Industry NewsfeedCourtesy of McCarthy Tetrault. View original article here.
The proposed Trans Mountain Expansion Project (the Project) involves a $7.4-billion expansion of the Kinder Morgan pipeline stretching from Edmonton to Burnaby, as well as the construction of new works such as pump stations and tanks and the expansion of an existing marine terminal. In December 2016, the Project received federal government approval, after the National Energy Board (NEB) recommended in May 2016 that the Project should proceed, subject to the satisfaction of 157 conditions. Under the Constitution Act of 1867, the regulation of international and inter-provincial transportation (which includes pipelines) falls within the exclusive jurisdiction of the federal government.
In January 2017, the Project received its provincial environmental assessment certificate along with a political green light to move forward. In expressing the province’s support for the Project, then Premier Christy Clark indicated that the Project had met the five conditions the provincial government had issued in 2012 for approving any pipeline projects. Following the close results of BC’s provincial election in May 2017, the NDP formed a government with the backing of the BC Green Party. In Premier John Horgan’s July 2017 mandate letter to the new Minister of Environment and Climate Change Strategy, George Heyman, the Minister was tasked with employing “every tool available to defend BC’s interests in the face of the expansion of the Kinder Morgan pipeline, and the threat of a seven-fold increase in tanker traffic on our coast”, among other things. This is the context within which the Attorney General of BC (the AG) sought – and was ultimately granted – intervenor status in the upcoming Federal Court of Appeal proceeding challenging the administrative approvals for the Project, discussed in further detail below.
Background
On August 29, 2017, the Federal Court of Appeal (the Court) rendered its decision in Tsleil-Waututh Nation v. Canada (Attorney General) (2017 FCA 174) granting the Attorney General of British Columbia intervenor status in the upcoming court proceeding challenging administrative approvals of the Project. The project approvals at issue were granted by the NEB and the federal government on May 19, 2016 and December 10, 2016, respectively. The applicants challenging the approvals – which include a number of First Nations, municipalities, and environmental groups – are arguing that the approvals violate various administrative, statutory, and constitutional principles, and that therefore the approvals must be quashed.
Motion to Intervene
Five weeks after the new BC NDP government took office in July 2017, the AG brought a motion seeking leave to intervene in the federal court proceeding under Rule 110(c) of the Federal Court Rules (SOR/98-106), which permits attorneys general to apply for leave to intervene where “a question of general importance is raised”. The motion was filed well after the deadline to seek intervenor status had passed on April 13, 2017, which fell just two days after writs of election were issued in BC. Despite the late filing, the Court considered the motion.
In its reasons, the Court criticized the AG for having delayed five weeks before bringing his motion, for filing materials “offering just a handful of meaningful paragraphs”, for failing to specify exactly how he intended to participate in the proceeding, and for his lack of understanding as to the “basic ground rules” of the proceeding he sought to enter. Indeed, the Court described the AG’s approach as “blasé”.
On the other hand, the Court acknowledged that there was a “question of general importance” to be addressed, as well as a strong nexus between the issues raised in the proceeding and the interests of the BC government and its populace. The Court further noted that the Attorney General of Alberta, who supports the project, had already been granted intervenor status. The Court reasoned that it would be appropriate to permit the AG, who opposes the project, to intervene as well, as doing so would promote fair treatment to both sides and allow the public interest of BC to have a voice in the proceeding.
The Court concluded that although the motion was a “close call”, it would permit the AG to intervene. However, it did so on strict terms. It gave the AG just three days to file its materials, stipulating September 1 as the deadline. It added that the AG would not be permitted to introduce new evidence. The Court also emphasized that the AG would not be permitted to expand the scope of issues to be addressed, stating:
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.
The Court observed that a number of issues the AG sought to address would go beyond the scope of what was “already out on the table”. For example, the AG indicated that it intended to raise certain issues concerning the constitutional limits of the BC government’s ability to regulate the project, as well as questions about cooperative federalism in Canada that had not been raised by the parties. The Court refused to permit the AG to speak to these matters. Furthermore, the Court affirmed that its role is to grapple with legal arguments; larger political issues that do not bear on those arguments must be considered “irrelevant and distracting” and therefore inadmissible. The Court cautioned that should the AG fail to abide by its instructions, his intervenor status could be revoked.
Next Steps
On September 1, 2017, the AG filed his materials in support of his position that the project approvals should be quashed. In a press release issued that same day, the AG summarized the thrust of his submissions, stating that the Project has “a disproportionate impact on BC’s marine coastal environment and Indigenous peoples” and that the federal approval process failed “to properly consider the profound economic risks associated with a bitumen spill on our coast”. These submissions will be considered at the hearing of the application, which is scheduled to take place over seven days in early October 2017. Given the extraordinary volume of materials and the considerable length of the hearing, it will likely be many months before the Court renders a decision on the matter.
The federal court proceeding is not the only challenge to the Project. In April 2017, the Squamish First Nation (the Squamish) filed a petition in BC Supreme Court challenging the previous BC Liberal government’s issuance of an environmental assessment certificate for the Project in January 2017. The Squamish argues that the government failed to engage in adequate consultation with First Nations prior to issuing the certificate. The BC government, which is named as a respondent, has engaged former BC Supreme Court justice Thomas Berger, Q.C. to advise the government on this litigation and the federal court proceeding.
Work on the Project is scheduled to commence in September 2017, though there remain a number of outstanding conditions to the provincial and NEB approvals that must be fulfilled before work begins.
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