Canadian Association Of Petroleum Producers Granted Intervener Status In Pipeline Case

The Federal Court of Appeal recently released a significant decision in Gitxaala Nation v Canada1 granting the Canadian Association of Petroleum Producers (CAPP) leave to intervene in a consolidated proceeding concerning the Northern Gateway pipeline project (the Project).

Background

The Project proposes to build oil and natural gas condensate pipelines along a 1,172-km route from central Alberta to Kitimat, British Columbia, where a storage and marine terminal for the export of oil and import of natural gas condensate would be built. The applicants/appellants in this case are challenging decisions made by the National Energy Board, the Governor-in-Council and the Joint Review Panel approving the Project.

Recent decision on interveners

The court considered requests from CAPP and Amnesty International for leave to intervene in the case.2 Applying the test for granting intervener status in Canada (Attorney General) v Pictou Landing First Nation,3 the court focused on two particular elements of the test: the extent to which each proposed intervener would bring different and valuable insights that will further the court's determination, and whether it is in the interests of justice to permit the interventions.

CAPP

Many of the applicants and appellants expressed concern that CAPP would only repeat submissions that the respondents could themselves advance. Notwithstanding this concern, the court found that CAPP represented a broad segment of the public that is affected by the Project's approval (and potential overturning of same).

However, of particular interest was the court's reasoning that the appearance of fairness favoured granting CAPP intervener status in this case. Beginning at paragraph 34, the court discusses the imbalance between the number of parties opposing the Project and those responding in its favour. Missing from the cast of players were those, other than the Project's proponents, whose interests may be affected if the Project's approval was overturned. The court held that CAPP "helps to fill that gap."4 Moreover, CAPP is an association representing a complete industrial sector rather than a single private player, and it was significantly involved in the matter under review. These factors supported the fairness of allowing it to intervene.5

CAPP was directed to focus its submissions on the public interest considerations relevant to the assessment of the decisions under review.6

Amnesty International

The court granted Amnesty...