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Raincoast & LOS Application for Leave TM Reconsideration Vol 1

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Court File No. _________ FEDERAL COURT OF APPEAL BETWEEN: RAINCOAST CONSERVATION FOUNDATION and LIVING OCEANS SOCIETY Applicants and ATTORNEY GENERAL OF CANADA and TRANS MOUNTAIN PIPELINE ULC Respondents APPLICANTS’ MOTION RECORD Motion for leave to apply for judicial review of Order in Council, P.C. 2019-820 made by the Governor in Council under subsection 54(1) of the National Energy Board Act VOLUME 1 OF 4 ANY RESPONDENT WISHING TO FILE A MOTION RECORD IN RESPONSE TO THIS MOTION FOR LEAVE MUST DO SO WITHIN TEN (10) DAYS OF BEING SERVED. REFER TO THE PRACTICE DIRECTION INCLUDED IN THIS MOTION RECORD AT PAGES 75 - 80 Dyna Tuytel & Margot Venton Counsel for the Applicants 800, 744 – 4 Avenue SW Calgary, AB T2P 3T4 Phone: 403 705-0202 Fax: 403-452-6574 TO: FEDERAL COURT OF APPEAL 3rd Floor, 635 – 8 Avenue SW Calgary, AB T2P 3M3 AND TO: ATTORNEY GENERAL OF CANADA c/o Department of Justice Canada Suite 601. 606 – 4 Street SW Calgary, AB T2P 1T1 Tel: 403 292-6813 Fax: 403 299-3507 TRANS MOUNTAIN PIPELINE ULC c/o Osler, Haskin & Harcourt LLP Suite 2500, TransCanada Tower 450 – 1 Street Sw Calgary, AB T2P 5H1 Tel: (403) 260-7003/7038 Fax: (403) 260-7024 NATIONAL ENERGY BOARD 517 – 10 Avenue SW Calgary. AB T2R 0A8 Tel: 403 292-4800 Fax: 403 292-5503 TABLE OF CONTENTS VOLUME 1 Tab Document Page 1 Notice of Motion 1 2 Order in Council, P.C. 2019-820, published in the Canada Gazette, Part I, 9 dated June 22, 2019 3 Practice Direction of Sharlow J.A., Applications for leave to apply for 75 judicial review under subsection 55(1) of the National Energy Board Act of an order of the Governor in Council made under subsection 54(1) of the National Energy Board Act, dated July 23, 2014 Tab Sub- Document Page tab 4 Affidavit of Elizabeth Gabel, affirmed July 4, 2019 81 A Exhibit A – Recovery Strategy for the Northern and Southern 84 Resident Killer Whales (Orcinus Orca) in Canada, dated 2018 B Exhibit B – Southern Resident Killer Whale Imminent Threat 178 Assessment, dated undated C Exhibit C – Written Evidence of Raincoast Conservation 208 Foundation, dated December 5, 2018 D Exhibit D – Written Evidence of Living Oceans Society, dated 256 December 5, 2018 E Exhibit E – National Energy Board reconsideration of aspects 262 of its Recommendation Report as direct by Order in Council P.C. 2018-1177, dated October 12, 2018 F Exhibit F – Letter from the National Energy Board to All 281 Parties re: National Energy Board reconsideration of aspects of its Recommendation Report as directed by Order in Council P.C. 2018-1177 (Reconsideration) MH-052-2018, dated October 29, 2018 VOLUME 2 G Exhibit G – National Energy Board reconsideration of aspects 301 of its OH-001-2014 Report as directed by Order in Council P.C. 2018-1177, dated February 2019 Excerpted VOLUME 3 H Exhibit H – Government of Canada Map of Overview of 2019 614 management measures to protect Southern Resident killer whales, dated 2019 I Exhibit I – Government of Canada Backgrounder, Government 616 of Canada outlines its 2019 plan for protecting Southern Resident killer whales, dated May 2019 J Exhibit J – Email to Cabinet enclosing letter by Ecojustice on 619 behalf of Raincoast Conservation Foundation and Living Oceans Society re: reconsideration of the Trans Mountain Expansion Project, dated April 5, 2019 K Exhibit K – Email to Cabinet enclosing letter by Ecojustice on 625 behalf of Raincoast Conservation Foundation and Living Oceans Society re: Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services Global Assessment Report on Biodiversity and Ecosystem Services, dated June 7, 2019 L Exhibit L – National Energy Board Report, Trans Mountain 680 Expansion Project, dated May 2016 Excerpted 5 Draft Proposed Notice of Application for Judicial Review 735 VOLUME 4 6 Memorandum of Fact and Law 753 7 Appendix A: Statutes and Regulations A Canadian Environmental Assessment Act, 2012, SC 2012, c 19, 783 s 52 B Federal Courts Act, RSC 1985, c F-7 806 C Federal Courts Rules, SOR/98-106 818 D National Energy Board Act, RSC 1985, c N-7 847 E Species at Risk Act, SC 2002, c 29 868 F Critical Habitats of the Northeast Pacific Northern and 917 Southern Resident Populations of the Killer Whale (Orcinus orca) Order, SOR/2018-278 G Order in Council P.C. 2016-1069 923 H Order in Council P.C. 2018-1177 953 I April 18, 2019 Fishery Notice: FN0377-COMMERCIAL, 963 RECREATIONAL and ABORIGINAL - Salmon - Chinook - 2019 Fraser River Chinook Conservation Measures and Coast- wide Recreational Annual Aggregates J A Species at Risk Act section 11 conservation agreement to 966 support the recovery of the Southern Resident Killer Whale, May 10, 2019 K National Energy Board, Filing Manual, (Calgary: National 993 Energy Board, 2004), Release 2015-01 L Canadian Environmental Assessment Agency, “Operational 1011 Policy Statement: Determining Whether a Designated Project is Likely to Cause Significant Adverse Environmental effects under the Canadian Environmental Assessment Act, 2012” M United Nations Convention on the Conservation of Biological 1026 Diversity, 5 June 1992, 1760 UNTS 69 (entered into force 29 December 1993) 8 Appendix B: Authorities A Canada (Fisheries and Oceans) v David Suzuki Foundation, 1030 2012 FCA 40 B Tsleil-Waututh Nation v Canada (Attorney General), 2018 FCA 1040 153 C CKLN Radio Incorporated v Canada, 2011 FCA 135 1057 D Lukacs v Swoop Inc, 2019 FCA 145 1063 E Martin v Canada (Minister of Human Resources Development), 1073 [1999] FCJ No 1972, 252 NR 141 (FCA) F Taseko Mines Limited v Canada (Environment), 2017 FC 1099 1078 G Pembina Institute for Appropriate Development v Canada 1084 (Attorney General), 2008 FC 302 H Alberta Wilderness Assn v Cardinal River Coals Ltd, [1999] 3 1089 FC 425 000001 Court File No. _____________ FEDERAL COURT OF APPEAL BETWEEN: RAINCOAST CONSERVATION FOUNDATION and LIVING OCEANS SOCIETY Applicants and ATTORNEY GENERAL OF CANADA and TRANS MOUNTAIN PIPELINE ULC Respondents NOTICE OF MOTION Motion for leave to apply for judicial review of Order in Council, P.C. 2019-820 made by the Governor in Council under subsection 54(1) of the National Energy Board Act TAKE NOTICE THAT Raincoast Conservation Foundation and Living Oceans Society will make a motion to the Court in writing under Rule 369 of the Federal Courts Rules. ANY RESPONDENT WISHING TO FILE A MOTION RECORD IN RESPONSE TO THIS MOTION FOR LEAVE MUST DO SO WITHIN TEN (10) DAYS OF BEING SERVED. REFER TO THE PRACTICE DIRECTION INCLUDED IN THIS MOTION RECORD AT PAGES 75 - 80 000002 2 THE MOTION IS FOR AN ORDER 1. Grating the Applicants leave to apply to this Court, pursuant to section 55 of the National Energy Board Act, RSC 1985, c N-7 (“NEB Act”), for judicial review of an order of the Governor in Council, made on June 18, 2019 and published in a supplement to the Canada Gazette, Part I, Vol. 153, No. 25, on June 22, 2019 (the “Order in Council”), with respect to the Trans Mountain Expansion Project (the “Project”). 2. Granting that, in the event that this motion is dismissed, the Applicants shall not be required to pay costs the respondents, pursuant to Rule 400 of the Federal Courts Rules; 3. Granting the Applicants their costs of this motion; and 4. Such further and other relief as this Honourable Court may deem just. THE GROUNDS FOR THE MOTION ARE: The Applicants raise an arguable case against that the Order in Council is unlawful 1. The Applicants raise an arguable case that the Governor in Council, in issuing the Order in Council, acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; erred in law in making a decision or an order, whether or not the error appears on the face of the record; or acted in a way that was contrary to law. The Applicants were interveners in the Board’s Review and Reconsideration Review of the Project 2. Raincoast Conservation Foundation and Living Oceans Society (the “Applicants”) are not-for-profit societies registered under the British Columbia Society Act, RSBC 1996, c 433. 3. The Applicants participated as intervenors in the National Energy Board (the “Board”) review of the Project and the Board’s reconsideration review of the Project. 000003 3 4. On December 16, 2013, Trans Mountain Pipeline ULC filed an application with the National Energy Board (the “Board”) for a Certificate of Public Convenience and Necessity under Part III of the National Energy Board Act, RSC 1985, c N-7 (the “NEB Act”) for the Project, which would expand the capacity of its Trans Mountain pipeline, which carries diluted bitumen from Edmonton, Alberta to the Westridge Marine Terminal in Burnaby, British Columbia. 5. The purpose of the Project is to transport diluted bitumen from the oil sands to the west coast to be exported. 6. The Project will result in an increase in the number of oil tankers calling at the Westridge Marine Terminal in Burnaby and navigating through Burrard Inlet, Vancouver Harbour and the Salish Sea to the open ocean from the current number of approximately 120 tanker transits per year to approximately 816. 7. The marine shipping route that would be used by Project-related marine shipping transects the critical habitat of the Southern Resident killer whales (the “Southern Residents”), which is identified in their Recovery Strategy and protected by the Critical Habitats of the Northeast Pacific Northern and Southern Resident Populations of the Killer Whale (Orcinus orca) Order, SOR/2018-279. 8. The Southern Residents are listed as endangered under the Species at Risk Act, SC 2002, c 29 (“SARA”).
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