Raincoast Conservation Foundation v. Her Majesty the Queen, et al.

(Federal) (Civil) (By Leave)




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Legislation – Interpretation – Administrative law – Judicial review – Can sections 29 through 31 of the Canadian Environmental Assessment Act, 2012, S.C. 2012, C 19, s 52 be read in such a way as to preclude judicial review of the report of the Joint Review Panel.

As part of the process to obtain certificates, the Northern Gateway project (the “Project”) was referred to a Joint Review Panel. The Joint Review Panel prepared a report pursuant to the National Energy Board Act, R.S.C. 1985, c. N-7, as amended, (the “NEB Act”) and an environmental assessment pursuant to the Canadian Environmental Assessment Act, 2012, S.C. 2012, c 19, s 52 (“CEAA 2012”). The Joint Review Panel’s report found the Project to be in the public interest and recommended that the requisite certificates be issued, subject to 209 conditions. The report recommended that Governor in Council conclude that the potential adverse environmental effects from the Project alone were not likely to be significant, and that significant adverse cumulative effects in relation to the caribou and grizzly bear populations (resulting from past, present and foreseeable activities) are justified in the circumstances. Governor in Council accepted the recommendations from the report and issued Order in Council P.C. 2014-809. The National Energy Board issued the certificates.

Numerous parties brought applications for judicial review of the report of the Joint Review Panel, the Order in Council, and the certificates. The Federal Court of Appeal dismissed the applications for judicial review of the report but allowed the applications for judicial review of the Order in Council and certificates, quashing both on the basis that there had been inadequate consultations with First Nations. The matter was remitted to the Governor in Council for redetermination. The issue raised in this leave application is whether the Federal Court of Appeal erred in concluding that judicial review did not lie with respect to the report, since “[n]o decisions about legal or practical interests had been made” and “[a]ny deficiency in the Report … was to be considered only by the Governor in Council”, not the court.

Lower Court Rulings

June 23, 2016
Federal Court of Appeal

A-56-14, 2016 FCA 187
Application for judicial review dismissed