A judicial review of the provincial government’s decision not to subject the Record Ridge mining project to a full environmental review is now underway in Rossland Supreme Court.
Justice Gordon Weatherill is hearing three days of arguments and will ultimately decide whether the project should be referred back to the government for reconsideration.
Ben Isitt, the lawyer for the Save Record Ridge Action Committee, laid out the expected schedule of proceedings:
• Isitt and his co-counsel will make submissions until mid-afternoon today.
• Lawyers for the Sinixt Confederacy, which supports the request, will follow and continue until noon tomorrow.
• Lawyers for the provincial government will respond from noon until 3:30 tomorrow.
• Lawyers for the proponent, West High Yield, will respond from 3:30 tomorrow until 3 p.m. Thursday.
Afterward, lawyers for Save Record Ridge and the Sinixt Confederacy will each have a brief opportunity to reply.
Save Record Ridge is challenging the environmental assessment office’s decision that the project falls below the necessary production threshold to be subjected to a full environmental review.
Isitt said at issue is whether an applicant can avoid an assessment by adjusting numbers in its application while leaving its project design, footprint, and environmental effects “largely unchanged.”
He said in West High Yield’s case, this amounted to a “procedural sleight of hand,” which would let the company later pursue increased production on an overbuilt footprint without an environmental assessment. He called this a “legislative loophole” in the Environmental Assessment Act.
Isitt said West High Yield originally stated its production would be 400,000 tonnes per year, which was subsequently reduced to 249,000 tonnes, then 200,000. In 2024, the province’s environmental assessment office concluded the project was automatically subject to an environmental review at that capacity.
However, Isitt said the company then further reduced its planned production to 63,500 tonnes, falling below the threshold for automatic assessment. He said it made some other changes to its design, including reducing the footprint by a little over five per cent, but most components were left unaltered.
Isitt told the judge there is “abundant evidence” the proponent intends to expand production by up to a million tonnes per year. He said the chief assessment officer was wrong in deciding not to designate the project for review and “failing to grapple with evidence of the project’s adverse effects.”
The mine could potentially ramp up production without expanding its footprint, but no environmental assessment would be required at that point because it would be considered an existing project, Isitt said.
If the judge grants Save the Record Ridge’s request, he will also be asked to extend an injunction against the project, which is in place pending his ruling. Isitt said if the project is “substantially started” in the interim, the outcome of any reconsideration on an environmental review will be moot.
