Case Name: Raincoast Conservation Foundation v. Canada (Attorney General)

Jurisdiction: Canada

Type of Claim: Judicial review of projects and permits

Summary of Result: Twelve applicants wanted to apply for judicial review of the Governor in Council’s decision to approve the Trans Mountain Expansion project, which required being granted leave from the Court. The court granted leave to six of the twelve applicants on the basis of an argument that the consultation process was inadequate.

Judgment final: Yes

Court Instances:

Court	Type of Decision	Summary
Federal Court of Appeal Decision of 4 Sept. 2019 2019 FCA 224	Leave motion	Twelve applicants wanted a judicial review of the project and needed to be granted leave in order to move forward with their application. The Court ultimately only granted leave to six of the twelve applicants
Supreme Court of Canada Decision of 5 Mar. 2020 2020 CanLII 17605	Appeal	Appeal dismissed without reasons

 

Source of claims:            National Energy Board Act, R.S.C. 1985, c. N-7

 

Summary of Judgment

Federal Court of Appeal

Background of the Case

The Trans Mountain Expansion Project (“Project”) was first approved by the Governor in Council on November 29^th, 2016. A number of applicants at this time filed for judicial review.[1] In Tsleil-Waututh Nation v Canada (Attorney General), 2018 FCA 153 (CanLII) (“Tsleil-Waututh”), the court quashed the approval of the Project on the grounds that Canada failed to adequately discharge their duty to consult in Phase III of the consultation process. The court sent the matter back to the Governor in Council to address the flaws found in Phase III of the consultation.[2]

On June 18th, 2019, the Governor in Council approved the Project for the second time. Upon this second approval, twelve parties – including several environmental NGOs, Indigenous Nations, and the City of Vancouver – wanted to challenge the approval by starting applications for judicial review (the “Applicants”). Under the National Energy Board Act, in order to start an application for judicial review, the parties are required to get leave from the Federal Court of Appeal.[6]

Claims of the Parties

The twelve Applicants brought forward two central issues:[7]

1. The substantive unreasonableness of the Governor in Council’s decision to approve the = Project.
2. The Crown’s failure to adequately consult with Indigenous peoples and First Nations.

The Court further subdivided these central issues into four categories to better encompass the more specific issues brought forward by the parties. These four categories were:⁷

1. Alleged conflict of interest and bias

Under this category, the Applicants submitted that the Governor in Council’s decision to approve the project for a second time was influenced by bias and conflict of interest arising from the fact that the Government of Canada took ownership of the  Project between Tsleil-Waututh and this case.[8]

2. Environmental issues and substantive reasonableness

3. Issues relating to the consultation with Indigenous peoples and First Nations

Under this category, some Applicants had a dissatisfaction with the outcome of the consultation process and asserted a right to consent or a veto power over the project.[9]

Applicants also had concerns with the adequacy of the consultation process. They claimed that the Phase III process conducted after Tsleil-Waututh was rushed and of a poor quality. The Indigenous and First Nations Applicants said they felt that issues that were important to them were ignored by Canada both in the original consultation process and the continued consultation following Tsleil-Waututh. They also said they did not feel enough time was committed to the process in order for consultation to be carried out meaningfully.[10]

The Applicants acknowledged that the government did introduce some new initiatives to assist consultation and added some conditions on the Project approval. However, the Applicants felt like this was more like “box-ticking” by the government and less like the government was acknowledging their concerns, considering potential solutions, and collaborating with Indigenous peoples and First Nations.[11]

4. Miscellaneous issues

The Applicants also had some Charter claims that they submitted, as well as a claim regarding procedural fairness.[12]

The Attorney General of Canada (one of the Respondents to the motion) largely took no position on the Applicants’ submitted concerns and only dictated that if the Applicants were granted leave, they would support the Governor in Council’s decision.[13] Trans Mountain took no apparent position in this case besides requesting costs from the Court.[14]In general, the Governor in Council believed that the further consultation done after Tsleil-Waututh was adequate.[15]

Court Ruling

The Court determined that, based on the National Energy Board Act, the criteria for granting leave is based on a party showing that their case is a “fairly arguable case” that warrants a review of the decision.[16] Because of the previous Tsleil-Waututh case, doctrines barring relitigation play an important role in this case. Doctrines barring relitigation involve disallowing arguments raised and decided on, or those that could have been raised, in a previous proceeding from being raised again later in a second proceeding.[17]

The general practice of the court is to not provide reasons when releasing a decision on leave motions. However, because the Respondents did not provide a position on the leave applications, the Court determined that it would provide reasons in this particular case.[18] In providing reasons, the Court went through each of the four central category of issues put forth by the Applicants and decided whether those issues passed the fairly arguable case standard to find if a leave could be granted.

1. Alleged conflict of interest and bias

The Court found that the issues brought forward by the Applicants under this section do not pass the fairly arguable standard because there was no bias or conflict of interest present in the Governor in Council’s decision-making obligations. The Governor in Council is not itself the Government of Canada, so Canada’s purchasing of the Project does not indicate that the Governor in Council owns the project. In addition, the National Energy Board Act requires the Governor in Council to make decisions on projects regardless of who owns a project. By making a decision on the project, the Governor in Council was fulfilling their duty as per the Act, not because Canada owns the project.[19]

2. Environmental issues and substantive reasonableness

Under this category, the Court found that the Applicants’ arguments regarding environmental issues cannot meet the fairly arguable standard because of doctrines barring relitigation. The majority of the arguments made by the applicants were made and decided on or could have been raised in Tsleil-Waututh and therefore cannot be raised again, or freshly raised, in this case.[20]

These arguments include the issue of greenhouse gas emissions caused by the project (which was not raised as a primary issue in Tsleil-Waututh) and the effects of Project-related marine shipping (raised and addressed).

For the arguments they made that did not fall under doctrines barring relitigation, the Applicants failed to show that their arguments could practically change the outcome of the Governor in Council’s decision. In making their decision, the Governor in Council balanced environmental issues with the public interest and found that compelling public interest in the project outweighed the adverse environmental effects. The Court determined that even if the Governor in Council had the Applicants’ additional arguments, the Governor in Council would likely still balance in favour of public interest.[21]

3. Issues relating to the consultation with Indigenous peoples and First Nations

First, the Court found that the argument regarding a right to consent or to have a veto power over the project was not relevant in this case because these rights are not a part of the Crown’s consultation obligations, as developed in the common law.[22]

The Court also found that the arguments made regarding adequacy of the consultation process largely fell under the doctrines barring relitigation. However, the Court did accept that the Applicant’s argument that the Phase III process was of poor quality and hurried (and therefore inadequate) met the fairly arguable standard.[23]

4. Miscellaneous issues

The Court found that the Charter claims fell under the doctrines barring relitigation, so they did not meet the standard of fairly arguable. In addition, none of the other miscellaneous issues met the fairly arguable standard and there was no arguable case for the issue of procedural fairness that was also brought up.[24]

The Court concluded that only the Indigenous and First Nations applicants would be given leave to start applications for judicial review – six of the twelve requests – to address two particular questions:

• shortcomings of the earlier consultation process identified in Tsleil-Waututh?[26]
• Do any defences or bars to the application for judicial review apply?[27]

All other leave motions were dismissed. Following this decision, two of the groups granted leave discontinued their applications. This left four applications for judicial review from Coldwater Indian Band, Squamish Nation, Tsleil-Waututh Nation, and Aitchelitz, Skowkale, Shxwhá:y Village, Soowahlie, Squiala First Nation, Tzeachten and Yakweakwioose.[28]

 

Supreme Court of Canada

The six Applicants that were not granted leave by the Federal Court of Appeal appealed this decision to the Supreme Court of Canada. The Supreme Court of Canada dismissed the appeal without reasons.

Further, in March 2020, the Supreme Court of Canada decided in Coldwater to dismiss the remaining 4 applications for judicial review submitted by Coldwater Indian Band, Squamish Nation, Tsleil-Waututh Nation, and Aitchelitz, Skowkale, Shxwhá:y Village, Soowahlie, Squiala First Nation, Tzeachten and Yakweakwioose.[29] This decision was made on the basis that the consultation process was adequate to address the shortcomings of the earlier consultation process and there were no defences or bars to the application for judicial review.

 

[1] Tsleil-Waututh at paras. 2-3

[2] Tsleil-Waututh at paras. 6-7

[3] Tsleil-Waututh at para. 74

[4] Tsleil-Wautuh at para. 6

[5] Raincoast Conservation at para. 50

[6] Raincoast Conservation at para. 1

[7] Raincoast Conservation at para. 30

[8] Raincoast Conservation at para. 31

[9] Raincoast Conservation at para. 47

[10] Raincoast Conservation at paras. 48 and 57

[11] Raincoast Conservation at para. 58

[12] Raincoast Conservation at para. 70

[13] Raincoast Conservation at para. 59

[14] Raincoast Conservation at para. 78

[15] Raincoast Conservation at para. 61

[16] Raincoast Conservation at para. 14

[17] Raincoast Conservation at para. 24

[18] Raincoast Conservation at para. 6

[19] Raincoast Conservation at paras. 32-34

[20] Raincoast Conservation at para. 38

[21] Raincoast Conservation at para. 45

[22] Raincoast Conservation at para. 47

[23] Raincoast Conservation at paras. 49-52

[24] Raincoast Conservation at para. 58

[25] Raincoast Conservation at para. 71

[26] Raincoast Conservation at para. 65

[27] Raincoast Conservation at para. 66

[28] Coldwater First Nation v Canada (Attorney General), 2020 FCA 34 (CanLII) (“Coldwater”) at para. 4

[29] Coldwater at para. 255