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 .

Footnotes

[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.

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