Dockets: A-78-17 (lead file); A-217-16; A-218-16;
A-223-16;
A-224-16; A-225-16; A-232-16;
A-68-17;
A-73-17; A-74-17; A-75-17;
A-76-17; A-77-17; A-84-17;
A-86-17
Citation: 2017 FCA 102
Present: STRATAS
J.A.
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BETWEEN:
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TSLEIL-WAUTUTH NATION, CITY OF
VANCOUVER, CITY OF BURNABY, THE SQUAMISH NATION (also known as the SQUAMISH
INDIAN BAND), XÀLEK/SEKYÚ SIÝ AM, CHIEF IAN CAMPBELL on his own behalf
and on behalf of all members of the Squamish Nation, COLDWATER INDIAN BAND,
CHIEF LEE SPAHAN in his capacity as Chief of the Coldwater Band on behalf of
all members of the Coldwater Band, MUSQUEAM INDIAN BAND, AITCHELITZ,
SKOWKALE, SHXWHÁ:Y VILLAGE, SOOWAHLIE, SQUIALA FIRST NATION, TZEACHTEN,
YAKWEAKWIOOSE, SKWAH, KWAW-KWAW-APILT, CHIEF DAVID JIMMIE on his own behalf
and on behalf of all members of the TS’ELXWÉYEQW TRIBE, UPPER NICOLA BAND,
CHIEF RON IGNACE and CHIEF FRED SEYMOUR on their own behalf and on behalf of
all other members of the STK’EMLUPSEMC TE SECWEPEMC of the SECWEPEMC NATION,
RAINCOAST CONSERVATION FOUNDATION and LIVING OCEANS SOCIETY
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Applicants
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and
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ATTORNEY GENERAL OF CANADA, NATIONAL ENERGY BOARD
and
TRANS MOUNTAIN PIPELINE ULC
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Respondents
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and
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ATTORNEY
GENERAL OF ALBERTA
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Intervener
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REASONS
FOR ORDER
STRATAS J.A.
[1]
Before the Court are two motions for leave to
intervene in these consolidated proceedings. The Attorney General of Alberta
has brought one of them. The Tsartlip First Nation and Chief Dom Tom on his own
behalf and on behalf of the members of the Tsartlip First Nation (collectively,
“the Tsartlip”) have brought the other. Both motions are opposed.
[2]
For the reasons that follow, the motion brought
by the Attorney General of Alberta shall be granted. The motion brought by the Tsartlip
shall be dismissed.
A.
The consolidated proceedings
[3]
In the consolidated proceedings, the applicants
seek to quash certain administrative decisions approving the Trans Mountain
Expansion Project. The decisions are a Report dated May 19, 2016 by the
National Energy Board, purportedly acting under section 52 of the National
Energy Board Act, R.S.C. 1985, c. N-7 and Order in Council PC 2016-1069
dated November 29, 2016 and published in a supplement to the Canada Gazette,
Part I, vol. 150, no. 50 on December 10, 2016.
[4]
In brief, the Project—the
capital cost of which is $7.4 billion—adds new pipeline, in part through new
rights of way, thereby expanding the existing 1,150-kilometre pipeline that
runs roughly from Edmonton, Alberta to Burnaby, British Columbia. The Project
also entails the construction of new works such as pump stations and tanks and
the expansion of an existing marine terminal. The immediate effect will be to
increase capacity from 300,000 barrels per day to 890,000 barrels per day.
[5]
The applicants challenge the
administrative approvals on a number of grounds. In support of their
challenges, the applicants invoke administrative law, relevant statutory law,
and section 35 of the Constitution Act, 1982 and associated case law
concerning the obligations owed to First Nations and Indigenous peoples and
their rights. They also raise many issues concerning the Project’s “environmental effects,” as defined by section 5 of the Canadian Environmental Assessment Act, 2012, S.C. 2012, c. 19, s. 52.
[6]
By Order dated March 9,
2017, after submissions were received, this Court consolidated 16 separate
applications involving 31 parties, streamlined the process for getting the
applications ready for hearing, and set an expedited schedule.
B.
The Attorney General of Alberta’s motion for
leave to intervene under Rule 110
[7]
The Attorney General of Alberta
moves for leave to intervene under Rule 110 of the Federal Courts Rules,
SOR/98-106. The applicants, the Tsleil-Waututh Nation and the Stól:ō applicants, oppose Alberta’s motion
for leave to intervene. They say that Alberta has failed to satisfy certain
prerequisites in Rules 109 and 110.
[8]
This Court has not discussed
Rule 110 to any significant extent. Rule 110 provides as follows:
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110. Where
a question of general importance is raised in a proceeding, other than a
question referred to in section 57 of the Act,
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110. Lorsqu’une
question d’importance générale, autre qu’une question visée à l’article 57 de
la Loi, est soulevée dans une instance :
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(a) any party may serve notice of the question on the
Attorney General of Canada and any attorney general of a province who may be
interested;
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a) toute partie peut signifier un avis
de la question au procureur général du Canada et au procureur général de
toute province qui peut être intéressé;
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(b) the
Court may direct the Administrator to bring the proceeding to the attention
of the Attorney General of Canada and any attorney general of a province who
may be interested; and
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b) la
Cour peut ordonner à l’administrateur de porter l’instance à l’attention du
procureur général du Canada et du procureur général de toute province qui
peut être intéressé;
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(c) the
Attorney General of Canada and the attorney general of a province may apply
for leave to intervene.
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c) le
procureur général du Canada et le procureur général de toute province peuvent
demander l’autorisation d’intervenir.
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[9]
Rule 110(c)
authorizes an Attorney General of a province to move for leave to intervene. The
Attorney General of Alberta moves under this provision.
[10]
The Tsleil-Waututh Nation and the Stól:ō applicants say that the Attorney General
for Alberta can only move for leave to intervene if it satisfies the
prerogatives for intervention under Rule 109, if it has received notice under
Rule 110(a) or the Court has asked the Administrator to bring the proceeding
to the attention of the Attorney General under Rule 110(b) and if there
is a “question of general importance” within the
meaning of the opening words of Rule 110.
[11]
I disagree. As this Court said in Copps v.
Mikisew Cree First Nation, 2002 FCA 306, 293 N.R. 182 at para. 8, “Rule 110 contemplates a special role for attorneys-general
in addition to those contemplated under section 57 of the Federal Courts Act
[R.S.C. 1985, c. F-7] and Rule 109.” If this Court were to adopt the
interpretation of Rule 110 urged upon it by the Tsleil-Waututh Nation, the Rule
would fail to recognize the special role of Attorneys General. Rather, it would
place them in a worse position than private parties wishing to intervene.
[12]
The Attorneys General would have to satisfy all
the prerequisites under Rules 109 and 110 while private parties wishing to
intervene would have to satisfy only the prerequisites under Rule 109. Much
clearer legislative language would be necessary to persuade me that the
legislative drafter intended that Attorneys General—who represent broader
interests, potentially the interests of millions of members of the
public—should face more impediments to intervention than private parties.
[13]
This can be put another way. Suppose this Court were
holding a hearing on a question of general importance affecting the interests
of the government or the population in a jurisdiction. If the Tsleil-Waututh
Nation’s submission were accepted, the relevant Attorney General would have to
stand outside the courtroom waiting for a formal invitation under Rule 110(a)
or a notice from the Administrator under Rule 110(b) before he or she could
come inside. And even then, she or he would have to persuade the Court that the
requirements of Rule 109 and the opening words of Rule 110 are satisfied. All
that before they can begin to make submissions on behalf of their governments
and the people they serve.
[14]
Rule 110 should be interpreted against the
backdrop of our foundational principles and longstanding constitutional
arrangements pertaining to Attorneys General. In Westminster constitutions such
as ours, the starting point is that, subject to legislative override, the
rights of the public are vested in the Crown and the Attorney General, an
officer of the Crown, enforces the rights: Gouriet v. Union of Post Office
Workers, [1978] A.C. 435 at 477. Broadly writ, in legal proceedings Attorneys
General represent the Crown and protect and advance the public interest.
[15]
Giving Attorneys General a broader right to
apply to intervene in order to advance the public interest—as Rule 110(c)
does—is consistent with these foundational principles and constitutional
arrangements. There must be clear language in the legislative text to displace them.
[16]
Nothing in the legislative text of Rule 110
suggests that Rules 110(a) and 110(b) are prerequisites to an
application for leave to intervene under Rule 110(c). Similarly, nothing
in the legislative text of Rule 110 suggests that Attorneys General must also
satisfy the prerequisites for intervention in Rule 109.
[17]
The Attorney General of Alberta points to other
proceedings in this Court in which she was permitted to intervene under Rule
110(c) even though she had not satisfied the prerequisites in Rules 109,
110(a) and 110(b): Mikisew Cree First Nation v. Canada (Minister
of Canadian Heritage), 2004 FCA 66, [2004] 3 F.C.R. 436; Standing
Buffalo Dakota First Nation v. Enbridge Pipelines Inc., 2009 FCA 308,
[2010] 4 F.C.R. 500; Canada (Minister of Indian and Northern Affairs) v.
Daniels, 2014 FCA 101, [2014] 4 F.C.R. 97. I am bound to follow these cases
unless they are manifestly wrong: Miller v. Canada (Attorney General),
2002 FCA 370, 220 D.L.R. (4th) 149. The Tsleil-Waututh Nation does not make
that submission.
[18]
Under the terms of Rule 110(c), an
Attorney General is not automatically admitted into the proceeding. The opening
words of Rule 110 require that there be “a question of
general importance raised in the proceeding.” The question must be one
that affects the interests of the government or the population in the relevant
jurisdiction in a general way: Copps, above at para. 8; Vancouver
Wharves Ltd. v. Canada (Labour, Regional Safety Officer) (1996), 107 F.T.R.
306, 41 Admin. L.R. (2d) 137 at paras. 36, 37, 41 and 42. Further, the
requirement can also be met where serious questions are raised in proceedings
that themselves are of general importance.
[19]
There is no doubting the importance of these
consolidated proceedings. They consist of 16 separate proceedings brought by
many applicants, including First Nations, Indigenous peoples and environmental
groups. The Project concerns a pipeline that crosses much of Alberta. The
Project is intended to facilitate the access of Alberta’s natural resources to
new markets for the benefit of the economy.
[20]
The Attorney General of Alberta submits that the
consolidated proceedings have implications for future interprovincial pipeline
projects and energy resource development. It says that the Government of
Alberta is interested in the assessment of upstream greenhouse gas emissions. The
Attorney General intends to encourage this Court to adopt “clear, consistent and predictable rules and processes to
facilitate the consideration of resource development projects in the public
interest in a manner that respects section 35 of the Constitution Act, 1982.”
[21]
Further, the legal issues the applicants raise are
of general importance. These include issues concerning the Canadian
Environmental Assessment Act, 2012, S.C. 2012, c. 19, s. 52, the Species
at Risk Act, S.C. 2002, c. 29, and issues relating to the rights and
interests of Indigenous peoples.
[22]
Taken together, all these considerations suggest
a strong nexus between the issues raised in the proceeding on the one hand and
the interests of the Government of Alberta and the population it serves on the
other.
[23]
Thus, the Attorney General of Alberta easily meets
the test for intervention under Rule 110. An order shall issue granting leave
to the Attorney General of Alberta to intervene. The style of cause for the
consolidated proceedings shall be amended accordingly.
[24]
Under Rule 53(1), the Court may “impose such conditions and give such directions as it
considers just” concerning the order granting leave to intervene.
[25]
The Attorney General of Alberta shall be
entitled to file a memorandum of fact and law; the Attorney General’s intended
position in the consolidated proceedings suggests that its memorandum of fact
and law should be filed with the respondents’ memoranda.
[26]
In accordance with paragraph 8(8) of the Court’s
scheduling order of March 9, 2017, the page limit, the deadline for filing and
other procedural matters shall be set at a later date.
[27]
The Attorney General of Alberta shall also be
entitled to make oral submissions at the hearing of the consolidated
proceedings for a duration to be set by the panel. The Attorney General shall
not add to or modify the evidentiary record, nor shall she be entitled to or be
liable for costs.
C.
The Tsartlip’s motion for leave to intervene
under Rule 109
[28]
The Tsartlip move to intervene under Rule 109.
The respondent, Trans Mountain Pipeline ULC, opposes.
[29]
The factors to be considered on an intervention
motion under Rule 109 are set out in Rothmans, Benson & Hedges Inc. v.
Canada (Attorney General), [1990] 1 F.C. 84 (T.D.), affirmed [1990] 1 F.C.
90, 103 N.R. 391 (C.A.), recently reaffirmed in Sport Maska Inc. v. Bauer
Hockey Corp., 2016 FCA 44, 480 N.R. 387.
[30]
In support of its motion, the Tsartlip cite Canada (Attorney General) v. Pictou Landing First Nation, 2014 FCA 21, [2015] 2 F.C.R. 253, a decision that
pre-dates Sport Maska.
[31]
Pictou Landing
proposed a tweaking and reformulating of the Rothmans factors, in part
to better define and limit the “interests of justice”
factor in Rothmans. Pictou Landing considered the “interests of justice” factor, left undefined and unlimited,
to be undesirable. Pictou Landing also showed that some of the Rothmans
factors are illogical and do not adequately reflect contemporary legal principles
such as those in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. Finally,
Pictou Landing pointed out that certain requirements in Rule 109—a provision in a regulation that is part of the binding law of
Canada—are mandatory and cannot be reduced to mere factors that can be
overridden.
[32]
But I am bound by Sport Maska. Its ratio,
which I must accept at this time, is that Rothmans and Pictou Landing are sufficiently similar so no departure
from Rothmans is warranted (at para. 41). The Court added that the
Pictou Landing factors can be considered under the flexible “interests of justice” factor in Rothmans (at para.
42).
[33]
I followed Sport Maska in this way in Prophet River First Nation v. Canada (Attorney
General), 2016 FCA 120 at paras. 2-4.
There, four of the six Rothmans factors were utterly
irrelevant to the intervention motion, as they almost always are. The Pictou
Landing factors fell under “the interests of
justice” factor and dictated the outcome of the motion. This is how I shall proceed here, with the qualification that the Federal
Courts Rules, being law, also bind me.
[34]
In exercising my discretion, I have carefully
considered and weighed the relevant factors in the way Sport Maska
instructs me to do. I have also considered the provisions of the Federal
Courts Rules that bind me. In the interests of brevity and expedition, I need
to offer only brief reasons on the factors most salient to my exercise of
discretion.
[35]
Trans Mountain submits that the moving parties’
motion “is an improper attempt to obtain full party
status in the [application for judicial review] without filing its own judicial
review application.” I agree.
[36]
In substance, the Tsartlip have not brought a motion for leave to intervene. Rather, they have
brought an application for judicial review in the guise of a motion to
intervene. The Tsartlip decided not to apply for
judicial review under Rule 301. They cannot do so now through the mechanism of
an intervention under Rule 109 in these expedited proceedings.
[37]
Even if somehow I could take the motion to be a
late application for judicial review, I would not grant an extension of time in
these expedited proceedings. On the material before me, the test is not met:
see, e.g., Canada (Attorney General) v.
Larkman, 2012 FCA 204, 433 N.R. 184.
[38]
The Tsartlip intend to argue that the National
Energy Board pursued a methodology that is unreasonable in the administrative
law sense or failed to consider matters pertaining to them and, thus, made a
decision that is not “lawful.” Specifically, in its
notice of motion, the Tsartlip say that they intend to raise the issue “whether the environmental assessment done by the under the [sic]
Canadian Environmental Assessment Act, 2012…and section 52(3) of the National
Energy Board Act…was lawful” as well as “the
issue of the assessment of significant environmental impacts under [the Canadian
Environmental Assessment Act, 2012].”
[39]
The Tsartlip state that if they are allowed to
intervene, they will address the faulty nature of the environmental assessment
by “providing their own indigenous perspective on how
the [National Energy Board] ought to have viewed the question of assessment of
significant environmental impacts of the project on [the Southern Resident
Killer Whale] and whether the environmental impacts can be justified.”
In their written representations, the Tsartlip add that they intend to make
submissions on the effects which would occur to them as a result of the adverse
effects to the Southern Resident Killer Whale
caused by increased tanker traffic.
[40]
In effect, the Tsartlip suggest that the decision
must be quashed because it unreasonably affects their own rights and
interests. This is what applicants do in their notices of application for
judicial review, not interveners.
[41]
In their supporting affidavit, the Tsartlip say that
they did not bring their own judicial review because it was “prohibitively expensive.” They do not explain this
further. Nevertheless, this requires closer examination.
[42]
In a case like this one where others are
preparing the evidentiary record, the expense of an applicant’s counsel is roughly
equivalent to the expense of an intervener’s counsel. The cost of filing a
notice of application and an applicant’s memorandum of fact and law on the
merits is roughly the same as filing a motion record for leave to intervene and
filing an intervener’s memorandum of fact and law on the merits. So what makes
it “prohibitively expensive” to be an applicant
as compared to an intervener? An applicant is potentially liable to the
respondents for their costs, while an intervener is not.
[43]
Rule 109 cannot be used, intentionally or
unintentionally, as an end-run around the potential liability for costs that
applicants face. Put another way, intervention is not a mechanism by which,
intentionally or unintentionally, a party can challenge a decision exactly as
an applicant can, but be immunized from a potential costs award.
[44]
Rule 109 can be an end-run in another sense. All
applicants, no matter how important their interests might be, face a limitation
period: Federal Courts Act, R.S.C. 1985, c. F-7, ss. 18.1(2). Important
public policy interests are served by it: Canada (Attorney General) v.
Larkman, above at paras. 86-88. If someone has already applied for judicial
review within the limitation period, can another party use Rule 109 to join the
proceedings, in substance as a co-applicant, well after the limitation period
for applying has passed? I think not. That would be an impermissible end-run.
[45]
There may be explanations or special
circumstances that might excuse a delay in bringing an application for judicial
review, but these should be advanced by way of a motion for an extension of
time based on this Court’s jurisprudence: see, e.g., Grewal v. Canada (Minister of Employment &
Immigration), [1985] 2 F.C. 263
(C.A.); Larkman, above.
[46]
Therefore, in the circumstances of this case I
conclude that if the Tsartlip had a direct interest in quashing the decision
below, they should have asserted it by bringing their own application for
judicial review on a timely basis. They cannot now use Rule 109 to achieve that
outcome.
[47]
A further objection to the Tsartlip’s intervention
is that their submissions will not, in the words of Rule 109(2), “assist the determination of a factual or legal issue related
to the proceeding,” i.e., the issues
raised in the existing applications before the Court.
[48]
In considering this, it must
be recalled that acting under the guise of having a different perspective, an
intervener cannot adduce fresh evidence or make submissions that are in reality
fresh evidence: Canada (Citizenship and Immigration)
v. Ishaq, 2015 FCA 151, 474 N.R. 268 at paras. 14-27;
Zaric v. Canada (Public Safety and Emergency Preparedness), 2016 FCA 36
at para. 14. An intervener cannot transform the proceedings into something
different by, for example, raising issues foreign to the applications before
the Court: Canada (Attorney General) v. Canadian Doctors for Refugee Care,
2015 FCA 34, 470 N.R. 167. A proposed intervener must rely on the same evidence
in the record that others are relying upon and focus on how they can assist the
Court’s determination of the existing proceedings.
[49]
Thus, successful moving parties for intervention
often propose to work within the ambit of the existing proceedings and the
existing evidentiary record but propose to do something different than the
existing parties. For example, they propose to invoke a body of jurisprudence
that existing parties have not invoked, ask us to interpret certain jurisprudence
differently, or acquaint the Court with the larger implications associated with
its ruling. Some other examples where interveners typically can assist the Court
are set out in Ishaq at paragraph 12 and Zaric at para. 18.
[50]
The Tsartlip do not propose to do any of these
things. Rather, they intend to make the same legal submissions that others,
particularly the applicant, Tsleil-Waututh Nation, will make, relying upon the
same factual record.
[51]
For example, in its notice of application, the applicant,
Tsleil-Waututh Nation, submits that the National Energy Board unlawfully
assessed the significance of environmental effects and the justification
thereof by failing to consider adequately the effects on the Southern Resident
Killer Whale, a species of great significance to Indigenous peoples in the area,
including the Tsartlip. A fair construction of the Tsleil-Waututh Nation’s
notice of application is that it intends to refer to all available evidence in
the record on this point, including the evidence that the Tsartlip placed
before the Board on this issue. On the material before me, I see little or no daylight
between the submissions the Tsleil-Waututh Nation will make and the submissions
the Tsartlip propose to make.
[52]
There are cases where the assistance of an
intervener is needed to help advance the position of an applicant because the
Court is not satisfied the applicant will be able to canvass the matter adequately:
see, e.g., Zaric, above at para. 18. But that is not the case
here. The Tsartlip have not explained why the presence of the Tsleil-Waututh
Nation before this Court is somehow inadequate and so it needs to step in. The Tsartlip
do not call into question the capability or willingness of the Tsleil-Waututh
Nation to advance all of the evidence in the record relevant to the assessment
of the effect of the Project on the Southern Resident Killer Whale, including
the evidence offered by the Tsartlip concerning the importance of this species
to them.
[53]
Although intervention is not
open to them, the Tsartlip can participate in other valuable, less expensive
ways, such as offering the services of their counsel to assist the Tsleil-Waututh Nation and other applicants to ensure that their
submissions are the best they can be and advance the Tsartlip’s interests.
[54]
Thus, for the foregoing reasons, I am not
persuaded that leave to intervene should be granted. I
will dismiss the Tsartlip’s motion with costs.
[55]
For certainty, these reasons should not be taken
to be deciding any issues concerning the relevance, weight and significance of
the evidence concerning any legal issue. This task is for the panel hearing the
appeal.
D.
A miscellaneous matter
[56]
On April 28, 2017, the Kwantlen
First Nation, Cheam First Nation and Chawathil First Nation discontinued their
application for judicial review in file A-230-16. This was one of the
applications forming part of the consolidated proceedings. In my order
concerning the intervention motions, I shall also amend the style of cause to
remove these parties. The style of cause shall be as reflected on this
document.
“David Stratas”
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