Canada: Federal Court Of Appeal Confirms “Scoping To Triggers” Approach

On June 16, 2008 the Federal Court of Appeal overturned the Federal Court's earlier decision in Miningwatch Canada v. Canada (Fisheries and Oceans), 2007 FC 955 (Miningwatch). The Federal Court had disallowed the "scoping to triggers" approach for the environmental assessment (EA) of the proposed Red Chris Development Ltd. copper and gold mine in Northern British Columbia. By overturning that decision in Minister of Fisheries and Oceans et al. v. Miningwatch Canada, 2008 FCA 209, the Federal Court of Appeal restored the federal Responsible Authorities' (RA) discretion to scope a federal EA to triggers by restricting the reach of an EA to the components of a project that are directly related to section 5 of the Canadian Environmental Assessment Act (CEAA). The decision also confirms that RAs have the discretion to define and redefine the scope of a project for the purposes of tracking an EA.

Background

In Miningwatch, the Federal Court had held that RAs incorrectly selected a screening level EA for the proposed mine. (See the November 9, 2007 Osler Update, " Federal Court Disallows Scoping to Triggers.") The Court ruled that the complete project as proposed by the proponent must be considered when determining EA tracking, rather than the project as scoped by the RA.

Prior to this decision, the practice of RAs was to determine the scope of the project first and then determine whether the project, as scoped, was included in the CEAA Comprehensive Study List Regulations (CSL Regulations). Some RAs exercised an approach of "scoping to triggers," whereby the scope of the project to be assessed included those components of the proposal directly related to the powers, duties or functions referred to in section 5 of the CEAA.

This approach had the effect of avoiding the extension of federal review into areas of provincial jurisdiction that would otherwise, but for the need for the federal authorization, not be subject to federal review. The determination of the review track was then made on the basis of the project as scoped by the RAs so that, in many cases, the EA proceeded by way of a screening rather than a comprehensive study.

The effect of the Miningwatch decision was to have the review track determination precede the scoping of the project by the RA and on the basis of the complete project as proposed by the proponent, rather than the project as scoped by the RA. The implications of this approach to proponents was threefold:

  • the practice of scoping to triggers was abandoned in favour of broad scoping encompassing all project components;

  • the reach of federal EA was extended, potentially overlapping with provincial environmental assessment; and

  • federal regulators went back to reconsider prior CEAA scoping or EA tracking decisions to avoid such decisions being attacked on the basis of the ruling in Miningwatch.

The Miningwatch decision has been widely criticized as representing a significant limitation on the discretion of an RA to determine the scope of a project for purposes of an EA, as well as constraining the ability of an RA to change the level of review in light of new project information. The decision had led to the possibility of more EAs proceeding as comprehensive studies that would have previously been subject to a screening level EA, and to some screening level EAs being retroactively elevated to the comprehensive study level.

Analysis

The central issue on the appeal of the Federal Court's decision in Miningwatch was whether the first appearance of the word "project" in section 21 of the CEAA should be read as "project as scoped." Section 21 requires a "project" described in the CSL Regulations to be tracked as a comprehensive study and to undergo public consultation. Interpreting section 21 as referring to a "project as scoped" would enable an RA to "scope to triggers" prior to the review track determination, thus avoiding a comprehensive study in many cases.

The Federal Court of Appeal cited Friends of the West Country Assn. v. Canada (Minister of Fisheries and Oceans), [2000] 2 F.C. 263 (C.A.) in support of the broad power of RAs to determine the scope of the project in an EA under section 15 of the CEAA. The appeal court also affirmed its previous decision in Prairie Acid Rain Coalition v. Canada (Minister of Fisheries and Oceans), 2006 FCA 31. (See the July 27, 2006 Osler Update, " SCC Confirms Regulatory Authority's Broad Scoping Discretion.") In that case, the Court had held that "project" in section 5(1)(d) of the CEAA means "project as scoped." In the context of the Miningwatch appeal, the Federal Court of Appeal noted that there was nothing in the context of the CEAA indicating that a different interpretation of "project" should be used for section 21, thus allowing RAs to scope a project prior to the EA tracking determinations.

Implications For Proponents

This decision confirms that the discretionary scoping power given to RAs is of a continuing nature, allowing them to scope and re-scope a project EA under the CEAA until a final EA tracking decision has been made. The decision also re-establishes that the "scoping to triggers" approach is appropriate, thus allowing RAs to scope a project EA to a screening level based on only those aspects of the proposal related to the RA's jurisdiction and responsibility under the CEAA.

Shawn Denstedt is a partner in the firm's Calgary office. His practice focuses on environmental, regulatory and aboriginal law issues, and includes experience in a variety of industries, including oil and gas, mining, chemical companies and utilities. Ryan Rodier is an associate in the firm's Calgary office. His practice focuses on energy regulatory matters. Jessica Ng is an articling student in the firm's Calgary office.

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.

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