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 "reasonableness."
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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