Humpback whale near Namu in the Central Coast of BC (Photo by Holly Pattison)
Submissions for all the applicants and intervenors in favour of the applicants’ positions wrapped up on Monday. For the next two days, the Court was scheduled to hear from the respondents and intervenors making submissions against the applicants’ positions. Due to an unexpected request from Northern Gateway (more on that later), the Canadian Association of Petroleum Producers (CAPP) was delayed until Thursday morning (the final day of hearings).
To recap: the respondents include the Government of Canada, the National Energy Board, and Northern Gateway Pipelines Limited Partnership (also referred to as Enbridge). Intervenors making submissions in opposition to the applicants include the Province of British Columbia and CAPP.
The federal government spoke first. Represented by Jan Brongers and Dayna Anderson, the government said there was adequate consultation with the First Nation applicants and that the assessment of the environmental effects was reasonable. They argued that the First Nation applicants could not establish rights or title by relying on the environmental assessment process that occurred before the Panel – that must be a separate court process. Counsel rejected the assertion that consent to a project is required without express declaration of title by a court (such as what occurred in the Supreme Court of Canada’s Tsilhqot’in decision last year) – so by this logic, the only Aboriginal group in Canada that must consent to a project through its territory would be the Tsilhqot’in themselves (though, the federal government could still justify approving the project, but that’s another blog post for another day). Counsel for Canada stated that it “has taken all reasonable steps to accommodate [the First Nations’] rights short of granting project refusal.” They outlined nine examples of deep consultation and explained how those were met in this case. These included early communication with Aboriginal groups, participation in the environmental assessment process and the creation of an issues tracking table where all First Nation participants’ concerns are tracked.
When questioned regarding environmental effects, government said that if there was an absence of information on a key issue in the Joint Review Panel report (for example, a large scale oil spill, as was argued by the ELC on behalf of BC Nature), that would be a basis on which to overturn the report. However, they argued that “some evidence” is sufficient, so it would need to be a complete absence of information.
Government counsel also argued that if the Court finds any of the applicants’ arguments convincing, the only appropriate remedy would be to quash the Cabinet’s order approving the project – then if Cabinet wishes, it can refer the project back to a newly constituted joint review panel – but that the Court should not refer the project back to the Panel directly. They said that if parties think the subsequent Cabinet decision is unreasonable, they may apply to the court to judicially review that new decision.
The length of time dedicated to arguing how much deference (or consideration) should be assigned to the decision-makers in this case should be a lesson for any law student that thinks they would like to practice environmental law – pay attention during your Administrative Law course. I will not get too far into the details, but bear with me on this basic admin law lesson: when a court reviews the decisions of government officials, it must decide how much deference it will give to those officials (basically, how much would the court allow an official’s decision to diverge from how the court would have decided). A court will review certain government decisions on a standard of “reasonableness,” which asks, “was the decision within a range of reasonable decisions?” For other decisions, a court will review them on a standard of “correctness,” which asks, “was the decision correct in law or not?”
The applicants argue that the Court should accord little deference to the Panel; the respondents argue that the Panel report isn’t even a reviewable decision, and the Court should assign extreme deference to the Cabinet’s order (the applicants agree there should be deference accorded to the Cabinet, but not the extent for which Northern Gateway argues). All parties agree that the question of whether the Crown’s consultation of Aboriginal groups was adequate is reviewed with no deference, on a standard of “correctness.”
As mentioned, counsel for Northern Gateway made a surprise request to the Court. They requested that “fresh evidence” be admitted. This is evidence of events that took place after the decisions at issue (so it is evidence that could not have been in front of the decision-maker at the time of the decision). A basic rule of administrative law is that fresh evidence is not admitted in judicial review proceedings. The applicants that this request affected, being primarily the Heiltsuk and Kitasoo Xai’xais but also the other First Nation applicants, were given time to prepare reply submissions to this request and the Court asked Northern Gateway counsel for a formal request to the Court. This matter was argued Wednesday morning. Northern Gateway’s counsel argued that the evidence in question fell into an exception to the rule against admitting fresh evidence, as it provided background information. The Court adjourned for 10 minutes and ruled against the motion without hearing reply from the First Nation applicants – the fresh evidence was not admitted.
After the request was dealt with, we heard from the intervenor the Province of British Columbia. Angela Cousins made brief submissions regarding the jurisdiction of the Federal Court of Appeal and whether it has authority to hear certain claims from the First Nation applicants. She argued that a judicial review is not the proper forum in which to bring issues of infringement of title and governance rights – and rather, these require a full hearing. She asserted that a party cannot argue that its Aboriginal title has been infringed, without a court first making a declaration of title – which was in response to Robert Janes’ submissions on behalf of the Gitxaala on Friday. On these points she agreed with Canada.
Next up was Northern Gateway, represented by Bernard Roth. He argued that the Cabinet is owed a “very, very, very broad” margin of appreciation in its decision to approve the project with the 209 conditions. In relation to the Panel’s report, he argued that if the Cabinet had questions or doubts about whether the Panel properly addressed environmental issues and followed its governing legislation, it could have sent the report back – but it chose not to. He said Cabinet is politically accountable, and therefore the Court’s role is “very limited” — it is not the Court’s place to intervene in the democratic process. Specifically, he argued that unless the Cabinet acts completely arbitrarily or makes a decision for “ulterior motives” (citing the case of Roncarelli v Duplessis [1959] S.C.R. 121 as an example), its decisions should not be interfered with by a court.
The amount of money Northern Gateway had spent up until this point in the process was mentioned at various points in the submission. The “Gold Standard” of environmental assessment that had been employed was frequently mentioned. Counsel also described at length the accommodations Northern Gateway had made, including oil spill modeling, and how many questions the company had to answer during the Panel process. He described the Panel process in detail, including how Northern Gateway’s experts were subject to cross-examination (a step that has been removed in subsequent processes, like Kinder Morgan’s proposed Trans Mountain project’s environmental assessment process). He argued that despite the environmental groups’ argument, humpback whales (a threatened species under Canada’s Species at Risk Act) are taken care of, as far as Northern Gateway is concerned.
He seemed to suggest that as there were 80 First Nations involved in the process, consulting each one at the higher standard of “correctness” (explained above) would be “quite a task to undertake.” He said that despite what level of consultation each Aboriginal group would have been legally owed, all groups were consulted with on the high end of the spectrum – “deep” consultation. He argued that the risk of an oil spill is not an infringement as it’s speculative (and contrasted this with the example of cutting down a tree, as it’s a certain effect). He also asserted that despite First Nations saying they don’t require a veto over projects, they keep pushing the boundaries of the process in order to lengthen it.
As for the economic benefits of the project, Mr. Roth said that benefits from the project accrue to more than just the company. Finally, he argued that “a lot is at stake” and if the Court quashes the approval, the project is dead.
It was a marathon two days, with complex arguments all around. The viewing room was considerably sparser, as presumably many of the First Nation members had returned to their communities.
I think all parties on both sides can agree that “a lot is at stake.” They just may not agree as to what that means.
The final day of hearings, Day 6, will see CAPP making oral submissions, as well as the applicants replying to the submissions of the respondents. A recap of Day 6 will follow – so stay tuned!
Erin Gray is an Articled Student at the Environmental Law Centre
For more information on the Northern Gateway Hearings, including background of the case, summaries of the case and an explanation of some of the arguments, see:
- Northern Gateway Hearing, Day 1: An Articled Law Student’s Perspective.
- Northern Gateway Hearing, Day 2: An Articled Law Student’s Perspective
- Northern Gateway Hearing Day 3: Nature has its Say
- ELC appears in historic Northern Gateway Appeal