MiningWatch Applying for Leave to Appeal

Written By Bradley S. Gilmour and Hilary Robert Stedwill

MiningWatch Canada is applying for leave to appeal to the Supreme Court of Canada a ruling of the Federal Court of Appeal about the application of the Canadian Environmental Assessment Act (CEAA) to a proposed gold and copper mine in northwestern British Columbia. MiningWatch Canada's counsel argued successfully at trial that once the Ministers had scoped the mining project such that it was subject to a comprehensive study, the CEAA prohibited the Ministers from rescoping the project in such a way that the project was subject to a screening instead. The trial Court also found that any time a proponent's project as a whole is listed on the Comprehensive Study List, the project must be assessed by way of a comprehensive study regardless of the nature of the particular federal trigger which engages the CEAA. The Federal Court of Appeal disagreed on both issues, concluding the CEAA did not prohibit the Ministers' decisions.

MiningWatch Canada's counsel argues there are two questions of national importance for the Supreme Court's consideration, namely:

1. 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 decision?
2. 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 Supreme Court will consider the application and decide whether to hear an appeal of the entire case.