A Complete Code: Was Canada's Defence In Raincoast Conservation Foundation v. Canada (Attorney General) Consistent With The Purpose Of The NEB Act?

On September 4, 2019, in Raincoast Conservation Foundation v. Canada (Attorney General)1, Justice Stratas of the Federal Court of Appeal allowed six applications by First Nations for judicial review of the Trans Mountain Pipeline Expansion Project (TMEP) to proceed and dismissed six other applications, including by environmental agencies, the City of Vancouver, and two First Nations.

The decision focused on section 55(2) of the National Energy Board Act (the Act) which requires that a judge decide, on a summary basis (based on written arguments) and without delay, whether an appeal of a decision of the Governor in Council should proceed.

The Act provides a complete code over project approvals.2 “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.”3 4

As Justice Stratas noted, one of the key objectives of the Act is to “prevent delay to a project that may benefit the public considerably.”5 “Leave must be sought quickly so that projects approved by the Governor in Council will not be unnecessarily held up.”6 “Any recourse to the judicial system must be necessary and as short as possible.”7 “Thus, the leave requirement [of the Act] is not just a cursory checkpoint on the road to judicial review. It is more like a thorough customs inspection at the border.”8

The Issues Raised

The Court summarized the issues on appeal into four categories:

1. Alleged conflict of interest and bias;

2. Environmental issues and substantive reasonableness;

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

4. Miscellaneous issues.9

Examination of the Issues - Other than Consultation

Justice Stratas considered each of the issues raised in order to determine whether they were capable of satisfying thefairly arguable standard, which is the required standard for proceeding to a full judicial review. Only arguments which reach thefairly arguable standard will justify a prolonged review that will delay a project which has been approved by the Governor in Council. Thefairly arguable standard applied by the Court is informed by the Act's role as a gatekeeper, the deference owed to the Governor in Council decision maker, and requires focusing on issues which strike at the root of the decision and which could potentially lead to a different result if the decision is returned to...