On September 25, 2007, a Federal Court Trial Judge in MiningWatch Canada v. Canada (Fisheries and Oceans), 2007 FC 955 allowed an application by MiningWatch Canada challenging the legality of decisions/actions taken by the Department of Fisheries and Oceans (“DFO”) and Natural Resources Canada in conducting the environmental assessment of a proposed copper and gold mining project in north-western British Columbia. The court made this ruling despite the relatively recent ruling in the TrueNorth case, in which the Federal Court of Appeal upheld the validity of federal authorities using their discretionary authority under the Canadian Environmental Assessment Act (“CEAA”) to scope an oil sands project down into those components which fell within federal jurisdiction and which required federal authorization.
The Federal Court Trial Judge ruled that in this case, the scoping of that mining project to those components within federal jurisdiction and requiring federal authorization was not valid. The court issued a declaration that the DFO had correctly determined in the initial tracking decision that the project would require a comprehensive study level review based on the proposed ore production capacity threshold under the Comprehensive Study List Regulations, and that in later re-scoping the project the responsible authorities acted beyond the ambit of their statutory powers. The Court further declared that the responsible authorities were under a legal duty to ensure public consultation with respect to the proposed scope of the project, the factors proposed to be considered in its assessment, the proposed scope of those factors and the ability of a comprehensive study to address issues relating to the project.
The Federal Court Trial Judge set aside the screening decision and ruled that the federal authorities were required to go back and conduct a comprehensive study of the project under the Comprehensive Study List Regulations before issuing federal permits and authorizations.
The decision has resulted in uncertainty for federal authorities respecting the scoping and environmental assessment of mining and other major projects. The decision is under appeal to the Federal Court of Appeal, and it is expected that a date for hearing the appeal will be set this year.