Sierra Club Canada Foundation v. Canada (Environment and Climate Change), 2024 FCA 86

This appeal was heard by the Federal Court of Appeal (“FCA”). 

 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 applicants appealed the decision.  

The FCA agreed with the Federal Court that the regional assessment and the committee’s final report were not reviewable. It found that the committee did not exercise decision-making and therefore the regional assessment carried no legal consequences. The FCA highlighted that while the Impact Assessment Act required the Minister to consider the regional assessment before making a ministerial regulation, the decision was ultimately the Minister’s to make.  

In forming its decision, the FCA considered three arguments made by the applicants. First, the applicants argued that if the regional assessment was not subject to review and the public’s right to meaningfully participate was denied, there was no mechanism to seek a remedy. The FCA found that the record showed the applicants had participated in the process and had not demonstrated they were denied meaningful participation. Second, the applicants argued that if the regional assessment was not subject to review, they would need to wait for a future decision to challenge the deficiencies of the regional assessment process. The FCA disagreed. It was concerned that the regional assessment may never result in any decision and would waste judicial resources. Third, the applicants argued that previous jurisprudence about committee reports not being reviewable did not apply to the new Impact Assessment Act regime. The court rejected that argument.  

The FCA was also asked to weigh on the regional assessment’s reasonableness and procedural fairness, and the reasonableness of the Minister’s decision to make the ministerial regulation. The FCA did not address those issues because it found them moot points. Specifically, it raised the Supreme Court of Canada’s opinion in Reference re Impact Assessment Act, 2023 SCC 23 (which was released after the hearings for the appeal). In that opinion, the Supreme Court of Canada found that the Impact Assessment Act (except for sections 81-91) was unconstitutional. Since the Supreme Court of Canada decision meant that regulations made under unconstitutional provisions of the Impact Assessment Act could not stand, there was no need to address the remaining issues with dealt with ministerial regulations made under the unconstitutional sections of the Impact Assessment Act.  

The Federal Court of Appeal dismissed the appeal. 

View the Decision on CanLii: https://www.canlii.org/en/ca/fca/doc/2024/2024fca86/2024fca86.html?resultIndex=1&resultId=5aec03d59cad414a88cc0025a2408c91&searchId=2024-05-07T12:14:50:017/024a52972b6d44458576ebd22a02e7b1#document 

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