A-161-78
Yukon Conservation Society and Council for
Yukon Indians (Appellants)
v.
National Energy Board and Foothills Pipe Lines
(Yukon) Ltd. (Respondents)
Court of Appeal, Pratte, Urie and Le Dain JJ.—
Vancouver, November 30, December 1 and 5,
1978.
Practice — Application for summary dismissal in appeal
launched on jurisdictional ground against decision of National
Energy Board concerning applications for certificates of public
convenience and necessity for construction of northern pipeline
— Contention that Northern Pipeline Act establishes adminis
trative and regulatory scheme to carry out and give effect to
Canada-U.S. Northern Pipeline Agreement rendering appeal
academic — Northern Pipeline Act, S.C. 1977-78, c. 20, ss. 2,
20 — National Energy Board Act, R.S.C. 1970, c. N-6, s. 18.
This is an application for the summary dismissal of an appeal
against the decision of the National Energy Board in respect of
applications for certificates of public convenience and necessity
for the construction of a northern natural gas pipeline on the
ground that the appeal has been rendered academic by the
Northern Pipeline Act which establishes a special administra
tive and regulatory scheme to carry out and give effect to the
Canada-U.S. Northern Pipeline Agreement. The appellants
had appealed on the ground that the Board exceeded its
jurisdiction in making recommendations with respect to the
Dawson diversion and the Dempster link when those proposals
were neither covered by the applications before it nor supported
by the necessary material.
Held, the application for summary dismissal is granted and
the appeal is dismissed. Courts of Appeal will exercise the
power of summarily dismissing an appeal where by a change of
circumstances the issue before the parties has disappeared, so
that a judgment of the court would not serve any practical
purpose, except as to costs. The Northern Pipeline Act has
removed the raison d'être of the appellants' appeal and
deprived it of any practical purpose, in so far as the interest of
the appellants is concerned. The Act has not set aside the
decision of the National Energy Board but it has given such
effect to it and has deprived its recommendation with respect to
the Dawson diversion of any further significance. The appel
lants, therefore, suffer no possible prejudice from the Board's
recommendation with respect to the Dawson diversion, and
thus have no further interest in challenging it.
APPLICATION.
COUNSEL:
D. J. Rosenbloom and D. G. McCrea for
appellants.
H. Soloway, Q.C. for respondent, National
Energy Board.
L. M. Sali for respondent, Foothills Pipe
Lines (Yukon) Ltd.
G. R. Forsyth, Q.C. for the Alberta Gas
Trunk Line (Canada) Limited and The
Alberta Gas Trunk Line Company Limited.
W. B. Scarth for Attorney General of
Canada.
SOLICITORS:
Rosenbloom & McCrea, Vancouver, for
appellants.
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for respondent Na
tional Energy Board.
McLaws & Company, Calgary, for respond
ent Foothills Pipe Lines (Yukon) Ltd.
Howard, Dixon, Mackie, Forsyth, Calgary,
for the Alberta Gas Trunk Line (Canada)
Limited and The Alberta Gas Trunk Line
Company Limited.
Deputy Attorney General of Canada for
Attorney General of Canada.
The following are the reasons for judgment
delivered orally in English by
LE DAIN J.: This is an application for the
summary dismissal of an appeal against the deci
sion of the National Energy Board of July 4, 1977
in respect of applications for certificates of public
convenience and necessity for the construction of a
northern natural gas pipeline on the ground that
the appeal has been rendered academic by the
Northern Pipeline Act, S.C. 1977-78, c. 20, which
came into force by proclamation on April 13, 1978
(P.C. 1978-1141).
After a lengthy hearing of competing applica
tions for approval of northern pipeline projects the
National Energy Board approved the Foothills
(Yukon) project for a pipeline that would trans
port gas from Alaska through the Yukon along the
Alaska Highway. The Board attached two condi
tions, among others, to this approval: that the
route through the Yukon should include what is
referred to as the Dawson diversion or realign-
ment, and that the successful applicants should be
required to apply for a certificate of public conve
nience and necessity for what is referred to as the
Dempster link to bring natural gas from the
Mackenzie Delta to a point of connection with the
Alaska Highway pipeline. In its reasons for deci
sion, which are published in three volumes under
the title Reasons for Decision, Northern Pipelines,
the Board speaks of the Dawson diversion as a
"logical, indeed a necessary complement" to a
Dempster link and as appearing to be "clearly in
the Canadian interest" (Vol. 1, p. 1-167) and
strongly recommends it, but at the same time the
Board indicates that further consideration will be
necessary before giving it final approval. This is
clear from the following passages in its reasons for
decision:
As a condition of a certificate the Board would require that
the Applicant's commitment to carry out additional socio-eco
nomic and environmental studies be expanded to include stud
ies of these aspects for the Dawson realignment. Before making
a ruling on final route location, the Board would provide an
opportunity for input of interested parties. [Vol. 1, p. 1-169]
Although not formally proposed as a possible route change,
the feasibility and merits of a realignment of the route from
Boundary, Alaska, through Dawson and Pelly Crossing to
Whitehorse along the Klondike Highway in the Yukon, rejoin
ing the Alaska Highway at Whitehorse, was discussed by the
Applicant, having in mind the future possibility of connecting
Delta reserves to the Alaska Highway line via a "Dempster
link". The Board would condition any certificate it might issue
to require that the Applicant study the environmental aspects
of a "Dawson" realignment and submit the results to the
Board. [Vol. 3, p. 6-173]
In its recommendations to the Governor in
Council, indicating the terms and conditions on
which it is prepared, with the approval of the
Governor in Council, to issue certificates of public
convenience and necessity, the Board provides for
the Dawson diversion in Conditions 20 and 21 as
follows:
20. The route of the said pipeline within Canada shall be that
route as more particularly described in the said application,
except that, and subject to further direction of the Board,
commencing at the international boundary between the
United States and Canada in the vicinity of Boundary,
Alaska, the pipeline route shall proceed in an easterly direc
tion along Highway 3, or as close thereto as practicable, to
the City of Dawson in the Yukon Territory, from which point
the pipeline shall proceed in a southeasterly direction along
the Klondike Highway, or as close thereto as practicable, to
the vicinity of the junction of the Klondike and Alaska
Highways near the City of Whitehorse in the said Territory.
21. Foothills Pipe Lines (Yukon) Ltd. shall, not later than 1
January 1978, or such other date as the Board, upon applica
tion to it, may fix, prepare and file with the Board with
respect to the Dawson realignment defined in Condition 20:
(a) details of design, route location, compressor station
sites necessary and requisite for such route;
(b) particulars of cost and financing;
(c) an assessment of the probable environmental impact of
the pipeline, including a description of the existing envi
ronment in the defined area and a statement of the meas
ures proposed to mitigate such impact;
(d) an assessment of the probable socio-economic impact
of the pipeline in the defined area and a statement of the
measures proposed to be taken with respect to such
impact. [Vol. 1, pp. 1-187 and 1-188]
The Board's recommendations to the Governor
in Council concerning the proposed agreement
respecting the Dempster link were put in the fol
lowing terms:
First Agreement:
(a) Foothills (Yukon) or any successor company to conduct
feasibility studies with respect to the construction of a natu
ral gas pipeline of no less than 30-inch diameter from the
Mackenzie Delta area parallel to the Dempster Highway
connecting Delta gas to the Foothills (Yukon) mainline at
Dawson City in the Yukon Territory—"the Dempster link".
(b) On or before 1 July 1979, or such later date as may be
approved by the Government of Canada, Foothills (Yukon)
or a subsidiary thereof to make or cause an application to be
made to the National Energy Board for a certificate of
public convenience and necessity to authorize construction of
a pipeline generally along the route of the Dempster High
way and to file all information and material required by the
provisions of the NEB Act and directives of the Board, and if
such certificate is issued to forthwith thereafter and in a
timely manner construct and operate such a pipeline. [Vol. 1,
pp. 1-174 and 1-175]
The appellants, Yukon Conservation Society
and Council for Yukon Indians, have appealed
against the Board's decision with leave of this
Court, pursuant to section 18 of the National
Energy Board Act, R.S.C. 1970, c. N-6, on the
ground that the Board exceeded its jurisdiction in
making recommendations with respect to the
Dawson diversion and the Dempster link when
these proposals were not covered by the applica
tions before it and supported by the necessary
material, and in particular, that the appellants did
not receive sufficient notice and an opportunity to
be heard concerning the Dawson diversion pro
posal. The issues on the appeal are referred to in
the appellants' memorandum on the application
for summary dismissal as follows:
The issue as to whether the National Energy Board can
approve a route which is substantially different from the route
applied for, whether it can do so without giving prior notice and
without an application before it, and whether or not it can
approve the construction of a pipeline without the filing of the
material required by its own rules and procedure is of vital
concern to all future hearings of the National Energy Board,
and all other similar Canadian public tribunals ....
The application for summary dismissal of the
appeal is brought by the National Energy Board.
It is supported by counsel for Foothills Pipe Lines
(Yukon) Ltd., the Alberta Gas Trunk Line
(Canada) Limited and The Alberta Gas Trunk
Line Company Limited, and the Attorney General
of Canada. It is the contention of counsel in
support of the application that the appeal has been
rendered academic by the Northern Pipeline Act.
Courts of Appeal will exercise the power of
quashing or summarily dismissing an appeal where
there is such manifest lack of substance in the
appeal as to bring it within the character of vexa
tious proceedings, or where by a change of circum
stances the issue between the parties or the "sub-
stratum of the litigation" has disappeared, so that
a judgment of the court would not serve any
practical purpose, except as to costs. See National
Life Ass. Co. v. McCoubrey [1926] S.C.R. 277;
Coca-Cola Company of Canada Ltd. v. Mathews
[1944] S.C.R. 385; Oatway v. Canadian Wheat
Board [1945] S.C.R. 204; Canadian Cablesystems
(Ontario) Ltd. v. Consumers' Association of
Canada [1977] 2 S.C.R. 740.
The Northern Pipeline Act establishes a special
administrative and regulatory scheme to carry out
and give effect to an "Agreement Between Canada
and the United States of America on Principles
Applicable to a Northern Natural Gas Pipeline"
(referred to in the Act as the "Agreement"). The
Act establishes a Northern Pipeline Agency to
carry out with the Board the administrative and
regulatory purposes of the legislation. Section 20
of the Act grants certificates of public convenience
and necessity for the pipeline contemplated by the
Agreement. It reads in part as follows:
20. (1) A certificate of public convenience and necessity in
respect of the pipeline is hereby declared to be issued to each
company listed in Schedule II for that portion of the route
indicated in the Agreement in respect of that company.
(2) A certificate of public convenience and necessity
declared to be issued by subsection (1) is deemed to be a
certificate issued pursuant to section 44 of the National Energy
Board Act.
(3) Every certificate declared to be issued by subsection (1)
is subject to the terms and conditions set out in Schedule III.
"Pipeline" is defined by section 2(1) of the Act as
follows:
"pipeline" means the pipeline for the transmission of natural
gas from Alaska across Canada along the route set out in
Annex I to the Agreement and includes all branches, exten
sions, tanks, reservoirs, storage facilities, pumps, racks, com
pressors, loading facilities, interstation systems of communi
cation by telephone, telegraph or radio, and real and personal
property and works connected therewith.
The approved route of the pipeline does not
include the Dawson diversion or realignment, as
appears from the description of that portion of the
pipeline route in Annex I to the Agreement as
follows:
From the Alaska-Yukon border, the Foothills Pipe Lines
(South Yukon) Ltd. portion of the Pipeline will proceed in a
southerly direction generally along the Alaska Highway to a
point near Whitehorse, Yukon, and thence to a point on the
Yukon-British Columbia border near Watson Lake, Yukon
where it will join with the Foothills Pipe Lines (North B.C.)
Ltd. portion of the Pipeline.
This is further confirmed by Condition 2 in
Schedule III of the Act which reads:
2. Subject to condition 18, the company shall cause the
pipeline to be designed, manufactured, located, constructed,
installed and operated in accordance with those specifications,
drawings and other information or data set forth in the applica
tions of Foothills Pipe Lines (Yukon) Ltd., the Alberta Gas
Trunk Line (Canada) Limited, Westcoast Transmission Com
pany Limited, and Alberta Natural Gas Company Limited and
in the submission of The Alberta Gas Trunk Line Company
Limited to the Board, as amended during the Hearing and in
the undertakings given by those companies during the Hearing
or as ordered, directed or approved by the designated officer
and no design, specification, location, drawing •or other infor-
mation or data shall be varied except as ordered, directed or
approved by the designated officer.
There is an apparent allusion to the Dawson
diversion and the advantages which the Board
perceived in it in clause 6(b) of the Agreement
which reads in part as follows:
(b) It is understood that, to avoid increased construction and
operating costs for the transportation of Alaskan gas, the
Pipeline will follow a southern route through the Yukon along
the Alaska Highway rather than a northern route through
Dawson City and along the Klondike Highway. In order to
provide alternative benefits for the transportation of Canadian
gas to replace those benefits that would have been provided by
the northern route through Dawson City, U.S. shippers will
participate in the cost of service in Zone 11.
The Agreement contemplates the construction
and operation of a lateral pipeline to transmit
northern Canadian gas that is referred to in sever
al places as the "Dempster Line". It is to connect
with the pipeline near Whitehorse. Annex II of the
Agreement, which defines the Zones for the pipe
line and the Dempster Line in Canada, describes
Zones 10 and 11 as follows:
Zone 10 Foothills Pipe Lines (North Yukon) Ltd.
Mackenzie Delta Gas fields in the Mackenzie Delta,
N.W.T., to a point near the junction of the Klondike and
Dempster Highways just west of Dawson, Yukon Territory.
Zone 11 Foothills Pipe Lines (South Yukon) Ltd.
A point near the junction of the Klondike and Dempster
Highways near Dawson to the connecting point with the
Pipeline at or near Whitehorse.
From the foregoing I would conclude that the
Northern Pipeline Act has removed the raison
d'être of the appellants' appeal, to use the expres
sion of Laskin C.J.C. in the Cablesystems case,
supra. It has deprived the appeal of any practical
purpose, in so far as the interest of the appellants
is concerned. The Act has not set aside the deci
sion of the National Energy Board but it has given
such effect to it as Parliament intends should be
given to it and has deprived its recommendation
with respect to the Dawson diversion of any fur
ther significance. It is quite clear from the Act and
the Agreement which it implements that that
recommendation has been considered and rejected.
It was at most a recommendation that would
require the submission of further information and
material from the applicants and further inquiry
and opportunity for representations before final
approval. The affidavit in support of the applica
tion for summary dismissal indicates that Foothills
Pipe Lines (Yukon) Ltd. has not submitted the
information that would have been required by
Condition 21 recommended by the Board and
quoted above. The Act grants certificates of public
convenience and necessity for a route that clearly
excludes the Dawson diversion. As a result, the
appellants suffer no possible prejudice from the
Board's recommendation with respect to the
Dawson diversion, and they have thus no further
interest in challenging it. Given the essentially
conditional or tentative nature of the Board's
recommendation with respect to the Dawson diver
sion, and the informational and planning basis that
would have to be laid before any such change in
the route could be approved, it is in my view a
practical certainty that such a change by amend
ment to the Agreement and the Act is not feasible,
at least without further hearing. Not only are the
appellants not prejudiced at the present time by
the Board's recommendation with respect to the
Dawson diversion but they cannot conceivably be
prejudiced by it in the future.
As for the Board's recommendation with respect
to the Dempster link, the Act contemplates the
possibility of a Dempster Line but does not grant a
certificate of public convenience and necessity for
it. We were informed by counsel that Foothills
Pipe Lines (Yukon) Ltd. has agreed with the
Government to apply to the Board for such a
certificate. The application will undoubtedly be
the subject of a hearing at which there will be a
full opportunity for the appellants to make
representations should they desire. The Board's
recommendation with respect to the Dempster link
can have no legal effect on the provision that is
made in the Act for a Dempster Line nor on the
validity of an application for a certificate of public
convenience and necessity and the subsequent dis
position of it by the Board pursuant to a public
hearing.
For all these reasons it is my opinion that the
appeal has been rendered academic and this Court
should decline to hear it. Because of the singular
context in which the issues arise I see no reason to
exercise the Court's discretion to allow the appeal
to proceed on the ground of the general impor
tance of the questions raised.
I would grant the application for summary dis
missal and dismiss the appeal.
* * *
PRATTE J. concurred.
* * *
URIE J. concurred.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.