Administrative Law - Environmental Assessment Office - Approval Process; Environmental Matters - Environmental Assessment Certificate; Judicial Review - Compliance with Legislation - Procedural Requirements and Fairness - Legitimate Expectations

Pacific Booker Minerals Inc. v. British Columbia (Minister of the Environment)

The petitioner, Pacific Booker Minerals Inc., owners of property on Morrison Lake, worked for several years to obtain an environmental assessment certificate under the Environmental Assessment Act, S.B.C. 2002, c. 43 (the "Certificate"), to allow it to construct and operate copper/gold and minerals mine next to Morrison Lake, 65 kilometres northeast of Smithers. In August 2012, the Ministers of Environment and of Energy, Mines and Natural Gas (the "Ministers") received a final assessment report from the Executive Director of the Environmental Assessment Office which concluded that although the project "would not result in any significant adverse effects with the successful implementation of mitigation measures and conditions", the Executive Director nevertheless recommended Ministers refuse to issue a certificate. Based on the Executive Director's report, the Ministers refused to issue the Certificate.

On judicial review, the Court quashed and set aside the Ministers' decision, and ordered that the petitioner's application for a certificate be remitted back to the Ministers for reconsideration, on the basis of procedural fairness grounds. In particular, the petitioner had a reasonable expectation and right to be able to respond to at least the essence of the adverse recommendations and the "additional factors" raised by the Executive Director in his final report. The Court further ordered that the petitioner and the various First Nation group intervenors, be provided with the Executive Director's recommendations to the Ministers, and an opportunity to provide a response to the recommendations.

[2013] B.C.J. No. 2694

2013 BCSC 2258

British Columbia Supreme Court

K.N. Affleck J.

December 9, 2013

The Petitioner, Pacific Booker Minerals Inc., owns mineral tenures on Morrison Lake, in an area claimed as traditional territory by the Lake Babine First Nation. In 2002, it began work towards obtaining an Environmental Assessment Certificate under the Environmental Assessment Act, S.B.C. 2002, c.43 (the "Certificate"), to allow it to construct an open pit mine extracting about 30,000 tonnes of ore daily to produce copper/gold and other minerals concentrate. Over several years, the petitioner worked with the Environmental Assessment Office (the "EAO") as well as other stakeholders to complete the environmental assessment process towards certification. In August 2012, the Ministers received a final assessment report from the Executive Director of the EAO which concluded that although the Petitioner had adequately satisfied concerns related to the potential adverse environmental, economic, social, heritage and health effects of the project and engaged in appropriate public consultation and accommodation of First Nations groups, he would not recommend the issuance of a certificate. In making this decision, the Executive Director also recommended the Ministers consider a number of additional factors raised during the assessment process and adopt a "risk/benefit" approach when weighing these factors, which included location of the project next to a salmon producing lake and long-term environmental liability and risk if the project was unsuccessful. By the time of the final assessment, the Petitioners estimated spending more than $10,000,000 on the environmental assessment process and generating 16,000 pages of application materials, submissions and responses.

The Court allowed the petitioner, and ordered that the Ministers' decision be quashed and set aside, and the Petitioner's application for the Certificate be remitted back to the Ministers for reconsideration, on terms that the Petitioner and First Nations group intervenors be entitled to be provided with a copy of the Executive Director's recommendations, if any, and entitled to provide a written response to the recommendations in advance of a further decision. The Court did not find the Executive Director's reference to "additional factors" and a "risk/benefit" analysis to be ultra vires the authority conferred under the Environmental Assessment Act. However, it found that application process failed to meet procedural fairness requirements as the Petitioner was not given notice of the Executive Director's recommendations nor the opportunity to respond to the final report and the "additional factors" raised. The Court applied the "Factors Affecting the Content of the Duty of Fairness" in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, which included the Petitioner's legitimate expectations that a certain procedure would be followed, noting that the petitioner legitimately believed that if the assessment report concluded that the project would result in no significant adverse effects, the Executive Director would not be overtly hostile to the issuance of the certificate.