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Environment (Fed) - Canadian Environmental Assessment Act (CEAA). 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".
Here the court considers the territorial jurisdiction of federal environmental assessments:[29] Second, the Federal Court noted that there are issues of territorial jurisdiction: Parliament has no authority over the waters in issue here, which, to reiterate, are 500 kilometers from the Canadian shore. In particular, the Federal Court held that (at para. 80) "“[t]he Project is located 500 kilometers from the coast of Canada, well beyond the legislative authority of Parliament, and there is uncertainty about the destination of the oil from the Project site”" and so "“it [is] impossible to assess marine shipping”". These findings are correct and unassailable. . 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".
Here, Stratas JA, makes observations that "will be of practical assistance to parties in future environmental assessments and Indigenous consultation processes" regarding the discretionary nature of JR, the rule of law and the equitable doctrine of 'clean hands':[50] At the end of the August 2020 session and in a follow-up email, the Agency offered to have further discussions with MTI to discuss the environmental impact statement. But MTI did not request any additional meetings with the Agency to discuss the marine transshipment issue.
[51] Based on this, Equinor says this Court should exercise its discretion to dismiss the appeal. It says that remedies on judicial review are always discretionary and the Court has the discretion to dismiss any application for judicial review for this sort of delay or lack of responsiveness.
[52] The Federal Court did not agree with Equinor. The Federal Court found that the appellants raised the issue before the Agency finalized the scope of the Project, and that was good enough. Whether the issue was raised in a meaningful, truly responsive way is open to question.
[53] In this Court, Equinor says that the Federal Court erred on this. At best, it says, the issues were raised late and, to some extent, in a general, fleeting way without supporting submissions. Equinor stresses that the purpose of the environmental assessment process under the Act is to allow for a meaningful assessment of environmental concerns and Indigenous concerns, but also to ensure that assessments are efficient and timely. In its memorandum and in oral argument, Equinor suggests that delay or lack of responsiveness in raising and pressing an issue can be a ground for the Court to dismiss an application for judicial review, in whole or in part, depending on the issue.
[54] What legal basis does Equinor assert for this? Equinor says that relief on judicial review is discretionary. In particular, it relies on this Court’s comments in Makivik Corporation v. Canada (Attorney General), 2021 FCA 184, [2022] 1 F.C.R. 311. At paragraph 60, this Court said that "“remedies on judicial review…are discretionary”" and "“[t]he categories of cases in which courts may exercise the discretion not to undertake judicial review are not closed”".
[55] Supporting this are the wide words of the Supreme Court in Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713. There, the Supreme Court (at para. 37) states briefly and in passing that "“even if [an] applicant makes out a case for review on the merits, the reviewing court has an overriding discretion to refuse relief”".
[56] There is no doubt that relief on judicial review is discretionary. But that alone leaves out much of the story.
[57] Makivik Corporation and Strickland — and many other cases for that matter — do not stand for the proposition that the Court can deny a party relief just because the Court is unhappy, offended or annoyed with a party’s conduct. The Court’s discretion is not that open-ended.
[58] Nor could it be. If it were, then the results of cases would depend on the sensibilities of a judge, or, as the English jurist and scholar John Seiden once memorably put it back in the seventeenth century, relief would depend on "“the length of the Chancellor’s foot,”" a very "“uncertain measure”" indeed: John Seiden, Table-Talk: Being the Discourses of John Selden, Esq. (ed. Richard Milward, 1689); see also Lord Denning, Landmarks in the Law (London: Butterworths, 1984). That would be the rule of whim, not the rule of law.
[59] Under the rule of law — a concept enshrined in the preamble to the Canadian Charter of Rights and Freedoms (Part I of the Constitution Act, 1982, above) — judges must exercise discretions on stable legal standards, not idiosyncratic personal whims, feelings or vibes.
[60] In accordance with the rule of law, stable categories and rules have developed over time and regulate the reviewing court’s discretion to withhold relief in a judicial review. While the categories of judicial discretion are not ossified and can develop in response to modern considerations (for recent examples, see, e.g., Benison v. Canada (Royal Canadian Mounted Police External Review Committee), 2026 FCA 53 and Canada (Public Safety and Emergency Preparedness) v. LeBon, 2013 FCA 55), equitable doctrines themselves do have operative rules and limits, and the Court obeys them.
[61] Equinor’s submission appears to invoke the equitable "“clean hands”" doctrine: a party that has engaged in misconduct is not entitled to relief. But that doctrine does have a threshold: only truly reprehensible conduct of a certain sort qualifies: see, e.g., Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2006 FCA 14. For example, a party seeking to set aside an administrative decision for unreasonableness may be caught by the doctrine if, in the prosecution or defence of the administrative proceedings, it has conducted itself immorally, fraudulently or beyond the pale in something connected with the judicial review. As Thanabalasingham instructs us, this is a high threshold, one far from met in this case.
[62] However, there is some merit to Equinor’s submission that the appellants’ delay in raising certain issues disqualifies them from advancing issues that should have been raised earlier, not for reasons founded in equity, but for other reasons.
[63] Judicial review of an administrative decision is shaped by the standards set out in the legislation, here the Act, that governs and shapes the administrative decision. Absent a constitutional concern, the Act, properly interpreted, is the law of the land. The Act binds and applies to everyone, including all participants in the administrative process—and reviewing courts too.
[64] Here, the purpose of the Act matters. As judges, we do not determine the purpose of legislation by adopting what we would like to see in it. We cannot use our own view of the Act’s purposes by "“[creating] an unexpressed exception to clear language”": Placer Dome Canada Ltd. v. Ontario (Minister of Finance), 2006 SCC 20, [2006] 1 S.C.R. 715 at para. 23; Hunt v. Canada, 2026 FCA 88 at para. 13; and see also M. Mancini, "“The Purpose Error in the Modern Approach to Statutory Interpretation”" (2022), 59 Alta. L. Rev. 919 at p. 927, which the Supreme Court relied upon in the seminal case of Québec (Commission des droits de la personne et des droits de la jeunesse) v. Directrice de la protection de la jeunesse du CISSS A, 2024 SCC 43, 498 D.L.R. (4th) 316. . Roseau River First Nation v. Canada (Attorney General)
In Roseau River First Nation v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered an appeal of a JR against a federal Cabinet Orders-in-Council that authorized the National Energy Board to issue a 'Certificate of Public Necessity and Convenience' for an international transmission line crossing Indigenous territory.
A major basis of the JR was the alleged failure of the federal government to meet their indigenous duty to consult about the project/ In considering that process the court reviewed the CEAA-related aspects of it:B. Administrative law principles
[11] The Federal Court properly found that the Order in Council was reasonable in an administrative law sense. The Order in Council was founded upon two statutes, the National Energy Board Act, R.S.C. 1985, c. N-7 (specifically s. 58.16) and the Canadian Environmental Assessment Act, S.C. 1993, c. 37 (specifically the finding that the Project is not likely to cause significant adverse environmental effects).
[12] In this Court, the appellants do not dispute that the Governor in Council had the statutory authority to issue the Order in Council nor do they suggest that the Governor in Council contravened any aspects of the legislative regimes. Instead, they contest the reasonableness of the Order in Council on its merits.
[13] The Order in Council approving the Project is founded upon a public interest determination based on wide considerations of policy. In making the Order in Council, the Governor in Council assessed polycentric, subjective, amorphous and indistinct criteria, applying its view of economics, cultural considerations, and societal costs and benefits. The Governor in Council is “‘to a unique degree the grand co-ordinating body for the divergent provincial, sectional, religious, racial and other interests throughout the nation’ and, by convention, it attempts to represent different geographic, linguistic, religious and ethnic groups” so it is well placed to assess the public interest and has a broad discretion in doing so: League for Human Rights of B’Nai Brith Canada v. Odynsky, 2010 FCA 307, 409 N.R. 298 at para. 77 citing Norman Ward, Dawson’s The Government of Canada, 6th ed. (Toronto: University of Toronto Press, 1987) at 203-204; Richard Schultz, Orest M. Kruhlak and John C. Terry, eds., The Canadian Political Process, 3rd ed. (Toronto: Holt Rinehart and Winston of Canada, 1979) at 393-394; see also Gitxaala Nation v. Canada, 2016 FCA 187, [2016] 4 F.C.R. 418. Such an administrative decision by this sort of decision-maker is often called “quintessentially executive in nature” and “very much unconstrained”: Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2020 FCA 100, [2021] 1 F.C.R. 374 at para. 28, aff’d 2022 SCC 30, 471 D.L.R. (4th) 391 at paras. 142-143.
[14] In words apposite to the reasonableness of the Order in Council before us, this Court stated:…[B]y vesting decision-making in the Governor in Council, Parliament implicated the decision-making of Cabinet, a body of diverse policy perspectives representing all constituencies within government. And by defining broadly [the nature of this decision]…literally anything relevant to the public interest…Parliament must be taken to have intended that the decision in issue here be made on the broadest possible basis, a basis that can include the broadest considerations of public policy.
(Gitxaala Nation at para. 144.) [15] The Governor in Council took into account a variety of information and recommendations loaded with economic, social, Indigenous, environmental, cultural and other diffuse, fuzzy, polycentric, and policy-laden considerations: Gitxaala Nation at paras. 148‑149; Canada v. Kabul Farms Inc., 2016 FCA 143, 13 Admin LR (6th) 11 at para. 25. It concluded that “the Project would increase electricity market efficiency, add greater flexibility to Manitoba’s electricity system operator to meet changing energy needs, improve power system reliability, and provide benefits to Indigenous, local, regional and the provincial economy”. Given the large margin of appreciation we must accord to the Governor in Council when it makes this sort of public interest decision, the Order in Council must be found reasonable on its merits. The outcome, expressed and explained in the Order in Council itself, the reasons of the National Energy Board, and the Crown-Indigenous Consultation and Accommodation Report—totalling hundreds of pages—shows justification, transparency and intelligibility. The outcome was open to the Governor in Council.
[16] It was reasonable for the Governor in Council to rely upon the process before the National Energy Board to consult and, where warranted, accommodate Indigenous groups.
[17] It is well-established that the Governor in Council and, more widely, the Crown, may rely on steps undertaken by a regulatory agency to fulfil its duty to consult in whole or in part and, where possible and appropriate, accommodate. This assumes that the regulatory agency to which the Crown delegates responsibility has the ability to exercise functions under its governing legislation that will fulfil what the duty to consult requires in the circumstances: Clyde River (Hamlet) v. Petroleum Geo‑Services Inc., 2017 SCC 40, [2017] 1 S.C.R. 1069 at paras. 30-34; Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650 at paras. 55 and 60.
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