In Miningwatch Canada v. Minister of Fisheries and Oceans, 2007 FC 955, MiningWatch Canada, a federally registered non-profit society based in Ottawa, successfully applied in Federal Court for judicial review of a scoping decision of the proposed Red Chris Development Company Ltd. (RCDC) copper and gold mine in Northern British Columbia. In ruling that the federal Responsible Authorities (RAs) incorrectly selected a “screening” level Environmental Assessment (EA) for the proposed project, the Federal Court effectively held that the determination of the need for a screening or a comprehensive study is to be made on the basis of the complete project as proposed by the proponent, rather than the project as scoped by the RA. The decision is under appeal.
Implications for Proponents
The key point in this decision regards the precedence of the determination of the scope of the project by the RA, pursuant to s.15(1) of the Canadian Environmental Assessment Act (CEAA), versus the determination of the appropriate review track (i.e., screening or a comprehensive study). Prior to this decision, it had been the practice of RAs to determine the scope of the project first and then determine whether the project, as scoped, was included in the Comprehensive Study List Regulations (CSLR). Some RAs, notably Fisheries and Oceans Canada (DFO), exercised an approach of “scoping to triggers,” whereby the scope of the project included those components of the proposal directly related to the powers, duties or functions referred to in s. 5 of the CEAA. This approach had the effect of avoiding the extension of federal review into areas of provincial jurisdiction that would otherwise, but for the need for the federal authorization, not be subject to federal review. The determination of the review track was then made on the basis of the project as scoped by the RAs so that, in many cases, the environmental assessment proceeded by way of a screening.
The effect of the current decision is to make the review track determination precede the scoping of the project by the RA. The determination of the need for a screening or a comprehensive study is to be made on the basis of the complete project as proposed by the proponent, rather than the project as scoped by the RA. The implications of this approach to proponents is twofold: (1) the recent practice of scoping to triggers likely will be abandoned in favour of broad scoping encompassing all project components; and (2) the reach of federal environmental assessment will be extended, potentially overlapping with provincial environmental assessment.
This likely will result in a greater number of environmental assessments proceeding as comprehensive studies, with an increase in the concomitant duty to undertake public consultation. This decision represents a significant limitation on the discretion of the RA to determine the scope of the project for purposes of an environmental assessment, in addition to appearing to constrain the ability of the RA to change the level of review in light of new project information. Therefore, in the interests of process certainty, project proponents should consider carefully the scope of the project “proposed” to federal regulators from the outset.
The RCDC project consists of an open pit copper and gold mine. Toxic mining waste or “tailings” from the proposed project would be disposed of in a specially created “tailings impoundment area” (TIA) lake which would submerge several creeks and fish habitat within a valley. The federal RAs under the CEAA are DFO and Natural Resources Canada (NRCan). For the project to proceed, DFO must issue a harmful alteration, disruption or destruction (HADD) permit with respect to fish habitat under s. 35(2) of the Fisheries Act; NRCan must issue a licence for the project’s explosives requirements under s. 7(1)(a) of the Explosives Act; and the Governor in Council must officially approve the proposed TIA as per s. 36(5) of the Fisheries Act and the Metal Mining Effluent Regulations to the Act. Each of these project permit needs triggers the requirement under ss. 5(1) and 5(2) of the CEAA to conduct an EA
There are several levels of environmental scrutiny under the CEAA. On examination of the application, a “scoping decision” is made to establish the appropriate level of EA under s. 15(1)(a) of the CEAA The RAs initially reviewed the project as a “comprehensive study” under s. 21 of the CEAA instead of a less rigorous “screening” under s. 18 of the CEAA in accordance with the project’s CSLR triggers (see ss. 9 and 16(c) of the CSLR). In particular, the total volume of water to be diverted was greater than 10 million cubic metres, and the project would process, on average, more than 600 tons/day of ore. Section 21 of the CEAA requires public consultation on the proposed scope if the project is on the Comprehensive Study List (CSL)
Environmental Assessment via Screening
However, DFO, as lead RA, determined on December 9, 2004 that the project mine and mill would not form part of the project scope. Absent the CSL triggers, the project could be assessed at a screening level of assessment. A scoping decision to this effect was issued on March 15, 2005. It is the validity of this decision that is at the heart of this case.
The complete provincial environmental assessment, released on July 22, 2005, concluded that the project would have “no likely significant adverse effects upon the environment” and stated that federal RAs expected to come to the same conclusion. The federal RAs produced their Screening Report on April 16, 2006. On May 2, 2006 the RAs took a “course of action decision” and determined that, after mitigation, the project was not likely to cause significant adverse environmental effects (see s. 20(1)(a) of the CEAA). The decision also stated that the public consultation conducted by RCDC and the province had been adequate.
Environmental Assessment via Comprehensive Study
In the absence of specific federal public consultation, MiningWatch Canada applied to the court to quash the Course of Action Decision, prohibit the project under s. 5(1)(d) or s. 5(2) of the CEAA or, in the alternative, compel compliance with s. 37(1)(a) of the CEAA in permitting the project to proceed. The trial judge ruled that if a proposed project is contemplated by the CSLR, the environmental assessment must be carried out by means of a comprehensive study, and while the RA may amend the project scope, the CEAA does not allow RAs to “downgrade” the review track from a comprehensive study to a screening. The trial judge therefore was not required to rule about the “inexistent” evidence justifying the removal of the project mine and mill from DFO’s project scope.
This interpretation of the CEAA ignored the statute’s goals of harmonizing EAs with provincial assessments and avoiding wasteful duplication, as was recently emphasized by the Federal Court of Appeal in its decision in Prairie Acid Rain Coalition v. Canada (Minister of Fisheries and Oceans (PARC). In that case, environmental groups challenged the scope of a DFO screening, arguing that a necessary HADD obliged the EA to define the project as consisting of the entire oil sands undertaking, rather than only the destruction of a creek. The Federal Court of Appeal noted the provincial environmental assessment and stated that a limited scope of review, pursuant to broad regulatory discretion under s. 15 of the CEAA, was consonant with federalism and shared environmental jurisdiction (leave to appeal the decision was denied by the Supreme Court of Canada).
Indeed, in this case, the Crown and RCDC submitted that an RA enjoys wide latitude to scope a project under s. 15 of the CEAA, as confirmed by the Supreme Court of Canada in PARC, and that such discretion includes adjusting the screening track. However, the trial judge distinguished the case at bar from PARC on the basis that s. 21 of the CEAA was not at issue and there had been no review track change. These distinguishing factors, however, do not explain the distinction between the ability to revise project scope but not to “downgrade” an initial CSR determination.
The Crown also unsuccessfully argued that MiningWatch was time-barred from appealing and had no standing to advance the claim in any event. The trial judge ruled that an environmental assessment is a complex, ongoing process and that the scoping decision was not a decision per se susceptible to judicial review; as such, MiningWatch was not required by Federal Court rules to challenge the scoping decision within 30 days. On the issue of standing, the trial judge concluded that the three-part test as set out in Thorson v. Attorney General of Canada et al was met because the issue was important, MiningWatch had a strong prima facie case and no other party challenged the decision.
RCDC is now appealing the decision.