19-A-35, 19-A-36, 19-A-37,
19-A-38, 19-A-39, 19-A-40,
19-A-41, 19-A-42, 19-A-44,
19-A-45, 19-A-46, 19-A-47
2019 FCA 224
Raincoast Conservation Foundation, Living Oceans Society, Chief Ron Ignace and Chief Rosanne Casimir, on their own behalf and on behalf of all other members of the Stk’emlupsemc Te Secwepemc of the Secwepemc Nation, Squamish Nation, Coldwater Indian Band, Federation of British Columbia Naturalists carrying on business as BC Nature, Tsleil-Waututh Nation, Stz’uminus First Nation, Aitchelitz, Skowkale, Shxwhá:y Village, Soowahlie, Squiala First Nation, Tzeachten, Yakweakwioose, City of Vancouver, Shxw’ōwhámel First Nation, Olivier Adkin-Kaya, Nina Tran, Lena Andres, Rebecca Wolf Gage and Upper Nicola Band (Applicants)
v.
The Attorney General of Canada, Trans Mountain Pipeline ULC and Trans Mountain Corporation (Respondents)
and
Attorney General of Alberta (Intervener)
Indexed as: Raincoast Conservation Foundation v. Canada (Attorney General)
Federal Court of Appeal, Stratas J.A.—Ottawa, September 4, 2019.
Energy –– Twelve consolidated motions for leave to commence judicial review of Order in Council (P.C. 2019-0820) dated June 18, 2019, whereby Governor in Council approving Trans Mountain Pipeline expansion project for second time –– Applicants alleging in particular that Governor in Council’s decision approving project substantively unreasonable; that Crown failed to adequately consult with indigenous peoples, First Nations –– While express text of National Energy Board Act not indicating when to grant leave after Governor in Council deciding matter, Court must decide whether leave warranted in accordance with Act, s. 55(1) –– Under various legislative schemes, party must show “fairly arguable case” that warrants full review of administrative decision –– Federal Court of Appeal previously striking down Governor in Council’s first approval of project in Tsleil-Waututh Nation v. Canada (Attorney General) –– While Court not requiring that all work, consultation be redone, Court requiring targeted work, further meaningful consultation to be performed to address specific flaws found in first approval of project –– Main issue whether motions for leave satisfying leave requirements because establishing “fairly arguable” case –– Specifically, whether Governor in Council’s decision approving project substantively unreasonable; whether Crown failing to adequately consult with indigenous peoples, First Nations –– Central issues applicants raising grouped into four categories: alleged conflict of interest and bias; environmental issues and substantive reasonableness; issues relating to consultation with Indigenous peoples and First Nations; remaining miscellaneous issues –– Submission that decision of Governor in Council vitiated by bias, conflict of interest not passing “fairly arguable case” test; no evidence supporting submission –– Arguments on environmental issues also could not meet threshold of “fairly arguable” case –– In Tsleil-Waututh Nation, many arguments about environmental effects of project either made or could have been made but were not –– Most of environmental points applicants now raising not fairly arguable because falling into one of these categories; barred by doctrines against relitigation ––- Applicants also failing to show that such arguments could practically change outcome since Governor in Council would still conclude project, on balance, in public interest –– As to issues on adequacy of consultation with Indigenous people/First Nations, two sets of arguments not passing “fairly arguable” standard: (1) those involving applicants’ dissatisfaction, disagreement with outcome of consultation process, asserted right to exercise veto over project; (2) those on adequacy of consultation previously raised, decided in Tsleil-Waututh Nation or that could have been raised but were not –– Doctrines against relitigation now applying to bar these points –– However, some issues advanced concerning adequacy of consultation in fact meeting “fairly arguable” standard for leave; in particular, argument that Canada’s duty to consult in Phase III of consultation process, as Court had previously ordered when project first approved, carried out inadequately given poor quality, hurried nature of further consultation –– Finally, to extent remaining miscellaneous issues existed and not fitting into four categories of issues set, none of them meeting “fairly arguable” standard –– Six motions allowed.
These were 12 consolidated motions for leave to commence applications for judicial review of an Order in Council (P.C. 2019-0820) dated June 18, 2019, whereby the Governor in Council approved the Trans Mountain Pipeline expansion project for the second time. Before consolidation, 12 sets of parties wanted to challenge the approval by starting applications for judicial review. In their motions, the applicants alleged in particular that the Governor in Council’s decision approving the project was substantively unreasonable and that the Crown failed to adequately consult with indigenous peoples and First Nations.
The express text of the National Energy Board Act does not indicate when to grant leave. Under the Act, during the process of project approvals, recourse to the judicial system is forbidden. After the Governor in Council has decided the matter, recourse is potentially available but is not automatic nor as of right. The Court must decide whether leave is warranted in accordance with subsection 55(1) of the Act. Leave requirements to this Court can be found under various legislative schemes, some of which suggest that a party seeking leave must show a “fairly arguable case” that warrants a full review of the administrative decision. This “fairly arguable” standard was described in Lukacs v. Swoop Inc. (F.C.A.). When applying the “fairly arguable” standard under section 55 of the Act, three ideas must be kept in mind, including the fulfillment of the gatekeeping function; the role of deference; and practicality matters. In applying this standard, the Federal Court of Appeal struck down the Governor in Council’s first approval of the project in Tsleil-Waututh Nation v. Canada (Attorney General). In so doing, the Court did not require all the work and consultation leading up to the Governor in Council’s approval to be redone but only required targeted work and further meaningful consultation to be performed to address specific flaws that led to the quashing of the first approval.
The main issue was whether the motions for leave to start applications for judicial review satisfied the leave requirements because they established a “fairly arguable” case. Specifically, it had to be determined whether the Governor in Council’s decision approving the project was substantively unreasonable and whether the Crown failed to adequately consult with indigenous peoples and First Nations.
Held, six of the twelve motions should be allowed.
The central issues raised in the applicants’ motions were grouped into four categories: alleged conflict of interest and bias, environmental issues and substantive reasonableness, issues relating to the consultation with Indigenous peoples and First Nations, and remaining miscellaneous issues.
Various applicants submitted that the decision of the Governor in Council was vitiated by bias and a conflict of interest because after the first approval decision, the Government of Canada, through a corporate vehicle, acquired the respondent Trans Mountain and now owns the project. However, this submission did not pass the “fairly arguable case” test. It suffered from a fatal flaw being that the Governor in Council, the decision maker in this case, is not the Government of Canada and does not own the project. More fundamentally, section 54 of the Act requires the Governor in Council to decide whether to approve a project regardless of who owns it. The Act does not disqualify the Governor in Council from discharging this responsibility based on ownership of the project. The Act prevails over any common law notions of bias and conflict of interest. In the evidentiary record before the Court, there was no evidence to support this submission.
The applicants’ arguments on the environmental issues also could not meet the threshold of a “fairly arguable case”. In Tsleil-Waututh Nation, many arguments about the environmental effects of the project either were made or could have been made but were not. Most of the environmental points the applicants now raised were not fairly arguable because they fell into one of these categories and were barred by the doctrines against relitigation. Moreover, in attempting to meet the standard of “fairly arguable”, the applicants had to show that their arguments could practically change the outcome and on this they failed. The Governor in Council found that compelling public interest considerations clearly outweighed the adverse environmental effects. The decisive and emphatic nature of the Governor in Council’s reasons set out in the Order in Council led inexorably to the conclusion that if the matters raised by the applicants at issue were placed in a further new report given to the Governor in Council, the Governor in Council would still conclude the project was, on balance, in the public interest and would still approve it.
Regarding the issues relating to the adequacy of the consultation with Indigenous peoples and First Nations, two sets of arguments on this issue did not pass the “fairly arguable” standard. These arguments involved the applicants’ dissatisfaction and disagreement with the outcome of the consultation process and an asserted right to exercise a veto over the project as well as those points concerning, in particular, the adequacy of consultation that were previously raised and decided in Tsleil-Waututh Nation or that could have been raised but were not. The doctrines against relitigation now applied to bar these points. Nevertheless, some issues advanced concerning the adequacy of consultation did meet the “fairly arguable” standard for leave. In particular, the Court in Tsleil-Waututh Nation found that Canada had not discharged its duty to consult in Phase III of the consultation process. As a result, the Court quashed the approval of the project and required more work to be done in Phase III of the consultation process. In the following months, further consultation took place to that end. Many of the Indigenous and First Nation applicants now alleged that the poor quality and hurried nature of this further consultation rendered it inadequate. Whether the further consultation process was adequate was unclear and a future panel of the Court would have to decide on its adequacy.
Finally, regarding the remaining miscellaneous issues, to the extent that they existed and did not fit into the four categories previously stated, none of them met the “fairly arguable” standard.
STATUTES AND REGULATIONS CITED
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].
Canadian Environmental Assessment Act, 2012, S.C. 2012, c. 19, s. 52.
Federal Courts Rules, SOR/98-106, r. 110.
National Energy Board Act, R.S.C., 1985, c. N-7, ss. 52(11), 53(8), 54, 55.
Order in Council P.C. 2018-1177.
Order in Council P.C. 2019-378.
Order in Council P.C. 2019-0820.
Species at Risk Act, S.C. 2002, c. 29.
CASES CITED
FOLLOWED:
Gitxaala Nation v. Canada, 2016 FCA 187, [2016] 4 F.C.R. 418, leave to appeal to S.C.C. refused, [2017] 1 S.C.R. xvi; Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153, [2019] 2 F.C.R. 3, [2018] 3 C.N.L.R. 205, leave to appeal to S.C.C. refused, 38379 (2 May 2019).
APPLIED:
Lukács v. Swoop Inc., 2019 FCA 145.
CONSIDERED:
Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511.
REFERRED TO:
Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, (1998), 154 D.L.R. (4th) 193; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Stemijon Investments Ltd. v. Canada (Attorney General), 2011 FCA 299, 341 D.L.R. (4th) 710; Robbins v. Canada (Attorney General), 2017 FCA 24; Maple Lodge Farms Ltd. v. Canada (Food Inspection Agency), 2017 FCA 45, 411 D.L.R. (4th) 175; League for Human Rights of B’Nai Brith Canada v. Canada, 2010 FCA 307, [2012] 2 F.C.R. 312; R. v. Gladstone, [1996] 2 S.C.R. 723, (1996), 137 D.L.R. (4th) 648; R. v. Nikal, [1996] 1 S.C.R. 1013, (1996), 133 D.L.R. (4th) 658; Bigstone Cree Nation v. Nova Gas Transmission Ltd., 2018 FCA 89, 16 C.E.L.R. (4th) 1; Squamish First Nation v. Canada (Fisheries and Oceans), 2019 FCA 216, 436 D.L.R. (4th) 596; Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, [2017] 2 S.C.R. 386; Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77; Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781; Merchant Law Group v. Canada Revenue Agency, 2010 FCA 184, 321 D.L.R. (4th) 301; JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue), 2013 FCA 250, [2014] 2 F.C.R. 557; Prophet River First Nation v. British Columbia (Environment), 2015 BCSC 1682, [2016] 1 C.N.L.R. 207, affd 2017 BCCA 58, 94 B.C.L.R. (5th) 232; West Moberly First Nations v. British Columbia (Energy and Mines), 2014 BCSC 924, 76 Admin. L.R. (5th) 223; Canada v. Kabul Farms Inc., 2016 FCA 143, 13 Admin. L.R. (6th) 11.
AUTHORS CITED
Canada Gazette, Part I, Vol. 153, No. 25, 22 June 2019.
TWELVE CONSOLIDATED MOTIONS for leave to commence applications for judicial review of an Order in Council (P.C. 2019-0820) dated June 18, 2019, whereby the Governor in Council approved the Trans Mountain Pipeline expansion project for the second time. Six motions allowed.
WRITTEN REPRESENTATIONS
Dyna Tuytel and Margot Venton for applicants Raincoast Conservation Foundation and Living Oceans Society.
Sarah D. Hansen and Megan Young for applicants Chief Ron Ignace and Chief Rosanne Casimir, on their own behalf and on behalf of all other members of the Stk’emlupsemc Te Secwepemc of the Secwepemc Nation.
F. Matthew Kirchner and Michelle Bradley for applicant Squamish Nation.
F. Matthew Kirchner and Emma K. Hume for applicant Coldwater Indian Band.
Chris Tollefson and Anthony Ho for applicant Federation of British Columbia Naturalists carrying on business as BC Nature.
Scott A. Smith, Paul Seaman and Keith Brown for applicant Tsleil-Waututh Nation.
Melinda J. Skeels and Natalia Sudeyko for applicant Stz’uminus First Nation.
Joelle Walker and Erin Reimer for applicants Aitchelitz, Skowkale, Shxwhá:y Village, Soowahlie, Squiala First Nation, Tzeachten and Yakweakwioose.
K. Michael Stephens, Rebecca J. Robb and Matthew M.S. Palmer for applicant City of Vancouver.
Joelle Walker and Ryley Mennie for applicant Shxw’ōwhámel First Nation.
Patrick Canning and Erin Gray for applicants Olivier Adkin-Kaya, Nina Tran, Lena Andres, and Rebecca Wolf Gage.
Crystal Reeves for applicant Upper Nicola Band.
Jan Brongers for respondent Attorney General of Canada.
Maureen Killoran, QC, Olivia C. Dixon and Sean Sutherland for respondent Trans Mountain Pipeline ULC and Trans Mountain Corporation.
Doreen Mueller, Stephanie Latimer, Jodie Hierlmeier and Jade Vo for intervener Attorney General of Alberta.
SOLICITORS OF RECORD
Ecojustice, Calgary, for applicants Raincoast Conservation Foundation and Living Oceans Society.
Miller Thomson LLP, Vancouver, for applicants Chief Ron Ignace and Chief Rosanne Casimir, on their own behalf and on behalf of all other members of the Stk’emlupsemc Te Secwepemc of the Secwepemc Nation.
Ratcliff & Company LLP, North Vancouver, for applicants Squamish Nation, Stz’uminus First Nation, Coldwater Indian Band, and Stz’uminus First Nation.
Pacific Centre for Environmental Law and Litigation Law Corporation, Victoria, for applicant Federation of British Columbia Naturalists carrying on business as BC Nature.
Gowling WLG (Canada) LLP, Vancouver, for applicant Tsleil-Waututh Nation.
Miller Titerle Law Corporation, Vancouver, for applicants Aitchelitz, Skowkale, Shxwhá:Y Village, Soowahlie, Squiala First Nation, Tzeachten and Yakweakwioose.
Hunter Litigation Chambers, Vancouver, for applicant City of Vancouver.
Miller Titerle Law Corporation, Vancouver, for applicant Shxw’ōwhámel First Nation.
British Columbia Arbutus Law Group LLP, Victoria, for applicants Olivier Adkin-Kaya, Nina Tran, Lena Andres, and Rebecca Wolf Gage.
Mandell Pinder LLP, Vancouver, for applicant Upper Nicola Band.
Deputy Attorney General of Canada for respondent.
Osler, Hoskin & Harcourt LLP, Calgary, for respondent Trans Mountain Pipeline ULC and Trans Mountain Corporation.
Alberta Justice and Solicitor General, Edmonton, for intervener Attorney General of Alberta.
The following are the reasons for order rendered in English by
[1] Stratas J.A. : By Order in Council P.C. 2019-0820 dated June 18, 2019, the Governor in Council approved the Trans Mountain Pipeline expansion project for the second time: (2019) C. Gaz. I, Vol. 153, No. 25 [June 22, 2019]. Twelve sets of parties would like to challenge the approval by starting applications for judicial review. But before they can do that, they have to get leave from this Court: National Energy Board Act, R.S.C., 1985, c. N-7 [repealed S.C. 2019, c. 28, s. 44], section 55.
[2] As a result, 12 motions for leave to start applications for judicial review have been brought. A single judge of this Court decides whether leave should be granted: National Energy Board Act, paragraph 55(2)(c).
[3] By order of this Court, the motions have been consolidated. These reasons shall be placed in the lead file, file 19-A-35, and a copy shall be placed in each of the other files.
[4] For the following reasons, six of the motions for leave will be allowed and six will be dismissed. Assuming six applications for judicial review are started, they will be made ready for hearing in the shortest possible time.
A. The giving of reasons in this case
[5] The settled practice of this Court is not to give reasons when releasing its decisions on leave motions.
[6] The Chief Justice of this Court has recognized that in the unique circumstances of this case, this practice might have to be relaxed. He has issued a direction explaining this. The direction reads as follows:
The Court’s standing practice is not to issue reasons in disposing of leave applications. However this is an exceptional case as the respondents, who have a direct interest in the project, took no position for or against the leave applications in all cases but one, thereby leaving the matter to the discretion of the Court. Taking no position on a motion is a common practice when dealing with procedural matters; it is not when issues of general importance are in play.
Being left without a contrary view, the Court on its own motion notified two interested parties pursuant to Rule 110 of the Federal Courts Rules, the Attorneys General of British Columbia and Alberta. Alberta responded by moving to intervene and, following submissions, was granted intervenor status. Alberta asks that the 12 applications be dismissed.
Should the judge seized with the motions for leave decide against the applicants, the issuance of reasons explaining why may be necessary, as an exception to the Court’s practice. This is because the applicants, having been told by Canada, which holds the constitutional obligation to discharge the duty to consult, that it takes no position, would be entitled to know why the Court has decided against the applicants.
The matter is left to the discretion of the presiding judge.
[7] In response to this, I have exercised my discretion to issue reasons in support of the orders dismissing the leave motions.
B. The involvement of the Attorney General of Alberta in the leave motions
[8] The respondents took no position on 11 of the 12 leave motions because they considered the threshold for leave to be quite low. As described by the Chief Justice in his direction, the Court issued a notice under rule 110 [of the Federal Courts Rules, SOR/98-106]. In response, the Attorney General of Alberta brought a motion to intervene to oppose the leave motions. After considering the parties’ submissions on the motion to intervene, the Court decided to add the Attorney General of Alberta as an intervener.
C. The criteria for granting leave
[9] The express text of the National Energy Board Act does not tell us when to grant leave. However, we can deduce this from related sections of the Act and Parliament’s purpose in requiring that leave be sought: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, (1998), 154 D.L.R. (4th) 193 and Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559.
[10] The portion of the National Energy Board Act concerning project approvals is a complete code. It provides for the National Energy Board studying and assessing the project, the Board providing a report to the Governor in Council, and the Governor in Council considering the report and deciding one way or the other: Gitxaala Nation v. Canada, 2016 FCA 187, [2016] 4 F.C.R. 418, at paragraphs 119–127, leave to appeal to S.C.C. refused, 37201 (9 February 2017) [[2017] 1 S.C.R. xvi]; Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153, [2019] 2 F.C.R. 3, [2018] 3 C.N.L.R. 205, at paragraphs 173–203, leave to appeal to S.C.C. refused, 38379 (2 May 2019) (the case in which this Court set aside the Governor in Council’s first approval of the project). To prevent delay to a project that may benefit the public considerably, the Act imposes deadlines during the approval process.
[11] As this process unfolds, recourse to the judicial system is forbidden; only at the end of the process, after the Governor in Council has decided the matter, is recourse potentially available: National Energy Board Act, subsections 52(11), 53(8) and 55(1); Gitxaala Nation, at paragraphs 119–127; Tsleil-Waututh Nation, at paragraphs 170–202. But this is neither automatic nor as of right; the Court must decide whether it is warranted: see National Energy Board Act, subsection 55(1), which requires a party first to seek leave from the Court. Leave must be sought quickly so that projects approved by the Governor in Council will not be unnecessarily held up: National Energy Board Act, paragraph 55(2)(a). Leave must be decided upon “without delay and in a summary way”: National Energy Board Act, paragraph 55(2)(c). And a single judge with written materials decides—not the more time-consuming panel of three considering both written materials and oral submissions at a hearing: National Energy Board Act, paragraph 55(2)(c).
[12] Parliament’s purpose is plain: a project is not to be hamstrung by multiple, unnecessary, long forays through the judicial system. Any recourse to the judicial system must be necessary and as short as possible.
[13] Thus, the leave requirement is not just a cursory checkpoint on the road to judicial review. It is more like a thorough customs inspection at the border.
[14] Leave requirements to this Court can be found under various legislative schemes. Under a couple of these, it has been suggested that a party seeking leave must show a “fairly arguable case” that warrants “a full review of the administrative decision, [with all] the [available] procedural rights, investigative techniques and, if applicable and necessary, [all the] evidence-gathering techniques [that are] available”: see, e.g., Lukács v. Swoop Inc., 2019 FCA 145, at paragraph 19 and cases cited.
[15] The standard of a “fairly arguable case” described in Lukács is a good place to begin. But given this legislative scheme and Parliament’s purpose, more definitional guidance on the “fairly arguable” standard is needed.
[16] When applying the “fairly arguable” standard under section 55 of the National Energy Board Act, three ideas must be kept front of mind:
(a) Fulfilment of the gatekeeping function. The “fairly arguable” standard must be applied in a way that fulfils the important gatekeeping function of the leave requirement in this legislative regime. Thus, the arguments an applicant wishes to advance in a judicial review and the evidence it offers in support must be scrutinized meaningfully and rigorously to ensure they meet the “fairly arguable” standard. Leave must be denied to those without evidence who offer arguments that must have evidence and to those whose arguments face fatal legal bars.
(b) The role of deference. Sometimes, in law, the Court must give decision makers a margin of appreciation, leeway or deference when reviewing their decisions. These can drastically affect what is “fairly arguable”: they can take an argument that is tenable in theory and make it hopeless in reality.
(c) Practicality matters. Granting leave to an argument that, if accepted with others, will not overturn the decision under review is a waste of time and resources and frustrates Parliament’s purpose. This is common sense but it is also the law: reviewing courts will not overturn and send back a decision for redetermination if it is clear the same decision will be made: see, e.g., Stemijon Investments Ltd. v. Canada (Attorney General), 2011 FCA 299, 341 D.L.R. (4th) 710; Robbins v. Canada (Attorney General), 2017 FCA 24; Maple Lodge Farms Ltd. v. Canada (Food Inspection Agency), 2017 FCA 45, 411 D.L.R. (4th) 175. Arguments pointing out minor flaws in the decision are less likely to pass this hurdle than arguments striking at the root of the decision.
D. Analysis
(1) Introduction
[17] The most central issues in the leave motions before this Court are the alleged substantive unreasonableness of the Governor in Council’s decision to approve the project and the Crown’s failure to adequately consult with Indigenous peoples and First Nations. Given the meaning of the “fairly arguable case” standard, we must explore the extent to which margin of appreciation, deference or leeway factor into the analysis of these issues. We must also investigate whether any fatal legal bars and objections stand in the way of the applications.
(a) The deference to be afforded to the Governor in Council’s decision to approve the project
[18] In reviewing the reasonableness of the Governor in Council’s approval decision, the Court must give the Governor in Council the “widest margin of appreciation” over the matter: Gitxaala Nation, at paragraph 155; Tsleil-Waututh Nation, at paragraph 206. The level of deference is high.
[19] The Governor in Council’s approval decision is a “discretionary [one] … based on the widest considerations of policy and public interest assessed on the basis of polycentric, subjective or indistinct criteria and shaped by its view of economics, cultural considerations, environmental considerations, and the broader public interest”: Gitxaala Nation, at paragraphs 140–144 and 154; see also Tsleil-Waututh Nation, at paragraphs 206–223. Only the Governor in Council—not this Court—is equipped to evaluate such considerations with precision: Gitxaala Nation, at paragraphs 142–143, citing League for Human Rights of B’Nai Brith Canada v. Canada, 2010 FCA 307, [2012] 2 F.C.R. 312, at paragraphs 76–77. Thus, only arguments that can possibly get past a high level of deference can qualify as “fairly arguable”.
(b) The leeway that must be given on the adequacy of consultation with First Nations and Indigenous peoples
[20] Adequate consultation consists of “reasonable efforts to inform and consult”, not all possible efforts: Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, at paragraph 62. There must be “meaningful two-way dialogue” and “serious consideration” about both “the specific and real concerns” of Indigenous peoples and possible measures to accommodate those concerns: Haida Nation, at paragraph 62; R. v. Gladstone, [1996] 2 S.C.R. 723, (1996), 137 D.L.R. (4th) 648, at paragraph 170; R. v. Nikal, [1996] 1 S.C.R. 1013, (1996), 133 D.L.R. (4th) 658, at paragraph 110; Tsleil-Waututh Nation, at paragraphs 562–563.
[21] Compliance with the duty to consult is not measured by a standard of perfection: Gitxaala Nation, at paragraphs 182–184; Tsleil-Waututh Nation, at paragraphs 226, 508–509 and 762. Some leeway must be afforded because of the inevitability of “omissions, misunderstanding, accidents and mistakes” and “difficult judgment calls” in “numerous, complex and dynamic” issues involving many parties: Gitxaala Nation, at paragraph 182.
[22] The duty to consult does not require the consent or non-opposition of First Nations and Indigenous peoples before projects like this can proceed: Gitxaala Nation, at paragraphs 179–180; Bigstone Cree Nation v. Nova Gas Transmission Ltd., 2018 FCA 89, 16 C.E.L.R. (4th) 1, at paragraph 49; Squamish First Nation v. Canada (Fisheries and Oceans), 2019 FCA 216, 436 D.L.R. (4th) 596, at paragraph 37. Dissatisfaction, disappointment or disagreement with the outcome reached after consultation is not enough to trigger a breach of the duty: Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, [2017] 2 S.C.R. 386, at paragraph 83; Bigstone, at paragraph 70. Under the duty to consult, First Nations and Indigenous peoples do not have a right to veto a project.
[23] Thus, arguments that consultation was inadequate can only meet the “fairly arguable” standard if the alleged inadequacies go beyond the leeway given to the decision maker. The arguments must be focused on the process, quality and conduct of consultation.
(c) Fatal legal bars and objections
[24] An established body of law bars relitigation—namely the doctrines of res judicata, issue estoppel and abuse of process: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460 (issue estoppel); Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 (abuse of process). With some wrinkles, these doctrines bar arguments from being advanced in a later, second proceeding when they were raised and decided in a first proceeding or could have been raised in that first proceeding.
[25] This bar is potentially live in these motions. In Tsleil-Waututh Nation, this Court struck down the Governor in Council’s first approval of this project. In so doing, this Court did not require all the work and consultation leading up to the Governor in Council’s approval to be redone. The Court decided that much of the earlier work satisfied the law. It only required targeted work and further meaningful consultation to be performed to address the specific flaws that led to the quashing of the first approval. The Governor in Council has now approved the project again and the applicants seek leave to start a new round of judicial reviews. Due to the doctrines barring relitigation, the applicants cannot now raise issues that were raised and decided (or that could have been raised) in Tsleil-Waututh Nation—and there were many, as the 254 pages and 776 paragraphs in it show.
[26] As a practical matter, this means that any judicial review of the Governor in Council’s latest approval decision must be limited to: (1) measuring the targeted work and further consultation required by Tsleil-Waututh Nation against the applicable law and the specific flaws identified in Tsleil-Waututh Nation; and (2) assessing any legally relevant events that postdate Tsleil-Waututh Nation and affect the project’s approval. Due to the doctrines barring relitigation, issues raised in a judicial review application that go beyond these things cannot meet the “fairly arguable” standard.
[27] The Court has discretion to relax the doctrines barring relitigation in appropriate circumstances: see Danyluk, at paragraph 33. But the applicants—especially in their responses to the submissions of the Attorney General of Alberta on relitigation—have not presented any case, let alone an arguable case, that this Court should do so.
[28] In this case, the doctrines barring relitigation are most important. Were the doctrines ignored, a never-ending series of court challenges could ensue. For example, in file 19-A-46, parties who did not participate in Tsleil-Waututh Nation have applied for leave to raise Charter [Canadian Charter of Rights and Freedoms] issues that could have been raised in Tsleil-Waututh Nation but were not. Without strict enforcement of the doctrines barring relitigation, this sort of thing could happen again and again, keeping the project tangled in litigation, subverting the purpose of this legislative scheme.
[29] Related to the bars against relitigation is the binding effect of prior decided cases. The law set out by this Court in Tsleil-Waututh Nation and Gitxaala Nation—both heavily based on governing authority from the Supreme Court of Canada—bind this Court and will determine large swathes of these leave applications. Thus, this is not the wider sort of case where the legal principles are unknown and have to be developed. Rather, this is the narrower sort of case where the Court must assess whether known legal principles have been followed. There is more scope for “fairly arguable” issues in the former sort of case than the latter.
(2) Evaluating the issues raised by the applicants in the leave motions
[30] To reiterate, the most central issues in the leave motions are the alleged substantive unreasonableness of the Governor in Council’s decision to approve the project and the Crown’s alleged failure to adequately consult with Indigenous peoples and First Nations. These issues can be subdivided for the purpose of evaluation and combined with other, narrower, issues raised by the applicants. It is useful to group them into four categories: alleged conflict of interest and bias, environmental issues and substantive reasonableness, issues relating to the consultation with Indigenous peoples and First Nations, and remaining, miscellaneous issues.
(a) Alleged conflict of interest and bias
[31] Various applicants submit that the decision of the Governor in Council is vitiated by bias and a conflict of interest. They submit that the bias and conflict of interest arises from the fact that, soon after the first approval decision, the Government of Canada, through a corporate vehicle, acquired the respondent Trans Mountain and now, practically speaking, owns the project.
[32] This submission does not pass the “fairly arguable case” test.
[33] At the outset, it suffers from a fatal flaw. The Governor in Council is not the Government of Canada. The Governor in Council, the decision maker here, does not own the project.
[34] More fundamentally, section 54 of the National Energy Board Act requires the Governor in Council to decide whether to approve a project regardless of who owns it. The Act does not disqualify the Governor in Council from discharging this responsibility based on ownership of the project. The Act prevails over any common law notions of bias and conflict of interest: Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781.
[35] This case would be different if the Governor in Council blindly approved the project because the Government of Canada now owns it instead of looking at legally relevant criteria. But to make that sort of point “fairly arguable”, there must be at least a shred of evidence to support it. In the evidentiary record before the Court, there is none. Without evidence, suggestions of bias or conflict of interest are just idle speculations or bald allegations and cannot possibly satisfy the test of a “fairly arguable case”: Merchant Law Group v. Canada Revenue Agency, 2010 FCA 184, 321 D.L.R. (4th) 301, at paragraph 34 and cases cited therein; JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue), 2013 FCA 250, [2014] 2 F.C.R. 557, at paragraph 45 and cases cited therein.
[36] Some applicants have noted public statements on the part of certain federal politicians in support of the project as proof of disqualifying bias. This issue is not “fairly arguable”. In law, statements of this sort do not trigger disqualifying bias: see, e.g., Gitxaala Nation, at paragraphs 195–200; Prophet River First Nation v. British Columbia (Environment), 2015 BCSC 1682, [2016] 1 C.N.L.R. 207, at paragraphs 189–200, affd 2017 BCCA 58, 94 B.C.L.R. (5th) 232; West Moberly First Nations v. British Columbia (Energy and Mines), 2014 BCSC 924, 76 Admin. L.R. (5th) 223, at paragraphs 107–110.
(b) Environmental issues and substantive reasonableness
[37] The applicants’ arguments on the environmental issues cannot meet the threshold of a “fairly arguable case”.
[38] In Tsleil-Waututh Nation, many arguments about the environmental effects of the project either were made or could have been made but were not. Most of the environmental points the applicants now raise are not fairly arguable because they fall into one of these categories. They are barred by the doctrines against relitigation.
[39] A couple of examples will suffice to illustrate this. Some applicants submit that the Governor in Council had no jurisdiction to make a decision without ensuring the requirements of the Species at Risk Act, S.C. 2002, c. 29 were met. This point is not fairly arguable because this Court specifically rejected it in Tsleil-Waututh Nation, at paragraph 464.
[40] Some applicants allege flaws in the Board’s examination of environmental matters under the Species at Risk Act and the Canadian Environmental Assessment Act, 2012, S.C. 2012, c. 19, s. 52. Other applicants raise other matters, such as the project’s greenhouse gas emissions, the need for the project, the economics of the project, and the risk of oil spills. These too are not fairly arguable because they were raised and decided or could have been raised in Tsleil-Waututh Nation.
[41] Recall what this Court decided in Tsleil-Waututh Nation (at paragraph 201): this Court found a “[material] deficien[cy]” in the National Energy Board’s work such that its report to the Governor in Council was not an admissible “report” under section 54. This meant that the Governor in Council lacked a necessary legal prerequisite to decide under section 54. The “[material] deficien[cy]” in that case was major and glaring: the National Energy Board failed to examine the issue of project-related marine shipping as part of the project.
[42] Since this Court’s decision in Tsleil-Waututh Nation, the National Energy Board addressed this material deficiency by providing a comprehensive, detail-laden, 678-page report to the Governor in Council that considered the issue of project-related marine shipping and related issues and suggested measures for mitigating effects. The Governor in Council considered the new report, as is evident from the Order in Council it issued.
[43] Many of the applicants submit that the new report is so flawed that the Governor in Council still lacks the necessary legal prerequisite of a “report” under section 54. This submission cannot possibly succeed based on the degree of examination and study of the issue of project-related marine shipping and related environmental issues in the new report.
[44] Under section 54, the Governor in Council had to consider whether the project should be approved and, if necessary, on what conditions. Based on the evidence the applicants have filed and the applicable law, it is impossible for the applicants to overcome the considerable deference the Court must afford to the Governor in Council as it considers the new report, in all its detail and technicality, and as it makes this sort of public interest decision: see paragraphs 16(b) and 18–19, above. Its decision involved a weighing and balancing of the project’s benefits against its detriments, drawing upon broad considerations of economics, science, the environment, the public interest, and other considerations of a policy nature, all of which lie outside of the ken of this Court: Gitxaala Nation, at paragraph 148, citing Canada v. Kabul Farms Inc., 2016 FCA 143, 13 Admin. L.R. (6th) 11, at paragraph 25. The law forces this Court to afford significant deference—according to the cases, the “widest margin of appreciation” [Gitxaala Nation, at paragraph 155]—to the Governor in Council and the outcome it has reached based on this weighing and balancing. The applicants’ case for substantive unreasonableness on environmental issues and the issues arising under environmental legislation is no stronger than that which this Court dismissed in Gitxaala Nation and Tsleil-Waututh Nation.
[45] As well, in attempting to meet the standard of “fairly arguable”, the applicants have to show that their arguments could practically change the outcome: see paragraph 16(c), above. On this, they fail. The Governor in Council found that compelling public interest considerations clearly outweighed the adverse environmental effects. The decisive and emphatic nature of the Governor in Council’s reasons set out in the Order in Council leads inexorably to the conclusion that if the matters raised by the applicants, Raincoast Conservation, Living Oceans Society, Federation of B.C. Naturalists and the City of Vancouver, were placed in a further new report given to the Governor in Council, the Governor in Council would still conclude the project is, on balance, in the public interest and would still approve it.
(c) Issues relating to the adequacy of the consultation with Indigenous peoples and First Nations
[46] At the outset, there are two sets of arguments relating to the adequacy of consultation that do not pass the “fairly arguable” standard.
[47] First, some of the applicants’ arguments reflect their dissatisfaction and disagreement with the outcome of the consultation process and effectively assert a right to consent or to exercise a veto over the project—the very things that numerous authorities tell us are not encompassed by the duty to consult.
[48] Second, in Tsleil-Waututh Nation, many points concerning the adequacy of consultation were raised and decided and many others could have been raised but were not. The doctrines against relitigation now apply to bar these points. This renders some of the points the applicants now raise inadmissible under the “fairly arguable” standard. A good example is shown by the Stz’uminus First Nation and the Shxw’ōwhámel First Nation. They raise consultation concerns that could have been raised and addressed in Tsleil-Waututh Nation. They did not appear in Tsleil-Waututh Nation to advance their concerns and are now barred from doing so. On this, the comments made in paragraph 28 above are apposite, as are the submissions of the Attorney General of Alberta at paragraphs 48–50 of his written submissions. These applicants will not be granted leave to start an application for judicial review.
[49] However, some issues advanced by the other Indigenous and First Nation applicants concerning the adequacy of consultation do meet the “fairly arguable” standard.
[50] The Court in Tsleil-Waututh Nation found (at paragraph 6) that Canada had not discharged its duty to consult in one part of the consultation process—Phase III. In particular, at paragraphs 557–563, this Court summarized a number of consultation flaws: a failure to engage in a meaningful two-way dialogue and, related to this, an unduly limited mandate given to Crown representatives who were engaged in consultation; an improper reluctance to depart from the findings of the National Energy Board and conditions on the project recommended by it; and an erroneous view on the part of the Governor in Council that it could not impose additional conditions on the project.
[51] As a result, this Court in Tsleil-Waututh Nation quashed the approval of the project and required more work to be done in Phase III of the consultation process. In the following months, further consultation took place to that end.
[52] Many of the Indigenous and First Nation applicants now allege that the poor quality and hurried nature of this further consultation rendered it inadequate. In order to appreciate this issue, some background needs to be set out.
[53] After Tsleil-Waututh Nation sent the matter back to the Governor in Council for redetermination, the Governor in Council issued an order under the National Energy Board Act requiring the Board, within 155 days, to reconsider its recommendation concerning the project and all terms and conditions set out in the Board’s first report relevant to project-related marine shipping and related issues: Order in Council P.C. 2018-1177 (September 20, 2018). The Board delivered its reconsideration report on February 22, 2019.
[54] In Tsleil-Waututh Nation (at paragraph 771), this Court required that the further consultation process be completed before the Governor in Council decided on the approval of the project. But once the Governor in Council received the Board’s reconsideration report, subsection 54(3) of the National Energy Board Act kicked in and required the Governor in Council to decide on the project within three months. Under subsection 54(3) the Governor in Council could extend this deadline. It did so, by one month, in order to allow more time for the further consultation process: Order in Council P.C. 2019-378 (April 17, 2019). At the time, some of the Indigenous and First Nation applicants complained that the extension was insufficient to complete the further consultation process. None of them brought an application for judicial review challenging the small size of the extension. And assuming the law permitted them to bring such an application at the time, it is now too late.
[55] Whether the further consultation process was adequate is unclear. Because a future panel of this Court will have to decide on its adequacy, only a few general comments will now follow.
[56] Given the fundamental nature of the interests of Indigenous peoples and First Nations, the applicants say the Governor in Council’s decision that the further consultation was adequate should be strictly reviewed.
[57] In their evidence, consisting of many thousands of detailed pages, the Indigenous and First Nations applicants point with considerable particularity and detail to issues they say were important to them. They say the Government of Canada ignored these issues in the original process of consultation and ignored them again in the further consultation process. They add that little or nothing was done in the process of further consultation from the time Tsleil-Waututh Nation was released until the National Energy Board delivered its report—a period slightly less than six months. In their view, the time left for the further consultation process, roughly four months, was insufficient to address the shortcomings identified by this Court in Tsleil-Waututh Nation. Even during these four months, some of the applicants allege inactivity by the Government of Canada.
[58] The applicants do acknowledge that the Government of Canada introduced some new initiatives to assist consultation and added some conditions on the project approval that was ultimately given. But to them this is just window-dressing, box-ticking and nice-sounding words, not the hard work of taking on board their concerns, exploring possible solutions, and collaborating to get to a better place.
[59] The respondents, including the Attorney General of Canada representing the Government of Canada, took no position for or against the leave motions brought by the Indigenous and First Nation applicants. The respondents did state that if leave were granted and applications for judicial review were brought they would support the Governor in Council’s decision and oppose the applicants. But on the leave motions they offered no submissions or evidence to assist the Court.
[60] The Attorney General of Alberta did intervene to oppose the granting of leave. But while his legal submissions were helpful, he was not involved in the further consultation process and so he could not provide evidence on it.
[61] The recitals in the Governor in Council’s Order in Council are all the Court has against the applicants’ position in these leave motions. They assert that by the time of the decision, the Governor in Council believed that the further consultation with Indigenous peoples and First Nations was adequate. The recitals also set out many new consultative steps and initiatives pursued to remedy the flaws identified in Tsleil-Waututh Nation and plenty of general activity such as 46 ministerial meetings with 65 Indigenous groups.
[62] Down the road, the respondents might be able to present strong evidence supporting the adequacy of the further consultation and show that the Governor in Council reasonably, i.e., acceptably and defensibly, believed that the further consultation was adequate. The respondents might have submissions about the extent to which the Court should defer to the Governor in Council’s assessment of the adequacy of consultation and the leeway the Court must give where issues of compliance with the duty to consult arise.
[63] At this time, however, the respondents have withheld their evidence and legal submissions on these points. So the analysis cannot progress further.
[64] Therefore, this Court must conclude that the issue of adequacy of the further consultation arising from the circumstances described in paragraphs 50–62, above, meets the “fairly arguable” standard for leave.
[65] I would state this issue in the form of a question: from August 30, 2018 (the date of the decision in Tsleil-Waututh Nation) to June 18, 2019 (the date of the Governor in Council’s decision) 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 paragraphs 557–563 of Tsleil-Waututh Nation? The answer to this question should include submissions on the standard of review, margin of appreciation or leeway that applies in law.
[66] The respondents should not be foreclosed from raising any bars or defences to any applications for judicial review. Therefore, a second question should be stated: do any defences or bars to the application for judicial review apply?
[67] Finally, depending on the answers to the foregoing questions, the issue of remedy may arise. As the administrative law principle set out in paragraph 16(c) above illustrates, sometimes the decision, despite its defects, should not be quashed and the matter should not be sent back for redetermination. As well, other considerations may affect the entitlement to a remedy, the type of remedy, or the terms of a remedy. Therefore, a third question should be stated: if the answers to the above questions are negative, should a remedy be granted and, if so, what remedy and on what terms?
[68] The parties are free to structure their submissions as they see fit, as long as they answer all of these questions in some way—and only these questions.
(d) Remaining miscellaneous issues
[69] To the extent that miscellaneous issues exist that do not neatly fit into the four categories above, none of them meet the “fairly arguable” standard. On these, the Court substantially adopts the submissions of the Attorney General of Alberta.
[70] In particular, in the case of file 19-A-46, there is no evidence supporting the applicants’ Charter claims. The applicants’ arguments are also barred by the doctrines against relitigation: see paragraph 28, above. On the issue of procedural fairness, this Court substantially adopts the submissions of the Attorney General of Alberta, and finds no arguable case. Here too, Tsleil-Waututh Nation provides a full answer. The legal principles of that case are not in question and, when applied to the facts, foreclose the finding of a fairly arguable issue here.
E. Conclusion
[71] It follows that the Indigenous and First Nation applicants, other than the Stz’uminus First Nation and the Shxw’ōwhámel First Nation, will be given leave to start applications for judicial review addressing the two questions, above. These applicants are (in alphabetical order):
• Aitchelitz, Skowkale, Shxwhá:y Village, Soowahlie, Squiala First Nation, Tzeachten, Yakweakwioose;
• Chief Ron Ignace and Chief Rosanne Casimir, on their own behalf and on behalf of all other members of the Stk’emlupsemc Te Secwepemc of the Secwepemc Nation;
• Coldwater Indian Band;
• Squamish Nation;
• Tsleil-Waututh Nation; and
• Upper Nicola Band.
[72] All of the other leave motions will be dismissed.
F. The upcoming proceedings
[73] Given the issue on which leave will be permitted, the upcoming proceedings will be narrower and more focused than those in Tsleil-Waututh Nation concerning the first project approval.
[74] There is a substantial public interest in having the upcoming proceedings decided very quickly one way or the other.
[75] The parties are directed to file their notices of application for judicial review within seven days and, in the case of the Attorney General of Alberta, to file a notice of motion to intervene within seven days if he intends to try to participate in the applications.
[76] The parties are directed to contact the Judicial Administrator in the next three days to advise of their availability for a conference call with the Court in the next week to discuss a highly expedited schedule for the applications for judicial review. The Court queries whether the period for submitting evidence and cross-examinations could be extremely short: the evidentiary focus will be exclusively or almost exclusively on the further consultation process and the findings of fact and law in Tsleil-Waututh Nation will already be before the Court. Conceivably, the applicants’ affidavits on these leave motions could be filed in chief in the applications, the respondents could be permitted a short time to file their responding affidavits, and the applicants could be permitted a short time after that to file reply affidavits. The applicants have also done much of the work necessary for their memoranda of fact and law and so the timelines for the filing of memoranda of fact and law might also be able to be shortened substantially.
G. Proposed disposition
[77] Orders will issue in accordance with these reasons. The terms of the orders for the successful applicants are the same. The terms of the orders for the unsuccessful applicants are the same except for the costs award in file 19-A-46.
[78] On the issue of costs, the respondents did not take a position in 11 of 12 motions and so no costs will be awarded for or against them in those motions. The exception is the motion in file 19-A-46. There, only the respondent, Trans Mountain Pipeline ULC, asked for its costs and it is entitled to them. The remaining respondents in that motion did not ask for costs and, thus, will not get them.
[79] The order granting the Attorney General of Alberta leave to intervene did not protect him from an award of costs nor did it potentially entitle him to costs. In the result, his position was upheld in some motions and not upheld in others. However, his intervention was very helpful to the Court. So costs will not be ordered for or against the Attorney General of Alberta.
[80] Therefore, in the motion in file 19-A-46, costs will be awarded to the respondent, Trans Mountain Pipeline ULC. In all other motions, costs will not be awarded.