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 174
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 and
ATTORNEY GENERAL OF BRITISH COLUMBIA
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Interveners
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REASONS FOR ORDER
STRATAS J.A.
[1]
The Attorney General of British Columbia moves
under Rule 110 of the Federal Courts Rules, SOR/98-106 to intervene in
these consolidated proceedings.
A.
Background
[2]
In these 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.
[3]
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.
[4]
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.
[5]
By Order dated March 9, 2017, after submissions
were received, this Court consolidated 16 separate applications involving 31
parties and received one of the largest evidentiary records this Court has ever
seen. The March 9, 2017 Order streamlined the process for getting the
applications ready for hearing and set an expedited schedule.
[6]
During these proceedings, tens of motions have
been brought. All were prosecuted under attenuated timelines.
[7]
The public interest in expediting this matter is
strong. A couple of preambles in the March 9, 2017 Order put it this way:
[W]ithout expressing any prejudgment
on the matter, a report, an Order in Council and a Certificate have been made
under the purported authority of legislation advancing the public interest and
themselves have been made in the public interest, and all have effect until set
aside; further, owing to the substantial interests of all parties in these
proceedings, the proceedings should be prosecuted promptly; therefore, delays
in the prosecution of these consolidated matters must be minimized;
[T]herefore, this Court shall set a schedule
for the prompt and orderly advancement of these consolidated proceedings and
the schedule will be amended only if absolutely necessary;
[8]
The parties are to be commended for their
conduct in these proceedings. They have worked hard to ensure the fastest
possible hearing of this matter. They have complied fully with the letter and
the spirit of the March 9, 2017 Order and the forest of orders and directions the
Court has issued since that time.
B.
Earlier motions to intervene
[9]
The March 9, 2017 Order allowed for motions to
intervene to be brought within thirty-five days of the Order, namely by April
13, 2017. Two parties moved to intervene. One was successful: the Attorney General
of Alberta (hereafter “Alberta”). See Tsleil-Waututh Nation v. Canada
(Attorney General), 2017 FCA 102.
[10]
The Attorney General of British Columbia did not
move to intervene.
C.
Later circumstances in British Columbia
[11]
On April 11, 2017, just two days before the
expiry of the time to intervene in these proceedings, writs of election were
issued in British Columbia.
[12]
The election was held on May 9, 2017. No one
party achieved a majority of seats. The incumbent party won a plurality of
seats and formed the government. At the end of June, it lost a vote of
confidence in the Legislature. Soon afterward, the Lieutenant Governor invited
the leading opposition party to form the government. It did so and assumed
office on July 18, 2017.
D.
British Columbia’s motion to intervene
[13]
Five weeks later, on August 22, 2017, the
Attorney General of British Columbia (hereafter “British Columbia”) brought
this motion. By direction, this Court required representations on the motion to
be filed on an expedited basis. The last representations were filed two business
days immediately preceding today.
[14]
A number of aspects of British Columbia’s motion
are unsatisfactory.
[15]
For one thing, it took five weeks for British
Columbia to bring this motion, a very long time in a closely-managed, expedited
proceeding such as this. The seven-paragraph affidavit offered in support of
the motion does not offer a single word of explanation for the five-week delay.
[16]
The respondents, Trans Mountain and Canada, and
the intervener, Alberta, found it difficult to respond to British Columbia’s
motion because it said little on the scope of its intervention. British
Columbia’s written representations contain only four very general paragraphs
regarding why it meets the test for intervention under Rule 110. None of them
address the issue of the scope of the intervention.
[17]
In this Court, an intervener—even an Attorney
General intervening under Rule 110—is not given an open microphone to say
anything it wishes. Instead, in order to ensure that new issues and matters requiring
evidence are not raised, this Court defines the scope of the intervention. It
is true that Attorneys General intervening under Rule 110 make submissions
based on the public interest in their respective jurisdictions. In appropriate
cases, this can be broad. But this Court must still take care to ensure that
procedural and substantive unfairness is not caused to the parties directly
affected by the proceedings: the existing applicants and respondents.
[18]
In its representations in chief, British Columbia
submits that the Project has a “disproportionate
impact…on British Columbians” including “impact[s]
on British Columbia’s land and coast” and effects upon the “health and welfare of British Columbians,” the
environment and “provincial infrastructure.” It
adds that there are “constitutional limitations on
British Columbia’s ability to regulate the Project,” British Columbia
has a “strong interest in the regulatory regime that
governs interprovincial pipelines,” and these proceedings “raise profound questions about cooperative federalism in
Canada.” British Columbia also notes that it raised certain concerns in
this matter before the National Energy Board.
[19]
In its representations in reply, British
Columbia adds that marine spill risks were unreasonably assessed, resulting in
risk to British Columbians and a breach of the duty to accommodate Indigenous
peoples and First Nations.
[20]
Missing overall is any mention of the precise
submissions British Columbia intends to make as an intervener in these
proceedings. In these circumstances, all that this Court can do is assume that
British Columbia intends to speak to the concerns described above and no other
concerns.
E.
The criteria for intervention
[21]
The criteria for intervention under Rule 110 are
set out in this Court’s earlier decision in Tsleil-Waututh Nation,
above.
[22]
Motions to intervene under Rule 110 are
different from motions to intervene under Rule 109. As explained in Tsleil-Waututh
Nation, Rule 110 is a special rule allowing the Attorneys General of Canada
and the provinces to move to intervene. Rule 110 recognizes that Attorneys
General who represent broader interests—in many cases the interests of millions
of members of the public—are responsible on behalf of the Crown for advancing
and protecting the public interest.
[23]
In contrast, Rule 109 requires others moving to
intervene, such as special interest groups, to show how their participation in
the proceeding as an intervener “will assist in the
determination of a factual or legal issue related to the proceeding.” As
Tsleil-Waututh Nation, above explains, Attorneys General are
under no such requirement.
[24]
Under the terms of Rule 110, Attorneys General
are not automatically allowed to intervene.
[25]
First, 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 v. Mikisew Cree First Nation, 2002 FCA 306, 293 N.R. 182 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.
The “question of general importance” requirement
can also be met where “serious questions are raised in
proceedings that themselves are of general importance”: Tsleil-Waututh
Nation at para. 18.
[26]
Second, Rule 110 does not stand alone in the Federal
Courts Rules. In making an intervention order under Rule 110, this Court
can impose conditions: Rule 53. More broadly, Rule 110 must be interpreted and
applied in accordance with the objectives set out in Rule 3, namely the
securing of “the just, most expeditious and least
expensive determination of every proceeding on its merits.” In some
special circumstances, those considerations can empower the Court to dismiss an
Attorney General’s motion to intervene, even where the “question
of general importance” requirement is met.
F.
Should British Columbia be allowed to intervene?
[27]
In my view, British Columbia has met the “question of general importance” requirement. This
Court so found in the context of Alberta’s motion to intervene in these
proceedings (Tsleil-Waututh Nation, above at paras. 19 and 21-22):
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.
…
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.
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.
[28]
Equally, there is a strong nexus between the
issues raised in this proceeding on the one hand and the interests of the
Government of British Columbia and the population it serves on the other.
[29]
Both the respondent, Trans Mountain, and the
intervener, Alberta, submit that this Court should exercise its discretion
against allowing British Columbia to intervene. Both invoke British Columbia’s
delay in moving to intervene.
[30]
Trans Mountain goes further and opposes on the
basis of the unsatisfactory features of British Columbia’s motion, some of
which I have described above. It raises the specter of British Columbia
advancing new, complex issues on the eve of the hearing, resulting in
substantive and procedural unfairness.
[31]
I share many of these concerns. The public
interest in this hearing going ahead as scheduled on October 2-13, 2017
outweighs any public interest served by British Columbia’s intervention.
British Columbia could have moved to intervene far sooner. The five-week delay
in bringing this motion—in the end a motion offering just a handful of
meaningful paragraphs supported by general documents already known to the
Court—is unexplained. Finally, British Columbia says that it considers its participation
in the proceedings important, yet after five weeks it cannot yet say with much specificity
how it intends to participate.
[32]
British Columbia does not appear to understand
the basic ground rules of the complex proceeding it is seeking to enter. Its
representations in chief show no understanding of the March 9, 2017 Order and
the strong public interest in the hearing going ahead as scheduled; rather than
seeking a variation of the March 9 Order to allow its intervention motion to be
considered, it sought an extension of time under the Rules to intervene but the
Rules do not set a time period for interventions. It was unaware of other
important orders made in the proceedings relating to the manner of service and
the style of cause. To enter complex proceedings—especially at a very late date—a
party must intimately understand the proceedings and to the extent possible work
within existing strictures, doing its best to minimize any prejudice. Here,
this did not happen.
[33]
Although this motion is a close call, this Court
has decided to allow British Columbia to intervene on terms. The style of cause
is hereby amended to reflect this. The style of cause is now as set out at the
beginning of this document.
[34]
There are certain circumstances that prompt this
Court to grant British Columbia’s motion to intervene.
[35]
Two provinces are most directly affected by
these proceedings, Alberta and British Columbia. The public interest of Alberta
has been given a voice in these proceedings. The public interest of British
Columbia deserves a voice too.
[36]
Alberta appears to be mainly on the side of the
respondents. British Columbia appears to be mainly on the side of the
applicants. The former is in the proceedings; the latter should also be in the
proceedings. One factor in intervention proceedings is the concept of “equality of arms” and fair treatment to both sides: Gitxaala
Nation v. Canada, 2015 FCA 73 at para. 23; Zaric v. Canada (Public
Safety and Emergency Preparedness), 2016 FCA 36 at para. 12.
[37]
British Columbia did participate in the
administrative proceedings before the National Energy Board. It advanced a
position there. It should be free to advance a position in the judicial review
of those administrative proceedings.
[38]
Trans Mountain characterizes British Columbia as
reversing its position on the issue of intervention. Even accepting that
characterization, the intervening election, the confidence vote and the
resulting change of government are justifying circumstances.
[39]
Trans Mountain submits that British Columbia is
estopped or foreclosed from advancing certain arguments. I do not accept this,
except to the extent discussed below.
[40]
The concerns that Trans Mountain and Alberta
raise are serious. But they can be regulated by conditions imposed on the
granting of intervention status.
[41]
While British Columbia may have been blasé in approaching
this motion to intervene, it must be vigilant in complying with these
conditions: if any are breached, the panel hearing the appeal may revoke
British Columbia’s status as an intervener.
G.
The intervention order and conditions attached
to it
[42]
British Columbia may file a memorandum of fact
and law of no more than fifteen pages, the same page length given to Alberta. It
may also make oral submissions at the hearing for a duration to be set by the
hearing panel.
[43]
British Columbia will have to file its
memorandum of fact and law on a highly expedited basis. This timing is dictated
by present circumstances.
[44]
Under the March 9, 2017 Order as amended, the respondents
and Alberta file their memoranda of fact and law this Friday, September 1,
2017. Mindful of the public importance of the hearing in this matter proceeding
as scheduled, almost all of the existing parties—both applicants and
respondents—insist that this filing date be maintained. I agree. The deadline
of September 1, 2017 for the respondents and Alberta to file their memoranda is
confirmed.
[45]
As already noted, British Columbia appears to be
adverse in interest to the respondents and Alberta and supportive of some of the
applicants’ positions. Under our Rules concerning the filing of memoranda,
absent special circumstances, applicants and those supporting them do not have
a right of reply.
[46]
Accordingly, the latest that British Columbia
can file its memorandum of fact and law is Friday, September 1, 2017. In its
reply representations on this motion, British Columbia accepts this as the
deadline. Therefore, September 1, 2017 shall be the deadline for British
Columbia’s memorandum.
[47]
Two respondents, Trans Mountain and Canada, have
asked for an opportunity to respond to British Columbia by way of a reply
memorandum. Fairness requires this. Therefore, these respondents shall be permitted
to file memoranda of fact and law replying to British Columbia, restricted to
the matters raised by British Columbia in its memorandum. The reply memoranda
shall be limited to ten pages.
[48]
Given the closeness of the hearing date, the
deadline for the filing of the respondents’ reply memoranda will be September
8, 2017.
[49]
Alberta also asked to file a reply memorandum.
But it only has the status as an intervener. Thus, I exercise my discretion
against allowing it to file a reply memorandum. If necessary, it can reply to
British Columbia as part of its oral submissions at the hearing. This places
Alberta and British Columbia in the same situation: neither will be able to
respond in writing to the other.
[50]
Many of the applicants ask for an opportunity to
file a second memorandum replying to British Columbia’s memorandum. I am not
persuaded at this time that this will be necessary. British Columbia’s
memorandum, expected to be supportive of some of the applicants’ positions,
will be brief and any necessary reply can be made orally at the hearing.
[51]
The applicants also request a further half day
of hearing time on the basis that British Columbia’s time for oral submissions
will come out of the applicants’ overall time.
[52]
I deny the request. Here I note that there is
equal treatment of both sides: Alberta’s time for oral submissions will come
out of the respondents’ overall time and British Columbia’s time for oral
submissions will come out of the applicants’ overall time. While the
interveners are cutting into the parties’ time for oral submissions, still much
time remains. As is the case for Alberta, the duration of British Columbia’s
oral submissions shall be set by the chair of the panel hearing this matter. I
expect that the duration of argument devoted to each intervener will be
relatively small, probably in the ten-to-thirty minute range. Further, the
overall time set for argument—seven days—is longer than any other modern
proceeding in this Court. Therefore, I am not persuaded that the overall time
for argument should be extended.
[53]
I now turn to the permissible scope of British
Columbia’s intervention.
[54]
In this Court, an intervener is not an
applicant: Tsleil-Waututh Nation, above. An intervener cannot introduce
new issues or claim relief that an applicant has not sought. Instead, an
intervener is limited to addressing the issues already raised in the
proceedings, i.e., within the scope of the notices of application. As
well, an intervener cannot introduce new evidence. See generally Canada
(Citizenship and Immigration) v. Ishaq, 2015 FCA 151, [2016] 1 F.C.R. 686.
[55]
In this Court, interveners are guests at a table
already set with the food already out on the table. Interveners can comment
from their perspective on what they see, smell and taste. They cannot otherwise
add food to the table in any way.
[56]
To allow them to do more is to alter the
proceedings that those directly affected—the applicants and the
respondents—have cast and litigated under for months, with every potential for
procedural and substantive unfairness.
[57]
Against this, British Columbia cites certain
decisions of the Supreme Court of Canada that take a looser approach to
intervention. These decisions are distinguishable. They concern the
intervention practice of that Court as a final general court of appeal acting
under its own intervention rule. They do not concern the intervention practice
of this Court acting as a first-instance reviewing court operating under its own
intervention rule.
[58]
These principles affect the permissible scope of
British Columbia’s intervention. Some of the concerns British Columbia raises,
described at para. 18 above, are new issues in these proceedings. For example,
the “constitutional limitations on British Columbia’s
ability to regulate the Project” are not in issue, nor is the “regulatory regime that governs interprovincial pipelines”
except to the extent that the meaning of certain regulatory provisions has been
put in issue by the parties. Further, “profound
questions about cooperative federalism in Canada” have not been raised.
These issues are off the table.
[59]
They are also irrelevant to the issues this
Court must decide. Before this Court are judicial reviews of decisions of the
National Energy Board and the Governor in Council. The question is whether the
decisions should stand in light of the administrative law principles raised by
the parties and the principles associated with the duty to consult and
accommodate Indigenous peoples and First Nations—nothing more. I am not
persuaded that cooperative federalism or constitutional limitations on British
Columbia’s ability to regulate the Project have anything to do with these
principles or how they are applied.
[60]
This Court is a court of law that grapples with legal
arguments; larger political issues that do not bear on the legal issues are
irrelevant and distracting, and, thus, inadmissible. See Ishaq, above at
paras. 26-27; see also D. Stratas, “The Canadian Law of
Judicial Review: A Plea for Doctrinal Coherence and Consistency” (2016), 42 Queen’s L.J. 17 at 59-61 and
authorities cited therein.
[61]
British Columbia shall not advance new issues.
[62]
British Columbia shall also take care not to
advance new arguments that in effect are new issues. For example, submissions
that extend the scope of the duty to consult and accommodate beyond those
advanced by the applicants are not permissible.
[63]
British Columbia shall be limited to submissions
commenting on the submissions advanced by other parties from its perspective as
guardian of the public interest of British Columbia and as a government with
responsibilities to discharge under provincial legislation. This is to be done
with one goal front of mind: to assist the Court in deciding whether the
administrative decisions before it should be quashed on account of
administrative law and duty to consult principles.
[64]
For example, British Columbia may make
submissions on the issue it raised in its reply representations on this motion:
namely, whether marine spill risks were unreasonably assessed, resulting in
risk to British Columbians and a breach of the duty to accommodate Indigenous
peoples and First Nations. The applicants have placed this issue on the table.
[65]
British Columbia’s submissions shall not
unnecessarily duplicate the submissions of other parties.
[66]
British Columbia may also make submissions
concerning its involvement in the administrative proceedings below and whether
the concerns it advanced, similar to those raised by the applicants, have been
addressed.
[67]
British Columbia shall be limited to the
evidentiary record. For example, in commenting on what it calls “disproportionate impact[s]…on British Columbians,”
including “impact[s] on British Columbia’s land and
coast” and effects upon the “health and welfare
of British Columbians,” the environment, and “provincial
infrastructure,” British Columbia shall be restricted to the evidence in
the Electronic Record in these proceedings.
[68]
Trans Mountain submits that as a condition of
intervening, British Columbia should be liable for its solicitor and client
costs occasioned by the need to file a memorandum in reply to British Columbia.
Trans Mountain is the only party asking for costs.
[69]
Trans Mountain is entitled to costs owing to
British Columbia’s lateness in moving to intervene. Had British Columbia moved
sooner, it would have been required to file its memorandum at the same time as
the applicants. In that case, Trans Mountain would have been able to respond to
British Columbia in its responding memorandum. Trans Mountain must now prepare
a second memorandum. In my discretion, I award it $7,500 in costs from British
Columbia in any event of the cause.
[70]
Except as provided in these reasons, the
schedule set by this Court remains in place. In particular, the hearing is set
for a duration of seven days during the period of October 2-13, 2017.
[71]
Nothing in these reasons should be taken to
affect the hearing panel’s discretion over the conduct of the hearing.
[72]
I thank all parties for their prompt and helpful
submissions. An order shall issue in accordance with these reasons.
“David Stratas”
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