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OIL AND GAS - Environmental impact - Federal-provincial coordination and cooperation

Tuesday, October 22, 2019 @ 8:32 AM  

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Appeal by the City of Vancouver from a judicial review judgment affirming the Province's issuance of an Environmental Assessment Certificate (EAC) for the Trans Mountain Expansion Project. The proposed Project sought to significantly expand the capacity of an existing inter-provincial pipeline system with the construction of associated infrastructure. The appellant was among those who voiced environmental concerns with the Project, particularly the potential impact upon the City's Burrard Inlet shoreline. The Province determined that a prior environmental assessment conducted by the National Energy Board was sufficiently equivalent to the assessment required under the provincial Environmental Assessment Act. Following a consultation process, the Province issued the EAC, listing conditions to address key environmental risks. The appellant sought judicial review, taking issue with the adequacy and procedural fairness of the administrative and public consultation process, and alleging non-compliance with the statutory process related to equivalency. The petition was dismissed. The City appealed. Thereafter, the Federal Court of Appeal (FCA) quashed the federal approval of the Project due to issues with the adequacy of Canada's indigenous consultation process, and concerns with the National Energy Board's assessment of the risks to the environment. The Board consequently prepared a reconsideration report that recommended approval with certain specified risk mitigation recommendations. The reconsideration report was admitted as fresh evidence for the purpose of the appeal.

HELD: Appeal allowed in part. Because of the FCA decision, the assessment relied upon by the Province as equivalent to the mandated provincial process was no longer the entire assessment of the Project. The federal assessment now included the Board's reconsideration report that nobody at the provincial level had an opportunity to consider, and thus could not support the Province's EAC. Rather than quashing the EAC, the appropriate remedy was to remit the matter to the Province to permit reconsideration of the EAC's conditions in light of the changes in the National Energy Board’s report occasioned by the FCA decision. With respect to the statutory process, the reviewing judge was correct that s. 27 of the Act and the equivalency agreement authorized the Province's acceptance of the Board's assessment as an equivalent assessment under the Act. On the issue of public consultation, the City's procedural issues were not raised in timely fashion given the timing of the notification of the process. In any event, as the reviewing judge found, the process as a whole was not procedurally unfair.

Vancouver (City) v. British Columbia (Ministry of the Environment), [2019] B.C.J. No. 1737, British Columbia Court of Appeal, M.E. Saunders, D.M. Smith and H. Groberman JJ.A., September 17, 2019. Digest No. TLD-October212019005