Have you been rejected by the Federal Court of Appeal lately? Don't worry, you're not alone.
It seems most parties hoping to overturn National Energy Board decisions have struck out with the court, and three of the most recent didn't even have a chance to be heard, which raises questions.
Last Monday, the Federal Court of Appeal decided not to hear a ForestEthics Advocacy application for leave that was challenging a National Energy Board decision rejecting the group's claim that the pipeline hearings unfairly restrict public participation. ("Application for leave" is legalese for when you ask the court to hear your case.) ForestEthics Advocacy is championing a constitutional challenge that alleges the NEB is infringing on freedom of speech, because that the criteria to participate in NEB hearings has been narrowed to those who are "directly affected" and excludes anyone with concerns on climate change. (Click here for the court documents.)
Last December, the City of Burnaby's application for leave to challenge an NEB decision at the Federal Court of Appeal was dismissed. Burnaby was contesting the NEB's ruling that it was OK to override city bylaws when Kinder Morgan needed to complete survey work on Burnaby Mountain.
The City of Vancouver also went to the Federal Court of Appeal after the NEB rejected its motion arguing that climate change considerations should be included in the pipeline hearings. The city issued a press release announcing the plan to go to the Federal Court of Appeal, but on Oct. 16, the court also dismissed Vancouver's case. (The three judges were Johanne Trudel, Wyman Webb and Marc Nadon, who was appointed to the Supreme Court of Canada by Stephen Harper, only to be found ineligible. Nadon was also the judge who dismissed the City of Vancouver's application.) It looks like Vancouver let this one go quietly, and there are no plans to take it to the Supreme Court of Canada.
So we have ForestEthics raising concerns about participation in the hearings, while Burnaby has issues with the NEB overriding its bylaws, and Vancouver is raising concerns about climate change. All three went to the NEB first. All three did not like what the NEB decided. All three then took their concerns to the Federal Court of Appeal. All three were rejected.
Vancouver has quietly dropped its case. Burnaby has gone back to the B.C. Supreme Court, and ForestEthics Advocacy, along with three Burnaby residents, is charging full steam ahead for the Supreme Court of Canada. (Three lawyers have told me your chances of success with the Supreme Court of Canada are very, very slim after a Federal Court of Appeal dismissal.)
If an application for leave is dismissed, no reasons are given, so it's difficult to understand what the judges are thinking.
In the past four years, the NEB's decisions have been challenged roughly 20 times, mostly by First Nations and other oil industry players. I could not find a single example, from 2010 to 2013, where the Federal Court of Appeal overturned an NEB decision. Most were dismissed at the application or appeal stage, while a few were dropped and some are still ongoing.
I asked NEB spokesperson Sarah Kiley about this, and she could only think of one case heralding back to the 1970s, when the Supreme Court of Canada overruled the NEB.
One might assume if the Federal Court of Appeal consistently defers to the NEB, the board is operating with little judicial oversight. But in an earlier, very similar rejected ForestEthics case involving the Enbridge pipeline in Ontario and an author named Donna Sinclair, reasons for judgment were given, and they provide some insight into how the court sees these challenges. The earlier case made it to the appeal stage and contested the interpretation of who was "directly affected" and thereby allowed to participate in the hearings and whether they could raise issues on the oil sands and climate change.
But the reasons for judgment indicated the NEB Act doesn't expressly require the board to consider climate change.
To appeal an NEB decision, you have to prove the board erred in some application of the law or overstepped its jurisdictional bounds, but the court doesn't seem to have any problems with the way the NEB is following the rules and carrying out its mandate. Burnaby's case is a bit different – it's a constitutional conflict, a question of whose laws will prevail – but the other two cases challenge issues rooted in the NEB Act. Since it's elected politicians who determine what the act says, maybe it's time to focus on the upcoming federal election.
That's not to suggest the legal route is a waste of time when challenging unconstitutional or unjust laws. However, given the Federal Court of Appeal's track record on overturning NEB decisions, it seems your chances of success are extremely slim. What's even more concerning is these three most recent challenges weren't even heard at all. So lawyers hoping to argue the NEB overstepped its bounds or erred in some application of the law never had a chance to argue their case in front of a judge.
