A Federal Court judge ruled against an application by My Sea to Sky that asked for more time to file an application for judicial review, which related to the Woodfibre LNG (WLNG) project.
Judge Guy Régimbald, in written reasons dated Dec. 18, 2023, dismissed My Sea to Sky’s application that sought an extension to file a judicial review of the Minister of Environment and Climate Change’s amended decision statement for WLNG, which was issued on Aug. 4, 2023 and changed conditions related to the environment.
In simpler terms, the judge did not grant My Sea to Sky more time to get its application for a judicial review about the ministry’s decision in order.
The Aug. 4 decision altered the underwater noise regulations imposed on WLNG to require a pinniped exclusion zone 150 metres away from impact source or where noise exceeds 190 decibels. This was previously within 160 decibels, which was estimated to be within 7.3 kilometres of impact activity. Moreover, the decision put responsibility on WLNG to monitor water quality and sediment based on third-party benchmarks and noted exceedances.
“I am not satisfied that it is in the interests of justice to grant an extension of time. The motion for an extension of time to commence an application for judicial review is dismissed,” wrote Régimbald.
A judicial review, according to the Federal Courts Act, can be applied for by anyone “directly affected by a decision or an order of a federal board, commission or other tribunal” within 30 days of the decision. If unable to meet that window, a motion of extension needs to be brought forward, which is what My Sea to Sky filed.
In this case, the deadline to apply for a judicial review was Sept. 5, 2023. Régimbald states that My Sea to Sky told the attorney general of Canada it would need an extension prior to Sept. 5. Ultimately, My Sea to Sky filed a motion for an extension on Oct. 12, 2023, which was served to the attorney general and WLNG in the following days.
Régimbald wrote that while My Sea to Sky showed a “continuing intention” to pursue the application, it was unclear why it took so much time for counsel of My Sea to Sky to deliver the extension motion.
Régimbald notes in the written reasons, “There are significant gaps in the evidence presented by the applicant on its explanation for the delay. … In an email dated Sept. 8 to the respondents, the applicant stated having enclosed ‘a fulsome response outlining not only the basis for the judicial review but the application for an extension of time to file the judicial review materials.’”
“The evidence demonstrates that the applicant had prepared the argument for the motion before Sept. 10, but then waited another 32 days to file the motion materials. There [is] little evidence explaining that delay.”
The judge also wrote that to receive an extension, an application must demonstrate there is “some merit” and “a reasonable chance” it may succeed after the extension.
Régimbald notes that My Sea to Sky had three main issues with the amended decision statement:
- The minister did not have jurisdiction to amend the statement under the Canadian Environmental Assessment Act.
- The amended decision statement is “unlawful” and “unreasonable” because it does not consider all adverse effects to marine mammals and limits the scope of water quality and sediment monitoring.
- Lastly, the amended statement appears to allow Woodfibre to revise its own statement and conditions.
Considering the three issues, Régimbald found these issues largely had “limited merit.” However, he did say there is some merit to the argument of adverse effects on marine wildlife, although “the strength of that argument … is not as compelling as the applicant suggests.”
Lastly, Régimbald sided with the evidence presented by WLNG that said it would incur prejudice because of the steps it has taken after the 30-day window to file a judicial review closed.
“While, in my view, the prejudice alleged by Woodfibre may be cast too broadly, I am satisfied that it would suffer an important prejudice if an extension of time was granted,” wrote Régimbald.
Tracey Saxby, the executive director for My Sea to Sky, wrote to The Squamish Chief in an email that it is evaluating its next options for this particular application.
Régimbald wrote neither party sought costs, therefore he agreed no costs should be awarded.
