Raincoast Conservation Foundation, et al. v. Attorney General of Canada, et al.

Canada

Jurisdiction: Supreme Court of Canada

Side A: Living Oceans Society (Ngo)

Side A: Raincoast Conservation Foundation (Ngo)

Side B: Trans Mountain Corporation (Corporation)

Side B: Trans Mountain Pipeline ULC (Corporation)

Side B: Attorney General of Canada (Individual government)

Side C: Attorney General of Alberta (Intervening party)

Core objectives: Whether to grant leave to appeal the Federal Court of Canada’s decision in Raincoast Conservation Foundation et al. v. Canada (Attorney General) et al., 2019 FCA 224 (No. 19-A-35) dismissing the applicants’ motion for leave to start an application for judicial review against the Governor in Council’s decision to approve the Trans Mountain Pipeline expansion project for a second time under the National Energy Board Act.

Summary

The applicants, Raincoast Conservation Foundation and Living Oceans Society, sought leave to appeal the Federal Court of Canada’s decision in Raincoast Conservation Foundation et al. v. Canada (Attorney General) et al., 2019 FCA 224 (No. 19-A-35). In that case, the Federal Court of Appeal dismissed their motion for leave to start an application for judicial review against the Governor in Council’s decision to approve the Trans Mountain Pipeline expansion project under the National Energy Board Act.

At the Federal Court of Appeal, the applicants raised issues concerning the impacts of the Trans Mountain Pipeline project on southern resident killer whales, the requirements of the Species at Risk Act in the context of environmental assessments of projects likely to adversely affect species at risks, and the interplay between the Species at Risk Act and the Canadian Environmental Assessment Act. The applicants argued that, among other things, increased tanker traffic related to the project and risk of a catastrophic oil spill associated with the project would pose significant additional threats to the southern resident killer whales. The applicants also argued that the Governor in Council had no jurisdiction to make a decision with respect to the project without ensuring that the requirements under the Species at Risk Act were met.

In its decision, the Federal Court of Appeal determined that the applicants’ arguments on the environmental issues could not meet the threshold of a “fairly arguable case” and therefore denied them leave to start a judicial review. The Federal Court of Appeal determined that the applicants’ argument on the Governor in Council’s lack of jurisdiction was not “fairly arguable” because the Federal Court of Appeal had specifically rejected it in Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 15 (the “2018 Tsleil-Waututh Nation Case”) (where the Federal Court of Appeal set aside the Governor in Council’s first approval of the Trans Mountain Pipeline expansion project). The Court also found that the alleged flaws in the National Energy Board’s examination of environmental matters under the Species at Risk Act were not “fairly arguable” because they were raised and decided or could have been raised in the 2018 Tsleil-Waututh Nation Case.

The applicants filed an application for leave to appeal to the Supreme Court of Canada. The Supreme Court of Canada dismissed the applicants’ application for leave to appeal without providing reasons.

Case documents will be added as they become available.