MiningWatch Canada v. Canada (Minister of Fisheries and Oceans).

This was an application for judicial review challenging the legality of decisions or actions taken by the Department of Fisheries and Oceans (DFO) and Natural Resources Canada (collectively the responsible authorities) in conducting an environmental assessment (EA) of a mining project under the authority of the Canadian Environmental Assessment Act (CEAA). The applicant, a federally registered non profit society, is principally interested in the environmental, social, economic, health and cultural effects of mining, in particular on indigenous peoples. Red Chris Development Company Ltd. (RCDC) wishes to develop an open pit mining and milling operation for the production of copper and gold in the form of copper concentrates from deposits located in northwestern British Columbia. The contemplated mine and mill fall under the heads of local works and undertakings, property and civil rights, and matters of a purely local nature, and are thus under the jurisdiction of the Province of British Columbia. It also attracts Parliament's jurisdiction over water resources and fisheries since it contemplates the construction of barriers and seepage dams, water supply and associated works, and of a tailings management facility as well as a water diversion system. The Project was therefore subject to the requirement of an EA under both the Environmental Assessment Act (the provincial Act) and the CEAA. An EA under the CEAA can only be conducted with respect to a "project" and there must be a "federal authority" involved. In July 2005, BCEAO's Executive Director recommended that an environmental assessment certificate be granted. The federal environment assessment process was formally triggered when, in May 2004, two applications were submitted to DFO under subsection 35(2) of the Fisheries Act to cover the proposed construction of starter dams and the stream crossing. DFO concluded that an EA of the Project was required under section 5 of the CEAA. On May 2, 2006, the responsible authorities took a course of action under the purported authority of paragraph 20(1)(a) of the CEAA and determined that the Project "as scoped" by them was not likely to cause "significant adverse environmental effects". Two preliminary issues were raised by the respondents: that the applicant did not file its application in a timely manner; second, the proponent challenged the applicant’s standing. Standing was accorded to the applicant under the doctrine of public interest, as it had demonstrated a real and continuing interest in the problems associated with mine development. Subsection 15(1) of the CEAA, which the respondents invoked to sustain the legality of the decisions or actions taken by the responsible authorities, provides that the scope of the project in relation to which an EA is to be conducted is determined by the responsible authority; where the project is referred to a mediator or review panel, the scope is determined by the Minister of the Environment, after consulting with the responsible authority. The real issue in this case was whether the responsible authorities could legally refuse to conduct a comprehensive study on the grounds that the Project as rescoped by them did not include a mine and milling facility anymore. According to subsection 21(1) of the CEAA, where a project is described in the CSL, the responsible authority must now ensure public consultation with respect to the proposed scope of the project for the purposes of the EA, 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. Once public consultation is required under section 21 of the CEAA, it cannot be avoided by narrowing the scope of the project in order to reduce it to the level of a screening. In sidestepping statutory requisites mentioned in section 21 of the CEAA the responsible authorities acted beyond the ambit of their statutory powers. They committed a reviewable error which culminated in the communication of the course of action decision, by deciding to forego the public consultation process that the Project was statutorily mandated to undergo under subsection 21(1) of the CEAA. There was no public consultation by the responsible authorities prior to the taking of the course of action decision with respect to the draft screening report. Setting aside the course of action decision will therefore endorse a fundamental purpose of the CEAA which premises that public participation is meant to improve the quality and influence the outcome of an EA.