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SCC Curtails Federal Ministries ''Discretion" in Environmental Assessment Process


On January 21, 2010 the Supreme Court of Canada released its decision in MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, significantly decreasing the discretion afforded to federal ministries in determining the level of assessment that private industrial projects will undergo under the Canadian Environmental Assessment Act ('CEAA').

Under CEAA a proposed project will undergo one of five processes of environmental review:

    (a) no assessment;
    (b) screening;
    (c) comprehensive study;
    (d) mediation; or
    (e) review panel.

Previously, the federal responsible authority ('RA') "scoped" proposed industrial projects to include only the elements of the project that fell under federal jurisdiction - often resulting in a lower level of required environmental assessment. The Court held in this decision that CEAA did not afford the RA this discretion and that a project must undergo environmental assessment based on the entire proposed project.

This decision involved a proposed gold and copper mine in northwestern British Columbia, that, due to its size and nature, was subject to both provincial and federal environmental assessment requirements. The proponent underwent a comprehensive environmental assessment at the provincial level and was issued an environmental assessment certificate. At the federal level the RAs (Department of Fisheries and Oceans and Natural Resources Canada) "scoped" the project and declared that only the elements of the project that fell under federal jurisdiction need be considered for the environmental assessment process. As this included only a tailings pond and explosives storage area, the assessment would, under the CEAA regulations, proceed by way of the less rigorous screening process.

The Court accepted the argument of MiningWatch that "project", under CEAA, refers to the project as proposed, and therefore the regulations relating to the development of a mine applied and mandated that a comprehensive study be performed. The competing argument, that "project" referred to project as scoped by the RA was soundly rejected.

This is not the first decision in which the courts have been asked to consider the practice of scoping of projects by RAs, however this overturns the previous authority on this subject Prairie Acid Rain Coalition v. Canada (Minister of Fisheries and Oceans), 2006 FCA 31, which had endorsed scoping.

Practically, the result of this decision is that large development projects will be subjected to comprehensive environmental assessment at both the provincial and federal levels. The Court however, stressed that this should not result in duplication of assessment and encouraged the use of the coordination mechanisms provided for under CEAA.

For advice on this or any other energy, environmental or regulatory law topic please contact Ron Kruhlak in Edmonton,  Gavin Fitch in Calgary, or any member of our Energy Environmental and Regulatory Practice Group.

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