Administrative law – Decisions of administrative tribunals – Environmental Assessment Office – Approval process – Environmental matters – Environmental Assessment Certificate – Judicial review – Compliance with legislation – Procedural requirements and fairness – Legitimate expectations
Pacific Booker Minerals Inc. v. British Columbia (Minister of the Environment),  B.C.J. No. 2694, 2013 BCSC 2258, British Columbia Supreme Court, December 9, 2013, K.N. Affleck J.
The Petitioner, Pacific Booker Minerals Inc., owns mineral tenures on Morrison Lake, in an area claimed as traditional territory by the Lake Babine First Nation. In 2002, it began work towards obtaining an Environmental Assessment Certificate under the Environmental Assessment Act, S.B.C. 2002, c.43 (the “Certificate”), to allow it to construct an open pit mine extracting about 30,000 tonnes of ore daily to produce copper/gold and other minerals concentrate. Over several years, the petitioner worked with the Environmental Assessment Office (the “EAO”) as well as other stakeholders to complete the environmental assessment process towards certification. In August 2012, the Ministers received a final assessment report from the Executive Director of the EAO which concluded that although the Petitioner had adequately satisfied concerns related to the potential adverse environmental, economic, social, heritage and health effects of the project and engaged in appropriate public consultation and accommodation of First Nations groups, he would not recommend the issuance of a certificate. In making this decision, the Executive Director also recommended the Ministers consider a number of additional factors raised during the assessment process and adopt a “risk/benefit” approach when weighing these factors, which included location of the project next to a salmon producing lake and long-term environmental liability and risk if the project was unsuccessful. By the time of the final assessment, the Petitioners estimated spending more than $10,000,000 on the environmental assessment process and generating 16,000 pages of application materials, submissions and responses.
The Court allowed the petitioner, and ordered that the Ministers’ decision be quashed and set aside, and the Petitioner’s application for the Certificate be remitted back to the Ministers for reconsideration, on terms that the Petitioner and First Nations group intervenors be entitled to be provided with a copy of the Executive Director’s recommendations, if any, and entitled to provide a written response to the recommendations in advance of a further decision. The Court did not find the Executive Director’s reference to “additional factors” and a “risk/benefit” analysis to be ultra vires the authority conferred under the Environmental Assessment Act. However, it found that application process failed to meet procedural fairness requirements as the Petitioner was not given notice of the Executive Director’s recommendations nor the opportunity to respond to the final report and the “additional factors” raised. The Court applied the “Factors Affecting the Content of the Duty of Fairness” in Baker v. Canada (Minister of Citizenship and Immigration),  2 S.C.R. 817, which included the Petitioner’s legitimate expectations that a certain procedure would be followed, noting that the petitioner legitimately believed that if the assessment report concluded that the project would result in no significant adverse effects, the Executive Director would not be overtly hostile to the issuance of the certificate.
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