The Limits Of Judicial Intervention Where An Administrative Decision Is Not Yet Complete

[...] absent exceptional circumstances, parties cannot proceed to the court system until the administrative process has run its course [Canada (Border Services Agency) v CB Powell Limited, 2010 FCA 61 at para 31, [2011] 2 FCR 332].

The recent federal court case of Northern Cross (Yukon) Limited v Canada (Attorney General), 2017 FC 622, 2017 CarswellNat 2962 [Northern Cross] reaffirms the general principle that courts will be hesitant to intervene where an administrative decision is not yet finalized.

Background

Northern Cross (Yukon) Limited ("Northern Cross") submitted a proposal to a designated office of the Yukon Environmental and Socio-economic Assessment Board (the "Board") for a multi-well exploration project in the Yukon. The designated office, after a lengthy and detailed process, referred the proposal to the Executive Committee of the Board for screening. The designated office did not make a final determination on the proposal. Instead, the proposal was referred because the designated office "could not determine whether the Project will have, or is likely to have, significant socio-economic effects" (para 29). The effect of referring the proposal to the Executive Committee of the Board was that any actual determination of the proposal would likely be delayed by one to two years.

The designated office could not determine whether the proposal would have significant adverse environmental or socio-economic effects on a rather narrow ground. The designated office concluded it could not determine the "probability or magnitude" of changes to caribou migration. The need for greater certainty on caribou migration was necessary given the importance of the animals' relation to the First Nation and Inuvialuit way of life, and the unprecedented scale of the proposal (para 28).

Northern Cross applied for judicial review of the decision referring, the assessment of the proposal to the Executive Committee of the Board for screening, alleging that the process included breaches of procedural fairness and the decision to refer the proposal was a reviewable error.

The Decision

Although a number of issues were raised on appeal, Justice Boswell determined the federal court did have jurisdiction to hear the application but then determined the application for judicial review was premature; the application was dismissed with costs.

Analysis

The Legislative Framework and the Referral for Screening

Northern Cross' proposal was submitted to the designated...