City of Burnaby v. Attorney General of Canada, et al.
(Federal) (Civil) (By Leave)
Administrative law - Boards and tribunals - Administrative law — Boards and tribunals — National Energy Board — Report advising Governor in Council regarding issuance of Public Convenience and Necessity — Alternative routes — Risk of malfunction or accident — Procedural fairness — Oral hearing — Oral cross-examination — Whether Board is obliged to consider alternative routes or locations under CEAA 2012, s. 19(1)(g) — If so, whether Board requires evidence to make that determination — Whether Board is obliged to assess risks of malfunctions or accidents and consequent environmental effects under CEAA 2012, s. 19(1)(a) project is approved by Governor in Council — Whether Board is obliged to afford procedural fairness to participants in multi-party Board hearings according to impact of decision on participant — Canadian Environmental Assessment Act, S.C. 2012, c. 19. .
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On December 16, 2013, Trans Mountain Pipeline L.C. and the respondent Trans Mountain Pipeline ULC applied to the NEB for various certificates, including a Certificate of Public Convenience and Necessity, for the Trans Mountain Expansion Project. In the course of determining that application, the NEB issued a ruling rejecting Burnaby’s request that the hearing order be amended to include an oral cross-examination of witnesses. It determined that the evidence should be tested by a written process in which written evidence would be subject to written questioning by up to 400 parties and the NEB itself. On May 19, 2016, the NEB advised the Governor in Council that the expansion (including a terminal in Burnaby) is in Canada’s public interest, provided that certain environmental protection procedures and mitigation measures are implemented. If those measures are implemented, the expansion is not likely to cause significant adverse environmental effects. It found that Trans Mountain’s route selection process and criteria, and the level of detail provided with respect to its assessment of alternative means were appropriate. In so finding, it acknowledged Burnaby’s concerns concerning to disclosure with respect to the terminal locations that had been considered. The recommendation was accompanied by many conditions requiring future conduct from Trans Mountain. Inter alia, they required that Trans Mountain address risks not previously been assessed, and imposed the deadlines for compliance and the consequences for non-compliance.
On November 29, 2016, the Governor in Council accepted the recommendation and issued Order in Council P.C. 2016 1069, directing the NEB to issue a Certificate of Public Convenience and Necessity approving the construction and operation of the project, subject to the conditions. Applications for judicial review of the NEB’s report and, by leave, of the Order in Council were filed by a number of participants. They were consolidated by the Federal Court of Appeal. The Federal Court of Appeal quashed the Order in Council and remitted the matter back to the Governor in Council for appropriate action, if it sees fit, to address these flaws and, later, proper redetermination. That decision was based on its conclusion that, although the Government of Canada had acted in good faith and selected an appropriate consultation framework, Canada’s efforts fell well short of the mark set by the Supreme Court of Canada during Phase III. It has failed to engage, dialogue meaningfully, and grapple with the real concerns of the Indigenous applicants so as to explore possible accommodation of those concerns. As such, the duty to consult was not adequately discharged. In so holding, the Federal Court of Appeal rejected each of the concerns expressed by Burnaby. The redetermination hearing is now ongoing before the NEB, and Burnaby is participating in that hearing.
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