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The Federal Court of Appeal has upheld the federal government’s narrow interpretation of its Canadian Environmental Assessment Act (“CEAA”). In Red Chris Development Co. Ltd. versus Miningwatch Canada, Miningwatch tried, unsuccessfully, to compel the federal government to consult with the public before deciding the scope of its environmental assessment of a proposed gold and copper mine / mill in British Columbia.

In 2004, when Red Chris first sought a Fisheries Act permit, the Department of Fisheries and Oceans planned to conduct a comprehensive study, because the huge size of the mine exceeded the threshold in Item 16 of the CEAA Comprehensive Study List Regulations (a mine of a certain size). If so, they were required to consult the public. After TrueNorth, DFO changed its view of what CEAA requires. Without public consultation, It twice “re-scoped” the project to be assessed, limiting it to a tailings impoundment, a water diversion, an explosives facility and related components of tailings management. To DFO, this much more limited “project” was not the mine itself, and was therefore exempt from the Comprehensive Study regulation.

DFO screened its “rescoped” project, without considering the other impacts of the mine/ mill. DFO decided it was not likely to cause a significant adverse environmental effect, which allows Red Chris to get its permit.

The public interest group, Miningwatch, objected to the lack of consultation and went to court. It lost. The Federal Court of Appeal held that the federal government was perfectly entitled to “scope” the project in terms of narrow areas of federal authority, such as fisheries and explosives, thus “scoping” the Red Chris project right out of the Comprehensive Study List Regulations.

The decision will be a major disappointment to environmental groups, who have often found more sympathy for environmental protection in the courts than they have in government. Worse, it helps to limit federal environmental assessment to specific areas of federal authority, such as fisheries; a proponent’s need for a federal permit does not give the federal government jurisdiction over the environmental impacts of an entire project. In most cases, these larger evaluations will be left to the provinces.

Thanks to Lara Tessaro for these corrections.

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