SCC to Tackle Public Consultation Requirements in Environmental Assessments

Last Thursday, the Supreme Court of Canada (“SCC”) approved leave to appeal in MiningWatch Canada, et al v Minister of Fisheries and Oceans, et al (see 2008 FCA 209). The case deals with the requirements of the environmental assessment procedures laid out in the Canadian Environmental Assessment Act, SC 1992, c 37 [CEAA]. Specifically, the issue was whether the federal authorities responsible for environmental assessments can lower the level of assessment from a comprehensive study to a screening level study, the effect of which would remove the requirement of public consultation laid out in s. 21.

Facts

The Red Chris project is an open pit gold and copper mining operation proposed for north-western British Columbia. In 2003, the proponents of the project submitted a project description to the BC Environmental Assessment Office (“BCEAO”), which the BCEAO decided would require an environmental assessment certificate before proceeding. Since the scope of the project also included the construction of starter dams related to tailings impoundment and stream crossings, the project also required federal environmental approval from the Department of Fisheries and Oceans (“DFO”).

On May 21, 2004, the DFO posted a “Notice of Commencement of an environmental assessment” on its “Registry” (an Internet site used for the purpose of allowing public access to environmental assessment records). On the notice, it indicated that a review level of a comprehensive study would be required. Additionally, on May 31, 2004, the DFO asked other federal departments if the project was of any relevance to them. In the letter, the DFO again indicated that it would require a comprehensive study.

The DFO then changed the scope of its intended assessment on December 9, 2004. In doing so, it indicated that a screening report as specified in s. 18 would be sufficient. The change was motivated by further review of the project, new fisheries information, and the decision of the Federal Court in Prairie Acid Rain Coalition v Canada (Minister of Fisheries and Oceans), 2004 FC 1265 [TrueNorth].

On July 22, 2005, the BCEAO issued its assessment report after an extensive assessment which included input from certain federal departments. The conclusion of the report was that the project is not likely to cause significant adverse environmental effects. Accordingly, on August 24, 2005, the provincial assessment certificate was issued.

The federal environmental assessment came to a similar conclusion. After a specific invitation to the Tahltan Band Council and Iskut First Nation to comment on a draft, the screening report was produced on or around April 16, 2006. The federal authorities subsequently issued a Course of Action decision which allowed the proponents to proceed to apply for the appropriate federal licenses.

Procedural History

On June 9, 2006 a notice of application for judicial review of the Course of Action Decision was filed by MiningWatch, a non-profit society interested in the environmental, social, economic, health and cultural effects of mining and in particular its effects on indigenous people.

On September 25, 2007, the applications judge allowed the judicial review. The judge reasoned that the DFO’s initial determination that a comprehensive study level review was required, which was based on the fact that proposed ore production of up to 50,000 tonnes/day exceeded the prescribed threshold of 600 tonnes/day, was correct. As such, the applications judge concluded that the duty of public consultation for comprehensive studies as laid out in s. 21 applied.

Analysis of the Federal Court of Appeal

The FCA had to determine the impact of a 2003 amendment to s. 21 of the CEAA. Section 21(1) reads,

21.(1) Where a project is described in the comprehensive study list, the responsible authority shall ensure public consultation with respect to the proposed scope of the project for the purposes of the environmental assessment, the factors proposed to be considered in its assessment, the proposed scope of those factors and the ability of the comprehensive study to address issues relating to the project.

The difficulty came in determining whether the scoping of the project preceded the determination of whether the project needed a screening or a comprehensive study. That is, whether the term “project” above means “project as scoped”.

The court concludes,

I therefore read subsection 21(1) as indicating that where the project “as scoped” is described in the Comprehensive Study List Regulations, [SOR/94-638] subsection 21(1) as amended applies and a public consultation is required.
…
In the case at bar, the RAs [responsible authorities] first determined in May 2004 that the project required public consultation. Following receipt of further information and the release of the decision of the Federal Court in the TrueNorth case, the project was “rescoped”. As a result, it was determined that the project “as rescoped” fell under the purview of the screening process. The RAs in doing so exercised their discretionary power to “scope” and “rescope”. They made no error in doing so. (paras 53-54)

Public Perceptions and Looking Forward

Different perspectives on the case are being voiced on the internet. On its website, MiningWatch hails the granting of the leave to appeal as marking the significance of environmental issues across the nation. They observe that a “simple” screening level assessment without public consultation is inadequate for gauging potential detrimental environmental effects. In contrast, Imperial Metals Corporation issued a press release focusing in on the fact that the provincial assessment was very extensive and also, that the FCA decision indicated that federal legislation had been complied with.

It’ll be interesting to see how the SCC decides this case. With environmental concerns increasingly growing in the public’s eye, and at the same time, natural resources contributing a large part to Canada’s economy, many interested onlookers will be watching to see the dictates that come from the SCC.