Federal Court Prohibits Review of Bennett Environmental Facility

On the eve of the recent federal election, the Federal Minister of the Environment decided to refer a substantially completed soil decontamination facility constructed and owned by Bennett Environmental Inc. in Belledune, New Brunswick, to a review panel for an environmental assessment under sections 46 and 48 of the Canadian Environmental Assessment Act. The project had been through an environmental assessment by New Brunswick, in which federal scientists had also participated. Bennett’s application for judicial review was filed on July 13, 2004, and was heard by the Federal Court of Canada in Ottawa on August 13, 2004. On August 20, Justice Sean Harrington granted the judicial review, quashed the decision of the Minister, declared it null and void, and prohibited the Canadian Environmental Assessment Agency (CEAA) from proceeding with a review of the matter, on the ground that the facility was no longer a “project” under the Act and that, therefore, the Act did not apply.

On September 28, the Federal Minister of the Environment and the CEAA filed a notice of appeal on the grounds that Justice Harrington erred in concluding that the proposed operation, decommissioning or abandonment of the Belledune facility was not a “project” for the purposes of sections 2, 46 and 48 of the Act.

Bennett was represented by Andrew Roman, John Tidball, and Erin Tully of Miller Thomson.
The Minister of the Environment and the CEAA were represented by Brian Evernden of the Department of Justice. Eric Gillespie of Cunningham & Gillespie represented a coalition of environmental and aboriginal interveners.