Introduction

In MiningWatch Canada v Canada (Fisheries and Oceans) 2010 SCC 2, released January 21, 2010, the Supreme Court of Canada delivered an important ruling, deciding that the environmental assessment track under the Canadian Environmental Assessment Act, S.C. 1992, c. 37 (“CEAA”) is to be determined by the project as proposed by a proponent (which, in this case, required a comprehensive study), and is not to be based upon a discretionary scoping decision by a federal authority (which would have resulted in the requirement for a screening only).

Of particular significance is the fact that despite this ruling, the Court allowed the mining project to proceed on the basis of a previous screening and did not require a comprehensive study.

Background Facts

Red Chris Development Company and BC Metals Corporation (“Red Chris”) sought to develop a copper and gold open pit mining and milling operation in northwestern British Columbia.

Red Chris had submitted a project description to the BC Environmental Assessment Office. It was advised that the project would require an environmental assessment certificate. Terms of reference were prepared, public consultation was conducted and an environmental assessment was released which concluded that the project “is not likely to cause significant adverse, environmental, heritage, social, economic or health effects”. An assessment certificate was issued.

Red Chris had also triggered the federal environmental assessment process by submitting to the Department of Fisheries and Oceans (“DFO”) applications for dams required to create a tailings impoundment area. DFO concluded that a federal environmental assessment by way of a comprehensive study would be required since the project’s proposed ore production was in excess of the amount specified in the Comprehensive Study List Regulations, SOR/94-638 (“CSL”).

Natural Resources Canada (“NRCan”) announced that it was also a responsible authority since Red Chris required an approval under the Explosives Act, R.S.C. 1985, c. E-17. DFO and NRCan were about to commence the comprehensive study when DFO advised that it had scoped the project and had excluded the mine and the mill. As a result, a comprehensive study was no longer necessary. The assessment proceeded by way of screening only.

The federal screening report was released. The responsible authorities did not seek additional public comment, relying instead on the BC environmental assessment and the public notice and responses under it. The report concluded that the project was not likely to cause significant adverse environmental effects. It was allowed to proceed.

The Appellant, MiningWatch Canada (“MiningWatch”), a nonprofit society interested in the environmental and other effects of mining, filed an application in the Federal Court for judicial review of the decision to conduct a screening rather than a comprehensive study. It alleged that the responsible authorities had breached their duty under the CEAA to conduct a comprehensive study and to consult the public on the scope of the assessment.

The Federal Court, per Martineau J. (2007 FC 955, [2008] 3 F.C.R. 84), allowed MiningWatch’s application for judicial review, quashed the decision of DFO to issue permits and approvals and prohibited further action until a public consultation under s. 21 had been conducted and a comprehensive study completed.

Desjardins J.A., writing for a unanimous Federal Court of Appeal, allowed the appeal, holding that the term “project” under section 21, means “project as scoped” by a federal responsible authority. A comprehensive study and public consultation were not required. MiningWatch appealed.

The Procedural Options Under the CEAA

The CEAA was described by the Supreme Court as:

. . .a detailed set of procedures that federal authorities must follow before projects that may adversely affect the environment are permitted to proceed. The CEAA and its regulations provide for different levels of intensity with which environmental assessments are to be performed depending upon the nature of the project under scrutiny. In practice, the intensity with which an environmental assessment should be conducted determines the “track” on which the assessment proceeds, whether by screening, comprehensive study, mediation or review panel.

Five potential procedural options or tracks for environmental assessment are set forth in the CEAA. Ranging from the least to most intensive, these are: a) no assessment; b) screening; and c) comprehensive study, mediation and review panel.

Interpretation of Section 21

Section 21 of the CEAA sets out the procedure which must be followed for an environmental assessment where the project is listed in the CSL, including the requirement of a comprehensive study. It provides in part as follows:

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.

Section 15 of the CEAA grants the discretion to “scope” a project (i.e. define what aspects of the project will be included in the federal environmental assessment).

The government and Red Chris argued that section 15(1) precedes section 21 and therefore includes the discretion to “track” the project (i.e. determine the level of intensity of the assessment) in addition to “scoping” it. It argued that even though a project as proposed by a proponent (in this case a mine and mill) appears in the CSL, it is open to a responsible authority to scope the project for federal environmental assessment purposes in a more limited way so that the project as scoped no longer falls within the CSL, thereby requiring a screening but not a comprehensive study.

The Supreme Court disagreed. It held that since the definition of “project” in section 2 of the CEAA, “any proposed construction...”, expressly uses the word “proposed”, “project” means “project as proposed by the proponent” and not “project as scoped by the responsible authority under section 15”. The language in the regulations was consistent with that interpretation. As such, the determination of whether a project requires a comprehensive study is not within the discretion of the responsible authority. If the project as proposed is listed in the CSL, a comprehensive study is mandatory, and the requirements of section 21 apply, including conducting a comprehensive study.

Relief

MiningWatch had no proprietary interest in the outcome of the proceedings. It did not participate in the environmental assessment. There was no evidence of any dissatisfaction with the environmental assessments or assessment process. MiningWatch brought the application for judicial review as a “test case” of the government’s obligations under section 21. It made a strategic decision to not challenge the substantive scoping decision. As such, it was held that the appropriate relief was to allow the application for judicial review and to declare that the responsible authority had failed to conduct a comprehensive study. No further relief was warranted. There was 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. The project was allowed to proceed based only on the screening which had previously been conducted.