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ENVIRONMENTAL IMPACT - Pipelines - Remedies - Judicial review of administrative action

Tuesday, October 08, 2019 @ 8:48 AM  

Lexis Advance® Quicklaw®
Motions by 12 sets of parties for leave to bring a judicial review application of the Governor in Council’s decision that approved the Trans Mountain Pipeline expansion project. The applicants sought to challenge the decision based on its substantive unreasonableness, environmental issues, allegations of bias and conflict of interest, and the Crown’s failure to adequately consult with Indigenous peoples and First Nations. The Governor in Council’s first approval of the project had previously been struck down.

HELD: Motions of six Indigenous applicants allowed; motions of other six applicants dismissed. The Governor in Council’s approval decision was entitled to a high level of deference. The applicants could not raise issues that were raised and decided in the previous decision that struck down the Governor in Council’s first approval of the project. The National Energy Board Act did not disqualify the Governor in Council from discharging its responsibility to decide whether to approve the project based on ownership of the project. Most of the environmental and consultation issues raised were barred by the doctrines against relitigation. The applicants’ arguments of conflict of interest, bias and environmental issues did not meet the threshold of a fairly arguable case. The adequacy of consultation issues arising from the further consultation after the first approval was struck down met the fairly arguable standard.

Raincoast Conservation Foundation v. Canada (Attorney General), [2019] F.C.J. No. 1002, Federal Court of Appeal, D.W. Stratas J.A., September 4, 2019. Digest No. TLD-October72019006