Environmental Law: Stage 5 – Case
Mr. Jamie Glass
May 27th, 2012 CC Case Information
MiningWatch Canada, et al. v. Minister of Fisheries and Oceans, et al.
(Federal Court) (Civil) (By Leave)
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada
(Law Branch) for information purposes only.
Environmental law - Environmental assessment - Legislation - Interpretation -
Administrative law - Judicial review - Under s. 21(1) of Canadian Environmental Assessment
Act, S.C. 1992, c. 37, as amended (“CEAA”) when a major industrial project is described on
the Comprehensive Study List, is there a right for the public to be consulted on a
responsible authority’s proposed scope of project decision? - Does CEAA grant responsible
authorities jurisdiction to downgrade a comprehensive study assessment to a screening
level assessment, thereby avoiding the mandatory public consultation required by s. 21?
The corporate Respondents plan to develop an open pit mining and milling operation for the
production of copper and gold in north-western B.C. They submitted a project description to
the BC Environmental Assessment Office and triggered the federal assessment process by
submitting two applications to the Department of Fisheries and Oceans (“DFO”) for the
construction of starter dams related to a tailings impoundment and stream crossings. DFO,
as a responsible authority, concluded that an environmental assessment would be required
pursuant to paras. 5(1)(d) and 5(2)(a) of the CEAA and posted a “Notice of Commencement
of an environmental assessment” indicating that DFO would conduct a comprehensive study
commencing on May 19, 2004. Natural Resources Canada was a responsible authority under
the CEAA on the basis of s. 7 of the Explosives Act, R.S.C. 1985, c. 17, due to the
explosives that were to be stored and used in operating the mine.
DFO later determined that the scope of the project required only a screening report. On May
10, 2006, the responsible authorities posted their Course of Action Decision taken under
para. 20(1)(a) of the CEAA, determining that the project, as scoped, was not likely to cause
significant adverse environmental effects. This allowed the corporate Respondents to
proceed with their applications for federal licenses. The Applicant filed a notice of application
for judicial review of the Course of Action Decision, on the basis that the responsible
authorities had breached their ongoing duty