On June 13, 2008, the Federal Court of Appeal determined that citizens do not have a right to be consulted about proposed large industrial developments.

The appeal ruling denies the public any input when federal departments that issue regulatory permits determine the “scope” of the project that will be subject to Environmental Assessment.

The ruling will allow a Department like Fisheries and Oceans, which is responsible for protecting fish habitat, the right to limit an Environmental Assessment of a major mining project to the tailings impoundment area or mine road, if that is the only part of a major project that will affect fish habitat, and will deny the public the right to affect the decision. It severely limits the federal role in Environmental Assessment of major projects.

In September, the Federal Court ruled that the Department of Fisheries and Oceans and Natural Resources Canada acted illegally in shielding the proposed Red Chris copper and gold mine, in northern British Columbia, from a comprehensive environmental assessment with public consultation. It was considered a major victory as it upheld a law passed by Parliament in 2003, which required a greater role for public consultation in environmental assessments.

The ruling endorsed arguments made by lawyers for Ecojustice (formerly Sierra Legal Defence Fund) who were acting for MiningWatch Canada. “We are defending the original Federal Court decision, and the right of members of the public to be heard before the government decides whether major industrial projects go ahead,” said Lara Tessaro, the Ecojustice lawyer arguing the appeal case.

In 2005, MiningWatch attempted to participate in the environmental review of a major BC mining project known as the Red Chris mine, in northern British Columbia.

Under the Canadian Environmental Assessment Act and Cabinet regulations, metal mines processing more than 3,000 tonnes of ore per day must undergo comprehensive assessments (“Comprehensive Studies”), with public participation. The Red Chris mine could produce 30,000 tonnes of ore a day. The company behind the project, Imperial Metals, proposes to turn fish-bearing streams into a tailings impoundment and waste rock dumps that would contain hundreds of millions of tonnes of toxic materials – threatening contamination of the Stikine watershed for centuries to come.

DFO and NRCan, however, undertook a simple screening assessment that excluded public participation. Among those silenced are elders from the community of Iskut, who have tried to prevent the Red Chris mine and other developments proposed in an area known as the “Sacred Headwaters” of the Stikine, Nass and Skeena rivers.

MiningWatch Canada is assessing its next steps.

For more information, please contact:
Joan Kuyek, MiningWatch Canada, (613) 569-3439
Lara Tessaro, Ecojustice, (604) 685-5618 ext. 245 or (604) 313-3132

The judgment is available as a PDF below.