Ecology Action Centre v Canada (Environment and Climate Change), 2021 FC 1367

This judicial review was heard by the Federal Court of Canada. 

In 2019, a committee was established under the former Canadian Environmental Assessment Act, 2012 to conduct a regional assessment to assess the potential regional effects of proposed offshore oil and gas exploratory drilling projects in a study area off the eastern shore of Newfoundland and Labrador. The regional assessment was continued and completed under the Impact Assessment Act.  

The committee prepared a final report to the federal Minister of Environment and Climate Change (the “Minister”). In the final report, the committee came to a number of conclusions and provided recommendations about standard mitigation measures and conditions that all future exploratory oil and gas projects in the regional assessment study area should meet. The Minister used the committee’s final report and its recommendations to create a ministerial regulation exempting all future offshore oil and gas exploratory drilling projects in the study area from impact assessment where they met the conditions imposed by the ministerial regulations.  

Three of the participants in the regional assessment – the Sierra Club of Canada, the World Wildlife Fund Canada, and the Ecology Action Centre (the “applicants”) – applied for judicial review of the regional assessment. They asked the court to quash the committee’s final report, to issue an order declaring that the Committee had failed to follow required procedure, and to issue an order preventing the proposed regulations from coming into force until the judicial review had been heard. The three applicants brought a separate judicial review of the ministerial regulations made by the Minister. The two judicial applications were consolidated. 

With respect to the regional assessment, Justice Bell found that the committee’s final report, and therefore the regional assessment, was not justiciable (i.e., something subject to the court’s review) because the final report was not a “decision” – it only provided information and advice to the Minister. The court did not consider whether the regional assessment was reasonable or procedurally fair.  

With respect to the ministerial regulation, Justice Bell considered arguments from the applicants that the committee’s final report did not meet the requirements under the Impact Assessment Act and the committee’s Terms of Reference. The court rejected these arguments and found that the ministerial regulations were enacted consistently with requirements of the Impact Assessment Act and found they were based upon a reasonable final report.  

The Federal Court dismissed the application for judicial review. 

An appeal of the Federal Court’s decision was heard by the Federal Court of Appeal. See that decision here.  

View the Decision on CanLii: https://www.canlii.org/en/ca/fct/doc/2021/2021fc1367/2021fc1367.html?autocompleteStr=2021%20FC%201367&autocompletePos=1 

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