Mining Watch Canada v. Canada (Minister of Fisheries and Oceans) 2010 SCC 2 Supreme Court Justice(s): Binnie, LeBel, Fish, Abella, Charron, Rothstein and Cromwell

The Supreme Court held appeal should be allowed. The CEAA and regulations require that the environmental assessment track be determined according to the project as proposed; it is generally not open to a responsible authority to change that level. An interpretation which provides that the word 'project' in s. 21 of the CEAA means 'project as proposed' by the proponent, rather than 'project as scoped' by the responsible authority, is consistent with the statutory definition of that word in s. 2 of the CEAA, and with Parliament’s intent as found in the respective roles of the responsible authority and the Minister in conducting environmental assessments under the CEAA. Where, as here, a project as proposed is listed in the CSL, the requirements in s. 21 are mandatory. The responsible authority or Minister cannot reduce the scope of the project to less than what is proposed by the proponent. In the present case, the federal environmental assessment should have been conducted for the project as proposed by the proponent. Since the proposed project was described in the CSL, the requirements of s. 21 applied. The responsible authority was free to use any and all federal provincial coordination tools available, but it was still required to comply with the provisions of the CEAA pertaining to comprehensive studies. By conducting a screening, the responsible authority acted without statutory authority. In exercising his discretion to grant the relief he did, the trial judge did not take account of a number of relevant and significant considerations and granted broader relief than was appropriate. Mining Watch has brought this judicial review as a test case of the federal government’s obligations under s. 21. They made a strategic decision not to challenge the substantive scoping decision. When all the relevant considerations are taken into account, the appropriate relief is to allow the application for judicial review and declare that the responsible authority erred in failing to conduct a comprehensive study. The focus of Mining Watch’s interest as a public interest litigant is the legal point to which the declaration will respond and there is no justification in requiring the proponent of the project to repeat the environmental assessment process when there was no challenge to the substantive decisions made by the responsible authority.

Country
Canada
Type of law
Legislation
Source
FAO , InforMEA
Abstract
In order to develop a copper and gold open pit mining and milling operation in British Columbia, a mining company submitted a project description to the BC Environmental Assessment Office. Public comment was sought and the Office subsequently determined that the project was not likely to cause significant adverse, environmental, heritage, social, economic or health effects and issued a provincial environmental assessment certificate. The company also submitted to the federal Department of Fisheries and Oceans applications for dams required to create a tailings impoundment area. Initially, the Department stated that a comprehensive study was required because the project fell within the provisions of the Comprehensive Study List Regulations (CSL) promulgated under the Canadian Environmental Assessment Act (CEAA). It subsequently scoped the project as to exclude the mine and mill and, given this, concluded that a comprehensive study was no longer necessary and that the assessment would proceed by way of screening. Additional public comment was not sought and the screening instead relied on information collected through the cooperative federal/provincial environmental assessment process. The federal screening report concluded that the project was not likely to cause significant adverse environmental effects and the responsible authority made the decision to allow the project to proceed. Mining Watch filed an application for judicial review of the decision to conduct a screening rather than a comprehensive study. The Federal Court allowed the application, concluding that the responsible authority had breached its duty under the CEAA by scoping the environmental assessment so that it only required a screening. The Federal Court of Appeal set aside the decision.
Date of text
Repealed
No
Legislation Amendment
No