The Supreme Court of Canada, in a unanimous decision,
significantly limited the discretion of federal "responsible
authorities" under the Canadian Environmental Assessment
Act (CEAA) to determine the scope of project subject to
federal environmental assessment. In MiningWatch Canada v.
Canada (Fisheries and Oceans), a proponent was proposing to
construct and operate a copper and gold open pit mine in British
Columbia. The entire project was subject to the provincial
environmental assessment regime. Some components of the proposed
project, including a tailings impoundment area, water diversion
system and explosives storage and manufacturing area, required
federally issued permits or authorizations. The federal Department
of Fisheries and Oceans (DFO) determined that the scope of project
for the purposes of federal assessment under CEAA was limited to
The Supreme Court determined that the DFO had erred in adopting a
narrow scope of project that did not include the entire proposed
open pit mine. Pursuant to CEAA, the Comprehensive Study List
Regulations (CSL) prescribes those projects that should be
subject to more rigorous forms of environmental assessment under
CEAA, including comprehensive study and review panels. The Court
reasoned that because the copper and gold open pit mine as proposed
by the proponent was one of the types of mines described in the
CSL, the entire project as proposed should have been assessed under
CEAA. By focusing on the CSL, the Supreme Court was able to avoid
addressing the complicated constitutional issues which arise with
respect to the overlapping provincial and federal spheres of power
and jurisdiction as they relate to the environment. In rendering
this decision, the Court has overruled the reasoning of the Federal
Court of Appeal in Friends of the West Country Assn. v. Canada
(Minister of Fisheries and Oceans) ("Sunpine"), and
Prairie Acid Rain Coalition v. Canada (Minister of Fisheries
and Oceans) ("TrueNorth").
While the Supreme Court recognized that a requirement to scope
projects as broadly as described in the CSL might result in
regulatory duplication and inefficiency, the Supreme Court relied
on the ability of the federal assessment to be coordinated with the
provincial assessment to address this issue. However, experience
demonstrates that this coordination does not significantly reduce
duplication and, in fact, often increases the legal risk associated
with approval of a given project.
Impact of the decision
The Supreme Court's decision in this case will inevitably
create inconsistency and uncertainty for project proponents. For
example, if two proposed mines subject to a provincial
environmental assessment regime are exactly the same except that
one mine will result in the diversion of a small fish-bearing
stream and the other mine has no elements to bring it under CEAA
jurisdiction, both will be subject to the same level of provincial
environmental assessment but the former will also be subject to a
rigorous federal environmental assessment whereas the latter will
not be subject to any federal environmental assessment. Project
proponents will now need to carefully consider the timing and
sequence of publicly disclosing their projects. To the extent
proponents take a piece-meal approach in project disclosure to
avoid the result noted above, it is likely to result in future
legal challenges related to project-splitting. This results, at
least partly, from the Supreme Court's decision to focus on the
CSL instead of the pertinent constitutional issues that were
discussed in Friends of the Oldman River Society v. Canada
(Minister of Transport), Sunpine and to some degree,
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