Sierra Club Canada Foundation et al. v. Minister of Environment and Climate Change Canada et al.

The Applicants, three environmental non-profit organizations, challenged the decision of the federal Minister of Environment and Climate Change to approve the environmental assessment report of the Bay du Nord Development Project, an offshore oil production project in the Atlantic Ocean. The Applicants claimed that the Minister’s decision was unreasonable because it is based on a report that fails to consider the downstream impacts of GHG emissions and marine shipping of oil from the project. The Applicant’s also claimed that the Minister’s decision was invalid because the Crown failed to properly consult and accommodate the Mi’gmawe’l Tplu’taqnn Incorporated (“MTI”), a not-for-profit organization representing eight Mi’gmaq communities in New Brunswick, on marine shipping. The Federal Court concluded that the Minister’s decision was reasonable and the Crown had met its duty to consult before reaching the decision under review and dismissed the application. On the failure to consider the impacts of downstream GHG emissions and marine shipping, the Court found that downstream greenhouse gas emissions were not within the legislative authority of Parliament, as they could occur anywhere in the world and for various purposes, and the Impact Assessment Agency of Canada (“Agency”) would be speculating if it tried to assess them. The Court also found that the Agency’s decision was consistent with previous regulatory decisions that did not require the consideration of downstream GHG emissions, and the Agency had a wide margin of appreciation in determining the scope of the project. On the failure to consult, the Court found that the Crown had met its duty to consult before reaching the decision under review. The Court held that the Agency had reasonably determined the degree of consultation required based on the low level of potential impacts and the unlikeliness of such impacts to the rights held by the groups represented by MTI, and further found that the Agency had provided MTI with multiple opportunities to raise their concerns and provide comments, which were considered and responded to by the Agency and the Minister. The Court found that the Crown was not required to agree with the concerns raised by MTI or to reach agreement or perfection in the consultation process. In September 2023, the Applicants announced that they have filed an appeal in the Federal Court of Appeal.