Canada: BC Supreme Court Upholds Yet Another Decision Of The BC Environmental Assessment Office

Last Updated: May 28 2013
Article by Robin M. Junger and Brittnee Russell

In a recent case where a decision of the BC Environmental Assessment Office ("EAO") was challenged, the BC Supreme Court has found in favour of the EAO and granted it considerable discretion in carrying out its functions under the BC Environmental Assessment Act (the "Act") and regulations. In David Suzuki Foundation v British Columbia (Ministry of Environment), 2013 BCSC 874, the BC Supreme Court dismissed the judicial review petition of two environmental groups, which sought, among other things, a declaration that an environmental assessment was required for a number of hydroelectric projects. 

This case involved a proposal to construct 10 run-of-river hydroelectric power plants on tributary creeks to the Holmes River over an approximately 40 km distance. Each plant would have a generating capacity of less than 15 megawatts and would thus fall well below the 50 megawatt threshold at which an environmental assessment is required for hydroelectric projects under the Reviewable Projects Regulation (the "Regulation"). The EAO confirmed in a letter to the proponent that assessments were not necessary for each plant.

The David Suzuki Foundation and the Watershed Watch Salmon Society (the "Petitioners") argued that the plants had been treated as a single project by the proponent, and the EAO's decision to treat them separately amounted to "project splitting" – a tactic that has been criticized by the Supreme Court of Canada in Mining Watch Canada v Canada (Fisheries and Oceans), 2010 SCC 2. However, the Court found that the proposed plants were not comparable to the facts or relevant legislation in the Mining Watch decision, which dealt with the federal environmental assessment agency's decision to reduce the scope of an assessment.

The Petitioners also argued that the EAO's confirmation that no assessment was needed was unreasonable because it failed to properly place the proposed individual plants within the context of the Act and Regulation, asserting that each of the plants must be considered a facility making up parts of a larger and reviewable project. This argument was based on the definitions of "project", "facility" and "hydroelectric power plant" in the Act and Regulation, and on the fact that the threshold criteria for hydroelectric power plants in the Regulation refers to a "new facility"; this interpretation, the Petitioners argued, is in line with the broad purposes of the Act. To this end, the proponent argued that although there was evidence all 10 plants need to be built for the development to be economical, there was no evidence that the plants could not operate separately – the plants are not "individual parts of an operation that needs the others in order to function" (para. 39). The Court, upon analyzing the language in the Act and Regulation, considered the terms "facility" and "project" and concluded that the decision provided to the proponent by the EAO clearly falls within a range of reasonable interpretations of the Act.  

The Court went on to note that even if it found the EAO's decision to be unreasonable, it would have discretion to decline to grant a remedy under the Judicial Review Procedure Act and common law. In discussing this point, the Court noted that a balancing of interests favoured the proponent, who had invested considerable time and money into the proposed plants. In this regard, the Court stated as follows:  

[52]     Although construction of the power plants has still not begun, Mr. Peterson deposes that Holmes Hydro has already spent approximately $2 million in developing its proposal. He said the additional costs of environmental assessment at this stage would be approximately $500,000, not including the cost of re-applying for water licenses and land tenure, and the project would be unlikely to proceed if faced with those additional costs. I emphasize here that Holmes Hydro relied on the EAO's advice that no assessment was required and followed the procedures requested or directed by other government agencies.

[53]     In the circumstances, I find that the balance of convenience clearly favours Holmes Hydro and I would not grant the relief requested  

This decision by the BC Supreme Court is one of a series of cases where courts have upheld the BC provincial environmental assessment process, never ultimately overturning an EAO decision. These decisions include the following:

  • Friends of Davie Bay v Province of British Columbia, 2012 BCCA 293: the BC Court of Appeal gave deference to the EAO in interpreting the Act and confirmed that the production capacity of a mine project refers only to its intended capacity – not to its future potential capacity. The Court also confirmed that the standard of review that applies to EAO decisions about whether an environmental assessment is triggered is reasonableness.

  • Halalt First Nation v British Columbia, 2012 BCCA 472: the BC Court of Appeal overturned a Chambers Judge's decision regarding the EAO's duty to consult and accommodate a First Nation with respect to a well project, finding that the duty had been met. The Court of Appeal made clear, among other things, that modifications to project design can be sufficient accommodation of aboriginal interests, that accommodation did not require the payment of compensation and that the duty to consult does not extend to potential future activities not included in the proposal under review.

  • Upper Nicola Indian Band v British Columbia (Environment), 2011 BCSC 388: the BC Supreme Court found that the EAO's consultation of First Nations in connection with the environmental assessment of proposed transmission line from the interior of BC to the Lower Mainland and confirmed that past or ongoing impacts from past decisions or projects are not part of the duty to consult. 

  • Nlaka'pamux Nation Tribal Council v Griffin, 2011 BCCA 78: although the BC Court of Appeal granted a declaration that the EAO's procedural order should have formally included a tribal council, the Court did not find it appropriate to quash the order in all the circumstances of the case. 

  • R.K. Heli-Ski Panorama Inc. v Glassman, 2007 BCCA 9: a heli-skiing company sought judicial review of an environmental assessment certificate issued in respect of a proposed ski resort, alleging that the company had not been given a meaningful opportunity to be heard in the environmental assessment process. The BC Court of Appeal found that this right had been afforded to the company through the environmental assessment process and upheld the certificate.

  • Do RAV Right Coalition v British Columbia (Environmental Assessment Office), 2006 BCCA: a citizens' group sought judicial review of an environmental assessment certificate in respect of the Canada Line construction project. The group argued that the consultation engaged in by the EAO regarding the method of construction was inadequate and failed to meet both the statutory and procedural fairness requirements. The BC Court of Appeal upheld the certificate, finding that the consultation opportunities were clearly adequate. The Supreme Court of Canada declined leave to the citizens' group to appeal the decision.

  • Taku River Tlingit First Nation v British Columbia (Project Assessment Director), 2004 SCC 74: the Supreme Court of Canada ruled that the aboriginal consultation undertaken by the EAO with respect to a mining project fulfilled the duty to consult and accommodate.

This line of cases is impressive and is evidence that the BC environmental assessment process is both robust and highly defensible. While major projects undergoing environmental assessment often receive significant attention, and at times may face threats of litigation, it is important to assess the risks of any such litigation against this line of cases.

Robin Junger is a partner in McMillan's Business Law group. He is National Co-Chair of McMillan's Aboriginal and Environmental Law Groups, and Co-Chair of the Oil and Gas (BC) group. He was formerly the Associate Deputy Minister responsible for the BC Environmental Assessment Office and Deputy Minister of Energy, Mines and Petroleum Resources.

Brittnee Russell is an associate in McMillan's Business Law group. Her practice is mainly in the areas of environmental assessment and environmental and aboriginal law.

The foregoing provides only an overview. Readers are cautioned against making any decisions based on this material alone. Rather, a qualified lawyer should be consulted.

© Copyright 2013 McMillan LLP

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Robin M. Junger
Brittnee Russell
In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions