The Federal Court of Appeal recently released a significant decision in Gitxaala Nation v Canada1 granting the Canadian Association of Petroleum Producers (CAPP) leave to intervene in a consolidated proceeding concerning the Northern Gateway pipeline project (the Project).
The Project proposes to build oil and natural gas condensate pipelines along a 1,172-km route from central Alberta to Kitimat, British Columbia, where a storage and marine terminal for the export of oil and import of natural gas condensate would be built. The applicants/appellants in this case are challenging decisions made by the National Energy Board, the Governor-in-Council and the Joint Review Panel approving the Project.
Recent decision on interveners
The court considered requests from CAPP and Amnesty International for leave to intervene in the case.2 Applying the test for granting intervener status in Canada (Attorney General) v Pictou Landing First Nation,3 the court focused on two particular elements of the test: the extent to which each proposed intervener would bring different and valuable insights that will further the court's determination, and whether it is in the interests of justice to permit the interventions.
Many of the applicants and appellants expressed concern that CAPP would only repeat submissions that the respondents could themselves advance. Notwithstanding this concern, the court found that CAPP represented a broad segment of the public that is affected by the Project's approval (and potential overturning of same).
However, of particular interest was the court's reasoning that the appearance of fairness favoured granting CAPP intervener status in this case. Beginning at paragraph 34, the court discusses the imbalance between the number of parties opposing the Project and those responding in its favour. Missing from the cast of players were those, other than the Project's proponents, whose interests may be affected if the Project's approval was overturned. The court held that CAPP "helps to fill that gap."4 Moreover, CAPP is an association representing a complete industrial sector rather than a single private player, and it was significantly involved in the matter under review. These factors supported the fairness of allowing it to intervene.5
CAPP was directed to focus its submissions on the public interest considerations relevant to the assessment of the decisions under review.6
The court granted Amnesty International leave to intervene because of its expertise in international law issues and in light of the narrow possibility that international law issues could be relevant to particular issues in the case. Amnesty International's submissions were directed to specifically explain how and why any international law submission would be relevant and necessary to the determination of issues in the case.7
This decision is unusual in that the Federal Court, having high standards for granting intervener status, allowed an industry group to intervene in a case where private interests were already represented. Historically, intervener status has been granted to public interest groups or organizations who can provide specialized perspectives on matters having a public, important or complex dimension. This decision may prove a helpful precedent for industry or trade associations who wish to intervene in proceedings surrounding contentious natural resource projects.
The author wishes to thank Reuben Zaramian, articling student, for his help in preparing this legal update.
1. 2015 FCA 73 [Decision].
2. Leave to intervene is granted pursuant to R. 109 of the Federal Courts Rules, SOR/98-106.
3. 2014 FCA 21.
4. Decision, para. 36.
5. Decision, paras. 37-38.
6. Decision, para. 39.
7. Decision, paras. 25, 27.
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