Forest Ethics Advocacy Assn v Canada: Three Administrative Decisions on the Line 9 Pipeline
On 31 October 2014, the Federal Court of Appeal (“FCA”) released Forest Ethics Advocacy Assn v Canada (National Energy Board), 2014 FCA 245 [Forest Ethics]. In the decision, Justice Stratas considered an “inseparable triumvirate” of interlocutory decisions by the National Energy Board (“NEB”) related to a proceeding on the approval of the Lin 9B Reversal and Line 9 Capacity Expansion Project (at para 61). First, whether the NEB should consider the climate change effects associated with the upstream development of Alberta’s oil sands and downstream use of oil transported by the pipeline. Second, whether the NEB facilitated meaningful participation during its decision-making process. Third, whether Ms. Sinclair, an individual who applied to participate in the NEB Line 9 proceeding, could participate.
Although the NEB’s Line 9 proceeding has been concluded (with a conditional approval for Enbridge), the FCA’s decision in Forest Ethics is noteworthy. In an analysis that is sure to be troubling for environmental advocates, Justice Stratas affirms all three NEB decisions and presents a very narrow view on public participation in environmental decisions.
In its analysis the FCA notes that the three NEB decisions on review are fused and notes that there is “considerable merit in the Supreme Court’s recent approach of not artificially parsing a matter and segmenting it into separate decisions” (at para 62). Despite this, Justice Stratas analyzes each issue separately.
I. The NEB’s Consideration of Upstream and Downstream Environmental Effects of Line 9
The FCA held that the NEB decision on the relevance of the pipeline’s climate change effects was one of substance and proceeded to apply the standard of review analysis set out in Dunsmuir v New Brunswick, 2008 SCC 9. It found the standard was reasonableness, as NEB was interpreting its home statute, the National Energy Board Act, RSC, 1985, c N-7 (“Act”).
Justice Stratas determined that the decision fell within the range of reasonable and acceptable outcomes and provided a list of nine reasons to support this conclusion. Notable among these was that Parliament had recently added sections 52(2) and 55.2 to the Act which empowered the NEB to more rigorously regulate the scope of its proceedings and the parties before it (See Jobs, Growth and Long-term Prosperity Act, SC 2012 c 19, s 83).
II. The NEB’s Public Participation Process
The FCA found that the NEB’s public participation process, which required parties who wished to participate in the Line 9 proceeding provide certain information in an Application to Participate Form, was a reasonable use of the discretion concerning participation rights under section 55.2 of the Act.
Section 55.2 reads as follows:
On an application for a certificate, the Board shall consider the representations of any person who, in the Board’s opinion, is directly affected by the granting or refusing of the application it may consider the representations of any person who, in its opinion, has relevant information or expertise. A decision of the Board as to whether it will consider the representations of any person is conclusive
Perhaps the most interesting aspect of Forest Ethics is Justice Stratas’ determination that this decision on procedural fairness should be reviewed on a reasonableness standard. As recently as Mission Institution v Khela, 2014 SCC 24, the SCC has affirmed that the standard of review in procedural matters is correctness with “a margin of deference.” Nevertheless, Justice Stratas chose to follow his own dissent in a previous FCA decision:
On the current state of authorities in this Court, the standard of review is correctness with some deference to the Board’s choice of procedure… though, as noted in my reasons in Maritime Broadcasting System Limited v Canadian Media Guild… some authorities from this Court prescribe deference as the proper approach. Re: Sound urges us to be “respectful” of the agency’s choices,” and exercise a “degree of deference” when assessing the Board’s procedural decision …
I prefer to interpret Re: Sound in a manner faithful to Dunsmuir, the later cases of the Supreme Court and the settled cases of this Court, all of which bind us. The cases tell us that review conducted in manner “respectful of the agency’s choices” or with a “degree of deference” to those choices is really a species of deferential review – i.e. the reasonableness standard the Supreme Court in Dunsmuir … as the only “respectful” or “deferential” one (at paras 70-71)
This statement appears to suggest that Justice Stratas believes the presumptive standard of review for both procedural and substantive decisions should be reasonableness.
III. The NEB’s Decision to Deny Ms. Sinclair Participation
If there is one clear message from the Forest Ethics decision, it is that the recent amendments to the NEB’s Act have significantly limited public participation in its hearings. Reviewing the decision to deny Ms. Sinclair on a standard of reasonableness the FCA’s found the NEB had acceptably and defensibly interpreted and applied the test for public participation under section 55.2.
Having already rejected Ms. Sinclair’s rationale for participation (to raise larger substantive issues with the project such as climate change), the FCA decision on her participation was not surprising. However, the force with which the court rejected it was. According to Justice Stratas:
Board hearings are not an open-line radio show where anyone can dial in and participate. Nor are they a drop-in center for anyone to raise anything, no matter how remote it may be to the Board’s task of regulating the construction and operation of oil and gas pipelines.
Forest Ethics is a forceful decision in favour of deference to the NEB. For environmental advocates it sets an uncomfortable precedent, as many more decisions on Line 9, the Northern Gateway, and Energy East are likely to reach the FCA over the next several years.