Canada: Voters Taking Action On Climate Change V British Columbia (Energy And Mines), 2015 BCSC 471.

Last Updated: April 15 2015
Article by Dionysios Rossi and Jessica Duhn

Most Read Contributor in Canada, September 2016

A recent British Columbia Supreme Court decision concerned a coal handling and storage facility located on Texada Island. The petitioner, an environmental advocacy group named Voters Taking Action on Climate Change ("VTACC"), challenged two provincial government decisions concerning a 2014 permit amendment granted to Texada Quarrying Ltd. ("TQL"), a subsidiary of Lafarge Canada Inc. Since 1990, TQL and its predecessors had been receiving and shipping coal from other corporations at TQL's facility on Texada Island. The Minister of Energy and Mines ("MEM") granted a permit amendment to TQL setting its coal storage capacity at 800,000 tonnes.  TQL sought the amendment in connection with an expansion of its transshipment operations due to additional coal exports from Fraser Surrey Docks in Port Metro Vancouver.

The stated basis for VTACC's challenge to this decision was jurisdictional. VTACC maintained that the Chief Inspector of Mines was not empowered to grant the permit amendment in question because TQL did not actually operate a coal mine on Texada Island, but rather acted only as a storage and handling facility, an activity VTACC alleged was outside of the scope of the Mines Act, R.S.B.C. 1993, c. 293 (the "Mines Act").

In the alternative, VTACC argued that the Chief Inspector of Mines breached the duty of procedural fairness it owed to VTACC regarding the consultation process giving rise to permit amendment in question.

Lastly, VTACC also challenged a related Ministry of Environment ("MOE") decision to refrain from exercising its statutory discretion to require TQL to obtain a permit for its transshipment activities under the Environmental Management Act, SBC 2003, c 53 ("EMA").

Before seeking the permit amendment, TQL issued the requisite public notice regarding its application and invited any interested persons to submit comments to the MEM. The MEM received 241 comments in response, 237 of which opposed or expressed concern regarding the permit amendment. As a result, the MEM directed TQL to hold a public information session. At the information session, 127 registered their attendance and 52 attendees submitted written comments; however, no VTACC representative attended. Despite this, members of VTACC were involved in the permit amendment process by soliciting public comments expressing concerns about the application.

Following the public information session and further inquiries by the MEM, the MEM issued the permit amendment with conditions addressing the issues of coal dust control, coal stockpile management, drainage management, metal and acid rock drainage, coal stockpile material inventory, water management and monitoring and reclamation.

Subsequently, the MEM sent the MOE a copy of TQL's permit amendment application materials, which included a storm water management plan and a technical report opining that no effluent would be released into the environment from the proposed project site, and that no EMA permit was required as a result. The MOE agreed with this conclusion and confirmed that it was not required to issue a permit in respect of the activities in question.

Before turning to the substantive merits of the application, the Court first addressed the threshold issue of standing. Despite VTACC's engagement in the matter, the Court concluded that VTACC did not have public interest standing to challenge the impugned decisions. The Court held that the decisions concerned an amendment to one permit, and did not engage the public interest or the larger issue of climate change. The Court likewise held that VTACC did not have any direct interest in the proceedings that would entitle it to claim personal standing. As a result, the Court dismissed VTACC's application.

However, in the event that it was incorrect on the issue of VTACC's standing, the Court went on to adjudicate VTACC's petition on the merits. In this regard, the Court indicated that the applicable standard of review was reasonableness, not correctness, despite VTACC's characterization of the legal basis for its petition as jurisdictional. Applying the standard of reasonableness to the decision under review, the Court concluded that it could not substitute its own view for that of the MEM or the MOE, because none of the issues VTACC raised successfully rebutted the presumption that the decisions in question constituted justified, transparent and intelligible outcomes.

Lastly, the Court concluded that VTACC was accorded all of the statutory and procedural fairness to which it was entitled, noting that if a representative from the organization would have attended the public information session, more information would have been made available to it.

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