SCC Grants Leave to Appeal in MiningWatch Canada v. DFO

Written By Marie H. Buchinski, Bradley S. Gilmour and Hilary Robert Stedwill

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 provincial laws.

Background

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.

At Trial

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.

On Appeal

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 jurisdiction.

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:

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 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.

Timing

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.