The Federal Court of Appeal’s decision in Sierra Club Canada Foundation v. Canada (Environment and Climate Change), 2026 FCA 110[1] underscores that major project approval processes are to be disciplined as well as participatory. It is incumbent on participants, including Indigenous groups, to raise their concerns in a timely, responsive and meaningful way. Failure to do so is a factor the courts will consider in assessing challenges to a project approval on judicial review, with late and speculative concerns providing a weaker basis on judicial review to overturn a project approval.
Background
The case arose from the federal approval of Equinor’s Bay du Nord offshore oil project 500 km east of Newfoundland. The appellants, Sierra Club Canada Foundation and Mi’gmawe’l Tplu’taqnn Inc. (MTI), challenged the approval on the basis that the environmental assessment report was deficient and that the Crown had failed to adequately consult and accommodate Indigenous concerns. Among other things, the appellants argued that the assessment failed to properly consider marine shipment and downstream greenhouse gas emissions from the extracted oil. The Federal Court of Appeal upheld the decision below that dismissed the application for judicial review.
Timeliness
For proponents, the most practically significant aspect of the decision is the Court’s discussion of timeliness. Equinor argued that the appellants raised marine shipment and downstream greenhouse gas issues too late in the assessment process and should have been barred from advancing those arguments on judicial review. The Court did not dismiss the appeal on that basis, but accepted that environmental assessment processes are intended to be both meaningful and timely.
The Federal Court of Appeal was clear that participants with concerns must raise them in a timely, responsive and meaningful way. Raising an issue late in the process, or raising it only in a fleeting or general way may negatively affect that participant’s later judicial review seeking to quash an approval because the delay and/or lack of diligence in raising a concern may signal that the issue was not important enough to render the decision unreasonable.
Remote and speculative effects and their consultation implications
The Court also distinguished the case from Tsleil-Waututh Nation,[2] where marine shipping associated with the Trans Mountain expansion project was found to be part of the project requiring assessment. Bay du Nord was materially different. It is located far offshore, well beyond the Canadian coast, and the destination of the oil was uncertain. The Agency had assessed vessel movements and offloading within the project safety zone, but location of Bay du Nord, 500 km from Canada’s coast, meant Canada had no legislative authority over those waters. The Court accepted that broader marine shipping issues were more remote and speculative in this context.
The Court reached a similar conclusion on consultation. It accepted that the Crown owed a duty to consult MTI, but held that the duty was at the low end of the spectrum. The project was 640 to 2,000 km from MTI’s traditional territory and communities, and MTI had no treaty rights in the project area. The potential impact on MTI’s rights depended on effects on species of importance to MTI, particularly Atlantic salmon, that might migrate through the project area and later be harvested. The Agency found the likelihood and magnitude of those effects to be low, and the Court accepted that speculative impacts should not drive the depth of consultation.
What this means for proponents
The Federal Court of Appeal’s commentary on timeliness may help regulators and project proponents reduce the impact of late-raised concerns in future regulatory proceedings and subsequent judicial reviews. It does not mean that late-raised concerns can be ignored, particularly where constitutional consultation obligations are engaged. But it does give proponents and regulators additional support for the proposition that administrative processes require a standard of timeliness from all participants. Concerns should be raised at the appropriate time and developed meaningfully within the process established by the decision-maker.
The decision arose under the Canadian Environmental Assessment Act, 2012, and some care will be needed before applying all aspects of the reasoning under the current Impact Assessment Act. However, the broader administrative law message is likely to resonate to other contexts. Writing in obiter for the “practical assistance to parties” in future proceedings, the Court stated that the act is “not to be interpreted and applied as if it were a long, multi-year stoplight to delay projects just for the sake of delay.”
For proponents of energy, mining, electricity and major infrastructure projects, the takeaways are practical. First, late, fleeting or underdeveloped objections may attract less weight on judicial review. Second, proponents should respond to late-raised concerns where appropriate, but raise objections about timeliness and prejudice to the assessment process. Third, proponents should highlight where effects are speculative, geographically remote or dependent on future third-party conduct. Each of these can assist in obtaining project approval and defending that approval on judicial review.
At a time when the federal government has been emphasizing faster and more efficient reviews of major projects, Sierra Club provides useful judicial support for disciplined regulatory processes. The decision does not lower the standard of review for project approvals or diminish the importance of environmental assessment and Indigenous consultation. But it does reinforce that participants must engage with those processes in a timely and meaningful way, and that late, fleeting or speculative objections may receive limited traction on judicial review.
For more information on this topic, please reach out to David Konkin.
[1] Sierra Club Canada Foundation v. Canada (Environment and Climate Change), 2026 FCA 110.
[2] Tsleil-Waututh Nation v Canada (Attorney General), 2018 FCA 153.
