Canadian government flaunted CEAA law to favour proposed mine

Canada's Supreme Court handed down a ruling described by one environmental organization as 'disturbing,' for allowing a proposed mine to proceed while chastising the Government of Canada for failing to uphold its own law.

Ottawa, Ontario - . Ecojustice, MiningWatch Canada, the Canadian Environmental Law Association, and six other environmental organizations are celebrating what they call a "monumental victory" after the Supreme Court of Canada delivered a ruling Thursday that chastised the Government of Canada for not upholding the Canadian Environmental Assessment Act (CEAA). The ruling means a gold and copper open-pit mine is allowed to be developed -- and the company is also allowed to use a nearby lake as a tailings pond. So how is this a win for the environment? According to MiningWatch Canada, the unanimous 7-0 ruling from the Supreme Court of Canada means

"... the Canadian government acted unlawfully ... Under the Canadian Environmental Assessment Act, entire projects must be environmentally assessed, and the government “cannot reduce the scope of the project to less than what is proposed by the proponent.”."

This is the second ruling handed-down in a one-year period where the Government of Canada was found to have violated its own environmental legislation. The previous case found the Department of Fisheries and Oceans had violated its own Species At Risk Act, failing to protect a rare minnow, the Nooksack Dace. While the coalition is praising the decision as a "landmark" ruling, the Sierra Club of Canada was a little more critical, saying the ruling was "disturbing" because the Red Mine proposal at the heart of the case was allowed to proceed without having to undergo a more thorough environmental assessment. In a statement, the Executive Director of Sierra Club Canada, John Bennett, said

“There is no justice for the environment in Canada, but in this case there is a solution, Sierra Club Canada calls upon Imperial Metals to resubmit their proposal to the Canadian Environmental Assessment Agency and requests a full panel review.”

The Red Chris Mine, owned by Imperial Metals, is situated in an area of British Columbia held to be sacred by the local Aboriginal population, and is also home to a rare species, the Rock Sheep. The mine will be allowed to proceed, pending a new public review, because the failure to uphold the law was not the fault of Red Chris Mine. In fact, the Supreme Court found Red Chris Mine had upheld all its legal obligations. Two years ago the public learned of the Canadian plan to reclassifying some lakes, allowing the lakes to be used as mine tailing ponds. According to the mining industry, when planning a tailings pond,

"The first issue is making sure that tailings storage areas are located properly. Extensive studies are done in an effort to site tailings storage facilities away from sensitive environmental areas – such as lakes and streams, wetlands, fishing, and hunting areas."

The Supreme Court of Canada said that the government was not following its own law, the Canadian Environmental Assessment Act. According to the Department of Fisheries and Oceans,

"... CEAA is the legal basis for the federal environmental assessment process and sets out the responsibilities and procedures for carrying out the environmental assessments of projects which involve federal government decision-making authorities."

When the federal government allowed the Red Chris Mine to proceed, it did not conduct a full environmental assessment, thus barring public input. The federal government broke down the proposal into parts for assessment, and largely said the assessment completed by the government of British Columbia was sufficient. The Supreme Court ruling made note of how the government broke the project down into parts for assessment. Justice Rothstein touched on the irony of the ruling, saying

"... I acknowledge that in exercising discretion to grant declaratory relief without requiring the parties to substantially redo the environmental assessment, the result is to allow a process found not to comply with the requirements of the CEAA to stand in this case. But the fact that an appellant would otherwise be entitled to a remedy does not alter the fact that the court has the power to exercise its discretion not to grant such a remedy, or at least not the entire remedy sought."

The decision means that all other proposals in Canada that affect the environment must receive a full environmental assessment under the federal law, and any such proposals must be open to the public for input.