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
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
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
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
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.
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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