Notice of Application & Charter Notice

Notice Of Application & Charter Notice (opens as a PDF in your web browser)

The Notice of Application and Charter Notice sets out the Orders we are seeking from the court, and provides a summary of the “Factual Basis” or the evidentiary grounds of our case at pages 3-24. It outlines the “Legal Basis” of our case at pages 25-55.

We are seeking the right to call evidence at trial about the substantial growth of oil sands emissions that will occur in Canada if bitumen production in Alberta continues to expand to 2040 as currently projected, and evidence about whether that expected growth is consistent with meeting Canada’s 2030 emissions target as promised under the Paris Agreement of 2015. Key points about the significance of oil sands emissions, which we intend to prove at trial if we are permitted to call this evidence, are found at paragraphs 2 to 8 in the Notice of Application. (Details of the proposed evidence about oil sands emissions are set out in Parts 1-5 of the Outline of Proposed Evidence, and also in Appendix A, C, and D of the Outline.)

The “Factual Basis” section of the Notice of Application outlines the proposed evidence that will show Canada’s currently projected expansion of oil sands production to 2030 and to 2040 (which provides the economic rationale for the approval of the Trans Mountain project) is not compatible with keeping the increase global average surface temperature to less than 2°C. This is covered in paragraphs 46 and 71-74 in the Notice of Application (and in greater detail in the Outline, Part 13 and Appendices M, N, and O).

Further, at paragraphs 9 to 28, the Notice of Application points to other available evidence about the present trend of global GHG emissions, to scientific evidence about the rising level of atmospheric carbon, and to evidence about the current rate of global warming. This evidence, if called at trial, will show unequivocally that the world is not on track to keep the increase in global warming to less than 2°C – and that the existing emissions reduction commitments made by all countries (including Canada’s 30% reduction commitment) amount to only about one-third of the deep cuts required by 2030 to meet that goal. That huge shortfall is referred to as the global emissions “gap”. The available evidence also shows that unless global oil production begins to decline in absolute terms by about 2020, the world will be unable to keep the surface temperature increase to less than 2°C.

In the “Legal Basis” section, our analysis of the key elements of the necessity defence is found at pages 27-29. Ultimately, the main legal question is whether there exists an imminent peril of such gravity and consequence that it can excuse an act that disobeys the law. The court must also be satisfied, in the particular circumstances of this case, that by the spring and summer of 2018 no lawful alternative kind of activity remained that offered any reasonable or viable means to halt the construction of the Trans Mountain project, which will embark Canada on its ambitious plan to continue expanding its crude oil production to 2040.