Application for judicial review of the Governor in Counsel’s decision that the significant adverse environmental effects that the Minister of the Environment determined would likely result were justified in the circumstances

Application for judicial review of the Governor in Counsel’s decision that the significant adverse environmental effects that the Minister of the Environment determined would likely result from the Site C Clean Energy Project on the Peace River were justified in the circumstances. After determining that the reasonableness standard of review applied, and that a considerable amount of deference was owed to the GIC, the court held that there was no basis on which to interfere with the decision.

Administrative law – Approval process – Compliance with legislation – Decisions of administrative tribunals – Environmental Assessment Office – Environmental impact assessment – Environmental matters – Governor in Counsel – Judicial Review – Reasonableness simpliciter – Standard of Review

Peace Valley Landowner Assn. v. Canada (Attorney General), [2015] F.C.J. No. 1141, 2015 FC 1027, Federal Court, August 28, 2015, Manson J.

This was an application for judicial review brought by the Peace Valley Landowner Association in respect of the Governor in Counsel’s (GIC) decision that the “significant adverse environmental effects” that would likely result from the construction of the Site C Clean Energy Project on the Peace River were “justified in the circumstances.” The BC Environmental Assessment Office and Canadian Environmental Assessment Agency conducted an assessment of the project, a proposed dam and hydroelectric generating station, including a joint review panel. The panel produced a report discussing the pros and cons of the project. The Minister of the Environment determined that significant adverse environmental effects were likely to occur if the project proceeded. The GIC then decided that these significant adverse environmental effects, should they ensue, were justified in the circumstances. On the same day, the Minister decided to allow the project to proceed.

On review, the applicant took the position that if the project was likely to cause significant adverse environmental effects, then in order for the GIC to decide that those effects were justified, the justification must be based on an unambiguous need for power. In their view, the “need” speaks to a current need and there was no justification to support such a need at the time. The respondents submitted that the GIC rightly considered the overall questions of costs, need for and benefits of the project, and long term benefits to the public for future generations.

The court found that the adequacy of the consultation process is a question of mixed fact and law, and that the GIC’s decision is therefore reviewable on a standard of reasonableness and attracts considerable deference. The court held that while the reasons provided by the GIC could have been better articulated and more transparent, they were within the reasonable boundaries and requirements. There was no basis to find that the decision was taken without regard for the purpose of the Canadian Environmental Assessment Act 2012, that the economic considerations were not taken into account, or that the decision was not reasonable on the facts. The court therefore found no basis to interfere with it.

This case was digested by Kara L. Hill of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact her directly at khill@harpergrey.com or review her biography at http://www.harpergrey.com.

To stay current with the new case law and emerging legal issues in this area, subscribe here.