IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: Vancouver (City) v. British Columbia (Environment), 2018 BCSC 843

Date: 20180524

Docket: S173392

Registry: Vancouver

Between:

City of Vancouver

Petitioner

And:

Minister of Environment, Minister of Natural Gas Development and Trans Mountain Pipeline ULC

Respondents

Before: The Honourable Mr. Justice Grauer

Reasons for Judgment

Counsel for the Petitioner, City of Vancouver: S. B. Horne Counsel for the Respondent, Trans Mountain Pipeline ULC: M. E. Killoran, Q.C. T. Gelbman S. Sutherland Counsel for the Respondents Minister of Environment and Minister of Natural Gas Development: D. Cowie K. Wolfe Place and Dates of Hearing: Vancouver, B.C. October 23-26, 2017 Place and Date of Judgment: Vancouver, B.C. May 24, 2018









CCAR: Joint Crown Consultation and Accommodation Report CEAA: Canadian Environmental Assessment Agency CEAA 2012: Canadian Environmental Assessment Act 2012 CPCN: Certificate of Public Convenience and Necessity EAA: Environmental Assessment Act (BC) EAC: Environmental Assessment Certificate EAO: Environmental Assessment Office JRP: Joint Review Panel (NEB and CEAA) Ministers: Minister of the Environment and Minister of Natural Gas Development (BC) MNR: Minister of Natural Resources (Canada) NEB: National Energy Board NEB Act: National Energy Board Act NEB Report: National Energy Board Report, Trans Mountain Expansion Project, May 2016 NGP: Northern Gateway Pipeline Project OPP: Oceans Protection Plan (federal) TERMPOL: Technical Review Process of Marine Terminal Systems and Transshipment Sites TMX: Trans Mountain Pipeline Expansion Project





[1] This petition for judicial review concerns the Trans Mountain Pipeline Expansion Project [TMX]. Vancouver seeks to set aside, and remit for reconsideration, the decision of British Columbia’s Ministers of the Environment and of Natural Gas Development [the Ministers] to issue an Environmental Assessment Certificate [EAC] with respect to the TMX, subject to conditions, made on January 10, 2017.

[2] I am concurrently releasing Reasons for Judgment in a parallel petition seeking the same result, though on different grounds, brought by the Squamish Nation: Squamish Nation v British Columbia (Environment), 2018 BCSC 844.

[3] This case is not about whether the TMX should or should not go ahead. It is not about whether the TMX is in the national interest, or presents an unacceptable risk of environmental harm. These are policy issues, to be determined by the elected representatives of the people.

[4] This case is not about the adequacy of the National Energy Board [NEB] process, nor does it resolve or define beyond currently settled law the constitutional limits on what either British Columbia or Alberta can or cannot do in relation to the project. These are questions under consideration by higher courts than this one.

[5] What this case does concern is whether British Columbia complied with administrative law principles and its own legislation in deciding to issue an EAC to the project. It can have no impact on the decision of the federal government that this project shall proceed, other than delay.

[6] Vancouver asserts that, in its review of the TMX, British Columbia failed to engage in proper public consultation, acted unreasonably and in breach of its duty of procedural fairness, and failed to follow the process set out in both the Environmental Assessment Act, SBC 2002, c 43 [EAA] and the EAA Public Consultation Policy Regulation, BC Reg 373/2002 [Consultation Regulation]. As a result, Vancouver submits, it failed to conduct a proper assessment that took into account relevant environmental considerations, and thereby failed to consider appropriate conditions. Accordingly, Vancouver says, the EAC should be set aside. It will then be up to the Ministers to conduct a proper assessment with appropriate process, procedure and consultation.

[7] It was certainly open to the Ministers to require more than they did with respect to public consultation and the assessment of relevant environmental considerations. The question is whether they were obliged to do so.

[8] The question of assessing the Ministers’ actions arises within a specific constitutional context. The parties agree that because the TMX comprises an interprovincial undertaking, it comes within the jurisdiction of the federal government under the division of powers set out in the Constitution Act, 1867 (sections 91(29) and 92(10)(a)). Its primary regulator is the NEB.

[9] It follows from this that, as a matter of constitutional law, it was not open to the Ministers to withhold an EAC from the TMX; ultimately, they were obliged to issue one: Coastal First Nations v British Columbia (Environment), 2016 BCSC 34 at para 58 (a decision that was not appealed).

[10] But, as Coastal First Nations points out at paras 51 and 70–73, British Columbia was equally entitled and indeed obliged to review such a project under the EAA in the exercise of its constitutional right to regulate environmental impacts within its provincial boundaries. In doing so, it could impose appropriate conditions—so long as those conditions did not amount to an impairment of a vital aspect, or frustration of the purpose, of the TMX as a federal undertaking; see also Burnaby (City) v Trans Mountain Pipeline ULC, 2015 BCSC 2140.

[11] Thus, British Columbia cannot say “no” to the TMX or any fundamental part of it, but may say “yes, but with some conditions” after proper consultation: see Coastal First Nations at para 60 and following, and para 73. Just how far British Columbia can go within its own constitutional competence in placing limits on a federal undertaking remains to be tested. The current iteration of the Government of British Columbia, different from the iteration that participated in the NEB hearings and ultimately issued the EAC, has referred that question to the Court of Appeal; but it is not part of this litigation.

[12] Nor is the decision of the federal cabinet approving the TMX. That was, of course, a policy decision that sought to balance, as only the elected representatives of the people can, economic benefits against environmental risks in the national interest. There are very strong feelings and firmly held opinions on both sides of that equation, but the decision is a political one; those who made it are answerable at the ballot box. It is not properly the task of the courts to reweigh those policy considerations with a view to achieving a different result. We are not equipped to do so.

[13] But when any government acts in such a matter, it can be held to account for the process by which it did so. Did it follow the law? Did it act with procedural fairness? Did it act reasonably and in compliance with its own statutory processes? These are the questions that the courts are equipped to answer, subject always to the considerable constraints imposed by the standards of review that the courts are obliged to employ.

[14] The Federal Court of Appeal is presently considering these questions with respect to the NEB’s conclusions and the federal cabinet’s approval. The sole government action at issue in this case is the decision of British Columbia to issue an EAC. Should that decision be upheld, or should it be set aside and done over? In either event, the ultimate fate of the TMX will remain unaffected by this Court’s conclusion. That will, and must, remain in the hands of the legislative and executive branches of government.

[15] As I discuss below, given British Columbia’s constitutional limitations, the nature of the process before the NEB and the federal cabinet, and the applicable legislation, I have concluded that the Ministers’ decision to issue an EAC to the TMX fell within the range of possible, defensible outcomes. It therefore met the reasonableness standard I am obliged to apply, and is entitled to deference. I found no lack of procedural fairness or absence of jurisdiction. In these circumstances, the petition must be dismissed.

[16] Vancouver raises five grounds for judicial review. The first two relate to the process followed by British Columbia and the extent to which that process complied with the requirements of the EAA and the Consultation Regulation. In this regard, Vancouver submits that:

1. the Ministers had no jurisdiction to issue the EAC, as the statutory requirements of both the EAA and the Consultation Regulation were not met;

2. alternatively, British Columbia breached its duty of procedural fairness by failing to provide Vancouver and other members of the public an opportunity to be heard before it considered the issuance of the EAC.

[17] The next three relate to the alleged failure of British Columbia to carry out a proper assessment, essentially because it adopted the National Energy Board Report, Trans Mountain Expansion Project, May 2016 [NEB Report] as the relevant technical assessment. Vancouver says that, accordingly, the Ministers’ conclusion cannot be supported. In particular, Vancouver alleges:

1. the Ministers failed to exercise their discretion lawfully by failing to turn their minds to the statutory requirement of section 17(3)(c)(iii) of the EAA, authorizing them to order that further assessment be carried out, before considering the issuance of the EAC;

2. in the alternative, the Ministers erred in law in concluding that they could not order that further assessment be carried out before considering the issuance of the EAC;

3. in the further alternative, the Ministers’ decision to issue the EAC was unreasonable.

[18] Before addressing these issues, a little context is appropriate.

[19] The nature of this project is well known. To summarize it briefly, the project contemplates a significant expansion of the existing 1,147 km Trans Mountain pipeline system that currently moves up to 300,000 barrels per day of crude oil and petroleum products between Edmonton, AB, and Burnaby, BC (the existing pipeline is operated by Kinder Morgan Canada Inc. pursuant to an operating agreement with Trans Mountain). The expansion includes the construction of 987 km of new pipeline, new and modified facilities including 20 new oil storage tanks, and the construction of a new dock complex at the Westridge Marine Terminal in Burnaby with three new tanker berths. The new capacity is expected to reach up to 890,000 barrels of oil per day, much of which is already “spoken for” through long-term transportation contracts with shippers.

[20] Among other benefits, Trans Mountain points to the enhanced access to growing Pacific-basin markets, the provision of a critical market alternative for Canadian producers, and the expected increase in Canadian oil production revenues by approximately $73.5 billion over the first 20 years.

[21] Among other risks, Vancouver points to the expected increase in the number of tankers loading at Westridge Terminal each month from 5 to 34, with tanker transits increasing to 70 per month. These tankers must navigate the narrow confines of Burrard Inlet and traverse the southern reaches of the Salish Sea—particularly ecologically-sensitive areas—before reaching international waters. Vancouver notes that the main product to be delivered by the TMX is diluted bitumen. The uniquely hazardous properties of this product, Vancouver asserts, together with the substantial increase in the volume transported and in tanker traffic, present serious challenges to emergency responders and significant risks to the environment on both land and sea.

[22] Assessing and balancing the risks and benefits of the TMX is not, of course, the job of this Court. Pursuant to the National Energy Board Act, RSC 1985, c N-7 [NEB Act] and the Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52 [CEAA 2012], Parliament assigned that task to the NEB.

[23] Under this federal legislative scheme, the NEB was required to hold a public hearing, conduct an environmental assessment, and determine whether the project was and will be required by present and future public convenience and necessity.

[24] To proceed, the TMX required a Certificate of Public Convenience and Necessity [CPCN] from the NEB, to be issued only after approval by the federal cabinet. The NEB would first issue its report and recommendation to the federal Minister of Natural Resources [MNR]. The ball was then in the federal cabinet’s court. As noted, the cabinet ultimately directed the NEB to issue a CPCN to the project. Among the matters that the cabinet was obliged to consider was whether the TMX was likely to cause significant adverse environmental effects, and, if so, whether those effects could be justified in the circumstances (CEAA 2012, s. 31(1)).

[25] In conjunction with the NEB process, Trans Mountain initiated the Technical Review Process of Marine Terminal Systems and Transshipment Sites [TERMPOL]. This comprised a review committee chaired by Transport Canada that included representatives of Environment Canada, Fisheries and Oceans Canada, the Canadian Coast Guard and Port Metro Vancouver. Its focus was on the safety and risks associated with tanker movements from the Westridge Marine Terminal to the Pacific Ocean.

[26] The purpose of the TERMPOL Review Process was to:

· Objectively appraise operational vessel safety, route safety and cargo transfer operations associated with a proposed marine terminal system or transshipment site.

· Focus on improving, where possible, those elements of a proposal which could, in certain circumstances, pose a risk to the integrity of a vessel’s hull while navigating and/or the cargo transfer operations alongside the terminal.

[27] TERMPOL submitted its report to the NEB on December 11, 2014, with 31 findings and 17 recommendations, all of which Trans Mountain agreed to adopt.

[28] I do not propose to review in detail all of the proceedings before the NEB. The interested reader should refer to the NEB Report. It is over 533 pages in length. The question of the adequacy of the NEB process was not part of the challenge argued before me. It is before the Federal Court of Appeal for determination, and nothing I say should be taken as an endorsement of either the process or its result.

[29] For present purposes, it is sufficient to note that the NEB hearing was comprehensive. It granted participation status to more than 400 intervenors, including Vancouver and British Columbia, and 1,250 commentators. It heard procedural and constitutional motions by intervenors, and accepted filed written evidence. Both Vancouver and British Columbia took advantage of this. Vancouver’s evidence exceeded 1,300 pages, addressing, among other things, project risks of a spill into Burrard Inlet or in the Fraser Valley, and the economic effects of a spill.

[30] Over 80 intervenors, including Vancouver and British Columbia, filed written arguments, and 68, again including Vancouver and British Columbia, presented oral submissions. Both concentrated on the environmental risks that the project raised. British Columbia asserted the inadequacy of the evidence concerning Trans Mountain’s ability to respond to oil spills. It argued that there were significant gaps in the evidentiary record, and stated that it could not support the application based on the evidence Trans Mountain filed. Vancouver argues that British Columbia had the opportunity to fill those gaps through the EAC process, but failed to do so.

[31] When the NEB developed draft conditions, it invited intervenors to comment on them.

[32] In its final report, the NEB set the context for its recommendation this way:

[T]he overarching consideration for the Board’s public interest determination was: can this Project be constructed, operated and maintained in a safe manner. The Board found the Project would meet this threshold.

[33] The NEB went on to discuss its mandate to balance the benefits against the residual burdens of the project in order to determine whether the project was in the public interest. It acknowledged that this task was a difficult one, noting that most of the benefits were national or regional in scope, whereas the majority of the burdens would be shouldered by local and regional communities. It placed significant weight on the economic benefits from the project and concluded that, with the implementation of Trans Mountain’s environmental protection procedures and mitigation, and the NEB’s recommended conditions, the project was not likely to cause significant adverse environmental effects. Accordingly, the NEB concluded that the project “is in the present and future public convenience and necessity, and in the Canadian public interest” (NEB Report, p 18).

[34] The NEB’s recommendation of approval was subject to 157 conditions with which Trans Mountain must comply before the bitumen can start to flow. The NEB observed that the approval of a project forms just one phase in the NEB’s lifecycle regulation. Its public interest determination relied upon the subsequent execution of detailed design, construction, operation, maintenance and, ultimately, abandonment of a project in compliance with the applicable codes, commitments and conditions. Thus Trans Mountain would remain accountable throughout the project’s lifecycle. In short, the NEB’s regulatory oversight would continue for as long as the project existed.

[35] In June 2016, Vancouver and six other groups of intervenors filed applications in the Federal Court of Appeal for judicial review of the NEB Report. Judgment on those applications remains under reserve.

[36] In the meantime, on May 17, 2016, the MNR appointed a Ministerial Panel tasked with engaging communities and local indigenous groups and reviewing feedback regarding the project and project-related issues. The panel was expected to report to the MNR by November. This “panel engagement process and report” was said to complement the NEB Report and Environment and Climate Change Canada’s assessment of upstream greenhouse gas emissions [the greenhouse gas report], both expected within days of the Ministerial Panel’s appointment.

[37] The Ministerial Panel held a series of round table and town hall meetings in Alberta and British Columbia between June and September 2016. Its 44 public meetings were attended by more than 2,400 Canadians, 650 of whom (including Vancouver) made direct representations. The panel also received and considered more than 20,000 emails and 35,000 responses to an online questionnaire. It submitted its report to the MNR on November 1, 2016. The report was accompanied by a statistical analysis commissioned by the Ministerial Panel from Nielsen, Delaney + Associates and Publivate [Nielsen Report].

[38] Throughout this process, Crown consultation with Aboriginal groups unfolded through four phases, which I discuss in the Squamish Nation case. A joint federal/provincial Crown Consultation and Accommodation Report for the TMX [CCAR] was released in November 2016.

[39] On November 7, 2016, the Prime Minister announced a federal government initiative called the Oceans Protection Plan [OPP], designed to focus on enhancing marine safety and responsible shipping in order to protect the marine environment, with a budget of $1.5 billion in new investment.

[40] On November 29, 2016, the federal cabinet approved the TMX and directed the NEB to issue a CPCN. This decision, too, is the subject of applications for judicial review to the Federal Court of Appeal. The NEB issued a CPCN on December 1, 2016, also subject to 157 conditions.

[41] The EAA requires any person who wishes to proceed with a “reviewable project” (as prescribed; pipelines are reviewable projects) to first obtain an EAC, or a determination by the Executive Director of the Environmental Assessment Office [EAO] that an EAC is not required (section 8(1)).

[42] Here, the Executive Director determined that an EAC was required and that the proponent could not proceed with the project without an assessment (section 10(1)(c)). This occurs where the Executive Director considers that a reviewable project may have “significant adverse environmental, economic, social, heritage or health effect”.

[43] Having determined that an EAC was required, the Executive Director was then obliged to determine by order the scope of the required assessment, and the procedures and methods for conducting it (section 11(1)).

[44] This provision invoked two additional parameters. The first was the Consultation Regulation, which provides in section 3:

3 The Executive Director, in making an order under section 11 [of the EAA] … must take into account the general policies respecting public consultation set out in this regulation and ensure that they are reflected in the assessment.

[45] Vancouver maintains that those general policies were ignored in the order that the Executive Director made here.

[46] The second additional parameter came in the form of an agreement, called the “Equivalency Agreement”, between the EAO, which administers the EAA, and the NEB. It was made pursuant to section 27 of the EAA, which permits the minister to enter into an agreement regarding any aspect of environmental assessment with another jurisdiction.

[47] The Equivalency Agreement, dated June 21, 2010, superseded an earlier agreement made in 2008, and applies to all “reviewable projects” that require approval under both the EAA and the NEB Act. By section 27(3)(d) of the EAA, such agreements may provide for a means to accept another jurisdiction’s assessment as being equivalent to an assessment required under the EAA. By section 28, the EAA and its regulations are deemed to be varied in respect of a reviewable project that is the subject of such an agreement, to the extent necessary to accommodate the agreement.

[48] As Madam Justice Koenigsberg commented in Coastal First Nations at para 120:

This is a logical and permissible legislative/policy choice, taking into account the federal nature of our country and to ensure efficiency and reduce duplication of processes and effort, including for proponents and interested parties who may be opposed to projects.

[49] The effect of the Equivalency Agreement, which will be discussed in more detail below, was that the EAO accepted any NEB assessment of the relevant project as an equivalent assessment under the EAA, so that no additional assessment under the EAA was required. As a result, the Executive Director’s order under section 11(1), determining the scope of the required assessment, provided that the NEB assessment was equivalent to the required assessment.

[50] Vancouver submits that, given the procedure followed by the Executive Director in this case, this was contrary to what the EAA permits notwithstanding sections 27 and 28.

[51] On completion of an assessment of a reviewable project in accordance with the procedures and methods determined under section 11, the Executive Director must refer the proponent’s application for an EAC to the Ministers (section 17(1)(a)). This referral must be accompanied by an assessment report (here the NEB Report because of the Equivalency Agreement), together with the Executive Director’s recommendations and reasons for recommendation (section 17(2)).

[52] On receipt of that referral, the Ministers must consider the assessment report and recommendations, and any other matters they consider relevant in the public interest (section 17(3)). The Ministers must then do one of three things: issue the EAC and attach such conditions as they consider necessary (17(3)(c)(i)); refuse to issue the EAC (17(3)(c)(ii)); or order that further assessment be carried out (17(3)(c)(iii)). Here, the Ministers issued the EAC with conditions. Vancouver argues that they should have taken the third option, and ordered further assessment.

[53] The TMX was not the first interprovincial pipeline project to raise the kinds of issues that arise here. It was preceded by the Northern Gateway Pipeline Project (“NGP”), which contemplated pipelines between Bruderheim AB and Kitimat BC, with a marine terminal at Kitimat. Like the TMX, the NGP went through a lengthy process of hearings. These were conducted before a Joint Review Panel (“JRP”) that comprised the NEB and the Canadian Environmental Assessment Agency (“CEAA”). The JRP issued a report on December 19, 2013, recommending approval of the NGP, subject to a number of conditions. Pursuant to this recommendation, the federal cabinet directed the NEB to issue CPCNs. These were issued on June 18, 2014, permitting the NGP to proceed subject to the same conditions.

[54] It was in anticipation of such projects as the NGP and TMX that the EAO and NEB entered into the Equivalency Agreement. As originally drafted, this agreement provided not only that any NEB assessment of a project constitutes an equivalent assessment under the EAA (clause 2), but also that projects to which the agreement applied did not require assessment under the EAA and could proceed without an EAC (clause 3).

[55] The NGP was the first project to proceed under the Equivalency Agreement, and pursuant to its terms, the JRP report was accepted as an equivalent assessment under the EAA, and the proponent of the NGP was not required to obtain an EAC.

[56] It was in this context that the petitioners in the Coastal First Nations case sought, by way of judicial review, declarations setting aside the Equivalency Agreement in part and requiring the Ministers to consult the petitioners. On January 13, 2016, Koenigsberg J. rendered her decision. She found the Equivalency Agreement invalid to the extent that it purported to remove the need for an EAC pursuant to clause 3. It followed that the Ministers were required to exercise their authority under section 17 of the EAA in relation to the issuance of an EAC.

[57] British Columbia did not appeal from this decision, which was rendered after the completion of the NEB hearings concerning the TMX, but before the NEB Report was delivered. A new government in Ottawa ultimately changed course and brought an end to the NGP, but, as we have seen, approved the TMX.

[58] Given the result in Coastal First Nations, the EAO ordered that an EAC was required for the TMX pursuant to section 10(1)(c) of the EAA. In the order, dated April 8, 2016, Nathan Braun, Executive Project Director in the EAO, to whom the Executive Director had delegated his powers and functions under the EAA, recited the following:

B. The proposed project is being assessed by the National Energy Board (NEB) under the terms of the Equivalency Agreement between British Columbia’s Environmental Assessment Office (EAO) and the NEB.

C. In its recent decision in [Coastal First Nations], the British Columbia Supreme Court held that a portion of the Equivalency Agreement was invalid. Specifically, the Court ruled that, although ministers may rely on the environmental assessment carried out by the NEB, the Equivalency Agreement cannot dispense with the requirement for an environmental assessment certificate under the [EAA].

…

F. The Executive Project Director considers that the Proposed Project may have a potential significant adverse environmental, economic, social, heritage or health effect, taking into account practical means of preventing or reducing to an acceptable level, any potential adverse effects of the Proposed Project.

[59] By letter of April 15, 2016, Trans Mountain responded to the order by confirming to Mr. Braun that it was ready to initiate the EAO’s review process. As we have seen, the NEB released its report on May 19, 2016, recommending cabinet approval.

[60] On June 17, 2016, Mr. Braun issued the required order under section 11 of the EAA, ordering that the environmental assessment process be conducted according to procedures set out in attached schedules. These included a direction that pursuant to section 2 of the Equivalency Agreement, the NEB’s environmental assessment for the TMX constituted an equivalent assessment under sections 27 and 28 of the EAA, and that the NEB Report was equivalent to the assessment report required under section 17(2) of the EAA.

[61] Sections 2 and 3 of the Equivalency Agreement provide:

2. EAO accepts under the terms of this Agreement that any NEB assessment of a Project conducted either before or after the effective date of this Agreement, constitutes an equivalent assessment under sections 27 and 28 of the [EAA].

3. The [EAA] and the regulations enacted under it, are deemed to be varied in their application to or in respect of Projects subject to this Agreement to the extent necessary to accommodate this Agreement, and the projects to which this agreement applies do not require assessment under the [EAA] and may proceed without [an EAC] .

[62] The underlined portion was declared invalid by Koenigsberg J. in Coastal First Nations.

[63] Mr. Braun’s section 11 order also included a procedure for the EAO to provide listed Aboriginal groups with specified consultation opportunities, a procedure for Trans Mountain to report on its own aboriginal consultation efforts, and a procedure for Trans Mountain to provide supplemental information not available during the NEB review.

[64] Also included was a direction that the Project Assessment Lead (an EAO employee with appropriate delegated authority) provide a recommendation on whether draft conditions were required, and if recommended, propose draft conditions taking into consideration the NEB Report, consultation with Aboriginal groups, and any supplemental information provided by Trans Mountain.

[65] There was no procedure for public hearings or submissions, or for consultation other than with Aboriginal groups.

[66] Pursuant to these procedures, Trans Mountain filed three supplemental documents with the EAO:

1) an Aboriginal Engagement Report dated July 28, 2016;

2) a Supplemental Filing dated August 2016; and

3) a Stakeholder Engagement Report dated September 30, 2016.

[67] On December 8, 2016, ten days after the federal cabinet approved the TMX, the Executive Director delivered his Recommendations to the Ministers pursuant to section 17(2) of the EAA, recommending that an EAC be issued with specified conditions. The Executive Director’s Recommendations were accompanied by the EAO’s Summary Assessment Report, the CCAR, a draft EAC, the NEB Report, the Ministerial Panel Report, the greenhouse gas report, the Nielsen Report, Trans Mountain’s supplemental documents, and submissions from various Aboriginal groups.

[68] On January 9, 2017, acting pursuant to section 17(3)(c)(i) of the EAA, the Ministers issued an EAC to Trans Mountain, subject to 37 additional conditions. The Ministers issued their Reasons for Decision the next day. The Ministers reported the Executive Director’s advice that, given the NEB conditions and the associated regulatory regime, and the addition of the proposed additional conditions, the “potential adverse impact on areas of provincial interest and jurisdiction would be avoided, minimized or otherwise accommodated to an acceptable level”. The Ministers concurred with that conclusion.

[69] Those “areas of provincial interest and jurisdiction” included:

· vegetation, wildlife and protected areas;

· impacts on the southern residential killer whale;

· greenhouse gas emissions; and

· terrestrial or marine spills.

[70] They discussed each area. They reviewed the extent of Aboriginal consultation and concluded that the provincial Crown’s duty to consult and accommodate had been met. The Ministers then addressed public consultation:

The EAO’s Summary Assessment Report provided a summary of the public engagement as a result of the NEB process and as reported in Trans Mountain’s Stakeholder Engagement Report. In addition, we have reviewed the report from the federal government’s three-member Ministerial panel charged with seeking the views of Canadians and local communities and Aboriginal groups along the pipeline right of way and shipping route that may not have been considered as part of the NEB review.

[71] They concluded:

After consideration of the NEB Report, the joint federal-provincial Consultation and Accommodation Report, the EAO’s Summary Assessment Report, the proposed Project design and recommended conditions of the proposed EA Certificate, the Recommendations of the Executive Director, and having regard to our responsibilities under the Act and Crown obligations to consult and accommodate Aboriginal groups, we have issued an EA Certificate for the Project. The EA Certificate includes enforceable conditions and specifies the Project design parameters.

[72] Vancouver submits that the Ministers had no jurisdiction to issue the EAC in the circumstances here. This submission is based on two interrelated propositions founded upon statutory interpretation.

[73] First, Vancouver submits that by proceeding to require an EAC and an assessment under section 10(1)(c), the Executive Director was prohibited by section 12 from accepting the NEB assessment as the assessment required under the EAA. The entire process was therefore a nullity as no assessment was carried out.

[74] Second, the process that the Executive Director selected engaged the provisions of the Consultation Regulation, with which the Executive Director failed to comply. This is because he failed to include in his section 11 order processes for giving public notice and inviting public comment as the Consultation Regulation required.

[75] In cases of judicial review, the question of the applicable standard of review is the bête noire of the reviewing judge. Is the standard correctness, or is the standard reasonableness? It makes a big difference. No deference need be shown in reviewing a decision on a correctness standard. In my view, was it right or was it wrong? The reasonableness standard, however, requires the reviewing court to show considerable deference to the decision-maker. Was the conclusion within the range of acceptable, defensible outcomes even if I would have decided it differently?

[76] The deferential nature of the reasonableness standard was discussed at length by the Supreme Court of Canada in its seminal decision of Dunsmuir v New Brunswick, 2008 SCC 9:

[47] Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

[48] The move towards a single reasonableness standard does not pave the way for a more intrusive review by courts and does not represent a return to pre-Southam formalism. In this respect, the concept of deference, so central to judicial review in administrative law, has perhaps been insufficiently explored in the case law. What does deference mean in this context? Deference is both an attitude of the court and a requirement of the law of judicial review. It does not mean that courts are subservient to the determinations of decision makers, or that courts must show blind reverence to their interpretations, or that they may be content to pay lip service to the concept of reasonableness review while in fact imposing their own view. Rather, deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law.

[77] In Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, the Supreme Court of Canada put it this way:

[59] Reasonableness is a single standard that takes its colour from the context. … Reviewing courts cannot substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within “a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir, at para. 47). There might be more than one reasonable outcome. However, as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome.

[78] The Court developed the discussion further in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62:

[12] It is important to emphasize the Court’s endorsement of Professor Dyzenhaus’s observation that the notion of deference to administrative tribunal decision-making requires “a respectful attention to the reasons offered or which could be offered in support of a decision”. In his cited article, Professor Dyzenhaus explains how reasonableness applies to reasons as follows:

“Reasonable” means here that the reasons do in fact or in principle support the conclusion reached. That is, even if the reasons in fact given do not seem wholly adequate to support the decision, the court must first seek to supplement them before it seeks to subvert them . For if it is right that among the reasons for deference are the appointment of the tribunal and not the court as the front line adjudicator, the tribunal’s proximity to the dispute, its expertise, etc, then it is also the case that its decision should be presumed to be correct even if its reasons are in some respects defective. [Emphasis added by SCC.]

(David Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in Michael Taggart, ed., The Province of Administrative Law (1997), 279, at p. 304)

...

[13] This, I think, is the context for understanding what the Court meant in Dunsmuir when it called for “justification, transparency and intelligibility”. To me, it represents a respectful appreciation that a wide range of specialized decision-makers routinely render decisions in their respective spheres of expertise, using concepts and language often unique to their areas and rendering decisions that are often counter-intuitive to a generalist. That was the basis for this Court’s new direction in Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227, where Dickson J. urged restraint in assessing the decisions of specialized administrative tribunals. This decision oriented the Court towards granting greater deference to tribunals, shown in Dunsmuir’s conclusion that tribunals should “have a margin of appreciation within the range of acceptable and rational solutions” (para. 47).

[79] Justice Abella went on to say this in the Labrador Nurses’ Union case:

[16] Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion (Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., [1975] 1 S.C.R. 382, at p. 391). In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.

[80] Here, Vancouver argues, because the question is one of true jurisdiction, the actions of the Executive Director must be reviewed on a standard of correctness. The correctness of his decision depends not only on the interpretation of the statute, but also on the application of the appropriate authorities, particularly Coastal First Nations. Vancouver relies upon the following passage from Dunsmuir at para 59:

Administrative bodies must also be correct in their determinations of true questions of jurisdiction or vires…. It is important here to take a robust view of jurisdiction. We neither wish nor intend to return to the jurisdiction/preliminary questions doctrine that plagued the jurisprudence in this area for many years. “Jurisdiction” is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. The tribunal must interpret the grant of authority correctly or its action will be found to be ultra vires….

[81] Vancouver also points to the decision of the British Columbia Court of Appeal in Mitchell v British Columbia (Superintendent of Motor Vehicles), 2009 BCCA 272:

[20] The question on the judicial review in this case was whether, in view of the statutory language of s. 94.5(1)(c) of the Motor Vehicle Act, the adjudicator was entitled to proceed with the hearing in the absence of a copy of a certificate of analysis. That question appears to me to be one going to jurisdiction in the narrow sense in which that word was used in Dunsmuir. Of course, if s. 94.5(1)(c), properly interpreted, allows the adjudicator to so proceed, the adjudicator’s decision to actually do so would be an exercise of discretion, and would be entitled to deference.

[82] Vancouver argues that, similarly, the question here is whether, given the statutory language of the applicable sections of the EAA and Consultation Regulation, the Executive Director was entitled to proceed as he did.

[83] British Columbia submits that, properly framed, the issue is not one of jurisdiction, but rather comes down to a question of mixed fact and law of whether, in the circumstances, the Executive Director appropriately interpreted his home statute, including the applicability of the Consultation Regulation. These are decisions that are properly reviewable on a reasonableness standard as discussed in Dunsmuir and in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61:

[33] … I reiterate Dickson J’s oft-cited warning in Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227, that courts “should not be alert to brand is jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so” (p. 233, cited in Dunsmuir, at para. 35). … Experience has shown that the category of true questions of jurisdiction is narrow indeed. Since Dunsmuir, this Court has not identified a single true question of jurisdiction….

[34] The direction that the category of true questions of jurisdiction should be interpreted narrowly takes on particular importance when the tribunal is interpreting its home statute. In one sense, anything a tribunal does that involves the interpretation of its home statute involves the determination of whether it has authority or jurisdiction to do what is being challenged on judicial review. However, since Dunsmuir, this Court has departed from that definition of jurisdiction. Indeed, in view of recent jurisprudence, and may be that the time has come to reconsider whether, for the purposes of judicial review, the category of true questions of jurisdiction exists and is necessary to identifying the appropriate standard of review. However, in the absence of argument on the point in this case, it is sufficient in these reasons to say that, unless the situation is exceptional, and we have not seen such a situation since Dunsmuir, the interpretation by the tribunal of “its own statute or statutes closely connected to its function, with which it will have particular familiarity” should be presumed to be a question of statutory interpretation subject to deference on judicial review.

[84] A similar point was made by the British Columbia Court of Appeal in Friends of Davie Bay v Province of British Columbia, 2012 BCCA 293 in the context of the interpretation of an enactment by the EAO:

[30] The question in issue is one that involves the interpretation of an enactment closely connected to the EAO’s function and so, in one sense, involves the determination of whether the EAO has authority or jurisdiction to determine whether the Quarry is reviewable. However, it is not one of the “narrow or exceptional” questions that concern true jurisdiction or vires. Accordingly, I conclude that the standard of review applicable to the EAO’s determination in the case at bar is reasonableness.

[85] Both the Alberta Teachers’ Association and Friends of Davie Bay cases were decided after Mitchell. It is not clear that Mitchell would be decided the same way today.

[86] In Dunsmuir, the Supreme Court of Canada established a two-step framework for this analysis:

[62] In summary, the process of judicial review involves two steps. First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question. Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review.

[87] As this passage and others quoted above suggest, the problem seems to come down to this: what standard of review applies depends on how one frames the issue (or “category of question”).

[88] What has the jurisprudence determined about the degree of deference to be accorded here? To me, the answer is clear. The question raised by Vancouver concerns the interpretation by the Executive Director of the provisions of his home statute, the EAA and the regulations under it, governing how he should proceed with what he clearly had jurisdiction to do: determine the need for an assessment. Like the court in Friends of Davie Bay, I do not see this as one of the “narrow or exceptional” questions that concern true jurisdiction or vires.

[89] In Coastal First Nations at paras 92–93, Koenigsberg J. specifically declined to determine what standard of review applied to the decision she was reviewing, which was essentially the incorporation of clause 3 into the Equivalency Agreement. In her view, the result would be the same either way.

[90] But in Friends of Davie Bay, the Court of Appeal was unequivocal in holding that the EAO’s interpretation of its regulations should be reviewed on a reasonableness standard. This was entirely consistent with the approach mandated by Rothstein J. in the Alberta Teachers’ Association case at para 34, which I repeat here for ease of reference:

[I]t is sufficient in these reasons to say that, unless the situation is exceptional, and we have not seen such a situation since Dunsmuir, the interpretation by the tribunal of “its own statute or statutes closely connected to its function, with which it will have particular familiarity” should be presumed to be a question of statutory interpretation subject to deference on judicial review.

[91] Vancouver has not raised any ground on which it could be said that the situation here is exceptional, other than to submit that the Executive Director’s interpretation of the provisions at issue is contrary to Koenigsberg J.’s interpretation of the same provisions in Coastal First Nations. In these circumstances, Vancouver argues, the standard is elevated from reasonableness to correctness.

[92] Does the interpretation in Coastal First Nations require a correctness analysis? Or does it go to the reasonableness of the Executive Director’s decision on a reasonableness standard?

[93] The proper answer, in my view, is the latter, but in the end it would appear to be a distinction without a difference. In either event, I must engage in my own interpretation of the statutory provisions in question, and I will accordingly do so. The proper approach was discussed in Friends of Davie Bay:

[33] The modern approach to statutory interpretation has been recently stated in Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25, [2011] 2 S.C.R. 306 at para. 27:

[27] The proper approach to statutory interpretation has been articulated repeatedly and is now well entrenched. The goal is to determine the intention of [the Legislature] by reading the words of the provision, in context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act and the object of the statute. In addition to this general roadmap, a number of specific rules of construction may serve as useful guideposts on the court’s interpretative journey. …

[34] Here, the object of the legislation is environmental protection. This important object must not be lost in the minutia. In Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3 at 71, La Forest J., for the majority, cited with approval the fundamental purposes of environmental impact assessment identified by R. Cotton and D.P. Emond in “Environmental Impact Assessment” in J. Swaigen, ed., Environmental Rights in Canada (Toronto: Butterworths, 1981) 245 at 247:

(1) early identification and evaluation of all potential environmental consequences of a proposed undertaking; (2) decision making that both guarantees the adequacy of this process and reconciles, to the greatest extent possible, the proponent’s development desires with environmental protection and preservation.

[94] With these principles in mind, I turn to consider Vancouver’s submissions that the EAA and the Consultation Regulation prohibited the Executive Director from following the procedure he did.

[95] Vancouver’s position may be described as follows.

[96] In relation to the environmental assessment process, section 10 permits the Executive Director to proceed in one of two ways . This was discussed in Coastal First Nations. He can either refer the question of whether an assessment is required to the minister, or he can make that determination himself.

[97] The first way is under section 10(1)(a). That permits the Executive Director to refer a reviewable project to the minister for determination under section 14 of whether an assessment is required.

[98] If he does so, section 14(1) provides that the minister may by order determine the scope of the required assessment, and may determine the procedures and methods for conducting the assessment. Section 14(3) provides that an order of the minister may:

(a) require that the assessment be conducted

(i) by a commission that the minister may constitute for the purpose of the assessment, consisting of one or more persons at the minister may appoint to the commission;

(ii) by a hearing panel, with the public hearing to be held by one or more persons at the minister may appoint to the hearing panel, or

(iii) by any other method or procedure that the minister considers appropriate and specifies in the order, and by the Executive Director or other person that the minister may appoint, and

(b) delegate any of the minister’s powers under this section to make orders determining scope, procedures and methods to

(i) the Executive Director, or

(ii) a commission member, hearing panel member or another person, depending on which of them is responsible for conducting the assessment.

[99] This provision would, submits Vancouver, permit the minister to delegate the assessment to the NEB pursuant to the Equivalency Agreement. But the Executive Director did not choose to proceed in this way.

[100] Instead, he chose the second way , determining that an environmental assessment certificate is required pursuant to section 10(1)(c). As we have seen, this engages section 11 whereby the Executive Director is obliged to determine the scope of the required assessment and the procedures and methods for conducting it. This is the route the Executive Director selected.

[101] In this process, there is no provision for delegation; on the contrary, Vancouver asserts, section 12 forbids it:

12. The executive director’s discretion to make a determination under section 11(1) for a reviewable project does not include the discretion to consign the assessment of the reviewable project to

(a) a commission,

(b) a hearing panel, or

(c) a person not employed in or assigned to the environmental assessment office.

[Emphasis added.]

[102] It follows from this provision, Vancouver contends, that having chosen the section 10(1)(c) route, the Executive Director was prohibited by section 12 from accepting the NEB’s assessment as the assessment required by the EAA. If he wanted to proceed under the Equivalency Agreement, Vancouver asserts, he ought to have chosen the first way, referring the matter to the minister under section 10(1)(a).

[103] Vancouver says that this analysis is consistent with, and indeed compelled by, the reasoning in Coastal First Nations. I do not think that follows.

[104] There, Koenigsberg J. was considering a very different issue in a very different context. There had been no assessment process leading to the issuance of an EAC because the Equivalency Agreement, as it then stood, provided that none was necessary. The constitutionality of that provision was the issue, not the appropriateness of the process followed.

[105] One of the positions taken by British Columbia was that a decision concerning the issuance of an EAC under section 17(3) was not required because section 27 (allowing the minister to enter into an agreement regarding any aspect of environmental assessment with another jurisdiction) was not contemplated by section 17(1) as one of the ways that projects are brought before the Ministers for decision under section 17(3). Section 17(1) brought an assessment before the Ministers only once completed via section 11 or section 14.

[106] This position was not directly germane to the question of the constitutionality of clause 3 of the Equivalency Agreement. Koenigsberg J. nevertheless addressed it, and concluded that there was a route via sections 10(1)(a) and 14, but not via sections 10(1)(c) and 11.

[107] The judge reasoned at para 161 that on a plain reading of section 12, the Executive Director does not have discretion to enter into a section 27 agreement regarding an assessment because he is prohibited from delegating his assessment authority to anyone not employed in or assigned to the EAO. She found this supported by the language of section 27, which granted authority to the minister only. At para 167, Koenigsberg J. concluded that section 14 “sufficiently incorporates s. 27 agreements within its reach”, in the context of British Columbia’s submission that a section 17(3) determination did not have to be made for project falling within a section 27 agreement.

[108] I am unable to agree with Koenigsberg J.’s conclusion concerning the effect of section 12, which was unnecessary to her decision. As I read the statute, section 12, considered in context and in relation to the issues raised in this case, cannot be taken to prohibit the Executive Director from complying with section 2 of the Equivalency Agreement in determining the scope of an assessment under section 11. That would confuse the jurisdiction to enter into an Equivalency Agreement under section 27 with the ability to comply with the provisions of an Equivalency Agreement that is already in place and which binds the EAO.

[109] By section 27(3)(d), as we have seen, an agreement into which the minister enters under that section may provide for a means to accept another party’s or jurisdiction’s assessment as being equivalent to an assessment required by the EAA.

[110] Here, the question is not whether the Executive Director could enter into a section 27 agreement, but whether the Executive Director could comply with the terms of an Equivalency Agreement into which the minister validly entered under section 27. As permitted by section 27(3)(d), that agreement provides that the “EAO accepts … that any NEB assessment of a project constitutes an equivalent assessment…”. The “EAO”, of course, includes its Executive Director.

[111] As I read it, section 12, properly construed, does not preclude the Executive Director from accepting an NEB assessment as an equivalent assessment. That is not the same as ‘consigning’ the required assessment outside of the EAO as contemplated by sections 12, 14 and 15, which must be read together, and which only the minister may do. None of those sections contemplates the acceptance of an assessment from another jurisdiction as the assessment required under the EAA, whereas that is a specific focus of section 27.

[112] This is supported by section 17(1), which provides that on completion of an assessment in accordance with the procedures and methods determined under section 11 by the Executive Director, under section 14 by the minister, or under section 14 by the Executive Director, a commission member, hearing panel member or another person:

the executive director, commission, hearing panel or other person, as the case may be, must refer the proponent’s application for an environmental assessment certificate to the ministers for decision under subsection (3).

[113] This indicates that the reference to a ‘commission, hearing panel or other person’ in sections 12, 14, 15 and 17 contemplates a body actually conducting an assessment of the application for an EAC, not the situation where an NEB assessment has been deemed to constitute an EAA assessment pursuant to the Equivalency Agreement. The NEB could not possibly refer Trans Mountain’s application for an EAC to the Ministers for decision in accordance with section 17(1).

[114] Section 10(1)(c), then, offers a route via s. 11 that involves an “in-house” assessment, which section 12 is designed to ensure. Section 10(1)(a) offers a route via section 14 that allows the minister to determine that more is required than can be accomplished in-house. Thus, under section 14, the minister may constitute a commission, appoint a hearing panel, or specify some other procedure to be conducted by any other person the minister may appoint, all with a view to assessing the proponent’s application for an EAC. This process would not include the NEB and is quite independent of the Equivalency Agreement, as section 15 makes clear. Sections 14 and 15 contemplate directing how an assessment is to be carried out by parties external to the EAO, a very different question from equivalency, while section 12 provides that the procedure contemplated by sections 14 and 15 is not available to the Executive Director acting under section 11.

[115] The Equivalency Agreement, on the other hand, is intended to avoid the process of an EAO-directed assessment altogether, whether in-house or external. It provides, in effect, that the NEB assessment is deemed to be an in-house assessment, consistent with what is contemplated by sections 10(1)(c), 11(1) and 27(3)(d).

[116] Accordingly, for the Executive Director proceeding under section 10(1)(c) to determine under section 11(1) that the NEB’s assessment was the “required assessment” was not to “consign” the assessment to an outside party as contemplated by section 12 when read in conjunction with sections 14, 15 and 17(1).

[117] It would be inconsistent with the scheme of the legislation if the Executive Director were obliged to refer the question of an environmental assessment to the minister in order to take advantage of the Equivalency Agreement, when the matter was already before the NEB. There was no need for the minister to confer authority to enter into the Equivalency Agreement, as that had already been accomplished. Moreover, there was no need to proceed under section 10(1)(a) in order to invoke the minister’s ability under section 14 to create an outside panel or commission. The NEB process was already in play.

[118] Consequently, in the context of the issues raised in this case, it is the route via sections 10(1)(c) and 11 that brings (and brought) the project before the Ministers under section 17(1), with the NEB assessment constituting the “assessment report prepared by the Executive Director” referred to in section 17(2)(a) by reason of the application of the Equivalency Agreement and sections 27 and 28 of the EAA.

[119] It follows, in my view, that the Executive Director’s interpretation of the EAA was both reasonable and correct: proceeding as he did, he was entitled to accept the NEB assessment as constituting an equivalent assessment. Indeed, he was required to do so by the terms of the Equivalency Agreement that were found to be valid in Coastal First Nations. This ground of review accordingly fails.

[120] As we have seen, the Consultation Regulation provides that, in making an order under section 11 to determine the assessment process, the Executive Director:

… must take into account the general policies respecting public consultation set out in this regulation and ensure that they are reflected in the assessment.

[121] The regulation goes on to specify as “general policy requirement[s]” that the Executive Director:

(a) order that public notice be given by the proponent or the EAO of public consultation activities in relation to the assessment, including reviewing the application and providing for a formal public comment period, and where and when “any open house or public meeting” will be held (s. 5(1));

(b) require that public notice be given by newspaper advertisement, open letters or any other matters satisfactory to the Executive Director (s. 5(2));

(c) give such public notice at least 7 days before the start of a formal public comment period, or the date on which an open house or public meeting is scheduled (s. 5(3)); and

(d) establish at least one formal comment period of between 30 and 75 days (s. 7).

[122] Here, the Executive Director did none of these things. Was he obliged to do so before he could proceed with the process he commenced, or could he rely on the extensive hearings process before the NEB as reflecting these requirements?

[123] Vancouver refers to Mitchell (see paras 81–85 above). There, the court considered section 94.5(1)(c) of the Motor Vehicle Act, RSBC 1996, c 318. The section provided that, in a review of a driving prohibition, the superintendent “must consider … a copy of any certificate of analysis under section 258 of the Criminal Code with respect to the person served with the notice of driving prohibition”. The court concluded that the provision was mandatory, so that the adjudicator had no jurisdiction to complete a review without considering such a certificate, where one existed, even if it had not been made available to the adjudicator.

[124] Vancouver argues that the same logic applies here: the Consultation Regulation mandated the Executive Director to take certain steps that he failed to take. Accordingly, he could not complete the review upon which he embarked.

[125] I agree that section 3 of the Consultation Regulation is mandatory. The question is, what does it mandate? It does not say that the Executive Director must specifically comply with the general policy requirements. What it says is something quite different: he must take the general policies “into account” and “ensure that they are reflected in the assessment”.

[126] It follows, in my view, that once again we are not dealing with a question of jurisdiction in the narrow sense as described in Dunsmuir, Friends of Davie Bay and Mitchell, but rather with a matter of interpretation and discretion.

[127] The form of consultation that the Executive Director adopts within an environmental assessment is to be reviewed upon the standard of reasonableness: VAPOR v British Columbia (Environment), 2015 BCSC 1086 at para 59.

[128] Here, it is evident that the Executive Director took into account the general policies concerning public consultation, and concluded that they were more than adequately reflected in the comprehensive assessment undertaken by the NEB as described above, which assessment became the assessment of the EAO, together with the Ministerial Panel engagement process. He was not obliged to come to that conclusion, and could have ordered further consultation. Did he act unreasonably in those circumstances?

[129] Both as a matter of statutory interpretation as discussed in the Alberta Teachers’ case and as an exercise of discretion, the approach followed by the Executive Director, I find, is within the range of acceptable outcomes, and is entitled to deference. In this regard, I take into account the jurisdictional matrix within which the Executive Director was acting, the intent of the Equivalency Agreement, and the comprehensiveness of the NEB process.

[130] This ground of review accordingly fails.

[131] As an alternative to the jurisdiction question just discussed, Vancouver submits that even if the Executive Director had the jurisdiction to proceed as he did, he breached his duty of procedural fairness regarding public consultation by limiting consultation and input to Aboriginal groups only. Vancouver was, of course, advised of the process and was given a copy of the proposed section 11 order. It was not, however, expressly invited to participate, and no formal notice was provided to the general public.

[132] Vancouver asserts that the standard of correctness also applies to issues of procedural fairness, citing Mission Institution v Khela, 2014 SCC 24 at para 79:

[79] Third, the ability to challenge a decision on the basis that it is unreasonable does not necessarily change the standard of review that applies to other flaws in the decision or in the decision-making process. For instance, the standard for determining whether the decision maker complied with the duty of procedural fairness will continue to be “correctness”.

[133] British Columbia responds that the standard to be applied when dealing with issues of procedural fairness is not correctness, but simply “fairness”, relying on two decisions of the Court of Appeal: Seaspan Ferries Corporation v British Columbia Ferry Services Inc., 2013 BCCA 55, and Gichuru v Law Society of British Columbia, 2010 BCCA 543.

[134] In Seaspan, the court addressed the question of whether a standard of correctness or a standard of reasonableness, or both, applied to procedural fairness and concluded at para 51 that attempts to apply the standard of review analysis to issues of procedural fairness were not particularly helpful. Groberman J.A., for the court, went on to say this:

[52] I agree with the submissions of Seaspan … that the standard of review applicable to issues of procedural fairness is best described as simply a standard of “fairness”. A tribunal is entitled to choose its own procedures, as long as those procedures are consistent with statutory requirements. On review, the courts will determine whether the procedures that the tribunal adopted conformed with the requirements of procedural fairness. In making that assessment, the courts do not owe deference to the tribunal’s own assessment that its procedures were fair . On the other hand, where a court concludes that the procedures met the requirements of procedural fairness, it will not interfere with the tribunal’s choice of procedures.

[Emphasis added.]

[135] This would appear to be inconsistent with the dicta of the Supreme Court of Canada in Mission Institution, a case concerned with habeas corpus. I confess, however, with respect, that I find it difficult to discern a difference between applying a standard of “correctness”, and a standard of “fairness” that involves no deference to the decision-maker.

[136] The issue ultimately turns on the question of what “fairness” required in the circumstances.

[137] As Vancouver points out, the content of the duty of procedural fairness depends on the particular legislative and administrative context. The overarching question in every case is what fairness requires: Canada (Attorney General) v Mavi, 2011 SCC 30:

[41] Once the duty of procedural fairness has been found to exist, the particular legislative and administrative context is crucial to determining its content. …

[42] A number of factors help to determine the content of procedural fairness in a particular legislative and administrative context. … The duty of fairness is not a “one-size-fits-all” doctrine. Some of the elements to be considered were set out in a non-exhaustive list in [Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817] to include (i) “the nature of the decision being made and the process followed in making it” (para. 23); (ii) “the nature of the statutory scheme and the ‘terms of the statute pursuant to which the body operates’” (para. 24); (iii) “the importance of the decision to the individual or individuals affected” (para. 25); (iv) “the legitimate expectations of the person challenging the decision” (para. 26); and (v) “the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances” (para. 27). Other cases helpfully provided additional elements for courts to consider but the obvious point is that the requirements of the duty in particular cases are driven by their particular circumstances. The simple overarching requirement is fairness, and this “central” notion of the “just exercise of power” should not be diluted or obscured by jurisprudential lists developed to be helpful but not exhaustive.

[Emphasis added.]

[138] Vancouver argues that in the circumstances of this case, fairness demanded that:

… the City of Vancouver and all members of the public be given a right to notice of British Columbia’s environmental assessment and an opportunity to participate in it by way of, at the very least, a public comment period. The NEB hearing process did not and could not provide a substitute for public consultation in British Columbia’s environmental assessment program.

[139] In this regard, Vancouver points out that Trans Mountain was invited to submit supplemental information, but the public was given no opportunity to comment on it. Moreover, Vancouver argues, the BC process differed from the NEB process and presented an opportunity for participation by members of the general public denied standing before the NEB. Consequently, Vancouver asserts, the City and the public were not afforded a fair and reasonable opportunity to participate in British Columbia’s environmental assessment decision-making process, and the EAC should be set aside.

[140] When I take into account the particular legislative and administrative context within which the Executive Director was acting, I am unable to agree with Vancouver’s submission.

[141] I have already found that it was reasonable for the Executive Director to conclude that the general policies under the Consultation Regulation were satisfied through the NEB hearing process, and were adequately reflected in the NEB assessment which became the assessment of the EAO.

[142] This was based, in part, on the comprehensive nature of the NEB process, in which Vancouver and many others participated fully. Although the scope of participation, wide as it was, was more limited than could have been accomplished under the Consultation Regulation, the depth and degree of participation were much greater. It is unlikely that a period for public comments in British Columbia could reasonably have been expected to yield positions different from those considered by the NEB.

[143] I have also noted the legislative and policy choices that justify the Equivalency Agreement approach permitted by section 27 of the EAA, including efficiency and reduced duplication of processes.

[144] Finally, I reiterate the constitutional limitations placed on British Columbia’s mandate and its administrative process.

[145] In this context, I conclude that fairness did not require the EAO to afford to Vancouver and the public in general the consultation opportunities for which Vancouver contends. The EAO certainly could have done so, but it was not obliged to do so. Unlike the constitutional duty of the Crown to consult Aboriginal groups, as discussed in Squamish Nation, British Columbia was subject to no constitutional duty to consult the public, and its statutory obligation under the Consultation Regulation had, as discussed, been satisfied.

[146] Vancouver’s submissions, relating both to this issue and to the three questions raising the alleged failure of British Columbia to carry out a proper assessment, rest in part upon the proposition that the EAC process offered British Columbia the opportunity, through the imposition of constitutionally permissible conditions, to remedy perceived defects in the NEB process of which British Columbia had complained in its submissions to the NEB.

[147] For instance, before the NEB, British Columbia and others raised serious concerns about Trans Mountain’s spill prevention measures and response strategies, particularly for high consequence areas, and Trans Mountain’s ability to sustain an effective response should an incident occur. Both British Columbia and Burnaby maintained that Trans Mountain had not provided sufficient information or an appropriate level of detail during the application process to demonstrate that the company could respond effectively to a spill. They took the position that Trans Mountain should be required to provide additional information addressing these concerns before the NEB could properly consider its recommendations regarding the project.

[148] Vancouver observes that the NEB nevertheless proceeded to make its recommendation without first requiring the additional information, notwithstanding British Columbia’s concerns. But then, Vancouver says, through the EAC process, British Columbia had an opportunity to conduct an assessment and impose conditions that would ensure that these concerns were better investigated and addressed before the project proceeded further.

[149] As a matter of process, these concerns were, of course, all considered by the NEB and addressed in the NEB Report—whether satisfactorily is not for me to say. Thereafter, British Columbia was no longer advocating a position; it was dealing with a result. That result was a thorough assessment after comprehensive hearings that recommended approval of the project in the public interest, taking into account the benefits and burdens, considering the concerns expressed and the available environmental protection procedures and mitigation, and subject to all of the conditions and ongoing regulatory supervision.

[150] When it came to its own process, British Columbia had agreed to accept the NEB assessment as the relevant EAA assessment, and had done so for good reason. It was certainly open to British Columbia to impose additional conditions beyond those it did attach to the EAC, subject always to constitutional scrutiny. It is contemplating doing so via other regulatory means as I write, and is referring the question of its power to do so to the Court of Appeal. But for present purposes, it cannot be said that fairness required it to fashion a separate consultation process with a view to doing so. Fairness has to do with ensuring that the positions of those affected are heard and taken into account when the decision-maker determines policy. That was done through the NEB process. The result was not in accord with British Columbia’s submissions, and was contrary to the views of many. But the process considered those views; fairness does not require that every opportunity for an end-run around that process be undertaken. That is a policy decision for the government.

[151] Consequently, though it may have disappointed many that British Columbia did not take advantage of additional procedures available to it through the EAA assessment process, it does not follow from that choice, in the overall statutory, regulatory and constitutional scheme, that British Columbia acted unfairly or irrationally.

[152] As noted above in para 52, once the Executive Director refers the proponent’s application for an EAC to the Ministers, section 17(3)(c) requires the Ministers to do one of three things: (i) issue the EAC with such conditions as they consider necessary; (ii) refuse to issue the EAC; or (iii) order that further assessment be carried out. The Ministers chose (i).

[153] Vancouver submits, first, that the Ministers were required to consider option (iii), requiring a further assessment, before considering option (i), and failed to do so. This, Vancouver asserts, was an error of law.

[154] Alternatively, Vancouver argues, the Ministers did not require further assessment in accordance with option (iii) because they incorrectly interpreted their authority under the EAA to order further assessment with a view to imposing additional conditions.

[155] Finally, in the further alternative, Vancouver says that the Ministers’ decision to issue the EAC was unreasonable.

[156] Vancouver maintains that with respect to the first two aspects of this issue, the standard of review is correctness because it involves an error of law arising out of the Ministers’ purportedly incorrect interpretation of section 17(3)(c).

[157] I disagree.

[158] As we have seen, the Executive Director deemed the NEB Report to be the assessment report required under the EAA, which the Executive Director was then obliged to refer to the Ministers in accordance with section 17(2)(a). Vancouver points out, as discussed above, that British Columbia had raised a number of concerns before the NEB that had remained outstanding after the hearing process. In its submissions to the NEB, for instance, British Columbia was critical of Trans Mountain’s evidence concerning its preparation for and ability to respond to a project-related spill.

[159] With respect to the first branch of this issue, Vancouver argues that missing from anything forwarded by the Executive Director to the Ministers was any new evidence to address British Columbia’s concerns, such as any new or updated oil spill risk assessment. Vancouver then submits that notwithstanding these deficiencies and concerns, the Ministers ordered the issuance of the EAC “without even considering [their] authority pursuant to section 17(3)(c)(iii) to order that further assessment of the Project be carried out.” Vancouver bases this proposition on the absence of any reference to these deficiencies and concerns in the Ministers’ Reasons for Decision, the EAO report, and the Recommendations of the Executive Director.

[160] On the second branch, Vancouver alleges that the Ministers incorrectly interpreted their authority to order further assessment because of their mistaken belief that the Equivalency Agreement prevented them from doing so. Vancouver bases this proposition on the acceptance of the NEB Report as the provincial technical assessment, harking back to the first argument, discussed and dismissed above, that the process followed by the Executive Director was not subject to the Equivalency Agreement.

[161] Vancouver’s argument thus presupposes a correctness standard, essentially submitting that the Ministers failed to consider what they were required to consider under section 17(3)(c). As we shall see, all three grounds argued by Vancouver under this issue collapse into one once the question of the proper standard of review is resolved.

[162] I return to Dunsmuir’s two-step framework in order to determine the appropriate standard of review. Only then is it possible to consider whether the Ministers’ failure to adopt option (iii) was either “incorrect” or “unreasonable”.

[163] The first Dunsmuir step is to ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a “particular category of question”. I find that it has.

[164] The “category of question” here concerns the Ministers’ exercise of the discretion granted to them under section 17(3)(c). As British Columbia submits, that has long been recognized as a “political, policy-driven decision” (Do Rav Right Coalition v Hagen, 2005 BCSC 991 at para 34, aff’d 2006 BCCA 571).

[165] This recognition was clearly articulated in Peace Valley Landowner Association v British Columbia (Environment), 2015 BCSC 1129, aff’d 2016 BCCA 377, where the court directly considered the standard of review for ministerial decisions made pursuant to section 17(3).

[166] In that case, the petitioner argued that the Ministers’ decision to issue a certificate pursuant to section 17(3)(c) was invalid because they failed to consider certain recommendations contained in an assessment report. The petitioner argued that the appropriate standard of review was correctness.

[167] In determining the standard of review, Mr. Justice Sewell said this:

[85] … The issues in this case are whether the Ministers complied with the statutory requirement to consider the recommendations in the Report, and if they did not, what consequences flow from that failure.

[86] I am satisfied that this is a single question that must be reviewed on a standard of reasonableness. A consideration of the factors set out in paragraph 64 of Dunsmuir supports this conclusion. While there is no privative clause in the EAA, the Ministers were exercising a power to make a decision in which they were expressly permitted to take into account any matter they considered relevant to the public interest. The question before them was quintessentially a political and policy one. The relief sought by PVLA is based to a large extent on the assertion that the Director erroneously misled the Ministers in his response to the Report by advising that the Economic Recommendations were outside the scope of the Panel’s mandate. However, the Director clearly has a high degree of expertise in relation to the matters on which he advised the Ministers. He was giving advice on his home statute, the EAA. This suggests a deferential standard of review.

[87] In addition, the trend in recent authority favours considering what have been called nominate grounds of review, such as failing to consider relevant matters, as part of an overall assessment of the reasonableness of the decision under review. I am persuaded that this is the correct approach to take in this case.

[88] In this regard I adopt the analysis of the Federal Court of Appeal in Canada (National Revenue) v. JP Morgan Asset Management (Canada) Inc., 2013 FCA 250 at paras. 73-74:

[73] For the purposes of the above taxonomy, these two types of abuse of discretion are best regarded as matters of substantive unacceptability. Some analyze these as independent nominate grounds of automatic review – if decision-makers do these things, their decisions are automatically invalid: see Thamotharem v. Canada (Minister of Citizenship and Immigration), 2007 FCA 198, [2008] 1 F.C.R. 385. Others view these as examples of decisions that are outside the Dunsmuir range of acceptability or defensibility: Stemijon Investments Ltd., supra at paragraphs 20-24. Regardless of how these are analyzed, they are claims that sound in administrative law.

[74] At one time, the taking into account of irrelevant considerations and the failure to take into account relevant considerations were nominate grounds of review – if they happened, an abuse of discretion automatically was present. However, over time, calls arose for decision-makers to be given some leeway to determine whether or not a consideration is relevant: see, e.g., Baker, supra at paragraph 55; Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226 at paragraph 24. Today, the evolution is complete: courts must defer to decision-makers’ interpretations of statutes they commonly use, including a decision-maker’s assessment of what is relevant or irrelevant under those statutes: Dunsmuir, supra at paragraph 54; Alberta Teachers’ Association, supra at paragraph 34. Accordingly, the current view is that these are not nominate categories of review, but rather matters falling for consideration under Dunsmuir reasonableness review: see Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13 at paragraphs 53-54.

[89] This analysis is also consistent with the approach taken in Halifax, in which Cromwell J. held that the Minister’s discretionary decision did not accord with the applicable statute’s purposes and the principles governing its application. The Minister’s failure to consider relevant factors was framed not as a separate ground of review, but rather formed part of the Court’s assessment of the reasonableness of the decision.

[90] I conclude that a failure by the Ministers to take the Economic Recommendations into account when deciding whether to issue the Certificate would not automatically render their decision invalid but would be a factor to consider in determining the overall reasonableness of the decision. In my view this approach is in keeping with the underlying rationale of Dunsmuir.

[168] I am satisfied that Sewell J.’s reasoning should apply to the case at hand. The questions in both Peace Valley and this case are whether the Ministers properly followed the requirements of section 17(3) before making their decision to issue a certificate. While the two situations are not identical, they are closely analogous. I conclude that the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded to questions concerning the Ministers’ exercise of the discretion granted to them under section 17(3). The standard of review is reasonableness.

[169] Was it, then, unreasonable for the Ministers to order the issuance of the EAC without ordering a further assessment? Vancouver bases its argument on what is not said in the Reasons for Decision. But it cannot be assumed, as Vancouver urges, that they gave no thought to the question of ordering a further assessment. Their reasons for decision are entitled to the deference mandated by the Newfoundland and Labrador Nurses’ Union case (see paras 78 and 79 above).

[170] Moreover, as Sewell J. pointed out in Peace Valley Landowner Association, any such failure would only constitute a factor in assessing the reasonableness of the decision. In this regard, Vancouver’s argument ignores the reality that the issues and concerns it says the Ministers ought to have considered were all considered at length in the NEB Report, which constituted the assessment that was before the Ministers.

[171] Here, given the other factors I have discussed above concerning the nature of the assessment comprehensively undertaken by the NEB, which the Ministers were obliged to consider, the legislative and policy choices underlying the Equivalency Agreement, and the constitutional limitations placed upon British Columbia’s mandate and its regulatory process, only one conclusion is possible. The Ministers’ decision to order the issuance of an EAC without ordering a further assessment, a discretionary decision, fell within the range of possible, acceptable outcomes defensible in respect of the facts and law.

[172] To reiterate what the Supreme Court of Canada said in Khosa at para 59:

There might be more than one reasonable outcome. However, as long as the process and the outcome fit comfortably within the principles of justification, transparency and intelligibility, it is not open to a review court to substitute its own view of a preferable outcome.

[173] Here, British Columbia was not obliged to ensure that all concerns it raised before the NEB, and which the NEB had already considered, be considered anew. As I have previously noted, British Columbia certainly could have embarked on such an inquiry, subject to constitutional limitations, but in the applicable regulatory context, that was primarily the mandate of the NEB.

[174] I cannot say, then, that the Ministers erred in law, mistook their ability to order a further assessment, or acted unreasonably. This ground also fails.

[175] Vancouver’s petition is dismissed. Trans Mountain is entitled to its costs. British Columbia, representing the decision-maker, took a very limited position and made no submissions on the merits of the judicial review. I award no costs to British Columbia.

“GRAUER, J.”