Gitxaala Nation v Canada

The Federal Court of Appeal released a decision on March 16, 2015 in Gitxaala Nation v. Canada, granting two motions for leave to intervene in the consolidated proceedings relating to the approval of the Northern Gateway Pipeline project in northern British Columbia.

Amnesty International and the Canadian Association of Petroleum Producers (CAPP) both sought leave to intervene in the legal proceedings that will determine the validity of the federal government's approval of the Northern Gateway Pipeline project. The Court found that both proposed interveners complied with the Federal Courts Rules in bringing their motions and had offered the Court detailed and well-particularized evidence in support of their respective motions. The Court also accepted that both proposed interveners have a genuine interest in this matter and will bring knowledge, skills and resources to the proceedings. Furthermore, the Court accepted that granting leave to intervene to each proposed intervenor would be consistent with the Federal Courts' imperative to secure "the just, most expeditious and least expensive determination of every proceeding on its merits" since they both had complied with the Court-ordered schedule for the hearing of these complex proceedings. The Court held that the only controversy in these motions was the extent to which each proposed intervenor would bring "different and valuable insights that will further the Court's determination" and "whether it is in the interests of justice that intervention be permitted".

Motion of Amnesty International

The Court noted that Amnesty International could offer an international law perspective on the issues before it, but also expressed the view that international law could only affect the issues in these proceedings in limited ways. First, international law could be relevant in determining how ambiguous legislative provisions ought to be interpreted, based on the presumption that Canadian domestic law conforms to internationl law. Second, international law could be relevant in determining the reasonableness of an administrative decision-maker's exercise of its discretion, since international law could arguably constitute a non-binding policy consideration that such a decision-maker ought to have borne in mind. In spite of the limited relevancy of international law to the proceedings, as well as the large number of applicants/appellants that are already before the Court to challenge the project's approval, the Court of Appeal exercised its discretion to grant Amnesty International leave to intervene.

Motion of Canadian Association of Petroleum Producers (CAPP)

With respect to CAPP's motion, the Court of Appeal acknowledged that this organization appeared to be doing little more than advancing arguments that could be brought forward by the respondents, the Government of Canada, the National Energy Board, and the project's proponents, and CAPP's submissions did not appear to reflect any particular perspective. However, the Court found that since the project was approved in part on the basis that it was in the public interest, CAPP would be well-placed to speak to the issue of the public interest, seeing as it represents a group of entities whose economic interests would be affected by the project's fate. The Court held that these proceedings constituted a matter that has taken on "a public, important and complex dimension" such that it ought to be exposed to "perspectives beyond those offered by the particular parties before the Court". It also noted that this was one of the rare cases in which the appearance of fairness might justify intervention, since the Northern Gateway Pipeline project is being challenged by a broad coalition of Aboriginal groups, environmental groups, a union, and now, Amnesty International, "a leading international organization". The Court held that CAPP filled a gap on the side of the respondents that are defending the project's approval since it represents entities, aside from the proponents, whose interests may be affected if the project's approval is ultimately overturned. CAPP's ability to intervene was limited to making representations on the public interest dimensions of the correctness or reasonableness of the decisions under review.

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