Union of Nova Scotia Indians v. Maritimes and Northeast Pipeline Management Ltd.
A-676-98
Rothstein J.A.
20/10/99
10 pp.
Judicial review of National Energy Board's decision respondents satisfied condition to certificate of public convenience and necessity-Board issuing certificate in respect of respondents' pipeline facilities from Goldboro, Nova Scotia to international border near St. Stephen, New Brunswick, for transportation of raw gas-Recommendations of Joint Public Review Panel incorporated as conditions of certificate-Prior to issuance of certificate Board strictly following rules of procedural fairness-Thereafter procedure less formal as applicants, respondents communicating with Board without copying each other, Board responding individually-On October 16, 1998 Board finding respondents satisfying Condition 22 (which required respondents to submit to Board written protocol or agreement spelling out Aboriginal roles, responsibilities for cooperation in studies, monitoring), without having benefit of applicants' response to respondents' September 30 submissions-Where applicable, procedural fairness rules require party entitled to fairness to know case has to meet and be able to respond: Kane v. Board of Governors (University of British Columbia), [1980] 1 S.C.R. 1105-Here applicants asked to make submissions without knowing exactly what respondents proposing in order to comply with Condition 22-Board erred in dealing with respondents, applicants separately, with neither knowing precisely what other submitting to it-Breached rules of procedural fairness-No general duty on Board to adhere to procedural fairness rules in all proceedings involving satisfaction of conditions attached to certificates after public convenience and necessity decision made-However, where particular condition, by necessary implication, imposing obligations between specific participants in proceedings before it, some adherence to procedural fairness rules by Board required-Most post-hearing conditions attached to certificates not involving specifically identified interveners-Aboriginal groups involved herein interveners before Board, and Joint Public Review Panel expressly referring to discussions between these specific groups, respondents-Circumstances requiring Board to ensure applicants having opportunity to know what respondents submitting in satisfaction of Condition 22 and be able to respond thereto before deciding compliance with it-Except where same decision inevitable (Mobil Oil Canada Ltd. v. CanadaNewfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202), breach of procedural fairness must always render decision invalid: Cardinal et al. v. Director of Kent Institution, [1985] 2 S.C.R. 643-Not inevitable that after hearing from applicants Board would have reached precisely same decision with respect to compliance with Condition 22 as originally did-Breach of procedural fairness rendering Board's decision invalid-Application allowed.