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Ecology Action Centre v. Nova Scotia (Environment), 2022 NSSC 104

Jurisdiction: Supreme Court of Nova Scotia


Side A: Ecology Action Centre (Ngo)


Side A: New Brunswick Anti-Shale Gas Alliance, Inc. (Ngo)


Side B: Nova Scotia Department of Environment (Government)


Side B: Minister of Environment (also known as the Minister of Environment and Climate Change) (Individual government)


Core objectives: Whether the applicants had standing in the Supreme Court of Nova Scotia to challenge, among other things, the decision of the Minister of Environment and Climate Change to approve a highway realignment project related to the Goldboro LNG Project.


Summary
The applicants, the Ecology Action Centre and New Brunswick Anti-Shale Gas Alliance, sought judicial review of the Minister of Environment and Climate Change’s decision to approve a highway realignment project related to the Goldboro LNG Project. The Minister of Environment and Climate Change brought a motion alleging, among other things, that the applicants should not be granted public interest standing to start judicial review of the decision. 

The applicants argued that the Minister (i) failed to provide the applicants with the written statement of the decision, including findings of facts upon which it based its decision and the reasons for the decision, contrary to the requirements set out in the Environment Act, (ii) erred in making the decision, and (iii) failed to properly consider the comments received from the applicants and other participants during the public consultation process. The applicants argued that, among other things, the Minister failed to consider their comments concerning greenhouse gas emissions and the risks of carrying out the project in an area already significantly impacted by historical gold mining activity and contaminated by toxic gold mine tailing deposits.

In determining whether to grant public interest standing, the Court was required to determine whether (i) there was a serious, justiciable issue raised, (ii) the applicants had a real stake or genuine interest in the matter, and (iii) in all the circumstances, the proposed suit was a reasonable and effective way to bring the issue before the Court. 

On the question of whether it was a serious and justiciable issue, the Court determined that reasonableness of the Minister’s decision to approve the highway realignment project was justiciable. However, it found that it was not a serious issue, given that the application related solely to the decision to allow the highway realignment project, rather than the decision to approve the overall Goldboro LNG Project (which was approved in 2014). The Court determined that the applicants’ primary concern was with the GHG that would be emitted by the Goldboro LNG Project, not the highway realignment project. On the question of whether the applicants had a real stake or genuine interest in the matter, based on their respective mandates related to the environment and climate change, the Court determined that the applicants had a genuine interest in the matter. On the question of whether the proposed suit was a reasonable and effective way to bring the issue before the Court, the Court acknowledged that an application for judicial review was the only mechanism available to challenge the Minister’s decision. The Court added that the applicants brought a perspective to the issues which were distinct from those more directly affected. In weighing all of the factors cumulatively, the Court found that they did not support granting public interest standing to the applicants. The Court accepted that climate change and the environmental impacts from natural gas production are important issues, but that the decision in question was about the approval of a highway realignment (with secondary greenhouse gas emissions concerns compared to the actual Goldboro project). 

The applicants’ application for judicial review of the decision to approve the highway realignment project was dismissed. However, the Court allowed the applicants’ application for judicial review regarding whether the Minister failed to provide the applicants with the written statement of the decision contrary to the requirements set out in the Environment Act to proceed to a hearing on the merits.

Case documents

from the Grantham Research Institute
from the Grantham Research Institute
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