On December 18, 2008, Supreme Court of Canada (SCC) Justices
Abella, Binnie and Deschamps granted to MiningWatch Canada (an
environmental advocacy group) leave to appeal a decision of the
Federal Court of Appeal. The SCC's ruling in this case will
likely have implications for projects that trigger Canadian
Environmental Assessment Act (CEAA) environmental assessments,
particularly where the proposed project is primarily approved under
The case is with respect to the application of the CEAA to a
proposed gold and copper mine in northwestern British Columbia. The
Responsible Authority (RA) – the Minister of Fisheries
and Oceans – initially determined to assess the mining
project through a comprehensive study pursuant to the CEAA, which
by statute required public consultation. Subsequently, the RA
decided to conduct a screening of the project, which did not
mandate public consultation under the CEAA.
The Federal Court Trial Division held that an RA has no
authority to scope a project that is listed within the
Comprehensive Study List (CSL) in a manner that would prevent the
RA from conducting a comprehensive study, and that therefore, the
RA was wrong to proceed with a screening under the CEAA. The Court
specifically referenced the absence of any public consultation, and
the need for judicial intervention.
The Federal Court of Appeal overturned the Trial Division in
June 2008 and held that RAs have the authority to define and
redefine a project until a Federal Authority renders a decision,
even if the project as described by the proponent is within the
CSL. The Court thereby reaffirmed the RA's determination to
proceed with the environmental assessment through a screening under
the CEAA and to focus its environmental assessment on aspects of
the overall project that are under federal licensing
Before the Supreme Court of Canada
In its application for leave to appeal, MiningWatch Canada's
counsel argued there are two questions of national importance for
the Supreme Court's consideration, namely:
Wherever a major industrial project is described on the
comprehensive study list, do Canadians have a right to be consulted
on a responsible authority's proposed scope of project
Does the CEAA grant responsible authorities the right to
downgrade a comprehensive study assessment to a screening level
assessment, thereby avoiding mandatory public consultation?
The SCC did not give detailed reasons for why it granted leave
to appeal to MiningWatch. However, the SCC will also likely
consider the legal implications of aspects of the project that fall
outside federal licensing jurisdiction.
Written arguments are anticipated this summer and oral argument
of the appeal before the Supreme Court of Canada is tentatively
scheduled for October 16, 2009.
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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.
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