Long-awaited opportunity to reinforce public participation in federal environmental assessments
On December 18, 2008, the Supreme Court of Canada decided to allow MiningWatch Canada to appeal a Federal Court of Appeal decision that had negated the public’s right to be consulted on large mines and other industrial projects.
MiningWatch, represented by Ecojustice (formerly Sierra Legal) had initiated legal proceedings in June, 2006 when we filed in the Federal Court for a judicial review of the environmental assessment of Imperial Metals’ proposed Red Chris copper/gold mine in northern British Columbia. We felt that the federal government violated the Canadian Environmental Assessment Act by deciding to split the project into multiple pieces for the purposes of the assessment and to downgrade the assessment from a “comprehensive study” to a simple screening-level assessment. A mining project producing 3,000 tonnes of ore per day must undergo a comprehensive study; Red Chris would produce over 30,000 tonnes a day. Under the Act, comprehensive studies include mandatory requirements for public participation, while screenings allow for but do not require public involvement.
Over our objections, the Departments of Fisheries and Oceans and Natural Resources Canada did an environmental screening – with no public participation – before approving the project in May 2006.
In a lengthy and comprehensive judgment released on September 27, 2007, the Federal Court (Justice Martineau) overturned the environmental assessment of the mine by Fisheries & Oceans Canada and Natural Resources Canada, and prohibited the federal government from issuing any permits for the mine.
The government and the company appealed, and on June 13, 2008, the Federal Court of Appeal overturned Justice Martineau’s ruling, asserting that the federal agencies had the discretion to determine the scope of the environmental assessment before applying the comprehensive study list regulations. In contrast to Justice Martineau’s judgment, the Federal Court of Appeal reasons for judgment, authored by Justice Desjardins, are a cursory rebuttal to the Federal Court ruling, arguing that since federal authorities have the discretion to set the scope of an environmental assessment, they can do so whenever, and at whatever stage of the assessment, they like.
The Red Chris project is located in an area known to First Nations as the “Sacred Headwaters” region, and would pose a serious threat to the headwaters of some of the continent’s most important salmon rivers: the Stikine, Nass, and Skeena. Imperial Metals proposes to destroy fish-bearing streams by damming them and using these natural waters to dump toxic mine waste.
Our appeal will ask the Supreme Court to consider the Canadian Environmental Assessment Act for the first time, and, in doing so, to build upon and strengthen the principles of environmental assessment and endorse the need for robust federal environmental assessment of major projects – including mining projects – and the need to provide for public participation in those assessments.