Canada: The Limits Of Judicial Intervention Where An Administrative Decision Is Not Yet Complete

[...] absent exceptional circumstances, parties cannot proceed to the court system until the administrative process has run its course [Canada (Border Services Agency) v CB Powell Limited, 2010 FCA 61 at para 31, [2011] 2 FCR 332].

The recent federal court case of Northern Cross (Yukon) Limited v Canada (Attorney General), 2017 FC 622, 2017 CarswellNat 2962 [Northern Cross] reaffirms the general principle that courts will be hesitant to intervene where an administrative decision is not yet finalized.

Background

Northern Cross (Yukon) Limited ("Northern Cross") submitted a proposal to a designated office of the Yukon Environmental and Socio-economic Assessment Board (the "Board") for a multi-well exploration project in the Yukon. The designated office, after a lengthy and detailed process, referred the proposal to the Executive Committee of the Board for screening. The designated office did not make a final determination on the proposal. Instead, the proposal was referred because the designated office "could not determine whether the Project will have, or is likely to have, significant socio-economic effects" (para 29). The effect of referring the proposal to the Executive Committee of the Board was that any actual determination of the proposal would likely be delayed by one to two years.

The designated office could not determine whether the proposal would have significant adverse environmental or socio-economic effects on a rather narrow ground. The designated office concluded it could not determine the "probability or magnitude" of changes to caribou migration. The need for greater certainty on caribou migration was necessary given the importance of the animals' relation to the First Nation and Inuvialuit way of life, and the unprecedented scale of the proposal (para 28).

Northern Cross applied for judicial review of the decision referring, the assessment of the proposal to the Executive Committee of the Board for screening, alleging that the process included breaches of procedural fairness and the decision to refer the proposal was a reviewable error.

The Decision

Although a number of issues were raised on appeal, Justice Boswell determined the federal court did have jurisdiction to hear the application but then determined the application for judicial review was premature; the application was dismissed with costs.

Analysis

The Legislative Framework and the Referral for Screening

Northern Cross' proposal was submitted to the designated office pursuant to the Yukon Environmental and Socio-economic Assessment Act, SC 2003, c 7 (the "Act"). The designated office is staffed by members of the Board, and the Board exists to implement the Act which includes, among other things, ensuring "that projects are undertaken in accordance with principles that foster beneficial socio-economic change without undermining the ecological and social systems on which communities and their residents, and societies in general, depend" (s 5(2)(e)).

A designated office will conduct a review of a proposal to determine the adequacy of the submissions, the scope of the proposed project, and whether the project will be located, or might have significant environmental or socio-economic effects, in the territory of a First Nation (para 5). A designated office may then conclude its evaluation by making a recommendation or by referring the project to the Executive Committee of the Board for screening (s 56(1)). Pursuant to section 56(1)(d), the designated office referred the proposal to the Executive Committee of the Board for screening:

[s 56(1)] A designated office shall [...] conclude its evaluation of the project by

[...]

(d) referring the project to the executive committee for a screening, if, [...], it cannot determine whether the project will have, or is likely to have, significant adverse environmental or socio- economic effects.

The Federal Court's Jurisdiction

Jurisdiction was a threshold issue as the Act granted the Supreme Court of Yukon jurisdiction to hear applications for judicial review of decisions made under the Act (s 116):

Notwithstanding the exclusive jurisdiction referred to in section 18 of the Federal Courts Act, the Attorney General of Canada, the territorial minister or anyone directly affected by the matter in respect of which relief is sought may make an application to the Supreme Court of Yukon for any relief against the Board, a designated office, the executive committee, a panel of the Board, a joint panel or a decision body [...]

Justice Boswell first concluded the Federal Court had jurisdiction to hear the application under the Federal Courts Act, RSC 1985, c F-7 and then concluded that section 116 of the Act did not displace the Federal Court's jurisdiction. Instead, section 116 simply granted the Supreme Court of Yukon concurrent jurisdiction to review administrative actions made under the Act (para 42).

That the Application was Premature

The Attorney General argued the application was premature as the proposal's reference to the Executive Committee of the Board was merely an "interlocutory step" in the ongoing assessment process; no decision was yet reviewable as the process had not concluded (para 50). Northern Cross argued the application was not premature as the project had reached a "natural break" and that the designated office itself had exhausted its statutory authority (para 46). Further, judicial review was necessary to remedy the breaches of procedural fairness.

Justice Boswell was not persuaded by Northern Cross' submissions. He cited a number of cases highlighting the principle "that a court should not review an administrative decision that has not yet been finalized" (para 54). He found that court intervention was not appropriate as the administrative process involving the proposal was not complete (para 60); following screening by the Executive Committee of the Board, the proposal could very well be approved. Finally, Justice Boswell was satisfied that the Board's screening would provide Northern Cross with its opportunity to demonstrate why the proposal should be approved (para 61). Accordingly, the Act still provided Northern Cross with a clear method of addressing its concerns.

Justice Boswell concluded an incomplete administrative process or a 'referral decision' will not be subject to judicial review absent "exceptional circumstances or a contravention of the requirements of procedural fairness" (para 58). He held there were no exceptional circumstances to warrant court intervention at the time of the application (para 60). Although Northern Cross did allege breaches of procedural fairness, Justice Boswell concluded those alleged breaches could still be addressed by the Executive Committee of the Board.

The policy considerations underlying the judgment of Northern Cross emphasize the need for the efficient use of judicial resources and the desire for courts not to overstep their authority in reviewing decisions of administrative bodies. As stated in Re Wilson and Atomic Energy of Canada Ltd, 2015 FCA 17 at para 31, [2015] 4 FCR 467:

The general rule against premature judicial reviews reflects at least two public law values. One is good administration — encouraging cost savings, efficiencies, promptness and allowing administrative expertise and specialization to be fully brought to bear on the problem before reviewing courts are involved. Another is democracy — elected legislators have vested the primary responsibility of decision-making in adjudicators, not the judiciary.

Conclusion

Absent exceptional circumstances or issues of procedural fairness, a court will not intervene on an administrative process that has yet to conclude. The judgment of Northern Cross provides the latest example of this general principle. Further, allegations of breaches of procedural fairness alone will not alone persuade a court to intervene. A court must be convinced that intervention is completely necessary to address the alleged breaches. Where the administrative process has not yet concluded, this threshold remains high.

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