This decision provides clarity on the appropriate standard of
review for certain decisions made by the Environmental Assessment
Office (EAO), and also provides a level of certainty for proponents
of mining projects in assessing whether their proposed projects
trigger an environmental assessment.
Lehigh Hanson Materials Ltd. (Lehigh) intended to operate a
limestone quarry and load out facilities in and around the Davie
Bay area of Texada Island in British Columbia. Friends of Davie
Bay, a not-for-profit society formed to conserve and protect the
environment of Davie Bay, sought judicial review of an EAO decision
that the project did not trigger an environmental assessment.
Pursuant to the Reviewable Projects Regulation
(Regulation) made under the Canadian Environmental Assessment
Act, a project will be reviewable, and subject to an
environmental assessment where, among other things, it will have a
production capacity during operations of at least 250,000 tonnes
per year of quarried product. The EAO interpreted the term
"production capacity" as Lehigh's estimated and
permitted annual extraction rate. Friends of Davie Bay argued that,
for purposes of the Regulation, "production capacity"
should be interpreted as the production potential once the
project was operational, and that while Lehigh's estimated and
permitted extraction rate was less than 250,000 tonnes per year,
the project's resources and intended infrastructure could allow
for production of more than 250,000 tonnes per year.
The Court first undertook an extensive analysis of the
appropriate standard of review. After considering the 2008 decision
of the Supreme Court of Canada in Dunsmuir v. New
Brunswick, 2008 SCC 9, the EAO's specialized expertise in
applying British Columbia's environmental legislation, and the
EAO's broad mandate to regulate, in the public interest,
environmental ramifications of significant projects in the
province, the Court determined that a level of deference should
result and that the appropriate standard of review was
After reviewing extensive statutory interpretation arguments
respecting the meaning of "production capacity" in the
Regulation, the Court ultimately determined that the EAO's
decision was reasonable: the meaning of "production
capacity" in the Regulation refers to the permitted and
intended levels of production from a project, and not the
production potential once the project becomes operational.
This decision is under appeal. In November 2011, the British
Columbia Court of Appeal ordered that Friends of Davie Bay post
security for Lehigh's costs of the appeal in the amount of
$4,000 (see 2011 BCCA 491).
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