Posted by

On December 9, 2013, the British Columbia Supreme Court released it’s reasons on the judicial review of the Minister of Environment’s (“the Minister”) decision to not issue a certificate, pursuant to the Environmental Assessment Act, S.B.C. 2002, c. 43 (the “Act”), to enable Pacific Booker Minerals Ltd. (“PBM”) to construct and operate a copper/gold and molybdenum mine (“the project”). The project would potentially affect lands and waters to which several First Nations claim Aboriginal rights.

PBM initiated the Environmental Assessment (“EA”) process in 2003 and expended $10 million over the course of its participation until the certificate was refused by the Minister in 2012. The Final Assessment Report (“the Report”) completed by the Environmental Assessment Office (“EAO”) concluded that the project “would not result in any significant adverse effects with the successful implementation of mitigation measures and conditions” and further that “First Nations have been consulted and accommodated appropriately.”

Pursuant to the Act, the Executive Director of EAO recommended the Report to the Minister for decision. Accompanying the Report, the Executive Director also highlighted concerns that militated against issuing a certificate and recommended that the Minister undertake a risk/benefit analysis of these concerns in making his decision. Among these concerns was the likelihood of mitigation measures being unsuccessful over the 100 year life span of the project, the unique ecological value of the area affected, and the moderate to strong prima facie strength of claim of the Babine Nation to the area affected. The issues upon judicial review were:

(1) Pursuant to the Act, was it beyond the Executive Director’s discretion to highlight the concerns and recommend the Minister weigh them against the conclusions of the Report?

(2) As a matter of procedural fairness, should PBM have been afforded an opportunity to respond to the Executive Director’s concerns and recommendations before the Minister made his decision?

Upon judicial review the first issue was answered in the negative. However, the second issue was answered in the affirmative. The remedy granted was an order of certiorari quashing and setting aside the Ministers’ decision and an order remitting PBM’s application for a certificate to the Minister for reconsideration. On the reconsideration PBM will be entitled to be provided with the Executive Director’s recommendations, if any, to the Minister, and will be entitled to provide a written response to the recommendations.

ISSUES

(1) Pursuant to the Act, was it beyond the Executive Director’s discretion to highlight the concerns and recommend the Minister weigh them against the conclusions of the Report?

In answering this issue in the negative, Affleck J. applied a standard of reasonableness in determining the Executive Director acted within the scope of his discretion to provide the Minister with recommendations pursuant to section 17(2) of the Act.

Specifically, Affleck J. found that the Executive Directors recommendations pursuant to the Act should not be constrained by the Report from the EAO. The statutory authority provided to the Executive Director to make recommendations to the Minister is an opportunity for the Executive Director to provide the Minister with information based on their expertise and experience that might not otherwise be gained from reading the Report.

Further to this, Affleck J. found that the concerns highlighted by the Executive Director were not “additional factors” but rather issues that were raised in the Report and, in the view of the Executive Director, of specific importance to the Minister’s decision making. The risk/benefit analysis recommended by the Executive Director to the Minister was also found to be consistent with the Minister’s role in considering the public interest in making decisions.

(2) As a matter of procedural fairness, should PBM have been afforded an opportunity to respond to the Executive Director’s concerns and recommendations before the Minister made his decision?

In answering this question in the affirmative, Affleck J. applied the 5 factors from Baker v.  Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 for determining the appropriate level of procedural fairness that PBM ought to have been entitled to.

Specifically, Affleck J. placed emphasis on PBM’s legitimate expectation that they would be notified and entitled to respond to concerns raised in the EA, the finality of the Minister’s decision, and the extent that PBM’s business or livelihood is impacted by the Minister’s decision.

IMPLICATIONS

The implications of this decision do not appear to be far reaching beyond the clarification that in EA the recommendations from the Executive Director to the Minister are not constrained by the conclusions of Final Assessment Reports.  Of potential interest to First Nations, this decision provides that it is reasonable for the Minister to refuse to issue a certificate because of concerns, including a strong strength of claim, even where the Final Assessment Report concludes that First Nations concerns have been adequately addressed.  This is a rare example of Aboriginal rights being given prominence in the consideration of the public interest by a decision maker.

Additionally, this decision has implications for potential opportunities for First Nations to be engaged in EA’s. The order from Affleck J. required that the affected First Nations also be entitled to the opportunity to respond to the Executive Director’s recommendations to the Minister. In other scenarios where recommendations may be unfavourable to First Nations, this opportunity to respond may potentially be of greater importance.

This case summary provides our general comments on the case discussed and should not be relied on as legal advice. If you have any questions about this case or any similar issue, please contact any of our lawyers practicing in Administrative and Regulatory Law.