A BC Court of Appeal judge has dismissed a mining company’s appeal of an injunction preventing it from breaking ground on its Rossland-area mine.
The ruling from Justice W. Paul Riley came this morning in Vancouver. He was considering whether the matter should proceed to a full hearing before a three-member panel.
West High Yield appealed the injunction secured last month by the Save Record Ridge Action Committee against the company’s magnesium project. The injunction stops work on the mine until a decision is rendered in a judicial review that will look at the provincial government’s decision not to require an environmental assessment.
The company argued the lower-court judge applied the wrong legal framework, failed to properly weigh the merits of the case, mischaracterized the risk of the project becoming “substantially started,” and improperly advanced the hearing timeline. It also sought to introduce new evidence. Riley rejected those arguments.
In his oral decision, Riley found the proposed appeal didn’t raise issues of broader legal significance and would not advance the underlying case.
Riley said he appreciated the injunction may result in a delay or loss of substantial mining revenues under a mining permit that will expire in two years. But because the judicial review is slated to begin in early May, he said the matter might be decided on its own merits even before a full appeal of the injunction could be scheduled.
“I find it is not in the interest of justice to grant leave to appeal,” Riley said.
West High Yield also argued that the $162,500 security deposit that Save Record Ridge was required to post was too low. But Riley ruled that in setting that amount, the lower court judge took into account that the injunction application became necessary because the company’s lawyers failed to make themselves available before August.
Meanwhile, a different judge has refused to exclude the Sinixt Confederacy from the legal challenge against the mine following a procedural hearing held in Rossland.
The Sinixt submitted arguments last month as part of the injunction application. The company argued the Sinixt should not have standing. In granting the injunction, Justice Dev Dley said it was not his decision to make and he did not consider evidence presented on behalf of the Sinixt.
The Sinixt, whose ancestral territory includes Rossland, are seeking to participate in the judicial review, but West High Yield brought an application to exclude them.
According to Save Record Ridge, a lawyer for the Sinixt argued Tuesday that their inclusion was in the interests of justice and efficiency, and that it made no sense to have multiple, separate proceedings on the same issue, since both groups are seeking the same thing.
The province did not take a position on the application.
Associate Judge Stephen Schwartz dismissed the company’s application, finding there was no legal basis for the request and that it was unnecessary. The court also ordered West High Yield to pay legal costs to both Save Record Ridge and the Sinixt.
“This was a clear and decisive outcome,” Save Record Ridge director Melanie Mercier said in a news release. “The court rejected an unnecessary attempt to exclude Sinixt, who are seeking to be heard on the exact same issue. We were proud to stand alongside them here in the very heart of their territory, and we’re looking forward to the hearing in May.”
We have asked West High Yield for comment.
Be the first to know! Don’t miss out on breaking news and daily updates in your area. Sign up to MyKootenayNowNews Alerts.
