Date: 20010216
Docket: A-331-99
CORAM: ROTHSTEIN, J.A.
SHARLOW, J.A.
MALONE, J.A.
BETWEEN:
| ATHABASCA CHIPEWYAN FIRST NATION |
| BRITISH COLUMBIA WILDLIFE FEDERATION AND THE STEELHEAD SOCIETY OF BRITISH COLUMBIA |
Appellants
| - and - |
| BRITISH COLUMBIA HYDRO AND POWER |
AUTHORITY
Respondent
| NATIONAL ENERGY BOARD |
Intervener
Heard at Edmonton, Alberta, on February 14th, 2001.
REASONS FOR NOT ADMITTING NORTHERN RIVER BASINS STUDY
delivered at Edmonton, Alberta, on February 16th, 2001.
REASONS FOR JUDGMENT BY: ROTHSTEIN, J.A.
CONCURRED BY: SHARLOW, J.A.
MALONE, J.A.
Date: 20010216
Docket: A-331-99
Neutral Citation: 2001 FCA 20
CORAM: ROTHSTEIN, J.A.
SHARLOW, J.A.
MALONE, J.A.
BETWEEN:
| ATHABASCA CHIPEWYAN FIRST NATION |
| BRITISH COLUMBIA WILDLIFE FEDERATION AND |
THE STEELHEAD SOCIETY OF BRITISH COLUMBIA
Appellants
| - and - |
| BRITISH COLUMBIA HYDRO AND POWER |
AUTHORITY
Respondent
| NATIONAL ENERGY BOARD |
Intervener
REASONS FOR NOT ADMITTING NORTHERN RIVER BASINS STUDY
ROTHSTEIN, J.A.:
| _. The appellant Athabasca Chipewyan First Nation seeks to refer on this appeal to a study entitled Northern River Basins Study. Excerpts of the Report were referred to in Athabasca's submissions to the National Energy Board. In the Athabasca submission reference is also made to the full text of the Study being accessible at a website that is described. Counsel for Athabasca argues that the reference to the Study being accessible at the website constitutes the filing of the Study with the Board. B.C. Hydro objects to the Study being referred to on appeal because it says it was not filed with the Board when the Board's decision which is under appeal was made. Rule 9 of the National Energy Board Rules of Practice and Procedure, 1995, provides that the filing of a document by electronic communication constitutes filing with the Board. However, the reference in a submission to a document being accessible at a website does not constitute the filing with the Board by electronic means of the document referred to. We conclude that the Study was not filed with the Board. |
| _. The Study was ordered included in the appeal book by order of the Motions Judge on September 2nd, 1999. No reasons were given. Nothing in the order states that the Study was filed with the Board or that it should be admitted as new evidence on appeal. |
| _. The general rule is that on appeal, the Court will consider only material that was before the Board when it made its decision. Upon application, new evidence may be filed on appeal, but the admission of such new evidence is subject to strict limitations that are not applicable here. In any event, there has been no application to introduce the Study as new evidence on this appeal. |
| _. An order to include material in an appeal book does not, unless there is specific reference in the order, elevate the material to the status of evidence that can be considered on appeal. |
| _. The Court orders that it will not have regard to the Northern River Basins Study on this appeal. |
"Marshall E. Rothstein"
J.A.
DATED at Edmonton, Alberta
February 16, 2001.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-331-99
| STYLE OF CAUSE: Athabasca Chipewyan First Nation |
British Columbia Wildlife Federation and
The Steelhead Society of British Columbia v.
British Columbia Hydro and Power Authority
and National Energy Board
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: February 14, 2001
REASONS FOR JUDGMENT BY ROTHSTEIN, J.A.
| CONCURRED IN BY: SHARLOW, J.A. |
MALONE, J.A.
DATED: February 16, 2001
APPEARANCES:
Richard C. Secord for the Appellant,
and Trina Kondro Athabasca Chipewyan First Nation
| Timothy J. Howard for the Appellants |
British Columbia Wildlife Federation and
The Steelhead Society of British Columbia
| Chris W. Sanderson, Q.C. for the Respondent |
and Jeff Christian British Columbia Hydro and Power Authority
| Judith Hanebury, Q.C. for the Intervenor |
National Energy Board
SOLICITORS OF RECORD:
| Ackroyd, Piasta, Roth & Day for the Appellant |
Athabasca Chipewyan First Nation
- 2 -
| Sierra Legal Defence Fund for the Appellants |
British Columbia Wildlife Federation and
The Steelhead Society of British Columbia
| Lawson, Lundell, Lawson for the Respondent, |
| & McIntosh British Columbia Hydro and Power Authority |
| National Energy Board for the Intervenor |
National Energy Board