This morning, the Supreme Court of Canada released its decision in MiningWatch Canada v. Minister of Fisheries and Oceans et al. As you will see, MiningWatch’s appeal has been allowed. The unanimous court ruled that the Canadian Environmental Assessment Act requires government to conduct a comprehensive study when a project, as proposed, is listed on the Comprehensive Study List. There is also some interesting discussion around the issue of scoping under s.15. However, the court allowed the project to proceed.
The decision is highly technical, but it reflects a longstanding battle over the proper scope of a federal environmental assessment, especially when a proposed project must undergo both federal and provincial EA. If a proposed mine needs a relatively minor federal permit for a bridge, should the federal regime evaluate the entire mine? Or just the bridge that directly requires the federal permit? Miningwatch successfully argued that the federal EA in this case should have evaluated the entire mine. However, the Court may have agreed only because the proponent originally described the project as the whole mine.
Will future proponents simply describe their projects more narrowly from the beginning? Or will the federal government find some other way to limit its EA of provincially regulated projects? I suspect this long war isn’t over yet.