Factual Record

Oldman River II Submission

(SEM-97-006)

Prepared in Accordance with Article 15

of the North American Agreement

on Environmental Cooperation

Table of Contents

1. Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . 7

2. Summary of the Submission . . . . . . . . . . . . . . . . . . . . 12

3. Summary of Canada’s Response. . . . . . . . . . . . . . . . . . 14

4. Scope of the Factual Record . . . . . . . . . . . . . . . . . . . . 16

5. Summary of Other Relevant Factual Information and Facts

Presented by the Secretariat with Respect to Matters Raised

in Council Resolution 01-08 . . . . . . . . . . . . . . . . . . . . 18

5.1 Information Gathering Process . . . . . . . . . . . . . . . . 18

5.2 Meaning and Scope of Fisheries Act ss. 35, 37 and 40 . . . . 22

5.2.1 Introduction. . . . . . . . . . . . . . . . . . . . . . . 22

5.2.2 The Habitat Protection Provisions of the

Fisheries Act . . . . . . . . . . . . . . . . . . . . . . . 27

5.3 Federal Policies Regarding Administration and

Enforcement of Fisheries Act ss. 35, 37 and 40 . . . . . . . . 31

5.3.1 The Habitat Policy . . . . . . . . . . . . . . . . . . . 32

5.3.1.1 Application of the Habitat Policy in

Alberta . . . . . . . . . . . . . . . . . . . . . 33

5.3.2 Fisheries Act Habitat Protection and Pollution

Prevention Provisions Compliance and

Enforcement Policy. . . . . . . . . . . . . . . . . . . 35

5.4 Meaning and Scope of s. 5(1)(d) of the Canadian

Environmental Assessment Act (CEAA) and Schedule 1

Part I Item 6 of the Law List Regulations made pursuant

to paragraphs 59(f) and (g) of the CEAA . . . . . . . . . . 35

3
5.5 The CEAA and the Protection of Fish Habitat under the

Fisheries Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

5.6 Planning of the Sunpine Project and Alberta’s Approval

of the Sunpine Project . . . . . . . . . . . . . . . . . . . . . 52

5.7 Canada’s Actions in Regard to Alleged Violations of

the Fisheries Act and the CEAA in Connection with

the Sunpine Project. . . . . . . . . . . . . . . . . . . . . . . 63

5.8 Facts Regarding Whether Canada is Failing to Effectively

Enforce the Fisheries Act and the CEAA in Connection

with the Sunpine Project. . . . . . . . . . . . . . . . . . . . 72

6. Closing Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

Figures

Figure 1 DFO Decision Framework for the Determination

and Authorization of Harmful Alteration,

Disruption or Destruction of Fish Habitat . . . . . . 51

Figure 2 Map . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Figure 3 Local Watersheds . . . . . . . . . . . . . . . . . . . . 57

Appendices

Appendix 1 Council Resolution 01-08, dated 16 November

2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

Appendix 2 Overall Plan to Develop a Factual Record,

dated 14 December 2001 . . . . . . . . . . . . . . . . 95

Appendix 3 Comments of Canada and the United States on the

Overall Plan to Develop a Factual Record, dated

14 January and 23 January 2002, respectively . . . . 103

Appendix 4 Request for Information, dated January 2002 . . . . 111

Appendix 5 Follow-Up Information Request, dated

10 September 2002 . . . . . . . . . . . . . . . . . . . 119

4 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION
Appendix 6 List of Information Received by the Secretariat for

Development of the Factual Record . . . . . . . . . 127

Appendix 7 Photos . . . . . . . . . . . . . . . . . . . . . . . . . . 157

Appendix 8 Acronyms and Defined Terms . . . . . . . . . . . . 161

Attachments

Attachment 1 Council Resolution 03-13 . . . . . . . . . . . . . . . 165

Attachment 2 Comments of Canada . . . . . . . . . . . . . . . . . 169

Attachment 3 Comments of the United States of America . . . . . 197

TABLE OF CONTENTS 5

1. Executive Summary

Articles 14 and 15 of the North American Agreement on Environmental Cooperation (“NAAEC”) establish a process allowing residents of

Canada, Mexico and the US to file submissions alleging that a Party to

the NAAEC (Canada, Mexico or the United States) is failing to effectively enforce its environmental law. Under the NAAEC, this process

can lead to the publication of a factual record. The Secretariat (“Secretariat”) of the North American Commission for Environmental Cooperation (“CEC”) administers the NAAEC citizen submissions process.

On 4 October 1997, The Friends of the Oldman River filed a submission (SEM-97-006 (Oldman River II), the “submission”) with the

Secretariat asserting that Canada is failing to effectively enforce the fish

habitat protection provisions of the federal Fisheries Act and related

provisions of the Canadian Environmental Assessment Act (“CEAA”). The

submission asserts that in regard to projects that may harm fish habitat,

the Department of Fisheries and Oceans (“DFO”) is issuing letters of

advice to project proponents instead of issuing Fisheries Act authorizations and orders that trigger an environmental assessment requirement

under the CEAA. The submission also alleges that Canada has abdicated

its responsibilities for enforcement of the Fisheries Act habitat protection

provisions to Canada’s inland provinces (Alberta, Saskatchewan, Manitoba, Ontario, parts of British Columbia and parts of Quebec), which are

not effectively enforcing the Fisheries Act.

On 13 July 1998, Canada responded, asserting that compliance

with the Fisheries Act habitat protection provisions could be achieved

on a preventative basis through voluntary, routine communications

between DFO and project proponents. Canada states that this approach

is consistent with the Fisheries Act, which does not require DFO to review

project information or issue Fisheries Act orders and authorizations.

Canada asserts that DFO has designated provincial fish and wildlife

employees in all provinces for enforcement purposes under the Fisheries

Act. Canada asserts that in many cases, actions that violate the Fisheries

Act are prosecuted under provincial laws.

7
On 19 July 1999, the Secretariat recommended preparation of a factual record to gather additional information on the use and success of

“letters of advice” in securing compliance with the Fisheries Act, and

regarding Canada’s claim that enforcement action is taken when the

Fisheries Act is contravened. On 16 November 2001, in Council Resolution 01-08, the Council instructed the Secretariat to prepare a factual

record on whether Canada, in the Sunpine Forest Products Access Road

case—an example mentioned in the submission—is failing to effectively

enforce sections 35, 37 and 40 of the Fisheries Act, Section 5(1)(d) of the

CEAA, and Schedule 1 Part 1 Item 6 of the Law List Regulations made

pursuant to paragraphs 59(f) and (g) of the CEAA.

S. 35(1) of the Fisheries Act provides that no person shall carry on

any work or undertaking that results in the harmful alteration, disruption, or destruction (“HADD”) of fish habitat. S. 35(2) states that s. 35(1)

is not violated if a person causes a HADD of fish habitat by any means

or under any conditions authorized by the Minister of Fisheries and

Oceans (“MFO”) or under Fisheries Act regulations (there are no regulations at this time). S. 37(1) requires proponents of projects that are likely

to result in a HADD to provide information to MFO, in the manner and

circumstances prescribed by regulations made under the Fisheries Act

(there are no regulations at this time) or on the request of MFO. Under

s. 37(2), the MFO may, by order, subject to regulations made under the

Fisheries Act, or, if there are no such regulations in force (which is the

case at this time) with the approval of the Governor in Council, require

changes to plans for a work or undertaking or to an existing work or

undertaking, and may restrict its operation. Violation of ss. 35(1), 37(1)

or 37(2) is an offense under s. 40 of the Fisheries Act, punishable by fines,

or jail time, or both. Before MFO can issue a s. 35(2) authorization or a

s. 37(2) order under the Fisheries Act, DFO must ensure that an environmental assessment of the project is conducted under the CEAA. A CEAA

assessment determines whether a project is likely to result in significant

adverse environmental effects, taking into account any mitigation measures considered appropriate, and if so, whether such effects are justifiable in the circumstances. If they are not, a federal authority such as MFO

cannot take any action, such as issuing an authorization under s. 35(2),

that would allow the project to be carried out in whole or in part. The

CEAA requires federal authorities such as DFO to ensure that assessments are conducted as early as is practicable in the planning stages of a

project, and before irrevocable decisions are made.

In July 1992, Sunpine Forest Products Ltd. (“Sunpine”) signed a

forest management agreement (“FMA”) with the Alberta government

8 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION
giving Sunpine long-term tenure over an area of over 2,500 square miles

of forest land in the Rocky Mountain foothills of West Central Alberta.

Sunpine’s operations within the FMA area are governed by timber harvest planning and operating ground rules it negotiated with the Alberta

government, including rules on road planning and fish habitat protection. DFO was not involved in developing these ground rules. Under its

ground rules, Sunpine is required to use existing roads for its log hauls

whenever possible. In 1993, Sunpine presented the provincial government with a proposal to build a new, permanent, 40 km, all-weather log

haul road up the middle of its new FMA area (the “Sunpine Project” or

“Mainline Road”). After provincial fisheries, wildlife, and forestry staff

recommended requiring Sunpine to use an existing, public road for its

log haul to avoid, among other things, creating new impacts on fish habitat, the province’s forest service approved the proposed road corridor

under Alberta’s Resource Road Planning Guidelines in August 1995. With

provincial approval and without DFO involvement, Sunpine built and

operated a temporary road within the Mainline Road corridor in the

winter of 1995-96. The provincial forest service approved the alignment

for the Mainline Road in September 1996, and the Mainline Road was

built in 1997. Certain provincial fisheries staff involved with the Sunpine

Project had appointments as fishery guardians under the Fisheries Act.

Under these appointments, they had the power to lay charges for violations of s. 35(1), but could not issue authorizations under s. 35(2).

MFO is accountable to Parliament for the protection of fish and fish

habitat in Canada through the administration and enforcement of the

Fisheries Act. DFO has developed the Policy for the Management of Fish

Habitat (1986) (the “Habitat Policy”) as a guide to the administration of

the Fisheries Act habitat protection provisions. The Habitat Policy has an

overall objective of achieving a net gain in fish habitat in Canada, with an

emphasis on integrated planning and achieving no net loss of fish

habitat productive capacity on a project-by-project basis. The Habitat

Policy states that DFO does not actively apply the Habitat Policy in

six provinces (or parts thereof) where federal fisheries legislation is

administered by the provincial fisheries management agency, including

Alberta. The Habitat Policy states that agencies in such provinces will be

encouraged to apply the Habitat Policy through bi-lateral administrative agreements and protocols. During planning and construction of the

Sunpine Project, DFO did not have an agreement or protocol with

Alberta for the application of the Habitat Policy.

EXECUTIVE SUMMARY 9
In 1994, DFO issued Habitat Conservation and Protection Guidelines under the Habitat Policy. These Guidelines contain a standard

approach to the administration of the Fisheries Act habitat protection

provisions, including a hierarchy of preferred options for assessing

physical impacts of projects on fish habitat. Where project assessment

indicates that current habitat productive capacity cannot be maintained,

the Guidelines recommend changing project design through relocation

or redesign. If neither relocation nor redesign is feasible, and the project

does not pose a threat to critical or important habitat, mitigation measures can be considered. Where relocation, redesign and mitigation are

not viable and the habitat requires only moderate or minimum protection, habitat compensation and artificial propagation can be used to

achieve “no net loss” of fish habitat productive capacity. Under DFO

policy, a s. 35(2) authorization is required only in those cases where compensation or artificial propagation is needed to achieve no net loss of fish

habitat productive capacity. Where DFO considers that mitigation measures could avoid a HADD, DFO issues letters of advice to project proponents setting out required mitigation measures.

A concerned citizen made DFO aware of the Sunpine Project in

June 1995. DFO exercized its discretion and did not participate in the

selection of a road corridor or road alignment for the Sunpine Project in

order to evaluate relocation or redesign options as contemplated by the

Habitat Conservation and Protection Guidelines. DFO made an information request to Sunpine regarding the Sunpine Project in August

1995, listing information Sunpine was asked to provide to DFO for

review. According to DFO, this information request was not made pursuant to the discretionary information-gathering powers given the MFO

by s. 37(1) of the Fisheries Act. Following Sunpine’s reply, DFO made

another detailed information request to Sunpine in February 1996, and

Sunpine replied in March 1996, committing to implement mitigation

measures and conduct follow-up monitoring of sediment impacts on

fish habitat at seven of twenty-one stream crossings, as well as a section

of the proposed Mainline Road. As regards impacts on fish habitat from

five of these crossings and a section of the proposed Mainline Road, DFO

reviewed mitigation measures proposed by Sunpine but did not take

action to ensure their implementation or verify their success in preventing a HADD of fish habitat. In September 1996, DFO concluded that the

Sunpine Project would not result in a HADD of fish habitat and therefore

did not require issuance of a s. 35(2) authorization and a CEAA environmental assessment.

10 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION
The Mainline Road was built in 1997. In its 13 July 1998 response to

the submission, Canada stated that Alberta Fish and Wildlife officials

inspected the road following construction of the bridges and culverts

and concluded that fish habitat had been protected. Canada has stated

that Alberta’s forest service, in its role as land manager, monitored the

right-of-way and directed Sunpine to submit an action plan to correct

erosion problems. Neither DFO nor Alberta have conducted follow-up

monitoring—or required Sunpine to submit results of follow-up monitoring—to verify that sediment run-off from the Mainline Road surface

is not causing a HADD of fish habitat in Sunpine’s FMA area in violation

of the Fisheries Act.

In December 1995, Sunpine applied to the Canadian Coast Guard

(“CCG”) in Vancouver for permits under the federal Navigable Waters

Protection Act (“NWPA”) for two bridges it proposed to build over navigable rivers as part of the Sunpine Project. These applications triggered a

requirement for a screening under the CEAA. Under the CEAA, CCG

referred these applications to DFO for expert advice on any mitigation

measures required to reduce impacts of the bridges on fish habitat. In the

following months, jurisdiction over the province of Alberta was transferred from the CCG Western region to the Central and Arctic region,

and CCG staff responsible for reviewing the Sunpine Project were transferred from Vancouver, British Columbia to Sarnia, Ontario. In July

1996, CCG decided to assess each bridge as a separate “project” under

the CEAA, and DFO submitted required fish habitat mitigation measures to CCG for inclusion in the CEAA screening report for each of the

two bridges. Under the CEAA, CCG was then responsible for ensuring

the implementation of those mitigation measures. The CEAA screening

reports for the two bridges concluded that the bridges, taking into

account required mitigation measures, would not cause significant

adverse environmental effects. In September 1996, DFO issued letters of

advice to Sunpine for the bridges, containing mitigation requirements

similar to those found in the CEAA screening reports. At the outcome of

DFO’s review of the two bridges for effects on fish habitat, Sunpine

changed the design of one bridge to a clear span structure from a pier

structure (“project redesign” under the Habitat Conservation and Protection Guidelines). As regards the other bridge, Sunpine decided not to

build that part of the Sunpine Project, opting to use an existing, public

road instead (“project relocation” under the Habitat Conservation and

Protection Guidelines).

In August 1996, an environmental group applied to the Federal

Court for cancellation of Sunpine’s NWPA permits on the grounds that

EXECUTIVE SUMMARY 11
CCG’s CEAA screenings of the two bridges did not comply with the

requirements of the CEAA. The group maintained that CCG should

have defined the “project” as the Mainline Road and associated logging

operations, that a consideration of the environmental effects of the Mainline Road and Sunpine’s logging operations should have been included

within the scope of the CCG screening assessments, and that cumulative

environmental effects of other projects in the area should have been

taken into account in considering whether the Mainline Road (including

the two bridges over navigable waters) and Sunpine’s logging operations were likely to result in significant, adverse environmental effects.

The trial judge held that CCG had not committed a reviewable error in

exercizing its discretion by defining each bridge as a separate project,

but he also held that CCG should have included the road and the forestry operations within the scope of the environmental assessment.

On appeal, the Federal Court of Appeal reversed the trial judge’s

decision on the issue of the scope of the environmental assessment, holding that CCG had discretion to limit the scope of the environmental

assessment to factors related to the two bridges. The Federal Court of

Appeal also ruled that CCG had erred in its interpretation of the CEAA

when it decided that it could not consider cumulative environmental

effects from activities outside of the scope of the project, or outside of

federal jurisdiction, in its cumulative environmental effects assessment

under the CEAA. Finally, the Federal Court of Appeal held that locating

the public registry of documents related to the screenings in Sarnia,

Ontario, and requiring the public to file requests under the Access

to Information Act in order to obtain copies of those documents, was

patently unreasonable. An application by the environmental group, for

leave to appeal to the Supreme Court of Canada, was denied.

In 2001, DFO conducted a second CEAA screening of the Ram

River bridge (built in 1997) and again concluded that the bridge was not

likely to cause significant adverse environmental effects.

2. Summary of the Submission

The Submitters filed the submission on 4 October 1997. The submission alleges that Canada is failing to apply, comply with and enforce

the habitat protection provisions of the Fisheries Act and the CEAA. The

Submitters allege that “[i]n particular, the Government of Canada is

failing to apply, comply with and enforce Sections 35, 37 and 40 of the

Fisheries Act, Section 5(1)(d) of the CEAA and Schedule 1 Part 1 Item 6 of

the Law List Regulations made pursuant to paragraphs 59(f) and (g) of the

12 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION
CEAA.”1 The submission contains two main assertions. First, it alleges

that under a 1995 policy directive, DFO is issuing “letters of advice” to

proponents of projects that are likely to harmfully alter, disrupt or

destroy fish habitat, instead of carrying out environmental assessments

of such projects under the CEAA and issuing authorizations to project

proponents under s. 35(2) of the Fisheries Act or orders under s. 37(2).2

According to the Submitters, “Letters of Advise are of questionable

legality and invite the non-application of Sections 35 and 37,” and “[t]he

Directive invents a decision making process which frustrates the intention of Parliament and usurps the role of the CEAA as a planning and

decision making tool.”3

The other main assertion of the submission is that there has been a

de facto abdication of legal responsibilities for the enforcement of the

habitat protection provisions of the Fisheries Act by the Government of

Canada to the inland provinces, and that the provinces have not done a

good job of ensuring compliance with or enforcing the Fisheries Act.4 On

the basis of the number of environmental assessments conducted under

the CEAA in the 1995-96 fiscal year, the Submitters estimate that DFO

issued no more than 339 s. 35(2) authorizations to harmfully alter, disrupt or destroy fish habitat across the country in 1995-96, compared to

over 12,000 issued in 1990-91.5 The Submitters also allege that there are

very few prosecutions under the habitat protection provisions of the

Fisheries Act, and that those that do occur are very unevenly distributed

across the country.6

The submission is supported by a document entitled “ENGO Concerns and Policy Options Regarding the Administration and Delegation

of Subsection 35(2) of the Fisheries Act, Proposed Subsection 35(3) and

Consequences For Federal Environmental Assessment—A Discussion

Paper for the Department of Fisheries and Oceans prepared for the Fisheries Act Working Group of the Canadian Environmental Network by

the Quebec Environmental Law Centre, January 1996.”7 The submission

lists actions taken by the Submitters between 3 October 1994 and 4 October 1996, to communicate these concerns to relevant authorities in the

federal government of Canada.8

SUMMARY OF THE SUBMISSION 13

1. Submission at 1.

2. Ibid. at 2.

3. Ibid.

4. Ibid. at 3.

5. Ibid.

6. Ibid.

7. Ibid. at 2.

8. Ibid. at 7-9.
The Submitters cite the Sunpine Project as a specific example. The

submission states “[t]his submission is related to the general failure of

the Government of Canada to apply, comply with and enforce the Fisheries Act and the Canadian Environmental Assessment Act and not this

particular case which is provided only as an example.”9 The submission describes in detail exchanges of correspondence between Martha

Kostuch and DFO officials during the period 7 June 1995–2 October 1997

concerning DFO’s review of the Sunpine Project under the Fisheries

Act.10

3. Summary of Canada’s Response

Canada responded to the submission on 13 July 1998.11 In its

response, Canada states

Canada supports the Article 14 process. Canada views this process as a

positive and constructive tool through which the public can help the

Parties to the NAAEC improve their environmental enforcement. Canada

submits it is effectively enforcing its environmental laws and is therefore

in full compliance with its obligations under the NAAEC. Therefore, the

development of a factual record is not warranted.12

In response to the Submitter’s assertion that DFO’s use of letters of

advice results in a failure to effectively enforce ss. 35, 37 and 40 of the

Fisheries Act and related provisions of the CEAA, Canada stresses that

the CEAA is triggered by a requirement for a s. 35(2) authorization or the

requirement for a s. 37(1) information request (leading to a s. 37(2)

order), neither of which occurs if DFO, working with a project proponent, can agree on mitigation measures that will avoid any harmful

alteration, disruption or destruction of fish habitat.13 According to Canada, such mitigation measures are developed on the basis of information

voluntarily supplied to DFO by project proponents, s. 37(1) requests

being reserved for instances in which proponents refuse to provide such

information.14 Canada states

[s]ince the Act does not require DFO to use the powers of Section 37 in any

given set of circumstances, DFO’s preference is to proceed on a voluntary

14 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

9. Ibid. at 3.

10. Ibid. at 3-7.

11. “Response of the Government of Canada to Submission on Enforcement Matters

Under Articles 14 and 15 of the North American Agreement on Environmental

Cooperation (NAAEC), Submission No. SEM-97-006, October 4, 1997, by Friends of

the Oldman River,” dated 13 July 1998 [hereinafter “response”].

12. Ibid. at 1.

13. Ibid. at 5-6.

14. Ibid.
basis to obtain the information necessary to deal with Section 35 issues.

This reflects a commitment to operational efficiency. There is no need to

invoke legislative powers to obtain information that is readily available

through routine relationships involving government agencies, proponents and clients.15

Canada states that required mitigation measures are set out in letters of advice issued by DFO to project proponents.16 Canada states “[i]f

the applicant includes the measures necessary to avoid harmful effects,

no authorization under subsection 35(2) is necessary. However, where

the applicant refuses to include such measures, he or she must obtain an

authorization.”17

Regarding enforcement, Canada states that DFO “has identified

provincial personnel responsible for the implementation of the habitat

provisions and enforcement of the Fisheries Act for every province in

Canada,” including “an estimated 650 provincial conservation and fish

and wildlife officers in Canada’s four inland provinces” who “have been

designated under the Fisheries Act for enforcement purposes in addition

to their enforcement duties under provincial legislation.”18 Canada

states that cooperation with provinces increases enforcement resources

and allows more effective enforcement, and that DFO “prefers to prevent damage to habitat and avoid losses to the fisheries resource in the

first phase, before proponents proceed with projects.”19 In addition,

Canada explains that fish habitat related matters frequently find redress

through provincial court action under provincial statute.20

In regard to the Sunpine Project, Canada states

[w]hile the FOR submission is clear that the focus of their allegations

against Canada regarding the enforcement of the Fisheries Act habitat provisions is broader than the Sunpine log hauling road cited as an example in

their submission, Canada would like to provide factual information pertaining to this project and how it was dealt with under federal habitat protection legislation for the public record.

[...]

Sunpine Forest Products Ltd. proposed to build a road to access forest

areas on the eastern slope of the Rocky Mountains west of the town of

SUMMARY OF CANADA’S RESPONSE 15

15. Ibid. at 6-7.

16. Ibid. at 5.

17. Ibid.

18. Ibid. at 11.

19. Ibid. at 9.

20. Ibid. at 10.
Rocky Mountain House. The company approached the provincial government for the required permits and approvals. DFO became aware that as

part of Sunpine’s proposed undertakings, the company’s project would be

crossing 21 streams. DFO concluded that 8 of the 21 had potential implications for fish habitat. For two of the stream crossings, Ram River and Prairie Creek, DFO permits for bridge construction were required under the

federal Navigable Waters Protection Act thus triggering CEAA screenings

for these bridges. The screenings were completed and the permits were

issued. DFO concluded that 6 crossings did not have a potential to damage

fish habitat if constructed as proposed by the company and that no further

action by DFO was required. For the remaining 2 crossings (Ram River

and Prairie Creek), DFO wrote letters of advice. Project construction, with

the exception of the Prairie Creek Bridge, was completed during 1997.

Alberta Fish and Wildlife officials have inspected the 40-kilometer road

and have confirmed that the bridges and culverts have been constructed

as proposed and that fish habitat has been protected.21

4. Scope of the Factual Record

On 19 July 1999, the Secretariat notified the Council under Article

15(1) of the NAAEC that the Secretariat considered that the submission,

in light of Canada’s response, warranted development of a factual

record.22 The Secretariat stated “[...] while the response asserts that the

project review and prosecution approaches the Party uses are effective

in preventing and addressing violations of the Fisheries Act Section 35(1),

the lack of information concerning the actual extent of use of different

enforcement tools, and concerning the effects of these tools in achieving

compliance with the Fisheries Act, has led the Secretariat to conclude that

it is appropriate to use the factual record process to develop facts concerning these questions.”23

In Council Resolution 01-08, which is set out in its entirety in

Appendix 1, the Council unanimously agreed:

TO INSTRUCT the Secretariat to prepare a factual record in accordance

with Article 14 and 15 of the NAAEC and the Guidelines for Submissions

on Enforcement Matters under Articles 14 and 15 of the North American

Agreement on Environmental Cooperation on whether Canada, in the

Sunpine Forest Products Access Road case, is failing to effectively enforce

sections 35, 37 and 40 of the Fisheries Act, Section 5(1)(d) of the Canadian

16 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

21. Ibid. at 11.

22. SEM-97-006 (Oldman River II) Article 15(1) Notification (19 July 1999) [hereinafter

“Article 15(1) notification”].

23. Ibid. at 22.
Environmental Assessment Act (CEAA) and Schedule 1 Part 1 Item 6 of

the Law List Regulations made pursuant to paragraphs 59(f) and (g) of

CEAA.

In light of this instruction, the scope of this factual record is different

from the scope of both the factual record requested in the submission

and the factual record that the Secretariat considered to warrant development in its Article 15(1) notification.24

As stated in the overall work plan for the factual record (see

Appendix 2), this factual record presents facts regarding:

(i) application of section 35 of the Fisheries Act in connection with the

Sunpine Project;

(ii) Canada’s enforcement of sections 35, 37 and 40 of the Fisheries Act,

section 5(1)(d) of the CEAA and Schedule 1 Part 1 Item 6 of the Law

List Regulations made pursuant to paragraphs 59(f) and (g) of the

CEAA in connection with the Sunpine Project; and

(iii) whether Canada is failing to effectively enforce sections 35, 37 and

40 of the Fisheries Act, section 5(1)(d) of the CEAA and Schedule 1

Part 1 Item 6 of the Law List Regulations made pursuant to paragraphs 59(f) and (g) of the CEAA in the context of the Sunpine

Project.

The following matters raised in the submission and the Secretariat’s Article 15(1) notification are, except as relevant to the Sunpine

Project, excluded from the factual record:

• as regards letters of advice: (i) extent and history of use; (ii) compliance monitoring; (iii) enforcement actions; (iv) effectiveness

in achieving compliance with s. 35(1); comparison with s. 35(2)

authorizations on aspects (i)-(iv);

• use of prosecutions as a tool for enforcement of the Fisheries Act

habitat protection provisions; and

• basis for Canada’s assertion that seeking assurances of voluntary compliance in respect of s. 35(1) of the Fisheries Act repreSCOPE OF THE FACTUAL RECORD 17

24. It should not be assumed that the Secretariat’s Article 15(1) Notification to Council

recommending a factual record for SEM-97-006 was intended to include a recommendation to prepare a factual record of the scope set out in Council Resolution

01-08, or that the Secretariat would have recommended a factual record of this

scope.
sents a legitimate exercise of enforcement discretion pursuant

to the NAAEC and that Canada’s allocation of enforcement

resources in connection with the Fisheries Act habitat protection

provisions results from bona fide decisions to allocate resources

to enforcement in respect of other environmental matters determined to have higher priorities.25

5. Summary of Other Relevant Factual Information and Facts

Presented by the Secretariat with Respect to Matters Raised

in Council Resolution 01-08

5.1 Information Gathering Process

On 16 November 2001, the CEC Council instructed the Secretariat

to develop a factual record in regard to submission SEM 97-006 (Oldman

River II), pursuant to Council Resolution 01-08 (Appendix 1). Under

Article 15(4) of the NAAEC, in developing a factual record, “the Secretariat shall consider any information furnished by a Party and may consider any relevant technical, scientific or other information: (a) that is

publicly available; (b) submitted by interested nongovernmental organizations or persons; (c) submitted by the Joint Public Advisory Committee; or (d) developed by the Secretariat or by independent experts.”

On 14 December 2001, the Secretariat published an Overall Plan to

Develop a Factual Record (Appendix 2) pursuant to Council Resolution

01-08. The plan stated the Secretariat’s intention to gather and develop

information relevant to facts regarding:

(i) application of section 35 of the Fisheries Act in connection with the

Sunpine Project;

(ii) Canada’s enforcement of sections 35, 37 and 40 of the Fisheries Act,

section 5(1)(d) of the CEAA and Schedule 1 Part 1 Item 6 of the Law

List Regulations made pursuant to paragraphs 59(f) and (g) of the

CEAA in connection with the Sunpine Project; and

(iii) whether Canada is failing to effectively enforce sections 35, 37 and

40 of the Fisheries Act, section 5(1)(d) of the CEAA and Schedule 1

Part 1 Item 6 of the Law List Regulations made pursuant to paragraphs 59(f) and (g) of the CEAA in the context of the Sunpine

Project.

18 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

25. Article 15(1) notification at 16-19.
To comply with the instruction in Council Resolution 01-08 “to

provide the Parties with its overall work plan for gathering the relevant

facts and to provide the Parties with the opportunity to comment on that

plan,” the Secretariat stated that execution of the plan would begin no

sooner than 14 January 2002. The Secretariat received comments on the

plan from Canada on 14 January 2002, and from the United States on

23 January 2002 (Appendix 3). In its comments on the overall work plan

for this factual record, Canada asked that the Sunpine Project be referred

to as the “Sunpine Forest Products Forest Access Road Case.” For ease of

reference, Sunpine’s Mainline Road project, described in detail below,

in s. 5.6, is referred to as the “Sunpine Project” throughout this factual

record.

As noted above in Section 4 (Scope of the Factual Record), and as

reflected in the overall plan to develop the factual record, the Council, in

Resolution 01-08, determined the scope of the factual record. Accordingly, the Secretariat prepared a Request for Information (Appendix 4)

limited, as described above, to the matters set out in Council Resolution

01-08. The Request for Information provided the following examples of

relevant information falling within the scope of the factual record:

1. Technical information regarding the Sunpine Project, such as maps,

technical drawings, and engineering studies, including any information regarding:

• design options;

• siting options; or

• alternatives to the Project.

2. Information regarding the potential of the Sunpine Project to result

in the harmful alteration, disruption or destruction of fish habitat,

including:

• environmental impact studies;

• evaluations by government professionals;

• concerns of the public.

3. Information about measures proposed, considered or adopted to prevent harmful alteration, disruption or destruction of fish habitat in

connection with the Sunpine Project, including information about

any public consultations.

4. Information about the effectiveness of measures adopted to prevent

harmful alteration, disruption or destruction of fish habitat in connection with the Sunpine Project.

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 19
5. Information on local, provincial or federal policies or practices (formal or informal) regarding enforcement of, or ensuring compliance

with, sections 35, 37 and 40 of the Fisheries Act, section 5(1)(d) of the

CEAA and Schedule 1 Part 1 Item 6 of the Law List Regulations made

pursuant to paragraphs 59(f) and (g) of the CEAA in connection with

the Sunpine Project.

6. Information on federal, provincial or local enforcement- or compliance-related staff or resources available for enforcing or ensuring

compliance with, sections 35, 37 and 40 of the Fisheries Act, section

5(1)(d) of the CEAA and Schedule 1 Part 1 Item 6 of the Law List Regulations made pursuant to paragraphs 59(f) and (g) of the CEAA in connection with the Sunpine Project.

7. Information on Canada’s or Alberta’s efforts to enforce or ensure

compliance with sections 35, 37 and 40 of the Fisheries Act, section

5(1)(d) of the CEAA and Schedule 1 Part 1 Item 6 of the Law List Regulations made pursuant to paragraphs 59(f) and (g) of the CEAA in connection with the Sunpine Project, including for example:

• efforts to prevent violations, such as by placing conditions on or

requiring modification of the Sunpine Project or providing technical assistance;

• monitoring or inspection activity;

• warnings, orders, charges or other enforcement action issued to

Sunpine;

• actions to remedy any impacts to fish habitat caused by the

Sunpine Project; or

• coordination between different levels of government on enforcement and compliance assurance.

8. Information on the effectiveness of Canada’s or Alberta’s efforts to

enforce or ensure compliance with sections 35, 37 and 40 of the Fisheries Act, section 5(1)(d) of the CEAA and Schedule 1 Part 1 Item 6 of

the Law List Regulations made pursuant to paragraphs 59(f) and (g) of

the CEAA in connection with the Sunpine Project, for example their

effectiveness in:

• preventing violations of those provisions; or

• remedying any violations that occurred.

9. Information on barriers or obstacles to enforcing or ensuring compliance with sections 35, 37 and 40 of the Fisheries Act, section 5(1)(d) of

the CEAA and Schedule 1 Part 1 Item 6 of the Law List Regulations

20 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION
made pursuant to paragraphs 59(f) and (g) of the CEAA in connection

with the Sunpine Project.

10. Any other technical, scientific or other information that could be relevant.

In early February 2002, the Secretariat posted the Request for Information on the CEC web site and issued a press release notifying the public of its availability. In addition, on 7 February 2002, the Secretariat sent

the Request for Information to the Government of Canada, inviting a

response by 15 April 2002 in order to allow time to request follow-up

information and also requesting meetings with officials from relevant

federal, provincial and/or local agencies to discuss the matters to be

addressed in the factual record. As requested by Canada, requests for

information from the Canadian federal government were made in writing through designated points of contact. The Secretariat also sent the

Request to the Submitters, the Governments of Mexico and the United

States, the Joint Public Advisory Committee (JPAC), Sunpine, and

nongovernmental organizations identified as potentially having relevant information, inviting them to respond with any relevant information by 30 June 2002.

Canada responded to the Secretariat’s Request for Information on

25 March 2002. Canada sent the Secretariat copies of documents taken

from a public registry set up in connection with environmental screenings carried out by the Canadian Coast Guard in connection with two

bridges Sunpine proposed to build as part of the Sunpine Project. The

Secretariat sent the Government of Canada an additional information

request on 10 September 2002 with follow-up questions based on the

Secretariat’s review of information received from Canada on 25 March

2002 (Appendix 5). On 5 November 2002, Secretariat staff met with representatives of Sunpine at their offices in Sundre, Alberta and was given

a tour of Sunpine’s Mainline Road. Sunpine lent Secretariat staff copies

of proceedings of 1982 public hearings on the Brazeau Timber Development Area. Canada responded to the Secretariat’s 10 September 2002 follow-up information request on 22 January 2003. The Secretariat was

asked to direct all requests for explanations or additional information

regarding DFO’s actions in regard to the Sunpine Project to Environment Canada in Ottawa.

The Submitters provided documents that the Secretariat requested

from them. Secretariat staff met with Martha Kostuch in Rocky Mountain House on 5 November 2002, and borrowed Ms. Kostuch’s file on

the Sunpine Project, including information obtained pursuant to an

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 21
access-to-information request made to the Alberta government in 1995.

In addition to information received in response to the Secretariat’s

requests for information, the Secretariat developed information through

publicly available sources and contracted independent experts to assist

in the development of information relevant to the factual record.

Article 15(5) of the NAAEC provides that “[t]he Secretariat shall

submit a draft factual record to the Council. Any Party may provide

comments on the accuracy of the draft within 45 days thereafter.” Pursuant to Article 15(6), “[t]he Secretariat shall incorporate, as appropriate,

any such comments in the final factual record and submit it to the Council.” The Secretariat submitted the draft factual record to the Council on

17 April 2003 and received comments from the United States on 2 June

2003 and from Canada on 5 June 2003. Mexico did not comment on the

draft factual record.

5.2 Meaning and Scope of Fisheries Act ss. 35, 37 and 40

5.2.1 Introduction

Council Resolution 01-08 instructs the Secretariat to prepare a

factual record regarding an allegation that the federal government of

Canada is failing to effectively enforce fish habitat protection and related

environmental assessment provisions under federal law in connection

with a logging haul road project, the Sunpine Project, carried out by private interests on provincial Crown land in Alberta in the 1990s. The

application of federal environmental protection provisions on provincial Crown land in Canada raises constitutional issues that are relevant

to a consideration of the enforcement of such provisions in connection

with the Sunpine Project.

The Parliament of Canada has constitutional authority to enact

laws for the protection of fish and fish habitat in Canada, and for the

prior environmental assessment of projects that are likely to cause the

harmful alteration, disruption or destruction (known as a “HADD”) of

fish habitat. This authority extends to all fish habitat in Canada, regardless of who owns the fish habitat and/or the fish.26 In Alberta, subject to

Aboriginal and treaty rights, the province owns the fishing rights on

provincial Crown lands.27 Because of the province’s right of ownership

in the fisheries, legislative jurisdiction for the protection of fish and fish

22 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

26. Peter W. Hogg, Constitutional Law of Canada, Loose-leafed (1997) at 29.5(a).

27. Gerard V. LaForest, Water Law in Canada (Ottawa: Information Canada, 1973) at 196

and 235-236.
habitat is concurrent between the federal and provincial governments.28

However, in case of conflict between a provincial and a federal law, the

rule of federal paramountcy gives the federal law priority.29

In the forestry context, if Fisheries and Oceans Canada (“DFO”)

becomes aware that a proposed forestry operation is likely to cause a

HADD of fish habitat requiring a Fisheries Act authorization, it must

ensure, before it issues such an authorization, that an environmental

assessment of the proposed forestry operation (and/or related works,

such as logging roads, bridges, and culverts) is carried out in relation to

the project, to determine whether it is likely to cause unjustifiable,

adverse environmental effects.30 If the project is likely to cause unjustifiable, adverse environmental effects, the federal government cannot take

any action under certain federal statutory and regulatory provisions,

such as issuing an authorization under s. 35(2) of the Fisheries Act, that

would permit the project to be carried out, in whole or in part. In effect,

this means that the federal government has the power to stop a forestry

operation from proceeding, even if the operation is located on provincial

Crown land and the province has issued all necessary provincial permits. Relevant information is provided below regarding the distribution

of legislative powers under the Canadian Constitution, and the history

of provincial resource ownership.

Under the Constitution of Canada, law-making powers are distributed between the federal government and the provinces.31 Each order of

government is given exclusive authority to make laws in regard to

certain subjects. For example, only the federal government is allowed to

legislate in relation to “sea coast and inland fisheries”32 and “criminal

law,”33 while only the provinces are allowed to make laws in relation to,

for example:

• the management and sale of the public lands belonging to the

province and of the timber and wood thereon;34

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 23

28. Peter W. Hogg, Constitutional Law of Canada, Loose-leafed (1997) at 29.5(c).

29. Ibid.

30. See e.g. application of Fisheries Act and CEAA in the context of land clearing activities carried out on federal lands used for military training: 2003 Report of the Auditor

General of Canada, online: Auditor General of Canada <http://www.oag-bvg.gc.

ca/domino/reports.nsf/html/03menu_e.html> (date accessed: 14 April 2003).

31. As defined in s. 52(2) of the Constitution Act, 1982, being Schedule B to the Canada

Act 1982 (U.K.), 1982, c. 11 [hereinafter “Constitution”].

32. Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3 [hereinafter “Constitution Act, 1867”],

s. 91(12), reprinted in R.S.C. 1985, App. II, No. 5.

33. Ibid. at s. 91(27).

34. Ibid. at s. 92(5).
• local works and undertakings [...];35

• property and civil rights in the province;36 and

• generally all matters of a merely local or private nature in the

province.37

The federal government has authority to legislate on all subjects not specifically assigned to the provinces by the Constitution. The Supreme

Court of Canada has held that the environment is a diffuse subject that

cuts across many different areas of constitutional responsibility, some

federal, some provincial, and that as a result jurisdiction is shared.38

In recognition of the broad wording of the federal and provincial

heads of legislative powers under the Constitution, and to respect the

federal/provincial division of powers, the courts have ruled that each

order of government can make laws that affect subjects not assigned to it

by the Constitution, provided that in pith and substance, such laws are

concerned with a subject matter assigned to that order of government by

the Constitution.39 A provision in a law that directly or indirectly seeks

to regulate a matter within the legislative jurisdiction of the other order

of government can be found to be unconstitutional or ultra vires and

struck down by the courts.40

The Fisheries Act was adopted by the federal government in 1868, a

year after Confederation, pursuant to federal jurisdiction over seacoast

and inland fisheries.41 “It regulates the management of marine and

inland (freshwater) fisheries, including commercial, recreational, and

Aboriginal fishing across Canada. The Act sets out the licensing powers

of the Minister of Fisheries and Oceans, the responsibility with respect

24 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

35. Ibid. at s. 92(10).

36. Ibid. at s. 92(13).

37. Ibid. at s. 92(16).

38. See R. v. Hydro-Québec, [1997] 3 S.C.R. 213. See also Friends of the Oldman River Society v. Canada (Ministry of Transport), [1992] 1 S.C.R. 3.

39. See Attorney-General for Canada v. Attorney-General for British Columbia et al., [1930]

A.C. 111 (Privy Council) at 118: “[...] (3) It is within the competence of the Dominion

Parliament to provide for matters which, though otherwise within the competence

of the provincial legislature, are necessarily incidental to effective legislation by the

Parliament of the Dominion upon a subject of legislation expressly enumerated in

s. 91;” see also Attorney-General of Ontario v. Attorney General for the Dominion, [1894]

A.C. 189 (Privy Council) and Attorney-General of Ontario v. Attorney General for the

Dominion, [1896] A.C. 348 (Privy Council).

40. See Peter W. Hogg, Constitutional Law of Canada, loose-leafed, (1997) at 15.5(d).

41. 31 Vict. 1868, c. 60.
to the protection of fish habitat, including pollution prevention and

enforcement and regulation making powers.”42

Since the adoption of the Fisheries Act, there have been many court

cases in which persons facing Fisheries Act charges and/or provinces

have challenged the validity of Fisheries Act provisions on constitutional

grounds. As a result, there is a significant body of caselaw defining the

meaning and scope of federal legislative authority over seacoast and

inland fisheries. Notably, in 1882, the Supreme Court of Canada held

that there is a difference between legislative authority and ownership,

and that federal jurisdiction to legislate on the subject of seacoast and

inland fisheries does not give the federal government an ownership

right in the resource.43 Rather, the federal government has the power to

legislate “[...] generally and effectually for the regulation, protection and

preservation of the fisheries in the interests of the public at large.”44 This

raised a question regarding the limits of federal authority to legislate for

the management, protection and preservation of the fisheries, considering that in many instances the provinces are the owners of the fisheries

resource and have legislative jurisdiction over property and civil rights

in the province as well as over the management and sale of public lands

in the province. In 1976, Chief Justice Bora Laskin of the Supreme Court

of Canada held that “[f]ederal power in relation to fisheries [...] is concerned with the protection and preservation of fisheries as a public

resource, concerned to monitor or regulate undue or injurious exploitation, regardless of who the owner may be, and even in suppression of an

owner’s right of utilization.”45

Provincial ownership of natural resources is the result of preConfederation negotiations between the colonies of British North America and the British Crown. The colonies of Canada [now the provinces of

Ontario and Quebec], New Brunswick and Nova Scotia retained ownership of their lands and natural resources upon entering Confederation in

1867.46 Four decades later, in 1905, the Parliament of Canada passed a

statute creating the province of Alberta out of a section of the Northwest

Territories, a vast tract of land Canada had purchased from the HudSUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 25

42. See Draft National Freshwater Fisheries Strategy (26 September 2002) prepared by an

intergovernmental task group for the Canadian Council of Fisheries and Aquaculture Ministers.

43. R. v. Robertson (1882), 6 S.C.R. 52 at 120.

44. Ibid. at 123.

45. Interprovincial Co-Operatives Limited et al. v. R., [1976] 1 S.C.R. 477 at 495.

46. With limited exceptions. See Constitution Act, 1867 at ss. 109 and 117, and Schedule

3 “Provincial Public Works and Property to be the Property of Canada.”
son’s Bay Company in 1870.47 In order to retain control over land distribution for settlement purposes, the federal government decided not to

hand over ownership of natural resources to the new province, opting

instead to pay the province an annual cash subsidy.48 In 1930, the

Constitution was amended to ratify federal/provincial resource transfer

agreements that placed the Prairie Provinces (Alberta, Saskatchewan

and Manitoba) on the same footing as the original four provinces, such

that the Prairie Provinces had ownership, management and control of

their natural resources, subject to federal jurisdiction to legislate, among

other things, for the protection of the inland fisheries.49

Since the 1930s, the federal government and several provinces,

including Alberta, have had an arrangement regarding the administration of the inland fisheries and the protection of fish habitat. This

arrangement involves three functions (regulation, administration, and

protection) and applies to two categories of activities: fishing, and all

activities other than fishing that can harm fish or fish habitat. As regards

fishing, the inland provinces draft and administer regulations that are

adopted by Parliament under the Fisheries Act. As regards protection of

fish and fish habitat from potentially harmful activities such as forestry,

the federal government retains responsibility for this function, although

the provinces can also legislate in this area under their powers to make

laws for the management of public lands in the provinces.

With the patriation of the Constitution in 1982, a new subsection

was added to the list of provincial heads of legislative powers under the

Constitution, affirming the provinces’ exclusive right to regulate forest

development, conservation and management in Canada, including the

rate at which forests are harvested.50 Pursuant to the constitutional principle of federal jurisdictional paramountcy, however, if provisions of a

provincial forest development law are inconsistent with provisions of a

federal law regarding the protection of fish and fish habitat, the courts

26 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

47. Admitted pursuant to section 146 of the Constitution Act, 1867 and the Rupert’s Land

Act, 1868 (U.K.), 31 & 32 Vict., c. 105, by the Rupert’s Land and North-Western Territory Order of June 23, 1870, effective July 15, 1870. Prior to the admission of those territories the Parliament of Canada enacted An Act for the temporary Government of

Rupert’s Land and the North-Western Territory when united with Canada (32 & 33 Vict.,

c. 3). See also Constitution Act, 1871 (U.K.), 34 & 35 Vict., c. 28 and July 20, 1905,4&5

Edw. VII, c. 3

48. See ss. 20 and 21 of the Alberta Act,4&5 Edw. VII, c. 3. See also Report of the Royal

Commission on the Natural Resources of Alberta (Ottawa: J.O. Patenaude, 1935).

49. Constitution Act, 1930 (U.K.), 20-21 George V, c. 26.

50. Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
can declare the provincial law to be inoperative to the extent of the

inconsistency.51

5.2.2 The Habitat Protection Provisions of the Fisheries Act

From 1868 to 1932, the Fisheries Act contained a section entitled

Injury to Fishing Grounds and Pollution of Rivers that prohibited throwing

certain things overboard and allowing substances deleterious to fish to

enter water frequented by fish.52 In 1932, s. 33(3) was added, specifically

prohibiting certain logging-related activities:

No person engaging in logging, lumbering, land clearing or other operations, shall put or knowingly permit to be put, any slash, stumps or other

debris into any water frequented by fish or that flows into such water, or

on the ice over either such water, or at a place from which it is likely to be

carried into either such water.

In 1980, the Supreme Court of Canada held that s. 33(3) was unconstitutional because it imposed a blanket prohibition on activities that

are under provincial legislative jurisdiction, without a requirement of

proven harm to fisheries.53 In 1977, while the issue of the constitutionality of s. 33(3) was still before the courts, Parliament repealed s. 33 and

added a new set of provisions to the Fisheries Act under the caption Fish

Habitat Protection and Pollution Prevention. S. 33(3) was replaced with

s. 35. Under s. 35 of the Fisheries Act, which remains in force to this day,

(1) No person shall carry on any work or undertaking that results in the

harmful alteration, disruption or destruction of fish habitat.

(2) No person contravenes subsection (1) by causing the alteration, disruption or destruction of fish habitat by any means or under any

conditions authorized by the Minister [of Fisheries and Oceans] or

under regulations made by the Governor in Council under this Act.

S. 34 of the Fisheries Act defines “fish habitat” as “spawning grounds and

nursery, rearing, food supply and migration areas on which fish depend

directly or indirectly in order to carry out their life processes.” S. 2 of the

Fisheries Act defines “fish” as including

(a) parts of fish,

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 27

51. Peter W. Hogg, Constitutional Law in Canada, Loose-leaf, ed. (1997) at 16.6.

52. See 31 Vict. 1868, c. 60, s. 14; R.S.C. 1886, c. 95, s. 15; R.S.C. 1906, c. 45, s. 53; S.C. 1914,

c. 8, s. 44; R.S.C. 1929, c. 73, s. 45; S.C. 1932, c. 42, s. 33; R.S.C. 1970, c. 17 (1st supp.),

s. 3.

53. R. v. Fowler, [1980] 2 S.C.R. 213.
(b) shellfish, crustaceans, marine animals and any parts of shellfish, crustaceans or marine animals, and

(c) the eggs, sperm, spawn, larvae, spat and juvenile stages of fish, shellfish, crustaceans and marine animals.

Unlike former s. 33(3), s. 35(1) provides no details regarding prohibited conduct, focusing instead on the prohibited result. Under s. 40 of

the Fisheries Act, violation of s. 35(1) is an offense punishable on summary conviction or indictment. On summary conviction, defendants

face fines of up to three hundred thousand dollars for a first offense; for

any subsequent offense, a defendant faces fines of up to three hundred

thousand dollars or imprisonment for up to six months, or both. On

indictment, fines for a first offense can reach one million dollars, and for

any subsequent offense, the defendant faces fines of up to one million

dollars or imprisonment for up to three years, or both. The Fisheries Act

specifies that every day on which an offense continues is a new offense

(s. 78.1), and it makes directors, officers or agents of corporations who

direct or authorize the commission of an offense personally liable to the

punishment provided for the offense, whether or not the corporation is

prosecuted (s. 78.2).

Under the Fisheries Act, courts can issue injunctions to stop actions

that constitute offenses under the Act (s. 41(3)), and upon conviction,

courts have wide-ranging order powers to repair damage done and prevent the recurrence of the offense (s. 79.2). In any prosecution under the

Fisheries Act, the Crown must prove its case “beyond a reasonable

doubt.” Once the Crown has made its case, a defendant will be acquitted,

if the defendant can prove, on a balance of probabilities, that the defendant exercised all due diligence to prevent the commission of the offense

or reasonably and honestly believed in the existence of facts that, if true,

would render the defendant’s conduct innocent (s. 78.6).

As part of the 1977 Fisheries Act amendments, the Minister of Fisheries and Oceans was given the following broad information-gathering

and order powers under the new s. 37:

(1) Where a person carries on or proposes to carry on any work or undertaking that results or is likely to result in the alteration, disruption or

destruction of fish habitat [...], the person shall, on the request of the

Minister, or without request in the manner and circumstances prescribed by regulations made under paragraph (3)(a), provide the

Minister with such plans, specifications, studies, procedures, schedules, analyses, samples or other information relating to the work or

undertaking and with such analyses, samples, evaluations, studies or

28 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION
other information relating to the water, place or fish habitat that is or

is likely to be affected by the work or undertaking as will enable the

Minister to determine

(a) whether the work or undertaking results or is likely to result in

any alteration, disruption or destruction of fish habitat that constitutes or would constitute an offence under subsection 40(1)

and what measures, if any, would prevent that result or mitigate

the effects thereof; or

(b) [...]

(2) If, after reviewing any material or information provided under subsection (1) and affording the persons who provided it a reasonable

opportunity to make representations, the Minister or a person designated by the Minister is of the opinion that an offence under subsection 40(1) or (2) is being or is likely to be committed, the Minister or a

person designated by the Minister may, by order, subject to regulations made pursuant to paragraph 3(b), or, if there are no such regulations in force, with the approval of the Governor in Council,

(a) require such modifications or additions to the work or undertaking or such modifications to any plans, specifications, procedures or schedules relating thereto as the Minister or a person

designated by the Minister considers necessary in the circumstances, or

(b) restrict the operation of the undertaking,

and, with the approval of the Governor in Council in any case, direct the

closing of the work or undertaking for such period as the Minister or a person designated by the Minister considers necessary in the circumstances.

(3) The Governor in Council may make regulations

(a) prescribing the manner and circumstances in which any information or material shall be provided to the Minister without

request under subsection (1); and

(b) prescribing the manner and circumstances in which the Minister

or a person designated by the Minister may make orders under

subsection (2) and the terms of the orders.

(4) Where the Minister or a person designated by the Minister proposes

to make an order pursuant to subsection (2), he shall offer to consult

with the governments of any provinces that he considers to be interested in the proposed order and with any departments or agencies of

the Government of Canada that he considers appropriate.

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 29
(5) Nothing in subsection (4) prevents the Minister or a person designated by the Minister from making an interim order pursuant to subsection (2) without the offer of consultation pursuant to subsection (4)

where he considers that immediate action is necessary.

Under s. 40(3), every person who

(a) fails to provide the Minister with any material or information

requested pursuant to subsection 37(1) within a reasonable time

after the request is made,

(b) fails to provide or submit any material, information or report that

is to be provided or submitted under regulations made pursuant

to subsection 37(3),

(c) [...]

(d) carries on any work or undertaking described in subsection 37(1)

(i) otherwise than in accordance with any material or information relating to the work or undertaking that he provides to the Minister under subsection 37(1),

(ii) otherwise than in accordance with any such material or

information as required to be modified by any order of the

Minister under paragraph 37(2)(a), or

(iii) contrary to any order made by the Minister under subsection 37(2),

[...]

is guilty of an offence punishable on summary conviction and liable,

for a first offence, to a fine not exceeding two hundred thousand dollars and, for any subsequent offence, to a fine not exceeding two hundred thousand dollars or to imprisonment for a term not exceeding

six months, or to both.

[...]

Taken together, ss. 35, 37 and 40 of the Fisheries Act created a framework for regulating activities that impact or are likely to impact on fish

habitat in Canada. The framework leaves open the possibility of three

types of implementation scenarios: one based on generally-applicable

regulations, the other based on orders and permits issued in relation to

individual projects, or a combination of the two.

30 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION
In the regulations scenario, the federal government would adopt

Fisheries Act regulations telling proponents of projects that result in or

are likely to result in the alteration, disruption or destruction of fish habitat the manner and circumstances in which they must submit information to DFO for review under s. 37(1); identifying the circumstances in

which MFO may issue an order under s. 37(2); and setting out the kinds

of terms such orders can contain. The regulations scenario would also

include regulations describing how to carry on activities that cause a

HADD of fish habitat in such a way as to comply with s. 35. The federal

government did not adopt this scenario.

In the other scenario, no regulations are adopted and DFO administers the Fisheries Act habitat protection provisions on a project-byproject basis. In the absence of regulations requiring persons to come

forward with information, MFO must rely on other means of finding out

about proposed projects that are likely to affect fish habitat in order to

request information from project proponents and decide whether to

issue an order under s. 37. If MFO decides to issue an order, there are no

regulations setting out what kinds of terms can be included in the order.

For projects that do or will cause a HADD of fish habitat, in the absence

of Fisheries Act regulations, it is not an offense for a project proponent to

proceed without an authorization under s. 35(2). Under the Act, if DFO

believes that an unauthorized HADD of fish habitat has occurred, DFO

can recommend laying charges against the project proponent, provided

that DFO becomes aware of the existence of the project. Since 1977, no

federal or provincial54 regulations have been adopted by Parliament

under s. 37 or s. 35 of the Fisheries Act.

5.3 Federal Policies Regarding Administration and Enforcement

of Fisheries Act ss. 35, 37 and 40

Two DFO policy documents are central to the administration and

enforcement of the habitat protection provisions of the Fisheries Act in

Canada: the Policy for the Management of Fish Habitat in Canada (1986) (the

“Habitat Policy”), and the Fisheries Act Pollution Prevention Provisions

Compliance and Enforcement Policy (2001) (the “Compliance and Enforcement Policy”). Information regarding the Habitat Policy and the Compliance and Enforcement Policy, as well as related documents and

initiatives, is presented below.

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 31

54. As regards regulation of the fisheries (as opposed to fish habitat), the provinces—on the basis of their knowledge of the fisheries—draft regulations for adoption by Parliament. See above.
5.3.1 The Habitat Policy

DFO describes the Habitat Policy as follows:55

The Policy for the Management of Fish Habitat (the Habitat Policy) established in 1986, provides the policy framework for the administration and

enforcement of the broad powers mandated in the habitat provisions of

the Fisheries Act in a manner consistent with the concepts of sustainable

development and ecosystem management. The overall objective of the

Habitat Policy is to “increase the natural productive capacity of habitats

for the nation’s fisheries resources” (i.e., to achieve a “net gain” in fish

habitat) through the conservation, restoration and development of fish

habitat.

The Policy provides eight broad strategies to support achieving the objectives and goals of the Habitat Policy. These strategies are:

– Protection and Compliance;

– Integrated Resource Planning;

– Scientific Research;

– Public Consultation;

– Public Information and Education;

– Cooperative Action;

– Habitat Improvement; and

– Habitat Monitoring.

The Habitat Policy emphasises the importance of integrated planning to

ensure that fish habitat plans are implemented with sufficient knowledge

of current and future demands of other natural resource users. The policy

recognises that other sectors of the economy make legitimate demands on

water resources, and promotes integrated planning as an approach to

ensuring the protection of fish habitat while providing for other uses.

As stated above, the overall objective of the Habitat Policy is to achieve a

net gain in fish habitat productive capacity in Canada through eight

broad implementation strategies, with an emphasis on integrated planning. On a project level, the Habitat Policy seeks to achieve “no net loss”

in the productive capacity of fish habitat, meaning that unavoidable

32 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

55. DFO, Annual Report to Parliament on the administration and enforcement of the fish habitat protection and pollution prevention provisions of the Fisheries Act for the period of

1 April 1999 to 31 March 2000 (the latest available report, as at January 2003; hereinafter the “1999-2000 Annual Report”).
reductions in habitat productive capacity should be compensated

through an increase in habitat productive capacity elsewhere. DFO’s

policy is to authorize a HADD of fish habitat under s. 35(2) if the no net

loss guiding principle can be respected. If it cannot, under the Habitat

Policy, MFO should not, in general, issue a s. 35(2) authorization for a

project.56

5.3.1.1 Application of the Habitat Policy in Alberta

Under the caption “National Application,” Section 1.1 of the Habitat Policy explains that the federal government will not actively apply

the Habitat Policy in six provinces, including Alberta:

Following references to the Privy Council and several Court decisions, formal agreements were negotiated during the period 1899 and 1930 between

the federal government and a number of provinces. As a result, the federal

government has made special arrangements concerning day-to-day management for the inland fisheries of Ontario, Manitoba, Saskatchewan and

Alberta, and for some fisheries in the provinces of Quebec (where the

province manages all freshwater, anadromous and catadromous fisheries), and British Columbia (where the province manages all freshwater

species, excepting anadromous salmon). In these six provinces (or parts

thereof), federal fisheries legislation is administered by the provincial

fisheries management agency, although provincial fisheries regulations

must be promulgated by the federal government. Conservation Officers in

several provinces are designated as Fishery Officers for purposes of

administering the Fisheries Act.

The Department recognizes that experienced freshwater fisheries management agencies, with the capability to administer regulations, and to

manage fish habitats on behalf of users of the fisheries resource, have

evolved in the six provinces (or parts thereof) identified in the preceding

paragraph. The federal government will not actively apply this policy in those

jurisdictions; rather the provincial agencies concerned are being encouraged to

apply it through bilateral administrative agreements and protocols which will also

clarify roles and responsibilities for the respective parties involved [emphasis

added]. Also, interagency referrals and other forms of federal-provincial

cooperation will continue to be used and agreements developed in those

other provinces and territories where the Department of Fisheries and

Oceans administers fisheries legislation directly.

In January and September 2002 (see factual record, Appendix 4 at question IV.7 and Appendix 5 at question 1), the Secretariat requested CanSUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 33

56. Habitat Policy at s. 2.2.1.
ada to provide copies of any Canada-Alberta administrative agreements

or protocols of the type referred to above, but none were provided.57

In the Habitat Policy, DFO states that it will

[p]articipate in and encourage resource planning and management to

incorporate fish habitat priorities into air, land and water use plans.

Interpretation

1. Where it is responsible for managing the fisheries resource, the

Department will seek opportunities to resolve multiple resource use

conflicts affecting the fisheries by participating in resource planning

and management with provincial, territorial and municipal governments, other federal government agencies and other resource users

(where applicable), and by recognizing the mandate and objectives of

all participants.

2. The Department will plan for the conservation, restoration and development of the fisheries resource and its supporting habitat, in support of its fisheries management objectives.

3. The Department is prepared to seek ways to accommodate the concerns of other resource interests, wherever feasible.

4. The Department is prepared to enter into agreements with provincial,

territorial, municipal and other federal agencies to achieve mutually

agreeable resource planning and management objectives and to carry

out joint programs such as the development of habitat inventories.

Under the Habitat Policy,

[t]he Department recognizes that natural resource interests such as the forest, fishing, mining, energy, and agricultural sectors make legitimate

demands on water resources, and that ways must be found to reconcile

differences of opinion on the best use of those resources. Effective integration of resource sector objectives, including fisheries, will therefore

involve cooperation and consultation with other government agencies

and natural resource users. For example, fish habitat management plans

on a local or regional basis should be developed in such a way as to allow

discussion with other stakeholders. In particular, in those jurisdictions

34 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

57. In its 5 June 2003 comments on the accuracy of the Draft Factual Record, Canada

stated: “Since the completion of the Sunpine Project in 1997, an “Interim Protocol

on Delivery of an Enforcement and Compliance Program for the Habitat Protection

Provisions of the Fisheries Act (Canada)” was signed and is attached.”
where the Department of Fisheries and Oceans manages fisheries directly,

the Department will seek ways to participate in the resource planning and

management initiatives of provincial, territorial and municipal governments, other federal departments and other resource users where applicable. In other jurisdictions, integrated planning activities will be consistent

with any federal-provincial administrative agreement for habitat management [emphasis added].

Under the Habitat Policy, Alberta falls under “other jurisdictions” (see

above).

5.3.2 Fisheries Act Habitat Protection and Pollution Prevention Provisions

Compliance and Enforcement Policy

DFO adopted a “Fisheries Act Habitat Protection and Pollution Prevention Provisions Compliance and Enforcement Policy” in July 2001.

Under the Compliance and Enforcement Policy, compliance with the

Fisheries Act habitat protection provisions is mandatory; compliance will

be encouraged through communication with affected parties; rules,

sanctions and processes securely founded in law will be used to administer the habitat protection provisions in a fair, predictable and consistent manner; the provisions will be administered with an emphasis on

preventing harm to fish and fish habitat; enforcement personnel will

take action consistent with the Policy; and the public will be encouraged

to report suspected violations. No drafts of this policy were in use in

DFO’s Central and Arctic Region (where the Sunpine Project is located)

in the period of federal involvement in the review of the Sunpine Project,

from 1995-2001.58

5.4 Meaning and Scope of s. 5(1)(d) of the Canadian Environmental

Assessment Act (CEAA) and Schedule 1 Part I Item 6 of the Law

List Regulations made pursuant to paragraphs 59(f) and (g) of

the CEAA

The Canadian Environmental Assessment Act (“CEAA”) came into

force in January 1995.59 It is federal environmental assessment legislation that applies to federal projects and projects that have some federal

connection.60 The CEAA is based on the principle of “self-assessment,”

meaning that the federal departments or agencies involved with a given

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 35

58. DFO’s 22 January 2003 Reply, infra at 3.

59. S.C. 1992, c. 37.

60. See s. 5 of CEAA.
project are responsible for ensuring that the requirements of the Act are

met with regard to that project.61 Under the Act, these “Responsible

Authorities,” or “RA”s, decide how to define or “scope” a project for the

purpose of assessing its environmental impacts.62 They also have discretion regarding factors to be considered as part of the environmental

assessment, and, in regard to those factors, the scope of information to be

considered, and some discretion regarding information to be considered

in evaluating cumulative effects of the project in combination with other

projects or activities that have been or will be carried out.63 For example,

where a road project includes a bridge for which a federal permit is

required, the “scope of the project” can be defined as the bridge. “Sedimentation” can be identified as a source of environmental effects from

the project and included as a factor to be considered in the assessment.

The RA will decide the relevant geographic range of sediment deposition, and the time period over which this will occur, for the purpose

of the assessment; this determines the “scope of the factor” for the

purposes of the assessment. Where an environmental assessment is

required under the CEAA, RAs must ensure that the assessment is conducted as early as is practicable in the planning stages of the project and

before irrevocable decisions are made.64 Compliance with the CEAA has

been enforced by the courts in judicial review proceedings brought by

environmental groups.65

The CEAA has the following purposes:

(a) to ensure that the environmental effects of projects receive careful

consideration before responsible authorities take actions in connection with them;

(b) to encourage responsible authorities to take actions that promote sustainable development and thereby achieve or maintain a healthy

environment and a healthy economy;

36 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

61. S. 11(2) of CEAA.

62. S. 15(1) of CEAA.

63. Ss. 15(3), 16(1)(e), (3).

64. S. 11(1) of CEAA.

65. See e.g., Environmental Resources Center et al. v. Canada (Minister of the Environment)

et al., [2001] F.C.T. 1423, online: Federal Court of Canada <http://decisions.fct-cf.

gc.ca/fct/2001/2001fct1423.html> (date accessed: 28 January 2003); Friends of the

West Country Assn. v. Canada (Minister of Fisheries and Oceans), [2000] 2 F.C. 263

(F.C.A.), online: Federal Court of Canada <http://reports.fja.gc.ca/fc/2000/

pub/v2/2000fc25404.html> (date accessed: 28 January 2003); Alberta Wilderness

Association et al. v. Canada (Minister of Fisheries and Oceans), [1999] 1 F.C. 483

(F.C.A.), online: Federal Court of Canada <http://reports.fja.gc.ca/fc/1999/

pub/v1/1999fc23601.html> (date accessed: 28 January 2003).
(b.1)to ensure that responsible authorities carry out their responsibilities

in a coordinated manner with a view to eliminating unnecessary

duplication in the environmental assessment process;

(c) to ensure that projects that are to be carried out in Canada or on federal lands do not cause significant adverse environmental effects outside the jurisdictions in which the projects are carried out; and

(d) to ensure that there be an opportunity for public participation in the

environmental assessment process.66

In order to be subject to assessment under the CEAA, a given

project must come within the definition of “project” under the Act. The

CEAA defines “projects” as follows:

(a) in relation to a physical work, any proposed construction, operation,

modification, decommissioning, abandonment or other undertaking

in relation to that physical work, or

(b) any proposed physical activity not relating to a physical work that is

prescribed or is within a class of physical activities that is prescribed

pursuant to regulations made under paragraph 59(b) [emphasis

added].67

A “project” can therefore be an undertaking in relation to a “physical

work” or it can be a “physical activity” not relating to a physical work,

but in order for a physical activity to be subject to federal assessment, it

has to be listed in a CEAA regulation. The CEAA Inclusion List Regulations list physical activities with fisheries impacts that are considered to

be “projects” for the purposes of the CEAA:

42. The destruction of fish by any means other than fishing, where the

destruction requires the authorization of the Minister of Fisheries and

Oceans under section 32 of the Fisheries Act or authorization under

regulations made by the Governor in Council under that Act.

43. The harmful alteration, disruption or destruction of fish habitat by

means of physical activities carried out in a water body, including

dredge or fill operations, that require the authorization of the Minister of Fisheries and Oceans under subsection 35(2) of the Fisheries Act

or authorization under regulations made by the Governor in Council

under that Act.

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 37

66. S. 4 of the CEAA.

67. S. 2(1) of the CEAA.
44. The harmful alteration, disruption or destruction of fish habitat by

means of draining or altering the water levels of a water body that

require the authorization of the Minister of Fisheries and Oceans

under subsection 35(2) of the Fisheries Act or authorization under regulations made by the Governor in Council under that Act.

45. The harmful alteration, disruption or destruction of fish habitat by

means of erosion control measures adjacent to a water body that

require the authorization of the Minister of Fisheries and Oceans

under subsection 35(2) of the Fisheries Act or authorization under regulations made by the Governor in Council under that Act.

46. The harmful alteration, disruption or destruction of fish habitat by

means of the removal of vegetation in or adjacent to a water body that

requires the authorization of the Minister of Fisheries and Oceans

under subsection 35(2) of the Fisheries Act or authorization under regulations made by the Governor in Council under that Act.

46.1 The harmful alteration, disruption or destruction of fish habitat by

means of physical activities intended to establish or modify more

than 500 m of continuous natural shoreline and that require the

authorization of the Minister of Fisheries and Oceans under subsection 35(2) of the Fisheries Act or authorization under regulations made

by the Governor in Council under that Act.

47. The deposit of a deleterious substance that requires authorization

under regulations made by the Governor in Council pursuant to subsection 36(5) of the Fisheries Act.68

If a “physical activity” not relating to a physical work requires an authorization under s. 35(2) of the Fisheries Act (because it will result in a

HADD of fish habitat) but that activity is not listed in the regulations

mentioned above, no environmental assessment is required under the

CEAA.69

If a given project qualifies as a “project” for the purposes of the

CEAA, the CEAA lists situations where an environmental assessment of

that project is required, including where the project has an aspect of

federal involvement as set out in s. 5 of the CEAA:

5.(1) An environmental assessment of a project is required before a federal

authority exercises one of the following powers or performs one of the fol38 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

68. Inclusion List Regulations, SOR/94-637, Part VII.

69. See CEAA Guide, infra, at Appendix 3: “If the project is a physical activity not

related to a physical work, it must be listed in the Inclusion List Regulations for the

CEAA to apply. The regulations include several physical activities that may impact

fish, fish habitat and navigation.”
lowing duties or functions in respect of a project, namely, where a federal

authority:

(a) is the proponent of the project and does any act or thing that commits

the federal authority to carrying out the project in whole or in part;

(b) makes or authorizes payments or provides a guarantee for a loan or

any other form of financial assistance to the proponent for the purpose of enabling the project to be carried out in whole or in part,

except where the financial assistance is in the form of any reduction,

avoidance, deferral, removal, refund, remission or other form of relief

from the payment of any tax, duty or impost imposed under any Act

of Parliament, unless that financial assistance is provided for the purpose of enabling an individual project specifically named in the Act,

regulation or order that provides the relief to be carried out;

(c) has the administration of federal lands and sells, leases or otherwise

disposes of those lands or any interests in those lands, or transfers the

administration and control of those lands or interests to Her Majesty

in right of a province, for the purpose of enabling the project to be carried out in whole or in part; or

(d) under a provision prescribed pursuant to paragraph 59(f), issues a

permit or licence, grants an approval or takes any other action for the

purpose of enabling the project to be carried out in whole or in part.

Under s. 5 of the CEAA (see above), different types of federal involvement with a project “trigger” the environmental assessment requirement. For example, the trigger could be that a federal authority is a

project proponent, or that federal funds are being used to finance the

project. S. 5(1)(d) is called the “regulatory trigger”: if a provision of a

statute or a regulation is listed in the Schedule to the CEAA Law List Regulations, an RA cannot act under that provision in respect of a project

without triggering an environmental assessment requirement under the

CEAA. The issuance of an order under s. 37(2) of the Fisheries Act and the

issuance of an authorization under s. 35(2) of the Fisheries Act are CEAA

“triggers,”70 but only where a “project”—as defined in the CEAA—is

involved (see above).

Under CEAA, projects are either automatically excluded from

environmental assessment, or they are automatically subject to a comprehensive study, a mediation, a panel review or a screening to determine whether they are likely to cause significant adverse environmental

effects. A screening can lead to a finding of no significant adverse enviSUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 39

70. Law List Regulations, SOR/94-636, Schedule I, Part I, Item 6.
ronmental effects, in which case the RA can proceed to issue the authorization or otherwise act to allow the project to go forward. A screening

can also require reference of a project to a mediator or review panel, in

the following cases: public concern about possible project impacts; the

existence of significant adverse environmental effects that are justifiable

in the circumstances; or uncertainty regarding whether the project is

likely to cause significant adverse environmental effects.

CEAA regulations list projects for which an assessment is automatically required71 and projects for which no assessment is required.72

Logging roads are not listed in these regulations.73 If a project triggers

the CEAA (for example, the project requires a s. 35(2) authorization

under the Fisheries Act) but the project is not automatically excluded

from the application of the CEAA nor within the classes of projects in

respect of which a comprehensive study, mediation or panel review is

automatically required, the RA must conduct a “screening” of the project. The CEAA allows for “class screening reports” to be used as models

for screening similar projects.74 Since 2002, the Canadian Environmental

Assessment Agency has a Model Class Screening Report for Prairie

Grain Roads.75 There is no model class screening report for logging

roads such as the Sunpine Project.

At the outcome of a screening, issuance of an approval will depend

on whether the project is expected to result in significant adverse “environmental effects,” taking into account any mitigation measures considered appropriate, and if so, whether such effects can be justified in the

circumstances.76

The CEAA defines “environmental effects” as follows:

“environmental effect” means, in respect of a project,

(a) any change that the project may cause in the environment, including

any effect of any such change on health and socio-economic conditions, on physical and cultural heritage, on the current use of lands

40 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

71. Comprehensive Study List Regulations, SOR/94-638.

72. Exclusion List Regulations, SOR/94-639.

73. Ibid.

74. S. 19 of the CEAA.

75. Model Class Screening Report for Prairie Grain Road Projects in Manitoba, Saskatchewan

and Alberta (Prairie Farm Rehabilitation Administration, December 2002), online:

Canadian Environmental Assessment Agency <http://www.ceaa-acee.gc.ca/

0009/0004/0004/report_e.htm> (last modified: 10 October 2002).

76. S. 20(1)(a), (b) of the CEAA.
and resources for traditional purposes by aboriginal persons, or

on any structure, site or thing that is of historical, archaeological,

paleontological or architectural significance, and

(b) any change to the project that may be caused by the environment,

whether any such change occurs within or outside Canada.77

Where the RA is uncertain about whether the project will cause significant adverse environmental effects, or where in the opinion of the RA

public concerns warrant a reference to a mediator or review panel, the

RA must refer the project to the Minister of the Environment of Canada

for a referral to a mediator or a review panel.78 RAs also have discretion

to refer a project to the Minister of the Environment for referral to a

mediator or review panel in the following cases: (i) the project is on the

Comprehensive Study List,79 or (ii) the project may cause significant

adverse environmental effects, or public concerns warrant such a reference.80 In addition, the CEAA gives the Minister of the Environment of

Canada discretion to refer a project to a mediator or review panel on his

or her own initiative, in the following cases:

(a) a project for which an environmental assessment may be required

under section 5 [see above], taking into account the implementation

of any appropriate mitigation measures, may cause significant

adverse environmental effects, or

(b) public concerns warrant a reference to a mediator or a review panel.81

Before proceeding with such a referral, the Minister must offer to consult

with the jurisdiction where the project is located and the appropriate

federal authority. The “jurisdiction” can be a provincial or aboriginal

government or a provincial or aboriginal environmental assessment

agency.

Where a project is subject to a comprehensive study or has been

referred to a mediator or a review panel, no federal authority can exercise any power, duty or function under federal legislation that would

permit the project to be carried out in whole or in part unless an environmental assessment has been completed, the RA has considered the enviSUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 41

77. S. 2(1) of the CEAA.

78. S. 20(1)(c) of the CEAA.

79. S. 21(b) of the CEAA.

80. S. 25 of the CEAA.

81. S. 28(1) of the CEAA.
ronmental assessment report, and the project is not likely to cause

significant adverse environmental effects or if it is, they can be justified

in the circumstances, taking into account any mitigation measures considered appropriate by the RA.82

The CEAA lists factors that must be considered in all environmental assessments, as well as factors that do not need to be considered in

screenings:

16. (1) Every screening or comprehensive study of a project and every

mediation or assessment by a review panel shall include a consideration of

the following factors:

(a) the environmental effects of the project, including the environmental

effects of malfunctions or accidents that may occur in connection with

the project and any cumulative environmental effects that are likely to

result from the project in combination with other projects or activities

that have been or will be carried out;

(b) the significance of the effects referred to in paragraph (a);

(c) comments from the public that are received in accordance with this

Act and the regulations;

(d) measures that are technically and economically feasible and that

would mitigate any significant adverse environmental effects of the

project; and

(e) any other matter relevant to the screening, comprehensive study,

mediation or assessment by a review panel, such as the need for the

project and alternatives to the project, that the responsible authority

or, except in the case of a screening, the Minister after consulting with

the responsible authority, may require to be considered.

The following additional factors must be considered in comprehensive

studies, and by mediators and review panels:

(a) the purpose of the project;

(b) alternative means of carrying out the project that are technically and

economically feasible and the environmental effects of any such alternative means;

(c) the need for, and the requirements of, any follow-up program in

respect of the project; and

42 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

82. S. 13 of CEAA.
(d) the capacity of renewable resources that are likely to be significantly

affected by the project to meet the needs of the present and those of

the future.83

The definition of a “project” for the purpose of environmental

assessment under the CEAA influences the scope of an assessment pursuant to s. 16 of the CEAA (see factors listed above). For example, if the

CEAA is triggered by s. 5 of the federal Navigable Waters Protection Act,

the project (for the purposes of the CEAA) is generally described as

being the physical work that poses a potential obstacle to navigation,

usually a bridge. When a project is described as a “bridge,” then any

study of “alternatives to the project” is limited to alternatives to the

bridge. On the other hand, if a project is described more broadly as a

“road,” then alternatives to the project include alternatives to the road.

When a CEAA assessment is triggered by the “regulatory trigger” (i.e.,

the need for a federal authorization or approval), the scope of the project

is defined by the limits of federal jurisdiction over the regulated

matter.84

Under the CEAA, different types of assessment have different

requirements for public involvement. Public participation is not

required in screening-level environmental assessments, the type of

assessment most frequently carried out under the CEAA,85 although an

RA can involve the public if it feels this would be appropriate in the

circumstances.86 On the other hand, a review panel must hold public

hearings, and must do so in a manner that offers the public an opportunity to participate in the assessment.87 In screenings, the RA has discretion regarding whether or not to give the public notice and an opportunity to comment on a screening report,88 while the public has a statutory

right to comment on environmental assessment reports issued pursuant

to comprehensive studies or panel reviews.89 The CEAA states that for

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 43

83. S. 16(2) of CEAA.

84. See DFO’s CEAA Guide, infra, at Appendix 13 “Considerations for determining the

scope of the assessment”: “For projects subject to CEAA s. 5(1)(d) regulatory triggers (most of HMP’s EAs), the project’s scope must be limited to those elements

over which the federal government can validly assert authority either directly or

indirectly. Thus the project addressed in the EA should correspond to the federally-regulated undertaking involved in the application.”

85. See Canadian Environmental Assessment Agency, 2001-2002 Departmental Performance Report, Table 13: Statistical Summary of Environmental Assessments 2001-

2002, online: Treasury Board of Canada Secretariat <http://www.tbs-sct.gc.ca/

rma/dpr/01-02/CEAA/ceaa01dpr04_e.asp#table13> (last modified: 7 November

2002).

86. S. 18(3) of the CEAA.

87. S. 34(b) of the CEAA.

88. S. 18(3) of the CEAA.

89. Ss. 22(1)(c), 34(c)(ii) of the CEAA.
every project subject to assessment under the Act, the RA must establish

and operate a public registry containing, subject to certain exceptions, all

records produced, collected, or submitted with respect to the environmental assessment of the project in a manner to ensure convenient public access to the registry.90

Regardless of whether a project is subject to a screening, a comprehensive study, a mediation or a review panel, the RA must ensure that

any mitigation measures considered appropriate to prevent a project

from causing significant adverse environmental effects are implemented.91 The CEAA defines mitigation as

in respect of a project, the elimination, reduction or control of the adverse

environmental effects of the project, and includes restitution for any damage to the environment caused by such effects through replacement, restoration, compensation or any other means.92

The CEAA provides for the adoption of regulations on follow-up

programs and public notice requirements.93 It defines “follow-up program” as “a program for verifying the accuracy of environmental assessment of a project, and determining the effectiveness of any measures

taken to mitigate the adverse environmental effects of the project.”94

Public notice requirements could include the following:

• the RA’s course of action in relation to a project;

• any mitigation measures to be implemented with respect to the adverse

environmental effects of the project;

• the extent to which the recommendations set out in any report submitted by a mediator or a review panel have been adopted and the reasons

for not having adopted any of those recommendations;

• any follow-up program designed for the project [...]; and

• any results of any follow-up program.95

No such regulations exist.

44 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

90. S. 55 of the CEAA.

91. Ss. 20(2), 37(1)(a), (2) of the CEAA.

92. S. 2(1) of the CEAA.

93. S. 38(1) of the CEAA.

94. S. 2(1) of the CEAA.

95. S. 38(1) of the CEAA.
5.5 The CEAA and the Protection of Fish Habitat under the

Fisheries Act

The current Fisheries Act fish habitat protection provisions were

adopted in 1977. The federal Access to Information Act was adopted in

1983,96 followed in 1984 by the adoption of a federal policy on environmental assessment and review, and approval of an Environmental

Assessment and Review Process (“EARP”) Guidelines Order (the “EARP

Order”).97 Under the EARP Order, the federal environmental assessment and review process was described as follows:

The Process shall be a self assessment process under which the initiating

department shall, as early in the planning process as possible and before

irrevocable decisions are taken, ensure that the environmental implications of all proposals for which it is the decision making authority are fully

considered and where the implications are significant, refer the proposal

for public review by a panel.98

Under the EARP Order, federal departments had to ensure, “before any

mitigation or compensation measures are implemented pursuant to s. 13

[sic – s. 14],99 that the public have access to the information on and the

opportunity to respond to the proposal in accordance with the spirit and

principles of the Access to Information Act.”100

DFO adopted its Habitat Policy two years later, in 1986. The Habitat Policy does not mention the EARP Order. The Habitat Policy defines

“major” and “minor” projects, and sets out the respective roles of DFO

and project proponents depending on the size of the project:

Minor Projects

Those works, undertakings and activities which would not normally

have, or be perceived to have, serious irreversible biological effects that

could not be mitigated on the habitats supporting Canada’s fisheries

resources. Examples include: most stream crossings, culvert installations, and

other stream alterations; most wharf and breakwater construction and

repairs; most individual forest harvesting operations; small dredging projects;

small foreshore modifications; and other similar projects [emphasis added].

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 45

96. R.S.C. 1985, c. A-1.

97. SOR/84-467, online: Canadian Environmental Assessment Agency <http://www.

ceaa.gc.ca/0011/0002/earp_go_e.htm> (last modified: 10 October 2002).

98. S. 3 of the EARP Order.

99. S. 14 of the EARP Order: “Where, in any case, the initiating department determines

that mitigation or compensation measures could prevent any of the potentially

adverse environmental effects of a proposal from becoming significant, the initiating department shall ensure that such measures are implemented.”

100. S. 15(b) of the EARP Order.
For minor projects involving physical activities (e.g., salmon stream crossings), which disrupt important fish habitat, Fishery Officers and fish

habitat management staff will assist operators to the extent feasible in

identifying the biological impacts of the work or undertaking and will

make a biological assessment of the requirements necessary to meet fisheries operational objectives [emphasis in original].

Major Projects

Those works, undertakings and activities that could potentially have, or

be perceived to have, significant negative impacts on the habitats supporting Canada’s important fisheries resources. Examples include: large-scale

aerial biocide spraying of forest and agricultural lands; deep-draft marine

terminals; hydroelectric dams and diversions; integrated mining operations; offshore oil and gas exploration and development; large industrial

and municipal waste discharges; large pipelines, rail lines, roads and

transmission lines; large forest harvesting operations; large dredging operations; and other similar projects [emphasis added].

For major projects, obtaining and presenting relevant information on the

project or the chemical compounds involved, and on the fish habitat that is

likely to be affected, is the responsibility of the proponent under Section

37(1) of the Act. This step will take varying amounts of time to complete,

depending on the size of the project, and it will be in the interest of proponents to provide assessments on a timely basis. Staff of the Department

will assess the information obtained and if necessary visit the site and

undertake studies to complete their assessments. As part of the examination step, the hierarchy of preferences (outlined in Section 5.1 of this chapter) will be used to guide both the Department and proponents; the

amount of detail and time required will depend again on the size of the

work or undertaking, and its potential impact on fish habitats[emphasis in

original].

For major projects, the Habitat Policy states that project proponents are

responsible for submitting information to DFO under s. 37(1). Under

s. 37(1), the extent of this responsibility can either be stated in a regulation (which to date does not exist) or it can take the form of an information request from MFO. “Habitat Conservation and Protection

Guidelines” published by DFO in 1994 state that it is the responsibility of

project proponents, in forwarding project proposals to DFO for examination, to include all appropriate plans and studies. The Guidelines state

“[i]f these plans and specifications are not forthcoming, the Regional

Director General may issue a legally binding request under the authority

of s. 37(1) of the Fisheries Act to obtain them.”101

46 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

101. DFO, “Habitat Conservation and Protection Guidelines” (First Edition 1994) at

s. 2.8.
The courts have been asked to consider whether the public can

force MFO to issue s. 37(2) orders or s. 35(2) authorizations, thereby triggering a requirement for an environmental assessment. In 1989, the

Submitter launched an action in Federal Court to require MFO and the

Minister of Transport (Canada) to carry out an environmental assessment under the EARP Order in connection with a provincial government project involving construction of a dam on the Oldman River in

Alberta. The case made its way to the Supreme Court of Canada and in

1992, the Supreme Court ruled that the EARP Order was mandatory in

nature and therefore had to be complied with by federal departments

prior to issuing permits and authorizations under federal legislation.102

In the Friends of the Oldman River case, Alberta argued that the Minister of

the Environment of Canada did not have jurisdiction to conduct environmental assessments of projects that affected federal jurisdiction over

fisheries, because the federal Department of the Environment Act limited

the jurisdiction of the Minister of the Environment to “[...] all matters

over which Parliament has jurisdiction, not by law assigned to any other

department, board or agency of the Government of Canada, relating to

a) the preservation and enhancement of the quality of the natural environment, including water, air and soil quality; [...].”103 The Supreme

Court held:

Because the Fisheries Act regulates the management of Canada’s fisheries

resource, it is argued, the Minister of the Environment’s jurisdiction has

been ousted in respect of all matters affecting fish habitat. This argument

can be dealt with shortly. Its premise entirely misapprehends the “matters” covered by the respective pieces of legislation. The Guidelines Order

[EARP Order] establishes an environmental assessment process for use by

all federal departments in the exercise of their powers and the performance of their duties and functions, whereas the Fisheries Act embraces the

substantive matter of protecting fish and fish habitat. There is, of course, a

connection between the two, but the crucial difference is that one is fundamentally procedural while the other is substantive in nature.104

In the Friends of the Oldman River case, the Supreme Court of

Canada considered whether ss. 35 and 37 of the Fisheries Act imposed an

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 47

102. Friends of the Oldman River v. Canada (Minister of Transport), [1992] 1 S.C.R. 3 [hereinafter “Friends of the Oldman River,” online: LexUM <http://www.lexum.

umontreal.ca/csc-scc/en/pub/1992/vol1/html/1992scr1_0003.html> (date

accessed: 28 January 2003).

103. R.S.C. 1985, c. E-10, as amended, s. 4(1). S. 4(2) now reads: “The powers, duties and

functions of the Minister also extend to and include such other matters, relating to

the environment and over which Parliament has jurisdiction, as are by law assigned

to the Minister.”

104. Friends of the Oldman River under “Obligation of the Ministers to Comply with the

Guidelines Order.”
affirmative regulatory duty upon MFO that had the effect of triggering

an obligation for the Minister to conduct an environmental assessment

under the EARP Order. If so, this obligation could be enforced by the

Submitter in judicial review proceedings before the courts. The Court

held that unlike s. 5 of the federal Navigable Waters Protection Act

(“NWPA”), which states

no work shall be built or placed in, on, over, under, through or across any

navigable water unless the work and the site and plans thereof have been

approved by the Minister, on such terms and conditions as the Minister

deems fit, prior to commencement of construction,105

“[t]here is [..] no equivalent regulatory scheme under the Fisheries Act

which is applicable to the project.”106 The Supreme Court of Canada

characterized the Fisheries Act s. 37(2) order power as an “ad hoc delegated legislative power to allow an exemption from the general prohibition” and not “an affirmative regulatory duty.” While the Court did not

mention Fisheries Act s. 35(2), it follows that s. 35(2) was also considered

to give the Minister the power to allow an exemption to the s. 35(1) prohibition, without imposing on the Minister an affirmative regulatory duty

to act. The difference between the NWPA and the Fisheries Act is that the

NWPA specifically says that a permit is required for certain types of projects, whereas the Fisheries Act does not actually say that MFO must issue

an authorization under s. 35(2) for projects that will cause a HADD of

fish habitat. As explained by DFO, “you are within your legal rights to go

ahead with your project without getting this Authorization. But if you

do, and if you harm fish habitat you are liable to prosecution under the

Fisheries Act.”107 Because the Fisheries Act does not require the Minister of

Fisheries and Oceans to issue s. 35(2) authorizations or s. 37(2) orders

where projects cause a HADD of fish habitat, in Friends of the Oldman

River, the Submitter was denied its application to compel MFO to

require an environmental assessment of the Oldman Dam under the

EARP Order pursuant to the Fisheries Act trigger.

Regulations adopted under the Fisheries Act in 1993 provide that

[a]ny person who proposes to carry on any work or undertaking that is

likely to result in the harmful alteration, disruption or destruction of fish

48 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

105. R.S.C. (1985), c. N-22, s. 5(a).

106. Friends of the Oldman River under “Obligation of the Ministers to Comply with the

Guidelines Order.”

107. Online: Fisheries and Oceans Canada <http://www.dfo-mpo.gc.ca/canwaterseauxcan/infocentre/guidelines-conseils/guides/law-lois/more_e.asp> (last

modified: 1 January 2003).
habitat and who wishes to have the means or conditions of that work or

undertaking authorized by the Minister under subsection 35(2) of the Act

shall apply to the Minister in the form set out in Schedule VI.

An authorization given under subsection 35(2) of the Act shall be in the

form set out in Schedule VII.108

The application form for s. 35(2) authorizations states: “All applications

pursuant to s. 35 of the Fisheries Act will be assessed in accordance with

applicable federal environmental assessment requirements.”109

In 1995, when the CEAA came into force, DFO released a draft

Directive on the Issuance of Section 35(2) Authorizations (the “Directive”),

the contents of which are now part of a DFO publication entitled “What

the Law Requires.”110 Under the Directive, DFO states that s. 35(2)

authorizations will only be issued if a project will result in a HADD of

fish habitat. Such an authorization will require compensation measures,

consistent with the “no net loss” guiding principle of the Habitat Policy.

If impacts of a project on fish habitat can be mitigated so as to avoid a

HADD, no s. 35(2) authorization will be issued by DFO. Instead, DFO

issues a letter of advice. The Directive states

[a]uthorizations to harmfully alter, disrupt or destroy fish habitat are, in a

sense, the instrument of last resort. They are issued only when there is no

other way to go.

What this means is that if you are planning a project that might affect fish

habitat, applying for an Authorization should not be your first step in fact

it should be your last.

Your first step should be to get in touch with the government agency

responsible for fish habitat protection. In some provinces this will be the

Department of Fisheries and Oceans (DFO) in others it will be the provincial government department responsible for fisheries and fish habitat

management.

In some cases, the agency responsible for fish habitat protection may

already be aware of your project. If you have had to apply for permits to

conduct your work, a description of your project may have been referred

to the agency responsible for fish habitat, for review.

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 49

108. Fishery (General) Regulations, SOR/93-53, s. 58.

109. Ibid. Schedule VI at 3, under “Environmental Assessment and Review Process

Considerations.”

110. Online: Fisheries and Oceans Canada <http://www.dfo-mpo.gc.ca/canwaterseauxcan/infocentre/guidelines-conseils/guides/law-lois/index_e.asp> (last

modified: 1 January 2003).
Your purpose in contacting this agency is to find out whether your project

is likely to harm fish habitat. If there is indeed such a danger, the agency

will be able to tell you whether the damage to the habitat could be avoided

or lessened by changes in project design or implementation.111

According to DFO, “an environmental assessment should be initiated concurrently with the determination, in either step 2 or 3 of the decision making process (Figure 1, see below), that a project is likely to result

in a HADD, and an authorization is therefore likely to be required.”112

50 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

111. DFO, What the Law Requires—Directive on the Issuance of Section 35(2) Authorizations,

online: Fisheries and Oceans Canada <http://www.dfo-mpo.gc.ca/canwaterseauxcan/infocentre/guidelines-conseils/guides/law-lois/steps_e.asp> (last

updated 1 January 2003).

112. DFO, Decision Framework for the Determination and Authorization of Harmful

Alteration, Disruption or Destruction of Fish Habitat (1998) at 4.0, online: DFO

<http://www.dfo-mpo.gc.ca/canwaters-eauxcan/infocentre/guidelinesconseils/guides/hadd/hadd_2_e.asp#fig1> (last modified: 25 November 2002).
Figure 1. A decision framework for the determination and

authorization of harmful alteration, disruption

or destruction of fish habitat

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 51
This entails a detailed review of potential project impacts on fish habitat

and development of fish habitat mitigation measures prior to a decision

being made on whether a screening is required under the CEAA.113

5.6 Planning of the Sunpine Project and Alberta’s Approval of the

Sunpine Project

Information is provided below regarding the origin of the Sunpine

Project and the process that resulted in provincial approval of the

Sunpine Project. This information is relevant to a consideration of

whether Canada is failing to effectively enforce the Fisheries Act habitat

protection provisions and the CEAA in regard to the Sunpine Project. No

evaluation of Alberta’s enforcement of provincial laws is intended or

implied.

In July 1992, Sunpine Forest Products Ltd. (“Sunpine”) signed a

forest management agreement (“FMA”) with the Alberta government

giving Sunpine long-term tenure over more than 2500 square miles of

forest land in the Rocky Mountain foothills of West Central Alberta (the

“FMA area”).114 The FMA came with timber harvest planning and operating ground rules negotiated by Sunpine and the Alberta government

(“Ground Rules”) containing objectives, standards, and guidelines for

such things as road planning and fish habitat protection within the FMA

area.115 Under the Ground Rules, Sunpine is required to use existing

roads for its log hauls whenever possible.116 In 1993, as part of its General

Development Plan for 1994, Sunpine presented the Land and Forest

Service (“LFS”) of Alberta Environmental Protection (“AEP”) with

a proposal to build a permanent, 40 km, all-weather mainline road

(“Mainline Road” or “MLR”) up the middle of its new FMA area (the

“Sunpine Project”) to deliver logs to its new laminated veneer lumber

plant in Strachan, Alberta.

52 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

113. Ss. 20(2), 37(1)(a), (2) of CEAA.

114. ForestVIEWS Alberta, 23 July 1992 Forest Management Agreement (O.C. 408/92)

including amendments authorized by O.C. 131/96 between the Crown in Right of

Alberta and Sunpine; and Sunpine FMA Timber Harvest Planning and Operating

Ground Rules approved by K. Higginbotham, Assistant Deputy Minister, LFS,

3 September 1993 [hereinafter “Ground Rules”] (Unofficial Office Consolidation).

115. Ground Rules at 5.4.1 and 6.3.3.1.

116. Ground Rules at 5.4.1, Standard #3.
Figure 2. Map

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 53
Until then, LFS, the Municipal District of Clearwater (the “MD”),

municipal residents and Sunpine had worked on the assumption that

Sunpine would use existing public roads—in particular, the North Fork

Road (“NFR”)—to deliver lumber from its FMA area to its new plant.117

A document distributed to the public in the area explained:

Historically, the public road authorities have been responsible for the

development, upgrading and maintenance of the roadway network in

order to accommodate industrial development. Revenues collected from

general and property taxes, fuel taxes and road user charges have been

used to finance these public sector expenditures. More recently, public/private partnerships have seen private funds used to provide limited

roadway improvements.118

Sunpine refused to pay for upgrades to the existing road network.119 According to Sunpine, one advantage of the proposed new, private road would be to enable all-season delivery of logs to the new plant

(as opposed to winter-only log hauls), thereby ensuring continuous

employment in the area.120 Another would be that the new road would

54 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

117. Friends of the West Country v. Canada (Minister of Fisheries and Oceans) (Federal Court

of Canada, T-2457-96) (Affidavit of Martha Kostuch, dated 4 November 1996) at

paras. 9-10: “At the Municipal Development Appeal Board Hearing regarding

Sunpine’s rezoning application held on February 10, 1993, Ray Ferris, speaking for

Sunpine, indicated the existing roads are adequate to handle the increased traffic

which would result from Sunpine’s operation and that Alberta Department of

Transportation believes the existing roads are underutilized. Copies of maps of

existing roads in the area and 1993 traffic counts and the 1998 projected traffic patterns are attached as Exhibit 1 to this Affidavit [not reproduced]. In the reasons

accompanying the Development Appeal Board’s Decision to approve Sunpine’s

application, dated 26 February 1993, the following was stated: ‘Evidence was presented that the road system has ample capacity to accomodate additional traffic.’”

See also Karl Rodtka, “Letter to the Editor” (23 March 1994): “[...] For the past four

years, many people, time and time again, have expressed their concern over the

safety and cost to the M.D. ratepayers of providing Sunpine with a good road system for their clear-cutting operations. Don’t be foolish, we were told, there is an

excellent infrastructure in place for Sunpine and with all the extra tax money rolling

in from Sunpine we’ll be able to rebuild all our roads so everyone will have better

and safer roads to travel. [...]”

118. Stanley Associates Engineering Ltd., Strachan Area Transportation Network Public

Workshop Information Package (March 1995).

119. Monica Ahlstrom, The Mountaineer, “Logging Road Concept draws mixed reactions” (2 March 1994).

120. Martha Kostuch, “Road Workshop, March 30, 1995” (handwritten notes) at 2 (opening plenary, presentation by Ray Ferris of Sunpine); 7 (comments of Ray Ferris in

small group discussion); 9 (remarks by Peter Denney of Sunpine during closing

plenary).
be paid for entirely by Sunpine121 (and any other commercial interests

wishing to use the road in the future).122

Under Sunpine’s Ground Rules, a new, permanent road such as

the Sunpine Project had to be approved pursuant to the process set out in

Alberta’s 1985 Resource Road Planning Guidelines. Under these Guidelines, Sunpine required a license of occupation (“LOC”) to proceed with

the Sunpine Project. LOCs are issued by LFS pursuant to a three-phase

provincial process. The first phase consists of evaluating potential

road corridors. The second phase involves selecting a road centreline

within the corridor approved pursuant to Phase I. Once LFS approves a

detailed route plan at the outcome of Phase II, the proponent can apply

for an LOC and begin with road construction (Phase III). Phase I and

Phase II approvals are issued based on consideration of engineering;

socioeconomic; and biophysical factors. The Resource Road Planning

Guidelinesrely on inter-agency referrals to ensure that these three factors

are properly considered. In December 1993, LFS referred Sunpine’s proposal to the AEP Fish and Wildlife Service (“FWS”) in Rocky Mountain

House (“RMH”), near Strachan.

In December 1993, a fisheries biologist working at the RMH FWS

office provided comments on the Sunpine Project to the Head of Timber

Management at LFS in RMH. These comments are reproduced below:

As per our discussions of December 6, 1993, regarding the proposed haul

road for Sunpine, I have the following comments:

1. The proposed road would cut through an area, which up to now is relatively inaccessible. Improved access would result in increased use of

the area. This would negatively impact the fisheries by increasing

harvest.

2. The building of a new road would increase the amount of silt entering

the creeks crossed by the road. Silt loads would continue to enter until

the ditches were re-vegetated and stabilized (minimum of two years).

3. A new road would increase the amount of run-off resulting in

increased discharge. During storm events the amount of water entering the creeks would increase resulting in increased natural erosion.

Spring runoff would also be larger than currently experienced.

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 55

121. Ibid.

122. 7 July 1995 Memorandum from R.D. Konynenbelt, Fisheries Technician, Rocky

Mountain House, to George Robertson, Forester i/c Forest Mgmt. Section, Southern

East Slopes Region, Rocky re: Sunpine Mainline Road Proposal—Revised Phase I

Submission, dated 28 June 1995 at 3.
4. Considerable instream work would be required at all river crossings

(i.e., installation of bridges and culverts).

5. Instead of building a new haul road, I would recommend that

Sunpine use the North Fork Road. The North Fork Road will probably

have to be upgraded resulting in silt entering the creeks during the

construction phase and up until the new ditches are revegetated. This

will occur at either site. On the plus side, there would be less environmental impact by using the North Fork Road: a) no new country

would be opened up, b) runoff would not be significantly increased

over current levels. The North Fork Road crosses fewer streams and

lower down in their watersheds than the proposed haul road resulting in less impact.123

56 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

123. 9 December 1993 memorandum from L.A. Rhude, Fisheries Biologist (FWS-RMH)

to G. Robertson, Head, Timber Management, RMH re: Proposed Haul

Road—Sunpine Forests Ltd.
Figure 3. Local Watersheds

Also in December 1993, a wildlife technician working for the RMH

FWS office made the following comments on the proposed haul road:

I see no reason to duplicate existing road access as proposed. The North

Fork Road has already been partially upgraded and starts at the same

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 57
location as the proposed haul road. No extra travel distance would be

involved and the only significant necessary alignment change would be at

the Ram River crossing.

The proposed access road will negatively impact wildlife populations and

watercourses throughout its entire length. Secluded headwaters access on

numerous streams will be subjected to heavy long term environmental

damage as well as non-sustainable pressure on fisheries and wildlife

resources by various user groups. I strongly recommend that the section

proposed from 3-38-9-W5 to 2-39-12-W5 be deleted and existing access be

utilized.124

Alberta’s Resource Road Planning Guidelines do not require public

input or consensus as part of the process for issuing an LOC. In regard to

Sunpine’s MLR proposal, a successful multi-stakeholder site selection

process for Sunpine’s laminated veneer plant resulted in a public expectation that there would be a similar process for identifying an optimal

log haul route for Sunpine.125 In 1994, Sunpine hired a consultant to

gauge public opinion on the issue. At the outcome of public consultations, the consultant recommended forming a multi-stakeholder committee to gather public input and make a consensus recommendation on

a road corridor to Sunpine, one that Sunpine would be expected to

implement.126 The consultant also stated that detailed information

about available wood supply and Sunpine’s long-term harvesting

plans—which was not available at the time—would be required in order

to make an informed decision regarding an optimal log haul route.127

Sunpine did not act as recommended in the consultant’s report.128

58 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

124. 14 December 1993 memorandum from Brian R. Burrington, Wildlife Technician

(FWS-RMH) to George Robertson, Head, Timber Management, Rocky Clearwater

Forest, Land and Forest Services.

125. Western Environmental and Social Trends, Inc., “Sunpine Forest Products

Ltd.—Issue Scoping Report” (2 August 1994) under “Public Consultation”: “There

is almost universal agreement among respondents that there is a need to create a

multi-stakeholder road committee with clear goals and objectives and agreed-upon

ground rules for decision-making. The need for a neutral chairperson who is skilled

at consensus building has been identified by most respondents. Further, while it is

recognized that the Minister of Environmental Protection has final authority, a

multi-stakeholder committee is seen as having the authority to help Sunpine find

the optimal main hauling road from the north end of the FMA to its plant site. This

option is supported by the successful plant siting process.”

126. Ibid.

127. Ibid. at 2.

128. 2 October 1994 Memorandum from Wendy Francis, Western Environmental and

Social Trends, to Martha Kostuch: “[...] Attached is a copy of our last memo to Bruce

Buchanan. You will see that we have tried hard to impress upon him the risks of not

dealing with the road issue. Please treat the attached as confidential. Susie says that

Forestry always has been supportive of a multistakeholder process and in fact,
Thereafter, Sunpine, LFS and the MD together commissioned a study of

the area’s transportation needs for the purpose of assessing potential log

haul routes and establishing criteria for ranking alternatives. After a

review of several alternatives, the transportation consultant identified

an upgraded NFR and the MLR as the most promising routes, concluding that neither was clearly preferable to the other. The media subsequently reported that Sunpine “threatened to ignore their own road

study report” because the study did not conclude in favor of the MLR.129

In March 1995, the MD, LFS and Sunpine jointly funded a public

workshop at which Sunpine and the MD made presentations endorsing

the MLR, and the public was invited to participate in small group discussions to evaluate alternative routes based on criteria found in the transportation study. Several issues emerged at the workshop: concerns over

safety of the NFR (a public road) as a log haul route; absence of information regarding environmental impacts associated with different routes;

and foreseeable access management problems associated with the MLR

option.

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 59

being against one would be contrary to their policies. We thought that Sunpine had

been convinced of the merits of proceeding in the way we recommended. Unfortunately, it seems they have not yet learned a lesson.”

129. Monica Ahlstrom, The Mountaineer, “Sunpine may disregard own road study

report” (29 March 1995, Fourth Section): “Sunpine Forest Products Ltd. has threatened to ignore their own road study report because the final outcome of the report

did not clearly support Sunpine’s preferred option. Sunpine agreed to commission

the report a number of months ago as part of a public input process recommended

by the MD of Clearwater and Alberta Land and Forest Services. This after Sunpine

had refused to form a multi-stakeholders’ committee as recommended by a consultant the company had hired. A draft of the report, compiled by Carl Clayton of Stanley Associates Engineering Ltd., was presented to MD Council, Bruce Buchanan of

Sunpine and Lorne Goff of Alberta Forest Services, during the regular Council

meeting on March 21. A public workshop on the report, organized by the Forest

Advisory Committee, is scheduled for March 30 at the Centre. Buchanan said he is

upset that Sunpine now has to defend itself against a report it paid for. He said the

report was initially agreed to because the company felt the Main Line route option

would prove to be the better option, environmentally and economically, over the

others. As it turns out that is not the case. Buchanan added he was ‘concerned with

the perception people will get from the report.’ Shaking his head councilor Richard

Gabler told Buchanan ‘it’s a little too late to change the game now,’ adding ‘unless

you want to jump the whole process.’ Buchanan answered, ‘that’s what I’m considering at this point.’ [...] Brian Irmen stated that the reason for the workshop was to

get public comment on the report, and that the process was not to vote on one option

or another. As well, the public should be well aware of the fact that Sunpine was still

free to proceed with any option they choose. [...] As the discussion continued to get

heated Clearwater Forest Superintendent Lorne Goff interrupted saying it was

important to remember the issue did concern a public resource on public lands. A

consensus was reached that the public workshop would proceed and that Sunpine

should clearly present its position at the workshop.”
Sunpine’s Forest Advisory Committee (“FAC”) members participated in the small group discussions at the public workshop. Sunpine

asked the FAC to review the results of the transportation study and the

proceedings of the public workshop and come up with a recommendation for a log haul route. Sunpine is required to have a FAC under its

FMA. Sunpine is not bound by recommendations of the FAC, but at the

time, LFS participated in FAC meetings to monitor Sunpine’s responses

to public concerns. FAC members represent local political, industrial,

commercial and social interests, and Sunpine. In 1995, an environmental

group was represented on the FAC.

In late May 1995, Sunpine asked for and received a FAC recommendation in favor of the MLR, subject to a commitment from Sunpine

to control access to the MLR and mitigate impacts on fish and wildlife.130

All FAC members voted in favor of the MLR except the environmental

group, who refused to endorse the MLR proposal in the absence of a long

term road development plan and detailed environmental information

on, and an environmental assessment of, the two alternatives (MLR,

NFR), including baseline data on fisheries resources in the area.131

On 7 July 1995, a fisheries technician working for FWS submitted

comments to LFS on Sunpine’s Revised Phase I Submission for the Mainline Road. He stated

[t]he fisheries concerns remain the same as indicated by L.A. Rhude, Fisheries Biologist—Rocky, in his 9 December 1993 memo to yourself (copy

attached). I would stress that the proposed new road would increase

stream siltation to the detriment of the stream and fisheries resources,

and would expose currently remote fisheries (and other resources) to

increased pressure. These are the same two issues that stood out during

the public review mentioned in the Introduction section of the proposal.

I have several other general comments/ questions/concerns:

1) The majority of the proposal is based on a comparison of impacts

between the North Fork Road (NFR) and the Mainline Route (MLR).

60 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

130. Martha Kostuch, “Sunpine P.A.C. [Public Advisory Committee] Meeting, May 29,

1995” (handwritten notes) at 15: “ Peter [Denney] solicited the following recommendation from the committee with one dissent: support Sunpine applying for

Mainline Road if access control and if environmental questions including ESA’s are

addressed.”

131. Ibid. See also Sunpine Forest Advisory Committee, Monday, May 15, 1995, Minutes,

Item #4 – “Review negative aspects of Mainline Road as identified; Friends of the

West Country – See attached list of additional information requested.”
This is comparing apples and oranges, as one road exists, and one is

proposed. The impacts of the NFR (including fish habitat and angling

impacts) have already been realized, and are not likely to change

significantly over the long term, even with road upgrading and

increased traffic as a result of Sunpine’s use. Impacts by the MLR

would be new and additional to that of the NFR; not a matter of one or

the other as the proposal attempts to impress.

2) Is public access control possible given the nature of the road and

its intended level of use? Perhaps the road could be gated during

no-hauling periods, but it is unreasonable to assume that through

signage, the public will refrain from using it when the gate is open.

Another concern is that a high grade road such as this has a tendency

to become traditional access over time, thereby undermining any initial intention of public access control.

3) Part of the new road agenda appears to be based in economic interest

outside of logging operations (“...opportunity to generate road usage

income [by commercial users] to offset capital and maintenance

costs.”). This part of the agenda may be much larger than we realize.

4) Related to #3) is the issue of the potential increase in other commercial

use of the area once a permanent road is established. These other uses

could have significant overall impacts on the streams and other natural resources in the area, on top of the impacts of logging, if the area

were opened up by a permanent road.

In summary, I believe that the MLR proposed would cause significant

environmental disturbance to the area over the long term; disturbance that

could best be avoided by rejecting the MLR proposed. I recommend that

the NFR be promoted, even considering the necessary upgrading, as I

believe it would be far less impact to fisheries resources than the proposed

MLR.

In order to reduce some of the public concerns regarding log hauling on

the NFR, I would support the construction of a short stretch of road to

bypass the residential area. This road could cross North Prairie Creek at

some point north of all or most of the residential area, then head generally

south toward the Sunpine Mill. I realize this would result in several new

stream crossings also, but this option remains preferable to the new MLR.

This bypass road would likely reduce the haul distance on the NFR by several kilometers as well.132

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 61

132. Memorandum, dated 7 July 1995, from R.D. Konynenbelt, Fisheries Technician,

Rocky Mountain House, to George Robertson, Forester i/c Forest Mgmt. Section,

Southern East Slopes Region, Rocky re: Sunpine Mainline Road Proposal—Revised

Phase I Submission, dated June 28, 1995.
On 1 August 1995, AEP advised Sunpine of “deficiencies” in

Sunpine’s Revised Phase I Mainline Road Proposal.133 Under “Fisheries,” the letter stated: “It is unlikely that an upgrade of the NFR will

increase angling significantly when compared to development of new

access. A NFR upgrade would cross fewer streams and lower down in

their watersheds than the proposed MLR resulting in a lower risk to fishery habitat. Further details are required as to how sedimentation would

be controlled.”

In response to these comments, Sunpine issued a “Phase I Revision

Supplement” [the Secretariat did not obtain a copy of this document].

On 22 August 1995, an FWS employee commented:

There doesn’t appear to be any new information or answers concerning

the question about wildlife or fisheries in the supplement. There are no

suggested mitigative measures included for either resource. Some important points have been deleted as follows:

[...]

The FAC supported the Mainline route only with the understanding that

the North Fork Road would be closed and reclaimed west of the Ram

River.

[...]

Contrary to Sunpine’s statement, there is no way to construct a road across

a watercourse without habitat loss and some long-term impact to the

stream and/or fishery.

[...]134

Surveys of fish and fish habitat carried out in 1994 and 1995 by Pisces Environmental Consulting Services Ltd. (“Pisces”) for Sunpine at

eight of the twenty-one stream crossings included in the Sunpine Project

concluded that quality of fish habitat was high in at least five of the

streams, and that the Sunpine Project would subject all these watercourses to increased sediment loads from road cuts, fills and ditches in

the medium term and from the road surface over the life of the road

(Townsend: 6/1/94; Allan: 11/1/95).135

62 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

133. Letter, dated 1 August 1995, from George Robertson, Forester i/c Forest Management Section to Peter Denney, Sunpine, Re: Phase 1—Sunpine Mainline Road Proposal.

134. Memorandum from Brian Burrington, FWS-AEP to George Robertson, Lands and

Forest Services, Rocky Mountain House, 22 August 1995.

135. See Appendix 6.
On 25 August 1995, LFS approved the MLR corridor “as proposed

in Sunpine’s Revised Phase I submission and Supplementary Information, and as conditionally endorsed by the Forest Advisory Committee.”136 Sunpine built and used a temporary road within the proposed

Mainline corridor in the winter of 1995-96. LFS issued Phase II approval

to Sunpine in September 1996, and Sunpine then built the permanent

road in 1997. Photos of the Mainline Road are attached, in Appendix 7.

5.7 Canada’s Actions in Regard to Alleged Violations

of the Fisheries Act and the CEAA in Connection

with the Sunpine Project

Many of the documents cited in this section of the factual record

are listed in Appendix 6, in chronological order. In the text, the author

and date of each document is provided for ease of reference to Appendix 6.

Friends of the West Country wrote to the federal Minister of Fisheries and Oceans (“MFO”) in Ottawa on 7 June 1995, stating “Sunpine

Forest Products is proposing to build a new permanent, all weather road

up the middle of their Forest Management Agreement area” (Kostuch:

6/7/95). The letter reproduced the conclusions of a June 1994 Pisces

report (see above, s. 5.6) on fish habitat quality in four creeks (high) and

impacts the proposed haul road crossings would have on fish habitat in

those creeks (Townsend: 6/1/94). The Friends of the West Country

letter also quoted an FWS fish and wildlife biologist regarding negative

projected impacts of the road on fish and fish habitat. The letter stated

[b]ased on your authority under Section 37 of the Fisheries Act, I ask that

you request such plans, specifications, studies, procedures, schedules or

other information to enable you to determine whether the proposed mainline road is likely to result in any alteration, disruption or destruction of

fish habitat.

After reviewing the materials and information requested, I ask you to

determine whether an offence under subsection 40(1) or (2) is likely to be

committed (Kostuch: 6/7/95).

The MFO replied on 26 July 1995, stating

[y]our letter is the first notification that the Department of Fisheries and

Oceans has received with respect to the proposed road construction

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 63

136. Letter from L.D. Goff, Regional Director, AEP Southern East Slopes Region, to

Sunpine re: Mainline Road Proposal—Phase I, 25 August 1995.
project. My department is currently preparing a request for relevant information regarding the proposal [...] from Sunpine Forest Products. This

information will allow DFO staff to determine the potential impacts of the

proposal on fisheries resources” (Tobin: 7/26/95).

The response also stated

[m]y department is prepared to work with provincial colleagues to ensure

the protection of fish and fish habitat in the Forest Management Area. DFO

Central and Arctic Regional staff will be contacting Alberta Fisheries Management officials on this subject to determine what action the province is

taking with regard to the stream crossings (Tobin: 7/26/95).

Martha Kostuch hand-delivered the MFO’s response to FWS on

28 July 1995, and an FWS employee then recommended that LFS put

“any action relative to approvals on hold, until the province has determined how it will respond to this development.”137 He repeated this

recommendation on 7 September 1995 and 26 September 1995.138

On 1 August 1995, the DFO Habitat Management Division

(“HMD”) in Winnipeg, the agency responsible for issuing HADD authorizations for activities in Alberta, wrote to Sunpine, stating

Subject: Sunpine Forest Products—Proposed Mainline Haul Road

The Department of Fisheries and Oceans (DFO) has received a public

inquiry concerning the above captioned subject. From the information

provided it appears the proposed works or undertakings have the potential to affect fish and fish habitat.

In order for DFO to determine if the works or undertakings are likely to

harm fish habitat, would you please provide the following information:

1) All plans, specifications, studies, procedures, samples and other

information required to permit an assessment of the potential impact

of the proposal on fish and fish habitat; and,

64 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

137. Inter-Office Memorandum from D.G. Christiansen, AEP-FWS to F. Cardinal, re:

DFO Involvement in Sunpine Haul Road Review, 28 July 1995.

138. Memorandum from D.G. Christiansen, Head, Fisheries Management, Eastern

Slopes Region, AEP-FWS to F. Cardinal, Regional Director, AEP-FWS, Re: Sunpine

Mainline Haul Road, 7 September 1995; and Memorandum from D.G. Christiansen,

Head, Fisheries Management, Northern and Southern East Slopes Region,

AEP-FWS to R.E. Kerber, Water Resources Engineer, Water Resources Admin.

Division and R. Thompson, District Superintendent, Clearwater District, Land &

Forest Service, Re: Sunpine Mainline Haul Road, 26 September 1995.
2) Mitigation and/or compensation measures proposed to alleviate

potential impacts and/or compensate for any loss in the capacity of

habitat to produce fish. You must also provide evidence that the measures will be effective, that their effectiveness will be monitored and

that any deficiencies will be corrected.

DFO’s review of your proposal will be undertaken within the framework

established by our Policy for the Management of Fish Habitat (copy attached)

which also states that DFO’s goal of fish habitat conservation is guided by

the principle of No Net Loss of productive capacity of fish habitat. Additional information and direction concerning the framework of our review

and your obligations under the Fisheries Act is provided in the two

attached pamphlets, ‘Guidelines for Attaining No Net Loss’, and ‘What

the Law Requires: The Directive on the Issuance of Section 35(2) Authorizations’ (Hopky: 8/1/95).

This letter was copied to FWS staff. DFO later stated

[...] In regard to Subsection 37(1), I advised you [Friends of the West Country] [on 18 October 1995] that in my letter of information request to

Sunpine Forest Products there was no reference to Subsection 37(1), and

that I did not believe our review is being undertaken pursuant to Subsection 37(2). For your information, there has been no decision that a Subsection 37(2) order is needed or will be used (Hopky: 12/15/95).

On 3 August 1995, DFO-HMD in Winnipeg wrote to FWS stating

Re: Sunpine Forest Products—Proposed Permanent Haul Road

As you are already aware following our telephone conversation of June

21st, the Department of Fisheries and Oceans (DFO) received an inquiry

concerning the above referenced project proposal. At this time, I am writing to apprise you of our intention to review this proposal pursuant to

DFO’s responsibilities under the Fisheries Act.

To this end, DFO has requested, from Sunpine Forest Products, any information that they are able to provide which will allow us to assess the

potential impacts of the proposed project on fish and fish habitat. In addition, we have requested descriptions of any proposed mitigation and/or

compensation measures as well as proposed monitoring programs and

anticipated remedial measures.

You indicated to me that Larry Rhude is reviewing this project proposal

on behalf of your department. In light of our shared responsibilities for

administration of the Fisheries Act, I propose that we work cooperatively to

ensure adequate protection of fish and fish habitat in relation to this proSUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 65
ject proposal. I would welcome any comments or discussion with Larry or

yourself regarding this review (Linsey: 8/3/95).

On 14 August 1995, the Assistant Director of AEP Fisheries Management Division wrote to the Regional Head of AEP Fisheries Management in RMH regarding the 3 August 1995 letter from DFO, stating:

I would advise that we should not be working with DFO in this regard.

This is part of a much larger picture related to the administration of the

Fisheries Act. They refuse to entertain any manner of formal working relationship with the Prairie Provinces fisheries agencies even on an interim

basis. On many fronts (e.g., habitat and aquaculture) we have assumed we

have an agreement only to find there is none, because of lack of agreement

between their regional office in Winnipeg and Ottawa. Our concerns seem

to have no place on their agenda (it recently took three months for the Deputy minister of DFO to reply to our Deputy Minister on the simplest of

questions).

[...]

I would urge you make Linsey aware that without any agreement we cannot provide any information or advise him on this item. Furthermore, he

should be advised that we will be supplying our conditions for the protection of fish and fish habitat through the provincial permitting system, as

we have done for more than 2 decades.139

In its 5 June 2003 comments on the accuracy of the Draft Factual Record,

Canada stated: “It is important to recognise that the absence of a formal

agreement did not affect the ability of DFO officials to evaluate/prevent

any potential and actual project impacts pursuant to the application of

the Fisheries Act. In fact, DFO and Alberta enjoyed a positive and productive working relationship in the review of the Sunpine Project.”

On 21 August 1995, FWS advised DFO in Winnipeg that

[...] due to the unfortunate absence of an agreement between our two agencies on the administration of the Fisheries Act, provincial Fisheries staff are

unable to provide the requested input and comments to the proposal

review that the Department of Fisheries and Oceans has chosen to initiate.

Our responsibility to provide advice on fisheries matters to provincial permitting authorities, dictates that we cannot also provide recommenda66 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

139. Memorandum from C.W.B. Stubbs, Assistant Director, Fisheries Management

Division, AEP to D. Christiansen, Regional Head, Fisheries Management, RMH, re:

DFO Memo to You—3 August 1995 Re: Sunpine Haul Road, dated 14 August 1995.
tions to another authority who may choose to issue an approval with

conflicting conditions. Such an occurrence would not be in the best interest of the resource or of the proponent (Christiansen: 8/21/95).

On 25 August 1995, LFS approved the corridor for the Sunpine

Project under Alberta’s legislation and Alberta’s Resource Road Planning

Guidelines (see above, s. 5.6).

In a 6 September 1995 Note to File regarding the Sunpine Haul

Road, the Regional Head, Fisheries Management, AEP, RMH wrote:

G. Robertson of LAFS [AEP Land & Forest Service] called to ask me to

meet with himself and [name deleted under access to information legislation] regarding some correspondence [name deleted] had received from

Brian Tobin on the matter of the Sunpine Haul Road.

[...]

[Name deleted] asked what my response had been to the Federal request

for cooperation. I advised [name deleted] that I had been directed to

respond to DFO and advise them that our primary responsibility was to

the provincial agencies, hence we could not be also providing recommendations to DFO on the same matter. I advised that I expected if DFO

requested to review our data on the streams in question that they would be

given the same access as any consultant, etc.

[...]

[Name deleted] questioned our obligations under the Fisheries Act as a

consequence of our appointments [...]. [Name deleted] suggested that

even though we were not delegated authority to issue authorizations we

still had the obligation to enforce the Act. I advised [name deleted] that if

we received a complaint of a violation that we would investigate it. [Name

deleted] indicated that if Sunpine started work in fish bearing waters

without proper approval under the Fisheries Actthat [name deleted] group

would file a complaint of a violation. [Name deleted] indicated they didn’t

want to see any field staff caught in the middle of this, but [name deleted]

group does not agree that it’s clear that our staff are in the clear on these

matters if we are only providing recommendations on fisheries matters to

provincial permits [sic].

[...]140

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 67

140. Note to file from D. Christiansen, AEP, re: Sunpine Haul Road, cc. F. Cardinal,

M. Barrett, B. Stubbs, 6 September 1995.
A 28 September 1995, note to file by a fisheries technician working

for AEP FWS states:

Sunpine MLR

28 Sep/95 Gary Lindsay DFO

– was out to visit site last week with Reg Watkins and Sunpine reps (Neil

Reynolds, Keith Branter, Jim Allan, Peter Denney).

– NWPA permits required for Ram R. and Prairie Cr., and those applications will trigger an environmental review (CEAA).

– from what he saw (up to the Ram R.) it seems like they’re acting responsibly and trying to do their best.

– doesn’t think they need an authorization under the Fisheries Act

(regardless Feds or Province who is in charge).

– he feels we’re running the show locally—so don’t feel restricted in

input to our provincial regulatory agencies.

– if we felt there was a clear destroying of fish habitat, unmitigable, then

he can see the need for DFO involvement and a final say in the project.141

On 15 October 1995, the Regional Head, Fisheries Management, of

AEP wrote to the Assistant Director, Fisheries Management Division,

AEP, stating:

As you are aware the Sunpine Mainline Haul Road proposal is under

review by DFO with regard to the stream crossings that will be required.

We have been advised by Sunpine’s engineering consultant that the

review by both DFO and the Canadian Coast Guard is proceeding very

slowly, consequently the Federal approvals for stream crossings will not

be received in time to meet the company’s needs for logging access for that

area this winter. Sunpine and LAFS [Land & Forest Service] has requested

ourselves and Water Resources to meet with them on 18 October 1995, to

consider the company’s request for temporary crossings on the Mainline

Haul Road Right of Way for this winter to allow log haul.

This becomes somewhat confusing, since although permanent crossing

proposals at the same sites are under review by the Federal Government

we are now being asked to comment on different types of crossing structures at the same locations. I have two chief concerns in this matter. Firstly,

that recommendations we provide at this stage may conflict with require68 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

141. Note to file by Rocklyn Konynenbelt, Fisheries Technician, AEP-FWS RMH, 28 September 1995.
ments forthcoming from DFO. Secondly, that the public who requested

the Federal review will not see any difference between the permanent and

temporary crossings, and the result will be a major blowup over the jurisdictional question.

Given this situation, I am requesting some written direction from the Division on how regional Fisheries staff should participate in this meeting and

the subsequent referrals.142

On 17 October 1995, the Head, Fisheries Habitat Protection Branch

and Assistant Director, Fisheries Management Division of AEP

responded, stating:

1. Notwithstanding the potential for conflict between our conditions on

temporary access and DFO requirements, it is our responsibility to

advise the [provincial] licensing authority of our conditions. As our

first call to order we must advise on the issue of fish and fish habitat to

the best of our ability.

Whether the licensing authority chooses to use or not our conditions,

or, whether they wish to delay issuance of their permit in respect of

DFO response is not for us to debate or concern ourselves with.

2. I agree that the public perception will be awkward for all concerned.

However, I view that to be secondary to our responsibility as we see it:

advising on fish and fish habitat. It appears, however, that the current

dispute between Alberta Fisheries and DFO re: a protocol or MOU for

the administration of Section 35 is already very public. It also appears

to me, that DFO has more concern with their hands on administrative

presence, than advancing the agenda for the protection and enhancement of fish habitat in Alberta.

In summary, our position at the meeting will be as it has always been,

i.e., advising the licensing authority and, in this case, the applicant, on

our expectations for conditions to be placed on provincial permits for

the protection of fish habitat. It is our view that if our conditions are

met then the spirit and intent of the Fisheries Act is satisfied.143

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 69

142. Memorandum from D.G. Christiansen to C.W.B. Stubbs re: Sunpine Mainline Haul

Road—Temporary Access, 13 October 1995.

143. Memorandum from C.W.B. Stubbs, Head, Fisheries Habitat Protection Branch &

Assistant Director, Fisheries Management Division, AEP Natural Resources

Service Fisheries Management Division to Dave Christiansen, Regional Head,

Fisheries Management re: Sunpine Mainline Haul Road—Temporary Access,

17 October 1995.
On 23 November 1995, MFO wrote to Friends of the West Country,

stating:

Thank you for your letter regarding Sunpine Forest Products’ proposal to

construct a permanent road through its Forest Management Area.

Officials of my department are currently reviewing the potential effects of

the proposal on fish and fish habitat in accordance with the requirements

of the Fisheries Act and on navigation under the Navigable Waters Protection

Act (NWPA).

The review under the Fisheries Act will determine whether potential fisheries impacts can be mitigated, whether compensation is required and

whether an environmental assessment pursuant to the Canadian Environmental Assessment Act (CEAA) is required. The review has the purpose of

protecting the fisheries resources in the watercourses that would be traversed by the proposed road. With regard to your questions on Alberta’s

views on the project, I suggest you contact them directly.

The proponent, Sunpine Forest Products, has provided DFO with general

information on fish and fish habitat concerns as well as site-specific plans

for the first four proposed crossings. These are currently under review and

we expect to receive similar plans for the remaining stream crossings in

the near future.

With respect to NWPA involvement, we anticipate an application in the

near future for approval of possibly two bridges, one crossing the Ram

River and the other at Prairie Creek. Once a formal NWPA application is

received, a determination will be made on the scope of the environmental

assessment which would be required under the CEAA (Tobin: 11/23/95).

A 20 March 1996 newspaper article states:

[...]

Alberta Environmental Protection Land and Forest Service issued phase I

approval of the road allowing the company to proceed with the design

work within a half-mile corridor, with the detailed planning subject to

approval before the road can be completed. There were a series of conditions attached to the Phase I approval which required the company to control access to the road.

Meanwhile, the company has built approximately 14 km of road along the

corridor northwest of Prairie Creek Campground under a class 4 temporary road approval. It has been used this winter for logging in about 30

cutblocks in the area.144

70 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

144. Brian Mazza, The Mountaineer, “Sunpine Road comes under federal scrutiny”

(20 March 1996).
As noted below (s. 5.8), DFO staff observed the temporary road

during a helicopter tour in April 1996. The Secretariat has received

no information regarding whether DFO requested any information

from Sunpine in connection with the temporary road or undertook any

review of its potential impacts on fish habitat.

On 13 July 1996, Martha Kostuch wrote to MFO as follows:

On May 20, 1996, I wrote Glen Hopky, Fisheries and Oceans Habitat

Coordinator, and asked him several questions regarding their review of

Sunpine Forest Products’ proposal to construct the mainline road. In my

letter to Glen Hopky, I referred to the former Minister Brian Tobin’s letter

to me, dated November 23, 1995.

Glen Hopky responded on June 21, 1996, but unfortunately he did not

answer my questions so now I am writing to you as the responsible minister.

What is the status of the review of the potential effects of the proposed

road on fish and fish habitat in accordance with the requirements of the

Fisheries Act?

If the Fisheries Actreview has been completed, please send me a copy of the

results and conclusions of the review. If the review has not been completed, when will it be completed?

Did the Fisheries Act review determine that an environmental assessment

pursuant to the Canadian Environmental Assessment Act is required? If not,

what are the reasons it was determined that no assessment was required?

If so, what is the status of the assessment? (Kostuch: 7/13/96).

On 9 August 1996, Martha Kostuch wrote to MFO as follows:

Please refer Sunpine Forest Products’ proposed mainline road including

the Ram River and Prairie Creek bridges and the other 19 stream crossings

to [federal] Minister [of Environment] Marchi for an environmental

assessment panel review (Kostuch: 8/9/96).

On 19 August 1996, Friends of the West Country brought an action

in Federal Court to obtain the cancellation of permits issued to Sunpine

by the Canadian Coast Guard on 16 August 1996, under the federal Navigable Waters Protection Act for two bridges included in the Sunpine Project. Friends of the West Country alleged that there were irregularities in

screenings conducted by the Canadian Coast Guard under the CEAA

prior to issuing the permits (see below, s. 5.8).145

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 71

145. Friends of the West Country Assn. v. Canada (Minister of Fisheries and Oceans) (T.D.),

[1998] 4 F.C. 340.
MFO wrote to Martha Kostuch on 24 September 1996, stating:

I am responding to your letters of July 13, and August 9, 1996, regarding

Sunpine Forest Products’ proposal to construct a permanent haul road

through its forest management area.

It was determined by my department that there were no significant

concerns related to this project and a Navigable Water Protection Act

approval was issued to Sunpine Forest Products on August 16, 1996.

Since the matter is now before the Federal Court of Canada, it would be

inappropriate for me to comment any further.

Thank you for bringing your concerns to my attention (Mifflin: 9/24/96).

The Secretariat asked Canada to indicate at what point in time DFO

determined that it did not have a CEAA trigger (no HADD would occur

and therefore no s. 35(2) authorization would be required) in connection

with Sunpine’s Mainline Road.146 Canada replied “September 1996” and

referred the Secretariat to letters of advice issued by DFO to Sunpine in

September 1996 regarding fisheries impacts mitigation requirements for

two watercourse crossings on the Mainline Road147 (see below, s. 5.8).

5.8 Facts Regarding Whether Canada is Failing to Effectively

Enforce the Fisheries Act and the CEAA in Connection

with the Sunpine Project

Many of the documents cited in this section of the factual record are

listed in Appendix 6, in chronological order. In the text, the author and

date of each document is provided for ease of reference to Appendix 6. In

addition to providing information regarding enforcement of the Fisheries Actin regard to the Sunpine Project (i.e. the Mainline Road), this section contains related information concerning DFO’s enforcement of the

Navigable Waters Protection Act in connection with two bridge projects

included in the Sunpine Project. References to “projects” are to the

bridge projects; the Mainline Road is always referred to as the “Sunpine

Project.”

In 1994, shortly after Sunpine submitted its proposal for the

Sunpine Project to LFS for review (see above, s. 5.6), DFO published

72 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

146. See Appendix 5 at 11(i).

147. DFO 22 January 2003 Reply, infra.
“Habitat Conservation and Protection Guidelines” (the “Habitat Conservation and Protection Guidelines”) intended to guide DFO habitat

management staff in administering the habitat provisions of the Fisheries

Act.148 The Habitat Conservation and Protection Guidelines outline a

standard approach to habitat conservation and protection in Canada,

through the application of the no net loss guiding principle contained in

the Habitat Policy (see above, s. 5.3.1). The Foreword to the Habitat Conservation and Protection Guidelines states

[t]his Guide is intended to ensure that projects that could affect fish and

fish habitat are treated fairly, and predictably across Canada. Where provinces [such as Alberta] are involved in fisheries management, DFO will

work in partnership with the appropriate provincial agencies. [...]

The guiding principles and procedures relating to site selection, mitigation and compensation which are described in this Guide are to be applied

when assessing physical impacts of projects on fish habitat. [...]

The Habitat Conservation and Protection Guidelines contain a

hierarchy of preferred options for habitat conservation and protection.

Under this hierarchy, if current habitat productive capacity cannot be

maintained if the project is implemented as designed, the preferred

option is to change project design through relocation or redesign. If neither relocation nor redesign is feasible and the project does not pose a

threat to critical or important habitat, mitigation measures should be

considered. The Habitat Conservation and Protection Guidelines allow

for habitat compensation and artificial propagation, but these are the

least preferred options.

An appendix to the Habitat Conservation and Protection Guidelines contains a list of regional guidelines, including Alberta’s Resource

Road Planning Guidelines,

used in DFO regional offices to facilitate and provide direction in the

development of measures to mitigate impacts on fish and fish habitat. [...]

Many of the Guidelines are, in fact, provincial guidelines that have been

adopted by DFO Regions in order to facilitate the review process for proponents. These provincial guidelines are also consistent with the Policy for

the Management of Fish Habitat. [...]149

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 73

148. DFO, “Habitat Conservation and Protection Guidelines Developed from the Policy

for the Management of Fish Habitat (1986)” (First Edition, 1994).

149. Ibid. Appendix III at 21—Central & Arctic Region—Road Construction.
In the course of inter-agency referral on the Sunpine Project

between LFS and FWS staff pursuant to Alberta’s Resource Road Planning

Guidelines, in December 1993, FWS staff recommended against the

Sunpine Project on the grounds that using an existing road would avoid

causing new impacts on fish and fish habitat (see above, s. 5.6). FWS staff

maintained this position from 1993 through 1995, until LFS issued Phase

I approval to Sunpine for the Sunpine Project under the Resource Road

Planning Guidelines. Under the Habitat Conservation and Protection

Guidelines hierarchy of preferred options for fish habitat conservation

and protection, FWS staff recommended relocation.150 The Sunpine

Project was not relocated. After LFS issued Phase I approval to Sunpine

for the Sunpine Project in August 1995, FWS staff provided advice

on mitigation measures to provincial permitting agencies. Under the

Habitat Conservation and Protection Guidelines, in general, mitigation

should only be considered if project relocation and redesign are not

feasible.

Certain FWS staff working on the Sunpine Project had appointments as fishery guardians under the Fisheries Act.151 Under these

appointments, they had the power to take enforcement action for violations of s. 35(1), but they did not have the power to issue authorizations

under s. 35(2).152

In June 1995, Friends of the West Country informed DFO that

under Alberta’s Resource Road Planning Guidelines inter-agency referral

process, provincial fisheries staff recommended against the Sunpine

Project in favor of using an existing road, on the basis of anticipated

impacts to fish and fish habitat associated with the Sunpine Project as

compared to the existing road (Kostuch: 6/7/95). DFO was also provided with a consulting report concluding that fish habitat quality at

four stream crossings included in the Sunpine Project was high, and that

the Mainline Road would result in long term sediment impacts to fish

habitat that could not be fully mitigated (Kostuch: 6/7/95; Townsend:

6/1/94). At its discretion, DFO staff did not participate in the process for

selecting the MLR corridor or alignment.

74 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

150. In its 5 June 2003 comments on the accuracy of the Draft Factual Record, Canada

stated: “FWS was not the only staff to recommend relocation. In fact, Fisheries,

Wildlife, and LFS staff recommended relocation.”

151. 6 September 1995 Note to file from D. Christiansen, AEP, re: Sunpine Haul Road, cc.

F. Cardinal, M. Barrett, B. Stubbs.

152. Ibid. See also s. 5 and ss. 49-56 of the Fisheries Act.
In November 1995, a habitat biologist with DFO’s Habitat Management Division (“HMD”) sent the Canadian Coast Guard (“CCG”) a

memo entitled “Sunpine Forest Products” stating

[a]ttached is a package of information that was included in one of the

letters to the Minister on Sunpine’s permanent road proposal. It consists

of a petition with approximately 240 signatures and a number of letters

expressing opposition to the proposed road. In the event that Sunpine

does apply for an NWPA permit, and the CEAA is triggered, this package

will be useful to CCG in gauging public concern about the project

(McClelland: 11/22/95).

When DFO sent CCG the petition and related information referred to

above, DFO had already determined that the Mainline Road proposal

had the potential to affect fish and fish habitat (Hopky: 8/1/95), but it

was only in September 1996, according to DFO, that DFO concluded that

the Mainline Road would not cause a HADD and therefore did not

require a s. 35(2) authorization under the Fisheries Act and an environmental assessment under the CEAA.153 The CEAA contains a provision

allowing an RA to request the federal Minister of the Environment to

refer a project directly to a mediator or review panel for assessment, if

public concerns warrant such a reference.154 If the RA subsequently

decides that it will not exercise a power referred to in s. 5 of the CEAA,

the CEAA provides:

Where at any time a responsible authority decides not to exercise any

power or perform any duty or function referred to in s. 5 in relation to a

project that has been referred to a mediator or review panel, the Minister

may terminate the environmental assessment of the project.155

In the case of the Sunpine Project, when DFO received the petition mentioned above, it had not decided whether the Sunpine Project was likely

to require a s. 35(2) authorization. Consequently, DFO was not an “RA”

and could not refer the Sunpine Project to the Minister under this provision of the CEAA.

In the winter of 1995-96, Sunpine built and operated a temporary

logging road within the Mainline Road corridor, while DFO was still

considering whether Sunpine’s proposal for a permanent road in that

corridor required a s. 35(2) authorization.156 DFO staff observed the temSUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 75

153. DFO 22 January 2003 Reply.

154. S. 25(b) of the CEAA.

155. S. 27 of the CEAA.

156. Memorandum from D.G. Christiansen, AEP to C.W.B. Stubbs re: Sunpine Mainline

Haul Road—Temporary Access, 13 October 1995.
porary road during a helicopter inspection intended to determine

whether the Mainline Road would cross any navigable rivers (Brant:

4/13/96). Under the Fisheries Act and DFO’s Directive on the issuance of

s. 35(2) authorizations, it is not an offense for a proponent to carry on a

project without an authorization under s. 35(2) of the Fisheries Act, provided the project does not harmfully alter, disrupt or destroy fish habitat. The Secretariat did not receive any information regarding what, if

any, actions were taken by Sunpine to ensure compliance with s. 35(1) of

the Fisheries Act in regard to the temporary road. The Secretariat did not

receive any information regarding any actions taken by DFO to request

information from Sunpine regarding the temporary road, review potential impacts of the road on fish habitat, or enforce s. 35(1) in connection

with the temporary road.

In December 1995, Sunpine filed applications with CCG for permits under the federal Navigable Waters Protection Act (“NWPA”) for

bridges it proposed to build over two navigable watercourses, the Ram

River and Prairie Creek, as part of the Sunpine Project.

On 15 February 1996, following up on information regarding the

Sunpine Project received from Sunpine in September 1995 and a review

of Sunpine’s NWPA permit applications for the Ram River and Prairie

Creek bridges (received from CCG), DFO made a detailed (14 point)

information request to Sunpine about the Sunpine Project (Linsey:

2/15/96). At the time, DFO had not yet determined whether the Sunpine

Project required a s. 35(2) authorization and therefore triggered the

CEAA pursuant to the Fisheries Act. Referring to Sunpine’s NWPA

permit applications, DFO commented:

NWPA Application, section 1, page 4, under 1.2 Cumulative Effects—This

section states that “Assuming that the design process is effective and

allowing passage of flood waters and debris, erosion control methods are

successful, and that access control is maintained, there is not likely to be

any change in the channels, water quality or migratory movement of fish

and wildlife.” With respect to water quality and effects on fish, how does

Sunpine propose to test these assumptions given the lack of baseline data

regarding sediment transport in the watercourses as well as the absence of

any proposed monitoring programs for water quality and fish, both during and post-construction? To address these issues, adequate monitoring

programs for sediment discharge and fish utilization of the habitat will

have to be designed and implemented by Sunpine (Linsey: 2/15/96).

Sunpine responded to DFO’s 15 February 1996 information

request on 18 March 1996, providing detailed information on planned

76 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION
mitigation measures and proposing sediment monitoring programs for

seven of twenty-one stream crossings and a section of the Mainline

Road (Denney: 3/18/96). In regard to the Ram River and Prairie Creek

bridges, DFO subsequently required Sunpine to honor its 18 March 1996

commitments in advice DFO provided to CCG under s. 12(3) of the

CEAA and in letters of advice DFO issued to Sunpine (see below).

Sunpine’s 18 March 1996 letter contained several other commitments

by Sunpine, in regard to other parts of the Mainline Road. Those commitments, which were not formalized in letters of advice from DFO,

included, among other things, monitoring programs for sediments at

five stream crossings in addition to Ram River and Prairie Creek, and a

sediment and erosion control program for a section of the Mainline Road

that intercepts a large number of small watercourses that are tributaries

to an unnamed tributary to the Ram River, along with a promise to abandon existing winter logging roads west of the mainline alignment upon

completion of the mainline construction.

The Secretariat asked DFO to indicate at what point in time DFO

determined conclusively that the Sunpine Project did not require an

environmental assessment under the CEAA. DFO replied “September

1996.”157 The Secretariat asked DFO to identify in detail information

relied upon in determining that Sunpine’s Mainline Road would not

and does not result in a net loss of fish habitat productive capacity

(or a HADD, requiring issuance of a s. 35(2) authorization under the

Fisheries Act and an environmental assessment under the CEAA).158

DFO responded “[a]ll relevant information used by DFO staff to determine that the proposed measures to avoid impacts of the Sunpine haul

road on fish habitat were adequate to avoid a HADD, is contained in the

Public Registry (see documents #12, #44 and #59 in the Public Registry).”159 This “Public Registry” was set up by CCG in Sarnia, Ontario, in

July 1996 under s. 55 of the CEAA for the purpose of providing convenient public access to information related to the CEAA screenings for the

Ram River and Prairie Creek bridges. Under the CEAA, CCG had to conduct these screenings before it could issue NWPA permits to Sunpine for

the two bridges.

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 77

157. “Oldman River II/SEM-97-006 Submission—DFO Response to the CEC Secretariat

Follow-up Questions,” attached to 22 January 2003 letter from Jenna Mackay-Alie,

Environment Canada, to Katia Opalka, CEC [hereinafter “DFO 22 January 2003

Reply”].

158. Request for additional information; Appendix 5 at 11(ii).

159. DFO 22 January 2003 Reply.
In late June 1996, CCG staff responsible for Alberta—which by

then had been transferred from the Western region in Vancouver, British

Columbia to the Central and Arctic region headquartered in Sarnia,

Ontario —designated each bridge as a separate project for the purpose of

conducting a CEAA screening. The Navigable Waters Protection Division of the CCG (“DFO-NWP”) asked DFO-HMD for expert advice

(under s. 12(3) of CEAA) regarding potential adverse environmental

effects of each bridge on fish and fish habitat (Woodward: 6/25/96).

DFO-HMD provided that advice on 15 July 1996 (Linsey: 7/16/96).

DFO-HMD’s s. 12(3) conditions for protection of fish habitat were

listed under “Mitigation Measures” in the DFO-NWP CEAA screening

reports for the two bridges (Brant: 8/20/96). Under the CEAA, the RA

(DFO-NWP) must ensure the implementation of mitigation measures

listed in screening reports.160

Under “Mitigation Measures,” both screening reports contained

requirements for sediment monitoring programs. The screening report

for the Ram River bridge stated, among other things,

[a] sediment monitoring program acceptable to DFO-HMD shall be implemented to assess the effectiveness of mitigation and sediment control measures and the need for remedial measures, both during and following

construction. This sediment monitoring program must be approved by

DFO-HMD prior to commencement of any inwater work (Brant: 8/20/96

and Brant: 9/16/96).

On 22 August 1996, DFO wrote to Sunpine, stating, among other

things

[t]he reports presenting the results of the sediment monitoring should

include relevant climatological information such as the record of precipitation events. These reports should be provided to DFO-HMD (Linsey:

8/22/96).

On 28 August 1996, Sunpine wrote to DFO stating

[t]hank you for your quick response of Aug. 22 concerning our sediment

monitoring programs for Ram and Prairie Creek. Since we are in agreement on the site selection, sampling procedures and analytical methods

we will proceed with these as described in our submission. With regard to

sampling frequency, I would like to offer the following: At the Ram crossing we have revised our construction plans to include a clear-span bridge

78 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

160. S. 20(1) of CEAA.
which means we will be able to construct the crossing without in-water

activity. In terms of sediment entering the river, this will narrow the

potential to the abutments and the work areas on both sides of the river.

With this in mind, we now commit to a monitoring frequency which will

be done periodically and during heavy precipitation events commencing

at the start of construction. This program would continue until freeze-up

this fall, recommencing next spring and continuing until it is evident that

the sediment control measures are working satisfactorily. [...] (Denney:

8/28/96).

The Prairie Creek bridge was never built because Sunpine decided to use

an existing public road for that section of its log hauling route. The Secretariat asked DFO for copies of Sunpine’s follow-up sediment monitoring

reports for the Ram River bridge. DFO replied “[i]n both instances (Prairie Creek and Ram River) it was concluded that no HADD would occur.

Therefore, no sediment monitoring reports were necessary, and none

were provided.”161

On 17 September 1996, DFO issued “letters of advice” to Sunpine

in regard to the Ram River and Prairie Creek bridges, containing essentially the same requirements as the s. 12(3) advice DFO provided to CCG

in July 1996.162 For information on “letters of advice,” see s. 5.5, above.

There were two differences between DFO-HMD’s s. 12(3) advice to

DFO-NWP and its letters of advice to Sunpine: the s. 12(3) advice stated

“[i]nstream work is prohibited during the period from September 15th to

April 15th [emphasis added],” while the letters of advice to Sunpine

stated “[i]nstream work is to be avoided during the period from September 1st to April 30th [emphasis added].” The other difference is that in

the s. 12(3) advice, DFO required that Sunpine provide DFO with a sediment monitoring program for both bridges, while only the letter of

advice for the Prairie Creek bridge mentions a sediment monitoring program. One reason for this discrepancy could be that on 17 September

1996, the same day DFO issued the letters of advice, Sunpine notified

DFO that the Ram River crossing would be a clear span bridge (causing

less disruption to fish habitat than the pier structure originally proposed). However, DFO had earlier told Sunpine that sediment concerns

were not limited to effects of instream work, but included concerns

about run-off from construction work on the approaches (Linsey:

8/22/96). The government of Alberta has stated

[t]he design of the bridge was changed by the proponent part way through

the federal review process, adopting a clear-span design. The change was

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 79

161. DFO 22 January 2003 reply.

162. Letters of advice from G.A. Linsey, DFO to Peter Denney, Sunpine re: Ram River

and Prairie Creek Bridges, 17 September 1996.
done to facilitate the review of the project by DFO and not to address environmental concerns. The revised bridge design did not significantly alter

the amount of disruption of fish habitat (small for both designs), but did

comply with the anticipated preference of federal officials for one design

over the other, at increased expense.163

The Secretariat did not receive any information regarding why DFO

decided to issue letters of advice to Sunpine in regard to the Prairie

Creek and Ram River crossings despite already having submitted

(slightly different) conditions for protection of fish and fish habitat at

those crossings to DFO-NWP under s. 12(3) of the CEAA.

Information is provided below regarding the three Public Registry

documents (#12, #44 and #59) DFO identifies (see above) as having been

relied on by DFO in determining that the Mainline Road would not and

does not result in a net loss of fish habitat productive capacity, or a

HADD, requiring a s. 35(2) authorization and a CEAA screening.

Document 12 in the Public Registry is a letter of 2 January 1996,

from the Habitat Coordinator, Alberta Area, of DFO-HMD to the Pacific

Region Navigation Protection Program Supervisor at CCG, stating:

On recent referrals (Sunpine Forest Products and Suncor’s Steepbank

Mine, attached) where CCG is a CEAA Responsible Authority, I have been

unable to determine what you have defined as the project, pursuant to s. 15

of CEAA. Both these proposals involve NWPA s. 5.1’s for bridges, but are

associated with much larger undertakings, and I do not know to what

extent your CEAA project includes these other undertakings. We wish to

provide you with a timely response to your request for a declaration of our

CEAA “status”; however, if we are to provide CEAA s. 12.3 advice in particular then I am asking that you provide me with a CEAA project description for each of the examples (Hopky: 1/2/96).

Document 44 in the Public Registry is a September 1996 letter from

Eastern Slopes Management Inc. to CCG reporting that the design of the

Ram River bridge was changed from a pier structure to a clear span

bridge (Reynolds: 9/17/96).

Document 59 in the Public Registry is entitled “Preliminary

Assessment of Fisheries Resources and Impacts at the Sunpine Haul

80 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

163. Government of Alberta, “Alberta Case Study—Sunpine Project” in CEAA Review

Provincial/Territorial Input, Appendix 1 [hereinafter “Alberta Case Study”] at 57,

online: Ontario Ministry of the Environment <http://www.ene.gov.on.ca/

envision/ceaa/CS-AB.pdf> (date accessed: 21 February 2003).
Road Crossing of Rough Creek, Tawadina Creek and an Unnamed Tributary to Dry Creek” prepared for Sunpine by Pisces Environmental Consulting Services Ltd. (“Pisces”), dated August 1995. That report states:

Rhude (1978) noted that habitat quality in Rough Creek was reduced by

the lack of habitat type diversity and by extensive periods of low flow.

Despite these limitations, Rough Creek supports a substantial brook trout

and mountain whitefish population and what is likely a much reduced,

remnant bull trout population. Although habitat quality in Tawadina

Creek would likely be much lower during periods of low flow, which

would extend from mid summer to early spring each year, than that found

in June of 1995, the stream is still capable of supporting fish, although perhaps not at the proposed upper road crossing. Similarly, habitat quality in

the unnamed tributary to Dry Creek would likely be much lower than that

encountered at the relatively high flows in July of 1995. This tributary does

not appear to be able to support fish. [...] Rough and Tawadina creeks, the

unnamed tributary to Dry Creek, and because of its proximity, Dry Creek

itself, will be subjected to increased sediment loads from road cuts, fills

and ditches in the medium term and from the road surface over the life of

the road (Allan: 8/1/95).

In its 5 June 2003 comments on the accuracy of the Draft Factual

Record, Canada stated: “LFS, in its role as land manager, did conduct

monitoring of the right-of-way, and direction was provided to Sunpine

to submit an action plan to correct erosion problems.” It also stated:

“Alberta’s regulatory process did not require monitoring for HADD.

However, Alberta staff did observe the road and bridge crossing during

and following construction and concluded that no violation of the Fisheries Act had occurred.” Both DFO and Alberta have confirmed that neither DFO nor Alberta did any active follow-up monitoring—or required

Sunpine to submit results of any follow-up monitoring—to verify that

sediment run-off from the Mainline Road surface is not causing a HADD

of fish habitat in violation of s. 35(1) of the Fisheries Act.164

In August 1996, Friends of the West Country brought an action in

Federal Court to obtain the cancellation of Sunpine’s NWPA permits on

the grounds that CCG’s July 1996 CEAA screenings of the Ram River

and Prairie Creek bridges did not comply with the requirements of the

CEAA.165 Those screenings had concluded that the bridges were not

likely to cause significant adverse environmental effects (Woodward:

8/16/96). The group maintained that the project should have been

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 81

164. DFO 22 January 2003 Reply at 3 and Alberta Case Study at 55.

165. Friends of the West Country Assn. v. Canada (Minister of Fisheries and Oceans) (T.D.),

[1998] 4 F.C. 340.
defined to include the whole Mainline Road and Sunpine’s logging

operations; that a consideration of the environmental effects of the Mainline Road and Sunpine’s logging operations should have been included

within the scope of the CCG assessment; and that cumulative environmental effects of other projects in the area should have been taken into

account in considering whether the project was likely to result in significant, adverse environmental effects. The trial judge granted the application (except as to project scope) and cancelled Sunpine’s NWPA

permits.166

On appeal, the Federal Court of Appeal agreed with the trial judge

that a “responsible authority” under the CEAA, in this case, CCG, has

discretion in determining the scope of a project for the purpose of assessing its environmental effects, but it also held that an environmental

assessment under CEAA does not need to include construction, operation, decommissioning, abandonment or other undertaking outside the

scope of the project.167 Therefore, CCG was at liberty to scope each

bridge as a separate project and not to include an assessment of the environmental effects of the Mainline Road and Sunpine’s forestry operations within the scope of its assessments of the bridges. The Federal

Court of Appeal also ruled that CCG had erred in law by interpreting the

CEAA as preventing CCG from considering, as part of its “cumulative

environmental effects” analysis, effects of other projects or activities in

the area that were outside the scope of the project or were outside of federal jurisdiction.168 In addition, the Federal Court of Appeal held that

locating the public registry of documents related to the screenings in

Sarnia, Ontario, approximately 2000 km from the project site, and

requiring the public to file requests under the Access to Information Act in

order to obtain copies of those documents, was patently unreasonable.169 An application for leave to appeal to the Supreme Court of Canada filed by the environmental group was denied.

82 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

166. Ibid.: “[...] I conclude that the environmental assessments conducted were deficient

in two fundamental respects: first, they were not conducted in respect of a construction or other undertaking, namely, the Mainline Road, that was a construction or

other undertaking “in relation to” the projects, as defined, and that was proposed

by the proponent; and, secondly, they failed to include consideration of the cumulative environmental effects likely to result from each project in combination with

another project that had been or would be carried out, once again, the Mainline

Road. [...] Based upon the foregoing analysis, I conclude that the Screening Environmental Assessment Reports and their addenda, and the resultant approvals under

subsection 5(1) of the NWPA that are here under review cannot stand.”

167. Friends of the West Country Assn. v. Canada (Minister of Fisheries and Oceans) (C.A.),

[2000] 2 F.C. 263 at para. 23; leave to appeal to the S.C.C. denied, [1999] S.C.C.A. No.

585.

168. Ibid. at para. 40.

169. Ibid. at para. 43.
In 2001, DFO conducted a second CEAA screening of the Ram

River bridge (built in 1997) and again concluded that the project was not

likely to cause significant adverse environmental effects.

Under “Potential Environmental Effects,” the first screening

report for the Ram River crossing, dated July 1996, stated “[s]iltation

related effects will be ameliorated based upon the required sediment

control plan instituted by the proponent” (Woodward: 7/18/96). Under

“Cumulative Effects,” the first report stated “[s]iltation related cumulative effects are considered insignificant as the sediments affected by construction will not be allowed to enter the waterway directly without

pre-screening through geotextile filters placed prior to construction”

(Woodward: 7/18/96). The second screening report for the Ram River

crossing, dated September 2001, contains much more extensive information on expected sediment yield from the bridge, both short and long

term, and comparative information (DFO: 9/1/01).

The second screening report for the Ram River bridge contains the

following project definition for the purpose of the CEAA screening:

[f]or the purposes of the environmental assessment DFO as the Responsible Authority defined the scope of the Project as:

The construction and maintenance of a two lane single span bridge over the

Ram River, including associated approaches and related works, storage areas

or other undertakings directly associated with construction. The Project

involves preparation of the construction site and construction of abutments

and the bridge structure (DFO: 9/1/01).

The second screening report for the Ram River bridge contains

detailed information under the headings “Effects of the Project,” “Mitigation,” “Residual Effects,” and “Cumulative Effects” (DFO: 9/1/01).

The report identifies sedimentation as “the source of one of the primary

environmental effects of the Project” (DFO: 9/1/01; 6.2). It states that

consequently, mitigation strategies emphasize sediment control measures (DFO: 9/1/01; 6.2). Under “Residual Effects,” the report states:

Increased sediment is one of the main ways that development activities in

forested watersheds affect fish and fish habitat (Waters 1995). Although

mitigation measures will limit the amount of sediment likely to enter the

Ram River, activities associated with construction of the bridge (i.e., site

preparation, construction of bridge structures and shore protection activities) and maintenance, there will be an increase in the amount of sediment

entering the River.

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 83
Elevated suspended sediment concentrations can result in a range of

effects on fish depending on sediment concentration and duration of

exposure. Effects range from no effect, change in behavior to physiological

effects and, in rare cases, death (Newcombe and Jensen 1996). Additional

effects from sedimentation can include changes in rearing and spawning

habitat either directly through deposition of material or indirectly

through changes in channel morphology.

Sediment yield is the amount of sediment delivered to a receiving water

from the surrounding basin. It was used to estimate the amount of sediment resulting from the Project. Although variables such as precipitation

will affect sediment yield from month to month and year to year, sediment

yield represents a standard measure of sediment delivery from a catchment. Changes in sediment yield provide a reasonable estimate of the

extent of disturbance.

Sediment yield can be determined directly through intensive multi-year

monitoring programs or indirectly according to the method presented in

Haigh (2000). This method estimates sediment yield indirectly through

comparing the physical characteristics such as climate, hydrology, topography, soils and land use with those of other nearby river basins. This

method was used in estimating sediment yield in this assessment. Sediment yields for watersheds in the vicinity of the Project are presented in

Table 9 [not reproduced].

The project will increase the local sediment yield since the site will be

altered from a relatively flat floodplain with a dense canopy cover and

understory. Post-construction, the site will contribute sediment from the

road surface, from the slopes along the road fill, and from cleared areas

adjacent to the road. Typical sediment yield characteristics of various surfaces are presented in Table 10 [not reproduced].

Traffic volume also affects sediment yield. The Sunpine road is a private

road, but is the main haul road for a number of logging areas. As such, the

gravel road is expected to support relatively heavy logging truck traffic,

but a low traffic volume compared to public roads. Characteristic sediment yields due to traffic volume are presented in Table 11 [not reproduced].

[...]

The determination of the sediment yield of the Project is based on the following assumptions:

• Project footprint area is 0.0125 km2 (1.25 ha) and the downstream sediment transport distance is 2 km.

84 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION
• The road surface170 accounts for 40% of the Project area (conservatively

high) and produces sediment at a rate consistent with a relatively

heavy use haul road [60 mm/year].

• Road fill accounts for 40% of the Project Area

• Road fill is assumed to produce sediment yield similar to a typical road

cut (conservatively high).

• The stream bank area accounts for 10% of the Project area.

• The Ram River wetted perimeter accounts for 10% of the Project area

(conservatively low) and produces sediment similar to other low- to

non-erodible streambeds throughout Alberta.

The average annual sediment yield for the project area is expected to

increase 16.5mm, based on assumed site conditions and characteristic sediment yields for different surfaces. The relative contribution of the various

project components in the determination of the sediment yield for the project is summarized in Table 12. The total volume of sediment produced

annually by the Project will be approximately 200 m3 (average annual sediment yield [16.5 mm] x area of the contributing basin [1.25 ha]).

Table 12 Expected Post-Construction Sediment Yield at Bridge Location

Project Area Percent of total Sediment yield

Project Area (mm/year)(a)

Road surface171 40 30

Road cut 0 10

Road fill 40 10

Stream bank 10 5

Ram River 10 0.01

Total 100 16.5

(a) The sediment yield from the Project area is the weighted average of sediment

yield from different portions of the Project are (i.e., (40x30)+(0x10)+.../100).

Using a conservative estimate of 0.01 mm/year for sediment yield, a forested watershed would be expected to produce 10 m3 of sediment for each

1 km2 (100 ha) of contributing area. The estimated amount of sediment

produced from a forested watershed the size of the Ram River watershed

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 85

170. “Road surface” is taken to mean the surface of the bridge and approaches on either

side of the bridge; not the whole Mainline Road.

171. Ibid.
upstream of the crossing (1780 km2) would be 17,800 m3. The residual

effects of the Project arising from loss of riparian area and increases in sediment yield on fish and fish habitat are negligible and most likely not

detectable. The potential adverse effects of the project on fish and fish habitat are therefore considered not significant (DFO: 9/1/01; 6.3.1).

Under “Cumulative Effects,” the report states

[m]itigation measures will not entirely eliminate effects on fish and fish

habitat and wildlife habitat resulting from Project-induced increases in

sediment input to the Ram River and loss of forest cover, riparian vegetation and floodplain area respectively. Although the effects on fish, fish

habitat and wildlife habitat will not be significant, these effects have the

potential to contribute to the effects of other projects and activities in the

area. Therefore, DFO focused its assessment of cumulative effects on

determining the relative contribution of the Project-induced effects on fish

and fish habitat and wildlife habitat in combination with effects from other

projects or activities in the area.

Other projects and activities that take place within the watershed include:

• timber harvesting,

• seismic exploration,

• oil and gas drilling and production,

• oil and gas pipelines,

• recreational activities,

• hunting and trapping,

• fishing,

• roads.

The contribution of a given project to the cumulative effects of other

projects can be considered in terms of predetermined thresholds of effect on a

particular environmental component [emphasis added]. The effects of the

project are considered significant when they combine with the effects of

other activities or projects to exceed the threshold and result in an unacceptable effect. Conversely the incremental effects contributed by the

project are not significant when baseline conditions already exceed the

threshold or when, combined with the effects of the other projects, they

remain below threshold levels [emphasis in original]. In areas such as the

Ram River watershed, where the extent of perturbation is comparatively

low, it is reasonable to assume that baseline conditions are well below

threshold levels (DFO: 9/1/01; 7.1).

86 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION
The screening report indicates that “threshold levels” are the basis for

assessing whether the effects of a project are acceptable. If the effects of a

project, in combination with the effects of other projects in the area or

when added to baseline conditions172 exceed threshold levels, then the

project’s effects would be considered significant. The report does not

mention what the “threshold levels” are, for fish habitat in the Ram

River watershed.

Under “Cumulative Effects on Fish Habitat,” the report states

[s]ediment yield can be used to estimate cumulative effects of the sediment resulting from the Project because it represents the integrated effects

of sediment inputs from all the different land uses and activities occurring in the

watershed [emphasis added]. Comparing sediment yield from the Project

area with sediment yield estimates for the remainder of the watershed

provides a reasonable indicator of the relative contribution of sediment

from the Project.

The Ram River consists of two main tributaries: the North Ram River and

South Ram River. Shortly after the two join to form the main stem the river

passes through a narrow gorge approximately 2 km upstream of the project, where a bedrock streambed controls both the channel gradient and

the rate of upstream channel degradation (Figure 4). The headwaters representing nearly 5% of the total watershed area, is typical sparsely vegetated alpine and sub-alpine habitat. The remainder of the watershed is

forested with stands of lodgepole pine. Although much of the watershed

is comparatively undisturbed, roads, clearcuts, oil and gas wells, pipelines, and recreational area are present throughout.

The North Ram River upstream of its confluence with the South Ram River

contributes very little sediment to the overall area. Throughout its lower

reaches (prior to joining the South Ram River to form the main stem of the

Ram River), the North Ram River has a low sediment carrying capacity.

Much of the sediment it carries is deposited in a large depositional area

upstream of where it joins the main stem of the Ram River. Consequently,

the resulting sediment yield from the North Ram River at its confluence

with the South Ram River is only about 8,000 m3/yr. By contrast, the South

Ram River passes through a narrow 30-km gorge with steep, unvegetated,

and highly erodible shale slopes before it joins the North Ram River. Erosion along the entire length of the gorge is high and results in a correspondingly high sediment yield. The corresponding sediment yield for

the South Ram River was estimated at 820,000 m3/yr.

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 87

172. In February 1996, DFO had commented that sediment monitoring was needed in

light of the lack of baseline data (Linsey: 2/15/96).
A comparison of the sediment yield for the Ram River watershed

upstream of the proposed bridge before and after construction is presented in Table 13. The Project has increased the amount of sediment produced annually by approximately 200 m3. However, this amount when

considered in the context of the total amount of sediment produced by the

watershed represents a change of 0.02%. This additional increase in sediment is essentially undetectable given the exceptionally high volumes of

sediment contributed by the South Ram River. The sediment contribution

of the South Ram River alone overwhelms sediment inputs from all other

projects or activities that occur in the watershed [emphasis added]. The cumulative effects on fish and fish habitat resulting from Project related sediment inputs in combination with sediment inputs from other projects and

activities are therefore not significant (DFO: 9/1/01; 7.2).

Table 13 Sediment Yield for the Ram River Watershed Upstream of

Proposed Bridge

Sub-basin Contributing Sediment Annual Volume Annual Volume

Area Yield of Sediment of Sediment

(km2) (mm/year) Produced (m3/yr) Produced (m3/yr)

Pre-Constructiona Post Construction

North Ram 800 0.01 8,000 8,000

River

South Ram 820 1.0 820,000 820,000

River

Fall Creek 160 0.05 8,000 8,000

Project area 0.0125 0.01 0.125 N/A

(preconstruction)

Project area - 0.0125 16.5 N/A 206.25

(postconstruction)

Total 1,780 836,000 836,206

% 0.02%

Contribution

of Project

a Calculated by multiplying the contributing area (km2) by the annual sediment yield (mm).

The report states “[...] sediment contribution of the South Ram

river alone overwhelms sediment input from all other projects or activities that occur in the watershed,” but it does not provide information on

sediment inputs to the Ram River from all the different land uses and

activities that occur in the watershed, such as, for example, sediment

inputs from the rest of the Mainline Road surface (beyond the

approaches on either side of the bridge) and Sunpine’s clearcut logging

activities.

88 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION
In reviewing the Sunpine Project under the Fisheries Act, DFO did

not conduct the type of analysis outlined above (and did not require

Sunpine to do so, pursuant to s. 37(1) of the Fisheries Act or otherwise) to

determine that sediment yield from the Sunpine Project in its totality

(road surface and twenty-one stream and river crossings) will not or

does not cause a HADD of fish habitat and therefore does not result in a

Fisheries Act violation in the absence of a s. 35(2) authorization.

6. Closing Note

Factual records provide information regarding asserted failures to

effectively enforce environmental law in North America that may assist

submitters, the NAAEC Parties and other interested members of the

public in taking any action they deem appropriate in regard to the matters addressed. Pursuant to Council Resolution 01-08, which determined its scope, this factual record provides information relevant to a

consideration of whether Canada is failing to effectively enforce ss. 35,

37 and 40 of the Fisheries Act, s. 5(1)(d) of the Canadian Environmental

Assessment Act (“CEAA”), and Schedule 1 Part 1 Item 6 of the Law List

Regulations made pursuant to paragraphs 59(f) and (g) of the CEAA in

regard to the Sunpine Project. Under the Fisheries Act, no one may harmfully alter, disrupt or destroy (“HADD”) fish habitat without an authorization, and the Minister of Fisheries and Oceans (“MFO”) has the power

to issue authorizations and orders requiring changes to projects that are

causing, or are likely to cause, a HADD of fish habitat. Under the CEAA,

a CEAA environmental assessment is required before MFO exercises

these authorization and order powers under the Fisheries Act.

In 1993, Sunpine Forest Products Ltd. (“Sunpine”) proposed to

build a permanent, all-weather mainline log haul road through its forest

management area in the Rocky Mountain foothills of West Central

Alberta (the “Sunpine Project”). The proposed Sunpine Project would

cross the headwaters of twenty-one watercourses. The Alberta Forest

Service referred the proposal to provincial fish and wildlife staff. Provincial fisheries, wildlife, and forestry staff recommended against the Project and in favor of requiring Sunpine to use existing roads for its

log haul in order to avoid, among other things, creating new, longterm impacts on fish and fish habitat. The Forest Service approved the

Sunpine Project. Certain provincial fisheries staff carried appointments

as fishery guardians under the Fisheries Act. Under these appointments,

they could lay charges for Fisheries Act violations, but they could not

issue Fisheries Act authorizations.

CLOSING NOTE 89
The federal Minister of Fisheries and Oceans (“MFO”) is accountable to Parliament for the administration and enforcement of the Fisheries Act. MFO was made aware of the Sunpine Project by a concerned

citizen in June 1995. Department of Fisheries and Oceans (“DFO”) Habitat Protection and Conservation Guidelines identify relocation and

redesign as preferred options for avoiding project impacts on fish habitat. At its discretion, DFO did not participate in selection of the road

corridor or road alignment for the Sunpine Project. DFO requested information about the Sunpine Project from Sunpine, and reviewed permit

applications Sunpine filed with the Canadian Coast Guard (“CCG”)

under the federal Navigable Waters Protection Act (“NWPA”) for two

bridges included in the Sunpine Project. Sunpine’s NWPA permit applications triggered a screening requirement under CEAA. Under s. 12(3)

of the CEAA, CCG asked DFO for expert advice on potential adverse

environmental effects on fish habitat associated with the two bridges.

DFO conducted a detailed review of Sunpine’s plans for the two bridges

and provided advice to CCG and letters of advice to Sunpine listing

measures required to mitigate impacts of the two bridges on fish habitat.

At the outcome of this review, Sunpine decided to redesign one bridge

from a pier structure to a clear span structure, and decided that instead

of building the other bridge, it would use an existing, public road for that

section of its log haul. DFO reviewed mitigation and follow-up measures proposed by Sunpine to reduce and monitor fish habitat impacts

associated with the rest of the Sunpine Project (road surface and nineteen stream crossings). DFO did not take any action to ensure the implementation, or verify the effectiveness, of those measures. Canada has

stated that Alberta’s regulatory process did not require monitoring for

HADD, but that Alberta staff did observe the road and bridge crossing

during and following construction and concluded that no violation of

the Fisheries Act had occurred. Canada has also stated that the Alberta

forest service, in its role as land manager, directed Sunpine to submit an

action plan to correct erosion problems.

In September 1996, DFO concluded that the Sunpine Project as a

whole would not cause a HADD of fish habitat and therefore did not

require a s. 35(2) authorization or an environmental assessment under

the CEAA. Neither DFO nor Alberta conducted follow-up monitoring—or required Sunpine to submit results of follow-up monitoring—to

verify that sediment run-off from the Mainline Road as a whole is not

resulting in a HADD of fish habitat in Sunpine’s FMA area in violation of

the Fisheries Act.

90 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION
APPENDIX 1

Council Resolution 01-08,

dated 16 November 2001

Montreal, November 16, 2001

COUNCIL RESOLUTION 01-08

Instruction to the Secretariat of the Commission for Environmental

Cooperation Regarding the Assertion that Canada is Failing to

Effectively Enforce sections 35, 37 and 40 of the Fisheries Act,

Section 5(1)(d) of Canadian Environmental Assessment Act (CEAA)

and Schedule 1 Part 1 Item 6 of the Law List Regulations made

pursuant to paragraphs 59(f) and (g) of CEAA (SEM-97-006).

THE COUNCIL:

SUPPORTIVE of the process provided for in Articles 14 and 15 of

the North American Agreement on Environmental Cooperation (NAAEC)

regarding submissions on enforcement matters and the preparation of

factual records;

CONSIDERING the submission filed on the above-mentioned matter by

The Friends of the Oldman River and the response provided by the Government of Canada on July 13, 1998;

NOTING that the one specific case presented in the submission is the

Sunpine Forest Products Forest Access Road case;

FURTHER NOTING that Sunpine Forest Products Forest Access Road

case is no longer the subject of administrative or judicial proceedings

and, as noted in Resolution 00-02, Council has reviewed the notification

by the Secretariat of July 19, 1999 that the development of a factual

record is warranted in relation to the submission (SEM-97-006); and

CONFIRMING that the submitter has not, pursuant to Resolution 00-02,

provided relevant assertions of fact about other cases of asserted failures

to enforce the environmental law identified in the submission;

HEREBY UNANIMOUSLY DECIDES:

TO INSTRUCT the Secretariat to prepare a factual record in accordance

with Article 15 of the NAAEC and the Guidelines for Submissions on

Enforcement Matters under Articles 14 and 15 of the North American Agreement on Environmental Cooperation on whether Canada, in the Sunpine

APPENDIX 1 93
Forest Products Forest Access Road case, is failing to effectively enforce

sections 35, 37 and 40 of the Fisheries Act, Section 5(1)(d) ofCanadian Environmental Assessment Act (CEAA) and Schedule 1 Part 1 Item 6 of the Law

List Regulations made pursuant to paragraphs 59(f) and (g) of CEAA;

TO DIRECT the Secretariat to provide the Parties with its overall work

plan for gathering the relevant facts and to provide the Parties with the

opportunity to comment on that plan; and

TO DIRECT the Secretariat to consider, in developing the factual record,

whether the Party concerned “is failing to effectively enforce its environmental law” since the entry into force of the NAAEC on January 1, 1994.

In considering such an alleged failure to effectively enforce, relevant

facts that existed prior to January 1, 1994, may be included in the factual

record.

APPROVED BY THE COUNCIL.

94 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION
APPENDIX 2

Overall Plan to Develop a Factual Record,

dated 14 December 2001

Secretariat of the Commission

for Environmental Cooperation

Overall Plan to Develop a Factual Record

Submission I.D.: SEM-97-006

Submitter(s): The Friends of the Oldman River

Party: Canada

Date of this plan: 14 December 2001

Background

On 4 October 1997, the Friends of the Oldman River presented

to the Secretariat of the Commission for Environmental Cooperation

(CEC) a submission in accordance with Article 14 of the North American

Agreement on Environmental Cooperation (NAAEC). The Submitters

allege that “the Government of Canada is failing to apply, comply with

and enforce sections 35, 37 and 40 of the Fisheries Act, section 5(1)(d) of

theCanadian Environmental Assessment Act(CEAA) and Schedule 1 Part 1

Item 6 of the Law List Regulations made pursuant to paragraphs 59(f) and

(g) of CEAA”.1 The Submitters contend that, as a matter of Canada-wide

policy, Canada is failing to apply, comply with and enforce the Fisheries

Act and CEAA by issuing informal “letters of advice” to project proponents listing environmental conditions that will avoid the need to obtain

Fisheries Act authorizations for which they would have to carry out an

environmental assessment under CEAA. The Submitters also contend

that, throughout the country, Canada routinely fails to ensure compliance with or prosecute violations of the habitat protection provisions of

the Fisheries Act. The Submitters cite the Sunpine Forest Products Forest

Access Road case (the “Sunpine Project”) as an example.

On 16 November 2001, the Council decided unanimously to

instruct the Secretariat to develop a factual record, in accordance with

Article 15 of the NAAEC and the Guidelines for Submissions on Enforcement Matters under Articles 14 and 15 of the NAAEC (Guidelines), “on

whether Canada, in the Sunpine Forest Products Access Road case, is

failing to effectively enforce sections 35, 37 and 40 of the Fisheries Act, section 5(1)(d) of CEAA and Schedule 1 Part 1 Item 6 of the Law List RegulaAPPENDIX 2 97

1. Submission at 1.
tions made pursuant to paragraphs 59(f) and (g) of CEAA.” The Council

directed the Secretariat, in developing the factual record, to consider

whether the Party concerned “is failing to effectively enforce its environmental law” since the entry into force of the NAAEC on 1 January 1994.

In considering such an alleged failure to effectively enforce, relevant

facts that existed prior to 1 January 1994, may be included in the factual

record.

Under Article 15(4) of the NAAEC, in developing a factual record

“...the Secretariat shall consider any information furnished by a Party

and may consider any relevant technical, scientific or other information:

(a) that is publicly available; (b) submitted by interested nongovernmental organizations or persons; (c) submitted by the Joint Public

Advisory Committee; or (d) developed by the Secretariat or by independent experts.”

Overall Scope of the Fact Finding:

The Submitters assert that sections 35 and 37 of the Fisheries Act

taken together and supported by appropriate regulations were to create

a preventative and planning regime for works and undertakings with

the potential to harm fish habitat. They assert that in practice, almost no

section 37(2) orders are issued and the number of section 35(2) authorizations varies widely from province to province and has decreased significantly in recent years. They assert that the Directive on the Issuance of

Subsection 35(2) Authorizations (Directive), which provides for the issuance of letters of advice in certain cases, invents a decision making process which frustrates the intention of Parliament and usurps the role of

CEAA as a planning and decision making tool and as a mechanism for

public participation. The Submitters also assert that there are very few

prosecutions for violations of the habitat protection provisions of the

Fisheries Act and they claim that there has been a de facto abdication of

legal responsibilities by Canada to the provinces, which, they claim,

have not done a good job of securing compliance with or enforcing the

Fisheries Act.

The Submitters refer to the Sunpine Project as an example of Canada’s alleged failure to enforce the Fisheries Act and CEAA. The Sunpine

Project involved the construction, by Sunpine Forest Products Ltd.

(“Sunpine”), of a 40 kilometer road to access forest areas on the eastern

slope of the Rocky Mountains, west of the town of Rocky Mountain

House in Alberta.

98 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION
The Submitters assert that they repeatedly urged Canada to initiate

an environmental assessment of the Sunpine Project under CEAA on the

basis that the Project triggered CEAA twice: first, it would result in the

harmful alteration, disruption or destruction of fish habitat, thus requiring an authorization pursuant to section 35(2) of the Fisheries Act; and

second, Canada had requested information from Sunpine and was evaluating it as provided by section 37(2) of the Fisheries Act. The Submitters

assert that at the time of filing the submission, they had not received a

response from Canada regarding whether an environmental assessment

would be triggered by the Sunpine Project.

In its response, Canada contends that sections 35(2) and 37 of the

Fisheries Act are not invoked if there is no harmful alteration, disruption

or destruction of fish habitat. With regard to the Sunpine Project, Canada asserts that the Department of Fisheries and Oceans (DFO) became

aware of the Project and that it included 21 river crossings. DFO concluded that 8 such crossings had potential implications for fish habitat

and subsequently concluded that 6 of these had no potential to damage

fish habitat if constructed as proposed by Sunpine. For the remaining 2

crossings, DFO wrote letters of advice.

To prepare the factual record, the Secretariat will gather and

develop information relevant to the facts concerning:

(i) application of section 35 of the Fisheries Act in connection with the

Sunpine Project;

(ii) Canada’s enforcement of sections 35, 37 and 40 of the Fisheries Act,

section 5(1)(d) of CEAA and Schedule 1 Part 1 Item 6 of the Law List

Regulations made pursuant to paragraphs 59(f) and (g) of CEAA in

connection with the Sunpine Project; and

(iii) whether Canada is failing to effectively enforce sections 35, 37 and

40 of the Fisheries Act, section 5(1)(d) of CEAA and Schedule 1 Part

1 Item 6 of the Law List Regulations made pursuant to paragraphs

59(f) and (g) of CEAA in the context of the Sunpine Project.

Overall Plan

Consistent with Council Resolution 01-08, execution of the overall

work plan will begin no sooner than 14 January 2002. All other dates are

best estimates. The overall plan is as follows:

APPENDIX 2 99
• Through public notices or direct requests for information, the Secretariat will invite the Submitters; JPAC; community members; the regulated community; and local, provincial and federal government

officials to submit information relevant to the scope of fact finding

outlined above. The Secretariat will explain the scope of the fact

finding, providing sufficient information to enable interested nongovernmental organizations or persons or the JPAC to provide relevant information to the Secretariat (section 15.2 of the Guidelines).

[January 2002]

• The Secretariat will request information relevant to the factual record

from federal, provincial and local government authorities of Canada,

as appropriate, and will consider any information furnished by any of

the Parties (Articles 15(4) and 21(1)(a) of the NAAEC). [January 2002]

Information will be requested relevant to the facts regarding:

(i) application of section 35 of the Fisheries Act in connection with

the Sunpine Project;

(ii) Canada’s enforcement of sections 35, 37 and 40 of the Fisheries

Act, section 5(1)(d) of CEAA and Schedule 1 Part 1 Item 6 of the

Law List Regulations made pursuant to paragraphs 59(f) and (g)

of CEAA in connection with the Sunpine Project; and

(iii) whether Canada is failing to effectively enforce sections 35, 37

and 40 of the Fisheries Act, section 5(1)(d) of CEAA and Schedule

1 Part 1 Item 6 of the Law List Regulations made pursuant to paragraphs 59(f) and (g) of CEAA in the context of the Sunpine Project.

• The Secretariat will gather relevant technical, scientific or other information that is publicly available, including from existing databases,

public files, information centers, libraries, research centers and academic institutions. [January through April 2002]

• The Secretariat, as appropriate, will develop, through independent

experts, technical, scientific or other information relevant to the factual record. [January through June 2002]

• The Secretariat, as appropriate, will collect relevant technical, scientific or other information for the preparation of the factual record,

from interested non-governmental organizations or persons, the

JPAC or independent experts. [January through June 2002]

100 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION
• In accordance with Article 15(4), the Secretariat will prepare the draft

factual record based on the information gathered and developed.

[June through September 2002]

• The Secretariat will submit a draft factual record to Council, and any

Party may provide comments on the accuracy of the draft within 45

days thereafter, in accordance with Article 15(5). [end of September

2002]

• As provided by Article 15(6), the Secretariat will incorporate, as

appropriate, any such comments in the final factual record and submit it to Council. [November 2002]

• The Council may, by a two-thirds vote, make the final factual record

publicly available, normally within 60 days following its submission,

according to Article 15(7).

Additional information

The submission, the Party’s response, the Secretariat determinations, the Council Resolution, and a summary of these are available

in the Registry on Citizen Submissions in the CEC home page

www.cec.org or upon request to the Secretariat at the following address:

Secretariat of the CEC

Submissions on Enforcement

Matters Unit (SEM Unit)

393 St. Jacques St. West

Suite 200

Montreal QC H2Y 1N9

Canada

APPENDIX 2 101

APPENDIX 3

Comments of Canada and the United States

on the Overall Plan to Develop a Factual Record,

dated 14 and 23 January 2002, respectively

Comments of Canada

on the Overall Plan to Develop a Factual Record

with regard to submission SEM-97-006

Environment Canada

Ottawa ON K1A 0H3

January 14, 2002

Ms. Janine Ferretti

Executive Director

Secretariat

Commission for Environmental Cooperation

393 St. Jacques Street West, Suite 200

Montreal QC H2Y 1N9

Dear Ms. Ferretti:

Canada is pleased to offer its comments on the five work plans to

develop factual records which were provided to the Parties on December 14, 2001.

First, we note that – unlike the work plans the Secretariat provided

for the “B.C. Hydro” and “Metales y Derivados” factual records – these

five are quite general, and that the Secretariat has chosen not to include

specific information on the methods that will be used to gather the facts,

or any criteria to determine the relevancy of those facts. As a result, Canada is limited in its ability to provide comments that may be helpful to

the Secretariat in ensuring the timely and efficient development of factual records. Should the Secretariat provide the Parties with a more

detailed account of what it intends to do to develop the factual records,

Canada would be pleased to offer comments which would facilitate the

fact gathering process.

In regard to the scope of the fact finding defined in each of the five

work plans, it is Canada’s understanding that this scope is limited to the

instructions provided by Council with respect to the specific cases identified in Council Resolutions 01-08, 01-09, 01-10, 01-11, and 01-12. As it

is made clear in the scope of the fact finding for the Aquanova Factual

Record, Canada understands that the facts in the other four factual

records will also be gathered strictly with respect to the cases identified

in the council resolutions, and not in any other factual context.

APPENDIX 3 105
With respect to the scope of the fact finding and the overall plan for

the Oldman River Factual Record, Canada notices that references are

made to the “Sunpine Project”. To avoid any misunderstanding, Canada

recommends that all references regarding this case be made to the

“Sunpine Forest Products Forest Access Road case” referred to in Council Resolution 01-08 and in the background section of the work plan for

the Oldman River Factual Record.

With regard to the scope of the fact finding and the overall plan for

the B.C. Logging Factual Record, Canada notices that references are

made to sections “35 and 36” of the Fisheries Act. Canada believes that

this is inaccurate and that these references should be changed to sections

“35(1) and 36(3)” of the Fisheries Act as is identified in Council Resolution

01-12.

Canada is pleased to submit the above comments for consideration

by the Secretariat and offers its full assistance in providing any other relevant information which may facilitate the fact gathering process. We

note in this regard that, in order to ensure full access to the appropriate

Canadian governmental authorities (federal, provincial, and local) and

expedite the compilation of facts, it would be preferable that all information requests made to the Canadian Party regarding the Oldman River,

B.C. Mines, and B.C. Logging factual records be addressed to the following contact:

Ms. Jenna MacKay-Alie

Director

Americas Branch

Policy and Communications

Environment Canada

10 Wellington Street, 23rd Floor

Hull, Québec

K1A 0H3

We will follow-up with the Director of the Submission on Enforcement Matters Unit to determine if this offer is helpful in expediting the

process.

Yours sincerely,

Assistant Deputy Minister

Policy and Communications

c.c.: SEMARNAT

US EPA

106 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION
U.S. Comments on the Overall plan to develop

a factual record on SEM-99-002 submitted by the

CEC Secretariat on December 14, 2001

1/23/02

Background Section

First paragraph, second sentence: The Secretariat’s characterization of the requirements of Section 703 of the Migratory Bird Treaty Act

with respect to “taking” is inaccurate. The U.S. proposes that this sentence be revised to read as follows:

“...which prohibits the killing or ‘taking’ of migratory birds and their nests

or eggs, against loggers, logging companies, and logging contractors.”

First paragraph, third sentence: We ask that the Secretariat revise

this sentence to include language directly from the Submission (as

opposed to re-characterizing statements in the Submission and then citing four pages and an appendix). We propose reworking the sentence to

read as follows:

“The Submitters claim that logging operations consistently result in violations of the Act which have ‘significant consequences, because logging

directly kills or takes migratory birds by destroying nests, crushing eggs,

and killing nestlings and fledglings.’“

First paragraph, fourth sentence: Please revise this sentence as

follows:

“The Submitters assert that despite being aware of these alleged violations....”

Overall Scope of the Fact Finding Section

While the Submitters’ allegations are described in some detail,

almost no information is provided regarding the U.S. government

response. To maintain balance, the Secretariat should provide additional information describing the main elements of the U.S. government

response to the MBTA submission.

For consistency, please revise bullet (i) to read as follows: “the

alleged violations of section 703 of the MBTA in connection with the

two cases that are referenced in Council Resolution 01-10”.

APPENDIX 3 107
Bullet (iii) is unnecessary. Bullet (ii) is general in nature and effectively covers the substance addressed in bullet (iii), therefore, the third

bullet should be removed.

Overall Plan Section

In order to facilitate the fact finding as well as internal U.S. coordination efforts, it is requested that all communications between the Secretariat and U.S. federal government officials, as outlined under the first

and second bullets, be in writing and go through the following primary

points of contact, with an electronic copy to the U.S. Environmental

Protection Agency/Office of International Activities (frigerio.lorry

@epa.gov):

U.S. Department of Interior/ Fish and Wildlife Service

Kevin Adams

Assistant Director, Law Enforcement

U.S. Fish & Wildlife Service

Mail Stop 3012

1849 C Street NW

Washington, D.C. 20240

ph: 202-208-3809

fx: 202-482-3716

*DOI does not have email access at this time

U.S. Department of Agriculture

Tom Darden

Acting Director Wildlife, Fish, Watershed, Air, and Rare Plants Staff

USDA Forest Service

Sidney R. Yates Federal Building

201, 14th Street at Independence Avenue, SW

Washington, D.C. 20250

ph: 202-205-1167

fx: 202-205-1599

email address to follow

Additionally, the contacts identified above should be copied on all

communications between the Secretariat and U.S. state and local officials (including an electronic copy to the U.S. Environmental Protection

Agency via frigerio.lorry@epa.gov).

108 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION
Second bullet:

– The following sentence should be included after the first sentence in

the first paragraph: “All requests for information from government

authorities will be in writing.”

– Bullet (i) under the second bullet should be revised as outlined above.

– Bullet (iii) under the second bullet should be removed for the reasons

stated above.

Fourth bullet: If the Secretariat obtains independent experts to develop

information, the Secretariat should ensure that such experts represent a

balanced point of view.

U.S. Comments on the Overall plan to develop a factual record on

SEM-97-006, 98-004, 98-006, and 00-004 submitted by the CEC

Secretariat on December 14, 2001

Since these four documents contain much of the same “boilerplate” language, the comments outlined below apply to all four work plans.

Overall Scope of the Fact Finding Section

Bullet (iii) is unnecessary. Bullet (ii) is general in nature and effectively

covers the substance addressed in bullet (iii), therefore, the third bullet

should be removed.

Overall Plan Section

Second bullet:

– The following sentence should be included after the first sentence in

the first paragraph: “All requests for information from government

authorities will be in writing.”

– Bullet (i) under the second bullet should be revised as outlined above.

– Bullet (iii) under the second bullet should be removed for the reasons

stated above.

Fourth bullet: If the Secretariat obtains independent experts to develop

information, the Secretariat should ensure that such experts represent a

balanced point of view.

APPENDIX 3 109

APPENDIX 4

Request for Information, dated January 2002

Secretariat of the Commission

for Environmental Cooperation

REQUEST FOR INFORMATION

For Preparation of a Factual Record

Submission SEM 97-006 (Oldman River II)

January 2002

I. The factual record process

The Commission for Environmental Cooperation (CEC) of North

America is an international organization created under the North American Agreement on Environmental Cooperation (the NAAEC) by Canada, Mexico and the United States (together, the Parties). The CEC

operates through three organs: a Council, made up of a top-level environmental official from each of the Parties; a Joint Public Advisory Committee (JPAC), comprised of five citizens from each country; and a

Secretariat located in Montreal.

Article 14 of the NAAEC allows any non-governmental organization or person in North America to file a submission with the Secretariat

asserting that a Party to the NAAEC is failing to effectively enforce its

environmental law. This initiates a process of review of the submission

that can result in the Council instructing the Secretariat to prepare a

factual record in connection with the submission. A factual record seeks

to provide detailed information to allow interested persons to assess

whether a Party has effectively enforced its environmental law with

respect to the matter raised in the submission.

Under Articles 15(4) and 21(1)(a) of the NAAEC, in developing a

factual record, the Secretariat shall consider any information furnished

by a Party and may ask a Party to provide information. The Secretariat

also may consider any relevant technical, scientific or other information

that is publicly available; submitted by the JPAC or by interested nongovernmental organizations or persons; or developed by the Secretariat

or independent experts.

On 16 November 2001, the Council issued Council Resolution

01-08, unanimously instructing the Secretariat to develop a factual

record, in accordance with Article 15 of the NAAEC and the Guidelines

for Submissions on Enforcement Matters under Articles 14 and 15 of the

NAAEC (Guidelines), “on whether Canada, in the Sunpine Forest ProdAPPENDIX 4 113
ucts Access Road case, is failing to effectively enforce sections 35, 37 and

40 of the Fisheries Act, section 5(1)(d) of CEAA and Schedule 1 Part 1 Item

6 of the Law List Regulations made pursuant to paragraphs 59(f) and (g) of

CEAA.” The Council directed the Secretariat, in developing the factual

record, to consider whether the Party concerned “is failing to effectively

enforce its environmental law” since the entry into force of the NAAEC

on 1 January 1994. In considering such an alleged failure to effectively

enforce, relevant facts that existed prior to 1 January 1994, may be

included in the factual record.

The Secretariat is now requesting information relevant to matters

to be addressed in the factual record for the Oldman River II submission,

SEM-97-006. The following sections provide background on the submission and describe the kind of information requested.

II. The Oldman River II submission

On 4 October 1997, The Friends of the Oldman River (Submitters)

filed a submission with the CEC asserting that the “Government of Canada is failing to apply, comply with and enforce sections 35, 37 and 40 of

the Fisheries Act, section 5(1)(d) of CEAA and Schedule 1 Part 1 Item 6 of

the Law List Regulations made pursuant to paragraphs 59(f) and (g) of

CEAA.”1 They assert that in practice, almost no section 37(2) orders are

issued and the number of section 35(2) authorizations varies widely

from province to province and has decreased significantly in recent

years. They assert that the Directive on the Issuance of Subsection 35(2)

Authorizations (Directive), which provides for the issuance of letters of

advice in certain cases, invents a decision-making process which frustrates the intention of Parliament and usurps the role of CEAA as a

planning and decision-making tool and as a mechanism for public participation. The Submitters also assert that there are very few prosecutions for violations of the habitat protection provisions of the Fisheries

Act and they claim that Canada has abdicated its legal responsibilities to

the provinces, which, they claim, have not done a good job of securing

compliance with or enforcing the Fisheries Act.

The Submitters refer to the Sunpine Forest Products Access Road

case (Sunpine Project) as an example of Canada’s alleged failure to

enforce the Fisheries Act and CEAA. The Sunpine Project involved the

construction, by Sunpine Forest Products Ltd. (Sunpine), of a 40 kilometer road to access forest areas on the eastern slope of the Rocky Mountains, west of the town of Rocky Mountain House in Alberta.

114 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

1. Submission at 1.
The Submitters assert that they repeatedly urged Canada to initiate

an environmental assessment of the Sunpine Project under CEAA on the

basis that the Project triggered CEAA twice: first, it would result in the

harmful alteration, disruption or destruction of fish habitat, thus requiring an authorization pursuant to section 35(2) of the Fisheries Act; and

second, Canada had requested information from Sunpine and was evaluating it as provided by section 37(2) of the Fisheries Act. The Submitters

assert that at the time of filing the submission, they had not received a

response from Canada regarding whether an environmental assessment

would be triggered by the Sunpine Project.

In its response dated 13 July 1998, Canada contends that sections

35(2) and 37 of the Fisheries Act are not invoked if there is no harmful

alteration, disruption or destruction of fish habitat. With regard to the

Sunpine Project, Canada asserts that the Department of Fisheries and

Oceans (DFO) became aware of the Project and that it included 21 river

crossings. DFO concluded that 8 such crossings had potential implications for fish habitat and subsequently concluded that 6 of these had no

potential to damage fish habitat if constructed as proposed by Sunpine.

For the remaining 2 crossings, DFO wrote letters of advice.

III. Request for information

The Secretariat requests information relevant to the facts concerning:

(i) application of section 35 of the Fisheries Act in connection with the

Sunpine Project;

(ii) Canada’s enforcement of sections 35, 37 and 40 of the Fisheries Act,

section 5(1)(d) of CEAA and Schedule 1 Part 1 Item 6 of the Law List

Regulations made pursuant to paragraphs 59(f) and (g) of CEAA in

connection with the Sunpine Project; and

(iii) whether Canada is failing to effectively enforce sections 35, 37 and

40 of the Fisheries Act, section 5(1)(d) of CEAA and Schedule 1 Part

1 Item 6 of the Law List Regulations made pursuant to paragraphs

59(f) and (g) of CEAA in the context of the Sunpine Project.

IV. Examples of relevant information

Examples of relevant information include the following:

APPENDIX 4 115
1. Technical information regarding the Sunpine Project, such as

maps, technical drawings, and engineering studies, including any

information regarding:

• design options;

• siting options; or

• alternatives to the Project.

2. Information regarding the potential of the Sunpine Project to result

in the harmful alteration, disruption or destruction of fish habitat,

including:

• environmental impact studies;

• evaluations by government professionals;

• concerns of the public.

3. Information about measures proposed, considered or adopted to

prevent harmful alteration, disruption or destruction of fish habitat in connection with the Sunpine Project, including information

about any public consultations.

4. Information about the effectiveness of measures adopted to prevent harmful alteration, disruption or destruction of fish habitat in

connection with the Sunpine Project.

5. Information on local, provincial or federal policies or practices

(formal or informal) regarding enforcement of, or ensuring compliance with, sections 35, 37 and 40 of the Fisheries Act, section

5(1)(d) of CEAA and Schedule 1 Part 1 Item 6 of the Law List Regulations made pursuant to paragraphs 59(f) and (g) of CEAA in connection with the Sunpine Project.

6. Information on federal, provincial or local enforcement- or compliance-related staff or resources available for enforcing or ensuring

compliance with, sections 35, 37 and 40 of the Fisheries Act, section

5(1)(d) of CEAA and Schedule 1 Part 1 Item 6 of the Law List Regulations made pursuant to paragraphs 59(f) and (g) of CEAA in connection with the Sunpine Project.

116 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION
7. Information on Canada’s or Alberta’s efforts to enforce or ensure

compliance with sections 35, 37 and 40 of the Fisheries Act, section

5(1)(d) of CEAA and Schedule 1 Part 1 Item 6 of the Law List Regulations made pursuant to paragraphs 59(f) and (g) of CEAA in connection with the Sunpine Project, including for example:

• efforts to prevent violations, such as by placing conditions on or

requiring modification of the Sunpine Project or providing technical assistance;

• monitoring or inspection activity;

• warnings, orders, charges or other enforcement action issued to

Sunpine;

• actions to remedy any impacts to fish habitat caused by the

Sunpine Project; or

• coordination between different levels of government on

enforcement and compliance assurance.

8. Information on the effectiveness of Canada’s or Alberta’s efforts to

enforce or ensure compliance with sections 35, 37 and 40 of the

Fisheries Act, section 5(1)(d) of CEAA and Schedule 1 Part 1 Item 6

of the Law List Regulations made pursuant to paragraphs 59(f) and

(g) of CEAA in connection with the Sunpine Project, for example

their effectiveness in:

• preventing violations of those provisions;

or

• remedying any violations that occurred.

9. Information on barriers or obstacles to enforcing or ensuring compliance with sections 35, 37 and 40 of the Fisheries Act, section

5(1)(d) of CEAA and Schedule 1 Part 1 Item 6 of the Law List Regulations made pursuant to paragraphs 59(f) and (g) of CEAA in connection with the Sunpine Project.

10. Any other technical, scientific or other information that could be

relevant.

APPENDIX 4 117
V. Additional background information

The submission, Canada’s response, the determinations by the

Secretariat, the Council Resolution, the overall plan to develop the factual record and other information are available in the Registry and Public Files section of Citizen Submissions on Enforcement Matters on the

CEC website: <http://www.cec.org>. These documents may also be

requested from the Secretariat.

VI. Where to Send Information

Relevant information for the development of the factual record

may be sent to the Secretariat until 30 June 2002, to the following

address:

Secretariat of the CEC

Submissions on Enforcement

Matters Unit (SEM Unit)

393 St. Jacques St. West

Suite 200

Montreal QC H2Y 1N9

Canada

Tel. (514) 350-4300

* Please reference the submission number (SEM-97-006 / Oldman River

II) in all correspondence.

For any questions, please send an e-mail to the attention of Katia Opalka,

at <info@ccemtl.org>.

118 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION
APPENDIX 5

Follow-Up Information Request,

dated 10 September 2002

Memorandum

DATE: 10 September 2002

À / PARA / TO: Jenna MacKay-Alie, Environment Canada

CC: Jean-François Dionne, Environment Canada

DE / FROM: Katia Opalka

Legal Officer,

Submissions on Enforcement Matters Unit

OBJET /

ASUNTO / RE: Follow-up questions regarding the factual record

for the SEM-97-006 (Oldman River II) submission

Pursuant to Canada’s request, I am writing to provide follow-up

questions the Secretariat wishes to pursue with Canada in regard to the

factual record for the SEM-97-006 (Oldman River II) submission, consistent with NAAEC Article 21.

I intend to make arrangements shortly to meet with DFO-HMD

officials involved in the Sunpine file late in September to discuss these

questions and obtain copies of relevant information. In the event it is not

possible to gather requested information in time for such meeting(s), I

request that Canada provide written answers to any pending questions,

along with copies of supporting documentation, as soon as possible

thereafter.

We request Canada’s answers, and copies of supporting information, for each of the following questions. If Canada has already provided

supporting information, please identify specifically the information that

is responsive to a particular question. In addition, we seek to determine

how the information Canada provided in response to the Secretariat’s

25 March 2002 [sic – January 2002] information request responds to

the questions and examples included in that information request. If

requested information has not been or will not be provided (including

on a confidential basis) because it is non-existent, confidential or privileged, or otherwise unavailable, please provide an explanation consistent with Article 21(3).

1. Please provide copies of any documents (agreements, letters,

memoranda, etc.) reflecting arrangements or agreements entered

into by the Department of Fisheries and Oceans and the Province

APPENDIX 5 121
of Alberta for the administration and/or enforcement of the habitat protection provisions of the Fisheries Act, in particular any document or documents in effect at any time since January 1994.

2. For any arrangements or agreements listed at 1, above, please provide information regarding the implementation thereof, including, without limitation, identifying persons (titles) responsible

and accountable for administering/implementing those provisions in Alberta, budgets allocated to such activities, and reporting

requirements (and copies of all reports since January 1994).

3. Please indicate whether DFO-HMD and Alberta have engaged in

integrated resource planning for the forestry sector pursuant to s.

4.2 of the Policy for the Management of Fish Habitat (1986), and if so,

please list DFO-HMD requirements that apply to Sunpine’s activities in its forest management area pursuant to Sunpine’s forestry

management plan or other documents.

4. A letter from Hon. Brian Tobin to Martha Kostuch dated 26 July

1995 indicates that a letter from Dr. Kostuch to the Minister was the

first notification DFO received of Sunpine’s mainline haul road

proposal.

(i) Was it / is it unusual for DFO to become aware of a project of

this nature in this way, and were other notification procedures

in place at the time which were not used in the case of the

Sunpine project?

(ii) If so, why were they not used?

(iii) Is it unusual for DFO to become aware of a project of this

nature only after a provincial review and consultation process

has taken place?

5. An exchange of correspondence between Garry Linsey and David

Christiansen in early August 1995 suggests that DFO-HMD

expected to be able to work cooperatively with the province on the

Sunpine mainline haul road project, but that provincial officials

denied a request to do so. Please explain

(i) the circumstances of the denial of DFO-HMD’s request;

(ii) whether and to what effect DFO-HMD and the province

worked cooperatively on the project despite the denial; and

122 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION
(iii) whether and how the denial affected the ability of DFO to evaluate/prevent any potential and actual project impacts pursuant to the habitat protection provisions of the Fisheries Act.

6. Please list all information regarding

(i) potential and/or actual impacts of the Sunpine mainline haul

road (pre- and post construction) on fish habitat; and

(ii) any proposed mitigation or compensation measures

generated by or supplied to DFO-HMD by provincial officials and

relied upon by DFO-HMD in determining whether the mainline

haul road, including any stream crossings, at any time could or did

cause a HADD to fish habitat, and explain the circumstances under

which this information was obtained and relied upon.

7. Please explain the basis for DFO-HMD’s recommendation to the

Coast Guard to include provincial fisheries timing constraints into

the NWPA approvals for Sunpine’s Ram River and Prairie Creek

crossings (as reflected in a fax from Rocky Konynenbelt to Garry

Linsey dated 16 August 1996 and a letter from Garry Linsey to John

Woodward dated 21 August 1996).

8. Please provide a copy of the report for the 12 September 1995

DFO-HMD site inspection referenced in a 5 September 1995 letter

from J.H. Allan to Garry Linsey as well as in a 21 February 1996 letter from Garry Linsey to Hal Ross.

9. On 15 February 1996 Garry Linsey sent Peter Denney a letter containing a list of 14 comments, questions and additional information

requirements that Sunpine had to address in order for DFO-HMD

to complete its review of the proposed crossings with regard to

their effects on fish and fish habitat in the watercourses. Peter

Denney replied on 18 March 1996, listing mitigation options that

were still being investigated as well as actions that would be taken

in the future.

(i) Please provide detailed information (including copies of

inspection reports, etc.) regarding actions taken by DFO-HMD

since 18 March 1996 to ensure that Sunpine complies with

undertakings given in the 18 March 1996 letter.

APPENDIX 5 123
(ii) Question 11 of Garry Linsey’s letter points out that no information was provided to DFO-HMD regarding impacts of the proposed road on many tributaries to an unnamed tributary to the

Ram River mentioned in Sunpine’s NWPA application for the

Ram River crossing.

Appendix C of Peter Denney’s 18 March 1996 response lists

mitigation measures to be adopted to address this issue. Under

“Other Mitigation Measures,” the response states that

“[e]xisting winter logging roads west of the mainline alignment will be abandoned upon completion of the mainline construction.”

(a) Please explain how consideration of these measures factored into DFO-HMD’s evaluation of Sunpine’s proposal.

(b) Please explain in detail how the issue of offsetting habitat

loss or disruption was addressed in connection with the

Sunpine mainline haul road project as a whole, listing

specific examples.

(iii) Gary Linsey’s letter mentions that information reviewed by

DFO-HMD includes information received from Sunpine in

September 1995 as well as the NWPA permit application filed

with the Coast Guard in December 1995. Please identify information received from Sunpine in September 1995 and explain

whether further information was requested from Sunpine at

that time, listing specific requirements.

10. Please provide copies of all sediment monitoring reports for Prairie Creek and Ram River provided to DFO-HMD by Sunpine pursuant to Garry Linsey’s letter to Peter Denney dated 22 August

1996.

11. On 15 February 1996, Glen Hopky advised H. Ross that DFO-HMD

did not have a CEAA trigger in connection with the Sunpine Prairie Creek and Ram River crossings, but that this could change

pending receipt of additional information from Sunpine.

(i) Please indicate at what point in time DFO-HMD determined

conclusively that it did not have a CEAA trigger in connection

with Sunpine’s mainline haul road; and

124 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION
(ii) identify in detail information relied upon in determining that

Sunpine’s mainline haul road would not and does not result in

a net loss of habitat productive capacity.

If any factors other than net loss of habitat productive capacity

were at any time considered in determining that no authorization

is required pursuant to s. 35(2) of the Fisheries Act in connection

with the Sunpine mainline haul road, please identify such factors

and explain how they were applied.

12. Please explain how the requirement to adopt an ecological

approach to habitat management (listed in the “Factors to Consider in Assessment” contained in the Directive on the Issuance of

Subsection 35(2) Authorizations dated 25 May 1995 (“Directive”))

was implemented in connection with the Sunpine mainline haul

road proposal.

13. Please provide a copy of the “Habitat Protection and Conservation

Guidelines (1993)” referenced in the Directive.

14. Please explain whether any drafts of the July 2001 Fisheries Act Habitat Protection and Pollution Prevention Provisions Compliance and

Enforcement Policy (“Enforcement Policy”) were in use in the Prairie Region in the period from 1995 – July 2001, provide copies

of any such drafts, and explain the inter-relationship between

the Enforcement Policy and the various DFO-HMD documents

(Directive, etc.) providing guidance on the habitat protection provisions of the Fisheries Act.

15. Please provide copies of the two letters of advice referenced at

page 11 of Canada’s 13 July 1998 response to the submission.

Thank you for your consideration of these questions.

APPENDIX 5 125

APPENDIX 6

List of Information Received by the Secretariat

for Development of the Factual Record

Information Received for the Development of the Factual Record

on Submission SEM-97-006 (Oldman River II)

APPENDIX 6 129

AUTHOR RECEIVED

No. MM/DD/YY (Last Name, Name) DOCUMENT FROM

36 12/09/1993 Rhude, L.A., Fisheries

Biologist, AEP-FWS,

RMH

Memo to G. Robertson, Head, Timber

Management, RMH re comments on

proposed Sunpine haul road

Submitter

37 12/14/1993 Burrington, Brian,

Wildlife Technician,

AEP-FWS, RMH

Memo to G. Robertson, Head, Timber

Management, Rocky Clearwater Forest

Land and Forest Services cc. L. Rhude,

re comments on proposed Sunpine

haul road

Submitter

38 02/15/1994 Haupt, Steven,

President, Friends of

the West Country

Letter to Brian Evans, Minister, AEP

re concerns about plans of Sunpine

to build new road

Submitter

259 03/11/1994 Friends of the West

Country

Unsigned letter to Minister of

Environmental Protection, cc. M.D. of

Clearwater, Sunpine, Fish & Wildlife,

Alta. Transportation, P.C.N.A., along

with documents outlining desired

process to address perceived social,

economic and environmental impacts

of Sunpine Forest Products log haul

routing (included in Item 256)

Canada

260 03/24/1994 Sunpine Forest

Products Ltd.

Fax to M.D. of Clearwater along with

Friends of the West Country call for

public letter writing campaign against

proposed new Sunpine road; fact

sheet; map; Friends of the West

Country newsletter (winter 1994, vol. 1,

issue 1) (Included in Item 256)

Canada

1 06/00/1994 Townsend, D.M. and

J.H. Allan, Pisces

Environmental

Consulting Services

Ltd.

“Preliminary Assessment of Fisheries

Resources and Potential Impacts of the

Proposed Sunpine Forest Products

Haul Road” prepared for Sunpine,

Sundre

Submitter

177 06/00/1994 Townsend, D.M. and

J.H. Allan, Pisces

Environmental

Consulting Services

Ltd.

Report entitled “Preliminary

Assessment of Fisheries Resources

and Potential Impacts of the Proposed

Sunpine Forest Products Haul Road

prepared for Sunpine Forest Products,

Sundre, Alberta”

Canada

261 08/10/1994 Sunpine Forest

Products Ltd.

Unsigned letter from Managing Director

apparently directed at members of

public with concerns regarding road

safety and log trucks along with report

entitled “Sunpine Forest Products Ltd.

Issue Scoping Report” prepared by

Western Environmental and Social

Trends, Inc. (included in Item 256)

Canada

257 03/20/1995 Stanley Associates

Engineering Ltd.

Draft final report of Strachan Area

Transportation Network Study

(included in Item 256)

Canada
130 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

AUTHOR RECEIVED

No. MM/DD/YY (Last Name, Name) DOCUMENT FROM

39 06/07/1995 Kostuch, Martha,

Friends of the West

Country

Letter to Hon. Brian Tobin, Minister of

Fisheries and Oceans re notification of

Sunpine’s intent to build new

permanent all weather road up the

middle of the FMA area

Submitter

40 06/08/1995 Kostuch, Martha Fax memo to Françoise Ducros asking

for assistance

Submitter

262 07/04/1995 n/a Memo to “Council” asking them to

review Sunpine intial report re mainline

road prior to next council meeting

(included in Item 256)

Canada

41 07/06/1995 Glover, Robert N.,

Chief Ranger,

Clearwater District,

AEP

Memo to Lorne D. Goff, Regional

Director, Eastern Southern Slopes,

attn: G. Robertson re Sunpine Mainline

Proposal Revised Phase I Submission

Submitter

42 07/07/1995 Konynenbelt, R.D.,

Fisheries Technician,

RMH

Letter to G. Robertson, Forester I/C

Forest Mgmt. Section, Southern

Eastern Slopes Region - RMH, cc.

M.E. Kraft, re comments on Sunpine

Mainline Road Proposal Revised

Phase I Submission dated 28 June

1995

Submitter

43 07/10/1995 Burrington, Brian,

Wildlife Technician,

AEP-FWS, RMH

Letter to George Robertson, Lands and

Forests Services, RMH cc. R.

Konynenbelt and E. Bruns, re potential

impacts of Sunpine Mainline Haul Road

- Phase I Revision

Submitter

44 07/13/1995 Kostuch, Martha Note to file re: speaking to Carol in

Minister’s office re response sent to

ADM

Submitter

264 07/17/1995 M.D. Clearwater Letter to Forester, I/C Forest

Management Section, Southern East

Slopes Region-Rocky, cc. Council, re

comments of Council on Sunpine

Mainline Road Proposal Phase I

Submission (included in Item 256)

Canada

45 07/26/1995 Tobin, Brian, Minister

of Fisheries and

Oceans

Letter to Martha Kostuch re: first

notification received by DFO re

Sunpine project

Submitter

178 07/26/1995 Tobin, Brian, Minister

of Fisheries and

Oceans

Letter to Martha Kostuch, Friends of

the West Country, re preparation of

DFO info request to Sunpine

Canada

263 07/29/1995 Forester, I/C Forest

Management Section,

Southern East Slopes

Region-Rocky, AEP

M.D. of Clearwater along with Sunpine

Mainline Road Proposal – Phase 1

Submission required pursuant to

Sunpine Timber Harvest Planning and

Operating Ground Rules, S. 4.4

Planning of Roads; asking M.D. to

review and provide comments by 14

July 1995 (included in Item 256)

Canada

46 07/31/1995 Kostuch, Martha Fax memo to Françoise Ducros

sending copy of letter to Minister

Submitter
APPENDIX 6 131

AUTHOR RECEIVED

No. MM/DD/YY (Last Name, Name) DOCUMENT FROM

47 07/31/1995 Kostuch, Martha “Media Release – Friends Request

Federal Environmental Assessment of

Sunpine Road”

Submitter

49 07/31/1995 Kostuch, Martha,

Friends of the West

Country

Letter to Hon. Brian Tobin, Minister of

Fisheries and Oceans asking him to

inform Sunpine of the need to apply for

a s. 35(2) authorization and to trigger

an environmental assessment under

CEAA.

Submitter

179 07/31/1995 Kostuch, Martha,

Friends of the West

Country

Letter to Brian Tobin, Minister of

Fisheries and Oceans, cc. Glen Hopky,

Sheila Copps, Morley Christie, asking

for an environmental impact

assessment review of the Sunpine road

proposal

Canada

233 08/00/1995 Allan, J.H., Pisces

Environmental

Consulting Services

Ltd.

Report entitled “Preliminary

Assessment of Fisheries Resources

and Potential Impacts of the Proposed

Sunpine Forest Products Haul Road

prepared for Sunpine Forest Products,

Sundre, Alberta”

Canada

50 08/01/1995 Robertson, George,

Forester I/c Forest

Management Section,

AEP

Letter to Peter Denney, Sunpine

identifying deficiencies in 28 June 1995

Phase I Mainline Road Proposal

Submitter

180 08/01/1995 Hopky, Glen, Habitat

Coordinator, Alberta,

DFO

Letter to Peter Denney, Sunpine, cc.

J. Stein, G. Linsey, M. Christie,

D. Christiansen, B. Stubbs, informing

him that DFO has received a public

inquiry regarding Sunpine’s proposed

permanent haul road, that from

information provided it appears that the

proposed works or undertaking have

the potential to affect fish and fish

habitat, and requesting Sunpine to

forward to DFO plans and proposed

mitigation measures in connection with

the project.

Canada

181 08/03/1995 Linsey, Garry,

DFO-HMD

Letter to D. Christiansen,

AEP-NRS-FMD-RMH, cc. G. Hopky

(DFO Winnipeg), J. Stein (DFO,

Winnipeg), B. Stubbs (AFMD,

Edmonton) proposing that AEP and

DFO work cooperatively to protect fish

and fish habitat re Sunpine proposal

Submitter

51 08/03/1995 Linsey, G.A.,

DFO-HMD Winnipeg

Letter to D. Christiansen,

AEP-NRS-FMD-RMH, cc. G. Hopky

(DFO Winnipeg), J. Stein (DFO,

Winnipeg), B. Stubbs (AFMD,

Edmonton) proposing that AEP and

DFO work cooperatively to protect fish

and fish habitat re Sunpine proposal

Canada

182 08/03/1995 Linsey, G.A.,

DFO-HMD Winnipeg

Draft of item 181, indicating that letter

ok’d by “Jeff” and noting “we normally

do not make these letters of request”

Canada
132 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

AUTHOR RECEIVED

No. MM/DD/YY (Last Name, Name) DOCUMENT FROM

52 08/15/1995 Tobin, Brian, Minister

of Fisheries and

Oceans

Letter to Martha Kostuch stating the

DFO officials recently requested

information from Sunpine and

contacted AEP to work cooperatively

Submitter

53 08/21/1995 Christiansen, D.G.,

Head, Fisheries

Management Section,

Northern and Southern

Eastern Slopes

Regions, AEP-RMH

Letter to Garry Linsey, DFO-HMD,

Winnipeg, cc. F. Cardinal, M. Barrett,

B. Stubbs, M. Kraft, R. Konynenbelt,

indicating that due to the unfortunate

absence of an agreement between

their respective agencies on the

administration of the Fisheries Act,

provincial staff could not provide input

and comments to the proposal reviews

initiated by DFO

Submitter

183 08/21/1995 Christiansen, D.G.,

Head, Fisheries

Management Section,

Northern and Southern

Eastern Slopes

Regions, AEP-RMH

Letter to G. Linsey, cc. F. Cardinal,

M. Barrett, B. Stubbs, M. Kraft,

R. Konynenbelt, advising that due

to the unfortunate absence of an

agreement between their agencies on

the administration of the Fisheries Act,

provincial Fisheries staff could not

comment on the DFO review of the

Sunpine project

Canada

54 08/22/1995 Burrington, Brian,

Wildlife Technician,

AEP-FWS, RMH

Letter to George Robertson, Lands and

Forests Services, RMH cc. E. Bruns

and G. Mandrusiak, re deficiencies of

Sunpine Phase I Revision Supplement

Submitter

267 08/29/1995 Canadian Field

Operations Supervisor,

Rocky Mountain Elk

Foundation

Letter to Alberta Minister of

Environmental Protection, cc.

Chairman Sunpine FAC, Sunpine,

Weyerhauser Canada Ltd. (included in

Item 256)

Canada

57 09/01/1995 Pharis, Vivian, Chair,

Public Policy

Committee,

Alberta Wilderness

Association

Fax memo to Martha Kostuch re

cooperation with AB Greens

Submitter

58 09/03/1995 Pharis, Vivian, Chair,

Public Policy

Committee,

Alberta Wilderness

Association

Fax memo to Martha Kostuch re Peter

Abramowicz (Calgary Rainforest Action

Group) proposal for the West Country

Internet Strategy

Submitter

60 09/05/1995 Mussell, Dave,

Wilderness Policy

Advisor, Pembina

Institute

Letter to Hon. Brian Tobin, Minister of

Fisheries and Oceans, cc. Hon. Sheila

Copps, Minister of the Environment, re

objection to construction of Sunpine

Mainline Road

Submitter

184 09/05/1995 Allan, J.H., Pisces

Environmental

Consulting Services

Ltd.

Letter to Gary Linsey, DFO, along with

supporting documentation “describing

crossing methods, construction

procedures, surface runoff controls and

mitigation for the four stream crossings

on the proposed Sunpine Haul Road”

and “an orthophoto map of Sunpine’s

proposed cut block pattern”.

Canada
APPENDIX 6 133

AUTHOR RECEIVED

No. MM/DD/YY (Last Name, Name) DOCUMENT FROM

265 09/07/1995 Sunpine Forest

Products Ltd.

Media Release re Phase I approval for

mainline road and next steps

Canada

61 09/08/1995 Armstrong, Paul,

Northern Light

Ecoalition Society

Letter to Hon. Ty Lund, Minister of

Environmental Protection, cc. Sheila

Copps, Friends of the West Country,

Calgary Herald calling for proper environmental assessment of Sunpine road

Submitter

62 09/10/1995 Kostuch, Martha,

Friends of the West

Country

Letter to Hon. Brian Tobin, Minister of

Fisheries and Oceans, cc. Hon. Sheila

Copps, Minister of the Environment,

Morley Christie, CEAA, Glen Hopky,

Freshwater Institute, re Sunpine project

Submitter

185 09/10/1995 Kostuch, Martha Letter to B. Tobin, cc. Hon. Sheila

Copps, Morley Christie, Glen Hopky,

calling for an environmental assessment of the Sunpine project and asking

for info received from Sunpine and

provincial response to request for

cooperation

Canada

63 09/11/1995 Kostuch, Martha Fax memo to Davel Mussell re assistance to Friends of the West Country

and attendance at consultation on

detailed management plan of Sunpine

Submitter

64 09/12/1995 Kostuch, Martha Note to file re: information from Plesuk

re Ty Lund trip to Ottawa re Sunpine

Submitter

65 09/20/1995 Kostuch, Martha Note to file re: discussion with Morley

Christie re CEAA re no application

required under s. 35(2)

Submitter

66 09/25/1995 Van Tighem, Kevin Letter to Hon. Sheila Copps, Minister of

Environment asking for an environmental assessment under CEAA and

noting that he never received a

response from Sunpine Forest Advisory

Committee to a letter (attached) sent 6

April 1995 expressing concern about

proposed mainline road project

Submitter

67 09/25/1995 Grier, Tim Letter to Hon. Brian Tobin, Minister of

Fisheries and Oceans, cc. Hon. Sheila

Copps, Minister of the Environment,

asking for an environmental

assessment panel review of Sunpine

proposed new log haul road

Submitter

68 09/25/1995 Brownold, Barbara Letter to Hon. Brian Tobin, Minister of

Fisheries and Oceans, cc. Hon. Sheila

Copps, Minister of the Environment,

asking for an environmental

assessment review of Sunpine

proposed new log haul road

Submitter

69 09/26/1995 Diewold, R.J. Letter to Hon. Brian Tobin, Minister of

Fisheries and Oceans, cc. Hon. Sheila

Copps, Minister of the Environment,

Friends of the West Country, asking for

environmental assessment review panel

concerning proposed Sunpine road

Submitter
134 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

AUTHOR RECEIVED

No. MM/DD/YY (Last Name, Name) DOCUMENT FROM

266 09/27/1995 Sunpine Forest

Products Ltd.

Press Release by Woodlands Manager

expressing concern re intention of

federal government to initiate further

review of mainline road proposal

(included in Item 256)

Canada

70 10/02/1995 Pharis, Vivian,

Director,

Alberta Wilderness

Association

Letter to Hon. Brian Tobin, Minister of

Fisheries and Oceans, cc. Hon. Sheila

Copps, Minister of the Environment,

Douglas Young, Minister of

Transportation, Nick Taylor, AB

Forestry Critic, re Sunpine FMA in

Alberta and asking for DFO and federal

department of highways to appoint an

environmental assessment review

panel for new road project

Submitter

71 10/04/1995 Lacey, Gordon Letter to Martha Kostuch, Friends of

the West Country, re letters to Brian

Tobin and Sheila Copps

Submitter

72 10/04/1995 Lacey, Gordon Letter to Brian Tobin, Minister of

Fisheries and Oceans, asking for an

environmental impact assessment

review of the Sunpine road proposal

Submitter

73 10/04/1995 Lacey, Gordon Letter to Sheila Copps, Minister of the

Environment, asking for an

environmental impact assessment of

the Sunpine road proposal

Submitter

74 10/04/1995 Braben, Evelyn and

Joseph Braben

Letter from resident of North Fork Road

against mainline road proposal of

Sunpine and calling for an environmental assessment review panel

Submitter

75 10/04/1995 Braben, Evelyn and

Joseph Braben

Letter from resident of North Fork Road

against mainline road proposal of

Sunpine and calling for an environmental assessment review panel

Submitter

76 10/16/1995 Kostuch, Martha Note to file re phone call from Mary

Griffiths, Liberal researcher, saying that

she had spoken to Paul in Brian

Tobin’s office who indicated there

would be no assessment of Sunpine’s

road project because it was being

grandfathered under EARP.

Submitter

80 10/16/1995 Godkin, Jeanette and

Leonard Godkin

Letter to the Friends of the West

Country containing body of letter sent

to Brian Tobin re Sunpine proposed

new road

Submitter

77 10/17/1995 Kinley, Jessie C. Letter to Hon. Brian Tobin, Minister of

Fisheries and Oceans, cc. Hon. Sheila

Copps, Minister of the Environment,

and Friends of the West Country,

expressing concern about Sunpine

road proposal and requesting environmental assessment review panel

Submitter

78 10/18/1995 Kostuch, Martha Note to file re telephone conversation

with Glen Hopky, DFO re s. 35(2) and

s. 37(2) Fisheries Act triggers for environmental assessment under CEAA

Submitter
APPENDIX 6 135

AUTHOR RECEIVED

No. MM/DD/YY (Last Name, Name) DOCUMENT FROM

79 10/23/1995 Scheunert, Sherry Letter to Hon. Brian Tobin, Minister of

Fisheries and Oceans, cc. Hon. Sheila

Copps, expressing concern regarding

the proposed Sunpine road and asking

that the project be referred to an environmental assessment review panel

Submitter

81 10/24/1995 Kostuch, Martha Note to file re returning call from Paul

Mon ___, DFO informing her that it had

been decided that Sunpine road would

not impact fisheries sufficiently to

trigger the Fisheries Act or CEAA

Submitter

82 10/28/1995 Kostuch, Martha Fax memo to Stewart Elgie re review of

a draft letter

Submitter

83 10/30/1995 Kostuch, Martha Letter to Glen Hopky, Habitat

Coordinator, Freshwater Institute, DFO,

stating disagreement with DFO interpretation of ss. 35(2), 37(1) and 37(2)

of Fisheries Act and relationship to

CEAA and asking for copies of correspondence between DFO and AEP

Submitter

84 10/31/1995 Dumka, Mary Letter to Friends of the West Country

enclosing copy of letter to Brian Tobin

re Sunpine Road

Submitter

85 10/31/1995 Dumka, Mary Letter to Hon. Brian Tobin, Min.

Fisheries and Oceans, cc. Hon. Sheila

Copps, Friends of the West Country, re

concerns about new Sunpine road and

asking for environmental assessment

review

Submitter

2 11/00/1995 Allan, J.H., Pisces

Environmental

Consulting Services

Ltd.

“Preliminary Assessment of Fisheries

Resources and Impacts at the Sunpine

Haul Road Crossings of Rough Creek,

Tawadina Creek, an Unnamed

Tributary to Dry Creek and the Ram

River” prepared for Sunpine, Sundre”

Submitter

86 11/06/1995 de Jongh, Mrs. Elly Letter to Hon. Brian Tobin, Minister of

Fisheries and Oceans, re proposed

new forestry road near RMH, Alberta

asking that project be referred to an

environmental assessment review

panel

Submitter

91 11/10/1995 n/a List of Forestry Advisory Committee

Members – November, 1995

Submitter

135 11/14/1995 Transport Canada

(CCG) Vancouver

Referral cover sheet addressed to

NRC, Justice, NEB, DFO, Forestry

Canada, EC, Parks Canada, Health

and Welfare Canada, Indian and

Northern Affairs, and CCG

Submitter

92 11/15/1995 Kostuch, Martha Fax memo to Dwight sending copies of

documents and requesting update

Submitter

87 11/22/1995 Tobin, Brian,

Minister of Fisheries

and Oceans

Letter to Vivian Pharis, Director, Alberta

Wilderness Association, responding to

her letter re Sunpine project

Submitter
136 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

AUTHOR RECEIVED

No. MM/DD/YY (Last Name, Name) DOCUMENT FROM

186 11/22/1995 Tobin, Brian,

Minister of Fisheries

and Oceans

Letter to Teresa Neuman re status of

review of Sunpine project under

Fisheries Act and NWPA

Canada

284 11/22/1995 McClelland, L., Habitat

Biologist, Western Ops.

& Chemical Hazards,

Habitat Management &

Enviro Science, DFO

Memo to Neil Stephens, CCG, cc. Jeff

Stein, along with a package of information included in a letter to the

Minister on Sunpine’s permanent road

proposal consisting of a petition with

approximately 240 signatures and a

number of letters of opposition.

Canada

88 11/23/1995 Tobin, Brian,

Minister of Fisheries

and Oceans

Letter to Friends of the West Country

re DFO Fisheries Act and NWPA

review of Sunpine proposal

Submitter

188 12/14/1995 Tobin, Brian,

Minister of Fisheries

and Oceans

Letter to Roxanne Snyder in reply to an

inquiry about a 31 July 1995 letter from

Martha Kostuch, Friends of the West

Country re Sunpine proposal

Canada

89 12/15/1995 Hopky, Glen,

Habitat Coordinator,

DFO Winnipeg

Letter to Friends of the West Country

responding to 30 October 1995 letter

and 18 October 1995 telephone

conversation re Fisheries Act

requirements for Sunpine project

and DFO-AEP communications

Submitter

187 12/15/1995 Reid, David, Agra Earth

& Environmental

Fax to Reg Watkins, Area Officer, CCG

Vancouver along with Sunpine application to CCG for Prairie Creek and

Ram River Crossing authorizations

under NWPA (missing appendices

D-I)

Canada

90 12/18/1995 M.D. Clearwater Unsigned letter to Sheila Copps,

Minister of Environment and Brian

Tobin, Minister of Oceans and

Fisheries stating that 1 1/2 years

earlier, a Local Forestry Advisory

Committee representing various

community and regional interests had

reviewed a Sunpine report on access

options and had concluded that the

proposed road was the preferred

option

Submitter

288 00/00/1996 n/a Eighteen items of correspondence from

1996 expressing public opposition to

and support for Sunpine project

including two form letters dated 1995

addressed to Ken Brant, CCG Sarnia,

indicating that fifteen responses were

received using the first letter, twentynine responses received using the

second

Canada

93 01/02/1996 Hopky, Glen, Habitat

Coordinator, Alberta

Area, DFO-HMD,

Winnipeg

Letter to Yvette Myers, Supervisor

Navigation Protection Program, CCG

Vancouver asking for a definition of the

project being referred to DFO by CCG

under CEAA

Submitter
APPENDIX 6 137

AUTHOR RECEIVED

No. MM/DD/YY (Last Name, Name) DOCUMENT FROM

134 01/02/1996 Hopky, Glen, Habitat

Coordinator, Alberta

Area, DFO-HMD,

Winnipeg

Same as Item 93 (included in

Item 123)

Submitter

189 01/02/1996 Hopky, Glen,

Habitat Coordinator,

DFO-HMD

Letter to Yvette Myers, Supervisor

Navigation Protection Program, CCG

Vancouver asking for a definition of the

project being referred to DFO by CCG

under CEAA

Canada

133 01/05/1996 Johnson, J. Derek,

Impact Assessment

Biologist, Forestry

Canada, Edmonton

Fax to Reg Watkins, Area Officer, CCG

Vancouver, stating that there are no

CEAA forestry triggers related to the

construction of Sunpine’s Prairie Creek

and Ram River bridges and

approaches

Submitter

190 01/05/1996 Johnson, J. Derek,

Impact Assessment

Biologist, Forestry

Canada, Edmonton

Fax to Reg Watkins, Area Officer, CCG

stating that there are no CEAA forestry

triggers in connection with Sunpine’s

proposed Prairie Creek and Ram River

crossings

Canada

191 01/10/1996 Denney, Peter,

Sunpine

Letter to CCG-NWPD Vancouver

att. Kent Akhurst, Environmental

Assessment Officer along with map

and legend of Sunpine’s bio-physical

analysis of the two road alternatives

described in the Prairie Creek and Ram

River crossing application (Item 187)

Canada

192 01/11/1996 Linsey, G.A.,

DFO-HMD Winnipeg

Letter to Hal Ross, CCG-NWPD

Vancouver cc. G. Hopky, J. Stein,

M. Christie, re request for extension of

referral review period pending definition

of scope of Sunpine project

Canada

97 01/15/1996 Kostuch, Martha Letter to Hon. Brian Tobin, Minister of

Fisheries and Oceans re panel review

of Sunpine proposal

Submitter

193 01/23/1996 Ross, Hal, Navigable

Waters Protection

Officer, Navigation

Protection Program,

CCG Vancouver

Letter to G.A. Linsey, DFO-HMD re

indefinite extension of review period

Canada

99 01/30/1996 Armstrong, Paul Unsigned letter to Premier Ralph Klein,

cc. Friends of the West Country,

Liberals, Calgary Herald, Edmonton

Friends of the North, Western Canada

Wilderness Committee, Sergio Marchi,

United Nations Environmental

Committee, Southern Interfaith

Aboriginal Rights Coalition re

information received under FOIPA re

Ty Lund’s refusal to call for an

environmental assessment of Sunpine

road project contrary to AEP expert

advise and public opposition

Submitter

98 01/31/1996 CCG NWPA notice re Sunpine Prairie Creek

and Ram River bridge proposals

Submitter
138 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

AUTHOR RECEIVED

No. MM/DD/YY (Last Name, Name) DOCUMENT FROM

100 02/04/1996 Haupt, Steven,

President, Friends of

the West Country

Letter to Sergio Marchi and Fred Mifflin

cc. Ty Lund and Larry Kennedy, stating

that Larry Kennedy letter to Tobin and

Copps on behalf of FAC was grossly

misleading

Submitter

101 02/05/1996 Kostuch, Martha,

Friends of the West

Country

Unsigned letter to CCG Vancouver

stating an objection to Sunpine road,

enclosing information from provincial

wildlife and fisheries biologists and

foresters on negative impacts of project

and stating that Sunpine project should

be referred to a panel review

Submitter

102 02/05/1996 Kostuch, Martha,

Friends of the West

Country

Letter to Hon. Fred Mifflin, Minister of

Fisheries and Oceans enclosing

information from provincial wildlife and

fisheries biologists and foresters on

negative impacts of project and stating

that Sunpine project should be referred

to a panel review

Submitter

103 02/07/1996 Kostuch, Martha Fax memo to Ed Reid, City of

Edmonton, re watershed protection

concerns related to Sunpine activities

Submitter

194 02/12/1996 Mifflin, Hon. Fred J.,

Rear Admiral, Minister

of Fisheries and

Oceans

Letter to Helen Wirrell in response to

request for information re DFO actions

in connection with Sunpine Proposal

Canada

104 02/14/1996 Kostuch, Martha Fax memo to Connie Abbott re letters

on Sunpine

Submitter

105 02/15/1996 Hopky, Glen, Habitat

Coordinator, Alberta

Area, DFO-HMD,

Winnipeg

Letter to H. Ross, CCG Navigable

Water, Vancouver, cc. G. Linsey (DFO

Winnipeg), J. Stein (DFO Winnipeg),

P. Denny (Sunpine), M. Christie

(CEAA, Edmonton), R. Konynenbelt

(AEP-FMD, RMH), B. Stubbs (AEPFMD, Edmonton) re Sunpine Ram

River and Prairie Creek Crossings

referral response

Submitter

195 02/15/1996 Zaal, Fred,

Environmental

Assessment

Coordinator, EC

Environmental

Protection Western &

Northern Division,

Edmonton

Letter to Hal Ross, Navigable Waters

Protection Officer, CCG Vancouver,

stating that conditional upon mitigation

being conducted as outlined in AGRA

Earth & Environmental Limited

application submitted on behalf of

Sunpine, EC had no concerns re

Sunpine Ram River and Prairie Creek

bridges (included in Item 123)

Submitter

132 02/15/1996 Hopky, Glen, Habitat

Coordinator, Alberta

Area, DFO-HMD,

Winnipeg

Same as Item 105 (included in Item

123)

Submitter

131 02/15/1996 Zaal, Fred, Environmental Assessment

Coordinator, EC

Environmental Protection Western &

Northern Division,

Edmonton

Letter to Hal Ross, CCG Vancouver

stating that conditional upon mitigation

being undertaken as set out in Item

187, EC does not have any concerns

with the Sunpine Prairie Creek and

Ram River crossings project

proceeding

Canada
APPENDIX 6 139

AUTHOR RECEIVED

No. MM/DD/YY (Last Name, Name) DOCUMENT FROM

196 02/15/1996 Linsey, G.A.,

DFO-HMD Winnipeg

Letter to Peter Denney, Sunpine, cc.

G. Hopky, J. Stein, S. Mercer (DOE

Edmonton), H. Ross, R. Konynenbelt,

B. Stubbs setting out DFO-HMD

comments, questions and information

requirements in connection with

Sunpine Project as described in info

received by DFO from Sunpine in

September, 1995 and in the NWPA

application dated December, 1995

Canada

197 02/16/1996 Hopky, Glen, Habitat

Coordinator, Alberta,

DFO

Letter to H. Ross, CCG Navigable

Water, Vancouver, cc. G. Linsey (DFO

Winnipeg), J. Stein (DFO Winnipeg),

P. Denny (Sunpine), M. Christie

(CEAA, Edmonton), R. Konynenbelt

(AEP-FMD, RMH), B. Stubbs

(AEP-FMD, Edmonton) re Sunpine

Ram River and Prairie Creek

Canada

130 02/21/1996 Linsey, G.A.,

DFO-HMD Winnipeg

Unsigned letter to Hal Ross, Navigable

Waters Protection Officer, CCG

Vancouver, cc. G. Hopky and J. Stein,

re scope of CEAA assessment of

Sunpine project and comments

provided by DFO to Sunpine on

15 February 1996 on all proposed

watercourse crossings (included in

Item 123)

Submitter

198 02/21/1996 Linsey, G.A.,

DFO-HMD Winnipeg

Unsigned letter to Hal Ross, Navigable

Waters Protection Officer, CCG

Vancouver, cc. G. Hopky and J. Stein,

re scope of CEAA assessment of

Sunpine project and comments

provided by DFO to Sunpine on

15 February 1996 on all proposed

watercourse crossings

Canada

106 02/22/1996 Ross, Hal, Navigable

Waters Protection

Officer, Navigation

Protection Program,

CCG Vancouver

Letter to Martha Kostuch, Friends of

the West Country stating that CEAA

assessment would cover all crossings

of navigable waters and stating that a

copy of Sunpine’s application could be

obtained through access to information

procedures or by asking Sunpine

Submitter

107 03/01/1996 Vollmershausen, Jim,

Regional Director

General, EC Prairie

and Northern Region

Letter to Steven Haupt, President,

Friends of the West Country, re

Sunpine project, referring him to CEAA

Edmonton for further information

Submitter

108 03/04/1996 Kostuch, Martha,

Friends of the West

Country

Letter to CCG Vancouver asking for

scope of CEAA assessment of Sunpine

project and copy of Sunpine application

Submitter

31 03/05/1996 Best, Mike, President,

RMH Chamber of

Commerce

Letter to Fred Mifflin, Minister of

Fisheries asking him to respect the

decisions made by the Provincial

government on the issue of the

Sunpine Mainline road proposal

(in Item 12)

Submitter
140 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

AUTHOR RECEIVED

No. MM/DD/YY (Last Name, Name) DOCUMENT FROM

268 03/06/1996 M.D. Clearwater Letter to Sergio Marchi and Fred Mifflin

cc. Council, Alta Min. Env. Prot., M.P.,

referencing provincial approval process

for mainline road proposal and urging

them to handle federal permit

applications fairly and expeditiously

(included in Item 256)

Canada

109 03/07/1996 Ross, Hal, Navigable

Waters Protection

Officer, Navigation

Protection Program,

CCG Vancouver

Letter to Martha Kostuch saying scope

of assessment will be determined after

site inspection to take place after snow

levels decrease and saying office had

insufficient resources to photocopy

Sunpine application, suggesting asking

Sunpine for a copy

Submitter

110 03/14/1996 Mifflin, Hon. Fred J.,

Rear Admiral,

Minister of Fisheries

and Oceans

Letter to Martha Kostuch re Sunpine

application for NWPA approvals and

public particpation in approval process

Submitter

199 03/15/1996 McClelland, L., Office

of the Minister of

Fisheries and Oceans

Fax to J. Stein containing action

request from Bob Mills, M.P., Red

Deer, seeking a reply from Fred Mifflin,

Minister of Fisheries and Oceans to

letters (attached) from Mike Best,

President of RMH Chamber of

Commerce and D.L. Soppit, Mayor of

RMH, asking DFO to approve Sunpine

proposal for tourism, tax and job

reasons.

Canada

111 03/18/1996 Friends of the West

Country

Media Release re federal

environmental assessment of Sunpine

Mainline Road and AB Ombudsman

review of AEP decision to give Sunpine

project Phase 1 approval

Submitter

200 03/18/1996 Denney, Peter, Chief

Forester, Sunpine

Letter to G.A. Linsey, DFO-HMD

providing 15 items of additional

information (and appendices A-F)

requested in a February 1996 memo

(AB95-042)

Canada

201 03/22/1996 Mercer, Shauna,

Manager, Alberta

Division, Environmental

Protection, Prairie and

Northern Region, EC

Letter to Hal Ross, CCG Vancouver

stating an interest in being present at a

Sunpine site inspection and indicating

that it would conduct a further project

review if the definition of the project

scope were to change

Canada

112 03/25/1996 Kostuch, Martha Note to file re call to Patsy re sending

letters to Navigable Waters

Submitter

113 03/25/1996 Kostuch, Martha Letter to Hal Ross, Navigable Waters

Protection Officer, CCG Vancouver, cc.

Hon. Fred Mifflin, re public involvement

in CEAA screening process for Sunpine

project

Submitter
APPENDIX 6 141

AUTHOR RECEIVED

No. MM/DD/YY (Last Name, Name) DOCUMENT FROM

202 04/13/1996 Brant, Ken,

Superintendent,

Navigable Waters

Protection Programs,

CCG Sarnia

“Site Inspection Report” re: Sunpine

Forest Products; aerial inspection

concluding that Ram River only

navigable watercourse along proposed

route, and handwritten note dated

96.05 by K. Brant indicating that based

on legal counsel, they will take the

position that both Ram River and

Prairie Creek are navigable and require

NWPA approvals; additional handwritten text indicating that inspection

revealed that Ram River and Prairie

Creek are the only navigable

waterways involved

Canada

114 05/07/1996 Brant, Ken,

Superintendent,

Navigable Waters

Protection Programs,

CCG Sarnia

Letter to Martha Kostuch re merger of

CCG and DFO and transfer of Alberta

from Western to Central and Arctic

region effective 1 April 1996, and re

scoping of assessment of Sunpine

project and details re public registry

under CEAA

Submitter

115 05/14/1996 Brant, Ken,

Superintendent,

Navigable Waters

Protection Programs,

CCG Sarnia

Fax to Martha Kostuch re Sunpine

application, sending copy of 7 May

1996 CCG letter (not attached)

Submitter

116 05/16/1996 Kostuch, Martha Fax memo to Stewart Elgie re copies

of letters

Submitter

117 05/20/1996 Kostuch, Martha,

Friends of the West

Country

Letter to Glen Hopky, Habitat

Coordinator, Freshwater Institute, DFO,

asking for status of DFO review of

Sunpine proposal

Submitter

118 05/20/1996 Kostuch, Martha,

Friends of the West

Country

Letter to Ken Brant, Superintendent,

Navigable Water Protection Programs,

CCG Sarnia, asking for update and

referral of Sunpine project to a CEAA

panel review

Submitter

119 05/27/1996 Elgie, Stewart, Sierra

Legal Defence Fund

Letter to Dr. Martha Kostuch, Friends of

the West Country, re legal advice

regarding the application of CEAA

to the proposed road and bridge

construction by Sunpine in the

Ram River area

Submitter

203 06/20/1996 Woodward, J.,

Environmental

Assessment Officer,

CCG Sarnia

E-mail to Gary Linsey along with copies

of s. 12(3) CEAA requests for advice

for Prairie Creek and Ram River

crossings

Canada

9 06/21/1996 Hopky, Glen, Habitat

Coordinator, Alberta

Area, DFO-HMD

Letter to Martha Kostuch re referral of

Sunpine project by CCG to HMD and

stating that questions regarding CEAA

review should be directed to John

Woodward at CCG Sarnia

Submitter
142 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

AUTHOR RECEIVED

No. MM/DD/YY (Last Name, Name) DOCUMENT FROM

14 06/24/1996 Herman, Steve,

Fisheries Technician,

AEP, Fisheries

Management Section,

Rocky Mountain

House

Letter to Martha Kostuch in response to

request for sportfish species information for the general areas of Sec 2

Twp 38 Rge 10 W5 on Prairie Creek

and Sec 19 Twp 38 Rge 11 W5 on the

Ram River (in Item 12)

Submitter

120 06/24/1996 Hopky, Glen, DFO

Winnipeg

Fax cover sheet to M. Kostuch Submitter

126 06/25/1996 Woodward, J.,

Environmental

Assessment Officer,

CCG Sarnia

Unsigned letter to Garry Linsey, DFO

Winnipeg re Sunpine Prairie Creek

Crossing, defining project scope and

asking him to refer to information

provided to DFO by Sunpine to provide

comments to the CCG as per s. 12(3)

of CEAA, including any recommendations for mitigative measures

(included in Item 123)

Submitter

121 07/03/1996 Kostuch, Martha Note to file re call to John Woodward:

status of review, public notice, site

inspection, location of and access to

public registry, meeting with Friends

of the West Country

Submitter

125 07/08/1996 Linsey, G.A.,

DFO-HMD Winnipeg

Letter to John Woodward,

Environmental Assessment Officer,

CCG Sarnia re proposed mitigation

measures for Sunpine Prairie Creek

Bridge Crossing (included in Item 123)

Submitter

122 07/09/1996 Brant, Ken,

Superintendent,

Navigable Waters

Protection Programs,

CCG Sarnia

Letter to Martha Kostuch re Sunpine

application for NWPA approvals and

public participation in approval process

Submitter

128 07/09/1996 Linsey, G.A.,

DFO-HMD Winnipeg

Letter to John Woodward,

Environmental Assessment Officer,

CCG Sarnia re proposed mitigation

measures for Sunpine Ram River

Bridge Crossing (included in Item 123)

Submitter

123 07/10/1996 Brant, Ken,

Superintendent,

Navigable Waters

Protection Programs,

CCG Sarnia

Letter to Martha Kostuch and

attachments: contents of public registry

availabe without Access to Information

Act request; handwritten note from

Martha Kostuch indicating that Sunpine

application not provided and insufficient

time to obtain info through access

request before deadline for responses

under CEAA

Submitter

124 07/10/1996 CCG Unsigned Sunpine Prairie Creek Bridge

CEAA Screening Environmental

Assessment Report (included in

Item 123)

Submitter

127 07/10/1996 CCG Unsigned Sunpine Ram River Bridge

CEAA Screening Environmental

Assessment Report (included in

Item 123)

Submitter
APPENDIX 6 143

AUTHOR RECEIVED

No. MM/DD/YY (Last Name, Name) DOCUMENT FROM

129 07/10/1996 Woodward, J.,

Environmental

Assessment Officer,

CCG Sarnia

Unsigned letter to Garry Linsey, DFO

Winnipeg re Sunpine Ram River

Crossing, defining project scope and

asking him to refer to information

provided to DFO by Sunpine to provide

comments to the CCG as per s. 12(3)

of CEAA, including any recommendations (included in Item 123)

Submitter

136 07/12/1996 Kostuch, Martha Fax memo to John Woodward re public

involvement in screening process

Submitter

137 07/13/1996 Kostuch, Martha Letter to Hon. Fred Mifflin, Minister of

Fisheries and Oceans re status of DFO

review of Sunpine proposal

Submitter

10 07/15/1996 Linsey, Garry,

DFO-HMD

Letter to John Woodward,

Environmental Assessment Officer,

CCG Sarnia, cc. J. Stein (DFO-HMD

Winnipeg), D. Christiansen (AEP, FMD,

RMH), re comments on Sunpine

proposed Prairie Creek Bridge

Crossing

Submitter

138 07/15/1996 Friends of the West

Country

Media Release re federal

environmental assessment of Sunpine

Mainline Road and AB Ombudsman

review of AEP decision to give Sunpine

project Phase 1 approval

Submitter

139 07/16/1996 Michelin, Lana,

Advocate

Newspaper article entitled “Sunpine

bridges get initial approval”

Submitter

140 07/16/1996 Woodward, J.,

Environmental

Assessment Officer,

CCG Sarnia

Fax to Martha Kostuch re upcoming

public meeting and requirement for

access to information request to access

non-government project documents

Submitter

204 07/16/1996 Linsey, G.A.,

DFO-HMD Winnipeg

Fax to J. Woodward, CCG Sarnia,

along with copies of letters from G.A.

Linsey to J. Woodward dated 15 July

1996 re Prairie Creek and Ram River

crossings, providing s. 12(3) CEAA

DFO-HMD advice

Canada

141 07/18/1996 Kostuch, Martha Fax memo to John Woodward re

upcoming public meeting

Submitter

142 07/18/1996 Woodward, J.,

Environmental

Assessment Officer,

CCG Sarnia

Fax to Martha Kostuch including final

screening environmental assessment

reports for Prairie Creek and Ram

River Crossings

Submitter

205 07/18/1996 Woodward, J.,

Environmental

Assessment Officer,

CCG Sarnia, Ken

Brant, Regional

Superintendent, NWP

Sarnia, John McCann,

Director, Marine

Programs, Sarnia

CCG Screening Environmental

Assessment Reports for Ram River

and Prairie Creek Crossings, and

photocopies of written submissions

from public received pursuant to public

call for comments

Canada

143 07/21/1996 Kostuch, Martha Fax memo to John Woodward re faxing

screening environmental assessment

reports to Stewart Elgie

Submitter
144 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

AUTHOR RECEIVED

No. MM/DD/YY (Last Name, Name) DOCUMENT FROM

144 07/24/1996 Herman, Steve,

Fisheries Technician,

AEP, Fisheries

Management Section,

Rocky Mountain

House

Letter to Martha Kostuch, cc. D.

Christiansen, M. Kraft, re response to

request for sportfish species information for the general areas of Sec 2

Twp 38 Rge 10 W5 on Prairie Creek

and Sec 19 Twp 38 Rge 11 W5 on the

Ram River

Submitter

146 07/27/1996 Kostuch, Martha Fax memo to John Woodward asking

for a list of documents on the public

registry for the Prairie Creek and Ram

River environmental assessments and

providing advance notice of certain

questions that would be asked at the

public meeting

Submitter

11 07/29/1996 Bennett, Perry,

Environmental

Protection Officer,

Indian and Northern

Affairs

E-mail to John Woodward providing

Indian and Northern Affairs Canada’s

response to the Sunpine referral letter

Submitter

18 07/29/1996 Diggle, Lorna, ROUND Letter to John Woodward, CCG Sarnia,

re environmental assessment of

Sunpine mainline road (in Item 12)

Submitter

13 07/30/1996 Kostuch, Martha Submission by Martha Kostuch to CCG

in response to environmental screening

decision for Sunpine Prairie Creek and

Ram River crossings (in Item 12)

Submitter

15 07/30/1996 Haupt, Steven,

President, Friends of

the West Country

Submission to CCG re scope of

assessment of Sunpine mainline road

(in Item 12)

Submitter

16 07/30/1996 Rodtka, Doris & Karl

Rodtka

Submission to CCG re scope of

assessment of Sunpine mainline road

(in Item 12)

Submitter

17 07/30/1996 Neuman, Teresa E.,

Citizens Action Group

on the Environment

(CAGE)

Statement of Concern re Sunpine

Forest Products proposed new

Mainline Logging Road near RMH and

its environmental impacts as presented

to the CCG at public hearings on July

30, 1996 at the Red Deer and District

Museum, Red Deer, Alberta

(in Item 12)

Submitter

19 07/30/1996 Haupt, Carl and Jean

Haupt

Submission to CCG Meeting, 30 July

1996 (in Item 12)

Submitter

20 07/30/1996 O’Brien, Michael,

Chairman, Red Deer

Recreation Board

Memo to John Woodward, CCG

Sarnia, re Sunpine Forestry Road and

Related Environmental Problems (in

Item 12)

Submitter

22 07/30/1996 Rodtka, Duane & Lea

Johnston

Written submisson requesting a proper

EIA on Sunpine’s main line road (in

Item 12)

Submitter

32 07/30/1996 Cook, Julia M. Submission asking for a more complete

Sunpine Road Assessment (in Item 12)

Submitter

148 07/30/1996 Kostuch, Martha “Questions to ask Coast Guard” Submitter
APPENDIX 6 145

AUTHOR RECEIVED

No. MM/DD/YY (Last Name, Name) DOCUMENT FROM

149 07/30/1996 Kostuch, Martha Notes on presentation by John

Woodward

Submitter

12 07/31/1996 Canadian Coast

Guard, Sarnia

Envelope addressed to Martha Kostuch

postmarked 31 July 1996

Submitter

21 07/31/1996 Pharis, Vivian,

Chair, Public Policy

Committee, Alberta

Wilderness

Association

Letter to John Woodward, CCG Sarnia,

re environmental assessment of

Sunpine mainline road (in Item 12)

Submitter

25 07/31/1996 Brownold, Barbara Memo to Federal Hearing Fisheries

and Coast Guard re Sunpine Mainline

Road (in Item 12)

Submitter

151 07/31/1996 Neuman, Teresa E.,

Citizens Action Group

on the Environment

(CAGE)

Letter to Martha Kostuch re bill Submitter

152 07/31/1996 Mazza, Brian,

The Mountaineer

M.D. of Clearwater Notes: Sunpine

Mainline Road

Submitter

206 07/31/1996 Woodward, John,

CCG Sarnia

Fax to Ryerson Christie from DFO

Inspection Office, Edmonton along with

submission by Martha Kostuch in

response to s. 18(3) CEAA advertisement and indicating that he and Ken

were talking about an August 16th

close date for submissions and stating

that he asked Rory Thompson of

AF&W if they could allow Sunpine to

clear brush to the bridge sites and that

the latter said it could be done

Canada

207 07/31/1996 Gunsch, Sam,

Vice-Chair, Edmonton

Chapter, Canadian

Parks & Wilderness

Society

Letter to John Woodward, CCG Sarnia,

re environmental assessment of

Sunpine mainline road

Canada

269 07/31/1996 M.D. Clearwater Letter to John Woodward, CCG Sarnia,

congratulating the federal government

on its decision in the screening report

(included in Item 256)

Canada

153 08/02/1996 Leonhard, Sharon,

DFO/CG-Wpg

Fax to Martha Kostuch containing

CEAA notice indicating that the final

date for submissions concerning the

environmental reviews of Sunpine’s

Prairie Creek and Ram River Bridge

Crossings is 15 August 1996

Submitter

154 08/02/1996 Woodward, J.,

Environmental

Assessment Officer,

CCG Sarnia

Fax to Martha Kostuch including a list

of documents available upon the public

registry without a request placed

through the Access to Information Act

Submitter

155 08/04/1996 Kostuch, Martha Fax memo to Stewart Elgie asking for

advise on possible actions to take in

connection with triggering CEAA under

Fisheries Act

Submitter
146 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

AUTHOR RECEIVED

No. MM/DD/YY (Last Name, Name) DOCUMENT FROM

156 08/04/1996 Kostuch, Martha Fax memo to John Woodward re 5

February 1996 letter to CCG and 14

pages of information; asking that letter

and information be considered in

screening assessment of the projects

Submitter

34 08/06/1996 Brant, Ken,

Superintendent,

Navigable Waters

Protection Programs

Letter to Martha Kostuch re Sunpine

Forest Products Ltd. Application for

crossings of the Ram River and Prairie

Creek

Submitter

33 08/07/1996 Canadian Coast Guard,

Sarnia

Notice of CEAA environmental

screening for Sunpine Prairie Creek

and Ram River Bridge Crossings noting

that Environmental Screening Decision

Reports available at CCG office in

Sarnia, Ontario

Submitter

35 08/09/1996 Kostuch, Martha Letter to Hon. Fred Mifflin, Minister of

Fisheries and Oceans, cc. Hon. Sergio

Marchi, asking him to refer Sunpine’s

proposed mainline road to Minister

Marchi for an environmental

assessment panel review

Submitter

157 08/12/1996 Stackhouse, Brian Unsigned letter to Ken Brant,

Superintendent, Navigable Waters

Protection Program, CCG Sarnia, cc.

Hon. Fred Mifflin, Hon. Sergio Marchi,

Martha Kostuch, re: Sunpine Forest

Products Ltd. Application for crossings

of the Ram River and Prairie Creek

Submitter

158 08/14/1996 Trout Unlimited

Canada

Fax from Kerry Brewin to Martha

Kostuch re chapters of book

“Influences of Forest and Rangeland

Management on Salmonid Fishes and

Their Habitats;” Chapter 6 – Timber

Harvesting, Silviculture, and Watershed

Processes, and Chapter 8 – Road

Construction and Maintenance

Submitter

159 08/14/1996 Watson, Alexander,

The Mountaineer

“Town Council Notes: Other business:

Construction of middle support for Ram

River bridge”

Submitter

160 08/14/1996 Mazza, Brian, The

Mountaineer

“Coast Guard to rule on Sunpine Road” Submitter

161 08/15/1996 Kostuch, Martha Note to file re: John Woodward making

decision under Section 20 on August

16

Submitter

162 08/16/1996 Woodward, J.,

Environmental

Assessment Officer,

CCG Sarnia

Fax to Martha Kostuch including

addenda to final versions of screening

environmental assessment reports for

the Sunpine crossings of Prairie Creek

and Ram River

Submitter

208 08/16/1996 Woodward, John, CCG

Sarnia, Ken Brant,

Regional Superintendent, NWP Sarnia,

John McCann, Marine

Programs, Sarnia

CCG Screening Environmental

Assessment Report for Ram River

(ADDENDUM)

Canada
APPENDIX 6 147

AUTHOR RECEIVED

No. MM/DD/YY (Last Name, Name) DOCUMENT FROM

209 08/16/1996 Christiansen, D.G.,

Head, Fisheries

Management Section,

Northern and Southern

Eastern Slopes

Regions, AEP-RMH

Memorandum to Angela Ma, Water

Resources, Red Deer, cc. R.

Konynenbelt, B. Lenton, re Sunpine

Ram River crossing, listing conditions

recommended by FMD for Ram River

crossing (8 conditions) along with fax

cover sheet by which Dave

Christiansen sent a copy of this letter

to G. Linsey, DFO

Canada

211 08/16/1996 Konynenbelt, R.D.,

Risheries Technician,

AEP-NRS-RMH

Fax to Gary Linsey, DFO Winnipeg, cc.

J. Stein re Sunpine Ram River bridge

re oversight on timing constraints for

in-stream work

Canada

163 08/19/1996 Woodward, J.,

Environmental

Assessment Officer,

CCG Sarnia

Fax to Martha Kostuch indicating that

due to the pending legal motion, the

Department of Justice would be

handling the communication of

information from that point forward

Submitter

164 08/19/1996 Friends of the

West Country

News Release – “Court Action Filed

Against Federal Government”

Submitter

165 08/19/1996 Kostuch, Martha Letter to Hon. Fred Mifflin, Minister of

Fisheries and Oceans, cc. Hon. Sergio

Marchi, requesting an immediate

response to her 13 July 1996 letter

enquiring about the DFO review of the

Sunpine proposal as a possible CEAA

trigger

Submitter

166 08/20/1996 Kostuch, Martha Fax memo to John Woodward

requesting copies of public registry

documents

Submitter

167 08/20/1996 Woodward, J.,

Environmental

Assessment Officer,

CCG Sarnia

Fax to Martha Kostuch including

approval documents for Sunpine

crossings at Prairie Creek and Ram

River and referral response letter from

the Department of Indian Affairs and

Northern Development

Submitter

168 08/20/1996 Michelin, Lana,

Red Deer Advocate

“Sunpine bridges started – Activists

fight project in court”

Submitter

210 08/20/1996 Brant, Ken,

Superintendent,

Navigable Waters

Protection Programs,

CCG Sarnia

Unsigned letters of approval sent to

Sunpine, att Keith Branter, re Prairie

Creek and Ram River bridges and

copies of approval documents dated

17 August 1996 signed by Jim Quinn,

Regional Director, CCG

Canada

3 08/21/1996 Kostuch, Martha Fax memo to Stewart Elgie including

copies of NWPA approvals for Prairie

Creek and Ram River

Submitter

4 08/21/1996 Kostuch, Martha Note to file re telephone conversation

with Garry Linsey, DFO-HMD re

whether s. 35(2) Fisheries Act authorization issued for Ram River or Prairie

Creek crossings and whether sediment

monitoring programs approved

Submitter
148 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

AUTHOR RECEIVED

No. MM/DD/YY (Last Name, Name) DOCUMENT FROM

212 08/21/1996 Linsey, G.A.,

DFO-HMD Winnipeg

Letter to J. Woodward, CCG Sarnia cc.

J. Stein, D. Christiansen re amendment

of timing-constraints for in-stream work

and indicating that he would provide

this information, along with other

DFO-HMD requirements for the

crossings, to Sunpine

Canada

5 08/22/1996 Kostuch, Martha Fax memo to John Woodward Sunpine

NWPA approval documents

Submitter

6 08/22/1996 Kostuch, Martha Fax memo to Garry Linsey, DFO-HMD

seeking confirmation that no Fisheries

Act authorization was issued to

Sunpine for Prairie Creek or Ram River

and that Sunpine’s sediment monitoring

program not yet approved

Submitter

7 08/22/1996 Kostuch, Martha Fax memo to Stewart Elgie re communications with CCG and DFO-HMD

and intention to contact RCMP

Submitter

213 08/22/1996 Linsey, G.A.,

DFO-HMD Winnipeg

Letter to Peter Denney, Sunpine, cc. J.

Stein, J. Woodward indicating that DFO

expected greater sampling frequency

as part of sediment monitoring program

and requesting that reports be provided

to DFO-HMD

Canada

8 08/23/1996 Kostuch, Martha Fax memo to Stewart Elgie CCG

enforcement of approval conditions

and beginning of Sunpine work

Submitter

215 08/23/1996 Brant, Ken,

CCG Sarnia

Fax to Dale Crewson, RCMP, stating

that he is sending copies of NWPA

authorizations for Prairie Creek and

Ram River crossings

Canada

216 08/23/1996 Note to file Hand-written note stating that Dale

Crewson from the RCMP indicated that

environmentalists claim that Sunpine

does not have necessary permits and

that there may be some civil

disobedience and requesting copies

of permits

Canada

217 08/23/1996 Woodward, John,

CCG Sarnia

Fax to Martha Kostuch indicating that

due to the pending legal motion filed

19 August 1996 by Friends of the West

Country, the Department of Justice

would be handling the communication

of information from that point forward

Canada

214 08/26/1996 Reynolds, N.W. Letter to G. Neale, Harvesting

Manager, re Ram River Bridge

construction schedule along with

attached schedule and construction

plan, procedures

Canada

218 08/26/1996 Denney, Peter,

Forester, Sunpine

Letter to G.A. Linsey along with

description of water monitoring process

to be used during in-stream

construction

Canada
APPENDIX 6 149

AUTHOR RECEIVED

No. MM/DD/YY (Last Name, Name) DOCUMENT FROM

219 08/28/1996 Denney, Peter,

Forester, Sunpine

Letter to G.A. Linsey re Item 213

stating that clear span bridges are

expected for both crossings and

committing to sample “periodically”

and during heavy precipitation events

commencing at the start of construction

and continuing until it is evident that the

control measures are working

satisfactorily

Canada

220 08/29/1996 Denney, Peter,

Forester, Sunpine

Fax cover sheet to G.A. Linsey along

with revised Ram River Construction

Plan /Procedures

Canada

221 09/03/1996 Reynolds, N.W.,

Eastern Slopes

Management Inc.

Letter to CCG Sarnia, att. John

Woodward & Ken Brant, cc. P. Denney

& K. Branter, re notification of Ram

River bridge construction commencement and completion dates

Canada

222 09/16/1996 Brant, Ken, Regional

Superintendent, NWP,

CCG

Letter to Mr. Buchanan, Sunpine, cc.

J. Stein, G. Linsey, along with

amended Mitigation Measures under

CEAA required by DFO-HMD re:

constraints on in-water construction

periods

Canada

223 09/16/1996 Brant, Ken, Regional

Superintendent, NWP,

CCG

Letter to Mr. Buchanan, Sunpine,

advising that Sunpine is required to

submit revised plans to CCG in

connection with proposal to change

construction to a clear span structure

Canada

224 09/17/1996 Reynolds, N.W.,

Eastern Slopes

Management Inc.

Letter to John Woodward, CCG Sarnia,

cc. G. Neale, Sunpine, along with copy

of drawings for Sunpine Ram River

crossing bridge

Canada

169 09/24/1996 Mifflin, Hon. Fred J.,

Rear Admiral, Minister

of Fisheries and

Oceans

Letter to Martha Kostuch responding

to letters dated 13 July and 9 August

1996 and statement of no significant

concerns re Sunpine project

Submitter

170 10/10/1996 Connelly, Bob, CEAA Letter to Martha Kostuch including draft

list of projects having been assessed

under federal and provincial EA

processes and two CCME documents

on EA harmonization

Submitter

171 11/07/1996 Friends of the West

Country

News Release – “Court Action Filed

Claims Federal Government Violating

Fisheries Act and Environmental

Assessment Act”

Submitter

172 11/08/1996 Lagui, Brian Newspaper article entitled

“Environmentalists suing Fisheries

Department – Potentially precedent-setting action alleges failure to

trigger assessment over logging road”

Submitter

173 11/08/1996 n/a Newspaper article entitled “Planned

Logging Road Sparks Legal Challenge”

Submitter
150 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

AUTHOR RECEIVED

No. MM/DD/YY (Last Name, Name) DOCUMENT FROM

174 11/09/1996 Michelin, Lana,

Red Deer Advocate

Newspaper article entitled “Lawsuit

over logging road”

Submitter

175 11/13/1996 Mazza, Brian,

The Mountaineer

Newspaper article entitled “Friends of

West Country file lawsuit over bridges”

Submitter

225 12/02/1996 Linsey, G.A.,

DFO-HMD Winnipeg

Letter to J. Woodward, CCG Sarnia cc.

J. Stein, indicating that due to the fact

that proposed bank armouring will

extend into the river channel, mitigation

measures at the revised Ram River

bridge would remain the same

Canada

227 12/12/1996 CCG-Sarnia DFO-HMD, Transmittal form for

attached plans in respect of an

approved work; file no. 8200-96-6121

Canada

228 12/12/1996 DFO-NWP Approval issued to Sunpine re Ram

River crossing under s. 5(1) of NWPA

Canada

176 01/15/1997 Elgie, Stewart, Sierra

Legal Defence Fund

Letter to Ursula Tauscher, Department

of Justice (Canada), Edmonton

Regional Office, re: Friends of the West

Country v. Minister of Fisheries and

Oceans, et al., Fed. Ct. No. T-1893-96

and T-2457-96

Submitter

229 02/25/1997 Reynolds, N.W.,

Eastern Slopes

Management Inc.

Letter to Ken Brant, Superintendent,

Navigable Water Protection Programs,

CCG Sarnia, advising that construction

of Prairie Creek bridge has been

deferred until summer 1998 (and

therefore beyond the six-month limit set

in approval no. 8200-96-6120)

Canada

230 04/15/1997 Brant, Ken Memorandum to Steve Drummond in

file no. 8200-96-6121 along with

construction schedule for Ram River to

assist in carrying out inspection and

indicating that two-year extension

request for Prairie Creek will be

granted

Canada

231 04/28/1997 Drummond, Steve Memo to Ken Brant indicating that Ram

River bridge interim inspection took

place on 24 April 1997 along with a

copy of notes and photographs taken

Canada

232 05/08/1997 Reynolds, N.W.,

Eastern Slopes

Management Inc.

Memo to John Woodward, CCG

Sarnia, re Ram Crossing access maps

Canada

234 01/05/1998 Woodward, John,

Environmental

Assessment Officer

Note to file re Ram River and Prairie

Creek Bridges indicating that Theresa

Fulton at AEP-Water Resources in Red

Deer required written request for

information in connection with Sunpine

Mainline Road project and indicating

that he faxed her a letter identifying his

information requests

Canada

235 01/06/1998 Woodward, John,

Environmental

Assessment Officer

Note to file re Ram River and Prairie

Creek Bridges indicating that he spoke

to Murray Anderson concerning his

information request to the latter’s office

and re Sunpine’s applications.

Canada
APPENDIX 6 151

AUTHOR RECEIVED

No. MM/DD/YY (Last Name, Name) DOCUMENT FROM

236 07/08/1998 Tauscher, Ursula,

Counsel, Civil Litigation

and Advisory Services,

Department of Justice

Fax to Gary Linsey, DFO Winnipeg

along with Reasons for Order in

connection with Sunpine No. 1 (FCTD

Docket no. T-1893-96, Gibson J.)

Canada

237 08/03/1998 Kostuch, Martha Letter to Hon. David Anderson, Min.

Fisheries and Oceans and Hon. David

Collenette, Min. Transport, re: Reasons

for Order of Gibson J. and asking them

to refer Sunpine project to a panel

review under CEAA

Canada

238 09/17/1998 Branter, Keith, General

Manager, Sunpine

Letter to John Woodward re approvals

and order setting aside approvals

asking that DFO-NWP appeal the order

or alternately advise Sunpine on how to

challenge the order

Canada

239 10/05/1998 Drummond, Steve Fax cover sheet along with copies of

25 photos and 1 info sheet re subject

of photos

Canada

240 10/09/1998 Brant, Ken E.,

Superintendent,

DFO-NWP Sarnia

Letter to Keith Branter, General

Manager, Sunpine, cc. Kirk Lambrecht,

stating that approval for Prairie Creek

crossing had expired and that to

comply with Gibson J.’s order it would

be necessary to determine whether a

revised scope of project should be

considered, and asking that Sunpine

indicate its intention to proceed with

construction

Canada

250 11/24/1998 AEP Notice in Mountaineer entitled “Ram

River Catch and Release Angling

Regulations Proposal” (included in

Item 249)

Canada

251 11/30/1998 Kennedy, Cameron,

Advocate

Newspaper article entitled “Province

wants fishery deemed catch and

release” (included in Item 249)

Canada

241 12/01/1998 Brewin, Kerry, Alberta

Council Manager and

Biologist, Trout

Unlimited Canada

Letter to Ken Brant, DFO-NWP, asking

him to respond to letters from TU dated

9 October 1996 and 15 August 1996

and handwritten note dated 2 December 1998 (attached) asking “John”

to respond to Mr. Brewin as matters

addressed were beyond navigation

Canada

242 12/07/1998 Kostuch, Martha Letter to CCG Sarnia cc. Hon. David

Anderson, Hon. David Collenette,

Hon. Christine Stewart, re 3 August

1998 letter and response to order

of Gibson J.

Canada

243 12/08/1998 Branter, Keith, General

Manager, Sunpine

Fax to Ken Brant responding to 9

October letter and stating that Sunpine

does not intend to construct Prairie

Creek bridge at this time

Canada

244 12/21/1998 Woodward, John Note to file stating that he spoke to Ray

Kerber and Angela Fulton, AEP-Water

Resources, Bob Stone, AEP Env.

Assessment, and Murray Anderson,

AEP-Forest MD about getting info on

Sunpine applications

Canada
152 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

AUTHOR RECEIVED

No. MM/DD/YY (Last Name, Name) DOCUMENT FROM

245 12/22/1998 Woodward, John Note to file re requesting info about

Sunpine project from mayor of RMH

and Manager of Municipal District of

Clearwater

Canada

247 01/27/1999 Anderson, David,

Minister of Fisheries

and Oceans

Letter to Martha Kostuch cc. Hon.

David Collenette and Hon. Christine

Stewart re her letters dated 3 August

1998 and 7 December 1998 re enviro.

review of Sunpine Project and re DFO

appeal of Gibson J. order and

reconsideration of approvals by DFO

and associated info-gathering

Canada

248 01/31/1999 Kostuch, Martha Letter to John Woodward, CCG Sarnia,

asking for copies of documents in

public registry re Sunpine Project and

intentions of CCG respecting

assessment

Canada

252 02/08/1999 Jensen, Dave Letter to Martha Kostuch along with

report entitled “Teetering in imminent

disarray... South Ram River 1998 –

The River That Was? (A Continuum

of 1997...)”

Canada

249 03/01/1999 Kostuch, Martha Letter to John Woodward, CCG Sarnia,

cc. Hon David Anderson, asking for

response to 31 January 1999 letter at

providing additional info re environmental effects of Sunpine project

Canada

253 03/10/1999 Brant, Ken E.,

Superintendent,

DFO-NWP Sarnia

Letter to DFO-HMD Winnipeg

(addressed to “Wayne”) re file no.

8200-96-6121 re departure of John and

recent requests from Martha Kostuch

Canada

254 03/10/1999 Brant, Ken E.,

Superintendent,

DFO-NWP Sarnia

Letter to Sunpine c/o Agra re:

departure of John Woodward and

replacement by Gary Linsey

Canada

255 03/10/1999 Irmen, Brian, Manager,

Municipal District of

Clearwater

Letter to John Woodward, CCG-Sarnia

along with copies documents and

request for reimbursement

Canada

270 03/31/1999 Stein, J.N., Manager,

DFO-HMD

Letter to Martha Kostuch, cc. G. Linsey,

D. Robinson, K. Brant re 31 January

1999 letter and outlining actions taken

to re-assess Ram River project

Canada

271 04/05/1999 Reynolds, N.W.,

Eastern Slopes

Management Inc.

Memo to G. Linsey along with notice/

application to AEP Water Resources,

Parkland Region, for carrying out

Ram River work

Canada

246 05/01/1999 Woodward, John,

DFO-HMD

Fax to Angela Fulton, AEP formally

requesting all info held on Sunpine

project

Canada

272 05/12/1999 n/a Letter to Jeff Stein, DFO-HMD, asking

for strict enforcement of catch and

release regulations against Sunpine

Canada
APPENDIX 6 153

AUTHOR RECEIVED

No. MM/DD/YY (Last Name, Name) DOCUMENT FROM

273 05/22/1999 n/a Letter to Jeff Stein, DFO-HMD,

expressing opposition to Sunpine

bridge proposal

Canada

283 05/28/1999 Brewin, Kerry, Alberta

Council Manager and

Biologist, Trout

Unlimited Canada

Letter to Ken Brant, Regional

Superintendent, CCG Sarnia, cc.

Hon. David Anderson, Alta Council

representatives, TUC Chapter

Presidents in Alta, re failure by CCG to

reply to info request re CCG decision

Canada

274 05/31/1999 n/a Submission under CEAA re Sunpine

Ram River Bridge re-assessment

Canada

275 06/10/1999 Mayor, RMH Letter to Jeff Stein, DFO-HMD stating

that the town of RMH endorses the

building of the mainline road based on

tourism, tax, and job considerations

Canada

276 06/12/1999 Grier, Tim E-mail to Martha Kostuch re e-mail to J.

Stein re re-assessment of Mainline

Road and Ram River crossing

Canada

287 03/00/2000 n/a Sunpine Forest Products Ram River

Bridge Project Description

Canada

277 11/07/2000 Linsey, G.A.,

DFO-HMD Winnipeg

Letter to (name removed) cc. D.

Robinson, J. Stein, C. Stoneman re:

response to letter dated 4 July 2000

and providing info on scoping and

assessment of cumulative effects, and

referencing 14 April 2000 Project

Description

Canada

278 05/07/2001 n/a Letter to Public Registry Officer,

DFO-HMD Winnipeg, expressing

concern that describing the project as

“Ram River Bridge” is misleading to the

public

Canada

280 05/14/2001 n/a Submisssion commenting on Ram

River CEAA screening report

Canada

281 06/04/2001 Burcombe, Jean,

Mouvement au

Courant

Submission re comments on Sunpine

Ram River Bridge Project Screening

Report

Canada

282 06/12/2001 Brewin, Kerry, Alberta

Council Manager and

Biologist, Trout

Unlimited Canada

Letter to Mary Vincent, DFO Public

Registry Officer, cc. Tom Daniels,

Sunpine, Christina Stoneman, DFO re

comments on Ram River Bridge

screening report

Canada

286 09/00/2001 DFO-HMD Sunpine Forest Products Ram River

Bridge CEAA Screening Report

Canada

285 03/04/2002 DFO-Habitat

Management & Environmental Science

HRTS Public Registry Report, FEAI No.

20308, Sunpine Forest Products Ltd.

Ram River Bridge Crossing (17 pp.)

Canada

23 Undated Klineck, Jennifer,

Northern Alberta

Wilderness

Association

Written submission regarding

application of CEAA to Sunpine

project (in Item 12)

Submitter

24 Undated Ritchie, Denise Submission to CCG re assessment of

Sunpine’s Mainline Road (in Item 12)

Submitter
154 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION

AUTHOR RECEIVED

No. MM/DD/YY (Last Name, Name) DOCUMENT FROM

26 Undated Grier, Tim Outline for Oral Presentation (in Item

12)

Submitter

27 Undated Brahen, Joe & Evelyn

Brahen

Submission re need for EIA on

proposed Sunpine Mainline Road

(in Item 12)

Submitter

28 Undated Collins, Dell & Henry

Collins

Statement of Concern re Sunpine

Forest Products proposed new

Mainline Road permitting unlimited

access to the West Country of West

Central Alberta (in Item 12)

Submitter

29 Undated Broder, D. Statement demanding environmental

assessment of Sunpine Mainline Road

proposal (in Item 12)

Submitter

30 Undated Haupt, Darren Statement of concern re scope of

assessment of Sunpine Mainline Road

(in Item 12)

Submitter

48 Undated Kostuch, Martha,

Friends of the West

Country

“Action Alert – Sunpine’s Proposed

New Road”

Submitter

55 Undated Kostuch, Martha Fax memo to Vivian Pharis and

Madeline Oldershaw re Action Alert on

Sunpine Road, draft letter, maps,

background information, letters to and

from B. Tobin and a media release

Submitter

56 Undated Kostuch, Martha Draft letter to Brian Tobin, Minister of

Fisheries and Oceans, cc. Hon Sheila

Copps, Minister of the Environment re

impacts of proposed Sunpine road and

asking for environmental assessment

review panel

Submitter

59 Undated Mussell, Dave,

Pembina Institute

Note to Martha Kostuch re letter to

Copps/Tobin and asking for input on

letter to Lund/Klein

Submitter

94 Undated Kennedy, Larry,

Chairman, Forest

Advisory Committee

Signature page of letter resembling

Item 90, above, faxed to Laurie Drolet

on 2 January 1996.

Submitter

95 Undated Kennedy, Larry,

Chairman, Forest

Advisory Committee

Signature page of letter resembling

Item 90, above, faxed to Martha

Kostuch on 5 January 1996.

Submitter

96 Undated Haupt, Steven,

President, Friends of

the West Country

Letter to Mr. Brian Tobin and Ms.

Sheila Copps, cc. Ty Lund and Larry

Kennedy, stating that Larry Kennedy

letter to Tobin and Copps on behalf of

FAC was grossly misleading

Submitter

145 Undated n/a “Action Alert – Environmental

Assessment of Sunpine’s Mainline

Road – Meeting with the Canadian

Coast Guard – 1-5 P.M., July 30, 1996,

Red Deer”

Submitter
APPENDIX 6 155

AUTHOR RECEIVED

No. MM/DD/YY (Last Name, Name) DOCUMENT FROM

147 Undated Neuman, Teresa E.,

Citizens Action Group

on the Environment

(CAGE)

Red Deer and District Museum and

Archives Facility Booking Form

indicating rental date 30 July, group

name Friends of the West Country,

contact person Martha Kostuch and

amount due $48.15, paid 8 August

1996 by cheques no. 128.

Submitter

150 Undated Kostuch, Martha “Written Presentations” –

List of names

Submitter

226 Undated CCG NWPA Approval; file no. 8200-96-6121

re Sunpine Ram River crossing, listing

five conditions and nine mitigation

measures

Canada

256 Undated Sunpine Forest

Advisory Committee

Notice of Workshop on the Sunpine

Strachan Area Road Network to be

held 30 March 1995 along with copy of

public workshop information package

Canada

258 Undated Sunpine Forest

Products Ltd.

Plan for Public Input into Forest

Management of the FMA Area

(included in Item 256)

Canada

279 Undated n/a Letter to Public Registry Officer,

DFO-HMD Winnipeg, stating that the

Sunpine project should be assessed in

relation to compounding effects of all

industry activity in the region and that

scope of assessment should take into

account lack of provincial legislation

to restrict access to remote areas

Canada

APPENDIX 7

Photos

PHOTOS

Photo No. 1: Entrance to Mainline Road off Route 752

(5 November 2002)

Photo No. 2: Mainline Road (5 November 2002)

APPENDIX 7 159
Photo No. 3: Approach to stream crossing, Mainline Road

(5 November 2002)

Photo No. 4: Ram River Bridge on Mainline Road (5 November 2002)

160 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION
Appendix 8

Acronyms and Defined Terms

Acronyms

AEP Alberta Environmental Protection

CCG Canadian Coast Guard

CEAA Canadian Environmental Assessment Act (Canada)

CEC Commission for Environmental Cooperation

DFO Department of Fisheries and Oceans (Canada)

EARP Environmental Assessment and Review Process (Canada)

FAC Forest Advisory Committee

FMA Forest Management Agreement

FWS Fish and Wildlife Service (Alberta)

HADD Harmful Alteration, Disruption or Destruction (of fish habitat

in violation of Fisheries Act s. 35(1))

HMD DFO Habitat Management Division

LFS Land and Forest Service (Alberta)

LOC License of Occupation

MD Municipal District of Clearwater (Alberta)

MFO Minister of Fisheries and Oceans (Canada)

MLR Mainline Road (see also Sunpine Project)

NFR North Fork Road

NWPA Navigable Waters Protection Act (Canada)

NAAEC North American Agreement on Environmental Cooperation

RA Responsible Authority—Federal department responsible for

conducting environmental assessment under CEAA

RMH Rocky Mountain House, Alberta

Defined Terms

Alberta Case Study “Alberta Case Study—Sunpine Project” in

CEAA Review—Provincial/Territorial Input,

Appendix 1 (Alberta)

Article 15(1) Notification SEM-97-006 (Oldman River II) Article 15(1)

Notification (19 July 1999)

CEAA Guide CEAA Guide—Applying the Canadian

Environmental Assessment Act for the Fish Habitat

Management Program (2002) (DFO)

APPENDIX 8 163
Compliance and

Enforcement Policy July 2001 DFO Fisheries Act Habitat Protection

and Pollution Prevention Provisions

Compliance and Enforcement Policy

DFO 22 January 2003

Reply Information provided by DFO to the

Secretariat in response to the Secretariat’s

10 September 2002 Follow-Up Information

Request (Appendix 5)

Directive Directive on the Issuance of s. 35(2)

Authorizations (DFO)

EARP Order Environmental Assessment and Review Process

Guidelines Order (1984) (Canada)

FMA Area Geographic area covered by Sunpine’s FMA

Ground Rules Timber Harvest Planning and Operating

Ground Rules negotiated by Sunpine and

AEP in 1993

Habitat Policy Policy for the Management of Fish Habitat (1986)

(DFO)

Pisces Pisces Environmental Consulting Services Ltd.

response Canada’s response to the submission pursuant

to Art. 14(3) of the NAAEC

Secretariat Secretariat of the CEC

Submission Submission 97-006 (Oldman River II) filed

by Friends of the Oldman River with the

Secretariat on 4 October 1997

Sunpine Sunpine Forest Products Ltd.

Sunpine Project 40-km, permanent log haul road connecting

Route 752 and the North Fork Road in

Sunpine’s FMA area (see also MLR)

164 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION
ATTACHMENT 1

Council Resolution 03-13

7 August 2003

COUNCIL RESOLUTION 03-13

Instruction to the Secretariat of the Commission for Environmental

Cooperation to make public the Factual Record for Submission

SEM-97-006 (Oldman River II)

THE COUNCIL:

SUPPORTIVE of the process provided for in Articles 14 and 15 of the

North American Agreement on Environmental Cooperation (NAAEC) regarding submissions on enforcement matters and the preparation of factual

records;

HAVING RECEIVED the final factual record for Submission

SEM-97-006;

NOTING that pursuant to Article 15(7) of the NAAEC, the Council is

called upon to decide whether to make the factual record publicly

available; and

AFFIRMING its commitment to a timely and transparent process;

HEREBY DECIDES:

TO MAKE PUBLIC and post on the registry the final factual record for

Submission SEM-97-006; and

TO ATTACH to the final factual record comments provided by the

Parties to the Secretariat on the draft factual record.

APPROVED BY THE COUNCIL:

____________________________________

Judith E. Ayres

Government of the United States of America

____________________________________

Olga Ojeda Cárdenas

Government of the United Mexican States

____________________________________

Norine Smith

Government of Canada

COUNCIL RESOLUTION 03-13 167

ATTACHMENT 2

Comments of Canada

Ottawa ON K1A 0H3

5 June 2003

Mr. Victor Shantora

Acting Executive Director

Secretariat

Commission for Environmental Cooperation

393 St. Jacques Street West, Suite 200

Montréal QC H2Y 1N9

Dear Mr. Shantora:

Further to Article 15(5) of the North American Agreement on Environmental

Cooperation (NAAEC), the Canadian government has reviewed the draft

Factual Record in relation to Submission on Enforcement Matters 97-006

(the “Oldman River II” submission) with great interest.

In order to assist the Secretariat in the development of the final Factual

Record for this submission, I would like to provide Canada’s comments,

which you will find attached.

Canada appreciates the extremely thorough and complete draft document prepared for this submission. As you know, Canada is of the view

that the purpose of a Factual Record is for the Secretariat to prepare an

objective, independent presentation of the facts to allow the reader of the

Factual Record to draw their own conclusions with respect to the alleged

failure of a Party to effectively enforce its environmental law.

In addition to the attached comments I would like to note what appear to

be fundamental misunderstandings which are central to the enforcement of the Fisheries Act, and will need to be corrected throughout the

document:

• with respect to the Harmful Alteration, Disruption or Destruction

(of fish habitat in violation of Fisheries Act s. 35(1)) (HADD):

• There is a difference between issuing HADD authorizations and

the investigation and assessment of whether an unauthorized

HADD has occurred. Solely the Federal Minister of Fisheries

and Oceans may issue a HADD authorization. Those designated as Fisheries Officers may investigate and assess whether an

unauthorized HADD has occurred.

COMMENTS OF CANADA 171
• Alberta does not have, and has never had, any authority under

the Fisheries Act for the administration or issuance of HADD

authorizations (e.g. Section 1, Paragraph 3; Section 3, Paragraph

4; Section 5.6, Paragraph 1; Section 5.8, Paragraph 6; etc.) That

responsibility, under s. 35 of the Fisheries Act, rests solely with

DFO.

• with respect to violations of the Fisheries Act in the Sunpine case:

• Canada would like to reiterate that neither DFO nor Alberta

Environmental Protection found there to be any violations of

the Fisheries Act in the Sunpine case. Therefore, there was no

reason or basis for any enforcement action under the Fisheries

Act. Despite this fact, throughout the document, the reader is

led to believe that a violation of the Fisheries Act occurred.

Because the draft Factual Record improperly and repeatedly

implies such a violation, Canada asks the Secretariat to review

the document in its entirety to ensure that the reader is not unintentionally misled.

• with respect to the “Habitat Policy” and to the “Protection Guidelines”:

• In several sections of the draft Factual Record (e.g. Section 1,

Paragraph 8; Section 5.3.2, Paragraph 1; Section 5.8, Paragraph

3; Section 5.8, Paragraph 5) the Secretariat has incorrectly attributed force of law to the “Habitat Policy” and to the “Protection

Guidelines”. These documents do not have force of law; they

serve for guidance purposes only. Therefore, we request that

the draft Factual Record be reviewed to reflect that proponents

are not bound by a particular course of action under the “Habitat Policy” or the “Protection Guidelines”.

Regarding Canada’s co-operation in the development of this Factual

Record, the Secretariat appears to suggest, in Section 5.1, Paragraph 6;

Section 5.3.1.1, Paragraph 2; Section 5.7, Paragraph 18; Section 5.8, Paragraphs 6, 10, 13 and 21, for example, that Canada has not been forthcoming, open or fully co-operative in providing information to the

Secretariat. Specifically, in Section 5.1, the Secretariat states that Canada

refused to organize a meeting between government officials and the

Secretariat. Canada would like to remind the Secretariat that a meeting

could have been held, if the Secretariat — once it reviewed Canada’s

written responses to the list of follow-up questions provided to Canada

on September 10, 2003 — felt a need for further discussions. However,

the Secretariat did not request a follow-up meeting. Canada has fully

172 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION
disclosed all requested and available information in as timely a manner

as possible. Therefore, we request that the Secretariat review the draft

Factual Record to remove any unintentional negativity with respect to

how Canada conducted itself in providing information for this Factual

Record.

Canada welcomes a meeting with the Secretariat to discuss how

Canada might better help the Secretariat in obtaining information for the

preparation of Factual Records.

Similar to the “BC Logging” draft Factual Record, in many Sections

of the “Oldman River II” draft Factual Record, the Secretariat appears to

use language that draws conclusions and provides commentary. In

Canada’s view, this is beyond the Secretariat’s mandate to set out facts

objectively and impartially. Examples of this include Section 5.2.2, Paragraphs 8 and the last Paragraph; Section 5.5, last Paragraph; Sections 5.6,

Paragraph 8; Section 5.8, Paragraphs 5 and 7; and Section 6, Paragraphs 2

and 3. The attached specific comments note each time this type of language appears. We ask the Secretariat to ensure that language used in

the setting out of facts is as impartial as possible.

As a general practice, Canada requests that in this, and future Factual Records, where an individual is referred to, reference should be to

the title or position of the individual rather than the name. Canada

would be pleased to provide additional titles, if required.

In order to facilitate our review of the final Factual Record and

increase the timeliness of making a decision on publication, it would be

appreciated if the Secretariat could provide Canada with an electronic

version of the final Factual Record in “revision mode”.

Canada notes that, as a matter of procedure, comments of a Party

are not to be made public unless and until Council votes to make the

final Factual Record publicly available pursuant to Article 15(7) of the

NAAEC.

Yours sincerely,

Norine Smith

Assistant Deputy Minister

Policy and Communications

c.c.: Ms. Judith E. Ayres

Ms. Olga Ojeda

Mr. Geoffrey Garver

COMMENTS OF CANADA 173
General Comments

With respect to Section 1 (the Executive Summary), Canada recognizes

that it is not the Secretariat’s practice to cite references in this Section.

However, in order to ensure that the Executive Summary is as precise,

complete and well documented as possible, we suggest that the Secretariat include references where appropriate. This will help the reader

cross reference statements made in the Executive Summary with the

relevant references in the rest of the document. Further, because some

references include the date, some include the sender, and some include

the addressee, the Secretariat should ensure that the format used for

references throughout the document is uniform.

With respect to Section 4 entitled “Scope of the Factual Record”, Canada

considers the discussions surrounding the Secretariat’s view of the

Council’s instruction regarding the scope of the Factual Record to be

excessive. This information is already known by the public given the

fact that the Secretariat’s determination and the Council Resolution are

posted on the CEC website. Therefore, we suggest that the Secretariat

limit this discussion to the information that will be the subject of the Factual Record. Further, the scope of the Factual Record, as set out in Council Resolution 01-08, is limited to whether Canada is failing to effectively

enforce provisions of CEAA and the Fisheries Act. As such, discussion of

Alberta’s approval process or the enforcement of provincial laws should

only be included when relevant to the issue in question. Further, the

Secretariat is correct in clarifying that Section 5.6 should not evaluate

Alberta’s approval process or the enforcement of provincial laws. This is

the beyond the scope of the Factual Record (similarly, an “evaluation” of

Canada’s enforcement practices is also beyond the scope).

Canada recognizes that this is an extremely complex submission. For

this reason, it is essential that the Secretariat ensure that the terminology

used throughout the document is clear and well defined. For example,

when the term “Sunpine Project” is used, sometimes it is referring to the

bridge, sometimes the road, sometimes the area around the project.

Because there are different jurisdictions for different parts of the project

it is extremely important that the terminology be very detailed. Therefore, the Section entitled “Defined Terms” on page iii will need to be

reviewed to ensure detailed definitions are used.

The Secretariat should ensure that all references to the CEAA threshold

refer to “significant adverse environmental effects” rather than to other

thresholds such as “significant environmental impacts” (e.g. Section 5.4)

174 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION
in order to accurately follow the language used in CEAA. It is also

important that the Secretariat appropriately qualify the type of impact

that is required in order for a HADD to have occurred. When referring to

an impact of effect on fish habitat, the draft Factual Record should

include the word “adversely” after the word “impact” or “effect”.

In several Sections of the draft Factual Record (e.g. Section 1, Paragraph

9; Section 5.8, Paragraph 26; Section 6, Paragraph 3; Section 6, Paragraph

4,) the Secretariat uses the term “follow-up monitoring”. This is inaccurate. There is no obligation placed on either the Government of Canada

or the Alberta Government to conduct “follow-up” monitoring in the

absence of any indication that a HADD would occur. As such, the term

“follow-up” preceding the word “monitoring” should be deleted

throughout the entire draft Factual Record as well as any indication that

such an obligation exists.

With respect to s. 37(2) of the Fisheries Act, absent regulations, the Governor in Council (i.e. Cabinet) which is the regulation-making body under

the Fisheries Act, must approve the order made by the Minister of Fisheries and Oceans requesting modifications to plans or restricting of work

or undertaking. In several Sections of the draft Factual Record (e.g. Section 1; Section 5.2.2, Paragraph 10; Section 6, Paragraph 1) changes will

be necessary to reflect this information correctly.

Finally, the draft Factual Record acknowledges that no formal agreement existed between DFO and the province of Alberta with respect to

fish habitat. It is important to recognize that the absence of a formal

agreement did not affect the ability of DFO officials to evaluate/prevent

any potential and actual project impacts pursuant to the application of

the Fisheries Act. In fact, DFO and Alberta enjoyed a positive and productive working relationship in the review of the Sunpine Project. In

Canada’s view, the Secretariat should include this information where

appropriate (e.g. Section 5.7, Paragraph 8 and 10).

Canada would like to inform the Secretariat that DFO and the province

of Alberta are currently developing working agreements to enhance

internal and external communications between both departments, the

stakeholders and the general public. Since the completion of the Sunpine Project in 1997, an “Interim Protocol on Delivery of an Enforcement

and Compliance Program for the Habitat Protection Provisions of the

Fisheries Act (Canada)” was signed and is attached. The Secretariat may

wish to use this document in the finalization of this Factual Record.

COMMENTS OF CANADA 175
Specific Comments

Section 1 Executive Summary

Paragraph 3, sentence 1 and 2: In order to ensure an accurate summary

of Canada’s response to the submission, we request that the paragraph

read:

“On 13 July 1998, Canada responded, asserting that compliance with the

Fisheries Act habitat protection provisions could be is achieved assured,

among others, on a preventative basis through voluntary, routine communications between DFO and project proponents aimed at prevention of

the potential contravention of the law. Canada reminds claims that this

approach is consistent with the Fisheries Act, which does not require DFO

to review project information or issue Fisheries Act orders and authorizations.

Paragraph 3, sentence 3: In light of the misunderstanding noted in the

cover letter, we request that the following changes be made:

Canada asserts that DFO has designated some provincial fish and wildlife

employees in all provinces as fishery officers under the Fisheries Act. It

should be noted, however, that the specific DFO and Alberta biologists

referenced in this matter were not designated as Fisheries Officers nor did

they have responsibility for enforcement matters. Canada states that in

many cases, actions that violate the Fisheries Act are also offences under the

provincial laws and are prosecuted under these provincial laws.”

Paragraph 5, sentence 2: In order to accurately reflect the fact that no

regulations currently exit, the Secretariat should include the following

information:

“S. 37(1) requires proponents of projects that are likely to result in a HADD

to provide information to MFO, in the manner and circumstances prescribed by regulations as required made under the Fisheries Act (there are no

regulations at this time) or on the request of MFO. Under s. 37(2), the MFO

may, by order, subject to regulations made under the Fisheries Act, or, if

there are no such regulations in force (which is the case at this time) with

the approval of the Governor in Council, require changes to plans for a

work or undertaking or to an existing work or undertaking, and may restrict its operation. Under the Statutory Instruments Act, MFO’s orders are

regulations for the purposes of the regulatory process.”

A project proponent is not required under the Fisheries Act to obtain a

s. 35(2) authorization. The project proponent risks being charged under

176 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION
s. 35(1) if the project, carried on without the authorization, were to cause

HADD of fish habitat. Therefore, reference to Fisheries Act regulations

should be deleted.

Paragraph 5, sentence 4: Sections 35(2) and 37(2) of the Fisheries Act

confer a discretionary power on the Minister. Therefore, we request that

the sentence include the underlined text:

“[...] Violation of ss. 35(1), 37(1) or 37(2) is an offense under s. 40 of the Fisheries Act, punishable by fines, or jail time, or both. Before MFO can decide

to issue a s. 35(2) authorization or a s. 37(2) order under the Fisheries Act,

DFO must conduct an environmental assessment of the project under the

CEAA. [...]”

Paragraph 5, sentence 5 and the last sentence: Theses sentences are

incorrect. There is no requirement for DFO to conduct an environmental

assessment under CEAA. These sentences should read:

“[...] Before MFO can issue a s. 35(2) authorization or a s. 37(2) order under

the Fisheries Act, DFO must conduct ensure that an environmental assessment of the project under the CEAA is conducted. [...] The CEAA requires

federal authorities such as DFO to conduct ensure that assessments are

conducted as early as is practicable in the planning stages of a project, and

before irrevocable decisions are made.”

Paragraph 6, sentence 1: The sentence is incorrect. The actual area at the

time was approximately 656,000 ha, or 6560 km2, or slightly over 2500

miles2. The Secretariat should make this correction.

“In July 1992, Sunpine Forest Products Ltd. (“Sunpine”) signed a forest

management agreement (“FMA”) with the Alberta government giving

Sunpine long-term tenure over an area of approximately 656,000 ha, or

6560 km2, or slightly over 2500 miles2 over one thousand square miles of

forest land in the Rocky Mountain foothills of West Central Alberta [...]”

Note that this correction must also be made in Section 5.6, Paragraph 2.

Paragraph 6, sentence 3: To ensure that the reader understands why

DFO was not involved in governing Sunpine’s operations within the

forest management agreement (FMA), the Secretariat should include the

following underlined text:

“[...] DFO, whose constitutional jurisdiction is limited to the matters relating to fisheries was not involved in developing these ground rules. [...]”

COMMENTS OF CANADA 177
Paragraph 6, sentence 6: The beginning of the sentence suggests that the

decision to approve the road should have been based solely on the views

of provincial fisheries staff and that this was a bad decision. This is inaccurate. The sentence should read:

“Despite objections to the Project from provincial fisheries staff, After

weighing all the information, including who recommended recommendations from fisheries management staff requiring Sunpine to use an existing, public road for its log haul to avoid creating new impacts on fish

habitat, the Lands and Forest Service approved the road under Alberta’s

legislation. the province’s forest service approved the proposed road corridor The province’s forest service approved the proposed road corridor

under Alberta’s Resource Road Planning Guidelines in August 1995.”

Paragraph 6, sentence 7: This sentence suggests that DFO’s involvement

should have been mandatory. This is inaccurate. DFO had knowledge

of the project in July 1995 and received information from Sunpine later in

1995. DFO exercised its discretion in deciding what level of involvement

it would have in the project. Therefore, the sentence should be revised to

read:

“[...] With provincial approval and without DFO involvement, Sunpine

built and operated a temporary road within the Mainline Road corridor in

the winter of 1995-96.[...]”

Paragraph 6, sentences 10: In light of the misunderstanding noted in the

cover letter, we request the following revisions to this sentence:

“[...]Provincial fisheries The Alberta fisheries biologists staff principally

involved with the Sunpine Project had appointments as fishery officers

under the in this matter did not hold Fishery Officer designations and

were not responsible for enforcement of the Fisheries Act. The fisheries biologists were responsible for providing Alberta decision-makers with

advice concerning fisheries issues under Alberta legislation. Alberta fisheries biologists were advised by DFO officials on August 3, 1995 of DFO’s

intent to review the proposal pursuant to DFO’s responsibilities under the

Fisheries Act. Under these appointments, they had the power to lay charges for violations of s. 35(1), but could not issue authorizations under s.

35(2). [...]”

Paragraph 6, sentence 11: This sentence suggests that provincial fisheries staff did not take any action. This is inaccurate for two reasons:

• First, fisheries staff provided input regarding fisheries habitat protection to the provincial regulators and provided recommendations to

178 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION
Sunpine Forest Products, including that construction of crossings

involving any disturbance of fish habitat could place Sunpine in violation of the Fisheries Act.

• Second, the passage incorrectly equates fisheries management advice

critical of a road alignment with violations of the Fisheries Act. This

sentence also implies there were violations of the Fisheries Act upon

which Alberta did not act. This is incorrect. One complaint was received from Dr. Kostuch, regarding a hole cut in the ice of the Ram River

during the winter of the year that bridge crossing was constructed.

Fisheries and Enforcement staff investigated the complaint and

determined there was no evidence of a violation. These facts were

presented to Dr. Kostuch in a meeting to explain the results of the

investigation. There were no other complaints that Fisheries Management staff were aware of in relation to the construction project that

required enforcement action.

Therefore, the sentence should read:

“[...] Despite their concerns regarding the project impacts on fish habitat, p

Provincial fisheries staff investigated one complaint, but did not take any

other action, in their capacity as fishery officers guardians under the Fisheries Act to enforce s. 35(1) of the Fisheries Act against Sunpine in connection

with the temporary road or the Mainline Road because no other action was

required.”

Paragraph 7, sentence 3: This sentence is inaccurate. As such, the Secretariat should add the following underlined language and replace the

stricken text with the language used in the Habitat Policy:

“The Habitat Policy states that DFO does not apply actively the Habitat

Policy in those provinces where the province manages the fishery with the

capability to manage fish habitat, including Alberta. The Habitat Policy

states, on page 8 that DFO will have an administrative agreement or protocol with such provinces to ensure compliance with the Habitat Policy “the

provincial agencies are being encouraged to apply it (the policy) through

bi-lateral administrative agreements and protocols which will also clarify

roles and responsibilities for the respective parties involved” The federal

government had not entered into an administrative agreement with

Alberta and were applying the Habitat Policy at the time of the Sunpine

Project.”

Paragraph 9, sentence 1: This sentence suggests that DFO should have

participated in the selection of the road corridor or road alignment. DFO

COMMENTS OF CANADA 179
was under no obligation to participate. Therefore, the sentence should

read:

“A concerned citizen made DFO aware of the Sunpine Project in June 1995,

two months before the Mainline Road corridor was approved by Alberta’s

forest service. DFO did not participate in the selection of a road corridor or

road alignment for the Sunpine Project in order to evaluate relocation or

redesign options as contemplated by the Habitat Conservation and Protection Guidelines . DFO made an information request to Sunpine regarding the Sunpine Project in August 1995, listing information Sunpine was

required requested to provide to DFO for review.”

Paragraph 9, sentence 4: This sentence suggests that the Minister had an

obligation to apply s. 37(1) of the Fisheries Act. This is inaccurate. Section

37 of the Fisheries Act confers a discretionary power on the Minister. Therefore, we request that the sentence include the underlined text:

“According to DFO, the Minister decided that this information request

would was not be made pursuant to the information gathering powers

given to the MFO by s. 37(1) of the Fisheries Act. Following Sunpine’s

reply, DFO made another detailed information request. [...]”

Paragraph 9, last sentence: This sentence is inconsistent with Canada’s

July 1998 response to the submission. LFS, in its role as land manager,

did conduct monitoring of the right-of-way, and direction was provided

to Sunpine to submit an action plan to correct erosion problems. Therefore, we request that the sentence be reviewed.

“[...] Neither DFO nor Alberta have conducted follow up monitoring—or

required Sunpine to submit results of follow up monitoring—to verify

that sediment run-off from the road surface is not causing a HADD of fish

habitat in Sunpine’s FMA area in violation of the Fisheries Act. Alberta’s

regulatory process did not require monitoring for HADD. However,

Alberta staff did observe the road and bridge crossing during and following construction and concluded that no violation of the Fisheries Act had

occurred.”

Paragraph 10, sentence 4: The chronology is inaccurate. The transfer of

responsibility of CCG from the federal Ministry of Transport to DFO

occurred in April 1995, prior to the December 1995 Sunpine application

to CCG. As a result, the sentence should read:

“In December 1995, Sunpine applied to the Canadian Coast Guard

(“CCG”) in Vancouver for permits under the federal Navigable Waters

Protection Act (“NWPA”) for two bridges it proposed [...] In the following

180 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION
months, Rresponsibility for CCG was transferred had been transferred in

April of that yearfrom the deferral Ministry of Transport to DFO, and [...]”

Last Paragraph: The draft Factual Record refers to the judicial proceedings surrounding the Sunpine case. In order to give a complete factual

summary of the course of the judicial proceedings, we ask that the Secretariat note that the decision rendered by the Federal Court, which recognized the federal government ‘s discretion to determine the scope of a

project, was appealed by the submitters to the Supreme Court of

Canada. However, the leave for appeal was refused. In order for the

public to have a complete overview of these judicial proceedings, it is

essential that in this Section, and in Section 5.8, Paragraph 28, the Secretariat include the underlined text and remove the stricken text,:

“On appeal, the Federal Court of Appeal reversed the Trial Division’s

decision on the issue of project scoping. The Federal Court of Appeal held

that CCG has discretion under the CEAA to determine the scope of a project for the purpose of assessing its environmental impacts, and that this

discretion extends to a determination of the scope of the environmental

assessment. Therefore, CCG was at liberty exercised its discretion properly by not to includinge an assessment of the environmental impacts of

the Mainline Road and Sunpine’s forestry operations within the scope of

its assessment of the bridges. The Federal Court of Appeal also ruled that

CCG had erred in its interpretation of the CEAA when it decided that it

could not consider cumulative environmental effects from activities outside of the scope of the project, or outside of federal jurisdiction, in its

cumulative environmental effects assessment under the CEAA. Finally,

Tthe Federal Court of Appeal held that locating the public registry of

documents related to the screenings in Sarnia, Ontario, and requiring the

public to file requests under the Access to Information Act in order to obtain

copies of those documents, was patently unreasonable. In 2001, DFO

conducted a second CEAA screening of the Ram River bridge (built in

1997) and again concluded that the bridge was not likely to cause significant adverse environmental effects. Finally, the submitters also requested

a leave to appeal of the Federal Court’s decision to the Supreme Court of

Canada. This request was refused by the Supreme Court of Canada.”

Last Paragraph, last sentence: This sentence suggests that the second

screening is related to the Court’s decision. This is inaccurate. The

second screening was not completed as a result of the Court case but was

completed on DFO’s initiative afterthe Court case was concluded. Therefore, the Secretariat should provide this information in a separate

paragraph:

COMMENTS OF CANADA 181
“In 2001, DFO conducted a second CEAA screening of the Ram River

bridge (built in 1997) and again concluded that the bridge was not likely to

cause significant adverse environmental effects.”

Section 3 Summary of Canada’s response

Paragraph 4, sentence 1: In order to be completely accurate, we request

that the following modifications be made:

“[...] Regarding enforcement, Canada states that DFO has identified provincial personnel responsible for the implementation of the habitat provisions and enforcement of the Fisheries Act for every province in Canada,

including an estimated 650 provincial conservation and fish and wildlife

officers in Canada’s four inland provinces [...]”

Section 5.2.1 Introduction

Paragraph 2: The statement referring to navigable waters is correct but

only with respect to matters relating to navigation. It is not accurate with

respect to fish. The discussion of fishing rights is not correct and not relevant to the scope of the Factual Record as directed by the Council. Therefore, the Secretariat should make the following changes:

“The Parliament of Canada has constitutional authority to enact laws for

the protection of fish and fish habitat in Canada, and for the prior environmental assessment of projects that are likely to cause the harmful alteration, disruption or destruction (known as a “HADD”) of fish habitat. This

authority extends to all fish habitat in Canada, regardless of who owns the

fish habitat and/or the fish. In Alberta, subject to Aboriginal and treaty

rights, the province owns the fishing rights on provincial Crown lands,

except in navigable waters, where there is a public right to fish. In navigable waters, the federal Parliament has exclusive legislative jurisdiction.

In non-navigable waters, bBecause of the province’s right of ownership in

the fisheries, legislative jurisdiction for the protection of fish and fish habitat is concurrent between the federal and provincial governments. However, in case of conflict between a provincial and a federal law, the federal

law has paramountcy priority. “

Paragraph 3, sentence 1: The process described in this paragraph is inaccurate. As such, we request the following changes.

“In the forestry context, to the extent that if Fisheries and Oceans Canada

(“DFO”) considers that a proposed forestry operation is likely to cause a

HADD of fish habitat, the Fisheries Act may apply requiring a Fisheries Act

authorisation, the federal government has jurisdiction to conduct an environmental impact assessment of the proposed forestry operation (and/or

182 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION
related works, such as logging roads, bridges, and culverts) to determine

whether it is likely to cause unjustifiable, adverse environmental impact.

If the project is likely to cause unjustifiable, environmental impacts, the

federal government cannot take any action under federal law, such as

issuing an authorisation under the Fisheries Act, that would permit the

project to be carried out, in whole or in part. In effect, this means that to

avoid contravention of 35(1) of the Fisheries Act, a project proponent

would require an authorization under section 35(2) of the Fisheries Act,

which is a trigger for CEAA, the federal government has the power to stop

forestry operation from proceeding, even if the operation is located on

provincial Crown land and the province has issued all necessary provincial permits.”

Furthermore, with respect to footnote 30, the reference to land clearing

activities carried out on federal lands used for military training is

beyond the scope of the Factual Record and should be removed.

Paragraph 5, last sentence: To ensure accuracy, the Secretariat should

add the underlined sentence:

“The federal government has authority to legislate on all subjects not specifically assigned to the provinces by the Constitution. For example, the

Supreme Court of Canada has affirmed that the environment is an area of

shared jurisdiction between the provinces and the federal government.”

Paragraph 6, sentence 2: This sentence is accurate. The sentence should

read:

“[...] A provision in law that directly or indirectly seeks to regulate a matter within the legislative jurisdiction of the other order of government can

be found to be unconstitutional or ultra vires and struck down by the

courts, but generally only to the extent that the federal and provincial laws

are in actual conflict.”

Paragraph 11: We request that the paragraph be deleted as it is not relevant to the direction provided by the Council for the preparation of the

Factual Record: There is no suggestion that the provincial forest development law conflicts with the Fisheries Act.

Section 5.2.2 The Habitat Protection Provisions of the Fisheries

Act

Paragraph 8, sentence 2: For factual accuracy the sentence should be

modified as follows:

“The framework is a superstructure that leaves open the possibility of

three types of implementation scenarios; [...]

COMMENTS OF CANADA 183
Paragraph 9: The matter of identifying circumstances in which a project

is likely to adversely affect fish habitat is outside the regulation-making

powers of the government. As such, the following changes should be

made which are consistent with the language used in the act:

“In the regulations scenario, the federal government would make adopt

Fisheries Act regulations telling proponents of projects that are likely to

adversely affect fish habitat the manner and circumstances in which what

kind of information they must submit information to DFO for review

under s. 37(1); identifying the circumstances in which DFO may will issue

an order under s. 37(2); and setting out the kinds of terms such orders can

contain. The regulations scenario would also include regulations describing how to carry on activities that cause a HADD of fish habitat in such a

way as to comply with s. 35. The federal government did not adopt this

scenario.”

Paragraph 10, sentence 1: This sentence suggests that DFO has an obligation to enforce compliance with the Fisheries Act habitat protection

provisions. This is inaccurate. We request that the sentence read:

“In the other scenario, no regulations are made and the above-noted matters are considered adopted and DFO is responsible for enforcing compliance with the Fisheries Act habitat protection provisions by defining

requirements on a project-by-project basis.”

Paragraph 10, sentence 4: The Secretariat should provide additional

information to clarify this point. As such, the Secretariat should include

the underlined text:

“For projects that do or will cause a HADD of fish habitat, in the absence of

Fisheries Actregulations,Iit is not an offense for a project proponent to proceed without an authorization under s. 35(2). An authorization, similarly

to regulations – if they were made in respect of s.35(2) – shields the project

proponent from a possible prosecution under s. 35(1) if a HADD were to

occur. But the occurrence of HADD must be proved beyond a reasonable

doubt for the prosecution to succeed.”

Paragraph 10, sentence 5: In order to minimize unnecessary commentary, the sentence should be modified as follows:

“Under the Act, DFO involvement is “after the fact”: if once an unauthorized HADD of fish habitat has potentially occurred, DFO can recommend

laying charges against the project proponent, provided that DFO becomes

aware of the existence of the project.[...]”

184 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION
Section 5.3.1 The Habitat Policy

Paragraph 2, last sentence: This sentence is inaccurate. The DFO policy

does not impose an obligation. It does not have force of law. The sentence should read:

“[...] DFO’s policy is to authorize a HADD of fish habitat under s. 35(2) if

the no net loss guiding principle can be respected. If it cannot, DFO should

will not, in general, issue a s. 35(2) authorization for a project.”

Section 5.3.1.1 Application of the Habitat Policy in Alberta

Paragraph 2, sentence 1: This sentence suggests that an administrative

agreement did or should have existed, which is not the case. This is inaccurate. We request that the text read:

“The Secretariat requested Canada to provide copies of any Canada

Alberta administrative agreements or protocols of the type referred to

above, but none were provided. There is no Canada-Alberta administrative agreement or protocol respecting the issuance of HADD authorizations.

Section 5.3.2 Fisheries Act Habitat Protection and Pollution

Prevention Provisions Compliance and Enforcement

Policy

Paragraph 1, last sentence: The Secretariat suggests that DFO has an

obligation to apply the “2001 Compliance and Enforcement Policy” to

the Sunpine project, which was completed in 1997. This is inaccurate.

The text should read:

“ The Secretariat has not received any information regarding whether

DFO has been applying the Compliance and Enforcement Policy in

connection with the Sunpine Project since July 2001. “The Compliance

and Enforcement Policy was finalized in July 2001, and published in

November 2001 after going through the Canada Gazette process, and is in

effect nationally.”

Section 5.4 Meaning and Scope of s. 5(1)(d) of the Canadian

Environmental Assessment Act (CEAA) and Schedule

1 Part I Item 6 of the Law List Regulations made

pursuant to paragraphs 59(f) and (g) of the CEAA

Paragraph 4, sentence 1: The definition of a “project”, is inaccurate. A

“project” is not a physical work, it is an undertaking in respect of a physical work. As such, the sentence should read:

COMMENTS OF CANADA 185
“A project can therefore be a “physical work” or a “physical activity”, A

“project” can therefore be an undertaking in relation to a physical work or

it can be a “physical activity” not relating to a physical work, but in order

to [...]”

Paragraph 5, sentence 1: This sentence is inaccurate. This sentence

should not include physical activities that are not related to a physical

work. Therefore, the sentence should read:

“If a “physical activity” requires an authorization If a “physical activity”

not relating to a physical work requires an authorization under s. 35(2) of

the Fisheries Act, [...]”

Paragraph 7, sentence 1: This sentence is erroneous. The fact that a project is carried out on federal land is not, in and of itself, a CEAA “trigger”.

If a federal project is carried out on federal land, the CEAA “trigger” is

the proponent [s. 5(1)(a)]. However, if a non-federal project is carried out

on federal land, the CEAA “trigger” is either the issuance of an interest in

federal land [5(1)(c)] or the issuance of a licence to use or occupy federal

land [item 8 of Part II of Schedule I to the Law List Regulations —

5(1)(d)]. Therefore, we request that the Secretariat review this paragraph

in light of this clarification.

Paragraph 7 sentence 2: This sentence indicates that the Law List Regulationslist only statutory provisions. This is inaccurate. The Law List Regulations list both statutory and regulatory provisions. Further, the

sentence does not mention that in order for a “trigger” to exist, there

must be a “project”. Therefore, the sentence should read:

“[...] if a statutory provision is listed in the if a provision of a statute or a

regulation is listed in the Schedule to the CEAALaw List Regulations, an RA

cannot act under that provision in respect of a project without triggering

an environmental assessment requirement under the CEAA. [...]”

Paragraph 7, last sentence: This sentence overlooks the fact that a project can be immediately subject to a review panel or mediator under s. 21.

In addition, this sentence implies that a determination of significant

adverse environmental effects is relevant to a screening but that it is not

relevant to a comprehensive study. Finally, the concept of “likelihood”

is missing from this sentence. To be accurate, the sentence should be

removed and replace with the underlined text:

“The issuance of an order under s. 37(2) of the Fisheries Act and the

issuance of an authorization under s. 35(2) of the Fisheries Act are CEAA

186 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION
“triggers,” but only where a “project”—as defined in the CEAA—is involved (see above).”

“It is either automatically:

a) excluded from environmental assessment; or

b) subject to either

i) a comprehensive study, a mediation or a panel review; or

ii) a screening

to determine whether it is likely to cause significant adverse environmental effects.

Paragraph 8, last sentence: This sentence is inaccurate. It does not mention that a project must be sent to a panel if an RA (Responsible Authorities) determines in a screening that the project has significant adverse

environmental effects that are justifiable under the circumstances. Therefore, this sentence should be revised to include this information.

“A screening can lead to a finding of no significant adverse environmental

impacts effects, in which case the RA can proceed to issue the authorization or otherwise act to allow the project to go forward. , or, aA screening

can, on the other hand, determine that either uncertainty public concern,

about possible project impacts, or public concerns, or both,the existence of

significant adverse environmental effects that are justifiable in the circumstances, warrant requires referring the project to a mediator or a

review panel. Finally, a screening can determine that the project is likely

to cause significant adverse environmental effects that are unjustifiable in

the circumstances, in which case, the federal power, duty or function pertaining to the project cannot be exercised.”

This information should also be included in Paragraph 12 of this Section.

Paragraph 9, sentences 2: The Secretariat should not refer to forestry

projects. They are beyond the scope of this Factual Record, which deals

with the project to build a road. The sentence should be removed:

“[...] Forestry projects are not listed in these regulations. [...]

Paragraph 9, sentence 3: This sentence is incorrect. It should read:

“If a project triggers the CEAA (for example, the project requires a s. 35(2)

authorization under the Fisheries Act) but the project is not within the clasCOMMENTS OF CANADA 187
ses of projects that are automatically covered or automatically excluded

from the application of the CEAA, nor within the classes of projects in respect of which a comprehensive study is required, the RA must conduct a

“screening” of the project.”

Paragraph 9, last sentence: The Secretariat should not refer to the Model

Class Screening Report. An instrument developed in 2002 should not be

used to judge an activity in 1995. The Model Class Screening Report for

Prairie Grain Roads came into affect in 2002 and did not exist in 1995.

Therefore, this sentence should be removed:

“[...] The Canadian Environmental Assessment Agency has a Model Class

Screening Report for Prairie Grain Roads, but there are no model class

screening reports for logging roads such as the Sunpine Project.”

Paragraph 11 section (b) of the citation: The words “whether any such

change occurs within or outside Canada” apply equally to paragraphs

(a) and (b) of the definition of “environmental effect” in the CEAA. Therefore, we request that the words be severed from paragraph (b) and

inserted as a “tail” at the bottom of the definition to read:

“[...]

(b) any change to the project that may be caused by the environment whether any such change occurs within or outside Canada.”

Paragraph 12, last sentence: This paragraph seems to be summarizing

the situation in which the Minister may refer a project to a panel review.

Reference is solely made to s. 28 where the Minister refers a project to a

panel review of his or her own volition. To be complete, reference

should also be made to s. 25 where an RA may request the Minister to

refer a project to a panel and to s. 21 where an RA may require the Minister to refer a project to a review panel. We request that this paragraph be

reviewed to include this information.

Paragraph 18, last sentence: This sentence incorrectly indicates that all

records relevant to an EA are to be included in the CEAA public registry.

The sentence should read:

“[...] The CEAA states that for every project subject to assessment under

the act, the RA must establish and operate a public registry containing all ,

subject to certain exceptions, records produced, collected, or submitted

with respect to the environmental assessment of the project in a manner to

ensure convenient public access to the registry.”

188 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION
Paragraph 19, sentence 1: The word “unjustifiable” should be removed

because if significant “unjustifiable” adverse environmental effects are

found to exist, no federal powers contained in a CEAA “trigger” can be

exercised and the RA will not have any obligation to ensure the implementation of mitigation measures. The sentence should read:

“[...] the RA must ensure that any mitigation measures considered appropriate to prevent a project from causing unjustifiable significant adverse

environmental effects are implemented. [...]”

Paragraph 20, sentence 3: This sentence contains items that are listed in

s. 38 that are not part of a follow-up program. Section 38 of the Fisheries

Act is a confusing section since it contains both follow-up and other

items. This confusion is being remedied in Bill C-9. Therefore, the Secretariat should remove this sentence.

[...] These regulations would guide RAs in designing and implementing

programs to follow up on projects. This would include advising the public

of the following:

• the RA’s course of action in relation to a project;

• any mitigation measures to be implemented with respect to the adverse

environmental effects of the project;

• the extent to which the recommendations set out in any report submitted by a mediator or a review panel have been adopted and the reasons

for not having adopted any of those recommendations;

• any follow-up program designed for the project [...]; and

• any results of any follow-up program.

Section 5.5 The CEAA and the Protection of Fish Habitat under

the Fisheries Act

Paragraph 3,sentence 2: This sentence is inaccurate. The Supreme

Court of Canada held, indirectly, in Friends of the Oldman River, that s.

35(2) was outside the ambit of the order. Therefore, the sentence should

read:

“DFO adopted its Habitat Policy two years later, in 1986. The Habitat

Policy does not mention the EARP Order. The Habitat Policy defines

“major” and “minor” projects, and sets out the respective roles of DFO and

project proponents depending on the size of the project.”

COMMENTS OF CANADA 189
Citation under paragraph 3: In order to remain impartial, the emphasis

added in the first paragraph of the citation on “forest harvesting operations” should be removed.

Paragraph 4, sentence 1: This sentence is incorrect. The Habitat Policy

does not assume that a project proponent will be required to submit

information to DFO under s. 37(1). Section 37(1) confers a discretionary

power on the Minister. Therefore, the sentence should be removed.

“For major projects, the Habitat Policy assumes that project proponents

will be required to submit information to DFO under s. 37(1). Under s.

37(1), this requirement can either be stated in a regulation (which to date

does not exist) or it can take the form of an information request from

MFO.”

Paragraph 5, sentence 1: To ensure accuracy, the sentence should read:

“The Courts have said that been asked to consider whetherthe public cannot force DFO to issue s. 37(2) orders or s. 35(2) authorizations, thereby

triggering a requirement for a CEAA screening.[...]

Section 5.6 Planning of the Sunpine Project and Alberta’s

Approval of the Sunpine Project

Paragraph 1: In light of the clarifications provided in the cover letter, we

request the following changes:

“Information is provided below regarding the origin of the Sunpine Project and the process that resulted in provincial approval of the Sunpine

Project. This information is relevant to a consideration of whether DFO

Canada including provincial fisheries staff carrying appointments as fishery officers under the Fisheries Act is failing to effectively enforce the Fisheries Act habitat protection provisions and the CEAA in regard to the

Sunpine Project. No evaluation of Alberta’s enforcement of provincial

laws is intended or implied. The Alberta approval process was not established pursuant to either the Fisheries Act or CEAA and no evaluation of

Alberta’s approval process or the enforcement of provincial laws is within

the scope of this Factual Record.”

Paragraph 3: The Paragraph does not reflect the information provided

in the last sentence of footnote 113. In order to ensure accuracy, the

Secretariat should refer specifically to the decision of the Development

Appeal Board. The sentence should read:

“During a multi stakeholder process used to select a site for Sunpine’s

veneer plant, LFS, the Municipal District of Clearwater (the “MD”), muni190 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION
cipal residents and Sunpine had worked on the assumption that Sunpine

would use existing public roads – in particular, the North Fork Road

(“NFR”) – to deliver lumber from its FMA area to its new plant. When the

Development to Appeal Board Approved the zoning for Sunpine’s plant,

it noted that “evidence was presented that the road system has ample

capacity to accommodate additional traffic”.

Paragraph 4, sentence 1: To ensure accuracy, the Secretariat should specify what “process” is it referring to in this Paragraph (e.g. legislation,

bylaws). Further, the Secretariat should cite the source of this information in a footnote.

“Under the municipal road development process, the cost of any necessary upgrades to public roads required to allow Sunpine to conduct its log

haul would have been borne by Sunpine and the MD, in proportion to the

use made of those roads by Sunpine and area residents. [...]”

Paragraph 4, sentence 2 and 3: These sentences are not consistent with

footnote 114, which refers to a memo by a provincial official, rather than

a document by Sunpine. Further, the memo does not contain references

to the advantages described and attributed to Sunpine. Therefore, the

sentences should be removed.

“[...] According to Sunpine, one advantage of the proposed new, private

road would be to enable all-season delivery of logs to the new plan (as

opposed to winter-only log hauls), thereby ensuring continuous employment in the area. Another would be that the new road would be paid for

entirely by Sunpine (and any other commercial interests wishing to use

the road in the future.. 114”

Paragraph 8, sentence 6: In order to remain impartial, the Secretariat

should not imply that Sunpine had an obligation to accept or act on the

recommendation made in the consultant’s report. The sentence should

read:

“[...] Sunpine did not act on the recommendations contained in disregarded the consultant’s report. [...]”

Paragraph 8, last sentence: The word “disappointed” used in this sentence does not appear to be consistent with footnote 121, “disregard”.

We suggest the following underlined language as an alternative.

“Thereafter, Sunpine, LFS and the MD together commissioned a study of

the area’s transportation needs for the purpose of assessing potential log

COMMENTS OF CANADA 191
haul routes and establishing criteria for ranking alternatives. After a

review of several alternatives, the transportation consultant identified an

upgraded NFR and the MLR as the most promising routes, concluding

that neither was clearly preferable to the other. Sunpine was disappointed

that the study did not conclude in favor of the MLR In subsequent media

coverage, Sunpine expressed concerns about the results of the study.”

Paragraph 9, last sentence: In order to remain impartial, the Secretariat

should also include the number of persons representing the local political, industrial, commercial and social interests or remove the sentence.

“[...]FAC members represent local political, industrial, commercial, and

social interests, and Sunpine. In 1995, the FAC had one member representing environmental interests.

Paragraph 11, sentence 1: This sentence appears to indicate that Sunpine directed the nature of the advisory committee’s recommendation.

This is inaccurate. The paragraph should read:

“In late May 1995, Sunpine asked for a FAC recommendation on the MLR.

Sunpine and received a FAC recommendation in favor of the MLR, subject

to a commitment from Sunpine to control access to the MLR and mitigate

impacts on fish and wildlife. [...]”

Paragraph 11, sentence 2: The Secretariat should cite the source of information in a footnote. In the absence of any evidence to support this sentence, the Secretariat should remove the sentence.

“[...] All FAC members voted in favor of the MLR except the member

representing environmental interest, who refused to endorse the MLR

proposal in the absence of a long term road development plan and detailed environmental information on, and an environmental assessment of,

the two alternatives (MLR, NFR), including baseline data on fisheries

resources in the area.”

Paragraph 16, sentence 2: The statement implies that there was a replacement of temporary crossings with permanent ones in 1997. This is

inaccurate and should be removed. As previously indicated, provincial

Fisheries Management staff had advised Sunpine that the temporary

crossings had to meet the permanent standards so there was no replacement of crossings.

“[...]Sunpine built and used a temporary road and stream crossings [...],

and Sunpine then built the permanent road and crossings in 1997[...]”

192 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION
Paragraph 16, last sentence: This sentence leads the reader to believe

that there was an obligation placed on Sunpine to obtain a s. 35(2) authorization under the Fisheries Act. This is inaccurate. The sentence should

read:

“Sunpine obtained no did not require a s. 35(2) authorization under the

Fisheries Act for the Sunpine Project, and DFO did not conduct an environmental assessment of the Sunpine Project under the CEAA.”

Section 5.7 Canada’s Actions in Regard to Alleged Violations of

the Fisheries Act and the CEAA in Connection with

the Sunpine Project

Paragraph 6: To ensure accuracy, we request that the Secretariat include

the following information:

“On 1 August 1995, the DFO Habitat Management Division in Winnipeg,

the agency responsible for issuing HADD authorizations for activities in

Alberta, wrote to Sunpine, stating:”

Paragraph 11: To ensure accuracy, the following changes should be

made:

“On 25 August 1995, LFS approved the corridor for the Sunpine Project

under pursuant to Alberta’s legislation, including Alberta’s Resource Road

Planning Guidelines over objections by FWS staff (see above, s. 5.6).”

Paragraph 23, clarification point: To ensure accuracy, the Secretariat

should specify that September 1996 is when Sunpine was advised by

DFO that there was no HADD. Consequently, there was no CEAA “trigger” on bridges. The NWPA question was resolved in August 1996 to

determine whether the project would have an impact on navigational

issues on the bridges.

Section 5.8 Facts Regarding Whether Canada is Failing to

Effectively Enforce the Fisheries Act and the CEAA in

Connection With the Sunpine Project

Paragraph 5, sentence 3: This sentence is inaccurate. FWS was not the

only staff to recommend relocation. In fact, Fisheries, Wildlife, and LFS

staff recommended the relocation. The sentence should reflect their participation.

COMMENTS OF CANADA 193
Paragraph 6, sentence 1: In light of the Secretariat ‘s apparent misunderstanding noted in our cover letter, we request that the following

modifications be made:

“FWS staff working on the Sunpine Project had appointments as fishery

officers under the Fisheries Act did not have the power to issue authorizations under s. 35(2). Under these appointments, they had the power to take

enforcement action for violations of s. 35(1), but they did not have the

power to issue authorizations under s. 35(2). The Secretariat did not obtain

any information regarding why, in light of their concerns regarding

impacts of the Sunpine Project on fish and fish habitat, Fisheries Management staff, in their capacity as federal fishery officers, did not take enforcement action when Sunpine built a temporary logging road, and then a

permanent logging road, within the MLR corridor, without a s. 35(2)

authorization.” that indicated that a violation of the HADD provisions of

the Fisheries Act had occurred.”

Paragraph 6, sentence 2: This sentence presupposes that there is an

offence, which is not relevant to this discussion, and it overlooks the fact

that the biologists were not Fishery Officers. The sentence should read:

“FWS staff working on the Sunpine Project did not hold had appointments

as fishery officers under the Fisheries Act. Under these appointments, they

had the power to take enforcement action for violations of s. 35(1), but they

did not have the power to issue authorisations under s. 35(2).

Paragraph 9, sentence 2 and 3: Because these sentences do not accurately reflect the entire process we ask that they be removed, including the

citation.

“In order to allow RAs to comply with the CEAA requirement to ensure

that environmental assessments are conducted as early as is practicable in

the planning stages of a project (and before irrevocable decisions are

made), the CEAA contains provisions allowing an RA (in this case, DFO)

to request the federal Minister of the Environment to refer a project such as

the Sunpine Project to a mediator or review panel for assessment, if public

concerns warrant such a reference, even if the RA is not certain that it will

exercise a power or perform a duty or function referred to in s. 5 of the

CEAA (in this case, issue a s. 35(2) authorization) in connection with the

project. If the RA subsequently decides that it will not exercise a power

referred to in s. 5 of the CEAA, the CEAA provides:

Where at any time a responsible authority decides not to exercise any

power or perform any duty or function referred to in s. 5 in relation to a

project that has been referred to a mediator or review panel, the Minister

may terminate the environmental assessment of the project.”

194 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION
Paragraph 26, sentence 2: This sentence suggests that there is an obligation placed on either the Government of Canada or the Alberta Government to conduct “follow-up” monitoring. This is inaccurate. In the

absence of any indication that a HADD would occur, there was no reason to deploy resources. Moreover, the project was clear-span bridges –

DFO relied upon the documents identified as well as discussions with

Sunpine and Alberta, site inspections, as well as education and experience of officials in aquatic ecosystem research, fisheries research and

field biology and habitat management to reach its conclusions. In any

event, staff of LFS, in their role as land manager, did conduct monitoring

of the right-of-way, and that direction was provided to Sunpine to submit an action plan to correct erosion problems. Therefore, this sentence

should be removed.

“[...]Both DFO and Alberta have confirmed that neither DFO nor Alberta

did any active follow-up monitoring—or required Sunpine to submit

results of any follow up monitoring—with regard to the Sunpine Project.”

Please note that this comment is also applicable to Section 6, Paragraph 4.

Last Paragraph: This paragraph leads the reader to believe that there

was an obligation placed upon DFO to conduct an analysis. This is inaccurate. No analysis was necessary since the projects were defined as

encompassing the bridges and the physical extent of the area to be considered for the cumulative effects assessment based on the footprint of the

potential impacts from the project(s). DFO need only to analyze the

cumulative effects within the boundaries that were determined by DFO.

The analysis was completed on the cumulative effects found within the

boundaries. Therefore, this paragraph should be removed.

“DFO did not conduct the type of analysis outlined above (and did not

require Sunpine to do so, pursuant to s. 37(1) of the Fisheries Act or otherwise) to determine that sediment yield from the Sunpine Project in its totality (road surface and twenty-one stream and river crossings) will not or

does not cause a HADD of fish habitat and therefore does not result in a

Fisheries Act violation in the absence of a s. 35(2) authorization.”

Section 6 Closing Note

Paragraph 2: To ensure accuracy we request the following changes:

“In 1993, Sunpine Forest Products Ltd. (“Sunpine”) proposed to build a

permanent, all-weather mainline log haul road through its forest management area in the Rocky Mountain foothills of West Central Alberta (the

“Sunpine Project”). The proposed Sunpine Project would cross the headwaters of twenty-one watercourses. The Alberta Forest Service, prior to

COMMENTS OF CANADA 195
authorizing the road under provincial legislation, referred the proposal to

provincial fisheries fish and wildlife management staff, who strongly

recommended against the Project and in favor of requiring Sunpine to use

existing roads for its log haul in order to avoid creating new, long-term

impacts on fish and fish habitat. The Forest Service assessed these comments and ultimately approved the Sunpine Project under Alberta’s legislation.

The Forest Service approved the Sunpine Project over objections from fisheries staff. Provincial fisheries staff carried appointments as fishery officers under the Fisheries Act. Provincial fish and wildlife enforcement

staff carried appointments as fishery officers under the Fisheries Act.

Under these appointments, they could lay charges for issue Fisheries Act

violations, but they could not issue Fisheries Act authorizations., but they

could not issue Fisheries Act authorizations. Despite their concerns regarding the Sunpine Project, provincial fisheries staff did not take any enforcement action against Sunpine under the Fisheries Act when Sunpine built

a temporary road, and then a permanent road, in the new road corridor

without a Fisheries Act authorization. To date there has been no information or evidence presented that the HADD provisions of the Fisheries Act

have been violated.”

Paragraph 3, sentence 1: This sentence is inaccurate. It is the Minister

who is accountable to Parliament not DFO.

“The federal Department of Fisheries and Oceans (“DFO”) The Ministeris

accountable to Parliament for the administration and enforcement of the

Fisheries Act. [...]”

196 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION
ATTACHMENT 3

Comments of the United States of America

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON , D.C. 20460

May 29 2003

Geoffrey Garver

Secretariat of the Commission for Environmental Cooperation

Submissions on Enforcement Matters Unit (SEM Unit)

393, rue St-Jacques west, bureau 200,

Montreal QC H27 1N9

Dear Mr. Garver:

Thank you for providing the United States with a copy of the draft

factual records for Submission SEM-00-004 (BC Logging) and Submission SEM-97-006 (Oldman River II). We appreciate the Secretariat’s assiduous efforts in preparing these documents.

The accuracy of developed factual records is vital to fulfilling their

intended purpose of providing the public with objective assessments of

environmental law enforcement. The United States strongly supports

the submissions process and seeks to ensure that factual records are

accurate in their scope and purpose. We provide the following comments to assist the Secretariat in the development of these factual

records.

Although the term “factual record” is not defined in the North

American Agreement on Environmental Cooperation (NAAEC), Article

15 of the NAAEC and the Guidelines for Submissions on Enforcement

Matters under Articles 14 and 15 of the North American Agreement on

Environmental Cooperation both provide guidance regarding the type

of information a factual record should contain. Specifically, a factual

record should enable readers to draw their own conclusions as to whether a Party is effectively enforcing its environmental laws. Second, a

factual record should be limited to factual information relevant to the

matter(s) at issue.

Regarding the first point, the United States believes that overall,

the BC Logging and Oldman River II Factual Records provide the information necessary to enable readers to draw their own conclusions as to

whether Canada is failing to effectively enforcing its environmental law.

Regarding the second point, the United States asserts as we have

previously in our comments to the draft MBTA and BC Mining Factual

COMMENTS OF THE UNITED STATES OF AMERICA 199
Records, that the discussion of the scope should be limited to information relevant to the Council’s actual instruction to the Secretariat. The

discussion should not include for example, a detailed explanation of

what is not addressed in the factual record. For this reason, we propose

removal of text in Section 4 of both the BC Logging and Oldman River II

Factual Records which is not relevant to Council’s actual instruction.

Thank you again for the opportunity to review these draft factual

records. The success of the CEC is dependent upon the close cooperation

of the Council, Secretariat, and Joint Public Advisory Committee, and

upon the strong interest and participation of the citizens of the member

nations. The submission process remains an important mechanism by

which the public is able to participate through the CEC in the protection

of our shared North American environment.

Should you have any questions, please contact Jose Aguto

(202-564-0289) or David Redlin (202-564-6437).

Sincerely,

Judith Ayers

Assistant Administrator

200 FACTUAL RECORD: OLDMAN RIVER II SUBMISSION