A BC Supreme Court judge has granted a local group’s request to stop work on an open-pit magnesium mine southwest of Rossland until a judicial review can be heard.
Justice Dev Dley delivered his decision this afternoon.
The Save Record Ridge Action Committee argued that work on the mine shouldn’t proceed until a judicial review is heard on the government’s decision not to subject the project to a full-scale environmental review.
Dley scheduled the judicial review to be held in Rossland the week of May 5. The injunction will remain in place until a judgement is rendered in that case.
The judge agreed that if the injunction was not granted, “irreparable harm” could come to Save Record Ridge, because by the time a decision is rendered in the judicial review, West High Yield could be past a “substantially started” threshold that would prevent an environmental review from occurring.
Dley said there will also be harm to the company because they won’t be able to proceed with the project in its entirely as of April 1, but he noted there is no certainty they will be able to begin on that date anyway, because the work is weather dependent and not all permits have been secured.
The judge said had the company’s lawyers been available to argue the judicial review sooner, the injunction wouldn’t have been necessary.
“WHY stands to succeed in defeating the petition without arguing the merits if an injunction is not granted,” Dley said. “The longer this matter is delayed, the more WHY can do on the project. That outcome cannot be fair or just.”
Dley said agreeing to the company’s position would be “tantamount to this court endorsing unavailability to delay the otherwise timely hearing of a dispute.”
Court heard this week that the company’s lawyer was unavailable until August, which is when the judicial review was previously expected to be heard. Lawyers for the other parties said they were ready earlier.
“A party is at liberty to retain counsel of its choosing,” Dley said. “But if counsel is so busy they cannot be available on a reasonable basis, that party cannot rely on unavailability as a reason to avoid hearing dates.”
The judge said the company could have avoided the injunction by making themselves available sooner. He said refusing to appear until August was “unreasonable” and granting a time-limited injunction was “just and equitable,” allowing “all parties to argue issues on their merits. To do otherwise would deny the petitioner access to justice.”
Dley said Save Record Ridge has limited means and it’s unlikely they would be able to satisfy a large award of damages, but the group’s application was necessary because WHY failed to make itself available sooner. “It is the author of its own doing as it relates to some of its potential damages,” he said.
Still, Dley said some deposit for damages was required in case Save Record Ridge ultimately loses its case. Court heard this week that between cash on hand and pledges, the group has collected $162,500 for that purpose. Dley ordered that $60,000 in the group’s account be frozen. Save Record Ridge will have two weeks to deposit another $102,500 with its lawyer.
WHY’s lawyer, Joan Young, asked if an alternative date for the judicial review could be set in Williams Lake later in May, because she is in court elsewhere earlier in the month. While Dley said he was sympathetic to Young’s scheduling conflict, he denied her request, suggesting a different lawyer could appear on the company’s behalf. He also said the matter deserves to be heard in Rossland.
“This is the kind of file where the hearing should take place in the community that’s been impacted and will be affected by whatever order is ultimately made,” Dley said. “The residents of the community should be in a position to see the proceedings. That’s part of access to justice.”
The Sinixt Confederacy spoke in support of Save Record Ridge’s application for the injunction, but West High Yield challenged their standing in the case. Dley said it wasn’t for him to decide the matter and he didn’t take into account any of the Sinixt’s evidence or arguments in reaching his decision.
