In a judgment released December 9, 2013, the British Columbia Supreme Court has set aside a BC government decision to reject the Morrison copper/gold mine project (the Project) proposed by Pacific Booker Minerals (PBM). The application for an environmental assessment certificate (EAC) originally submitted by Pacific Booker Minerals in 2009 will be remitted to the BC Ministers of Environment and Energy and Mines for reconsideration.

The decision in question was issued in September 2012 by BC Environment Minister Terry Lake and BC Minister of Energy and Mines and Ministry Responsible for Housing, Rich Coleman, (the Ministers) pursuant to the recommendations of the Executive Director of the BC Environmental Assessment Office (EAO). This situation was particularly unusual in that: the conclusion of the Environmental Assessment Office (EAO) was that the project would result in “no significant adverse effects”; but the Executive Director of the EAO (the Director) recommended rejection; and the Minister’s rejected the project. That decision was discussed in detail in a previous bulletin.

In April 2013 PBM applied for judicial review of the unfavourable decision, focusing on the Director’s recommendation to the Ministers. PBM argued that the Director’s recommendation was both outside of his authority under the Environmental Assessment Act, and contrary to the requirement of procedural fairness. A hearing held before Mr. Justice Affleck in the BC Supreme Court in Vancouver, August 7-9, 2013, led to the decision released December 9, 2013.

While Justice Affleck did not find that the executive director had overstepped his bounds in making the recommendations, the judge did conclude that the Director’s referral of his recommendations to the Ministers was not in compliance with his duty of procedural fairness towards PBM. Several points in Justice Affleck’s decision help to shed light on the sometimes uncertain environmental assessment process.

Authority of Executive Director

The Director has authority, pursuant to s. 17(2) of the  Environmental Assessment Act, to make recommendations that depart from the assessment report emerged intact. The Court concluded that the Director’s interpretation of his own authority was rational. The Act does not preclude the Director from making recommendations that are inconsistent with the assessment report prepared by the EAO; rather, the Ministers should have the benefit of the Director’s experience and expertise, and the Director presumably has “advice to offer to the ministers which may not be limited to what they can read for themselves in the assessment report” (para 124).

PBM was also unsuccessful in arguing that the Director was wrong to recommend that the Ministers use a “risk/benefit” analysis in considering the additional factors highlighted in the recommendation. Justice Affleck was clear that this analysis should not have come as a surprise, stating: “I view the entire environmental assessment process, and the decision-making role of the ministers following receipt of a report, along with the executive director’s recommendations, as a “risk/benefit” analysis” (para 126).

Procedural Fairness

On the issue of procedural fairness, Justice Affleck confirmed that the common law rules of procedural fairness are not supplanted by the Environmental Assessment Act, and considered the five factors outlined in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC). Specifically, the following factors mandated a higher level of fairness than was afforded PBM in this case:

  • the lack of procedure for an appeal from the Ministers’ decision;
  • the significance of the impact of the Ministers’ decision on PBM’s business;
  • the legitimate expectations of PBM, after several years of a high level of participation in the assessment process, that they would have an opportunity to be informed and heard when serious concerns were expressed about the project (particularly given the existence of the EAO’s “user guide” and “fairness and service code” which indicate that the EAO will advise the proponent early on if a project is unlikely to receive a favourable recommendation); and
  • the limited inconvenience that would have resulted from giving PBM the opportunity to provide a written response to the Director’s recommendations prior to the referral to the Ministers.

As a result, PBM’s Environmental Assessment Certificate application will be remitted to the Ministers for reconsideration. Both PBM and the interveners (Lake Babine Nation, who supported the ministers’ decision) will be entitled to review and provide written response to any additional recommendations the Director makes to the Ministers.

Conclusion

This is undoubtedly a positive outcome for PBM. The company’s stock value surged following the decision’s release, and the company has expressed optimism that reconsideration will result in a different outcome. The BC Ministry of Environment has so far refused to comment on the decision, but BC’s current Minister of Energy and Mines has this week underscored the government’s support for mining development with a trip to Ottawa to encourage the federal government to approve Taseko Mines’ proposed New Prosperity copper and gold mine.

Despite this optimism, the factors that contributed to the Director’s negative recommendation remain unchanged. Some of the significant concerns included the substantial and long-term environmental liabilities associated with the project and “in-perpetuity” nature of water treatment required, environmental uncertainty with respect to circulation in Morrison Lake, and the genetically unique salmon population at risk.

Whatever the outcome for this project the decision is certainly a positive one from the perspective of other proponents involved in the environmental assessment process. Most likely, the EAO will pay increased attention to ensuring that proponents are informed and involved throughout the process, and any late-stage “surprises” will be avoided by additional notice and opportunity for response.