Issue of adequacy of further consultation met “fairly arguable” standard

Governor in Council approved pipeline expansion project, after first approval was struck down on judicial review. Twelve sets of applicants brought separate motions for leave to apply for judicial review. Six motions granted; six motions dismissed. Criteria for granting leave, deduced from provisions of National Energy Board Act and Parliament’s purpose in imposing leave requirement, required applicants to meet standard of “fairly arguable” case. Issues that were raised and decided or that could have been raised in first judicial review proceedings could not now be raised. Any judicial review had to be limited to measuring targeted work and further consultation with First Nations and Indigenous peoples that were required by first judicial review decision and assessing any legally relevant events that post-dated decision and affected approval. Arguments based on federal government’s purchase of proponent suffered fatal flaws in that it was Governor in Council rather than government that was decision-maker and Act did not disqualify Governor in Council from discharging its approval responsibility based on ownership of project . Applicants’ arguments on environmental issues did not meet fairly arguable standard as most were barred by doctrines of relitigation and they could not overcome considerable deference due to Governor in Council’s decision that public interest outweighed adverse environmental impact . Arguments relating to adequacy of consultation that effectively asserted right to exercise veto over project or that were subject to doctrines barring relitigation did not meet fairly arguable standard but some issues advanced by some Indigenous and First Nation applicants did. Those applicants alleged that poor quality and hurried nature of further consultation required by judicial review decision rendered it inadequate, pointing with considerable particularity and detail to issues that they say were important to them and ignored by federal government. In absence of evidence or arguments from federal Crown or proponent, issue of adequacy of further consultation met “fairly arguable” standard . None of remaining issues, including claims under Canadian Charter of Rights and Freedoms, met fairly arguable standard for leave.

Raincoast Conservation Foundation v. Canada (Attorney General) (2019), 2019 CarswellNat 4389, 2019 FCA 224, David Stratas J.A. (F.C.A.).

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