Canada: Environmental Interventions In Federal Court Proceedings

Last Updated: December 19 2016
Article by Jacob R.W. Damstra

Introduction

In the previous two parts to this series, I considered "A (Nearly) New Approach" to interventions and "Interventions in the 'Public Interest" at the Federal Court and Federal Court of Appeal. In this third and final part of this exploration of Federal Court interventions I discuss a specific type of cases in which interventions in the public interest are particularly apt: issues of environmental protection.

As the same criteria apply to all proposed interventions regardless of the subject matter of the litigation, it would be incumbent on an individual, environmental organization, or industry stakeholder to satisfy the court that its participation in the proceeding would assist with the determination of an issue before the court. Any contemplated intervention by an environmental group, or by an individual or industry stakeholder in an environmental case, should also consider the Rothmans, Benson & Hedges factors and be prepared to convince the court that the proposed intervention will meet all or most of the criteria – with particular focus on the interests of justice.

Environmental Interventions

As will be clear from Part One and Part Two of this series, there is only one test to be applied in a motion for leave to intervene. How this test will be applied varies from case to case. In environmental cases, the public interest debates are particularly heated and difficult; both environmental organizations and their counterparts in industry will bring a specific knowledge and expertise with which to assist the court. Rather than exhaustively reviewing the jurisprudence to emphasize this point, what follows is a brief summary of select environmental cases where leave to intervene has been sought in the past 30 years.

International Fund for Animal Welfare Inc. v. Canada (Minister of Fisheries & Oceans), [1988] 3 F.C. 590 (C.A.)

The underlying appeal was of the finding that certain provisions of the Seal Protection Regulations, C.R.C., c. 833, infringed the appellants' right to freedom of expression but were demonstrably justified under s. 1 of the Charter. The Canadian Civil Liberties Association (CCLA) sought leave to intervene on the constitutional issue on the appeal. The CCLA sought to demonstrate, for the first time on appeal, that s. 2(b) of the Charter protected the right to demonstrate in protest as part of one's freedom of expression.

The court commented at paras. 6-7 that in dealing with Charter issues of first impression courts should welcome the assistance of argument from all segments of the community. However, at para. 8, the court noted that although the CCLA could have illuminated an aspect of the appeal which ought to be considered by the court in reaching its decision but would not otherwise receive any prominence or attention:

the matter sought to be dealt with by an intervenor on appeal must at least have been put in issue at trial. Unless that has been done, it is not an issue which ought to be considered by an appeal court over the objection of a party, if for no other reason than that the party has not had a fair opportunity to direct its mind to the issue and to lead pertinent evidence.

As the CCLA would, in effect, be placing new issues before the Court, the application was dismissed.

Edmonton Friends of the North Environmental Society v. Canada (Minister of Western Economic Diversification), [1991] 1 F.C. 416 (C.A.)

The proceedings dealt with an application for certiorari and mandamus to be directed against the Minister of Western Economic Diversification, the Minister of Transport, the Minister of Fisheries and Oceans and the Minister of the Environment in respect of decisions made pertaining to the construction and operation of a pulp mill and related facilities on the Peace River in northern Alberta. Central to the dispute is the assertion that these decisions are affected by the Environmental Assessment and Review Process Guidelines Order, SOR/84-467 which is said to be binding upon these ministers and not to have been complied with. At the Trial Division, the provincial Crown (Alberta) had applied to that division to be joined in the proceedings as a party respondent or, alternatively, as an intervenor. The first instance judge added the Crown as a party respondent, but with certain conditions attached.

The provincial Crown appealed the conditions imposed. The Appeal Division commented on the distinction between full party status and intervenor status in proceedings. At paras. 12-13 the Appeal Division considered the conditions unduly restricting for a full party to proceedings:

The order below is somewhat of a hybrid, partaking of features both of an order joining a party simpliciter and, with the addition of the conditions, of an order granting intervener status. I am not at all certain that the judge was correct in adding those conditions.

We have not had drawn to our attention any case in which a court, having decided to join a party before a matter was heard, qualified the role of the new party in such fundamental ways as those found in the conditions. Those conditions go a long way, in my opinion, towards reducing the appellant's role in the proceedings to more like that of an intervener than of a full party. They limit the appellant in the evidence she may wish to adduce, in cross-examination and in the position she may wish to adopt. They require the appellant, in effect, to take the record as she finds it and to conform to a "timetable" for the hearing of the s. 18 application regardless of the impact that timetable may have on the ability of the appellant to advance her own position.

Ultimately, the Appeal Division struck the conditions, granting the provincial Crown full party status as respondent in the proceedings.

Friends of Point Pleasant Park v. Canada (Attorney General) (2000), 198 F.T.R. 20

This case considered an application for judicial review of a Notice to Dispose issued to Halifax Regional Municipality under the Plant Protection Act, S.C. 1990, c. 22, of certain trees located in historic Point Pleasant Park, a natural, wooded, 75-hectare public park within the municipality. Certain trees were infested or suspected of being infested with the Brown Spruce Longhorn Beetle. Friends of Point Pleasant Park challenged the Notice to Dispose. The Nova Scotia Forest Products Association sought leave to intervene in the proceedings to speak to the adverse economic impact of any spread of the perceived pests to other forests in Nova Scotia.

The application judge denied leave to intervene, stating at para. 8: the intervention "would not assist in resolution of the issues before the Court in this application. [Friends of Point Pleasant Park] did not disagree that unrestrained spread of BSLB to the forests of the province would have serious adverse economic effects but that, of course, is not in issue in this application."

Here, again, we see the importance of the issues before the Court shaping the Court's determination of whether an intervention in environmental litigation is appropriate.

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2002 FCA 305

The appeal concerned issues of aboriginal rights within a National Park, and the question of whether the granting of a permit to a private group to build and operate a winter road through the Park infringed any treaty rights of the respondent First Nation. The Canadian Energy Pipeline Association sought leave to intervene to argue to argue the extent of consultation and review required by the Canadian Environment Assessment Act when aboriginal rights may be affected.

The Court of Appeal applied the Rothmans, Benson & Hedges factors and found no adequate basis for allowing the intervention. Justice Strayer commented, at para. 4: "The basic issues in the appeal involve the existence, extent and possible justification for infringement, of rights under Treaty 8 in a National Park. It appears to me that the issues are specific to the two parties to the appeal and to the proper scope of treaty rights."

Justice Strayer continued, at para. 5 to apply the criteria in the test for intervention:

the would-be interveners will not be directly affected by the outcome and there is no "related public interest question which naturally arises out of the existing lis between the parties" (see Benoit v. Canada, [2001] F.C.J. No. 518 (Fed. C.A.) at para. 18) which will not be raised and dealt with by the present parties. The appeal should not be turned into a general debate on the method, sufficiency, and effect of consultation with aboriginal groups by private parties. With respect, I believe this Court can decide the real issues on their merits without the extra burden of time and expense that would be placed on the parties and the Court by such an intervention.

In this case, the Court was concerned the proposed intervention would unnecessarily broaden and expand the scope of the issues before the Court, and so refused the intervention.

Dene Tha' First Nation v. Canada (Minister of Environment), 2006 FC 265

Even where a proposed intervenor meets the test for intervention, the scope of the matters in issue will remain of pressing concern to the courts.

The applicant First Nation challenged the creation of the process created for the approval of the environmental and regulatory aspects of the MacKenzie Gas Project on the basis that the federal government failed to consult with them as required by law. As part of the relief sought the applicant asked for a declaration that the MacKenzie Gas Project, including Connecting Facilities, was a single undertaking and a "federal work or undertaking".

The Alberta provincial government sought leave to intervene requesting an order granting it intervenor status on broad terms and, originally, with broad scope. The court held at para. 4: "There is no doubt that Alberta has an interest in this judicial review sufficient to justify being granted intervenor status pursuant to Rule 109 of the Federal Courts Rules - the Dene Tha' acknowledge that interest. The issue is the scope and terms of intervenor status." The Court reminded itself at para. 5 that it "must always be concerned that an intervenor not expand the issues and the scope of the proceedings, including the evidence and issues to be determined beyond that which the parties intend."

With that cautionary principle in mind, the Court allowed the intervention but stated, at para. 7: "the scope of Alberta's intervention must be limited." The court also established fairly limiting constraints on the provincial Crown's term of intervention, evidentiary rights, and rights to cross-examination.

Sandy Pond Alliance to Protect Canadian Waters Inc. v. Canada (Attorney General), 2011 FC 158, reversed in part 2011 FCA 129

Sandy Pond Alliance to Protect Canadian Waters Inc. commenced this application for judicial review in order to challenge certain provisions of the Metal Mining Effluent Regulations, SOR/2002-222, that it said were contrary to the protection and conservation of fish habitat which is the purpose of the Fisheries Act. Vale Inco Ltd., the Mining Association of Canada, and the Mining Association of British Columbia (the "Proposed Intervenors") sought leave to intervene in the proceeding with all rights of a respondent. Alternatively, they sought status as parties. The Sandy Pond Alliance indicated it was prepared to consent to the intervention on a limited basis, within specified terms, which were not accepted by the Proposed Intervernors.

After noting that the Rothmans, Benson & Hedges factors were not cumulative, and notwithstanding the fact that the Proposed Intervenors were not directly affected, the court granted leave to intervene because:

  • there was a justiciable issue raised by the application for judicial review and an interest that affects the public interest;
  • the interests of the Proposed Intervenors may not have been adequately defended by either the applicant or the respondent;
  • the interests of justice were better served by the participation of the three Proposed Intervenors and that the public interest may have suffered if those three parties are denied the right to participate, albeit on a limited basis;
  • the Court was assisted in adjudicating the application for judicial review, by the participation of the three Proposed Intervenors as could offer relevant and different perspectives on the underlying application for judicial review; and
  • the Proposed Intervenors' interest was not merely jurisprudential: at paras. 27-35.

The Court then made a detailed order granting leave to intervene, striking a balance between the terms of intervention sought by the Proposed Intervenors and those suggested by the applicant.

Saskatchewan Watershed Authority v. Canada (Attorney General), 2011 FC 240

The underlying judicial review application by the Saskatchewan Watershed Authority ("SWA") brought into question the validity of an Inspector's Direction made under the authority of s. 38(6) of the Fisheries Act, R.S.C.1985, c. F-14. The Direction directed SWA and others to "immediately take all reasonable measures consistent with safety and with the conservation of fish and fish habitat." In other words, preventing the saline water from flowing into Lenore Lake. A number of municipalities and organizations (the appellants) were denied leave to intervene or be added as respondents by a prothonotary. They appealed the decision regarding intervenor status to the Federal Court. At the Federal Court, the Court set out both the standard of review in relation to discretionary decisions of prothonotaries and the Rothmans, Benson & Hedges factors, then moved on to assess the question of whether the prothonotary's decision should be set aside and leave to intervene granted.

The Federal Court extracted a portion of the prothonotary's reasons:

Although the Moving Parties clearly have an interest in the outcome of the application, I am not satisfied that they are "directly affected" by the decision, or have any legal interest that would be affected by an order disposing of the application for judicial review. They have, at best, an economic or commercial interest. Further, any order quashing the Inspector's Direction or dismissing the application for judicial review would not directly affect their legal rights, and be binding on them.

The application for judicial review involves narrow constitutional and administrative law issues. The interests of the public at large are at issue in this proceeding, as opposed to those of the Moving Parties. In my view, those interests are properly represented by SWA and the Attorney General of Canada.

Moreover, the Respondent is in the best position to set forth what was, and what was not, considered in the decision-making process. The Moving Parties have failed to establish that they have any additional evidence that is relevant to the issues raised in the application, or a different perspective that would assist the Court in disposing of the application.

The Federal Court reviewed the order and, at para. 17, could not find the order was "clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts."

Forest Ethics Advocacy Association v. Canada (National Energy Board), 2013 FCA 236

The underlying issue was Enbridge's application for approval to expand the capacity of a pipeline, to reverse a segment of that pipeline, and to allow the pipeline to transport bitumen. The Forest Ethics Advocacy Association and an individual attempted to submit comments to the National Energy Board for consideration in the approval proceedings. They were denied. They brought an application for judicial review of a section recently added to the National Energy Board Act, R.S.C. 1985, c. N-7, and the Board's interpretation and application of that section: "to create a rigorous application process for those individuals and groups who seek to participate in [the Board's] proceedings."

On the application for judicial review, Enbridge and a company called Valero (an intervenor in the NEB proceedings, supporting Enbridge's application for approval) both sought leave to be added as a respondent, or in the alternative as an intervenor.

Justice Stratas found that Enbridge would be directly affected by the outcome of the judicial review and therefore should have been a respondent in the first place pursuant to Rule 104(1)(b). Valero was not similarly affected, nor was its presence in the judicial review necessary, and its application to be added as a respondent failed.

Considering Valero's alternative application to be added as an intervenor, Stratas J.A. held, at para. 36, that Valero failed to discharge the legal burden of proof upon it: to make "not just an assertion that its participation will assist, but a demonstration of how it will assist." The assertions made in Valero's notice of motion and written submissions left the court "to speculate as to what role Valero would play as an intervener and whether that role would be of any assistance at all": at para. 39. Thus, Valero's motion for leave to intervene was dismissed.

Gitxaala Nation v. R., 2015 FCA 73

The consolidated matters in the case were applications and appeals from decisions of the Governor in Council, the National Energy Board and a Joint Review Panel concerning the Northern Gateway Pipeline Project. The Court of Appeal was considering two motions for leave to intervene in the consolidated matters, one by Amnesty International and another by the Canadian Association of Petroleum Producers.

Justice Stratas applied his newly fashioned test from Pictou Landing. He found that both Amnesty and CAPP complied with Rule 109(2), offering detailed and well-particularized evidence to the Court. Both proposed interveners had a genuine interest in the matter and the Court was confident that they would bring knowledge, skills and resources to the matter before the Court. And granting leave to each to intervene was consistent with the objectives of Rule 3. The trouble was the extent to which each proposed intervener would bring different and valuable insights that would further the court's determination and whether it was in the interests of justice that intervention be permitted.

With respect to Amnesty, Stratas J.A. noted that it offered an international law perspective on the issues in the case, but held that assistance on matters of international law would be of limited use. Thus, Amnesty was allowed to intervene only to the extent that its submissions on international law were relevant and necessary to the determination of a specific issue: at para. 27.

Turning to the CAPP, Stratas J.A. expressed concerns that it appeared to be advancing submissions that the respondents can themselves advance. CAPP's submissions did not reflect any particular perspective. Still, there were some considerations that favoured intervention. CAPP was well-placed to speak to the issue of the public interest. It represents a broad segment of the public affected by the decisions below: at para. 34. Further, Stratas J.A. held that CAPP filled a gap in the overall fairness of the litigation, to advance the perspective of those, other than the proponents, whose interests may be affected if the project approval was overturned: at para. 36. Leave was granted accordingly, with limitations imposed as to what submissions CAPP would be most helpful to the court to make.

Final Thoughts

As these cases demonstrate, motions for leave to intervene in cases of environmental importance are subject to all the same considerations as any other case. Individuals, environmental organizations, governments, and industry stakeholders which might provide assistance to the court in environmental matters would be well advised to observe the general principles discussed in Part Two of this series, and the specific application of those principles in the cases discussed above.

In particular, as the selection of cases discussed in this article demonstrate, the Federal Courts have been particularly cautious about allowing interventions where the proposed intervenor will, in effect, be placing new issues or evidence before the Court. Even where intervention is permitted, intervenors are rarely, if ever, given carte blanche within the proceedings. The scope and extent of interventions has been carefully tailored to the circumstances of each particular case, and the Federal Courts have proven more likely to limit intervenors to areas where intervention will be necessary or helpful to the Court in making a determination.

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