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
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.
Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
The Government of Alberta recently announced a number of policy changes that will impact the Alberta Electricity Market, composed of its generators, transmitters, distributors, retailers, electricity consumers and wholesale electricity market.
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