In this case, the British Columbia Court of Appeal (BCCA) upheld the decision in Friends of Davie Bay v. Province of British Columbia (reported in Mining in the Courts, Vol. II), confirming that the "reasonableness" standard of review applies to a decision of the Environmental Assessment Office (EAO) as to whether an environmental assessment had been triggered. In so doing, this decision provides a level of certainty for proponents of mining projects in assessing whether their proposed projects will trigger an environmental assessment.
The EAO had ruled that a limestone quarry sought to be operated by Lehigh Hanson Materials Ltd. (Lehigh) was not reviewable under the Canadian Environmental Assessment Act because the "production capacity" was below the 250,000 tonnes per year limit of quarried product that would trigger a review under the Reviewable Projects Regulation (Regulation).
A not-for-profit organization, Friends of Davie Bay, applied for judicial review of the EAO's decision on the basis that the EAO had erred in interpreting the term "production capacity" in the Regulation. The error alleged was that the EAO had defined "production capacity" by reference to the capacity that the proponent had proposed, as opposed to the capacity that the resource and intended infrastructure indicated could actually produce.
The lower court had held that the standard of review of the EAO's decision was, following the 2008 decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick, that of "reasonableness," even though the question was a question of law and one that went ostensibly to the EAO's jurisdiction. In addition, after embarking on an extensive statutory interpretation exercise, the lower court held that the EAO's interpretation of "production capacity" was reasonable and dismissed Friends of Davie Bay's petition. The meaning of "production capacity" used by the EAO and supported as reasonable by the court was the permitted and intended levels of production from a project, and not the production potential that could be produced once the project became operational.
Friends of Davie Bay appealed this decision to the BCCA and continued with the appeal despite being ordered to post security for Lehigh's costs. The BCCA dismissed the appeal, holding that the lower court was correct in respect of the standard of review and correct in its conclusion that the EAO's interpretation of "production capacity" was reasonable.
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