Written by Vivek Warrier, Thomas McInerney and Stephanie Gagne
On September 4, 2019, the Federal Court of Appeal released its reasoned decision to partly grant leave to start applications for judicial review of the Governor in Council's approval of the Trans Mountain Pipeline expansion project. The Order in Council P.C. 2019-0820, dated June 18, 2019, was the Governor in Council's second attempt to approve the project. The first approval was struck down by the Federal Court of Appeal in Tsleil-Waututh Nation v Canada (Attorney General), 2018 FCA 153.
The decision is unique because the Court's standing practice is not to issue reasons in disposing of leave applications. However, in this decision, the respondents, who have direct interest in the matter, took no position for or against the leave applications. In response to these exceptional circumstances, the Chief Justice of the Court issued a direction to the presiding judge to use his discretion to issue reasons in support of the orders dismissing the leave motions, which he did.
On November 29, 2016, the Governor in Council issued an Order in Council (P.C. 2016-1069) accepting the National Energy Board's (NEB) recommendation to approve the Trans Mountain Pipeline expansion project and directed the NEB to issue a certificate of public convenience and necessity to Trans Mountain.
On August 30, 2018, the Federal Court of Appeal quashed the Order in Council which rendered the certificate of public convenience and necessity null. The Federal Court of Appeal held that the NEB failed to assess the effects of project-related marine shipping under the Canadian Environmental and that Canada did not fulfil its duty to consult and accommodate. The Court remitted the matter to the Governor in Council for redetermination.
On June 18, 2019, after reviewing the NEB's marine reconsideration report and further consultation, the Governor in Council once again approved the project and directed the NEB to issue a certificate of public convenience and necessity to Trans Mountain.
Twelve motions for leave to start applications for judicial review of the Order in Council were brought to challenge the second approval. Six were allowed and six were dismissed. The applicable standard for a party seeking leave is one of a "fairly arguable case". When applying this standard to section 55 of the National Energy Board Act, Justice Stratas warned that three ideas must be kept in mind: the fulfilment of the gatekeeping function, the role of deference and the importance of practicality.
In order to meet the fairly arguable standard, the arguments must get past the high level of deference afforded to the Governor in Council's decision. It must also go beyond the leeway given to decision-makers on the adequacy of consultation with First Nations and not present any fatal legal bars and objections such as res judicata.
The motions for leave raised four sets of questions:
- Alleged conflict of interest and bias: Some applicants raised that the decision of the Governor in Council was vitiated by bias and conflict of interest because the Government of Canada acquired the Trans Mountain project. This argument failed to meet the fairly arguable standard because it suffered from a fatal flaw. The Governor in Council is not the Government and does not own the project. Additionally, nothing in the Act disqualified the Governor in Council from discharging its responsibility based on the ownership of the project and no evidence was submitted to support the allegations of bias and conflict of interest rendering them mere speculations.
- Environmental issues and substantive reasonableness: Applicants once again raised a number of environmental issues. However, these arguments could not meet the fairly arguable standard because most of them were barred by res judicata. Applicants also raised that the new report on marine shipping lacked the legal prerequisite of a report under section 54 of the National Energy Board Act. This argument also did not meet the fairly arguable standard because it was impossible for the applicant to overcome the high deference afforded to the Governor in Council and they also failed to show that their argument could change the outcome of the decision.
- Issues relating to the adequacy of the consultation with Indigenous peoples: While some of the arguments were simple dissatisfaction with the outcome of the consultation process and others barred by res judicata, one argument met the fairly arguable standard. In fact, many Indigenous alleged that the alleged poor quality and hurried nature of consultation rendered it inadequate. The respondent exercised its discretion not to comment on the claimed deficiencies in the circumstances. Based on the evidence before it, the Court concluded that the "fairly arguable" standard had been met and granted leave.
Remaining miscellaneous issues: The remaining issues relating to Charter claims and procedural fairness did not meet the fairly arguable standard and were dismissed.
Questions left to be determined in judicial review:
The Court directed the parties to make submissions on the following three questions:
- From August 30, 2018, to June 18, 2019, was the consultation with Indigenous peoples and First Nations adequate in law to address the shortcomings in the earlier consultation process that were summarized at paras. 557-563 of Tsleil-Wautuh Nation?
- Do any defences or bars to the application for judicial review apply?
- If the answers to the above questions are negative, should a remedy be granted and, if so, what remedy and on what terms?
On this last point, Justice Stratas reiterated the importance of practicality and noted that sometimes a decision should not be quashed and sent for redetermination despite its defects.
The decision of the respondents in this case to not take position for or against the leave motions led the court to step away from its traditional practice of not issuing reasons for disposing of leave applications. The Court mandated that the adequacy of consultation be assessed on an expedited basis.