfied that the environmental effects will be mitigated under federal or provincial law. The comment in the Minister’s reasons that the “Department is satisfied” that the environmental assessment

carried out by numerous departments and agencies “was carried out fully and diligently and considered all the risks that the undertaking raises” indicates only that the risks were “considered”, not that the environmental effects will be mitigated.

The Act and Regulations do not make provision for releasing a project from an environmental assessment on the basis that the Minister is of the opinion that a sufficient environmental review has been completed by governmental departments and agencies. [ 43 ] The tenor of the Minister’s decision is that, in his opinion, sufficient consideration has been given to environmental concerns, and that issues that arise in the future will be dealt with by means of federal licencing and regulatory requirements together with conditions that the Minister may impose. That is not what

section 23 requires. [ 44 ] The Minister’s emphasis on acting according to his opinion and discretion to make determinations under the Act and Regulations does not free him to make a decision without regard to the legal framework provided by the legislation. In Halifax (Regional Municipality) v. Canada (Public Works and Government Services) , 2012 SCC 29 , [2012] 2 S.C.R. 108 , Cromwell J., for the Court, cautioned: [55] Discretion conferred by statute must be exercised consistently with the purposes and policies underlying its grant: [authorities omitted]. See also: Montréal (City) v.

Montreal Port Authority , 2010 SCC 14 , [2010] 1 S.C.R. 427 , at paragraph 33 . [ 45 ] Further, I note that the word “opinion” is not found in section 51(1) of the Act , which requires the Minister to “determine”, “using criteria prescribed by regulation”, which of the three options applies. That responsibility arises once the Minister has concluded, applying the definition of “undertaking” (section 2(mm) of the Act ) that, in his opinion, the undertaking may have a significant environmental effect.

Accordingly, the determination of whether an undertaking may be released from an environmental assessment is not a matter of the Minister’s opinion. Rather, the Minister is required to determine whether “the environmental effects of the undertaking will be mitigated under

an Act of the province or of Canada”. In so doing, the factors set out in

section 57 of the Act would provide a helpful framework. [ 46 ] Finally,

section 23 of the Regulations may apply where “the environmental effects of the undertaking will be mitigated under an Act of the province or of Canada” (emphasis added). The Minister’s decision does not indicate how provincial or federal legislation will mitigate environmental effects or that all the relevant effects will be mitigated. I note that

section 23 refers to “the environmental effects” in contrast to “significant negative environmental effects” in

section 25. Principles of statutory

interpretation require that effect be given to this difference in language, with the result that

section 23, without modifying words, would apply to all environmental effects. [ 47 ] Assessments undertaken and conclusions reached pursuant to federal legislation may, where appropriate, be used in preparing an environmental impact statement, but unless the Minister determines that all, not just significant, environmental effects of the undertaking “will” be “mitigated” under provincial or federal legislation, the Minister will not have authority to release the project under section 23(1) of the Regulations . The use of the word “will” establishes a high threshold, though “mitigated” may be contrasted with a word such as “eliminated”.

Interpretation of such language would fall within the mandate of the Minister whose decision would be entitled to deference applying the Dunsmuir reasonableness standard. [ 48 ] In

summary, the Minister’s decision relying on section 23(1)(

b) of the Regulations does not address the questions necessary to make a determination, under section 51(1)(

c) of the Act , that the undertaking may be released from the requirement to provide an environmental impact statement. Accordingly, I would quash the Minister’s decision to release the undertaking from environmental assessment, though for reasons different from those of the applications judge.

SUMMARY [ 49 ] In

summary, the applications judge erred in her analysis by failing to apply the presumption of coherence in interpreting sections 23 and 25 of the Regulations . A determination under

section 23 to release an undertaking from an environmental assessment may be made by the Minister even where

section 25 would otherwise require an environmental impact statement. However, in his decision, the Minister failed to address the necessary questions in order to release the undertaking pursuant to

section 23. [ 50 ] Accordingly, I would dismiss the appeal. I would quash the Minister’s decision to release the undertaking from environmental assessment, though for reasons different from those of the applications judge. I would grant costs to the Salmon Federation under column 3 of the scale of costs in the Court of Appeal Rules . O’Brien J.A.: Introduction [ 51 ] I have had the benefit of reading the reasons provided by my colleague, Welsh J.A. in this matter. [ 52 ] First, I agree with my colleague’s reasons regarding the standard of review.

That is, I agree that the applications judge appropriately identified reasonableness as the applicable standard. [ 53 ] Second, I agree with the ultimate result reached by my colleague. I would also dismiss the appeal, and award costs to the Atlantic Salmon Federation (Canada) (hereafter, the Federation). [ 54 ] However, the reasons for my conclusion to dismiss this appeal differ from those of my colleague.

[ 55 ] For the reasons which follow, I would conclude that the applicable provincial environmental legislation mandated the Minister of Environment and Climate Change in this circumstance to require that further environmental assessment procedures be undertaken before any decision could be made regarding the release of the project. [ 56 ] Specifically, the applicable legislation mandated that the Minister require an environmental impact statement in this case, as the Minister determined there was significant public concern regarding the project. [ 57 ] I would further conclude that the Minister’s decision to release the project without requiring an environmental impact statement in this circumstance was unreasonable, when considered in light of the criteria set out by the Supreme Court of Canada in Dunsmuir v.

New Brunswick , 2008 SCC 9 , [2008]1 S.C.R. 190 , and other authorities. [ 58 ] As a result, I would dismiss the appeal.

Background [ 59 ] This appeal concerns a proposed aquaculture project, known as the Placentia Bay Atlantic Salmon Aquaculture Project. [ 60 ] The proposed project would involve sea-based salmon farming in the waters of Placentia Bay, NL. [ 61 ] If approved, the project would be substantial in size and scope. [ 62 ] It has been observed that it would represent the largest expansion of salmon aquaculture in Eastern Canada, “if not all of Canada”. [ 63 ] The project would also represent many “firsts”. [ 64 ] For example, it would be the first time non-native, European-strain triploid salmon would be introduced, for commercial purposes, into local waters. [ 65 ] This would also be the first use in this province of a specific cage technology, which has been proposed to prevent farmed salmon from escaping into the wild. [ 66 ] Mr.

Eric Watton, an environmental scientist working with the Government of Newfoundland and Labrador, was the main government scientist involved in the preliminary screening review of this project on behalf of government.

In that capacity, he prepared a comprehensive, 49-page background report for the Minister’s consideration in this matter (hereafter, the Watton report). [ 67 ] The Watton report considered public and environmental concerns relating to the project and also reviewed, in some detail, the concerns and views of various government agencies in respect of the project. [ 68 ] The Watton report itemized a number of notable, distinctive characteristics of the project, stating the following at page 10: Before discussing this project, the following facts should be read.

According to DFO [Department of Fisheries and Oceans], this is the: • largest expansion of salmon aquaculture in Eastern Canada, if not all of Canada, • first salmon aquaculture project in Placentia Bay, • first commercial use of European-strain triploid salmon in Eastern Canada, • first use of this specific cage system in NL, • first time production has moved from 1 million fish per farm to 2 million fish per farm - unknown performance and unknown if this production scale is possible in NL. [ 69 ] Perhaps because of the large scale and the numerous “firsts” associated with the proposed project, it has attracted considerable negative attention.

The record reveals widespread public concern, in general terms, as well as specific fears relating to the potential negative environmental effects flowing from the project. [ 70 ] The central, but certainly not the exclusive, reason for the unease relates to the potential negative impact of the project on wild salmon in the Placentia Bay area. The Watton Report - chronicling significant public concern [ 71 ] The Watton report documented significant public concern relating to the proposed project.

The report is instructive and relevant in this respect, in that it was prepared as a deliberation aid to advise the Minister and to assist in informing the Minister’s decision in this matter. [ 72 ] The report was part of the record and, as such, was considered and referred to extensively by the applications judge in reviewing the Minister’s decision. [ 73 ] At pages 13-14, the report describes various aspects of public concern with the proposed project, especially relating to the potential impact on the local wild salmon population. It states:

The main concerns focused around, in no particular order: • Status of the wild salmon population in Placentia Bay, • Escapes and their direct and [in]direct impacts to wild salmon , • Disease and disease transfer, • Parasites and parasite transfer, • Waste products (feed, fecal matter, drifting pesticides (e.g.

Salmosan)), • Site Locations, • Contingency Plan if the project does not work, and • Why land-based closed containment was not discussed or made compulsory as an alternative. [ 74 ] The Watton report deals with all of the above concerns, citing various scientific studies and presenting the perspectives of various government agencies in relation to the concerns.

While it is not possible, or practical, to discuss all the public concerns in detail (including escapes, disease transfer etc.), several examples from the Watton report might provide some useful context for the discussion which will follow. [ 75 ] For example, with regard to the first concern listed above, the “status of the wild salmon in Placentia Bay”, the report notes at page 17 that, the “Committee on the Status of Endangered Wildlife in Canada (COSEWIC) has assessed the Atlantic Salmon – SNP [South Newfoundland Population] as threatened (COSEWIC, 2015; DFO, 2015; DFO, 2016).” (Emphasis in original.) [ 76 ] The wild salmon population of Placentia Bay is part of this Atlantic Salmon – SNP [South Newfoundland Population].

It is, therefore, part of this “threatened” salmon cohort. [ 77 ] The report goes on to predict that the situation is unlikely to improve, stating at page 18: “With continued decline expected, it is expected that the SNP will be listed under the Species at Risk Act ( SARA ) in the near future (multiple sources).” [ 78 ] With respect to another public concern listed above, “escapes and their direct and [in]direct impacts to wild salmon”, Watton noted at page 17: According to Thorstad et al. (2008), • Atlantic Salmon are in decline throughout much of their native distribution, • The numbers of farmed salmon escapes are large compared to their wild conspecifics, • Escaped farmed salmon are an international issue as they do cross national borders, and • The negative effects on wild populations have been scientifically documented including ecological and genetic impacts. [ 79 ] The Watton report also compared the estimated number of wild salmon in Placentia Bay with the proposed number of farmed salmon to be introduced into those waters, if the project is approved. [ 80 ] The report indicates at page 18 that the disparity between the number of wild and farmed salmon would be significant.

It states: The Wildlife Division has provided an estimate of a total population of less than 27,000 for the South Newfoundland Population of Atlantic salmon of which there may be an estimated 7,000 in Placentia Bay . According to DFO Salmonids Section, actual stock assessment data is not available for Placentia Bay with the only estimates being derived from angling returns which are not reliable and do not reflect actual population size data.

For perspective, each cage in each farm in the proposal can hold approximately 160,000 non- native triploid salmon . (Emphasis added.) [ 81 ] The capacity to hold 160,000 non-native triploid salmon in each cage means that the number of farmed salmon in the waters of Placentia Bay could escalate quickly. [ 82 ] The report states, at page 1, that the proposed project involves “11 marine-based farms” in Placentia Bay, and “each marine- based farm will consist of multiple cages.” [ 83 ] Even if each of the proposed 11 marine-based salmon farms had only one cage, this would yield a total capacity exceeding 1.7 million farmed salmon (i.e. 160,000 x 11=1,760,000).

Once production began, the number of farmed salmon would quickly dwarf the estimated 7,000 wild salmon presently remaining in Placentia Bay. [ 84 ] This 1.7 million farmed salmon figure could increase dramatically if, as is proposed, each marine-based farm would use “multiple cages”. For example, two cages per farm would mean the number of farmed salmon would be more than three million, three cages per farm would yield in excess of five million, and so on. [ 85 ] The exact number of farmed salmon proposed for the waters of Placentia Bay at peak production is, presently, unknown.

The Watton report indicates, at page 13, that the number was “not specifically stated” in the documentation filed when the project was

registered with government. [ 86 ] However, in terms of calculating the proposed number of salmon to be produced, it is instructive to consider the number of cages proposed. [ 87 ] The Watton report notes at page 12 that “there will be a capacity of 120 cages in the 11 farms…”.

According to the report, these 120 cages would be distributed among the 11 proposed marine-based salmon farms, with 9 farms having 12 cages each, and two farms having 6 cages each. [ 88 ] Based on the numbers in the Watton report, and assuming all cages were used, the project could possibly have a total production capacity exceeding 19 million farmed salmon (i.e. 120 salmon cages x 160,000 salmon per cage = 19,200,000).

Of course this number would be lower if fewer cages were operational at any given time or if fewer salmon were held in each cage. [ 89 ] The Watton report does give some indication of the possible impact of these numbers when it notes that the project would be the “first time production has moved from 1 million fish per farm to 2 million fish per farm – unknown performance and unknown if this production scale is possible in NL” (page 10). [ 90 ] In terms of the scope of the project, the Watton report also states that, in addition to the 11 marine-based farms (with 120 cages holding up to 160,000 salmon per cage), the project would also include a land-based salmon hatchery, which “will produce up to seven million triploid smolt annually” (page 1). [ 91 ] The Minister, before making a decision in this matter, would have had access to all of the above information as it related to public concern, along with a vast amount of other relevant information contained in the Watton report. [ 92 ] Both the public concern and the environmental effects arising from the proposed project are relevant considerations in the legislation which the Minister had to consider.

Both are germane to the decision made by the Minister in this circumstance, and both will be discussed below, in the context of interpreting the relevant legislation. The Minister’s “release” of the project [ 93 ] The applicable provincial environmental legislation mandates that, in certain circumstances, the Minister must require further environmental assessment procedures be undertaken before a project can be approved or “released”. [ 94 ] In this case, the Minister released the project without requiring any further environmental assessment procedures.

Rather, after a preliminary screening review, the project was permitted to proceed. [ 95 ] This was the Minister’s so-called “release” decision. The Minister “released” the project, meaning that it was “released from the further application of the environmental assessment requirements” set out in provincial environmental legislation. [ 96 ] The record indicates that, in this respect, the Minister’s decision to release was contrary to the Watton report’s recommendation that the Minister require further environmental assessment be undertaken (page 48).

The Minister, of course, was not obligated to accept this recommendation. As discussed below, though, the Minister was obligated to comply with the applicable legislative requirements. [ 97 ] The Federation opposed the Minister’s decision to release the project without requiring further environmental assessment. It argued that the Minister’s decision to release was contrary to the mandatory requirements in provincial environmental legislation. [ 98 ] The legislation provided that a person who is “aggrieved by a decision or an order” could appeal.

It provided that an appeal of the Minister’s decision could be made, in writing, to the Minister. The Minister could then allow or dismiss the appeal, or make another decision or order. [ 99 ] On this basis, the Federation appealed the Minister’s release decision. The Minister dismissed the appeal. He confirmed his original decision to release the project. Judicial review of the Minister’s decision [ 100 ] The Federation applied for judicial review of the Minister’s decision to release the project from the further application of the province’s environmental assessment requirements.

The application for judicial review was heard in the Supreme Court of Newfoundland and Labrador. [ 101 ] The applications judge determined that the applicable standard of review in considering the Minister’s release decision was reasonableness. [ 102 ] Applying a reasonableness standard, the applications judge considered whether the Minister’s decision to release the project was, or was not, reasonable. [ 103 ] In this regard, the applications judge referenced the law as set out by the Supreme Court of Canada in Dunsmuir , stating at paragraph 128 : A “reviewing court is concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law”, Dunsmuir at paragraph 47 . [ 104 ] The applications judge also referenced the decision of this Court in Layman v.

Layman Estate , 2016 NLCA 13 , 375 Nfld. & P.E.I.R. 106 regarding the appropriate approach to be taken in judicial review, stating, at paragraphs 155-156: In Layman v. Layman Estate , 2016 NLCA 13 at paragraph 23 , our Court of Appeal confirmed that “the real questions” I must ask myself

on judicial review on a reasonableness standard were: 1. Whether in light of the record before him, the reasons reveal that the (decision maker) chose an

interpretation … that its words could bear. 2. Whether the

interpretation chosen … was justifiable in light of the facts and the law, even if there were competing

interpretations.

I must therefore review the Record to determine if the outcome is within a range of outcomes justified by the facts and the law. [ 105 ] The applications judge concluded that the Minister’s decision to release the project was unreasonable in that, based on a review of the record, the decision was not within a range of outcomes justified by the facts and the law. [ 106 ] As a result, the applications judge set aside the Minister’s decision to release the project, and ordered that the Minister require further environmental assessment of the project before a decision could be made with respect to the project’s release (2017 NLTD(G) 137).

The Minister’s appeal to this Court and the Minister’s action before the appeal was heard [ 107 ] The decision of the applications judge was appealed to this Court by the Minister. [ 108 ] Notably, before the hearing of the appeal, the Minister advised that further environmental assessment would be required in this matter before a decision would be made regarding release. [ 109 ] More particularly, the Minister required the proponent to prepare an “environmental impact statement” with respect to this project.

The Minister notified the proponent of this requirement before the appeal was heard and a public announcement was made in this respect. [ 110 ] Notwithstanding this development the appeal proceeded. The Court was not requested to make a determination as to whether the appeal was moot in light of the Minister’s decision to order an environmental impact statement. The appeal continued in that it was understood that a decision outlining this Court’s views on the

interpretation of the applicable legislation and the Minister’s authority in this legislative context, while perhaps of only limited consequence or impact in this case (given that the Minister had already ordered further environmental assessment be undertaken), might nonetheless be instructive, relevant or of some general utility in informing future ministerial determinations in this context. [ 111 ] The applications judge’s decision required that an environmental impact statement be prepared before release could occur.

The Minister, in fact then, complied with this requirement when, before the appeal hearing, he ordered that an environmental impact statement be prepared. [ 112 ] The result in this appeal, then, confirms that the Minister was mandated by the legislation to require an environmental impact statement in this circumstance. [ 113 ] To be clear, then, this appeal did not deal with the Minister’s subsequent decision to require an environmental impact statement.

Rather, this appeal was brought and argued on the issue of whether the Minister’s original decision to release the project, without requiring further environmental assessment, was or was not reasonable in the context of the applicable legislation.

ISSUE [ 114 ] The issue on appeal is whether the applications judge erred in determining that the Minister’s decision (to release the project from the further application of the environmental assessment requirements provided for in provincial legislation) was unreasonable, in that the Minister’s decision was not within the range of outcomes justified by the facts and the law.

ANALYSIS The applicable legislation [ 115 ] A decision to release, or not release, a project such as this one from environmental assessment must be made in accordance with the applicable legislation, and the authority provided by that legislation. [ 116 ] The applicable legislation in this context is the Environmental Protection Act , SNL 2002, c.E-14.2 (especially

Part X, sections 45- 77 of the Act , entitled “Environmental Assessment”) as well as the Environmental Assessment Regulations, 2003 , NLR 54/03 . [ 117 ] Collectively, and as will be discussed in detail below, the legislation prescribes and, notably, also limits the Minister’s powers in making a decision to release a project in this context. [ 118 ] Where a Minister’s decision to release a project from further environmental assessment is challenged, as in this case, the Act and Regulations must be considered and interpreted to determine whether the decision is supported by, and consistent with, the legislation. [ 119 ] This matter, therefore, principally entails an exercise in statutory

interpretation in the context of the applicable legislation.

Approach to statutory

interpretation [120] This Court in R v. Pardy, 2014 NLCA 37, 357 Nfld. & P.E.I.R. 49, sitting as a five member panel, described the proper approachto statutory

interpretation as follows: [51] As is the case with any statutory provision, its meaning and effect must be gathered by construing the words used in the context ofthe statute as a whole and harmoniously with the scheme and purpose of the legislation. In giving meaning to the words used in anenactment, the Court must recognize that the inherent plasticity of language requires reference to context and inferred purpose to givethem specific meaning.

Section 16 of the

Interpretation Act requires that every provision of

an Act shall be considered remedial and begiven “the liberal construction and

interpretation that best ensures the attainment of the objects of the Act … according to its truemeaning.” [52] In Archean Resources Ltd. v. Newfoundland (Minister of Justice), 2002 NFCA 43, 215 Nfld. & P.E.I.R. 124 the process ofinterpretation of statutes in this province was described this way: [22] Instead of mandating some fictionalized search for a collective “legislative intention”, s. 16 directs the court to consider everyprovision “remedial” and to interpret it so that it “best” ensures the attainment of its “objects” according to its “true” meaning.

Thisrequires a consideration, as an integral part of the interpretive exercise, of the problem or “mischief” to which the legislature directed itslegislative act as a remedy and then the drawing of an inference, based on the language of the whole enactment and the court’s generalknowledge of the state of the pre-existing law and any information as to the broad social context in which the legislative act occurred, asto what, broadly speaking, the object or objects of the legislative act must have been. The end result is to arrive at a “true” meaning.

Thatinevitably requires an examination of more than the bare words of the legislative enactment that is in issue, no matter how clear orunambiguous they may at first blush appear.

The surrounding text, the interrelation of other related statutes, the social and legislativecontext in which the provision was enacted, and other extrinsic aids are all sources to be consulted in this exercise. … [t]rue meaning isnot plain meaning; it is a conclusion arrived at by reconciling all the appropriate indicators of meaning that the court is directed toconsider. [23] In truth, therefore, s. 16 enunciates a principle of harmonization in which the courts are directed, in cases of dispute, to adopt andapply an

interpretation that fairly reconciles the language used in the enactment with the broader objectives of the legislation so as toachieve the general goal, or to rectify the mischief, to which the legislative act appears to be directed. That exercise determines thegeneral ambit of impact of the legislative act and provides the basis for the court to conclude whether the particular fact situation beforeit should fall inside or outside that ambit. [121] More recently, in Dwyer v. Bussey, 2017 NLCA 68, leave to appeal to SCC refused, 37921 (August 9, 2018), Chief Justice Greenof this Court summarized the current approach to the

interpretation of legislation in this province. This

summary, at paragraph 57,encapsulates the thinking on statutory

interpretation found in a number of recent decisions from this Court. [122] Chief Justice Green stated in this regard: The approach to

interpretation of provincial statutes in this jurisdiction is to ascribe to the words used a meaning that reconciles thosewords with all other indicators of meaning, including the mischief against which the remedial nature of the statute is directed as well asthe context of the surrounding legislative text and related statutes and the social context of the provision, and by inference therefrom, thepurpose or object of the provision under consideration:

Interpretation Act, RSNL 1990, c. I-19 , s. 16; Archean Resources Ltd. v.Newfoundland (Minister of Finance), 2002 NFCA 43, 215 Nfld. & P.E.I.R. 124 at paragraphs 22-23; R. v. Pardy, 2014 NLCA 37, 357Nfld. & P.E.I.R. 49 at paragraphs 51-52; Lynch v. St. John’s (City), 2016 NLCA 35, 380 Nfld. & P.E.I.R. 13, at paragraphs 75-78, 79. [123] This Court’s approach to statutory

interpretation is aligned with the “modern approach” taken by the Supreme Court of Canada. [124] Justice Brown, writing for the Supreme Court of Canada in British Columbia v. Philip Morris International, Inc., 2018 SCC 36recently offered a succinct synopsis of this approach, at paragraph 17, as follows: Statutory

interpretation entails discerning legislative intent by examining the words of a statute in their entire context and theirgrammatical and ordinary sense, in harmony with the statute’s scheme and object: Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, at para. 21. [125] The applications judge’s approach to statutory

interpretation was consistent with the approach of this Court and the SupremeCourt of Canada. [126] The applications judge stated at paragraphs 176 and 178: “Today, there is only one principle or approach” (to statutory

interpretation), namely the words of

an Act are to be read in their entirecontext and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention ofParliament. Rizzo v. Rizzo Shoes Ltd.(Re), (SCC), [1998] 1 S.C.R. 27. … In Lynch v. St. John’s (City), 2016 NLCA 35, our Court of Appeal confirmed that we must seek an

interpretation that “best ensures theattainment of the objects of the Act…according to its true meaning” and that discerning the “intention of the legislature” is by “referenceto all relevant sources of meaning, including the words used, the statutory context, the court's knowledge of the state of the pre-existinglaw, social context, the perceived mischief that caused the government …(to introduce the bill)….and the legislative history” (atparagraph 75). [127] Guided by the approach to statutory

interpretation outlined above, the language used in conferring, and also limiting, ministerialauthority to release the project in this circumstance shall be considered, both in the “grammatical and ordinary sense”, and also in the

broader context of the “legislative scheme and object”. [ 128 ] Before considering, in further detail, the language which bestows and also constrains the Minister’s authority to release a project from environmental assessment, a brief overview of some of the key concepts in the legislation may be helpful, starting with the notion of an “undertaking”. The project is an “undertaking” [ 129 ] The Act and the Regulations designate certain projects as “undertakings”. [ 130 ] The Act , in

section 2(mm), states that an undertaking “includes an enterprise, activity, project, structure, work or proposal…that may, in the opinion of the minister, have a significant environmental effect”. [ 131 ] Also, the Regulations specifically designate certain activities/projects/works etc. as undertakings, because of their potential, negative environmental impact.

Section 29 of the Regulations indicates that an aquaculture project, such as the one proposed, is considered to be an undertaking. [ 132 ] This project, then, meets the statutory definition of an undertaking. [ 133 ] This is significant because the Act and Regulations set out specific requirements which attach to undertakings, which otherwise would not apply to projects or activities which are not deemed to be undertakings. [ 134 ] First, undertakings must be registered with government, and the undertaking’s proponent must notify the Minister of the proposed undertaking in a prescribed manner (section 49 of the Act ).

The project, in this case, has been registered. [ 135 ] Once an undertaking is registered a “screening process” occurs to determine whether further environmental assessment is required. This screening process will be considered more fully, below, when discussing sections 23 and 25 of the Regulations . [ 136 ] In this case, following this initial screening review, the Minister decided that no further environmental assessment was necessary. The Minister released the project at this stage. [ 137 ] Second, the legislative provisions dealing specifically with environmental assessments , found in

Part X of the Act , and in the Regulations , apply only to undertakings. These would therefore apply to this project. [ 138 ] Third, an undertaking shall not proceed unless the undertaking has been “exempted or released” as stated in

section 48 of the Act . [ 139 ]

Section 70 of the Act permits the Lieutenant-Governor in Council to exempt an undertaking from the environmental assessment process, “where the minister is of the opinion that it is in the public interest …”. [ 140 ] In this case, the Lieutenant-Governor in Council has not exempted this project. [ 141 ] Therefore, the project is subject to the Act and Regulations and cannot proceed until a determination has been made that it can be released from further environmental assessment.

Part X of the Environmental Protection Act – Protecting the “environment and quality of life” through environmental assessment procedures [ 142 ]

Part X of the Act deals solely with environmental assessment. [ 143 ]

Section 46 sets out the purpose of

Part X as follows: 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. [ 144 ] The purpose is concerned with protecting the environment and quality of life of the people of the province and facilitating wise management of natural resources. [ 145 ] This purpose is achieved through “environmental assessment procedures” which contemplate participation by the public so that their concerns may be expressed and considered. [ 146 ] Three environmental assessment procedures are specifically included in

Part X of the Act . These are the environmental assessment, environmental impact statement and environmental preview report, all of which are defined terms in

section 45 of the Act . [ 147 ] An environmental assessment is a “process by which the environmental effect of an undertaking is predicted and evaluated before the undertaking has begun or occurred” (section 45(

d) of the Act ). [ 148 ] An environmental impact statement is directly related to an environmental assessment, in that the environmental impact statement is a “ report that presents the results of an environmental assessment” (section 45(

e) of the Act ).

[ 149 ] As discussed below, an environmental impact statement is required in certain circumstances, including where the Minister determines that there is “significant public concern” relating to an undertaking. [ 150 ] When ordered, an environmental impact statement must be prepared by the proponent of the undertaking, and submitted to the Minister.

In this case, the Minister did not require the proponent to prepare an environmental impact statement. [ 151 ] Also, it is significant that, when an environmental impact statement is required, the legislation mandates increased public input and participation in the assessment process. This requirement for enhanced public input and engagement is important in achieving the legislative purpose. [ 152 ] Finally, an environmental preview report is a report “which is necessary to assist the minister in making a determination as to whether or not an environmental impact statement is required” (section 45(

f) of the Act ). The Minister, in this case, did not require or request an environmental preview report. [ 153 ] Th

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