Ecology Action Centre v. Canada (Environment and Climate Change)

Ecology Action Centre v. Canada (Environment and Climate Change)
Court (s) Database
Federal Court Decisions
Date
2021-12-13
Neutral citation
2021 FC 1367
File numbers
T-541-20, T-679-20
Decision Content
Date: 20211213
Dockets: T-541-20
T-679-20
Citation: 2021 FC 1367
Ottawa, Ontario, December 13, 2021
PRESENT: The Honourable Mr. Justice Bell
BETWEEN:
ECOLOGY ACTION CENTRE, SIERRA CLUB FOUNDATION, WORLD WILDLIFE FUND CANADA
Applicants
and
MINISTER OF ENVIRONMENT AND CLIMATE CHANGE REPRESENTED BY THE ATTORNEY GENERAL OF CANADA
Respondent
and
LE CONSEIL DES INNU DE EKUANITSHIT
Intervener
JUDGMENT AND REASONS
I. Overview
[1] The governments of Canada and Newfoundland and Labrador are cognizant of both the economic benefits and the potential long-term impact on our ecosystem of off shore oil and gas exploration in Canadian waters to the east of the Province of Newfoundland and Labrador. To this end, the government of Canada implemented a regulatory scheme in an effort to avoid duplication of the management of that exploration and to ensure that the highest standards of environmental protection continue to be applied and maintained. The Sierra Club Canada Foundation, World Wildlife Fund Canada and Ecology Action Centre (the “Applicants”) oppose the regulatory scheme and the means by which it was implemented by the government of Canada.
[2] The Applicants seek judicial review pursuant to sections 18 and 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7 [Federal Courts Act], of the Regional Assessment of Offshore Oil and Gas Exploratory Drilling East of Newfoundland and Labrador (the “Regional Assessment”) which was made available to the public and to the Applicants on March 4, 2020. The Regional Assessment Committee (the “Committee”) prepared the Regional Assessment, which constitutes part of the Committee’s report (“Final Report”) to the Minister of Environment and Climate Change Canada (the “Minister”). The Applicants additionally seek judicial review of the Regulations Respecting Excluded Physical Activities (Newfoundland and Labrador Offshore Exploratory Wells) (the “Regulation”) made by the Minister pursuant to paragraph 112(1)(a.2) of the Impact Assessment Act, S.C. 2019, c. 28, s. 1 [IAA]. The Regulation came into force on June 4, 2020. Both judicial reviews have been consolidated.
[3] At the outset of these reasons it is important to set out what the Final Report is not. It is not a report related to the production of oil and gas reserves. It is a report related to exploration. Exploration has been ongoing in the area under study for many years. Prior to the commencement of the Regional Assessment, the then Minister of Natural Resources for the Province of Newfoundland and Labrador described “exploration”, in part, as a “low impact” activity for which “potential impacts and standard mitigations are well known”. The then Minister of Indigenous Services, Seamus O’Regan, in speaking about the Regional Assessment, opined that the government of Canada is “working with the Province to improve the efficiency of the environmental assessment process for offshore projects, while continuing to maintain the highest standards of environmental protection”. Minister O’Regan’s comments were directed at the issue of duplication of the management of off shore oil and gas exploration in the east coast of the Province of Newfoundland and Labrador, an issue that the regulatory scheme put in place by the government of Canada was meant to eliminate.
[4] A second important point to be made is that each of the three applicants were active participants, funded in part by Canadian taxpayers, in the Regional Assessment process. I can do no better than quote from the Applicants’ Notice of Application, where they collectively say, in part:
The Applicants were active participants in the Regional Assessment process leading to the Report. Each was named to the Technical Advisory Group (“TAG”) assembled pursuant to the Agreement. The TAG was composed of government departments and agencies, indigenous groups, environmental and industry organizations with interests, information and expertise related to the Regional Assessment. Under the Agreement, the TAG was responsible for gathering information, conducting analysis, and providing advice to the Committee. All were recipients of participant funding within the Regional Assessment process and within other environmental review processes regarding offshore oil and gas development.” [Emphasis added]
[5] Finally, I would note that in the course of its work, the Committee consulted broadly, including with indigenous communities. The list of those communities is found at page 46 of the Applicant’s Application Record:
The Innu Nation (Labrador Innu); Nunatsiavut Government (Labrador Inuit); NunatuKavut Community Council; Miawpukek First Nation; Qalipu First Nation; Kwilmu’kw Maw-klusuaqn Negotiation Office representing Acadia First Nation, Annapolis Valley First Nation, Bear River First Nation, Eskasoni First Nation, Glooscap First Nation, Membertou First Nation, Paqtnkek Mi’kmaw Nation, Pictou Landing First Nation, Potlotek First Nation, Wagmatcook First Nation, and We’koqma’q First Nation; Mi’gmawe’l Tplu’taqnn Inc representing Fort Folly First Nation, Eel Ground First Nation, Pabineau First Nation, Esgenoôpetitj First Nation, Buctouche First Nation, Indian Island First Nation, Eel River Bar First Nation, and Metepnagiag Mi’kmaq First Nation; Wolastoqey Nation of New Brunswick representing Kingsclear First Nation, Madawaska Maliseet First Nation, Oromocto First Nation, Saint Mary’s First Nation, Tobique First Nation and Woodstock First Nation; Mi’kmaq Confederacy of PEI representing Abegweit First Nation and Lennox Island First Nation; Mi’gmawei Mawiomi Secretariat representing Micmacs of Gesgapegiag, La Nation Micmac de Gespeg, and Listuguj Mi’gmaq Government; Conseil des Innu de Ekuanitshit; Première Nation des Innus de Nutashkuan; Unama’ki Institute of Natural Resources; Mi’kmaq Conservation Group; and Atlantic Policy Congress.
[6] For the reasons set out below, I dismiss the Applications for judicial review.
II. Facts and Decisions under Review
A. Legislative Context surrounding the IAA
[7] The IAA came into force on August 28, 2019, its predecessor legislation being the Canadian Environmental Assessment Act, 2012, S.C. 2012, c. 19, s. 52 [CEAA, 2012]. Impact assessments are conducted by the Impact Assessment Agency of Canada (the “Agency”), a federal body accountable to the Minister. The Agency, among other things, conducts or administers the impact assessment process for “designated projects” subject to the IAA. Designated projects are set out in the Physical Activities Regulations, SOR/2019-285 [PAR] or by ministerial order. Offshore exploratory drilling projects are one type of designated project subject to the requirements of the IAA.
[8] Regional assessments, while not defined in the IAA, permit the Government of Canada to study and examine issues beyond project-focused impact assessments for a specific designated project. They are intended to assist governmental decision-making by providing a more comprehensive analysis than a site-specific assessment. They are multi-faceted, covering vast areas and aimed broadly at understanding the effects of existing or future physical activities assessable under the IAA. Importantly, paragraph 112(1)(a.2) of the IAA empowers the Minister to make a regulation, after considering a regional assessment, that would exclude activities from the impact assessment process set out in the IAA. The exclusion occurs if the activity is proposed in an area for which a regional assessment has been carried out and the project meets the conditions set out in the relevant regulation.
[9] Sections 92-103 of the IAA set out various requirements related to the conduct of a regional assessment. Those requirements include, but are not limited to:
- The Agency has an obligation to offer to consult and cooperate with any jurisdiction that has powers, duties or functions in relation to the physical activities in respect of which the assessment is conducted (s. 94);
- The Minister must respond to any request that an assessment be conducted (s. 97(1));
- The Agency – or the committee if one has been established under ss 92 or 95 - must take into account any scientific information and Indigenous knowledge provided when conducting an assessment (s. 97(2));
- The Agency or the committee must ensure that information it uses when conducting an assessment is made available to the public, and must ensure that the public is afforded an opportunity to participate meaningfully in an assessment (ss. 98-99).
[10] Pursuant to subsections 93(2), 93(3) and section 96 of the IAA, the Minister has broad discretion to establish the terms of reference for a regional assessment, including the establishment of the assessment’s purpose and objectives. On completion of the regional assessment, the relevant assessment committee must provide a report to the Minister pursuant to subsection 102(1) of the IAA. The Regional Assessment currently under attack is the first such assessment conducted under the IAA.
B. Regional Assessment of Offshore Oil and Gas Exploratory Drilling East of Newfoundland and Labrador
[11] The Regional Assessment applies to offshore exploratory drilling and associated activities in a defined “study area” off Eastern Newfoundland and Labrador. The Regional Assessment was undertaken as a collaborative effort among the Agency, the Canada-Newfoundland and Labrador Offshore Petroleum Board (“C-NLOPB”), Natural Resources Canada, and the Newfoundland and Labrador Department of Natural Resources pursuant to an agreement signed in March 2019 (the “Agreement”). The Agreement is attached hereto as Schedule A to these reasons. The Regional Assessment was commenced under the CEAA, 2012 and completed under the IAA.
[12] The Agreement established a five-member Committee as well as a Task Team and a Technical Advisory Group (“TAG”) who supported the Committee. The TAG included participants from relevant government departments and agencies, Indigenous groups, industry and stakeholder organizations and others. Appendix A of the Agreement sets out the factors to be considered by the Committee, and Appendix D sets out the Committee’s Terms of Reference.
[13] Once the Agreement and Committee were in place, the Regional Assessment process began. The following is a brief timeline of the events and opportunities provided to the public to participate in the Regional Assessment:
May 2019 – the Committee conducted a series of initial planning and issues-scoping meetings with stakeholders and Indigenous groups, including the Applicants and the Intervener;
August 8, 2019 – the Committee wrote to the Minister advising that it may be necessary to have additional time to complete the Regional Assessment, beyond the Fall 2019 deadline;
September 24, 2019 – the Agency President responded to the Committee on behalf of the Minister, advising that the timeline was “aggressive and challenging” but there was a desire to complete the Regional Assessment in a timely manner. No extension was granted at that time;
September 2019 – the Committee held a number of TAG sessions on various themes. The Applicants’ representatives attended these sessions and provided submissions. One of the TAG sessions focussed on the development of the Geographical Information System (“GIS”) tool;
October 2019 – the Committee invited TAG participants, including the Applicants, to provide input into various literature reviews related to the potential environmental effects of offshore exploratory drilling;
November 13, 2019 – The Intervener participated in a TAG process entitled “Connaissances autochtones et double perspective”;
December 4-6, 2019 – the Committee conducted workshops with stakeholders and Indigenous groups to discuss and seek input on its draft recommendations prior to the release of the draft Report and formal public review period. The public, including the Applicants, were first sent a draft of the Committee’ recommendations on the eve of the workshops;
December 17, 2019 – the Applicants’ wrote to the Minister communicating their concerns regarding the process, including the insufficient time afforded to the Committee to complete the Regional Assessment. The Minister did not reply to the Applicants’ concerns;
January 10, 2020 – the Minister approved an amendment to the Agreement, allowing for the delivery of the Committee’s final report no later than the end of February 2020;
January 23, 2020 – the draft Report was released to the public, including the Applicants. They were provided with a 30-day period to review and comment on the report’s draft recommendations;
February 23-29, 2020 – the Committee had five business days to review the submissions and finalize the Report;
March 4, 2020 – the Committee’s Final Report was made public;
May 31, 2020 – the GIS tool was finalized. The GIS tool consisted of the description and evaluation of the technical and factual information upon which the Final Report and recommendation were said to be based. The Committee referred to the GIS tool as “an integral component of the Regional Assessment”.
[14] The Applicants repeatedly expressed their concerns, principal among them being that the time allotted for the Regional Assessment was much too short to allow for a fulsome assessment.
[15] The Final Report, while much too lengthy to include in these reasons, contained a number of recommendations. Those recommendations are attached hereto as Schedule B.
C. Regulations Respecting Excluded Physical Activities (Newfoundland and Labrador Offshore Exploratory Wells) (the “Regulation”)
[16] On March 4, 2020, the same day the Final Report was made public, the Minister sought comments on a Discussion Paper on a Ministerial Regulatory Proposal to Designate Offshore Exploratory Drilling East of Newfoundland and Labrador for Exclusion under the Impact Assessment Act (the “Discussion Paper”). The Discussion Paper proposed creating a regulation exempting exploratory oil and gas drilling projects from assessment requirements under the IAA.
[17] On April 7, 2020, Ms. Gretchen Fitzgerald of the Sierra Club Canada Foundation wrote to the Minister’s office requesting a meeting between the Minister and the Applicants to discuss concerns regarding the proposed regulation. Ms. Fitzgerald received no response to her request and no meeting took place.
[18] Due to interruptions caused by Covid-19, the Minister extended the deadline for providing comments regarding the Discussion Paper to April 30, 2020.
[19] Recall, the Regulation was declared in force on June 4, 2020. It provides, among others, that new offshore exploratory drilling projects that meet the conditions imposed by the Regulation, are excluded from the PAR and are not considered “designated projects” under the IAA.
[20] I would note that the Regulation is not listed in the Canada Gazette. Section 112(4) of the IAA provides that a regulation made under paragraph 112(1)(a.2), such as the Regulation, is exempt from the Statutory Instruments Act, R.S.C., 1985, c. S-22 (“SIA”). The SIA is the legislative instrument which provides, amongst other requirements, that regulations must be published in the Canada Gazette (s. 11). For that reason, and for ease of reference, the Regulation is attached hereto as Schedule C.
III. Relevant Provisions
[21] The relevant provisions of the IAA are ss. 92, 93, 96, 97, 98, 99, 102(1), 112(1)(a.2) and 112(4). They are set out in Schedule D attached to these reasons.
IV. Issues
[22] The Court is called upon to consider the following issues in these consolidated applications for judicial review:
Is the Final Report, and hence the Regional Assessment, a justiciable decision?
If the Final Report is justiciable, was the Regional Assessment:
i) Reasonable; and
ii) Procedurally fair?
Does the Regulation meet the test of reasonableness as it has been defined in Portnov v. The Attorney General of Canada 2021 FCA 171 [Portnov]. That is to say, does it constitute, in the circumstances, reasonable subordinate legislation as contemplated by the IAA?
[23] Because I conclude the Final Report is not a justiciable decision, I need not address the second issue, other than as it relates to the reasonableness of the Regulation.
V. Is the Final Report a justiciable decision?
[24] The Applicants contend that the Final Report, including the Regional Assessment, is justiciable in its own right because of its legal and practical effects. They argue that the Final Report is distinguishable from the review panel reports under the CEAA, 2012, which, admittedly, were not justiciable. They say that the effects of the Final Report reach far beyond the regional assessment process and its influence will extend decades into the future.
[25] The Applicants submit that judicial review extends to “decisions or orders that determine a party’s right, even if the decision at issue is not the ultimate decision” (Larny Holdings Ltd. v. Canada (Minister of Health), 2002 FCT 750, [2003] 1 FC 541 at para 18).
[26] Moreover, the Applicants submit that regardless of what this Court decides on the justiciability of the Final Report, it must determine whether the Committee discharged its mandate and delivered a Regional Assessment capable of allowing the Minister to satisfy the statutory preconditions for making the Regulation. The question therefore becomes whether the Final Report is materially deficient. If the Final Report is determined to be materially deficient, the decision, or Regulation in the within matter, may be set aside on that basis (Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153, [2019] 2 FCR 3 at para 201 [Trans Mountain].
[27] The Respondent contends that the Final Report is not justiciable since it is not a “decision” subject to judicial review pursuant to the Federal Courts Act. It merely provides information and advice to the Minister. The Respondent cites recent jurisprudence from the Federal Court of Appeal in support of its contention. In Gitxaala Nation v. Canada, 2016 FCA 187, [2016] 4 FCR 418 [Gitxaala], the Court considered a report of a joint review panel under the CEAA, 2012 and the National Energy Board Act, R.S.C., 1985, c. N-7. The panel conducted an environmental assessment under the CEAA, 2012. It prepared a report providing recommendations to the Governor in Council. The Court concluded that the only meaningful decision-maker is the Governor in Council. The Report was not subject to judicial review. (Gitxaala at para 125). In Trans Mountain, supra, the Federal Court of Appeal was invited to overturn Gitxaala as “manifestly wrong” on this issue. It declined to do so. Following a thorough analysis, the Court held, as it did in Gitxaala, that the report was not justiciable.
[28] Taseko Mines Ltd. v. Canada (Environment), 2019 FCA 319 [Taseko Mines], concerned an application for judicial review of the final report of a federal review panel under the CEAA, 2012. The three-member panel had been appointed under the former Canadian Environmental Assessment Act, S.C. 1992, c. 37, and continued under the CEAA, 2012. Taseko Mines involved an appeal from a decision of the Federal Court in which the trial judge had dismissed Taseko Mines’ application for judicial review. The trial judge concluded the panel had not breached any procedural fairness principles and it made reasonable findings of fact (Taseko Mines at para 33). On appeal, both the appellant and the governmental respondents distinguished Gitxaala and Trans Mountain on the basis that the legislative scheme in place in each of those cases provided an effective internal remedy (at para 42). The Federal Court of Appeal rejected that assertion. It held that that distinction did not change the fact that the final report, in itself, affects no legal rights and carries no legal consequences. It held that the final report only serves to assist the Minister (or the GIC) in making their decision (at para 43).
[29] In each of the decisions rendered by the Federal Court of Appeal in Gitxaala, Trans Mountain and Taseko Mines, a party sought judicial review of a report prepared by a committee or panel under the CEEA, 2012 or jointly under another statute. Those committees or panels produced a number of recommendations to assist the Governor in Council when making decisions. In all three appeals, the Federal Court of Appeal arrived at the same conclusion, that the reports affect no legal rights and carry no legal consequences. If follows they were not amenable to judicial review. At paragraph 43 of Taseko Mines, the Court states:
[43] Having duly considered that argument, I feel bound to reject it essentially for the reasons articulated in Trans Mountain. The distinction between the two schemes highlighted by the parties does not change the fact that the Final Report, in itself, affects no legal rights and carries no legal consequences (Trans Mountain, at paras. 179-180; Gitxaala, at paras. 121-123, 125). Whether or not the Panel can be requested to review its conclusions and recommendations, the Final Report only serves to assist the Minister (or the GIC) in making their decisions. In light of the above-noted precedents and of this Court’s holding in Jada Fishing Co. Ltd. v. Canada, 2002 FCA 103, 41 Admin L.R. (3d) 281, at paragraph 12, I find that the Final Report is not amenable to judicial review.
[Emphasis Added]
[30] Section 92 of the IAA, states that the Minister may establish a committee to conduct a regional assessment of the effects of existing or future physical activities carried out in a region that is entirely on federal lands. Subsection 102(1) of the IAA provides that, on completion of a regional assessment, a report be prepared by the Committee and delivered to the Minister. The Final Report is not a ‘decision’. It is an advisory report to the Minister that informs potential future decisions. It is not justiciable.
[31] The Respondent agrees that the Final Report’s contents are relevant in considering the validity of the Regulation. I agree with the parties on this issue. See, Trans Mountain at para 201:
[201] […] As this Court noted in Gitxaala at paragraph 125, the Governor in Council is required to consider any deficiency in the report submitted to it. The decision of the Governor in Council is then subject to review by this Court under section 55 of the National Energy Board Act. The Court must be satisfied that the decision of the Governor in Council is lawful, reasonable and constitutionally valid. If the decision of the Governor in Council is based upon a materially flawed report the decision may be set aside on that basis. Put another way, under the legislation the Governor in Council can act only if it has a “report” before it; a materially deficient report, such as one that falls short of legislative standards, is not such a report. In this context the Board’s report may be reviewed to ensure that it was a “report” that the Governor in Council could rely upon. The report is not immune from review by this Court and the Supreme Court.
[Emphasis Added]
[32] Given my conclusion that the report is not justiciable, I need not consider its reasonableness independently of the question on the validity of the Regulation. I now turn to the challenge to the Regulation.
VI. What is the standard of review for determining the validity of the Regulation
[33] The Applicants contend that the validity of the Regulation must be reviewed on the standard of reasonableness. Gone, they say, is the vires test and anything akin to the correctness standard of review. They contend that this Court must ask “whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Canada (Minister of Citizenship and Immigration v. Vavilov, 2019 SCC 65, 441 DLR (4th) 1 [Vavilov] at para 99).
[34] The Applicants also rely upon the recently released decision in Portnov. In Portnov the Court was called upon to consider the validity or vires of a regulation made pursuant to the Freezing Assets of Corrupt Foreign Officials Act, S.C. 2011, c.10 (Freezing of Assets Act). Under s. 4 of the Freezing of Assets Act the Governor in Council may, upon a request from a foreign state, issue an order or regulation restricting or prohibiting any dealings with certain property held by designated individuals. In 2014, following a request by Ukraine, the Governor in Council enacted a regulation titled Freezing Assets of Corrupt Foreign Officials (Ukraine) Regulations, S.O.R./2014-44 (the 2014 Regulations).
[35] The 2014 Regulations designated eighteen individuals. It restricted and prohibited their dealings with certain property for up to five years. Mr. Portnov was one of the eighteen. Under s. 6 of the Freezing of Assets Act, the Governor in Council may make a regulation extending the previous regulation. The Governor in Council did just that in 2019 in relation to 16 of the 18 individuals previously identified. Mr. Portnov was one of those 16. Mr. Portnov applied to the Federal Court for an order quashing the Extending Order and the Regulations Amending the Freezing Assets of Corrupt Foreign Officials (Ukraine) Regulations, SOR/2019-68. In a decision reported at 2019 FC 1648, a judge of the Federal Court dismissed Mr. Portnov’s application. On appeal, Mr. Portnov contested the Federal Court’s choice of reasonableness as set out in Vavilov as the standard of review applicable to a judicial review of a Governor in Council regulation. He contended that a special rule existed for attacking a regulation. That rule is, according to him, found in Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64, 2013 3 S.C.R. 810 (Katz Rule). I can do no better than describe the Katz Rule in the language employed by Justice Stratas in Portnov:
[19] There are three parts to the Katz rule: (1) when a party challenges the validity of regulations, the party bears the burden of proof; (2) to the extent possible, regulations must be interpreted so that they accord with the statutory provision that authorizes them; and (3) the party must overcome a presumption that the regulations are valid. On the third part, Katz suggests (at paras. 24 and 28) that the presumption is overcome only where the regulations are “irrelevant”, “extraneous” or “completely unrelated” to the objectives of the governing statute. A leading commentator on Canadian administrative law calls this “hyperdeferential”: Paul Daly, “Regulations and Reasonableness Review” in Administrative Law Matters, (29 January 2021), <www.administrativelawmatters.com/blog/2021/01/29/regulations-and-reasonableness-review/>. I agree.
[36] In the course of abandoning the Katz Rule, the Federal Court of Appeal made four principal observations: 1. that Vavilov now instructs that true questions of jurisdiction will necessarily have less precedential force (Portnov at para 26); 2. that Vavilov acknowledges there are cases where the legislature has delegated broad authority to administrative decision-makers that allow them to make regulations in pursuit of the objects of the enabling statute but does not “carve out a special rule for regulations” (Portnov at para 26); 3. that Vavilov instructs us to conduct reasonableness review of all administrative decision-making unless one of three exceptions leading to correctness review applies (Portnov at para 27); and, 4. “the Katz rule applies across the board to all regulations regardless of their content or context. This sits uneasily with Vavilov which adopts a contextual approach to reasonableness review” (Portnov at para 27).
[37] I am of the view there is a huge distinction between orders or regulations enacted by, for example, one of hundreds of administrative tribunals such as the various agricultural marketing boards in the provinces and subordinate legislation enacted by the Governor in Council. I also ask rhetorically, why, if the Supreme Court of Canada wished to abandon the Katz Rule, it did not clearly do so, as it has done in other situations? For example, in Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board), [1987] 2 SCR 59, 44 DLR (4th) 663 [Rio Hotel], the Supreme Court specifically concluded that, to the extent decisions of the Ontario Court of Appeal in Re Koumoudouros et al. and Municipality of Metropolitan Toronto, 52 OR (2d) 442, 24 DLR (4th) 638; Re Nordee Investments Ltd. and City of Burlington, 48 OR (2d) 123, 13 DLR (4th) 37; and Re Sherwood Park Restaurant Inc. et al. and Town of Markham, 48 OR (2d) 449, 14 DLR (4th) 287, were incompatible with their reasons in Rio Hotel, those cases were wrongly decided (at para 38). The Supreme Court took a similar approach in Vavilov at paragraph 37 when it concluded that the standard of review for appeals from statutory decision makers would be the appellate standard and not reasonableness. Finally, when the Federal Court of Appeal notes that Vavilov did not carve out any special rule for regulations, it could be that the Supreme Court justices were acknowledging there already existed a special rule, that being the Katz Rule. Regardless, I am duty bound to follow the opinion of the Federal Court of Appeal. Stare decisis demands nothing less.
[38] The Regulation will be reviewed based upon the standard of reasonableness as set out in the Vavilov/Portnov framework.
VII. Have the Applicants met the onus upon them of establishing that the Regulation is unreasonable?
A. Was the Regulation based upon a valid Final Report?
[39] The Applicants contend the Committee, in preparing the Final Report, was constrained by the requirements of the IAA and its Terms of Reference. Moreover, the Applicants contend that a factor is only “properly considered”, if the review panel or committee has applied a “high standard of care”. While the Court is not expected to “reweigh the methodology and conclusions of an expert panel”, the Applicants contend that the Court plays a critical role in ensuring that each factor the panel is required to consider is indeed considered (Ontario Power Generation Inc. v. Greenpeace Canada, 2015 FCA 186, 388 DLR (4th) 685 [Ontario Power Generation] at paras. 129-130).
[40] The Applicants raise numerous issues challenging the reasonableness of the Final Report and hence the reasonableness of the Regulation. In essence, they claim the Final Report is not a report as required by the IAA. There is therefore nothing upon which to base the Regulation. Included among their many complaints about the Final Report are the following:
the Final Report does not identify and consider changes to the environment, effects of malfunctions or accidents and cumulative effects, contrary to the Committee’s Terms of Reference;
the Committee chose to report on “enhanced mitigation and follow-up measures”;
the cumulative effects set out in the Final Report are superficial, as it reviewed only the potential sources of effects rather than the effects themselves;
the Committee did not consider the evidence of “risk”, since the only means by which they could arrive at their conclusions was by ignoring the Applicants’ contentions;
the Committee suppressed submissions and recommendations from the Canadian Science Advisory Secretariat (“CSAS”) report that did not align with the Minister’s predetermined objective. The Applicants say that the Supreme Court in Vavilov was clear that failure to account for evidence, much less, the suppression of evidence, is fatal (Vavilov at para. 126);
the Committee ignored the relevant policy guidance on cumulative effects; specifically a policy guidance document entitled Assessing Cumulative Environmental Effects under the [CEEA, 2012];
the Committee improperly applied its mandate on cumulative effects by adopting a planning or remediation approach rather than identifying the cumulative effects fromoffshore exploratory drilling in combination with other physical activities that have been or will be carried out;
the Committee reverse-engineered a desired outcome by adopting an unreasonable interpretation of its mandate by excluding assessment of risk and cumulative effects;
the Committee failed to follow the process sequence set out in the Agreement and “secretly changed its recommendations at the behest of officials who feared the recommendations would interfere with the pre-determined Regulation”;
s. 4.22 of the Agreement sets out the four phases of the process as: Engagement, Analysis, Report writing and Providing for comments. Moreover, the Terms of Reference require the Final Report to be the last step. The Applicants’ contend that Committee began the process by drafting recommendations in violation of the process set out in the Agreement and the Terms of Reference;
the Committee changed at least one of its recommendations at the direction of Natural Resources Canada to support prior “political commitments to the provinces”. Recommendation 20 of the Potential Recommendations of the Regional Assessment Committee suggested that certain portions of the Study Area be excluded from future exploratory drilling activities. Faced with NRC’s serious concerns, the Committee changed this recommendation. The Committee’s Draft and Final Report do not recommend that certain portions of the Study Area be excluded from future exploratory drilling activities.
In summary, all of the above demonstrate a failure on the part of the Committee to give impartial consideration to any views that contradicted a pre-determined result. The Committee did not exercise its discretion independently.
[41] The Respondent contends that the Applicants are simply inviting this Court to re-weigh the Final Report and the information and expertise that went into the Regional Assessment. The Respondent contends the Applicants invite this Court to become the arbiter of science and policy. The Respondent says that this Court is not a referee on such policy matters. The Federal Court of Appeal has expressed the view that the court “must ensure that steps in the Act are followed, but it must defer to the responsible authorities in their substantive determinations” (Bow Valley Naturalists Society v. Canada (Minister of Canadian Heritage), [2001] 2 FC 461, 27 Admin LR (3d) 229 at para 78). The Respondent submits that the function of the reviewing court is to ensure that the Regulation accords with the governing legislation and that it is a reasonable decision in light of the evidence and information available. As for the adequacy of the decision-maker’s consideration of scientific evidence, the Federal Court of Appeal has stated the Court’s role is to assess, in a formal rather than substantive sense, whether there has been some consideration of the factors which the statute requires the study to address (Ontario Power Generation, at para. 126).
[42] The Respondent submits that the Regional Assessment was conducted pursuant to the IAA, the Agreement and the Terms of Reference. The Agreement defines the Regional Assessment as a “study or assessment of the effects of existing or future physical activities carried out in a region” and lays out various requirements related to its conduct, including its objectives, geographic boundaries and factors for the Committee to consider. The Respondent submits that the Committee fully addressed those requirements in the conduct of the Regional Assessment, as evidenced in the Final Report.
[43] Moreover, given the complexities inherent in the study, as described in the Final Report, the “decision” must be afforded significant deference.
[44] The Respondent contests the assertion that the Committee’s findings and recommendations were pre-determined or “reverse-engineered” or that the Committee was pressured into changing its draft recommendations by external parties. The Respondent notes that the Committee’s draft recommendations were first presented in early December 2019, when the Committee held a series of public workshops. The Respondent notes that this occurred nearly nine months after the Committee was first appointed. The Respondent submits that it is inconceivable that the Committee developed its recommendations as an initial step of the Regional Assessment.
[45] Moreover, given that the draft recommendations were publicly available in early December 2019, the Respondent submits that it was appropriate for Agency staff to consider those draft recommendations in developing draft regulations. The Respondent says that the Agreement is perfectly clear that the enactment of regulations governing exploratory drilling, and the mitigation of its impact on the environment, was always a possibility.
[46] The Respondent submits that the Committee fully complied with its mandate and made 41 recommendations respecting future projects, mitigation and follow-up measures. The Respondent submits that the Applicants’ concerns regarding the precautionary principle, cumulative effects, risks and scientific expertise are appropriately and reasonably canvassed in the Final Report. The Committee considered the precautionary principle. It dedicated an entire section on the topic. As for cumulative effects, the Respondent acknowledges the concerns raised by the Applicants but notes that the Committee gave them considerable attention in its analysis. The Respondent says the Applicants misplace their argument regarding policy guides related to cumulative effects since those policies relate principally to project-specific environmental assessments, as opposed to regional assessments. Those policy guides are therefore largely irrelevant to the analysis being undertaken by the Court.
[47] Furthermore, a reviewing court is entitled to presume that an administrative decision-maker considered the entire record before it. The burden rests on the challenging party to rebut that presumption (Sagkeeng First Nation v. Attorney General of Canada and Minister of Environment and Climate Change, 2021 FC 344 at para. 65).
[48] Section 5.4 of the Agreement states that the Final Report will contain information as outlined in the Factors to be considered in the Regional Assessment (Appendix A of the Agreement) and the Committee’s Terms of Reference (Appendix D of the Agreement). Concerning the adequacy of the decision-maker’s consideration of scientific evidence, the Federal Court of Appeal, in Ontario Power Generation, supra, at para. 126, stated that its role is to assess, in a formal rather than substantive sense, whether there has been some consideration of the factors which the statute requires the study to address. The Factors to be considered in the Regional Assessment state that the Committee “will include a consideration” of the listed factors. Given the wording, I am of the opinion that the Applicants can only establish a failure to consider factors if the Committee failed to give them any consideration (Ontario Power Generation, at para. 130).
[49] Appendix 1.A of the Final Report is a Table of Concordance: Factors to be Considered and Other Requirements of the Agreement. The table outlines each factor and corresponding section in the Regional Assessment. Having reviewed the Final Report, I am of the opinion that the Committee gave some consideration to each of the factors listed in the Agreement.
[50] I agree with the Applicants that the Committee failed to strictly follow the process sequencing set out in the Agreement. The GIS Tool, which the Committee heavily relied upon, was submitted a few months after the Final Report. It is unclear to me why the GIS Tool was only finalized on May 31, 2020, when the Final Report was finalized on March 4, 2020. However, that being said, there is nothing to indicate the delay in finalizing the GIS Report negatively i