Dockets:
A-56-14
A-59-14
A-63-14
A-64-14
A-67-14
Citation: 2014 FCA 71
Present: SHARLOW
J.A.
BETWEEN:
FORESTETHICS
ADVOCACY,
LIVING
OCEANS SOCIETY, and
RAINCOAST
CONSERVATION FOUNDATION
Applicants
in A-56-14
FEDERATION
OF BRITISH COLUMBIA NATURALISTS
carrying
on business as BC NATURE
Applicant
in A-59-14
HAISLA
NATION
Applicant
in A-63-14
GITXAALA
NATION
Applicant
in A-64-14
GITGA’AT
FIRST NATION
Applicant
in A-67-14
and
ATTORNEY
GENERAL OF CANADA, MINISTER OF THE ENVIRONMENT,
NATIONAL
ENERGY BOARD, and
NORTHERN
GATEWAY PIPELINES LIMITED PARTNERSHIP
Respondents
REASONS FOR ORDER
SHARLOW
J.A.
[1]
A preliminary issue has arisen in these consolidated
applications for judicial review because it is not clear whether they are
within the jurisdiction of the Federal Court of Appeal or the Federal Court.
The applicants have commenced parallel proceedings in both courts out of an
abundance of caution, intending to discontinue the proceedings in the court
that is found not to have the jurisdiction to determine their applications for
judicial review.
[2]
The parties have expressed the hope that the
question of jurisdiction can be resolved expeditiously. Numerous motions and
requests for directions have been filed to that end. All parties have provided
helpful submissions (except the National Energy Board (the “Board”) which takes
no position on the question of jurisdiction). I have now reviewed all of the
submissions.
Background
[3]
The decision sought to be judicially reviewed is
the Report of the Joint Review Panel for the Enbridge Northern Gateway
Project, Volume 1 and Volume 2 (the “Report”) published on December 19,
2013. It appears that the applications are intended to challenge the
recommendations contained in the Report that would tend to favour the
completion of the pipeline project known as the Enbridge Northern Gateway
Project (the “Project”).
[4]
The Joint Review Panel was established by an
agreement between the Minister of the Environment and the Board. That agreement
gives the Joint Review Panel the mandate to conduct the environmental
assessment for the Project pursuant to the Canadian Environmental Assessment
Act, 2012, SC 2012, c 19, s 52 (“CEAA 2012”) and the National
Energy Board Act, RSC 1985, c N-7 (the “NEB Act”). The key elements
of that agreement are described in more detail below.
[5]
All of the applicants take the position that the
Report is based on one or more legal errors, and they seek declarations
accordingly. For example, they allege that the Report does not comply with
certain provisions of CEAA 2012, the NEB Act, the Species at
Risk Act, SC 2002, c 29, Hearing Order OH-4-2011 for the Project, the Terms
of Reference for the Project, and the agreement under which the Joint
Review Panel was established. It is possible that if some or all of the
allegations are made out, the Report could be found to be fundamentally flawed.
[6]
Among the remedies sought by the applicants are
an order that the Report be returned for reconsideration (I assume by a newly
constituted Joint Review Panel), and an order that would preclude the Governor
in Council from making any decision that would permit the Project to proceed as
long as the Report is not corrected.
[7]
It appears that the current deadline for a
decision by the Governor in Council is in June of 2014. To date, no party has
filed a motion for an order staying the proceedings of the Governor in Council
in relation to the Report pending the disposition of these applications for
judicial review.
Jurisdiction – applicable principles
[8]
Pursuant to subsection 28(1) of the Federal
Courts Act, RSC 1985, c. F-7, only the Federal Court of Appeal has the
jurisdiction to hear and determine an application for judicial review made in
respect of the federal boards, commissions and other tribunals listed in
paragraphs 28(1)(a) to (r). An application for judicial review of
a decision of any other federal decision maker is within the sole jurisdiction
of the Federal Court.
[9]
The list in subsection 28(1) of the Federal
Courts Act includes the Board (paragraph 28(1)(f)) and the Governor
in Council when making an order under subsection 54(1) of the NEB Act
(paragraph 28(1)(g)). It does not expressly include a panel constituted
like the Joint Review Panel or with an analogous mandate.
Issue
[10]
The question of jurisdiction is whether (a) the Report
is a decision of (or in respect of) the Board, or (b) a decision of or in
respect of the Governor in Council when making an order under subsection 54(1)
of the NEB Act. To determine that question, it is necessary to
understand the statutory scheme that governs the proceedings of the Board when
considering a proposal for a new pipeline project, particularly the part of the
statutory scheme by which the Board provides the Governor in Council with the
information it requires to decide whether to approve such a project. The
process is complex and includes numerous opportunities for reconsideration of
decisions made during the process. However, it is not necessary to describe the
process completely. The following summary will suffice for present purposes.
[11]
The process begins when the proponent of a
pipeline project submits to the Board an application for a certificate of
public convenience and necessity (sections 30, 31 and 32 of the NEB Act).
The Board considers the application pursuant to numerous statutory requirements.
The process requires public notices and hearings, and the Board may be required
(and was required in this case) to conduct an environmental assessment under CEAA
2012.
[12]
When the Board is satisfied that the application
for a certificate is complete, it must prepare a report that includes, among
other things, the Board’s environmental assessment and the Board’s
recommendation as to whether or not a certificate should be issued. Pursuant to
section 52 of the NEB Act, the Board submits its report to the Minister of
Natural Resources, who may submit it to the Governor in Council. Pursuant to
subsection 54(1) of the NEB Act, the Governor in Council may, by order, direct
the Board either to issue a certificate or to reject the application.
[13]
The Joint Review Panel was established in 2009
by an agreement between the Board and the Minister of the Environment to
undertake, in a single process, the environmental assessment responsibilities
of the Board and the Minister of the Environment with respect to the Project. The
agreement required the Joint Review Panel to consist of three members, of which
two were permanent members of the Board. The third member was required to be a
person who satisfied the eligibility requirements for a temporary member of the
Board.
[14]
The work of the Joint Review Panel had not been
completed when CEAA 2012 came into force. Under a statutory transitional
rule, the Joint Review Panel was continued as a panel established under section
38 of CEAA 2012. The original agreement was amended accordingly in
August of 2012. Among the changes was a provision that required the chair of
the Board to request that the Minister recommend to the Governor in Council
that the third member be appointed as a temporary member of the Board.
Analysis
[15]
For the reasons that follow, I have concluded
that these applications for judicial review are within the sole jurisdiction of
the Federal Court of Appeal pursuant to paragraph 28(1)(f) and (g)
the Federal Courts Act.
[16]
The work of the Joint Review Panel essentially
is the work of the Board. That is so even if the Joint Review Panel also fulfils
the environmental assessment obligations of another federal government
authority under CEAA 2012 with respect to the Project. According to the
agreement under which the Joint Review Panel was established, it is intended to
be comprised of Board members, and its report is intended to be the report of
the Board that is required by section 52 of the NEB Act as described
above. Section 9 of the amended agreement, entitled “Report and Decision
Making”, reads as follows:
9.1 The Panel will prepare a report under section 52 of the NEB
Act setting out its recommendation on whether a certificate of public
convenience and necessity should be issued taking into account whether the
project is and will be required by the present and future public convenience
and necessity, the reasons for the recommendations, as well as the terms and
conditions that the Panel considers necessary or desirable in the public
interest to which the certificate will be subject if the Governor in Council
were to direct the Board to issue the certificate. The report will also set out
the Panel’s rationale, conclusions and recommendations relating to the
environmental assessment of the project, including any mitigation measures and
follow-up programs and a summary of any comments received from the public and
Aboriginal peoples, as well as information referred to in Section 8 [Aboriginal
Consultation]. The report will also identify:
•
those conclusions that relate to the
environmental effects to be taken into account under section 5 of the Canadian
Environmental Assessment Act, 2012; and
•
recommended mitigation measures that relate to
the environmental effects to be taken into account under section 5 of the Canadian
Environmental Assessment Act, 2012.
9.2 Once completed, the report will be submitted to the Minister of
Natural Resources who will make it available to the public and Aboriginal
peoples.
9.3 The Governor in Council will make the decision on the
environmental assessment (whether the project is likely to cause significant
adverse environmental effects and if so, whether such effects are justified in
the circumstances). The Governor in Council will also decide, by order, whether
the Board should issue a certificate and will give reasons for the order.
[17]
I conclude that by virtue of paragraph 28(1)(f)
of the Federal Courts Act, the Federal Court of Appeal has the sole
jurisdiction to consider these applications for judicial review insofar as the applicants
seek remedies against the Board.
[18]
The applicants also seek an order that essentially
would stay the proceedings before the Governor in Council in respect of the
Report. Under the statutory scheme, any decision of the Governor in Council in
response to the report would be an order under subsection 54(1) of the NEB
Act. I conclude that by virtue of paragraph 28(1)(g) of the Federal
Courts Act, the Federal Court of Appeal has the sole jurisdiction to make
an order aimed at preventing the Governor in Council from responding to the
Report pursuant to subsection 54(1) of the NEB Act.
[19]
Therefore, this matter may proceed only in the
Federal Court of Appeal. There will be no costs in respect of any of the
motions or requests for direction relating to the determination of the
jurisdiction question.
"K. Sharlow"
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