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MINES AND MINERALS - Regulation of mining activities - Environmental impact

Wednesday, July 14, 2021 @ 6:21 AM  


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Appeal by the Highlands District Community Association (HDCA), from the dismissal of its application for judicial review of a decision of a Mines Inspector issuing a permit to the respondent OKI to operate a rock quarry. HDCA argued the Inspector’s decision was unreasonable because the Mines Inspector failed to consider the climate change impacts of the proposed quarry. HDCA was a society that purported to represent the interests of the residents of the Highlands, a semi-rural and industrial community. OKI commissioned several environmental assessments that were compiled into an environmental effects and mitigation report which was shared with HDCA. The permit incorporated several parts of the report and contained numerous conditions related to environmental protection. In his reasons, the Mines Inspector addressed HDCA’s environmental concerns in detail and was satisfied that the most relevant concerns about impact were adequately addressed. HDCA argued that the Mines Inspector’s conclusion that the impacts of climate change were beyond the scope of the Mines Act constituted an improper fettering of his discretion and rendered the decision to issue a permit unreasonable. The application judge concluded that the governing statutory scheme did not make consideration of the impacts of climate change a requirement for approving a permit for a smaller scale rock quarry such as the quarry in issue in this case. He also concluded that Canada’s international commitments to reduce carbon emissions did not mandate consideration of climate change impacts for every industrial project. The judge further concluded that the Mines Inspector could not be said to have failed to consider evidence of climate change impacts or how the members of HDCA would experience such impacts, as there was no evidence put before him relevant to these issues.

HELD: Appeal dismissed. The Mines Inspector’s interpretation of the factors he was required to consider in an application for a permit under s.10 of the Mines Act and approach to his authority to address climate change was not unreasonable. The environmental protections to be considered in the permitting process under the Mines Act and the Code were focused on the protection and reclamation of the land, watercourses and cultural heritage resources affected by a mine and did not impose mandatory consideration of any specific matter. The Mines Inspector’s failure to consider climate change did not constitute an improper fettering of discretion and was not a sufficiently serious shortcoming that could be said to render the decision unreasonable.

Highlands District Community Assn. v. British Columbia (Attorney General), [2021] B.C.J. No. 1284, British Columbia Court of Appeal, A.W. MacKenzie, B. Fisher and G.B. Butler JJ.A., June 14, 2021. Digest No. TLD-July122021005