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Administrative - Delay - Party. Sierra Club Canada Foundation v. Canada (Environment and Climate Change)
In Sierra Club Canada Foundation v. Canada (Environment and Climate Change) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, this brought against the earlier dismissal of a JR respecting a project "to tap oil and gas reserves far under the ocean floor and transport them to market".
The court considers party delay in administrative proceedings, here in an environmental assessment and indigenous consultation context:[65] In this case, in determining the purpose of the Act, we are assisted by an explicit section setting out the purposes of the Act: s. 4. From this, we see that the environmental assessment process is to meaningfully protect and advance environmental, Indigenous and other concerns and responsible authorities are to exercise their powers under the Act in accordance with the precautionary principle. But that is not all: paragraph 4(1)(f) of the Act provides that "“an environmental assessment is [to be] completed in a timely manner”". The Act aims at getting projects that satisfactorily accommodate those concerns, either by themselves or with the assistance of conditions recommended in that process, past the regulatory process and into the tangible implementation phase, for the benefit of Canadians.
[66] The Act is not to be interpreted and applied as if it were a long, multi-year stoplight designed to delay projects just for the sake of delay. Instead, under the Act, projects that satisfactorily accommodate concerns, with suitable modifications, should become reality, for the benefit of Canadians: see Conseil des innus de Ekuanitshit v. Canada (A.G.), 2013 FC 418, aff’d 2014 FCA 189.
[67] This means that those with concerns must advance them meaningfully in a responsive, timely way. Raising them in a fleeting, idle way, in a sentence or two, and late in the process is not enough.
[68] The Federal Court acknowledged that the appellants could have raised their concerns earlier. In its words (at para. 41), "“[d]oubtless, these concerns could have been raised at an earlier date”" but "“they were raised prior to the Agency finalizing the scope of the Project”". This seems to suggest that a party can delay its assertion of concerns until very late, before the scope is finalized, and force the Agency to go back and rerun part of its process.
[69] This seems contrary to the purpose of the Act, namely that assessments be timely and orderly. The failure to raise issues in a timely way should not be allowed. Otherwise, projects would be endlessly delayed by concerns asserted later in the process than they should be.
[70] The idea that concerns must be asserted in a timely way during a hearing is not unknown to our law. For example, those who have a procedural concern about what an administrative decision-maker has done must raise the concern with the administrative decision-maker in a meaningful and timely way: see e.g., Halton (Regional Municipality) v. Canada (Transportation Agency), 2024 FCA 122 and the cases cited at para. 38 therein, and many others. Parties cannot keep their concerns to themselves, lay in the weeds, and then pounce on judicial review. Instead, they must raise their concerns with the administrative decision-maker in a timely way, and do so meaningfully, not fleetingly: Rogers Communications Canada Inc. v. Timeless Inc., 2026 FCA 92 at para. 12, citing TVA Group Inc. v. Bell Canada, 2021 FCA 153, [2022] 1 F.C.R. 283 at paras. 64-66.
[71] This rule is also deeply rooted in practicality. If a concern really matters to a party, one would expect it to raise the concern promptly, even urgently, and in a meaningful way. When the party delays, one can reasonably conclude that the concern does not really matter to that party, or the party is acting in a tactical way. The Court takes this view in other areas of litigation: see, e.g., Apotex Inc. v. Bristol-Meyers Squibb Company, 2011 FCA 34.
[72] In this regard, I agree with Equinor’s oral submission that a party’s delay in raising an issue or lack of responsiveness before an administrative decision-maker might affect the Court’s assessment of reasonableness. Delay or lack of diligence in raising an issue can signal to the reviewing court that the issue was really not all that important—or at least not important enough to render the decision unreasonable.
[73] The rule on the need for timeliness, discussed above, does not change just because Indigenous consultation and accommodation issues, vitally important as they are, are involved. There, delays in raising issues can disqualify a party from raising them later: Coldwater First Nation (2020) at paras. 144 and 146; Roseau River First Nation v. Canada (Attorney General), 2023 FCA 163 at para. 32. Indigenous parties cannot hold an issue of concern in reserve and raise it only later when they do not like the outcome. As this Court said in Coldwater First Nation (2020) (at para. 55), "“Indigenous peoples [cannot] tactically use the consultation process as a means to try to veto it”": see also Haida Nation at para. 42; Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103 at para. 12; Halfway River First Nation v. British Columbia (Ministry of Forests), 1999 BCCA 470 at paras. 160-161; Ahousaht First Nation v. Canada (Fisheries and Oceans), 2008 FCA 21 at paras. 52-53; Canada v. Long Plain First Nation, 2015 FCA 177 at paras. 158-163.
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