A judge is expected to rule Wednesday at 1:30 p.m. on whether a proposed open-pit magnesium project southwest of Rossland should be suspended pending a judicial review.
Arguments in the case wrapped up this afternoon. A lawyer for the company involved asked that a petition from the Save Record Ridge Action Committee be dismissed with costs.
In her submissions, Carina Chiu argued that granting an injunction would harm West High Yield’s business operations. She said the company would have to cancel a contract with the Osoyoos Indian Band and a company that has been providing pre-construction services. She added the company has been told that if the project doesn’t go forward this spring, its prospective mine managers will look for work elsewhere.
Chiu said West High Yield has spent $740,000 since last fall in preparation costs and is finalizing a loan of $30 million for construction. She said any delays will result in “significant” interest charges and hamper ore deliveries, affecting the company’s ability to generate cash flow this year.
Save Record Ridge is seeking an injunction stopping the project until a judicial review can be heard. They want to overturn the provincial Environmental Assessment Office’s decision not to subject the project to a full environmental review, but the matter isn’t scheduled to be heard until August.
Following Justice Dev Dley’s urging Monday, the case might be moved up to May, but Save Record Ridge lawyer Ben Isitt said an interim order will still be needed to prevent “irreparable harm” if the company is able to begin work in April. He said they want to prevent any blasting, excavating, or logging.
Chiu said she didn’t agree with the suggestion that another lawyer for the company was solely responsible for delaying the case. She said offers had been made to move the matter to another location. However, Dley said from his reading of correspondence presented to him, the company’s lawyer never offered to be available earlier than August.
“It seems the petitioner [Save Record Ridge] was trying to do everything possible to get the matter on and didn’t care where they had to go,” he said. “It doesn’t sound as if [the company’s lawyer] was prepared to do much of anything to accommodate.”
Dley said it would be to the company’s advantage to have the judicial hearing put off until a significant amount of work is done, by which time the case will be moot.
In other submissions, Chiu said the court should ignore evidence presented by the Sinixt Confederacy in support of Save Record Ridge’s petition, because the Sinixt are technically a respondent in the case instead of a co-petitioner. Julia Riddle, a lawyer for the Sinixt, argued otherwise, suggesting the company’s view was “premised on a fundamental misunderstanding of the rules.”
Chiu further noted that while West High Yield already has its mining permit, it still needs to receive other permits from various government ministries before it can proceed. She said while the company expects to have all of those permits by April, there is no guarantee.
She argued Save Record Ridge “must demonstrate the harm is imminent and highly probable,” but because ground can’t be broken until the other permits are approved, the group’s application is merely “speculative,” which isn’t enough for an injunction.
Earlier today, Solomon Kay-Reid, representing the Ministry of Environment and its chief permitting officer, said the government doesn’t take a position on whether the work should be delayed pending the judicial review.
But he said the court should be “cautious” with Save Record Ridge’s arguments of “irreparable harm” because some of their concerns will be addressed by permits that haven’t yet been issued, while others are already addressed by conditions in the company’s mining permit.
In his closing submission, Isitt responded that even if the company complies with its permits, irreparable harm may still occur because once a project starts, it would no longer be subject to an environmental review, regardless of the outcome of the judicial review.
Isitt also provided an update on Save Record Ridge’s finances, after the judge questioned Monday whether the $60,000 they have in hand is enough to provide a security deposit in case they lose the judicial review.
Isitt said after putting out another call to supporters, the organization had collected another $138,000 in pledges by this afternoon. But he said while the group might be on the hook for damages if they are unsuccessful, a security deposit isn’t normally required. Riddle, the lawyer for the Sinixt Confederacy, also argued against imposing such a security.
Chiu said potential damages to the company if the project is delayed are “not in the tens of thousands. We are well beyond that.”
