Law Times

Law TiMes • March 29, 2010 FOCUS PAGE 11 Lawyers watching for impact of MiningWatch Supreme Court ruling offers clarity on environmental assessment process BY DARYL-LYNN CARLSON For Law Times I n what some regard as a trail-blazing decision, the Supreme Court of Canada has provided valuable clarifi ca- tion on the approval process under the Canadian Environ- mental Assessment Act. In MiningWatch Canada v. Canada (Fisheries and Oceans), the high court essentially called on provincial and federal envi- ronmental authorities to better co-ordinate their approval pro- cesses to avoid duplication for applicants. Th e case dealt with the ap- proval process undertaken by the Red Chris mine in British Columbia. MiningWatch Can- ada asserted that federal regu- lators had erred in not under- taking a comprehensive review following the mine's approval by provincial authorities. Lawyers say the decision is signifi cant. "Th e Supreme Court of Canada has fi nally giv- en some clear direction on how the Canadian Environmental Assessment Act should be used," says David Estrin, a senior en- vironmental law practitioner at Gowling Lafl eur Henderson LLP in Toronto. "Th is over- turns previous decisions and has some serious implications as to how the federal process is going to be used in the future." Most importantly, he says, the court has affi rmed the need for federal and provincial co- operation and to blend the proceedings so the applicant doesn't have to go through the process twice. MiningWatch, which alleged the project hadn't completed all environmental assessments with the requisite federal de- partment, challenged the gold and copper mine proposed by Imperial Metals Corp. in north- ern British Columbia. In the decision, Justice Marshall Roth- stein determined there was no justifi cation for requiring the mine's owners to repeat the en- vironmental assessment process after provincial authorities had already approved the project. MiningWatch, along with a coalition of other environmen- tal groups, challenged the fact that the federal government didn't conduct public con- sultations or a full and com- prehensive assessment of the project and instead opted to do a simpler screening of the ap- plication while referencing the provincial approval. Activists were concerned because the mine proposed to turn a trout lake into a holding pond for mining waste while excavating upwards of 30,000 tonnes of earth per day. "Prior to this case, the Federal Court of Appeal had decided in a couple of decisions that feder- al agencies had wide discretion to limit the scope of what could be subjected to federal [envi- ronmental assessment] study," says Estrin. "For example, the CA107 (LT 1-3x4).indd 1 authorities and encouraged federal and provincial authori- ties to co-ordinate their pro- cesses to avoid duplication. "Th is decision is also say- ing federal authorities have to make sure the whole project is assessed in co-operation with the province. Th at's a second reason why the decision is sig- nifi cant, particularly for infra- structure proponents. It should lead to a less complex and more effi cient [assessment] process." Charles Birchall, a partner The MiningWatch decision has 'serious implications as to how the federal process is going to be used in the future,' says David Estrin. Court of Appeal had decided that for an oilsands project, fed- eral agencies could limit the [as- sessment] to impacts of the road that crossed a stream." Estrin adds: "In this case, the Supreme Court said, 'No, that's not correct. If an activity is de- scribed on the comprehensive study list under [the act], federal agencies have no discretion. You can't just focus on a little road and its eff ect on fi sh; you have to look at the whole project.'" Estrin notes the ruling will bring more certainty to the process. He also says the top court made it clear its deci- sion was "not an excuse for two overlapping [environmental assessment] processes at both the federal and provincial lev- els. Th e court observed that [the act] contemplates the use of provincial [environmental assessment] studies by federal and environmental lawyer at Fogler Rubinoff LLP in Otta- wa, affi rms the decision is sig- nifi cant and one even environ- mental groups have applauded for its clarity. "It provides some impetus for co-operation be- tween federal and provincial authorities," says Birchall. "I think that what the de- cision does is provide, impor- tantly, some clarifi cation as to the extent of discretion that au- thorities have to scope a project with respect to s. 15," he says, referencing the act. Moreover, he says, authori- ties will assess projects based on the description provided by the applicant. Th ey'll also be able to enlarge the scope of their review under extraordi- nary circumstances. In a paper he authored that reviews the decision, Birchall noted Rothstein set out three reasons why he didn't order the mine to redo an environmental assessment or conduct any fur- ther public consultations. First, in scoping the project down to a screening process, the responsible authorities had Ontario Environmental Legislation 2009-2010 Consulting Editor: Dianne Saxe This two-volume consolidation offers the most thorough collection of laws available for this highly involved area. 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Secondly, Rothstein asserted that the Red Chris mine did nothing wrong in its approach to the assessment as determined by the federal authorities. Th irdly, it had co-operated fully with provincial authori- ties, the court noted. "Th is is the fi rst time that the Supreme Court of Canada has ruled on any aspect of the [Ca- nadian Environmental Assess- ment Act]," Birchall wrote in his paper. "Th e court has provided a clear interpretation on the is- sue of scoping and the extent to which [responsible authorities] can exercise discretion in relation to this aspect of the environmen- tal assessment process." Birchall notes the Mining As- sociation of British Columbia, the Canadian Environmental Law Association, and Ecojustice all applauded the decision. Nev- ertheless, Sierra Club Canada was disappointed the mine received the green light to proceed. Stephen Hazell, a lawyer with Ecojustice, says the deci- sion is indeed signifi cant. "It's a very important deci- sion because it prevents project splitting," he says. "It's a common-sense read- ing of what people would ex- pect to happen with these en- vironmental decisions." Everyone is now looking at how it will be applied. In his paper reviewing the decision, Birchall concluded: "It will be very interesting to see how, in the future, propo- nents will describe their proj- ects for the purposes of federal environmental assessment and the extent to which [respon- sible authorities] or the minis- ter will use their discretion to enlarge the scope of assessment when required by the facts and circumstances." LT 2010 For a 30-day, no-risk evaluation call: 1.800.565.6967 CA107 Canada Law Book is a Division of The Cartwright Group Ltd. 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• Cover
• Gearing Up
• Cutting Red Tape
• Focus On Energy/Environmental Law