On September 4, 2019 the Federal Court of Appeal agreed to hear six of 12 challenges to the Governor in Council’s (GIC, essentially the Federal Cabinet) approval of the Trans Mountain Pipeline, which came on June 18, 2019 (see their decision at 2019 FCA 224).
Contrary to normal practice, the Court issued detailed reasons on the leave application, in part because Canada and Trans Mountain (owned by Canada) took no position on 11 of the 12 applications.
While the Court allowed six challenges to proceed, it dramatically narrowed the issues to arguments relating to the federal government’s consultation since the Court overturned the original project approval. In particular, the Court will review the adequacy of consultation in the period between August 30, 2018 and June 18, 2019, the time between the Court’s first decision quashing the original approval, and their second approval of the project.
In light of the narrow issue and the “substantial public interest” in having this matter decided quickly, the Court directed the parties to proceed on a “highly expedited schedule”.
The issues that will not be able to proceed include:
Conflict of interest and bias
A number of applicants raised issues of conflict of interest and bias based on Canada’s acquisition of Trans Mountain. The Court rejected this argument, stating the GIC is not the Government of Canada, and therefore does not own the pipeline. The Court also noted no evidence of bias had been filed by the parties.
Environmental issues and reasonableness of the decision
The Court found the environmental issues on species at risk, greenhouse gas emissions, need for the project, and others, were either raised and rejected, or should have been raised, in the challenge to the original approval, and could not now be re-litigated. The Court also rejected the allegations of deficiencies in the National Energy Board’s report on project-related marine shipping.
With respect to the adequacy of consultation, the Court not only narrowed the challenge to the consultation that occurred after its previous decision, but also rejected arguments based on the outcome of consultation, noting that the duty to consult does not require the consent of Indigenous groups. The Court stated the arguments must be focused on the “process, quality and conduct of the consultation” as opposed to the outcome.
The Court is clear that the public interest demands an expedited process and we can expect these proceedings to be resolved relatively quickly.
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