​​On May 15, 2017, the Federal Court of Appeal (FCA) issued its reasons for an order in Tsleil-Waututh Nation et al v Attorney General of Canada, National Energy Board, and Trans Mountain Pipeline, 2017 FCA 104, granting the Attorney General of Alberta (AGA) leave to intervene in the proceedings. The judicial review challenges a National Energy Board (NEB) report and recommendation, as well as a Governor in Council's order approving the expansion of the Trans Mountain Pipeline.

Background

On May 19, 2016, the NEB issued a report which found Kinder Morgan’s proposed Trans Mountain Expansion Project (Project) to be in Canada’s public interest, and recommended that the federal Governor in Council conditionally approve the Project. The Project – at a purported cost of $7.4 billion – will expand the existing marine terminal in Burnaby, BC, add approximately 987 km of new pipeline with new and modified facilities, and increase capacity from 300,000 barrels per day to 890,000. Subsequently, on November 29, 2016, an order by the Governor in Council approved the Project.

Beginning in May of 2016, several parties brought applications for judicial review of those administrative decisions. On various bases, the applications aim to quash the recommendation and approval, and effectively bring the Project to a halt. In order to streamline proceedings, the Court consolidated 16 applications involving 31 parties. The applicants, led by the Tsleil-Waututh Nation, are comprised of several municipalities, First Nations, Indigenous communities and environmental groups.

Before the Court on this application were two motions for leave to intervene, brought by the AGA and the Tsartlip First Nation (Tsartlip).

Decision

The AGA’s Motion

Rule 110(c) of the Federal Courts Rules provides that where a question of general importance is raised in a proceeding, an Attorney General of a province may apply to intervene. The applicant in the overall proceeding, the Tsleil-Waututh Nation, contested the AGA’s motion on the basis that, among other things, it could only apply for leave if the prerogatives for intervention under Rule 109 had been satisfied. Further, the applicant argued that intervener status for an Attorney General may only be granted where the prerequisites under Rules 110 (a) and (b) have also been satisfied.

In an exercise of statutory interpretation, the Court reasoned that it would be contrary to public interest for Attorneys General to have to satisfy the prerequisites of Rule 109 andRule 110, while private parties need only satisfy the former. As Justice Stratas writes,

Much clearer legislative language would be necessary to persuade me that the legislative drafter intended that Attorneys General – who represent broader interests, potentially the interests of millions of members of the public – should face more impediments to intervention than private parties.

Relying on previous decisions of the FCA, Justice Stratas found that, given the role of Attorneys General as representatives of the Crown and promoters of the public interest, it would be an absurd result that they be placed in a worse position than private parties wishing to intervene. As relied on by the AGA, there are several other decisions of the FCA allowing leave to intervene under Rule 110(c) without having to satisfy other requirements under Rules 109 and 110. The Court held that, without clear legislative language to the contrary, or argument that the case law on this point is manifestly wrong, the AGA should be permitted to intervene under Rule 110(c).

The Court noted, however, that the admission of Attorneys General is not automatic, and the requirement to apply in support of a “question of general importance” must still be satisfied. Such questions are ones that generally affect the interest of the government or population in the relevant jurisdiction (see Vancouver Wharves Ltd v Canada (Labour, Regional Safety Officer), [1996] FCJ No 183). The AGA argued that the Trans Mountain Pipeline is geographically located in Alberta, and the Project would provide access to Alberta’s natural resources for the benefit of the economy. The AGA further argued that the outcome of these consolidated proceedings would have serious implications for future interprovincial pipeline projects. Given the significance of the Project to the development of energy resources, the public interest in facilitating clear and consistent methods of approving resource development projects, and legal questions concerning the rights of interested Indigenous communities, the Court held that the test for intervention was met.

Tsartlip’s Motion

Conversely, the application by the Tsartlip for leave to intervene under Rule 109 was denied. In its notice of motion, the Tsartlip had suggested that the decisions of the National Energy Board and Governor in Council should be quashed on the basis that they adversely affected the Tsartlip’s own rights and interests. The Court, however, agreed with Trans Mountain’s contention that the motion was an improper attempt to obtain full-party status without having to file an application for judicial review. The Tsartlip had declined to apply previously. The Court noted that the application before it was, in substance, an application for judicial review in the guise of a motion to intervene. Justice Stratas concluded that, if the Tsartlip had a direct interest in quashing the administrative decisions, they should have brought an application for judicial review in a timely manner. They could not now be allowed to use Rule 109 to achieve the same outcome.

The Court also rejected the argument that an application for judicial review would be “prohibitively expensive.” Importantly, an intervener must rely on the same evidentiary record as those other parties to the proceedings, as their role is to assist the Court in making a determination on that record. Given that the cost of a judicial review application where the party is not responsible for preparing an evidentiary record is roughly equivalent to a motion for leave to intervene, there was no merit to the argument that it was too expensive to do so. Consequently, the Tsartlip’s motion was dismissed.

Implications

Having been granted leave to intervene, the AGA may now make written and oral submissions in the course of the judicial review. As noted by the Court and evinced by statements from the Province, these submissions will be in support of the respondent Attorney General of Canada, NEB, and Trans Mountain. Premier Notley, in a press release following the decision, stated the province’s intention to “[fight] for Alberta's interests in court to get oil flowing to new markets and a better return for Albertans on every barrel." The AGA also submitted that the Province is committed to assessing the Project’s impact on upstream greenhouse gas emissions, and to promoting predictable rules and processes that facilitate resource development in the public interest.

There is every indication that submissions made by the AGA will support the Project’s approval, and strive to have the contested decisions upheld. However, as noted, the role of an intervener is to assist the Court in evaluating the record of evidence. To this end, the AGA is confined to submissions on evidence entered by other parties – whether it be good or bad. This may ultimately decide the AGA’s significance in the action.