Canada: Pipelines And Public Interest: Attorney General Of Alberta Granted Intervener Status

On May 15, 2017, the Federal Court of Appeal (FCA) issued its reasons for an order in Tsleil-Waututh Nation et al v Attorney General of Canada, National Energy Board, and Trans Mountain Pipeline, 2017 FCA 104, granting the Attorney General of Alberta (AGA) leave to intervene in the proceedings. The judicial review challenges a National Energy Board (NEB) report and recommendation, as well as a Governor in Council's order approving the expansion of the Trans Mountain Pipeline.

Background

On May 19, 2016, the NEB issued a report which found Kinder Morgan's proposed Trans Mountain Expansion Project (Project) to be in Canada's public interest, and recommended that the federal Governor in Council conditionally approve the Project. The Project – at a purported cost of $7.4 billion – will expand the existing marine terminal in Burnaby, BC, add approximately 987 km of new pipeline with new and modified facilities, and increase capacity from 300,000 barrels per day to 890,000. Subsequently, on November 29, 2016, an order by the Governor in Council approved the Project.

Beginning in May of 2016, several parties brought applications for judicial review of those administrative decisions. On various bases, the applications aim to quash the recommendation and approval, and effectively bring the Project to a halt. In order to streamline proceedings, the Court consolidated 16 applications involving 31 parties. The applicants, led by the Tsleil-Waututh Nation, are comprised of several municipalities, First Nations, Indigenous communities and environmental groups.

Before the Court on this application were two motions for leave to intervene, brought by the AGA and the Tsartlip First Nation (Tsartlip).

Decision

The AGA's Motion

Rule 110(c) of the Federal Courts Rules provides that where a question of general importance is raised in a proceeding, an Attorney General of a province may apply to intervene. The applicant in the overall proceeding, the Tsleil-Waututh Nation, contested the AGA's motion on the basis that, among other things, it could only apply for leave if the prerogatives for intervention under Rule 109 had been satisfied. Further, the applicant argued that intervener status for an Attorney General may only be granted where the prerequisites under Rules 110 (a) and (b) have also been satisfied.

In an exercise of statutory interpretation, the Court reasoned that it would be contrary to public interest for Attorneys General to have to satisfy the prerequisites of Rule 109 andRule 110, while private parties need only satisfy the former. As Justice Stratas writes,

Much clearer legislative language would be necessary to persuade me that the legislative drafter intended that Attorneys General – who represent broader interests, potentially the interests of millions of members of the public – should face more impediments to intervention than private parties.

Relying on previous decisions of the FCA, Justice Stratas found that, given the role of Attorneys General as representatives of the Crown and promoters of the public interest, it would be an absurd result that they be placed in a worse position than private parties wishing to intervene. As relied on by the AGA, there are several other decisions of the FCA allowing leave to intervene under Rule 110(c) without having to satisfy other requirements under Rules 109 and 110. The Court held that, without clear legislative language to the contrary, or argument that the case law on this point is manifestly wrong, the AGA should be permitted to intervene under Rule 110(c).

The Court noted, however, that the admission of Attorneys General is not automatic, and the requirement to apply in support of a "question of general importance" must still be satisfied. Such questions are ones that generally affect the interest of the government or population in the relevant jurisdiction (see Vancouver Wharves Ltd v Canada (Labour, Regional Safety Officer), [1996] FCJ No 183). The AGA argued that the Trans Mountain Pipeline is geographically located in Alberta, and the Project would provide access to Alberta's natural resources for the benefit of the economy. The AGA further argued that the outcome of these consolidated proceedings would have serious implications for future interprovincial pipeline projects. Given the significance of the Project to the development of energy resources, the public interest in facilitating clear and consistent methods of approving resource development projects, and legal questions concerning the rights of interested Indigenous communities, the Court held that the test for intervention was met.

Tsartlip's Motion

Conversely, the application by the Tsartlip for leave to intervene under Rule 109 was denied. In its notice of motion, the Tsartlip had suggested that the decisions of the National Energy Board and Governor in Council should be quashed on the basis that they adversely affected the Tsartlip's own rights and interests. The Court, however, agreed with Trans Mountain's contention that the motion was an improper attempt to obtain full-party status without having to file an application for judicial review. The Tsartlip had declined to apply previously. The Court noted that the application before it was, in substance, an application for judicial review in the guise of a motion to intervene. Justice Stratas concluded that, if the Tsartlip had a direct interest in quashing the administrative decisions, they should have brought an application for judicial review in a timely manner. They could not now be allowed to use Rule 109 to achieve the same outcome.

The Court also rejected the argument that an application for judicial review would be "prohibitively expensive." Importantly, an intervener must rely on the same evidentiary record as those other parties to the proceedings, as their role is to assist the Court in making a determination on that record. Given that the cost of a judicial review application where the party is not responsible for preparing an evidentiary record is roughly equivalent to a motion for leave to intervene, there was no merit to the argument that it was too expensive to do so. Consequently, the Tsartlip's motion was dismissed.

Implications

Having been granted leave to intervene, the AGA may now make written and oral submissions in the course of the judicial review. As noted by the Court and evinced by statements from the Province, these submissions will be in support of the respondent Attorney General of Canada, NEB, and Trans Mountain. Premier Notley, in a press release following the decision, stated the province's intention to "[fight] for Alberta's interests in court to get oil flowing to new markets and a better return for Albertans on every barrel." The AGA also submitted that the Province is committed to assessing the Project's impact on upstream greenhouse gas emissions, and to promoting predictable rules and processes that facilitate resource development in the public interest.

There is every indication that submissions made by the AGA will support the Project's approval, and strive to have the contested decisions upheld. However, as noted, the role of an intervener is to assist the Court in evaluating the record of evidence. To this end, the AGA is confined to submissions on evidence entered by other parties – whether it be good or bad. This may ultimately decide the AGA's significance in the action.

About BLG

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 Mondaq.com.

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

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
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

Mondaq.com (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 www.mondaq.com

To Use Mondaq.com 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.

Disclaimer

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.

General

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