Brad Armstrong, Q.C. successful in Supreme Court of Canada Decision

12.3.10

Lawson Lundell partner Brad Armstrong, Q.C. successfully represented Red Chris Development Co. Ltd. in a decision of the Supreme Court of Canada upholding the environmental assessment of the Red Chris mine under the Canadian Environmental Assessment Act.

On January 21, 2010, the Supreme Court of Canada issued its decision in a case brought by MiningWatch Canada against the Federal Government and Red Chris in relation to the Red Chris copper/gold project in north-western British Columbia.

MiningWatch challenged the decision of the federal Department of Fisheries and Oceans (DFO) that the project could proceed. That decision was based on a limited review by DFO focusing on fish habitat issues, following a comprehensive provincial review. The Supreme Court of Canada held that the relevant legislation requires the Federal Government to conduct a full review and does not permit the limited review undertaken in this case. Nonetheless, the Court declined to prevent the project from proceeding on the basis that it had been subject to a full provincial review and no one had taken issue with the conclusions of that review. The Court found that there was no justification to require Red Chris to repeat the environmental assessment process.

The Supreme Court of Canada’s decision has clarified the requirements imposed on the Federal Government by applicable legislation, but also emphasized that the Federal and Provincial Governments should avoid duplication and act in a cooperative and coordinated fashion in conducting environmental reviews. The mining industry has reacted positively to the latter aspect of the decision, recognizing that environmental concerns must be met but encouraged by the Court’s insistence that they be addressed in a coordinated manner.

The recent Throne Speeches in the British Columbia Legislature (February 9, 2010) and in Parliament (March 3, 2010) included reference to initiatives to rationalize federal and provincial environmental assessment processes.