Until recently, only one proposed mine had ever been rejected under B.C.'s environmental assessment (EA) process. In 2012, this number doubled, with the provincial government ministers denying Pacific Booker an EA Certificate for its proposed Morrison Mine-- an open-pit copper, gold and molybdenum mine planned adjacent to Morrison Lake, at the edge of the Skeena watershed and near the historic mining centre of Smithers. This deterrmination was then challenged, leading the B.C. Supreme Court to issue a decision with a novel result —for the first time, the court has quashed a decision to deny an EA Certificate.
The first stage of the EA process resulted in an assessment report from the Environmental Assessment Office (EAO) that concluded the mine would not cause any significant adverse effects. In the subsequent regulatory stage, the EAO Executive Director nevertheless recommended that the ministers refuse to issue the EA Certificate. In September 2012, the ministers took the Executive Director's advice and rejected Pacific Booker's EA Certificate Application for the Morrison Mine, thereby blocking the proposed mine's development.
Pacific Booker applied for judicial review of the ministers' decision. In its decision in Pacific Booker Minerals Inc. v. British Columbia (Environment), 2013 BCSC 2258, the Supreme Court addressed two important issues:
- Application of principles of procedural fairness to the EA process; and
- Scope of factors that the EAO Executive Director may consider in making a recommendation on an EA Certificate Application.
The case was decided on the first issue of procedural fairness,with the court finding that the EA Certificate Application process was fundamentally unfair in this instance. A brief review of the timeline of the EA process is warranted to understand the court's finding on this issue.
EA Process Timeline
In total, the EA process for the proposed Morrison Mine took ten years.
Pacific Booker began preparing for the EA process in 2002, and submitted an initial project description to the EAO in 2003. This led to the issuance of a Section 10 Order, thereby requiring an EA Certificate before the proposed mine could proceed with other permitting applications. The EAO also established a working group consisting, amongst others, of representatives of government agencies and First Nations.
A few years later, in October 2005, Pacific Booker submitted Application Information Requirements to the EAO, which specified the scope of its intended study. Negotiations between the parties ensued for three years on Pacific Booker's intended approach for its EA Certificate Application. In January 2008, the EAO issued the Section 11 Order, defining the project scope and the procedures and methods to be used in conducting the EA.
Pacific Booker then developed terms of reference (TOR) that identified the issues to be addressed and information to be provided in the EA Certificate Application. The TOR was approved by the EAO in May 2009. Four months later, Pacific Booker submitted an EA Certificate Application. This initial application was rejected as it failed to conform with the TOR. Pacific Booker revised its application and resubmitted it in May 2010. The following month, the EAO accepted this revised application for review.
Pacific Booker consulted with the EA working group and others through much of 2010 and 2011. Working group members and other First Nations raised concerns about water quality issues and adverse impacts on Aboriginal fishing rights. Although Pacific Booker responded, the EAO remained concerned and therefore commissioned an external review of some of the water issues. This third-party review concluded that further analysis and modelling was required. Pacific Booker responded and proposed to change the design of the tailings storage facility by lining it completely with a geo-membrane to reduce groundwater seepage.
Subsequently, in May 2012, the EAO circulated drafts of an EA report that concluded that – with the geo-membrane in place - the mine posed no risk of significant adverse environmental effects. The EAO circulated a further draft report with the working group in June 2012, that again concluded that with the successful implementation of mitigation measures, the mine was not likely to have significant adverse effects. At the same time, an EAO representative informed Pacific Booker's COO that the process was generally complete, with only minor editorial changes likely.
Concerns about the proposed mine, however, lingered amongst members of the working group. These concerns were conveyed in writing to Pacific Booker on August 9, 2012, with a short timeline to respond. In its response, Pacific Booker maintained that all risks had been reduced to the lowest extent possible.
The EAO issued its final assessment report on August 21, 2012, in which it concluded that the EA process had been adequate and no significant adverse effects were predicted or expected. Concurrently, the EAO Executive Director issued recommendations. Although the Executive Director acknowledged the assessment report's findings, he recommended that the ministers consider additional factors, and adopt a risk/benefit approach when weighing the assessment report against these additional factors. The additional factors included:
- The location of the proposed mine adjacent to a genetically unique population of salmon;
- The long-term environmental liability and risk;
- The requisite in-perpetuity water treatment; and
- The strong strength of claim of the Labe Babine Nation, coupled with their ongoing concerns regarding the Morrison Mine.
As such, the EAO Executive Director recommended that an EA Certificate not be issued for the proposed mine. Notably - and key to the court's finding in this case - Pacific Booker was not aware of this recommendation, and was not provided an opportunity to comment thereon before the minister denied the EA Certificate Application on September 20, 2012. This latter lack of opportunity to respond and comment, within the broader context of the EA process carried out for the mine up to that point, was the main problem that the court found led to an unfair process.
In coming to this finding, the court found that the common law rules of procedural fairness were not supplanted by the Environmental Assessment Act — in other words, the duty of procedural fairness does apply to the EA regulatory process. The court then considered the content of the duty of procedural fairness in this case and observed:
- The ministers' decision was less judicial, and more polycentric, thereby demanding a lower level of procedural fairness;
- There is no right of appeal, and although Pacific Booker could submit a revised application, future success was unlikely in light of the lengthy and expensive process already undertaken;
- The ministers' decision had a significant adverse impact on Pacific Booker's business;
- Pacific Booker reasonably expected that it would be given the opportunity to be heard when serious concerns were expressed by others about the proposed mine. This was reinforced by EAO policies, including the User Guide that advised that if a project is unlikely to receive a favourable recommendation from the EAO, the Executive Director would so advise the proponent to permit it to change its application or delay or discontinue it. Notably, up until the last couple months of the EA process, Pacific Booker had been granted this opportunity; and
- There was no harm in allowing Pacific Booker to provide a written response to the Executive Director's recommendations, particularly if the working group and interveners were also granted that opportunity.
Based on this review, the court concluded that Pacific Booker should have been advised of the essence of the adverse recommendations and been given an opportunity to provide a written response. As no such notice or opportunity to comment was provided, the court concluded that the process was unfair, quashed the ministers' decision, and remitted the mine's EA Certificate Application to the ministers for reconsideration.
APPLICABLE FACTORS TO EXECUTIVE DIRECTOR'S RECOMMENDATION
The second issue in this case concerned the scope of factors that the Executive Director may consider in making a recommendation on an EA Certificate Application. Although not determinative, the B.C. Supreme Court did provide some guidance that will be important for other proponents to bear in mind in preparing EA Certificate Applications for projects proposed in B.C.
At the outset, the court noted the lack of any statutory guidance on the nature of the recommendations or the factors the Executive Director may, or must, consider when making recommendations on an EA Certificate Application. The court noted that a large and generous reading of the Environmental Assessment Act was required to "permit those charged with the responsibility to protect the natural environment through a process of "neutral" assessment to achieve that objective to the greatest extent reasonably possible" (para 121).
Within the context of this case, such a "neutral assessment process" demanded that those affected by the process be given a reasonable opportunity to be engaged in it, and to have their interests given transparent and thorough consideration. This, however, did not mean that the Executive Director was prohibited from departing from the EAO's assessment report, or prohibited from making recommendations that are inconsistent with that report.
The court observed that the assessment report would most likely have been prepared by the Executive Director's staff, whereas the Executive Director's recommendations would be based on his own experience and expertise, which may ultimately differ from the final conclusions in the assessment report. The court found no problem with such a result. In addition, the court found that the Act did not preclude the Executive Director from making suggestions to the ministers that added considerations not explicitly addressed in the assessment report or that did not simply adopt the report's findings.
The court also found no fault in the Executive Director relying on additional factors in his recommendation, whether they were expressly mentioned in the assessment report or not. Similarly, the court found no problem with the Executive Director's reference to a risk/benefit analysis. Instead, the court viewed the entire EA process as essentially being a risk/benefit analysis, thereby raising no concerns with the Executive Director's reliance on such an analysis.
The court's finding in this case highlights the Executive Director's independence from the assessment report and the acceptability of relying on his or her own expertise and experience in determining what factors to consider in making a recommendation to the ministers on an EA Certificate Application.
To avoid project delays from resubmissions or litigation, it is advisable that project proponents repeatedly stress to the EAO the importance of maintaining procedural fairness throughout the EA process to ensure both (1) that they are well aware of any outstanding or lingering concerns by the ultimate decision makers, and (2) that they are given adequate opportunities to address such concerns before a decision is made at the EA regulatory stage. Without an EA Certificate in hand, a proponent cannot proceed with the requisite permit applications, thereby leaving a proposed project in the proposed stage, without actual development proceeding or profits generated. This EA stage is therefore imperative to the future success of a proposed project, and must be carefully carried out, managed and implemented by all involved.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.