Canada: Climate Change & Public Interest Litigation: Voters Taking Action On Climate Change v. British Columbia (Energy And Mines)

Last Updated: December 9 2015
Article by Zoë Thoms

The Supreme Court of British Columbia recently considered an interesting case where an environmental advocacy group sought standing to challenge permits issued by the Chief Inspector of Mines allowing an expansion of Texada Quarry Ltd.'s (TQL) coal handling and storage operations. Voters Taking Action on Climate Change (VTACC) brought a petition for a judicial review of the Chief Inspector's approval of the permit and the MOE's decision not to exercise its power to require a review under BC's environmental legislation, the Environmental Management Act (EMA). While VTACC was ultimately not successful in its petition, the case may mark the start of more public interest litigation around climate change, particularly as governments move to integrate climate change considerations into their decision-making.

VTACC describes its mission as urging governments to take meaningful action to address climate change, including through reduced reliance on carbon intensive fuels such as coal. VTACC calls for the rapid phase out of the export of thermal coal from all BC ports and objects to any plans to expand infrastructure to facilitate its exports from BC ports. The concern is that the burning of this coal at its ultimate destination will contribute to GHG emissions that drive global climate change. The court noted that VTACC devotes considerable energy, resources and time to advocacy and public education about BC's overall coal export plan, including the TQL facility.

In its petition to the court, VTACC challenged the jurisdiction of the Chief Inspector to authorize coal storage and handling operations, arguing that these activities have no connection to a mine and, thus, no connection to the purposes of the Mines Act. VTACC asserted that proper jurisdiction rested with the MOE under the EMA and that the MOE erred in law or acted unreasonably when it refused to take up the matter. As well, VTACC argued that the Chief Inspector breached the rules of natural justice and procedural fairness when he received and considered new materials from TQL without making that information publically available.

The threshold issue before the court was whether or not VTACC had standing to bring its petition. Traditionally, standing is restricted to persons whose private rights are at stake or who are specifically affected by the matter at issue. In certain cases, however, the courts have, at their discretion, allowed public interest standing where the nature of the case transcends interests of those most directly affected by the challenged law or action.1

The test for granting public interest standing, as set out by the Supreme Court of Canada, requires the court to weigh whether:

  1. the case raises a serious justiciable issue;
  2. the party bringing the action has a real stake or a genuine interest in its outcome; and
  3. the proposed proceeding is a reasonable and effective means to bring the case to court.2

VTACC asserted that it met the test for public interest standing: (1) there was a serious question to be considered concerning the legality of the challenged government actions (i.e. the decisions of the Chief Inspector and MOE); (2) VTACC had participated in the issues and processes underlining the case; and (3) that there was no other readily apparent way for the case to come before the court.

VTACC provided evidence of its engagement with the issues raised in the proceeding to demonstrate its interest in the outcome, including that its representatives had participated in the TQL's permit amendment application. VTACC also relied on its general advocacy work around the export of coal, including coordinating public rallies, renting billboards to challenge the BC government's position on coal exports, preparing open letters to the BC government signed by environmental experts and academics, issuing press releases and organizing public outreach events. As well, VTACC stated it took specific steps in relation to TQL's permit application in authoring an opinion piece that appeared in the media in respect of TQL's application, commissioning an art piece commenting on the proposal, writing to cruise ship lines urging them to express concerns about the proposal, encouraging the public to express their opinions in the permit amendment process, coordinating a request to the MOE to trigger an environmental assessment and providing written submissions to the Chief Inspector on the merits of the application.

TQL and the Province took the position that VTACC did not have a sufficient interest to warrant being granted public interest standing.

TQL argued that the storage of coal at its facility did not raise a serious justiciable issue. TQL noted that the parties that had a real stake or genuine interest in the matter, such as the local residents and the nearby Sliammon First Nation, were not challenging the storage of coal at this site.

The Province argued that concerns raised in the petition were local in nature and did not have wide reaching implications. The Province stated that the larger issue at the center of VTACC's advocacy efforts, whether BC ought to be authorizing coal projects at all, was not raised by the permit application process. The Province also challenged VTACC's evidence of its mandate, noting that at the time that VTACC had filed its application for judicial review, VTACC's constitution set out its purpose as fundraising-related and not attempting to influence the decisions of the Chief Inspector or the MOE. Finally, the Province argued that the VTACC did not have the level of engagement with the permitting process that it asserted. The Province noted that the only input provided to the Chief Inspector on behalf of VTACC was one email. No one representing VTACC attended the public information session held by TQL in respect of the permit amendment application. The Province noted that a genuine interest in matters of climate change and a track record in activities to influence public thinking about climate change did not translate into a genuine interest in either the permit amendment under the Mines Act or the EMA determination.

The court declined to exercise its discretion to grant public interest standing to VTACC. The court held that the issue as set out by VTACC in its petition, the jurisdiction of the Chief Inspector over coal storage and handling, did not raise a sustainable constitutional issue or one of such public importance that it transcends the interests of those directly affected. Furthermore, the issue at the center of VTACC's advocacy efforts concerning whether or not BC ought to be authorizing coal projects at all, was not an issue raised by TQL's application under the Mines Act or request for exemption under EMA, even though VTACC perceived a link between the decision of the Chief Inspector and VTACC's broader climate change concerns.

The court did find that VTACC had demonstrated its engagement with the issue and rejected the objections raised by the Province on that point. The Court also accepted that VTACC had the capacity to bring forward the claim and that its petition was a reasonable and effective means to bring the challenge to the court.

The court specifically commented on the public interest aspect of VTACC's petition and noted that VTACC did not represent any local resident or the Sliammon First Nation. Those parties, in the court's view, had a more direct and personal interest in the proceedings, but were not before the court. The court was concerned that granting VTACC's standing would potentially impact the rights of others who were equally or more directly affected, noting that the nearby Sliammon First Nation did not oppose the project, so their position would be contrary to VTACC's position.

Having concluded that VTACC did not have standing to bring forward the petition for judicial review, the matter was effectively ended. However, the court went on to consider the substantive allegations made by VTACC and concluded that the decision of the Chief Inspector to issue the permits and the determination of the MOE not to exercise its jurisdiction under the EMA were reasonable. With respect to the procedural fairness allegation, the court held that VTACC was accorded all of the statutory and procedural fairness to which it was entitled. The court noted that the failure of any VTACC representative to attend the public information session held by TQL regarding the application undermined VTACC's assertion in respect of procedure fairness. VTACC would have had more information had its representatives attended the session.

Even if VTACC had standing to bring the petition, the court concluded that the decision of the Chief Inspector and determination of the MOE were reasonable and that there was no breach of procedural fairness. VTACC was ordered to pay TQL's costs.

While VTACC was not ultimately successful in its petition, the decision of the court did highlight strategic considerations that may assist advocacy groups in the future. For example, were an advocacy group able to align with local residents, First Nations and indigenous communities, they may have more traction before the courts. As well, the court did not specifically rule that climate change concerns were not and could not be a matter of such public importance that it transcends the interests of those directly affected. The issue for the court, in declining to grant VTACC standing, was that climate change was not raised by TQL's application and therefore not considered in the decision making of the Chief Inspector. Ontario recently announced its Climate Change Strategy, which included a commitment to integrate climate change mitigation into government decision-making and require the consideration of environmental impacts and climate change resiliency in infrastructure planning. Perhaps this policy shift may allow advocacy groups in the future to draw the necessary connections between the government decisions being challenged and climate change concerns in order to meet the test for public interest standing. If so, we may see more public interest litigation in this area and proponents, like TQL, will be faced with expending time and resources to respond to these challenges.

*With research assistance from Jessica Millar, an articling student at Aird & Berlis LLP .


[1] Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 ["Downtown Eastside"] at para 1.

[2] Downtown Eastside at para 2.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Zoë Thoms
In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions