Project Law Blog

Red Chris Appeal to be heard by Supreme Court of Canada

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On December 18, 2008, MiningWatch Canada(“MiningWatch”) was granted leave to appeal the decision of the Federal Court of Appeal in MiningWatch Canada, et al. v. Minister of Fisheries and Oceans, et. al  to the Supreme Court of Canada.  The decision relates to the environmental assessment that has been carried out to date on the Red Chris Project, a proposed copper and gold mining project in north-western British   Columbia. As previously reported in respect of lower court decisions, the basic issue in this case is the ability of the federal authorities to exercise some discretion and flexibility in scoping federal environmental assessments, to focus on those issues within federal authority, and to enable coordination with provincial environmental assessments.

Following the decision by the federal authorities that the Red Chris Project as scoped by them was not likely to cause significant adverse environmental effects, on June 9, 2006 MiningWatch Canada legally challenged the project on a number of grounds, saying in part that the provisions of the Canadian Environmental Assessment Act (“CEAA”) required that the project undergo a comprehensive study. In September 2009, the Federal Court Trial judge ruled in favour of MiningWatch.  The Attorney General of Canada and Red Chris each appealed from the decision of the Federal Court Trial judge.

On June 13, 2008, the Federal Court of Appeal overturned the decision of the Trial judge and found that the federal authorities were authorized to scope the project for which it conducted an environmental assessment, to those components which impacted on fish habitat.  The Federal Court of Appeal found it was appropriate to take into account the fact that the provincial assessment office was conducting a review of the entire project, and that the federal authorities participated cooperatively in that larger environmental assessment.  In making this ruling, the Federal Court of Appeal upheld the earlier decision of the Federal Court of Appeal in the TrueNorth case.

In its factum filed with the Supreme Court of Canada, MiningWatch again argues that, in these circumstances, it is mandatory for the federal authorities to conduct an environmental assessment of the entire mining project, rather than scoping the project to include only those components relating to fish habitat, and avoiding duplication with the provincial environmental assessment.

The appeal is set for hearing before the Supreme Court of Canada on October 16, 2009.