Dockets:
A-437-14 (lead file), A-56-14, A-59-14,
A-63-14, A-64-14; A-67-14, A-439-14,
A-440-14, A-442-14, A-443-14, A-445-14,
A-446-14, A-447-14, A-448-14, A-514-14,
A-517-14, A-520-14, A-522-14
Citation: 2015 FCA 73
Present: STRATAS
J.A.
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BETWEEN:
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GITXAALA NATION, GITGA’AT FIRST NATION,
HAISLA NATION, THE COUNCIL OF THE HAIDA NATION
and PETER LANTIN suing on his own behalf and on
behalf of all citizens of the Haida Nation,
KITASOO XAI'XAIS BAND COUNCIL on behalf of
all members of the Kitasoo Xai’Xais Nation and
HEILTSUK TRIBAL COUNCIL on behalf of all
members of the Hailtsuk Nation, MARTIN LOUIE,
on his own behalf, and on behalf of Nadleh Whut’en and on
behalf of the Nadleh Whut’en Band, FRED SAM, on his
own behalf, on behalf of all Nak’azdli Whut’en, and on
behalf of the Nak’azdli Band, UNIFOR, FORESTETHICS
ADVOCACY ASSOCIATION, LIVING OCEANS SOCIETY,
RAINCOAST CONSERVATION FOUNDATION,
FEDERATION OF BRITISH COLUMBIA NATURALISTS
carrying on
business as BC NATURE
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Applicants and Appellants
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and
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HER MAJESTY THE QUEEN, ATTORNEY GENERAL
OF CANADA, MINISTER OF THE ENVIRONMENT,
NORTHERN GATEWAY PIPELINES INC.,
NORTHERN GATEWAY PIPELINES LIMITED PARTNERSHIP
and NATIONAL
ENERGY BOARD
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Respondents
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and
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THE ATTORNEY GENERAL OF BRITISH COLUMBIA,
AMNESTY INTERNATIONAL and
THE CANADIAN
ASSOCIATION OF PETROLEUM PRODUCERS
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Interveners
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REASONS
FOR ORDER
STRATAS J.A.
[1]
These consolidated matters are applications and
appeals from decisions of the Governor in Council, the National Energy Board
and a Joint Review Panel concerning the Northern Gateway Pipeline Project.
[2]
Recently, the Attorney General of British
Columbia, reacting to a notice of constitutional question, has asked to
intervene and file a memorandum of fact and law on the constitutional question
at the same time the respondents file their memoranda. It may intervene as of
right: Federal Courts Act, R.S.C. 1985, c. F-7, subsection 57(4). An
order to this effect shall be made.
[3]
Before the Court are two motions under Rule 109
of the Federal Courts Rules, S.O.R./98-106 for leave to intervene in
these consolidated matters, one by Amnesty International and another by the
Canadian Association of Petroleum Producers. For the reasons that follow, I
grant both leave to intervene on terms.
A. The test for granting leave to intervene
[4]
For the purposes of these motions, I
shall apply the test in Canada (Attorney General) v. Pictou Landing
First Nation, 2014 FCA 21, 456 N.R. 365. This
test updates and modifies the former test in Rothmans, Benson & Hedges Inc. v. Canada (Attorney General) (1989), [1990] 1
F.C. 74 at paragraph 12 (T.D.), aff’d [1990]
1 F.C. 90 (C.A.).
[5]
The test in Pictou, supra
at paragraph 11 is as follows:
I.
Has
the proposed intervener complied with the specific procedural requirements in
Rule 109(2)? Is the evidence offered in support detailed and
well-particularized? If the answer to either of these questions is no, the
Court cannot adequately assess the remaining considerations and so it must deny
intervener status. If the answer to both of these questions is yes, the Court
can adequately assess the remaining considerations and assess whether, on
balance, intervener status should be granted.
II.
Does
the proposed intervener have a genuine interest in the matter before the Court
such that the Court can be assured that the proposed intervener has the
necessary knowledge, skills and resources and will dedicate them to the matter
before the Court?
III.
In
participating in this appeal in the way it proposes, will the proposed
intervener advance different and valuable insights and perspectives that will
actually further the Court’s determination of the matter?
IV.
Is it
in the interests of justice that intervention be permitted? For example, has
the matter assumed such a public, important and complex dimension that the
Court needs to be exposed to perspectives beyond those offered by the
particular parties before the Court? Has the proposed intervener been involved
in earlier proceedings in the matter?
V.
Is the
proposed intervention inconsistent with the imperatives in Rule 3, namely
securing “the just, most
expeditious and least expensive determination of every proceeding on its
merits”?
Are there terms that should be attached to the intervention that would advance
the imperatives in Rule 3?
[6]
Certain of these factors support the granting of
leave to intervene. Both proposed interveners have complied with Rule 109(2),
offering evidence to the Court that is detailed and well-particularized.
[7]
Both proposed interveners have a genuine
interest in the matter and the Court is confident that they will bring
knowledge, skills and resources to the matter before the Court.
[8]
Finally, granting leave to each to intervene is
consistent with the objectives of Rule 3. Both proposed interveners applied for
leave in accordance with the schedule set by this Court for these consolidated
matters, a schedule that was made to implement the objectives of Rule 3.
[9]
In both motions, the controversy concerns
factors III and IV in the test, namely the extent to which each proposed
intervener will bring different and valuable insights that will further the
Court’s determination and whether it is in the interests of justice that
intervention be permitted. Each of the proposed interveners has strengths and
weaknesses on these factors.
B. Amnesty
International
[10]
On a motion for leave to intervene, the Court
must consider whether the proposed intervener will offer insights and
perspectives that “will actually further the Court’s
determination of the matter”: Pictou, supra at paragraph
11 (factor III).
[11]
Amnesty International offers an international
law perspective to the issues before us. It suggests that there are a number of
international instruments and other materials that affect the issues. A reading
of its memorandum suggests that international law is very much at large on all
issues in many different ways in this consolidated matter. In my view, this casts
things far too broadly.
[12]
In some cases, we are treated to lengthy
submissions of international law that have little or no relevance to the
domestic law issues we must determine. Often counsel advancing those
submissions assume that law at the international level – often expressing
fundamental concepts and “above” the law of
particular nation-states – always applies when we interpret and apply domestic
law. As a matter of law, that is simply not true.
[13]
International law potentially affects the issues
in these consolidated matters in only limited ways. If Amnesty International’s
intervention actually is to further
this Court’s determination of these consolidated matters, it must be
directed at those limited ways.
[14]
The issues before us are defined by the notices
of application and notices of appeal filed in the consolidated matters. From
these, I conclude that the issues before us include the following: the reasonableness
or correctness of decisions made by the Governor in Council, the National
Energy Board and the Joint Review Panel acting under legislative powers of
decision, whether any duties to consult with Aboriginal peoples remain
unfulfilled, and whether the decisions should be set aside because of
procedural errors.
[15]
In the case of the reasonableness or correctness
of the decisions made, the meaning of the legislative provision authorizing or
regulating each decision usually forms an important part of the analysis. As I
shall explain, international law can enter the analysis where the meaning of
the legislative provision is unclear.
[16]
Domestic law, not international law, forms the
law of the land, unless the domestic law expressly incorporates international law
by reference: Ordon Estate v. Grail, [1998] 3 S.C.R. 437, 166 D.L.R. (4th) 193 at paragraph 137; Capital Cities
Communications Inc. v. Canadian Radio-Television Commission, [1978] 2 S.C.R. 141 at pages 172-73, 81 D.L.R.
(3d) 609; and see sections 91 and 92 of the Constitution
Act, 1867, which give Parliament and the legislatures the “exclusive” power
to make laws. If a legislative provision is
clear and unambiguous, international law cannot be used to change its meaning: Németh
v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281 at paragraph 35; Schreiber
v. Canada (Attorney General), 2002 SCC 62, [2002] 3 S.C.R. 269 at paragraph
50.
[17]
However, if there are multiple possible
interpretations of a legislative provision, we should avoid interpretations
that would put Canada in breach of its international obligations: Ordon
Estate, supra at paragraph 137. This canon of construction is based
on a presumption that our domestic law conforms to international law: R. v.
Hape, 2007 SCC 26, [2007] 2 S.C.R. 292 at paragraph
53. For example, in Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 at paragraphs
69-71, the Supreme Court considered the statutory words “humanitarian and compassionate” to be ambiguous and
so it used international law to resolve the ambiguity. As a practical matter,
this canon of construction is seldom applied because most legislative
provisions do not suffer from ambiguity and, thus, “must
be followed even if they are contrary to international law”: Daniels
v. White, [1968] S.C.R. 517 at page 541, 2 D.L.R. (3d) 1. Overall,
then, international law can play a role in the interpretation of legislative
provisions – indeed, sometimes an important one – but it is a well-defined,
limited role.
[18]
In an administrative law case such as this,
international law can enter into the analysis in another limited way. For the
purposes of this discussion, I shall assume we are dealing with an unambiguous legislative
provision that does not expressly incorporate international law by reference.
Under such a provision, despite its clarity, an administrative decision-maker
might be able to exercise its discretion in more than one way. And it may be
that one particular exercise of discretion is more consistent with international
law standards than others. When the administrative decision-maker refrains from
exercising its discretion in the way that is more consistent with international
law standards and instead exercises its discretion in another way, a party can
challenge the reasonableness of that exercise of discretion, invoking the
decision-maker’s failure to follow international law standards. But given the
status of international law where domestic law is unambiguous, this is simply an
argument that the decision-maker failed to follow a non-binding policy
consideration. That failure may or may not render the decision unreasonable.
Much will depend on the importance of the international law standard in the
context of the particular case and the breadth of the margin of appreciation or
range of acceptability and defensibility the decision-maker enjoys in
interpreting and applying the legislative provision authorizing its decision:
see, e.g., Canada (Minister of Transport, Infrastructure and
Communities) v. Jagjit Singh Farwaha, 2014 FCA 56 at paragraphs 88-105 for
the general approach.
[19]
In the case of the duty to consult, decisions of
the Supreme Court are binding on us and have defined the duty with some
particularity. We are not free to modify the Supreme Court’s law on the basis
of international law submissions made to us. International law, at best, might
be of limited assistance in interpreting and applying the law set out by
Supreme Court.
[20]
I accept that some standards in international
law can bear upon procedural fairness. However, for the most part, procedural
fairness has been well-defined in cases such as Baker, supra. On
this motion, Amnesty International has not persuaded me that international law
will affect the Court’s determination on procedural issues in any concrete way.
[21]
As for the overall interests of justice (factor
IV in Pictou), I am concerned that there are already a large number of
applicants/appellants before the Court – they outnumber the respondents greatly
– and they are quite capable of invoking international law as they please,
though perhaps not with the expertise of Amnesty International. Amnesty
International is indeed uniquely placed to make useful submissions on these
issues.
[22]
In assessing this motion for intervention, I
must consider the overall fairness of the intervention. The respondents
Northern Gateway Pipelines Inc. and Northern Gateway Pipelines Limited
Partnership note the number of parties arrayed against them in these
consolidated matters. They are concerned that they will already have much to
respond to, especially if the applicants/appellants in their memoranda divvy up
issues among themselves to avoid duplication. More specifically, they are
concerned that the respondents are faced with page limits for their memoranda
and may have to use some of their scarce pages responding to Amnesty
International.
[23]
These concerns are well-founded. An aspect of
overall fairness in the litigation process is the “equality
of arms”: Lord Woolf, Access to Justice: Interim Report to the Lord
Chancellor on the Civil Justice System in England and Wales (London,
U.K.: Lord Chancellor’s Department, 1995). To the extent possible, no one side
should be so numerous or dominant that its voices drown out the other side and
prevent it from expressing itself adequately.
[24]
In oral argument in this Court, we recognize “equality of arms” by affording equal time in oral
argument to each side before us, no matter how many might be on one side. As
far as memoranda are concerned, the best way to ensure “equality
of arms” is by allowing greatly outnumbered parties, when requested, to
file lengthier memoranda, but only if necessary.
[25]
It is a close call, but overall I exercise my
discretion to allow Amnesty International leave to intervene on terms,
primarily because of its expertise in international law issues and the
potential that international law issues may be relevant, albeit in limited ways.
[26]
Amnesty International may file a memorandum of
fact and law of no more than 15 pages on or before the deadline set for applicants/appellants
to file their memoranda. It may also make oral submissions in the hearing of
the consolidated matters. The panel will decide upon the length of those
submissions.
[27]
Amnesty International’s written and oral submissions
shall be limited to issues of international law, but only insofar as they are
relevant and necessary to any of the issues in the consolidated matter. It must
explain, in legal terms, how and why the particular international law
submission is relevant and necessary to the determination of a specific issue,
with specific reference to the law set out above or other law bearing on the
point. For example, it will have to identify a legislative provision that is
ambiguous or that authorizes more than one exercise of discretion and then
identify the international law that it says is relevant to the issue.
[28]
For clarity, while I am sceptical as to the
relevance of international law in areas settled by the Supreme Court, such as
the content of the duty to consult and procedural fairness, Amnesty International
may speak to those issues as long as it complies with the terms in the
preceding paragraph.
[29]
The panel hearing these consolidated matters may
disregard any international law submissions that do not comply with these
conditions or are otherwise irrelevant.
[30]
Also as a term of granting Amnesty International
leave to intervene, I shall invite the respondents, if they consider it
necessary, to move by way of informal letter for an extension of the length of
their memoranda within three days of receiving the memoranda of the applicants/appellants
and Amnesty International.
C. Canadian
Association of Petroleum Producers
[31]
On the earlier direction of Justice Sharlow, the
Association presented with its motion materials a draft intervener’s
memorandum. In response, a number of applicants/appellants oppose the
Association’s intervention, expressing a number of concerns. I share many of
those concerns.
[32]
The Association appears to be doing nothing more
than advancing submissions that the respondents can themselves advance. The
submissions do not reflect any particular perspective of the Association, a
group of entities whose economic interests are affected by the Northern Gateway
Pipeline Project.
[33]
Nevertheless, there are some considerations that
favour granting the Association leave to intervene.
[34]
The Project was approved in part on the basis
that it is in the public interest. The legality and reasonableness of the
approval is under attack. The Association is well-placed to speak to the issue
of the public interest. It represents a broad segment of the public affected by
the decisions below.
[35]
In Pictou, supra at paragraph 11,
one important consideration is whether the Court is dealing with matters that
have “assumed…a public, important and complex
dimension” such that the Court needs to be exposed to perspectives
beyond those offered by the particular parties before the Court. In some cases,
merely from the standpoint of the appearance of fairness, let alone the
concrete assistance that might be offered, a particular intervention might be
justified. While such cases are rare, in my view this is one such case.
[36]
At present, on one side are aboriginal groups,
environmental groups, a union, and now, in the case of Amnesty International, a
leading international organization. At present, on the other side are
governmental entities, the proponents of the Project, and no one else. What is
missing are those, other than the proponents, whose interests may be affected
if the Project’s approval is overturned. The Association helps to fill that
gap.
[37]
In my
view, this matter is different from Forest Ethics
Advocacy Association v. National Energy Board, 2014
FCA 88. There, this Court refused to grant leave to intervene to a single
refiner downstream of a pipeline. Here we have an association representing a
complete industrial sector. Further, the issue in this Court in Forest
Ethics Advocacy Association – a review of the National Energy Board’s
decision to deny a single individual a right to participate – did not have the
sort of “public, important and complex dimension” we have here. Forest
Ethics Advocacy Association also did not have the sort of imbalance we have here, namely
an array of voices on one side and relatively few on the other side.
[38]
I also note that the Association was significantly
involved in the matter under review, adducing evidence and questioning
witnesses below. Although not at all determinative, this does support the
fairness of allowing it to intervene.
[39]
Again, it is a close call, but I shall grant
leave to the Association to intervene. In its memorandum of fact and law of no
more than fifteen pages, it shall make representations on the public interest
considerations that come to bear on this Court’s assessment of the correctness
or reasonableness of the decisions under review. If reasonableness review is
relevant, submissions may be made on the size or nature of the range of
acceptability or defensibility or the margin of appreciation that should apply
to the decisions under review and whether the decisions under review are within
those ranges or margins. To be clear, the draft memorandum it has presented to this
Court does not comply with the requirements set out in this paragraph and will
have to be amended.
[40]
The Association shall file its memorandum by the
time set for the respondents to file their memoranda. Its submissions shall not
duplicate those of the respondents.
[41]
The Association shall also be entitled to make
oral submissions at the hearing of these consolidated matters. The panel will
decide upon the length of those submissions.
[42]
Both interveners shall take the evidentiary
record as they find it. Neither intervener shall be liable for costs or
entitled to costs.
D. Disposition
[43]
An
order shall be issued in accordance with these reasons.
"David Stratas"
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