Canada: Pacific Booker Minerals Inc. V. British Columbia (Environment), 2013 BCSC 2258

PACIFIC BOOKER MINERALS INC. V. BRITISH COLUMBIA (ENVIRONMENT), 2013 BCSC 2258

This judicial review decision highlights the importance of procedural fairness in the environmental assessment process. The British Columbia Supreme Court quashed a decision not to issue an environmental assessment certificate in circumstances where the proponent had not been given an opportunity to respond to concerns.

Pacific Booker Minerals Inc. (Pacific Booker) had been pursuing an environmental assessment certificate under British Columbia's Environmental Assessment Act (Act) for several years, so that it could construct an open pit copper/gold and molybdenum mine. The proposed mine was expected to extract 30,000 tonnes of ore daily over a lifespan of about 21 years.

In August 2012, the Ministers of Environment and Energy, Mines and Natural Gas (Ministers) received a "final assessment report" from the executive director of the Environmental Assessment Office (EAO). While the report concluded that the project would not result in any significant adverse effects if mitigation measures were properly implemented, the executive director recommended that the Ministers refuse to issue the certificate due to what were described as "additional factors" that had been raised during the assessment process. In September 2012, the Ministers followed the recommendation and refused to issue a certificate. Although Pacific Booker had participated in the lengthy process from the beginning, it was not made aware of the executive director's recommendations before the Ministers made their decision and it was not afforded an opportunity to respond to the "additional factors."

Pacific Booker sought to have the Ministers' decision quashed on the grounds that the executive director's recommendation was ultra vires the Act, and that Pacific Booker had not been given notice of, or any opportunity to respond to, the executive director's concerns and ultimate recommendation.

Although the Court rejected the submission that the Ministers' decision was ultra vires the Act, it agreed that the Ministers' decision failed to comport with the requirements of procedural fairness. In coming to its conclusion, the Court considered the factors set out by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), ¹ including the legitimate expectations of Pacific Booker. As noted by the Court, Pacific Booker had been encouraged to participate at every step of the process, had been kept informed of concerns, and had been given a full opportunity to respond to them. As a result, Pacific Booker had a legitimate expectation that it would be given the opportunity to be heard when serious concerns were expressed. It was entitled to know at least the essence of the adverse recommendations and ought to have been given the opportunity to provide a written response.

Footnote

1. [1999] 2 S.C.R. 817.

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