On March 1, 2016, the Quebec Government announced that it is seeking an injunction
against TransCanada Pipelines (TransCanada) to ensure that the
relevant parts of the Energy East project (a federally-regulated
interprovincial pipeline project) are subject to a Quebec
environmental assessment process. We have previously written about
the Energy East project
here. Although the Energy East project is the subject of an
application to the National Energy Board (NEB), the Quebec
Government asserts that there should be a review by the
province's Bureau d'audiences publiques sur
l'environnement (BAPE) to consider environmental impacts
within Quebec. According to the recent Quebec Government announcement, the injunction asks the Court to
require TransCanada to comply with the Quebec Environmental
Quality Act and file environmental assessment documents for
the Quebec portion of the project.
One issue in the Quebec Government's injunction request will
presumably be the extent to which there can be provincial oversight
of federally-regulated pipeline projects. While pipeline proponents
can be expected to argue that all relevant interests are considered
by the NEB and other federal bodies, the Quebec Government and
pipeline opponents will want to have more local review of local
Similar issues were recently addressed by the British Columbia
Supreme Court (BCSC) in a case regarding the British Columbia (BC)
Government's planned oversight of the NEB-regulated Northern
Gateway project. In Coastal First Nations v. British Columbia
(Environment), the BCSC set aside an "Equivalency
Agreement" between the BC Government and the NEB, pursuant to
which the BC Government agreed to accept any NEB environmental
assessment of an NEB-regulated project. Under the "Equivalency
Agreement," there would be no Provincial environmental review.
The BCSC set aside the "Equivalency Agreement" because it
improperly takes away the BC Government's obligation to
exercise discretion to issue an "environmental assessment
certificate" under section 17 of the BC Environmental Assessment Act (EAA).
The BCSC also indicated that the "Equivalency Agreement"
failed to recognize the Province's duty to consult with First
A key item addressed in Coastal First Nations v. British Columbia
(Environment)was whether section 17 of
the EAA is unconstitutional, at least in relation to
interprovincial pipelines like Northern Gateway. The argument (as
advanced by the pipeline proponent) is that an interprovincial
pipeline is within the exclusive jurisdiction of the Federal
Government. The BCSC decision contains some detail and analysis
about when provincial laws affecting federal undertakings are
unconstitutional. The BCSC concluded that regulation of the
environmental impacts of an interprovincial pipeline is not within
the exclusive jurisdiction of the Federal Government. The BCSC did
caution, however, that issues of paramountcy could arise if the BC
Government decided to deny environmental approval for a project
that had already been approved by the NEB. On the other hand, the
BCSC appeared to accept that the BC Government could properly
include supplemental local environmental conditions of approval for
an interprovincial pipeline (beyond those stipulated by the NEB) so
long as those conditions advance environmental protection concerns
(which are within provincial jurisdiction).
While the Coastal First Nations v. British Columbia
(Environment) decision of the BCSC will not be binding on
the Court hearing the Quebec Government's injunction request,
the decision is likely to be referenced and it may be persuasive.
To the extent that the Quebec Government can demonstrate that its
BAPE process is not taking away the NEB's jurisdiction to
approve the interprovincial Energy East project, then the Quebec
Government may succeed in its injunction. As of the time of writing
(March 7, 2016), the BAPE hearings have commenced, but there is no
decision on the Quebec Government's injunction and TransCanada
has not yet filed any environmental impact studies for Energy
East's route through Quebec. It seems fair to expect that there
are further developments to come.
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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Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
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