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Chris Tollefson

SCC missed chance to review ‘new approach’ by Federal Court of Appeal in pipeline case: lawyer

Thursday, March 12, 2020 @ 1:52 PM | By Christopher Guly

Chris Tollefson hoped the Supreme Court of Canada would have heard an appeal from his client, the Federation of British Columbia Naturalists (BC Nature), which was denied leave last September by the Federal Court of Appeal in its challenge of the federal cabinet’s approval of the Trans Mountain pipeline expansion project.

“We felt that this case was one of national importance because by declining to hear this case, the Federal Court of Appeal was foreclosing the possibility for citizens and groups like ours to ensure that the rule of law was followed,” said Tollefson, founding principal of Tollefson Law Corp. in Victoria and a professor of law at the University of Victoria.

Chris Tollefson, Tollefson Law Corp.

“We felt we had a fairly strong argument on a failure to follow SARA [Species at Risk Act] and so we’re disappointed, by virtue of this decision of the Supreme Court of Canada, that we now have a precedent in place at the Federal Court of Appeal that we say runs contrary to access to justice and undermines the rule of law.”

In Raincoast Conservation Foundation v. Canada (Attorney General) 2019 FCA 224, Justice David Stratas held that BC Nature and two other environmental group applicants — Raincoast and the Living Oceans Society — failed to meet the threshold of a “fairly arguable case” and were also barred by the doctrines against relitigation.

In its application for leave to appeal, filed with the Supreme Court last October, BC Nature asked the court to rule on the legal principles courts should apply “when called upon by Parliament to limit access to judicial review by means of a leave requirement.”

“In particular, where a leave requirement is statutorily imposed, how should courts ensure that they safeguard their supervisory function and jurisdiction as guardians of the rule of law and protectors of access to justice?” BC Nature asked the country’s top court to answer.

On March 5, the Supreme Court declined to reply when it dismissed BC Nature’s application, along with those submitted by Raincoast and Living Oceans, as well as those from the Tsleil-Waututh and Squamish First Nations and a group of four young people, all seeking leave to appeal the Federal Court of Appeal’s Raincoast ruling.

Tollefson said that neither the federal government nor Trans Mountain opposed BC Nature’s application to seek judicial review in the Federal Court of Appeal.

“This is an unusual case,” he offered. “If you have a tenable legal argument, normally leave is granted pro forma. But suddenly, a new approach is being taken in the Federal Court of Appeal, and that was another reason that we felt the Supreme Court of Canada needed to look at this.”

In Raincoast, the federal appellate court allowed six First Nations to raise issues “only on the government’s duty to consult” Indigenous communities, explained Tollefson, founding executive director of the Pacific Centre for Environmental Law and Litigation (CELL) who represented BC Nature pro bono with the assistance of students enrolled in the CELL program.

“The court prescribed what arguments the First Nations could bring forward and foreclosed them from making arguments of a more public law nature, akin to the ones that we were proposing to argue. So for both sets of litigants — those that were granted leave and those that were denied — the court, we would argue, has adopted a new approach on a leave application of that kind.”

He said that as a result of the Raincoast ruling, Tsleil-Waututh and Squamish joined BC Nature and the other two environmental groups in seeking leave to appeal.

“It was their view that by restricting what arguments they could bring, that gave rise to grounds for an appeal that should be heard by the Supreme Court of Canada.”

Tollefson said that “some important permitting decisions remain to be made” regarding the Trans Mountain project, and that could spark litigation.

And the major issue for BC Nature remains that the environmental assessment conducted as part of the approval process for Trans Mountain was “deficient” and that it “did not consider properly the fate of a variety of species that will be put at risk and seriously harmed in the event of a spill,” said Tollefson, former president of Ecojustice and founding executive director of the University of Victoria’s Environmental Law Centre.

Margot Venton, Ecojustice counsel

Ecojustice counsel Margot Venton, who represented Raincoast and Living Oceans at the Federal Court of Appeal, said that while the judicial challenge to the environmental assessment portion of the approval for the Trans Mountain pipeline expansion has ended, enforcement of the Species at Risk Act throughout the next phases of the project has not been resolved since the court declined to hear the appeal.

“It is now important for us to hold the government to account for implementing measures and ensure that those measures are rigorous enough to meet the requirements of the Species at Risk Act,” said Venton, who also serves as program director of nature at Ecojustice in Vancouver. “My clients have no intention of allowing a project or an activity that would jeopardize the survival and recovery of the killer whales, either by directly harming individuals or by destroying critical habitat because that would be against the law.”

She added: “The Supreme Court didn’t hear this case, and not granting leave doesn’t validate the decision of the Court of Appeal.”

“Why [the Supreme Court] chose not to grant leave, but because they don’t write reasons, we won’t ever know. But I think what is unfortunate about the decision is that it leaves this question as to whether Canada has complied with the law, and whether it can comply with the law, hanging over this project in a way I think isn’t helpful from a certainty perspective.”

Venton referred to last month’s decision by Teck Resources Ltd. to withdraw its Frontier oilsands mining project in northern Alberta from the regulatory review process in which, she said, the company wanted “Canada and Alberta to have a plan to deal with greenhouse gas emissions to ensure that the environmental impact of activities are dealt with in a socially acceptable way that doesn’t make uncertain our investment.”

“That’s got to be the case for major projects throughout the country on all issues.”

In a Feb. 23 letter to federal Environment and Climate Change Minister Jonathan Wilkinson, Teck Resources president and chief executive officer Don Lindsay wrote that “global capital markets are changing rapidly and investors and customers are increasingly looking for jurisdictions to have a framework in place that reconciles resource development and climate change, in order to produce the cleanest possible products. This does not yet exist here today and, unfortunately, the growing debate around this issue has placed Frontier and our company squarely at the nexus of much broader issues that need to be resolved. In that context, it is now evident that there is no constructive path forward for the project.”

“Questions about the societal implications of energy development, climate change and Indigenous rights are critically important ones for Canada, its provinces and Indigenous governments to work through.”

In a statement e-mailed to The Lawyer’s Daily, Natural Resources Canada said that construction on the Trans Mountain pipeline expansion continues, “and we will continue to take the necessary steps to ensure this project moves forward in the right way, every step of the way, including by working with Indigenous peoples.”

However, the Supreme Court of Canada could still hear a challenge against that project.

On Feb. 4, the federal Court of Appeal released its ruling in Coldwater et al v. Canada (Attorney General) 2020 FCA 34 in which it dismissed challenges by four Indigenous groups — including the Tsleil-Waututh and Squamish First Nations — on the government’s consultation process for the Trans Mountain project.

They have until April 4 to seek leave to appeal to the Supreme Court.