ELC appears in historic Northern Gateway Appeal


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ELC lawyers Chris Tollefson (top row, fourth from the right) and Anthony Ho (bottom row, first from the right) join other lawyers who brought challenges against Northern Gateway at the Federal Court of Appeal. (Photo provided)

 

More than three years after the ELC took on this file for BC Nature, and after thousands of hours of pro bono work, it all came down to this: six days in front of three judges at the Federal Court of Appeal in Vancouver. It was the longest case the Court has ever heard and likely one of the most legally complex and significant.

A key focus of the ELC’s submissions was on a critical provision of federal environmental assessment law that compels review panels to assess the impact of accidents, such as a marine oil spill. This is the first time a Canadian court has been called upon directly to interpret this provision, so the decision here is likely to be landmark one on this issue alone.

We were also forced to fend off late challenges by Northern Gateway to our client’s standing to bring these important suits. (See the ELC’s written argument filed in the FCA.)

The ELC worked closely with nine other parties whose challenges were consolidated with the two judicial review applications filed by our client, BC Nature.

In the Northern Gateway Joint Review Panel process that led to the Cabinet decision at stake, the ELC raised a variety of issues on behalf of BC Nature and Nature Canada, including impacts on caribou, inadequacies in the modelling of large oil spills, and project related effects on marine birds. Our submissions on many of these issues also played a key role at the Federal Court of Appeal hearing.

During the Joint Review Panel process, the ELC travelled north to participate in oral hearings five times, conducted 26 hours of cross examination, filed 5 written motions, and submitted a 92-page written argument.

The October Federal Court of Appeal hearing was the ELC’s third-ever judicial review. The first was as interveners in the Supreme Court of Canada (Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), 2007 SCC 2, [2007] 1 SCR 38 (“Little Sisters No. 2”). The second was recently at BC Supreme Court (Gagné v. Sharpe, 2014 BCSC 2077.)

Lead legal counsel on the Northern Gateway appeal file was Professor Chris Tollefson, Hakai Chair. Co-counsel, Anthony Ho, started at the ELC as a second-year clinic student on this file. He is now a recently called lawyer and Hakai Litigation Associate.

Chris and Anthony would like to recognize the contributions of the many ELC clinic and articling students who worked on this file over the past three years:

Amanda Aziz, Patrick Dudding, Alexander Etchell, Tasha Gooch, Erin Gray, Colleen Hay, Haley Hill, Emma Hume, Grace Jackson, Daniel Jackson, Naomi Kovak, Georgia Lloyd-Smith, Kyle McNeill, Dana Phillips, Tim Quirk, Zaria Stoffman

They would also like to thank others who supported the team through a variety of contributions:

Brian Churchill, Rosemary Fox, Mark Haddock, Anne Harfenist, Stephen Hazell, John Neville, Holly Pattison, Hannah Tollefson, Kees Visser, and the Tula Foundation