Executive Summary: Key Legal and Evidentiary Issues

• Judicial review was sought over the BC Energy Regulator's approval of pipeline construction without a current cumulative effects assessment.

• Petitioners challenged the decision related to Section 5B of the pipeline, which runs exclusively through Nisga’a Lands.

• The court focused solely on whether the petitioners had public interest standing to bring the case.

• It found no serious justiciable issue, as the decision was narrow, administrative, and specific to Indigenous-owned lands.

• The petitioners lacked a direct or substantial interest in the lands affected by Section 5B.

• Costs were awarded against the petitioners due to the unnecessary burden placed on private respondents defending their interests.

Facts and outcome of the case

Background and parties involved

This case concerned a judicial review application brought by three petitioners: the Skeena Watershed Conservation Coalition, the Kispiox Valley Community Centre Association, and the Kispiox Band. These organizations opposed the BC Energy Regulator’s (BCER) decision to allow construction on a section of the Prince Rupert Gas Transmission pipeline, known as Section 5B, without requiring an updated cumulative effects assessment. The pipeline project is a major natural gas infrastructure project intended to transport gas across British Columbia to a proposed LNG export facility on Nisga’a Lands.

Section 5B of the pipeline lies entirely within Nisga’a Lands and is the subject of agreements between the project proponent, Prince Rupert Gas Transmission Ltd. (PRGT Ltd.), and the Nisga’a Nation, who support the project. The Nisga’a Nation is a treaty signatory with constitutionally protected land and governance rights. The BCER had previously imposed a condition on the permit for Section 5 requiring a cumulative effects assessment before construction. However, it later deemed the condition fulfilled based on submissions from PRGT Ltd. and the Nisga’a Lisims Government.

Petitioners’ legal arguments

The petitioners did not oppose the entire pipeline project but objected to the regulator’s decision to permit construction on Section 5B without a refreshed cumulative effects review. They argued that environmental effects from construction would extend beyond Nisga’a Lands and affect broader ecosystems in the Skeena and Kispiox regions. The petitioners applied under public interest standing, as they did not claim a direct legal right or title over the affected lands.

Standing and scope of judicial review

The court did not address the merits of the BCER’s decision but focused solely on whether the petitioners had legal standing to bring the case. It applied the standard public interest standing test, examining three criteria: whether there was a serious justiciable issue, whether the petitioners had a genuine interest in the issue, and whether the proceeding was a reasonable and effective means of bringing the issue before the court.

The court held that the petitioners failed all three parts of the test. The issue raised—a regulator’s administrative interpretation of a permit condition related to a specific parcel of land—was too narrow to qualify as a serious issue of public importance. The petitioners had no direct stake in Section 5B, which does not pass through their communities or watersheds. Furthermore, their concerns about broader environmental impact could be raised if and when construction on Section 5A proceeds, which does affect their region.

Outcome and cost consequences

The court dismissed the petition for lack of standing. It found that although the petitioners had genuine environmental concerns, they were not sufficiently connected to the specific permitting decision to justify judicial intervention. Since PRGT Ltd. and the Nisga’a Lisims Government were forced to defend their commercial and governance interests in court, the court awarded them costs against the petitioners on Scale B, the standard litigation cost scale in British Columbia.

No damages were awarded, as this was a judicial review proceeding. The BC Energy Regulator, while a respondent, did not seek costs and was not awarded any.