A decision in the judicial review of a proposed open-pit magnesium mine near Rossland isn’t likely until around the middle of next month.
“I recognize this is a very important case for all stakeholders including the community, the company, and I will give it due consideration,” Justice Gordon Weatherill said today after hearing three days of submissions from lawyers representing four parties.
“I tend to get my decisions out relatively quickly. Unfortunately, in this case, I know my schedule going forward and I don’t expect I will be able to get my decision to you until mid-June, which I regret.”
The Save Record Ridge Action Committee objects to the provincial government’s decision not to subject West High Yield’s project to a full environmental review. They are seeking an order that would quash the decision and return it to the government for reconsideration. In the meantime, an injunction is in place that prevents the proponent, West High Yield, from breaking ground. The company is still awaiting some of its permits.
Earlier today, the company’s lawyer said the case is about reasonableness, not correctness. Joan Young argued that Save Record Ridge is asking the court to adopt one interpretation of mining capacity over another but that the central question is whether the bureaucrat who made the decision acted reasonably.
She suggested a “correctness standard is being dressed up as reasonableness” and said “significant deference” is owed to a “discretionary decisionmaker” interpreting a statute. She added that it’s not for the court to reweigh things and arrive at a different conclusion.
Young also pushed back against the notion that by reducing the proposed capacity of the mine below a certain threshold, the company was exploiting a loophole. She said the BC legislature made a “deliberate choice” in the Environmental Assessment Act that not all projects would be subject to full environmental review, which is why thresholds exist.
“If they wanted to establish a regime where every mining project had to undergo the process of environmental assessment, they could have done so in the legislation,” she said.
Young said not subjecting a mine to an environmental review doesn’t mean it escapes assessment or evaluation. She said establishing different processes for different types of mines was a legislative choice, and it’s not something for the courts to second guess. She added that discretionary powers are given to decisionmakers, and proponents are allowed to submit proposals above or below certain production thresholds.
It’s therefore a “legitimate choice” for West High Yield to begin with a smaller pilot project and expand later if it proves economically viable, subject to regulations and permit amendments, Young said.
West High Yield originally sought a project that would produce 400,000 tonnes per year, which was subsequently scaled back to 249,000 tonnes, then 200,000, and finally 63,500, which falls below the amount that would automatically trigger an environmental review. Young said it would be wrong to speculate on what might happen later.
“Aspiration is one thing, but we can only go on what they’ve actually applied for and what they were approved for,” she said.
She said a full environmental assessment could add years to what has already been “very robust, multi-year regulatory review process” that has cost the company “upwards of $59 million to date.”
Young said the company has been upfront about what it wants to do, and all the facts, including submissions from Save Record Ridge and the Sinixt Confederacy, were placed before the chief environmental assessment officer who decided the project didn’t require a full environmental assessment.
“No one pulled the wool over the decisionmaker,” she said.
Petitioner responds
In his response for the Save Record Ridge group, lawyer Ben Isitt said it’s within the court’s authority to review whether the project received a proper analysis. “That’s what the minister ought to have done and failed to do, and what the court is called upon to correct,” he said.
Isitt said the bureaucrat tasked with reviewing the file didn’t assess the issue of the overbuilt footprint, and that failure renders the decision unreasonable.
“Nowhere in the reasons does he account for or assess or describe or grapple with WHY’s largely unchanged mine plan,” Isitt said.
“The problem is not the company’s aspirations, the problem is the company’s specific proposal to build out the entire footprint now rather than in the future following the completion of an environmental assessment. That is the loophole.”
Isitt said the judge can apply a reasonableness standard and conclude that the Record Ridge project ought to have been subject to environmental review.
In her reply, Julia Riddle, the lawyer acting for the Sinixt Confederacy, urged the judge to reject the argument that allowing a mine to have a larger-than-needed footprint is consistent with the legislature’s intent.
While the Ministry of the Attorney-General also made submissions in the case, it took no position on whether the decision should be revisited.
