No Quash, how BC handles this is next question. I have concluded that the judge did not make a reviewable error, but that Tsleil-Waututh has had the effect of shifting the ground on which the Province’s Environmental Assessment Certificate, with its conditions, was issued. The question now is the order that we should make.
[99] The parties accept that British Columbia cannot prevent or impede construction or operation of the pipeline. At the hearing of the appeal, Squamish accepted that this court does not need to quash the Certificate. Further, Squamish agree their concerns arising from Tsleil-Waututh apply to operational, not construction issues. I note however, that in their further submissions on the effect of the Reference, Squamish revive their petition request for an order quashing the Certificate, so as to permit the Minister to order further assessments. On the latter request, I understand the further assessment proposed had been proposed to the National Energy Board, and rejected in favour of ongoing study, adaptation, monitoring and Project lifecycle supervision. I am of the view that the Province cannot order assessments that the National Energy Board expressly refused to order. I would not open the Certificate to that degree.
[100] Section 5(1) of the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, empowers the court to direct a decision maker whose act or omission is being reviewed to reconsider or determine any part of a matter to which the judicial review relates. That being so, I would not quash the certificate but would remit the matter to the Ministers to permit them to reconsider the Certificate’s conditions in light of the changes in the National Energy Board’s report consequent on Tsleil-Waututh.
Conclusion
[101] For the reasons above, I would not quash the Environmental Assessment Certificate but would allow the appeal to the limited extent of remitting the conditions in the Environmental Assessment Certificate (Schedule B to E17-01) to the Ministers for reconsideration and consequent adjustment in light of the changes to the original report of the National Energy Board as set out in its reconsideration report.
“The Honourable Madam Justice Saunders”