Motion to Intervene – Motion Granted on Terms
In this decision, the Federal Court of Appeal (“FCA”) considered a motion by the Attorney General of British Columbia (“British Columbia”) to intervene in the consolidated proceedings between applicant aboriginal groups and respondent federal government and energy company.
In a decision the FCA described as a “close call,” it granted British Columbia leave to intervene on terms, for the reasons summarized below.
The Consolidated Judicial Review Proceedings
British Columbia’s motion was considered within the context of the FCA’s consideration of fifteen consolidated applications for judicial review, seeking to quash certain administrative decisions approving the Trans Mountain Expansion Project (the “Project”). The administrative decisions subject to judicial review by the FCA are:
(a) the NEB decision report dated May 19, 2016 (the “NEB Report”); and
(b) the Order in Council, PC 2016-1069, dated November 29, 2016, made by the Governor in Council (the “GIC”).
The FCA explained that the $7.4 billion Project adds new pipeline, in part through new rights of way, expanding the existing 1,150-kilometre pipeline running from Edmonton, Alberta to Burnaby, British Columbia. The Project is expected to increase the existing pipeline’s capacity from 300,000 barrels per day to 890,000 barrels per day following the expansion.
The applicants challenged the administrative approvals on a number of grounds, including administrative law principles, statutory law, and section 35 of the Constitution Act, 1982 regarding Aboriginal rights and Canada’s duty to consult.
British Columbia Motion
In a previous order, dated March 9, 2017, the FCA set a filing deadline of April 13, 2017, for parties to file motions to intervene. The FCA noted that British Columbia did not move to intervene by the April deadline and did not make its motion until August 22, 2017.
Later circumstances in British Columbia
The FCA explained that on April 11, 2017, two days before the April filing deadline for intervener motions, writs of election were issued in British Columbia. The election was held on May 9, 2017, and a new government for the province of British Columbia assumed office on July 18, 2017. Five weeks later, on August 22, 2017, British Columbia brought its motion.
Aspect of British Columbia Motion Unsatisfactory
The FCA noted serious concerns regarding the British Colombia motion, including:
(a) it taking five weeks for British Columbia to bring the motion, which the FCA considered a very long time in a closely-managed, expedited proceeding such as this;
(b) the seven-paragraph affidavit offered in support of the motion not providing any explanation for the five-week delay; and
(c) British Columbia’s motion saying little on the scope or details of its requested intervention.
Test for Intervention
As explained in Tsleil-Waututh Nation, 2017 FCA 102 (“Tsleil-Waututh Nation”), Rule 110 of the Federal Courts Rules, SOR/98-106 (the “Rule(s)”) is a special rule allowing the Attorneys General of Canada and the provinces to move to intervene. Rule 110 recognizes that Attorneys General who represent broader interests are responsible on behalf of the Crown for advancing and protecting the public interest.
The test under Rule 110 requires that there be “a question of general importance raised in the proceeding.” The question must be one that affects the interests of the government or the population in the relevant jurisdiction in a general way: The “question of general importance” requirement can also be met where “serious questions are raised in proceedings that themselves are of general importance” (citing Tsleil-Waututh Nation at para 18).
Should British Columbia be allowed to intervene?
The FCA stated that its decision on the motion was a “close call,” but decided to allow British Columbia to intervene on terms.
The FCA held that British Columbia had met the “question of general importance” requirement, finding that there was a strong nexus between the issues raised in the proceedings on the one hand and the interests of the Government of British Columbia and the population it serves on the other.
The FCA accepted that British Columbia was one of the two provinces most directly affected by the proceedings, the other being Alberta. The FCA noted that the public interest of Alberta had been given a voice by the Alberta AG’s participation as an intervener. The FCA stated that the public interest of British Columbia deserved a voice too. The FCA noted that Alberta appeared to be mainly on the side of the respondents while British Columbia appeared to be mainly on the side of the applicants. Given Alberta’s participation, the FCA found that British Columbia should also be in the proceedings.
Leave to Participate and Conditions
The FCA granted British Columbia leave to intervene, subject to conditions regarding the scope of its participation.
The FCA cautioned that while British Columbia may have been “blasé” in approaching its motion to intervene, it must be vigilant in complying with the conditions. The FCA warned that if any were breached, the FCA panel hearing the appeal could revoke British Columbia’s status as an intervener.
